- Associated Press - Friday, September 18, 2015

OMAHA, Neb. (AP) - A man who sued over what he says was his wrongful firing after his company refused to accommodate disabilities he suffered on the job should get a new trial, the Nebraska Supreme Court ruled Friday.

The high court said a district court in Lancaster County made errors during the trial in Lenard Arens’ civil case against the Lincoln concrete construction company NEBCO, where he worked for nearly 35 years before being fired in late 2010.

The errors included barring testimony from a vocational rehabilitation counselor who could establish that NEBCO knew of and had previously accommodated Arens for his mental impairments after a work-related head injury in 1996 and a severe knee injury on the job in 1986.

Before 2006, Arens said he never had a problem with the company accommodating his disabilities. He said that changed when his longtime boss retired and a new boss was hired in 2006.

Thereafter, Arens received several reprimands and was fired after his boss said he had damaged company trucks and property through reckless driving and had failed to report to employer-mandated counseling.

Arens argued that the damage was unavoidable, noting that in one case, he damaged a piece of sod next to the company’s drive when he turned sharply to avoid being hit by other speeding vehicles. In another incident, Arens complained that a company truck he was to drive had been overloaded. He was required to make the delivery anyway, and the truck was damaged when the load shifted in a roundabout.

Arens maintained that many other company drivers had caused similar damage without being punished, and Arens’ boss admitted as much under oath. Arens said the company’s complaints were pretext to discriminate against him.

Arens’ appeal argued, among other things, that the trial judge was wrong to exclude the rehabilitation counselor’s testimony, saying the counselor could have demonstrated for the jury that NEBCO had accommodated Arens’ impairments in the past and could have again in 2010.

NEBCO argued that because the counselor had not seen Arens since 1998, his testimony was not relevant. The high court disagreed.

“(The counselor’s) testimony was obviously relevant to establishing whether Arens had a disability and whether he had previously performed his job with reasonable accommodations,” Justice William Connolly wrote for the court. “Furthermore, under (state law), a covered employer’s failure to make reasonable accommodations for a qualified individual’s known physical or mental limitations is discrimination, unless the employer demonstrates that accommodating the individual’s limitations would impose an undue hardship on business operations.”

An attorney for Arens, Joy Shiffermiller of Lincoln, said she hopes the company is open to settling, noting the high court’s “fairly strong opinion” for Arens’ case. An attorney for NEBCO did not immediately return a message Friday seeking comment.

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