- 874 -

Nebraska Court of Appeals Advance S

24 Nebraska Appellate Repor

CHEVALIER v. METROPOLITAN UTIL. DIST.

Cite as 24 Neb. App. 874

Shala R. Chevalier, appellant, 

Metropolitan Utilities Dist

of Omaha, appelle

___ N.W.2d ___

Filed July 18, 2017. No. A-16-103.

1. Directed Verdict: Evidence. A directed verdict is proper only when 

reasonable minds cannot differ and can draw but one conclusion from 

the evidence, that is, when an issue should be decided as a matter 

of law.

2. Directed Verdict: Appeal and Error. In reviewing a directed verdict, 

an appellate court gives the nonmoving party the benefit of every controverted fact and all reasonable inferences from the evidence.

3. Rules of Evidence. In proceedings where the Nebraska Evidence Rules 

apply, the admissibility of evidence is controlled by such rules; judicial 

discretion is involved only when the rules make discretion a factor in 

determining admissibility.

4. Rules of Evidence: Appeal and Error. When the Nebraska Evidence 

Rules commit the evidentiary question at issue to the discretion of the 

trial court, an appellate court reviews the admissibility of evidence for 

an abuse of discretion.

5. Trial: Evidence: Appeal and Error. In a civil case, the admission or 

exclusion of evidence is not reversible error unless it unfairly prejudiced 

a substantial right of the complaining party.

6. Verdicts: Juries: Appeal and Error. A jury verdict will not be set 

aside unless clearly wrong, and it is sufficient if any competent evidence is presented to the jury upon which it could find for the successful party.

7. Verdicts: Appeal and Error. In determining the sufficiency of the evidence to sustain a verdict in a civil case, an appellate court considers 

the evidence most favorably to the successful party and resolves evidentiary conflicts in favor of such party, who is entitled to every reasonable 

inference deducible from the evidence.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

07/25/2017 09:12 AM CDT
- 875 -

Nebraska Court of Appeals Advance S

24 Nebraska Appellate Repor

CHEVALIER v. METROPOLITAN UTIL. DIST.

Cite as 24 Neb. App. 874

8. New Trial: Appeal and Error. An appellate court reviews a trial court’s 

ruling on a motion for a new trial for abuse of discretion.

9. Judges: Words and Phrases. A judicial abuse of discretion exists when 

the reasons or rulings of a trial judge are clearly untenable, unfairly 

depriving a litigant of a substantial right and denying just results in matters submitted for disposition.

10. Employer and Employee: Federal Acts: Discrimination. The Family 

and Medical Leave Act of 1993 provides eligible employees up to 

12 workweeks of unpaid leave in any 12-month period and prohibits 

employers from discriminating against employees for exercising their 

rights under the act.

11. ____: ____: ____. Basing an adverse employment action on an employee’s use of leave, or in other words, retaliation for the exercise of rights 

under the Family and Medical Leave Act of 1993, is actionable.

12. Employer and Employee: Federal Acts: Discrimination: Proof. To 

establish a prima facie case of retaliation under the Family and Medical 

Leave Act of 1993, an employee must show that he or she exercised 

rights afforded by the act, that an adverse employment action was suffered, and that there was a causal connection between the exercise of 

rights and the adverse employment action.

13. Fair Employment Practices: Discrimination: Proof. For purposes 

of construing the Nebraska Fair Employment Practice Act in disparate 

treatment cases, the three-part McDonnell Douglas Corp. v. Green, 411 

U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), test is used and is 

as follows: (1) the plaintiff has the burden of proving by a preponderance of the evidence a prima facie case of discrimination; (2) if the 

plaintiff succeeds in proving the prima facie case, the burden shifts to 

the defendant to articulate some legitimate, nondiscriminatory reason for 

the employee’s rejection; and (3) should the defendant carry the burden, 

the plaintiff must then have an opportunity to prove by a preponderance 

of the evidence that the legitimate reasons offered by the defendant were 

not its true reasons, but were a pretext for discrimination.

14. ____: ____: ____. A prima facie case of gender discrimination requires 

the plaintiff to prove that he or she (1) is a member of a protected class, 

(2) was qualified to perform the job, (3) suffered an adverse employment action, and (4) was treated differently from similarly situated 

persons of the opposite sex.

15. ____: ____: ____. The plaintiff in an employment discrimination action 

bears the burden to first prove to the fact finder by a preponderance of 

the evidence a prima facie case of discrimination.

16. Employer and Employee: Discrimination: Proof. Once the plaintiff 

has established a prima facie case of discrimination, the burden of 
- 876 -

Nebraska Court of Appeals Advance S

24 Nebraska Appellate Repor

CHEVALIER v. METROPOLITAN UTIL. DIST.

Cite as 24 Neb. App. 874

production shifts to the employer to rebut the prima facie case by producing clear and reasonably specific admissible evidence that would 

support a finding that unlawful discrimination was not the cause of the 

employment action.

17. ____: ____: ____. In an employment discrimination action, when the 

employer articulates a legitimate, nondiscriminatory reason for the 

decision, raising a genuine issue of fact as to whether it discriminated 

against the employee, the employer’s burden of production created by 

the employee’s prima facie case is satisfied and drops from the case.

18. ____: ____: ____. In an employment discrimination action, after the 

employer has presented a sufficient, neutral explanation for its decision, the question is whether there is sufficient evidence from which a 

jury could conclude that the employer made its decision based on the 

employee’s protected characteristic, despite the employer’s proffered 

explanation.

19. Rules of Evidence: Proof: Words and Phrases. The best evidence rule 

is a rule of preference for the production of the original of a writing, 

recording, or photograph when the contents of the item are sought to 

be proved.

