Lacey v. State

The court did not abuse its discretion in concluding that the
evidence was irrelevant. Edwards also argues, briefly, that the
court’s exclusion of this evidence violated his constitutional
right to present a complete defense. But this argument is also
without merit, as a criminal defendant has no constitutional
right to inquire into irrelevant matters.87
V. ConClusion
The evidence was sufficient to support the corpus delicti of
homicide and Edwards’ convictions. We find no error in the
district court’s refusal of Edwards’ proposed jury instruction,
denial of his motion for continuance, or rejection of his prof-
fered evidence. To the extent that Edwards also suggests that
the court committed cumulative error, his argument is without
merit. Therefore, the court’s judgment is affirmed.
A ffirmed.
87 see State v. Schenck, 222 neb. 523, 384 n.W.2d 642 (1986).
laCEy v. sTaTE 	87
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A ndreA LAcey, AppeLLee , v. StAte of nebrASkA,
Acting through the nebrASkA depArtment
of correctionAL ServiceS, AppeLLAnt.
768 n.W.2d 132
Filed July 10, 2009. 	no. s-08-626.
1. Directed Verdict: Evidence. a directed verdict is proper at the close of all the
evidence only when reasonable minds cannot differ and can draw but one con-
clusion from the evidence, that is, when an issue should be decided as a matter
of law.
2. Motions for New Trial: Appeal and Error. a motion for new trial is addressed
to the discretion of the trial court, whose decision will be upheld in the absence
of an abuse of that discretion.
3. Judgments: Verdicts. To sustain a motion for judgment notwithstanding the
verdict, the court resolves the controversy as a matter of law and may do so only
when the facts are such that reasonable minds can draw but one conclusion.
4. Employer and Employee: Discrimination. an employer cannot raise a defense
under Faragher v. Boca Raton, 524 u.s. 775, 118 s. Ct. 2275, 141 l. Ed. 2d 662
(1998), if a supervisor’s harassment results in the discharge, demotion, or unde-
sirable reassignment of the harassed employee.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:49 AM CST

5. Verdicts: Appeal and Error. a civil jury verdict will not be disturbed on appeal
unless clearly wrong.
6. Damages: Appeal and Error. The amount of damages to be awarded is a deter-
mination solely for the fact finder, and its action in this respect will not be dis-
turbed on appeal if it is supported by evidence and bears a reasonable relationship
to the elements of the damages proved.
appeal from the District Court for lancaster County: kAren
b. fLowerS, Judge. affirmed.
Jon Bruning, attorney General, and Ryan C. Gilbride for
appellant.
Kathleen M. neary, of Vincent M. Powers & associates, for
appellee.
heAvicAn, c.J., wright, connoLLy, gerrArd, StephAn, and
mccormAck , JJ.
wright, J.
naTuRE oF CasE
andrea lacey filed an employment discrimination claim
against the state of nebraska pursuant to the nebraska Fair
Employment Practice act and title Vii of the Civil Rights act
of 1964. lacey alleged sexual harassment, retaliatory discharge,
and retaliatory failure to hire. a jury awarded lacey $60,000
in damages on her sexual harassment claim but found in favor
of the state on the retaliation claims. The state appeals, and
we affirm.
sCoPE oF REViEW
[1] a directed verdict is proper at the close of all the evi-
dence 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. Roth v. Wiese, 271 neb.
750, 716 n.W.2d 419 (2006).
[2] a motion for new trial is addressed to the discretion of
the trial court, whose decision will be upheld in the absence of
an abuse of that discretion. Poppe v. Siefker, 274 neb. 1, 735
n.W.2d 784 (2007).
[3] To sustain a motion for judgment notwithstanding the
verdict, the court resolves the controversy as a matter of law
88 	278 nEBRasKa REPoRTs

and may do so only when the facts are such that reasonable
minds can draw but one conclusion. Frank v. Lockwood, 275
neb. 735, 749 n.W.2d 443 (2008).
