Marshall v. EyeCare Specialities
865 N.W.2d 343
Neb.2015Background
- Cindy Marshall was hired in 2007 as a clinical technician by EyeCare Specialties; she had a prior loss of a nursing license and prior treatment for prescription medication dependence.
- Over several years supervisors and coworkers documented intermittent performance problems: slow pace, inattention, time-clock issues, and errors administering tests; periodic written warnings and corrective action plans were issued.
- Coworkers and HR raised concerns about tremors and visible skin lesions (purpura); HR told Marshall to cover sores and suggested displaying medication bottles when taking meds; Marshall explained the tremor and skin condition were hereditary and provided a doctor’s note diagnosing essential (non-intention) tremor.
- Marshall was given progressive discipline in early 2012, left a shift on March 13 (disputed whether authorized), and was terminated on March 14, 2012 for performance and related reasons.
- Marshall filed a discrimination charge asserting she was perceived as disabled (due to prior substance-abuse treatment, tremors, and purpura) and sued under the Nebraska Fair Employment Practice Act; the district court granted summary judgment for EyeCare; the Nebraska Supreme Court reversed and remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether direct evidence exists that Marshall was terminated because she was perceived as disabled | Marshall: statements and warnings about "sores," "appearing anxious," and "acting paranoid" show employer perceived a disability and motivated the firing | EyeCare: termination was for legitimate, nondiscriminatory reasons — chronic poor performance and abandonment of shift; no one told Marshall they thought she used drugs | Court: Evidence (HR statement and written warning referencing sores/refusal to cover them and observed tremors) can be construed as direct evidence that the employer perceived a disability; summary judgment improper |
| Whether McDonnell Douglas burden-shifting applies | Marshall: argues she presented direct evidence so McDonnell Douglas is unnecessary | EyeCare: argued plaintiff failed to make prima facie case and relied on McDonnell Douglas framework | Court: Agreed McDonnell Douglas not required where direct evidence sufficiently links discriminatory motive to adverse action; here direct-evidence standard applies |
| Whether admission of NEOC findings was impermissible | Marshall: district court impermissibly relied on NEOC findings | EyeCare: NEOC findings admissible or harmless | Court: Admission of NEOC findings is within trial court discretion; district court did not rely on those findings in its decision; no reversible error |
| Whether summary judgment was appropriate | Marshall: facts and inferences favor her and create genuine issue of material fact on perceived-disability discrimination | EyeCare: presented legitimate reasons for termination; no evidence of pretext | Court: Viewing facts in plaintiff's favor, genuine factual dispute exists about perceived disability motive; summary judgment reversed and case remanded |
Key Cases Cited
- McDonnell Douglas Corp. v. Green, 411 U.S. 792 (establishes burden-shifting framework for disparate treatment claims)
- Price Waterhouse v. Hopkins, 490 U.S. 228 (discusses mixed-motive proof in discrimination contexts)
- Tramp v. Associated Underwriters, Inc., 768 F.3d 793 (defining "regarded as" disability in ADA/analogous contexts)
- Griffith v. City of Des Moines, 387 F.3d 733 (explains direct evidence as showing a specific causal link between animus and adverse action)
- Father Flanagan’s Boys’ Home v. Agnew, 256 Neb. 394 (Nebraska case discussing direct-evidence concept in employment law)
- Doe v. Board of Regents, 287 Neb. 990 (summary judgment standards and burdens)
- Johnson v. Nelson, 290 Neb. 703 (standard for appellate review of summary judgment)
- Riesen v. Irwin Indus. Tool Co., 272 Neb. 41 (at-will employment and statutory limits such as discrimination prohibitions)