20. Rules of Evidence: Proof: Fraud. The purpose of the best evidence 

rule is the prevention of fraud, inaccuracy, mistake, or mistransmission 

of critical facts contained in a writing, recording, or photograph when 

its contents are an issue in a proceeding. By its terms, the best evidence 

rule applies to proof of the contents of a recording.

Appeal from the District Court for Douglas County: W. 

Mark Ashford, Judge. Affirmed

Joy Shiffermiller and Abby Osborn, of Shiffermiller Law 

Office, P.C., L.L.O., for appellant.

Mark Mendenhall, of Metropolitan Utilities District of 

Omaha, for appellee.

Pirtle, Bishop, and Arterburn, Jud

Pirtle, Judge

INTRODUCTION

Shala R. Chevalier brought an action against her employer, 

Metropolitan Utilities District of Omaha (MUD), in the district court for Douglas County, alleging gender and disability 
- 877 -

Nebraska Court of Appeals Advance S

24 Nebraska Appellate Repor

CHEVALIER v. METROPOLITAN UTIL. DIST.

Cite as 24 Neb. App. 874

discrimination in a promotion decision, retaliation for her 

complaint of discrimination, and retaliation for taking leave 

from work pursuant to the Family and Medical Leave Act of 

1993 (FMLA), 29 U.S.C. § 2601 et seq. (2012). A jury found 

in favor of MUD on all causes of action, and the trial court 

accepted the verdicts and entered judgment in favor of MUD. 

Chevalier appeals. Finding no merit to her assignments of 

error, we affirm.

BACKGROUND

Chevalier began working for MUD in July 1993. She alleges 

that she contracted Lyme disease in 2006, which resulted in her 

being disabled, and that MUD was aware of her disability. She 

alleges that throughout her employment she has been “harassed 

based on her disability.”

In February 2010, Chevalier applied for a promotion to a 

supervisory position—supervisor of field engineering. Eight 

men and three women applied for the position, including 

Chevalier. Stephanie Henn, director of plant engineering, was 

the decisionmaker for the position. The position was given to 

David Stroebele, who Chevalier alleges was “less senior and 

less qualified” than she was and did not have all the required 

qualifications for the position. She claims she was denied the 

position based on her gender.

In July 2010, Chevalier filed a complaint of discrimination 

with the Nebraska Equal Opportunity Commission (NEOC) 

and the federal Equal Employment Opportunity Commission 

(EEOC). She claims that MUD began retaliating against her 

after she filed her complaint. On July 28, 2011, the NEOC 

issued a “right to sue” notice on Chevalier’s discrimination charge.

Chevalier filed a complaint in the district court for Douglas 

County on September 22, 2011, and a motion to amend the 

complaint on December 16, 2013. The amended complaint 

asserted five causes of action. The first three causes of action 

alleged violations of the Nebraska Fair Employment Practice 
- 878 -

Nebraska Court of Appeals Advance S

24 Nebraska Appellate Repor

CHEVALIER v. METROPOLITAN UTIL. DIST.

Cite as 24 Neb. App. 874

Act, Neb. Rev. Stat. § 48-1101 et seq. (Reissue 2010) in that 

(1) MUD denied her a promotion based on her sex; (2) MUD 

denied her a promotion and subjected her to other discrimination and harassment based on her disability, specifically the 

effects she suffered from having contracted Lyme disease; 

and (3) MUD retaliated against her for complaining of discrimination and filing a complaint with the NEOC and EEOC. 

Chevalier’s fourth cause of action alleged that MUD retaliated 

against her for using leave afforded to her under the FMLA. 

The fifth cause of action alleged that MUD’s continued retaliation against her for her complaint of discrimination was actionable under Neb. Rev. Stat. § 20-148 (Reissue 2012). Chevalier 

later dismissed the fifth cause of action.

A jury trial was held on Chevalier’s first four causes of 

action in her amended complaint. Chevalier presented evidence to show that she suffers from Lyme disease and has 

been treated by doctors for the disease since at least 2006. 

She was initially diagnosed and treated by a physician’s 

assistant. In the spring of 2007, she started treating with a 

Lyme disease specialist, and she continued treating with him 

until 2009 or 2010. Chevalier testified that she told Charles 

Pattavina, her supervisor, about her Lyme disease because 

it was affecting her work. She stated that it was taking her 

longer to complete her work because she had problems with 

thought processing. Her other symptoms included joint pain, 

a decreased immune system, numbness and twitching in her 

face, and “shooting pains.” She testified that she was still 

able to do her job with the symptoms she was having, but she 

had to take sick days off work “here and there” as a result of 

the Lyme disease. After she informed MUD of her disease, 

a safety meeting was held, at Chevalier’s urging, to inform 

employees about Lyme disease. Chevalier testified that in 

2009, Pattavina told her that she needed to stop taking so 

much sick leave. Henn, Pattavina’s supervisor at the time, 

also discussed Chevalier’s sick time with her and told her she 

needed to “get well.”
- 879 -

Nebraska Court of Appeals Advance S

24 Nebraska Appellate Repor

CHEVALIER v. METROPOLITAN UTIL. DIST.

Cite as 24 Neb. App. 874

Chevalier also testified that after she saw the specialist in 

the spring of 2007, she gave MUD’s nurse a letter from him 

stating why she had been off work. After Chevalier filed her 

complaint with the NEOC and EEOC in July 2010 claiming 

discrimination on the basis of disability, the physician’s assistant filled out a medical questionnaire for the NEOC which 

indicated that Chevalier was not disabled, i.e., did not have difficulty performing any major life activities, and he noted only 

that she has periodic illness due to Lyme disease.