FaCTs
lacey 	began 	her 	employment 	with 	the 	Department 	of
Correctional services (DCs) as a temporary employee on
December 20, 2003. as a warehouse technician, she performed
office work, ordered supplies, and “pulled” orders for all of
the correctional facilities in nebraska. Her employment was
to end on June 11, 2005. Jeff Ehlers, lacey’s first supervisor,
stated that she performed her job very well. When Ehlers was
promoted to acting warehouse manager, Jeff Drager became
lacey’s supervisor.
Drager testified that he tried to create a fun atmosphere at
the warehouse by promoting “bagging” on fellow employees,
or giving each other a hard time in a joking manner. This
joking consisted of sexual comments and questions directed
toward lacey that started within 2 weeks of the beginning of
her employment. Examples of Drager’s behavior include ask-
ing lacey how often she and her boyfriend had sex, asking
her questions about oral sex with her boyfriend, asking lacey
whether she had sex in the parking lot, and asking whether
she had sex when she got home. Drager often commented to
lacey that she looked tired, asked her whether she was out
having sex all night and whether her boyfriend wore her out
the night before, and commented that she probably had sex all
of the time because she was at a time in her life when women
want to have sex frequently. He talked about the size of male
genitalia and repeatedly asked lacey whether size mattered
to her.
The vulgarity persisted and ranged in frequency from two to
three times per week to every day. By June 2004, Drager made
comments to lacey almost daily. Ron looking Elk, lacey’s
coworker, overheard the sexual comments Drager made to
lacey three to four times per week. looking Elk told Drager
that he was “crossing the line,” but Drager laughed off the
warning. looking Elk also testified that Ehlers heard some of
Drager’s comments to lacey, but that Ehlers said he did not
laCEy v. sTaTE 	89
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want to hear the conversation and that Ehlers would leave the
room. Drager usually made comments to lacey when other
people were not around.
Drager also subjected lacey to uninvited touching. He would
lean his chest on her back while she was sitting down and
place his face next to hers. on one occasion, he ran his fingers
through her hair. lacey testified that Drager constantly stared
at her breasts and told her the uniforms she and other employ-
ees wore did not fit her the way they fit the men. He threw
candy and shot rubberbands at her chest area, trying to get the
objects to go down the front of her blouse. Drager followed
lacey around so often that other employees teased her that he
was her shadow. lacey testified that he treated her differently
than he treated the male employees.
on one occasion, lacey observed Drager sitting on stairs
outside the room where she was working. When she asked him
what he was doing, he said he was “just watching” her. lacey
told Ehlers about the incident, but he did not follow up on the
complaint. in response to Drager’s harassment, lacey asked
him to stop and told him to leave her alone.
on June 27, 2004, lacey told Ehlers that she was fed up
with Drager’s behavior and was going to quit. Ehlers told her
not to quit, and he instructed her to make a list of the instances
of harassment. The next day, lacey and Ehlers met with Jan
lehmkuhl, the DCs materiel administrator, at the central DCs
office. she informed lacey that DCs had zero tolerance for
sexual harassment and asked lacey to go back to the ware-
house. lacey agreed to do so, under the impression that the
matter would be resolved. she returned to work and continued
to work with Drager 40 hours per week. after the meeting,
no one contacted lacey to determine whether the situation
had improved.
DCs did not investigate Drager’s actions until the end of
July 2004. at that time, the investigator concluded that Drager
violated the sexual harassment policies of the state. Ehlers
ordered Drager and lacey to stay away from each other and
instructed lacey to report to Mark McCoy instead of Drager.
Drager had stopped making inappropriate comments to lacey
after she filed the complaint.
90 	278 nEBRasKa REPoRTs

Ehlers was away from the warehouse between august 16 and
19, 2004. During that time, McCoy observed Drager following
lacey around. on august 18, McCoy telephoned Ehlers and
told him that Drager was bothering lacey. Drager had called
lacey into his office and asked her to sign a paper stating that
he was of good character. lacey refused, and Drager told her
that she “pissed him off” and that he was going to “[exple-
tive] [her] up.” looking Elk overheard Drager tell lacey that
“if this got back to his wife, he was gonna [expletive] her up.”
McCoy and looking Elk observed lacey crying after Drager
confronted her.
a disciplinary hearing was held on august 20, 2004, regard-
ing lacey’s initial complaint against Drager. Drager did not
mention the august 18 incident and stated there had not
been any problems since the beginning of the investigation.
