On Wednesday, the Sixth Circuit Court of Appeals reversed an employer’s summary judgment on an ADA “regarded as” discrimination case and rejected the employer’s honest belief defense based on evidence produced by the plaintiff to create a jury question about pretext. Babb v. Maryville Anesthesiologists PC, No. 19-5148 (6th Cir. 11-6-19). First, the plaintiff produced expert witness evidence about the reasonableness of the plaintiff’s professional conduct, which made debatable the reasonableness of the employer’s decision, particularly when no investigation had been conducted before her termination. In other words, there were no particularized facts supporting the employer’s decision beyond the initial report of allegations. Second, the plaintiff relied on an email sent by a co-worker claiming that she had been fired because of concerns with her vision. This was arguably not a stray remark when the co-worker had been requested to send the email by one of the decision-making physicians who failed to deny in his affidavit that he told her what to say.
According to the Court’s opinion, about a month after the experienced plaintiff CNRA was hired in June 2015, a physician noticed that she had poor eyesight (because of how close she had her face to a monitor in order to read it). She admitted that she had “degenerative retinal condition” that made it hard for her to read certain screens and medical records,” but assured him that it did not affect her ability to perform her job. That physician told another and claimed that the plaintiff would be blind within 10 years, which the plaintiff disputes. After a few other physicians expressed similar concerns, a meeting was held with the plaintiff on October 30 where she had explained that she had been diagnosed a decade earlier and was requested to obtain medical clearance that she could safely perform her job duties and to consider LTD insurance. However, one of the physicians indicated that they may need to consult with counsel because her ophthalmologist was unlikely to give them the necessary assurance. Otherwise, she was told that she was a “good fit” with the practice.
The plaintiff consulted with her ophthalmologist, but the Court noted that there was nothing in the record about what the plaintiff was told or, importantly, what – if anything -- she told her employer. Apparently at the suggestion of two of the physicians to ensure that she was not misreading data, the plaintiff began having her co-workers read hospital monitors to her and this simply aggravated concerns about her eyesight and these concerns were noted in her performance evaluation. The employer was then informed of two apparent clinical judgment errors that the plaintiff made in patient care which were unrelated to her eyesight. No investigation was conducted concerning the errors, but at a partnership meeting the following week, her eyesight and the errors were discussed and the decision was made to terminate her for the alleged errors. She was informed in mid-January that she was terminated solely because of the supposed errors, which shocked her because no one had questioned her about the issues beforehand.
A new co-worker, after discussing the termination with one of the physicians (who did not have responsibility for HR), then emailed the other CNRAs (at the physician’s direction). She explained in her email that the plaintiff had been terminated because of concerns with her eyesight and “a few other issues” and that the plaintiff had failed to produce documentation that she could safely perform her job. The undisputed evidence was that this new employee had never been told why the plaintiff had been fired and instead that she had based her explanation on staff gossip. The particular physician was never questioned about it during the litigation and his affidavit was strangely silent about what information he told the new employee about why the plaintiff had been terminated.
The plaintiff found another job as a CNRA and no issues were raised about her eyesight or professional judgment. She filed an EEOC Charge and sued on the basis that she was illegally terminated because she was regarded as disabled when, in fact, she was not. During the litigation, she supplied an expert affidavit that the alleged mistakes she had made were not in fact judgment errors, but were normal incidents during which she performed reasonably. The trial court excluded the expert affidavit, and granted the employer’s motion for summary judgment, relying primarily on the honest belief defense. On appeal, the Court ruled that portions of the expert affidavit were still admissible and could be used to show that the employer’s explanation for her discharge was pretextual.
To prevail on a “regarded as” discrimination claim, the Court held that the plaintiff must show
that their employer believed they had a
“physical or mental impairment,” as that term is defined in federal
regulations. The employer may then rebut
this showing by pointing to objective evidence “that the impairment is (in the
case of an actual impairment) or would be (in the case of a perceived
impairment) both transitory and minor.”
“[E]ven if an employee establishes that their employer “regarded” them as disabled under the aforementioned standard, the employee must still show that their employer discharged them (or took some other form of adverse employment action against them) because of, or “but-for,” their actual or perceived physical or mental impairment.” This can be shown with either direct evidence or using the circumstantial burden of proof. Under the latter method, if the employer articulates a non-discriminatory reason for its action, “an employee can show that an employer’s explanation was pretextual in “three interrelated ways”: “(1) that the proffered reasons had no basis in fact, (2) that the proffered reasons did not actually motivate the employer’s action, or (3) that they were insufficient to motivate the employer’s action.” Further, the plaintiff “may also demonstrate pretext by offering evidence which challenges the reasonableness of the employer’s decision to the extent that such an inquiry sheds light on whether the employer’s proffered reason for the employment action was its actual motivation.” At the summary judgment stage, the employee is only required to identify a disputed issue of material fact and is not required to prove her case.