Pattavina testified that he was aware Chevalier claimed 

to have Lyme disease and that he recalled attending a safety 

meeting about the disease. He also testified that between 2003 

and when he retired from MUD in 2010, Chevalier did not 

have difficulty performing her duties and he did not notice a 

decrease in the quality or quantity of her work. He did remember one time that Chevalier said she needed extra time to complete some reports because of her Lyme disease.

In regard to the hiring decision for the supervisor of field 

engineering position, Henn testified that in determining which 

candidate was best qualified, she reviewed information provided by human resources which included each candidate’s 

personnel file and a spreadsheet which had each candidate’s 

date of hiring, positions held, and absence history. She also 

reviewed the candidates’ past performance appraisals.

Henn testified that she reviewed Chevalier’s 2004 and 2007 

performance appraisals and that there were some comments 

that caused her concern. The comments included Chevalier’s 

needing to show more professionalism, needing to stay at her 

desk and concentrate on her job, and needing to not disturb 

others. These concerns were reflected in both the 2004 and 

2007 appraisals.

Pattavina completed another performance appraisal of 

Chevalier in March 2010, the first since 2007. The performance appraisal took place after her interview for the job at 

issue, but before the hiring decision was made. The appraisal 

noted that she needs to show more professionalism, not disturb 
- 880 -

Nebraska Court of Appeals Advance S

24 Nebraska Appellate Repor

CHEVALIER v. METROPOLITAN UTIL. DIST.

Cite as 24 Neb. App. 874

others in the office, spend less time away from her work station, and improve on balancing field and office time. It also 

stated that she needs to “greatly improve prior to her being 

ready for more responsibility.”

Henn testified that there was nothing in Chevalier’s performance appraisals to indicate she was suffering from any 

sort of physical or mental disability, nor was there any indication that she needed or had requested an accommodation for 

a disability.

Henn also testified that she personally observed Chevalier 

on an almost daily basis talking and socializing with individuals who worked in the engineering department, which 

was on a different floor from Chevalier’s work station. Henn 

said she rarely saw other field engineers in the engineering 

department.

Henn interviewed all 11 applicants for the position and 

asked all of them the same questions. After making her decision to hire Stroebele, she sent a selection letter to human 

resources recommending Stroebele for the position and stating 

the reasons why the other 10 candidates were not selected. 

Henn testified that there were three candidates that did not 

meet the minimum qualification requirements for the position. 

Other reasons for eliminating candidates from consideration 

included having recently been promoted to a different position, 

as well as negative remarks on performance appraisals or negative job performance.

In regard to Chevalier, the selection letter stated that she was 

“not a good candidate,” noting that her performance appraisals 

reflect that she has a difficult time staying at her work station 

and concentrating on her job, as well as making too many 

personal telephone calls, disturbing others in the office, and 

needing a better balance between field and office time. Henn 

also noted that Chevalier tends to be away from her work 

area and not in the field, instead socializing with others. Henn 

concluded that these behaviors did “not exhibit good judgment or professionalism, which is critical in the Supervisor of 
- 881 -

Nebraska Court of Appeals Advance S

24 Nebraska Appellate Repor

CHEVALIER v. METROPOLITAN UTIL. DIST.

Cite as 24 Neb. App. 874

Field Engineering position.” Henn further noted in the letter 

that Chevalier’s attendance record is lacking, that she lacks 

the skills to be a “calm, even-keeled supervisor,” and that she 

tended to overreact to negative feedback.

The jury found in favor of MUD on all causes of action, and 

the district court entered judgment accordingly. Chevalier filed 

a motion for new trial, which was overruled.

The record in this case is large. Accordingly, additional 

evidence will be discussed as necessary in the analysis section 

of the opinion.

ASSIGNMENTS OF ERROR

Chevalier assigns that the trial court erred in (1) overruling 

her motion for directed verdict on her FMLA retaliation claim; 

(2) allowing MUD to present expert testimony that Chevalier 

never had Lyme disease; (3) upholding the jury verdicts; (4) 

sustaining MUD’s objection to exhibit 133, her transcription 

of a tape-recorded conversation; and (5) overruling her motion 

for new trial.

STANDARD OF REVIEW

[1,2] A directed verdict is proper only when reasonable 

minds cannot differ and can draw but one conclusion from the 

evidence, that is, when an issue should be decided as a matter of law. Balames v. Ginn, 290 Neb. 682, 861 N.W.2d 684 

(2015). In reviewing that determination, we give the nonmoving party the benefit of every controverted fact and all reasonable inferences from the evidence. Id.

[3-5] In proceedings where the Nebraska Evidence Rules 

apply, the admissibility of evidence is controlled by such 

rules; judicial discretion is involved only when the rules 

make discretion a factor in determining admissibility. Pierce 

v. Landmark Mgmt. Group, 293 Neb. 890, 880 N.W.2d 885 

(2016). When the Nebraska Evidence Rules commit the evidentiary question at issue to the discretion of the trial court, 

an appellate court reviews the admissibility of evidence for 
- 882 -

Nebraska Court of Appeals Advance S

24 Nebraska Appellate Repor

CHEVALIER v. METROPOLITAN UTIL. DIST.

Cite as 24 Neb. App. 874

an abuse of discretion. Id. In a civil case, the admission or 

exclusion of evidence is not reversible error unless it unfairly 

prejudiced a substantial right of the complaining party. Id.

[6,7] A jury verdict will not be set aside unless clearly 

wrong, and it is sufficient if any competent evidence is presented to the jury upon which it could find for the successful 

party. Id. In determining the sufficiency of the evidence to 

sustain a verdict in a civil case, an appellate court considers the evidence most favorably to the successful party and 

resolves evidentiary conflicts in favor of such party, who is 

entitled to every reasonable inference deducible from the evidence. Id.