Following the hearing, Drager was transferred from the ware-
house to a position at the lincoln Correctional Center. on
september 2, lehmkuhl issued Drager a written order directing
him to stay away from lacey.
on December 22, 2004, an inmate assigned to work in the
DCs warehouse was found to be in possession of tobacco,
which is contraband. The inmate claimed that lacey had sold
him the tobacco. an officer investigated the allegations. There
was no evidence corroborating the inmate’s claims, but the
officer concluded that lacey was guilty because “she was
calm about the whole situation and didn’t seem to think that
it was that big a deal.” lacey’s employment was terminated in
December 2004 as a result of the investigation. lehmkuhl rec-
ommended that lacey not be eligible for rehire in the future.
lacey applied for a full-time job as a warehouse technician
with DCs in June 2005, and she was not hired.
lacey filed a complaint on June 7, 2006, alleging violations
of the nebraska Fair Employment Practice act and title Vii of
the Civil Rights act of 1964. she alleged sexual harassment,
retaliatory discharge, and retaliatory failure to hire. after the
close of the evidence, the district court denied both parties’
motions for directed verdict, and the issues were submitted
to the jury. The jury found for the state on both retaliation
claims and found for lacey on the sexual harassment claim.
laCEy v. sTaTE 	91
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it awarded her $0 for lost wages and benefits and $60,000 for
other compensatory damages. The court overruled the state’s
motions for new trial and for judgment notwithstanding the
verdict. The state appeals.
assiGnMEnTs oF ERRoR
The state claims that the district court erred in (1) overrul-
ing the state’s motion for directed verdict and (2) overruling
its motions for new trial and for judgment notwithstanding
the verdict.
analysis
motion for directed verdict
The state claims that the district court erred in overruling its
motion for directed verdict, because it was entitled to what it
refers to as a “Faragher defense” to lacey’s sexual harassment
claims. Brief for appellant at 9. We conclude that the Faragher
defense does not apply and that the district court properly over-
ruled the state’s motion for directed verdict.
The Faragher defense is based on Faragher v. Boca Raton,
524 u.s. 775, 118 s. Ct. 2275, 141 l. Ed. 2d 662 (1998). in
Faragher, the plaintiff was a former lifeguard who worked
for the marine safety section of the parks and recreation
department of the city of Boca Raton, Florida. she brought
a lawsuit under title Vii of the Civil Rights act of 1964 and
alleged that two of her supervisors created a sexually hostile
atmosphere by subjecting her and the other female lifeguards
to uninvited and offensive touching and lewd remarks. There
was evidence that other supervisors were aware of the inap-
propriate behavior and did nothing to stop the harassment
and that the city failed to provide the marine safety section
employees with copies of its sexual harassment policy. The
plaintiff prevailed in district court, but the 11th Circuit Court
of appeals reversed.
[4] The u.s. supreme Court granted certiorari and held
that “an employer is vicariously liable for actionable dis-
crimination caused by a supervisor, but subject to an affirma-
tive defense looking to the reasonableness of the employer’s
conduct as well as that of a plaintiff victim.” Faragher, 524
92 	278 nEBRasKa REPoRTs

u.s. at 780. Therefore, an employer can avoid liability when
a supervisor abuses his supervisory authority to engage in
sexual harassment if the employer shows that (1) the employer
exercised reasonable care to prevent and correct promptly any
sexually harassing behavior and (2) the plaintiff employee
unreasonably failed to take advantage of any preventative
or corrective opportunities provided by the employer or to
avoid harm otherwise. Faragher, supra. The employer must
prove both prongs of the defense. an employer cannot raise
a Faragher defense if the supervisor’s harassment results in
the discharge, demotion, or undesirable reassignment of the
harassed employee. Id.
