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Spanyers v. Omaha Steaks International11/13/2001
(not designated for permanent publication)
Appeal from the District Court for Douglas County: John D. Hartigan, Jr., Judge. Affirmed.
John H. Spanyers appeals from a jury verdict from the district court for Douglas County. Spanyers argues that the court admitted inadmissible hearsay evidence over objection, erred in dismissing his intentional infliction of emotional distress claim against his former employer Omaha Steaks International, Inc. (Omaha Steaks), and erred in refusing his proposed jury instruction relating to workplace drug testing.
FACTUAL BACKGROUND
On the morning of November 8, 1997, Spanyers arrived to work at Omaha Steaks' call center and went to the smoke tent which is provided for employees who smoke. As is Spanyers' custom, he rolled his own cigarette. He agreed in his testimony that many people mistake these cigarettes for marijuana cigarettes.
At about 12:30 that afternoon, two employees, Michelle Miller and Trisha Tack, approached Nicholas Ray Hamer, a call center supervisor, to report that while Tack was in the smoke tent, Spanyers had blown marijuana smoke in her face. Hamer told Michael Lawrence Brooks, a senior supervisor, of the report. Brooks and Hamer met with Marshall Mallum, the call center manager at Omaha Steaks, who then contacted James Bohan, the company's director of benefits and compensation. Bohan and Mallum decided that Spanyers would be asked to submit to drug testing pursuant to Omaha Steaks' Drug Free Workplace Policy. The policy states that " he company reserves the right to have any employee tested for drugs and alcohol when there is a reasonable suspicion that abuse exists." Brooks asked Spanyers to accompany him to his office, where Brooks informed Spanyers that he would be expected to submit to a drug test, that Omaha Steaks would provide transportation to the testing site, and that failure to submit to the test would be taken as Spanyers' resignation.
Spanyers requested that he be permitted to confront the employees who reported that he had been smoking marijuana, but Brooks refused to give him their names. Spanyers, who testified that he was aware of the drug policy, that he knew portions of the policy verbatim, and that he often quoted the policy to his co-workers, agreed to take the drug test.
Spanyers' and Omaha Steaks' versions of the remaining facts conflict. Brooks testified at trial that he remained seated behind his desk the entire time he and Spanyers were together in his office and that Spanyers sat in the chair closest to the door. Brooks also testified that Hamer was seated while in Brooks' office but left the office momentarily to retrieve the drug testing policy. According to Brooks, he and Hamer also left the office to obtain funds for the cab. Upon their return, they found the door locked from the inside. Brooks testified that Spanyers, after fumbling with the handle, opened it for them upon their return. Brooks says Spanyers asked to clean out his locker, which locker Brooks accompanied Spanyers to as company policy requires. Brooks testified that at no time during the incident did he tell Spanyers that his employment was terminated and that " here would have been no reason for us to send him for testing if we had already terminated him." Brooks testified that after Spanyers agreed to take the drug test, they went to the elevator leading to the upper level where the cab would be waiting. Although it would have been shorter to walk across the call center floor, Brooks testified that " hat would have been embarrassing to Mr. Spanyers." According to Brooks, while he and Spanyers were in the elevator on their way to the cab, Spanyers was "almost to the point of .
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