[8,9] We review a trial court’s ruling on a motion for a new 

trial for abuse of discretion. Balames v. Ginn, supra. A judicial abuse of discretion exists when the reasons or rulings of a 

trial judge are clearly untenable, unfairly depriving a litigant 

of a substantial right and denying just results in matters submitted for disposition. Id.

ANALYSIS

Motion for Directed Verdict.

Chevalier first assigns that the trial court erred in overruling her motion for directed verdict on her FMLA retaliation 

claim. Chevalier’s fourth cause of action alleged that MUD 

retaliated against her for using leave afforded to her under 

the FMLA. She argues that a directed verdict on that cause of 

action should have been granted in her favor because the evidence was undisputed that Henn improperly considered leave 

Chevalier took pursuant to the FMLA, as a result of her Lyme 

disease, in denying her the promotion.

[10-12] “The [FMLA] provides eligible employees up to 

twelve work-weeks of unpaid leave in any twelve-month 

period and prohibits employers from discriminating against 

employees for exercising their rights under the [FMLA]. 29 

U.S.C. §§ 2612, 2615(a)(2) (2000).” Smith v. Allen Health 

Systems, Inc., 302 F.3d 827, 832 (8th Cir. 2002). Basing an 
- 883 -

Nebraska Court of Appeals Advance S

24 Nebraska Appellate Repor

CHEVALIER v. METROPOLITAN UTIL. DIST.

Cite as 24 Neb. App. 874

adverse employment action on an employee’s use of leave, or 

in other words, retaliation for the exercise of FMLA rights, 

is therefore actionable. Id. To establish a prima facie case of 

retaliation, an employee must show that he or she exercised 

rights afforded by the FMLA, that an adverse employment 

action was suffered, and that there was a causal connection 

between the exercise of rights and the adverse employment 

action. See id.

Chevalier claims that there is no dispute that she satisfied 

all the elements of a FMLA retaliation claim. She contends 

there is no question that she qualified for leave intermittently 

under the FMLA starting in 2007 and going forward based on 

her Lyme disease and that she suffered an adverse employment 

action in that she did not get the supervisor of field engineering 

promotion. Chevalier focuses her argument on the third requirement of a prima facie case—a causal connection between her 

exercise of rights and the adverse employment action. She 

contends that there was a causal connection because Henn 

improperly considered her leave under the FMLA in denying 

her the promotion.

Before addressing Chevalier’s causal connection argument, 

we first note that the evidence does not demonstrate that she 

qualified for leave under the FMLA based on her Lyme disease, 

as she contends. The evidence does not show that Chevalier’s 

Lyme disease was a serious health condition eligible for leave 

under the FMLA. MUD had no record that she ever applied 

for leave under the FMLA based on a chronic medical condition, such as Lyme disease. Bonnie Savine, MUD’s director 

of human resources, testified that an employee would have 

to apply for such leave and have it approved, and then when 

work days were missed, the employee would have to identify 

the absence as leave under the FMLA for it to be considered as 

such. Human resources records of Chevalier’s absences gave 

no indication any absences were related to Lyme disease or a 

FMLA-approved absence. Rather, each absence was coded as 

only a sick day.
- 884 -

Nebraska Court of Appeals Advance S

24 Nebraska Appellate Repor

CHEVALIER v. METROPOLITAN UTIL. DIST.

Cite as 24 Neb. App. 874

In regard to Chevalier’s argument that Henn considered her 

FMLA absences in denying her the promotion, the evidence 

shows that Henn did consider her past attendance history. Henn 

testified that she considers each employee’s attendance record 

when making a promotion decision. She testified that she 

reviewed Chevalier’s absence history as provided by human 

resources. She also relied on past appraisals, which stated 

Chevalier’s number of absences and the total number of work 

hours missed due to illness. Henn’s reasons for not promoting 

Chevalier, as set forth in the selection letter, included the ongoing concerns with her attendance.

Although Henn considered Chevalier’s past attendance 

record, she testified that she did not know what hours or days 

of sick leave, if any, were related to Chevalier’s Lyme disease 

or were FMLA-approved absences. She only knew how many 

times and how many hours Chevalier missed work as a result 

of being sick. For instance, her 2007 performance appraisal, 

which Henn reviewed, stated that she had missed work due 

to illness 139.5 hours over nine occasions in the past year. As 

previously stated, the absence history from human resources 

gave no indication any absences were related to Lyme disease 

or were FMLA-approved absences; each absence was coded 

as only a sick day. Therefore, the evidence does not show that 

Henn retaliated against Chevalier by relying on her FMLA 

absences in denying her the promotion.

A directed verdict is proper only when reasonable minds 

cannot differ and can draw but one conclusion from the evidence, that is, when an issue should be decided as a matter of 

law. In reviewing that determination, we give the nonmoving 

party the benefit of every controverted fact and all reasonable 

inferences from the evidence. Balames v. Ginn, 290 Neb. 682, 

861 N.W.2d 684 (2015).

The evidence did not indisputably show that any absences 

taken by Chevalier were taken pursuant to the FMLA, nor did 

it indisputably show that Henn considered the FMLA-approved 

absences in denying her the promotion. The evidence showed 
- 885 -

Nebraska Court of Appeals Advance S

24 Nebraska Appellate Repor

CHEVALIER v. METROPOLITAN UTIL. DIST.

Cite as 24 Neb. App. 874

that Henn considered attendance when making the promotion decision, but that Henn did not know or have any reason 

to believe that any of Chevalier’s absences were FMLAapproved absences based on a disability. Accordingly, the trial 

court did not err in overruling Chevalier’s motion for directed 

verdict on her FMLA retaliation claim.

MUD’s Expert Testimony as to 

Chevalier’s Lyme Disease.

