S-14-0696 Cindy Marshall (Appellant) v. Eyecare Specialties, P.C. of Lincoln (Appellee)
Lancaster County, Judge John Colborn
Attorneys: Abby Osborn & Joy Schiffermiller of Shiffermiller Law Office for Appellant, Shawn Renner, Susan Sapp & Tara Stingley of Cline, Williams, Wright, Johnson & Oldfather LLP for the Appellee.
Civil: Disability Discrimination
Proceedings Below: The trial court granted summary judgment for the Defendants, finding that there was no direct evidence of discrimination, and finding that the Defendant had established a legitimate, non-discriminatory reason for terminating Marshall's employment. The Supreme Court reversed and remanded for further proceedings. See Marshall v. Eyecare Specialties, P.C., 291 Neb. 264 (2015). Appellee Eyecare Specialties, P.C. filed a Motion for Rehearing which was sustained.
Issues on Rehearing: 1. The Court erred in relying on Tramp u, Associated Underwiters, Inc., 768 F.3d 793 (8th Cir. 2014), for the proposition under federal law that "an individual can show that he or she was regarded as having such an impairment 'if the individual establishes that he or she has been subjected to[a prohibited action] because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity- because the language quoted is inconsistent with the Nebraska Fair Employment Practices Act ("FEPA").2. The Court's reliance on case law applying a federal statute that is inconsistent with Nebraska law led it to err in deciding that any factual issue relating to Appellant Cindy Marshall's ("Marshall") purpura or arm sores could be material to the outcome of the case.