The u.s. Court of appeals for the Eighth Circuit recently
considered the Faragher defense in Weger v. City of Ladue, 500
F.3d 710 (8th Cir. 2007). in Weger, a police captain commented
on an officer’s breast reduction surgery and subjected the offi-
cer to unwanted touching. The court found that the employer,
a police department, acted reasonably to prevent and promptly
correct sexually harassing behavior when it permanently reas-
signed the offending captain and the harassment stopped the
day it was reported. The police department’s actions were suf-
ficient to satisfy the first prong of the Faragher defense. With
regard to the second prong, the plaintiff knew that employees
were to immediately report inappropriate behavior pursuant to
the police department’s antiharassment policy, yet she waited
more than a year before reporting the harassment. This delay
was unreasonable, and the city satisfied the second prong of
the defense.
assuming, but not deciding, that the state could raise such
a defense in this case, we examine the record to determine if
the state met both prongs of the defense. a directed verdict is
proper at the close of all the evidence 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. Roth v. Wiese, 271 neb. 750, 716 n.W.2d 419 (2006).
The district court did not err in denying the directed verdict
unless the only conclusion reasonable minds could reach from
the evidence was (1) that the state exercised reasonable care
to prevent and correct sexual harassment and (2) that lacey
laCEy v. sTaTE 	93
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unreasonably failed to take preventative or corrective opportu-
nities provided by the state to avoid harm.
We cannot conclude, as a matter of law, that the state
exercised reasonable care to prevent and correct the sexual
harassment in this case. Drager frequently asked lacey sexual
questions. other employees overheard the comments Drager
made and agreed that the comments crossed the line of what
was appropriate. Drager subjected lacey to uninvited touching
by leaning his chest against her back and putting his face next
to her face when he talked to her and by running his fingers
through her hair. He also threw candy and shot rubberbands
at her chest area and constantly followed her around the ware-
house. When the state finally investigated Drager’s actions, his
behavior was found to be inappropriate.
Ehlers was aware of Drager’s inappropriate behavior toward
lacey before June 2004, but he failed to stop the harassment.
When lacey complained to Ehlers and filed the formal report
with lehmkuhl, Ehlers verbally instructed lacey to report
to a different supervisor and told Drager to stay away from
her. unlike the solution undertaken by the police department
in Weger v. City of Ladue, 500 F.3d 710 (8th Cir. 2007), the
state’s only solution was to tell the parties to stay away from
each other. Drager resumed harassing lacey as soon as Ehlers
was absent from the warehouse for a few days. only after
Drager threatened lacey was he given a written warning and
transferred to a different facility. This action was not taken
until approximately 2 months after lacey initially reported the
harassment. Reasonable minds could differ as to whether these
actions by the state rose to the level of “reasonable care to
prevent and correct promptly any sexually harassing behavior,”
as required by the first prong of the Faragher defense. see
Faragher v. Boca Raton, 524 u.s. 775, 807, 118 s. Ct. 2275,
141 l. Ed. 2d 662 (1998).
We also conclude that the state did not establish as a matter
of law that it met the second prong of the Faragher defense.
Reasonable minds could differ regarding whether lacey unrea-
sonably failed to take advantage of any preventative or cor-
rective opportunities provided by the employer or to avoid
harm otherwise.
94 	278 nEBRasKa REPoRTs

in Faragher, 524 u.s. at 808, the u.s. supreme Court
noted that the lifeguards were isolated from the city’s higher
management and that the city had “entirely failed to dis-
seminate its policy against sexual harassment among the
beach employees” and failed to keep track of the conduct of
the supervisors. Conversely, in Weger, the court found that
the female officer unreasonably delayed reporting the sexual
harassment when she did not report the harassment for over a
year even though she was aware that an antiharassment policy
was in place.
The record does not establish that lacey knew how to prop-
erly report workplace harassment. lehmkuhl noted that she did
not think of giving lacey a copy of the administrative regula-
tions regarding workplace harassment because lacey was a
temporary employee. The state argues that it was unreasonable
for lacey to wait 6 months before filing a complaint. This
argument is based on the assumption that lacey had a copy of
the state’s sexual harassment policy. Considering that lacey
did not receive the policy, a reasonable jury could conclude
that lacey’s failure to report the harassment before June 2004
was objectively reasonable.