Chevalier next assigns that the trial court erred in allowing MUD to present expert testimony that Chevalier did not 

have Lyme disease. She argues that MUD conceded she was 

on qualifying leave under the FMLA and that MUD cannot now challenge whether she had a disability necessitating 

FMLA leave.

Chevalier challenges the admission into evidence of a videotaped deposition of Dr. Cezarina Mindru, who specializes in 

internal medicine and infectious disease, as well as a transcript 

of his deposition. Chevalier did not object to either exhibit, 

and the videotaped deposition was played for the jury. In the 

deposition, Mindru stated that it was his opinion within a reasonable degree of medical certainty that based on a February 

2007 blood test, Chevalier did not have Lyme disease. He 

also testified that a December 2006 blood test indicated that 

Chevalier did not have Lyme disease. Mindru further stated 

that it was his opinion within a reasonable degree of medical certainty that Chevalier was not disabled as a result of the 

symptoms she complained of.

After the videotaped deposition was played, other exhibits 

that were referenced during the deposition were offered into 

evidence, including Mindru’s curriculum vitae, the February 

2007 and December 2006 laboratory test results, and Mindru’s 

medical report. Chevalier only objected to the medical report, 

and the objection was sustained.

Chevalier argues that MUD was estopped from presenting 

expert evidence that Chevalier did not have Lyme disease 
- 886 -

Nebraska Court of Appeals Advance S

24 Nebraska Appellate Repor

CHEVALIER v. METROPOLITAN UTIL. DIST.

Cite as 24 Neb. App. 874

because MUD conceded she was on qualifying leave under 

the FMLA. Chevalier cites to testimony from Savine in support of her allegation. However, the testimony that Chevalier 

refers to has nothing to do with Chevalier’s Lyme disease. 

The testimony relied on by Chevalier refers to supplemental 

sick leave Chevalier took in 2012 and 2013 as a result of 

anxiety and depression. Savine stated that Chevalier took 

leave from work for 6 months in 2012 and 2013 pursuant to 

MUD’s supplemental sick leave program. She testified that 

the supplemental sick leave ran concurrent with leave pursuant to the FMLA, at least for up to 12 workweeks. Thus, 

the evidence Chevalier relies on only shows that Chevalier 

took qualifying leave under the FMLA in 2012 and 2013 as a 

result of anxiety and depression. It does not show that MUD 

conceded she was on leave under the FMLA as a result of her 

Lyme disease.

Chevalier claims she was diagnosed with Lyme disease in 

2006, and there is some evidence of this. However, as previously discussed, there is no evidence that she took any leave 

under the FMLA based on a diagnosis of Lyme disease or that 

she made any requests for leave under the FMLA between 

2006 and 2009. Her sick days during those years are coded 

as only sick days, and there was no indication that those 

days were related to Lyme disease or were FMLA-approved 

absences. Savine testified that she was not aware that any of 

Chevalier’s absences prior to January 2012 were approved 

pursuant to the FMLA. MUD did not concede that Chevalier 

took approved leave under the FMLA prior to 2012 and did not 

concede that she took any leave under the FMLA as a result of 

Lyme disease.

We also note that Chevalier did not file a motion in limine 

in regard to Mindru’s testimony, nor was there a Daubert/

Schafersman challenge to exclude Mindru’s testimony. See 

Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 

113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), and Schafersman 

v. Agland Coop, 262 Neb. 215, 631 N.W.2d 862 (2001). In 
- 887 -

Nebraska Court of Appeals Advance S

24 Nebraska Appellate Repor

CHEVALIER v. METROPOLITAN UTIL. DIST.

Cite as 24 Neb. App. 874

addition, Chevalier did not object to the admission of Mindru’s 

videotaped deposition at trial.

Further, Chevalier alleged she was discriminated against in 

the promotion decision because of her disability, Lyme disease. Thus, Chevalier made her disability from Lyme disease 

an issue at trial. MUD was entitled to present evidence in 

regard to whether Chevalier had Lyme disease, and if she did, 

whether she was disabled as a result. Chevalier opened the 

door on the issue, making Mindru’s testimony relevant. This 

assignment of error is without merit.

Jury Verdicts.

Chevalier assigns that the trial court erred in upholding 

the jury verdict on her gender discrimination claim because 

no reasonable jury could find that MUD’s stated reasons 

for hiring Stroebele over her were not pretexts for unlawful 

discrimination.

Chevalier sought to prove that she was not promoted 

because of gender discrimination and that MUD’s stated reasons for promoting a male colleague, Stroebele, instead of her 

were pretextual. Chevalier asserted that she and the two other 

female applicants, Sherri Meisinger and Kristina Hartley, 

were better qualified than Stroebele. MUD maintained that it 

hired Stroebele because he was the best qualified person for 

the job.

[13] The Nebraska Supreme Court has adopted a three-part 

test, commonly referred to as the “McDonnell Douglas test,” for 

purposes of construing the Nebraska Fair Employment Practice 

Act in disparate treatment cases. See Father Flanagan’s Boys’ 

Home v. Agnew, 256 Neb. 394, 590 N.W.2d 688 (1999). 

See, also, McDonnell Douglas Corp. v. Green, 411 U.S. 792, 

93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). The three-part 

McDonnell Douglas test has been set forth by our Supreme 

Court previously:

“First, the plaintiff has the burden of proving by a 

preponderance of the evidence a prima facie case of 
- 888 -

Nebraska Court of Appeals Advance S

24 Nebraska Appellate Repor

CHEVALIER v. METROPOLITAN UTIL. DIST.

Cite as 24 Neb. App. 874

discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant ‘to articulate some legitimate, nondiscriminatory 

reason for the employee’s rejection.’ . . . Third, should 

the defendant carry the burden, the plaintiff must then 

have an opportunity to prove by a preponderance of 

the evidence that the legitimate reasons offered by the 

defendant were not its true reasons, but were a pretext 

for discrimination.”