The Court found sufficient evidence for the jury to find that the plaintiff was perceived as disabled:
Viewed in the light most favorable to Babb, the record shows, not only that Maryville physician-owners and employees openly expressed concern about Babb’s “degenerative retinal condition,” including on Babb’s job evaluation and during the meeting at which Maryville decided to fire Babb, but that Maryville’s head of personnel (Dr. Robertson) met with Babb specifically to discuss Babb’s vision, and, during that meeting, asked Babb if she had disability insurance. See Babb, 361 F. Supp. 3d at 775 (emphasizing this latter fact). More still, after that meeting, Dr. Robertson advised her colleagues that Babb’s vision issues might require them to consult an attorney. This is more than enough evidence from which a reasonable juror could find that, in January 2016, Maryville genuinely believed Babb had a “physiological . . . condition” affecting one of her “body systems,” namely, her vision.While the Court agreed that requesting a fitness-for-duty examination (as happened here on October 30) cannot be used against the employer, this case was distinguishable from those cases where the employer ONLY requested a fitness-for-duty examination and did not also mention the concerns on a performance evaluation or discuss the medical condition while deciding to terminate the employee, etc.
The Court then found that there was sufficient evidence for the jury to consider whether the employer’s explanation was pretextual. First, there was a question about whether the plaintiff’s two errors were in fact errors reflecting terrible clinical judgment which would justify her termination or, based on the expert affidavit, reflected that she performed reasonably under the circumstances. “This dispute matters because the less serious Babb’s clinical mistakes, the more likely they were not the “real” motivation behind Babb’s termination.” The Court rejected the employer’s honest belief defense because it “failed to make a reasonably informed and considered decision before taking its adverse employment action.” The expert’s affidavit challenged “the likelihood that a reasonable anesthesiology practice would have actually relied on those facts to fire an experienced nurse practitioner like Babb.”
Second, the Court found sufficient disputed evidence as to whether the alleged clinical errors actually motivated the employer’s decision. The employer insisted that she was fired solely because of the clinical errors and never contended during litigation that her vision posed a safety hazard. But, hours after the plaintiff had been terminated, a co-worker sent an email immediately after speaking with one of the decision-making physician partners that the plaintiff had been terminated primarily because of questions about her vision. Finally, her vision was a significant issue of discussion during the meeting when the decision was made to terminate her employment and was even discussed in her performance evaluation. “If this kind of “smoking gun” evidence cannot get an employment discrimination plaintiff past summary judgment on the question of pretext, it is hard to imagine what could.”
The Court refused to draw any favorable inferences in favor of the employer based on undisputed evidence that the co-worker’s email had contained information which had never been relayed to her by any of the physicians. Rather, the Court found that the other undisputed facts made the co-worker’s explanation about her source of information a disputed issue of fact that only a jury could resolve. In particular, ruling in the employer’s favor would require a finding that she “is a credible witness, which, of course, we cannot do at this stage.”
The Court also refused to disregard the co-worker’s email as an irrelevant “stray comment” because, among other things, the particular physician never submitted any evidence about what he told the co-worker in his affidavit and apparently was not deposed about the information either:
Aycocke’s e-mail, however, was not the kind of “stray discriminatory remark,” offered by a “non-decisionmaker,” disconnected to the decisional process, . . . Rather, Aycocke’s e-mail was a quasi-official communication, written at the behest of one of the key players in Babb’s termination (Dr. Proffitt), almost immediately after Babb’s termination, following an in-person conversation with Dr. Proffitt. It was not a speculative claim shared privately among colleagues; it does not read like gossip. Indeed, despite submitting a declaration in discovery, . . . Dr. Proffitt has never testified to the contrary. In light of this rather unique context, then, a jury should decide whether Aycocke based the content of her e-mail on “rumor and innuendo,” as she and Dr. Robertson testified at their depositions, or whether she based it on the word of Dr. Proffitt, as the circumstantial evidence would seem to suggest. And, if a jury could find that Aycocke based her e-mail on the word of Dr. Proffitt, a jury could also find that Maryville acted pretextually when it fired Babb for “clinical errors.”
NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.