Furthermore, the jury was instructed that if lacey met
her burden of proof, it must consider the state’s defenses.
specifically, a portion of the second jury instruction states that
[i]n connection with the for[e]going defenses the bur-
den of proof is on the [state] to prove, by the greater
weight of the evidence, each and all of the following:
1. That the [state] took steps to prevent and correct
promptly any harassing behavior;
2. That the steps [the state] took were reasonable;
3. That [lacey] failed to timely complain of the sexual
harassment; and
4. That [lacey’s] failure to do so was unreasonable.
This instruction incorporates the elements of the Faragher
defense. as the jury awarded lacey $60,000 for her sex-
ual 	harassment 	claim, 	it 	clearly 	considered 	and 	rejected
this defense.
Because reasonable minds could reach different conclu-
sions as to whether the state took sufficient steps to prevent
laCEy v. sTaTE 	95
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and promptly correct sexual harassment and whether lacey
unreasonably failed to timely report the harassment, a directed
verdict in favor of the state was not appropriate and the district
court did not err in failing to grant the state’s motion.
next, the state alleges that it was entitled to a directed verdict
on lacey’s retaliatory discharge and retaliatory failure to hire
claims. The jury found for the state on both of these claims;
therefore, the state cannot claim prejudice. accordingly, this
claim has no merit.
motionS for new triAL And for Judgment
notwithStAnding verdict
The state claims that the district court erred in failing to
grant its motions for new trial and for judgment notwithstand-
ing the verdict, because the jury’s verdict was excessive and
the result of passion and prejudice. These claims are also with-
out merit.
[5] on appeal, a motion for new trial is reviewed for abuse
of discretion. see Poppe v. Siefker, 274 neb. 1, 735 n.W.2d 784
(2007). a motion for judgment notwithstanding the verdict is
appropriate only when the facts are such that reasonable minds
can draw but one conclusion. see Frank v. Lockwood, 275 neb.
735, 749 n.W.2d 443 (2008). Furthermore, a civil jury verdict
will not be disturbed on appeal unless clearly wrong. Christian
v. Smith, 276 neb. 867, 759 n.W.2d 447 (2008).
[6] “a verdict may be set aside as excessive only where it
is so clearly exorbitant as to indicate that it was the result of
passion, prejudice, or mistake, or it is clear that the jury dis-
regarded the evidence or controlling rules of law.” Johnson v.
Schrepf, 154 neb. 317, 47 n.W.2d 853, 855 (1951) (syllabus
of the court). it is well settled that “[t]he amount of damages
to be awarded is a determination solely for the fact finder, and
its action in this respect will not be disturbed on appeal if it
is supported by evidence and bears a reasonable relationship
to the elements of the damages proved.” State ex rel. Stenberg
v. Consumer’s Choice Foods, 276 neb. 481, 493, 755 n.W.2d
583, 593 (2008). accord, Roth v. Wiese, 271 neb. 750, 716
n.W.2d 419 (2006); Jones v. Meyer, 256 neb. 947, 594 n.W.2d
610 (1999).
96 	278 nEBRasKa REPoRTs

The jury awarded lacey $0 for lost wages and benefits
and $60,000 for other compensatory damages. as evidence
of compensatory damages, lacey testified that she suffered
significant stress, had difficulty sleeping, and cried often. she
also lost a significant amount of weight during the time she
was employed at the warehouse, dropping from a size 12 to a
size 1 or 2. Her physician placed her on antidepressant medi-
cation for stress; she had never taken antidepressants before
that time.
Drager’s harassment of lacey continued for months. it
ranged in frequency from two to three times per week to every
day. such harassment took its toll, causing lacey depression
and severe weight loss. she has more than adequately proved
her mental and physical distress. accordingly, the jury’s verdict
of $60,000 was not so clearly exorbitant as to indicate that it
was the result of passion, prejudice, mistake, or some means
not apparent in the record, or that the jury disregarded the
evidence or rules of law. The district court did not abuse its
discretion in denying the state’s motions for new trial and for
judgment notwithstanding the verdict.
ConClusion
The district court did not err in denying the state’s motions
for directed verdict, new trial, and judgment notwithstand-
ing the verdict. We therefore affirm the judgment of the dis-
trict court.
A ffirmed.
miLLer-L ermAn, J., participating on briefs.
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