Harris v. Misty Lounge, Inc., 220 Neb. 678, 682, 371 N.W.2d 

688, 691 (1985) (citations omitted) (quoting Zalkins Peerless 

Co. v. Nebraska Equal. Opp. Comm., 217 Neb. 289, 348 

N.W.2d 846 (1984).

[14,15] A prima facie case of gender discrimination requires 

the plaintiff to prove that he or she (1) is a member of a protected class, (2) was qualified to perform the job, (3) suffered 

an adverse employment action, and (4) was treated differently 

from similarly situated persons of the opposite sex. Helvering 

v. Union Pacific RR. Co., 13 Neb. App. 818, 703 N.W.2d 134 

(2005). The plaintiff bears the burden to first prove to the fact 

finder by a preponderance of the evidence a prima facie case 

of discrimination. Id.

[16,17] Once the plaintiff has established a prima facie 

case of discrimination, the burden of production shifts to the 

employer to rebut the prima facie case by producing “‘clear 

and reasonably specific’” admissible evidence that would support a finding that unlawful discrimination was not the cause 

of the employment action. Hartley v. Metropolitan Util. Dist., 

294 Neb. 870, 893, 885 N.W.2d 675, 694 (2016). When the 

employer articulates a legitimate, nondiscriminatory reason for 

the decision, raising a genuine issue of fact as to whether it 

discriminated against the employee, the employer’s burden of 

production created by the employee’s prima facie case is satisfied and drops from the case. Id.

[18] After the employer has presented a sufficient, neutral 

explanation for its decision, the question is whether there is 
- 889 -

Nebraska Court of Appeals Advance S

24 Nebraska Appellate Repor

CHEVALIER v. METROPOLITAN UTIL. DIST.

Cite as 24 Neb. App. 874

sufficient evidence from which a jury could conclude that the 

employer made its decision based on the employee’s protected 

characteristic, despite the employer’s proffered explanation. 

Hartley v. Metropolitan Util. Dist., supra. At this stage, the 

employee “‘must be afforded the “opportunity to prove by 

a preponderance of the evidence that the legitimate reasons 

offered by the defendant were not its true reasons, but were a 

pretext for discrimination.”’” Id. at 894, 885 N.W.2d at 694, 

quoting Reeves v. Sanderson Plumbing Products, Inc., 530 

U.S. 133, 120 S. Ct. 2097, 147 L. Ed. 2d 105 (2000). “‘That 

is, the plaintiff may attempt to establish that he was the victim 

of intentional discrimination “by showing that the employer’s 

proffered explanation is unworthy of credence.”’” Id. at 894, 

885 N.W.2d at 694.

The supervisor of field engineering position was posted 

on January 20, 2010. The supervisor was responsible for 

planning, directing, and supervising the work of 17 field 

engineering and utility locator personnel of the plant engineering division. There were several minimum requirements 

for the position, including “two years of college in an area 

related to Engineering. Four-year Engineering, or Engineering 

Technology degree preferred”; a “[m]inimum five (5) years’ 

experience in Engineering or gas/water operations with progressive responsibilities”; and “[m]ust have utility locating 

experience in the last five (5) years, preferable in an ongoing capacity. Utility Locator operator qualification preferred.” 

Utility locating is the process of locating existing gas or water 

utilities in the field.

Chevalier contends that MUD’s claim that Stroebele was 

the better qualified candidate is pretexual because he did not 

meet all of the qualifications for the position, specifically the 

education requirement. As previously noted, the supervisor of 

field engineering posting required that eligible candidates have 

a minimum of 2 years of college in an area related to engineering. Chevalier contends that most of Stroebele’s classes were 

not engineering related and that Stroebele did not complete his 
- 890 -

Nebraska Court of Appeals Advance S

24 Nebraska Appellate Repor

CHEVALIER v. METROPOLITAN UTIL. DIST.

Cite as 24 Neb. App. 874

2-year degree in general studies until May 2011, after he had 

been in the position for a year.

Chevalier contends that she and the other two female candidates, Meisinger and Hartley, had the requisite education 

and that their education was engineering focused. Chevalier 

attended a vocational technical school for 2 years, where she 

studied drafting. She got a certificate upon completion of the 

program, but not an associate’s degree. Hartley had a bachelor’s degree in interior design, and Meisinger had a bachelor’s 

degree in design engineering technology and an associate’s 

degree in construction engineering technology.

Although Chevalier contends that Stroebele did not meet 

the education requirement, Savine testified that he did. She 

explained that human resources looks primarily at how many 

years of schooling a candidate has. She testified that in her 

opinion, 2 years of college is the equivalent of 48 hours of 

course credit. In January 2010, when the job was posted, 

Stroebele had a total of 70.5 credit hours from college courses. 

She further testified that MUD interprets the language “in an 

area related to Engineering” very broadly and that there is no 

standard for determining what courses qualify as being engineering related or any specifically prescribed courses. Savine 

also testified that the job Stroebele held before he was promoted to supervisor of field engineering had the same education requirement—2 years of college in an area related to engineering—and that he met the requirement at the time he took 

that position in 2005.

Chevalier also argues that Stroebele lacked supervisory and 

other experience compared to herself and the other female 

candidates. The job required that the successful candidate have 

a “minimum five (5) years’ experience in Engineering or gas/

water operations with progressive responsibilities.” Chevalier 

contends that she and the two other female candidates had 

more relevant experience and more seniority than Stroebele.

