By Gloria Gonzalez, Crain News Service
LINCOLN, Neb. (Sept. 25 2015) — The Nebraska Supreme Court has reversed a lower court ruling and granted a new trial in an injured worker's disability discrimination lawsuit that alleged his company fired him because of his known work-related injuries.
Lenard Arens will have another chance to prove his discrimination claims under the Nebraska Fair Employment Practice Act, which prohibits employers from discharging, harassing or discriminating against disabled workers, the state Supreme Court ruled Sept. 18.
A work accident shattered Mr. Arens' kneecap in 1986, which made his job of driving a concrete truck difficult, and his then-supervisor at Lincoln, Neb.-based construction supply company NEBCO Inc. assigned him to a less strenuous driving position, according to court documents. However, Mr. Arens suffered a brain injury in a 1996 accident while driving a flatbed truck and was absent for six months, requiring rehabilitative care for speech and memory problems.
Even after returning to work, he experienced fear and dizzy spells and was given written instructions by co-workers because of short-term memory problems, the documents stated.
In 2006, a new supervisor, Gordon Wisbey, began managing Mr. Arens, who alleged the supervisor singled him out for complaints about his work and ignored his disabilities. In October 2006, Mr. Wisbey documented an oral reprimand that he gave to Mr. Arens over a truck accident that damaged an electrical switchbox at a jobsite. In 2008, the same supervisor ordered him to drive a forklift truck even though it was a more strenuous job. Mr. Wisbey later said he would have fired Mr. Arens after a separate truckyard incident, even though other employees, including himself, had experienced similar accidents and he could not recall reassigning any of these drivers because they had accidents or failed to file incident reports.
In December 2010, Mr. Wisbey called Mr. Arens into his office and told him he was being fired, according to Mr. Arens, although the supervisor said in court testimony that he was reassigning him to drive a concrete truck. Mr. Arens was laid off later that year because of slow business, according to the company, which Mr. Arens argued was a pretext to terminate him.
In his lawsuit, filed in the District Court for Lancaster County, Neb., Mr. Arens alleged that the company was aware of his disabilities and discriminated against him under the Nebraska statute and terminated his employment for violating standards or conditions of employment that did not apply to employees without disabilities, according to court documents.
The trial judge excluded as irrelevant testimony from a vocational rehabilitation counselor intended to show that Mr. Arens had permanent mental impairments following his 1996 brain injury, that the company had accommodated these impairments in the past and could have accommodated him in 2010.
Mr. Arens appealed to the Nebraska high court, which heard the appeal in April 2015.
The Supreme Court said Sept. 18 this testimony was relevant to show the company's knowledge of Mr. Arens' permanent mental impairments and whether it had previously accommodated them, and therefore was improperly excluded by the trial judge, which constituted a reversible error.
Lawyers for the company could not be immediately reached for comment.
This report appeared on the website of Crain's Business Insurance magazine, a Chicago-based sister publication of Tire Business.