- Associated Press - Friday, March 25, 2016

OMAHA, Neb. (AP) - A former eye clinic worker will still get a shot at convincing a jury that the clinic discriminated against her based on a perceived disability, but not that it fired her partly for a belief that she had a drug addiction, the Nebraska Supreme Court ruled Friday.

The high court’s ruling came on its reconsideration of Cindy Marshall’s appeal in her lawsuit against EyeCare Specialties of Lincoln. Marshall sued after the clinic fired her in 2012, saying the clinic perceived her as disabled after learning she once completed substance abuse treatment and because of medical conditions that make her hands tremble and causes red marks on her skin.

Marshall was required to cover the marks on her arms while at work, and clinic officials described the marks as open sores that they feared posed a danger to patients. She was also required to lay out her medications where other employees could observe them, her lawsuit said.

The clinic countered that Marshall was fired for poor job performance. A Lancaster County judge sided with the clinic in 2014 and dismissed Marshall’s lawsuit, saying she failed to prove discrimination.

But the state’s high court last year reversed the judge’s ruling, saying a jury should be allowed to decide whether the clinic discriminated against her.

The high court then agreed to a rehearing of the case. On Friday, it withdrew its July 2015 opinion and upheld the lower court’s finding that Marshall failed to present evidence that the clinic perceived her as having a drug addiction.

“Marshall urges us to assume that references (by the clinic) to her being confused, flustered, or unable to multitask were veiled references to her history of substance abuse,” Justice William Connolly wrote. “We decline her invitation because there is more than one reason why a person may be confused, flustered, or bad at multitasking and the record does not suggest an inference that the perceptions were based on Marshall’s past abuse of prescription drugs.”

Marshall’s lawyer, Joy Schiffermiller of Lincoln, said Marshall is looking forward to a jury trial, which she expects to be scheduled sometime yet this year.

An attorney for the clinic, Shawn Renner of Lincoln, did not immediately return a phone message Friday seeking comment.

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