Stroebele began working for MUD in 1998 as a pipelayer 

and later as a machine operator, both in the construction 
- 891 -

Nebraska Court of Appeals Advance S

24 Nebraska Appellate Repor

CHEVALIER v. METROPOLITAN UTIL. DIST.

Cite as 24 Neb. App. 874

area of MUD. He moved to the engineering department in 

September 2000, where he worked as a field engineer II. In 

2005, he was hired by Henn as a senior engineering technician. He remained in this position, with Henn as his supervisor, until his promotion to supervisor of field engineering in 

2010. Chevalier notes that Stroebele did not have any supervisory responsibilities in any of his prior positions. However, 

there was no requirement of any supervisory experience. She 

also points out that Stroebele had less seniority than the three 

female candidates, but seniority was not listed as a factor considered in the promotion decision.

Chevalier had been employed by MUD since 1993. She 

started working as a drafter, and in 1995, she became a field 

locator. She advanced to the position of field engineer II in 

2005 and field engineer I in 2009. Chevalier contends that all 

of her experience has been in engineering-related areas—drafting, locating, and field engineering. She had been a locator 

for 10 years before being promoted to a field engineer. She 

testified that locators and field engineers are both areas that 

the supervisor of field engineering would supervise. Her past 

experience also included helping train field services employees 

to use a computer program to look up services when out in the 

field. She also wrote the test taken by locators to demonstrate 

their ability to locate.

Chevalier contends that the other two women passed over 

for the promotion also had superior work experiences compared to Stroebele. Hartley had been working for MUD for 

almost 31 years. She started out working in customer service 

and then transferred to the drafting department where she 

worked her way up from a drafting technician IV to a senior 

drafting technician. She then became a senior engineering technician, a position she held for 16 years.

Meisinger had worked full time for MUD since 1990. She 

started out in the drafting department as a draftsperson and 

later moved to field engineering. After field engineering, she 

took a position as a design engineering technician and later 
- 892 -

Nebraska Court of Appeals Advance S

24 Nebraska Appellate Repor

CHEVALIER v. METROPOLITAN UTIL. DIST.

Cite as 24 Neb. App. 874

became a supervisor of drafting. She was in the engineering 

department for 20 years before she took the purchasing department position she had at the time of trial.

Chevalier further argues that performance appraisals completed in 2010 were used as a tool to justify Henn’s decision 

to promote a less-qualified man to the position. Chevalier had 

not been given an appraisal for 3 years prior to the appraisal 

she received in March 2010, during the time the promotion 

decision was being made. Similarly, Hartley had not been 

given an appraisal for 7 years before being evaluated in 

February 2010. Chevalier suggests that the appraisals were 

done for the purpose of portraying the female candidates in a 

negative light and could be used to justify its decision to promote Stroebele. Chevalier specifically directs our attention to 

the language in her 2010 appraisal, which states: “[Chevalier 

n]eeds to show more professionalism, not disturb others in 

. . . Engineering. [Chevalier] needs to show improvement 

on balancing field and office time. While [Chevalier] has 

many skills, she needs to greatly improve prior to her being 

ready for more responsibility.” The evidence shows, however, that these concerns or similar concerns were not new 

and were reflected in previous appraisals. The comments in 

her 2010 appraisal did not reflect anything new in regard to 

Chevalier’s work habits.

Hartley’s appraisal indicated that she did not show the 

potential for additional responsibilities, specifically noting 

that she needed to work on “her listening and communication skills.”

Although the timing of the 2010 appraisals may seem suspicious, there was evidence that they were done as a result of 

MUD’s requiring that all employees have a current appraisal. 

In an internal memorandum dated April 20, 2009, human 

resources encouraged all supervisors to get their employee 

files up to date, noting there had been several job selection grievances that were difficult to evaluate without written documentation of that employee’s performance. Savine 
- 893 -

Nebraska Court of Appeals Advance S

24 Nebraska Appellate Repor

CHEVALIER v. METROPOLITAN UTIL. DIST.

Cite as 24 Neb. App. 874

testified that in 2009, annual appraisals were not being done 

by all supervisors. An audit of appraisals was conducted in 

2009 which showed that in the plant engineering division, 

where Chevalier and Hartley both worked, about half of the 

28 employees had not had an appraisal since 2007. Several 

male and female employees had not had appraisals since 2003, 

like Hartley. MUD’s board of directors discussed the matter in 

June 2009, and in November 2009, MUD’s president vowed to 

the board that the appraisals would be caught up and done in 

a timely manner going forward. In April 2010, the president 

indicated to the board that all supervisors were up to date on 

their performance appraisals.

Also, the 2010 appraisals of Chevalier and Hartley were not 

the only information Henn relied on in determining that neither 

of them was the strongest candidate for the supervisor of field 

engineering position. Henn also relied on each candidate’s personnel file; a spreadsheet which had each candidate’s date of 

hiring, positions held, and absence history; past performance 

appraisals; and interviews she conducted with each candidate. 

Further, in regard to Hartley, Henn was her supervisor so she 

had knowledge of her day-to-day work habits.

Chevalier also argues that Henn changed the qualification 

requirements for the supervisor of field engineering position 

for the purpose of disqualifying Meisinger from consideration. 

Before the position was posted, Henn added the requirement 

that the applicant must have recent locating experience, within 

the past 5 years. Before Henn’s changes, locating experience 

was not required for the position. Meisinger had previous 

locating experience, but it was more than 5 years earlier. The 

change in the job requirements also disqualified one of the 

male candidates.

Savine testified that a supervisor is usually the one who 

recommends that the requirements for a job be changed, but 

others have to agree to it and give their approval. Specifically, 

she testified that Henn’s changes to the requirement for the 

supervisor of field engineering position would have been 
- 894 -

Nebraska Court of Appeals Advance S

24 Nebraska Appellate Repor

CHEVALIER v. METROPOLITAN UTIL. DIST.

Cite as 24 Neb. App. 874

approved by the vice president of engineering and construction, as well as by human resources.

Henn testified that she initiated the change in the job requirements to require recent locating experience, but the changes 

were approved by her supervisor and by human resources. She 

testified that she made the change because Pattavina, who was 

retiring from the supervisor of field engineering position, did 

not know how to utility locate. She testified that this caused 

issues in the past and that she believed it would be more efficient if the supervisor could locate. She also testified that when 

she redrafted the job requirements, she did not know who was 

going to apply for the position.

The evidence is clear that Chevalier made a prima facie case 

of discrimination (she was a member of a protected group; 

was qualified and applied for a promotion; was rejected; 

and a similarly situated employee, not part of the protected 

group, was promoted instead). MUD produced evidence that 

could support a finding that unlawful discrimination was 

not the cause of the promotion decision and that it promoted 

Stroebele over Chevalier because he was the better qualified 

candidate. The jury apparently found that Chevalier did not 

prove that MUD’s proffered reason was a pretext for unlawful 

discrimination. There was sufficient evidence to support the 

jury verdicts, and we find no merit to Chevalier’s assignment 

of error.

Sustaining of Objection 

to Exhibit 133.

Chevalier next argues that the trial court erred in sustaining MUD’s objection to exhibit 133, her own transcription 

of a tape-recorded conversation between herself and Patrick 

Tripp, a MUD attorney. In April 2011, about 10 months after 

Chevalier had filed her discrimination claim, she was called 

into Tripp’s office and questioned about an obscene drawing 

that included a picture of a construction foreman. The drawing 

had been copied and sent to various MUD employees through 
- 895 -

Nebraska Court of Appeals Advance S

24 Nebraska Appellate Repor

CHEVALIER v. METROPOLITAN UTIL. DIST.

Cite as 24 Neb. App. 874

interoffice mail. After MUD conducted an investigation, it 

concluded that Chevalier had distributed the drawing, and she 

was suspended from work without pay for 3 days.

Without informing Tripp, Chevalier recorded their conversation in April 2011 when she was called into his office. She then 

transcribed the meeting because the recording was “kind of 

muffled.” She offered the transcription into evidence, exhibit 

133, contending that it was evidence of retaliation against her 

for filing a discrimination claim. MUD objected based on foundation and not the best evidence, and the court sustained the 

best evidence objection.

When Tripp testified, he stated that he had listened to 

Chevalier’s recording of their meeting and that it was “pretty 

much incomprehensible.” During a break at trial, he listened to 

the tape-recorded conversation again and read Chevalier’s transcription. He testified that he could not tell if the transcript was 

accurate or not because the recording was “indecipherable.” 

Chevalier offered exhibit 133 into evidence a second time, 

and MUD objected based on foundation. The court sustained 

MUD’s objection.

[19,20] Chevalier contends that exhibit 133 should have 

been admitted into evidence because the original recorded conversation was unavailable due to the fact that it was “kind of 

muffled” and would have been hard for the jury to understand. 

However, as the trial court initially ruled, exhibit 133 was 

not the best evidence of the conversation between Chevalier 

and Tripp. The best evidence rule, Neb. Evid. R. 1002, Neb. 

Rev. Stat. § 27-1002 (Reissue 2016), is a rule of preference 

for the production of the original of a writing, recording, or 

photograph when the contents of the item are sought to be 

proved. See State v. Kula, 260 Neb. 183, 616 N.W.2d 313 

(2000), overruled on other grounds, State v. Dubray, 289 Neb. 

208, 854 N.W.2d 584 (2014). The purpose of rule 1002 is the 

prevention of fraud, inaccuracy, mistake, or mistransmission 

of critical facts contained in a writing, recording, or photograph when its contents are an issue in a proceeding. By its 
- 896 -

Nebraska Court of Appeals Advance S

24 Nebraska Appellate Repor

CHEVALIER v. METROPOLITAN UTIL. DIST.

Cite as 24 Neb. App. 874

terms, rule 1002 applies to proof of the contents of a recording. See id.

Although exhibit 133 was excluded from evidence, Chevalier 

testified at length about the conversation with Tripp, as well as 

the outcome of the investigation. Tripp also testified about 

the conversation he had with Chevalier in April 2011 and 

the investigation into the obscene drawing. Accordingly, there 

was other evidence of the April 2011 conversation between 

Chevalier and Tripp.

In a civil case, the admission or exclusion of evidence is 

not reversible error unless it unfairly prejudiced a substantial 

right of the complaining party. Pierce v. Landmark Mgmt. 

Group, 293 Neb. 890, 880 N.W.2d 885 (2016). The exclusion 

of exhibit 133 did not unfairly prejudice a substantial right of 

Chevalier’s. Accordingly, the trial court did not abuse its discretion in sustaining MUD’s objection to exhibit 133.

Motion for New Trial.

Chevalier’s last assignment of error is that the trial court 

erred in overruling her motion for new trial. Chevalier raised 

the same issues in her motion for new trial that she raises in 

her other assignments of error before us and which are discussed above. Having found no merit to Chevalier’s first four 

assignments of error, we conclude that the trial court did not 

err in overruling her motion for new trial.

CONCLUSION

We conclude that the trial court did not err in overruling 

Chevalier’s motion for directed verdict on her FMLA retaliation claim; allowing MUD to present expert testimony that 

Chevalier never had Lyme disease; entering judgment on the 

jury verdicts; sustaining MUD’s objection to exhibit 133, her 

transcription of a tape-recorded conversation; and overruling 

her motion for new trial. Accordingly, the trial court’s judgment in favor of MUD is affirmed.

Affirme