Doctor’s Unlawful Termination Claim Revived

Takeaway: A claim for unlawful termination due to disability cannot be dismissed by summary judgment when the record supports several permissible inferences showing discrimination as an employer’s motivation that must be assessed as genuine issues of fact by a jury.

An employer’s otherwise legitimate motive for terminating an employee could be undermined by other inferences a jury could make in support of an unlawful termination claim due to disability, according to the 2nd U.S. Circuit Court of Appeals. Thus, the district court’s summary judgment for the defendants on the unlawful termination claim was improper, and the decision was vacated in part and remanded for trial.

The plaintiff is a physician who sued her former employer, a New Hampshire-based medical center, alleging discriminatory termination on account of both her disability—in violation of the Americans with Disabilities Act (ADA), the Rehabilitation Act of 1973, and state laws of Vermont and New Hampshire—and for reporting to her department chair alleged improper, incompetent and harmful conduct by other physicians in her division, in violation of New Hampshire law.

The ADA and the Rehabilitation Act prohibit employers from discriminating against qualified individuals on account of disability “who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.”

Employers under both laws are required to make reasonable accommodations for an employee unless they can show that such steps would impose undue hardship on their operations.

In addition, New Hampshire law prohibits whistleblower discrimination and wrongful discharge.

As of 1996, the plaintiff worked as a staff physician and later as medical director in the obstetrics and gynecology (OB-GYN) department of the medical center. She was in a division where she specialized in treating women having difficulties with fertility.

After experiencing a cerebral spinal fluid leak that caused serious neurological problems in November 2015, the plaintiff took two periods of medical leave with a limited work schedule in between. Upon her return in November 2016, her employer agreed to certain accommodations, such as gradual resumption of responsibilities, private office space, frequent rest breaks, restricted duties, and no multitasking. By April 2017, she was able to work up to 20 hours per week and perform the full range of her skills.

In June 2017, her employer terminated her—and all but one of her co-workers—when the division closed, partly due to severe staffing shortages.

The plaintiff sued, and co-defendants included the medical center, the chair of the OB-GYN department, the division director, and a peer physician. The plaintiff and her co-workers had made formal reports to the chair about the alleged incompetency and poor performance of two defendants—especially regarding patient safety—and alleged frequent incidents of medical procedures without patients’ informed consent, unnecessary tests and fraudulent billing practices by both.

After the medical center cited the closure of the plaintiff’s division and the unavailability of other suitable positions as its sole motivation for termination, the district court granted summary judgment as a matter of law in concluding that the plaintiff failed to show causation between the adverse employment action and her disability and whistleblowing reporting. The court held that the plaintiff lacked sufficient evidence to show how this legitimate basis for termination served merely as a pretext for the alleged discrimination.

Moreover, the lower court noted, the plaintiff failed to establish that the defendants otherwise discriminated or retaliated against her prior to termination by a denial of a reasonable accommodation for her disability, because her supervisor agreed to a dozen requested workplace-condition accommodations.

The 2nd Circuit affirmed the lower court’s decision regarding its dismissal of the plaintiff’s claim of discrimination or retaliation prior to termination related to reasonable accommodation.

In contrast, summary judgment by the district court dismissing the plaintiff’s claim of unlawful termination due to disability and whistleblowing was improper, and therefore, the appellate court vacated that part of the decision and remanded the case back for trial. The district court “erred in concluding that no rational juror could infer that plaintiff was terminated, and not retained, based on her disability or her whistleblowing-type activity,” the 2nd Circuit said.

A motion of summary judgment can be granted only when there is no genuine issue of material fact to be tried. The district court may not make credibility determinations, weigh the evidence or draw legitimate inferences from the facts, as these are jury functions, not those of a judge.

On both counts, the lower court mistakenly applied the McDonnell Douglas burden-shifting analysis, under which the plaintiff bears the burden of establishing all elements of a case for unlawful discrimination. The burden then shifts to the employer to articulate a legitimate, nondiscriminatory reason for its adverse employment action. If provided, the plaintiff must then point to evidence sufficient to permit an inference that the employer’s articulated reason is a mere pretext for the alleged prohibited discrimination, or face summary judgment and risk dismissal of the claim.

However, this framework is not applicable unless the plaintiff has only indirect, not direct, evidence of the discriminatory motivation, the 2nd Circuit noted. And in this case, there was direct evidence on the record that the employer’s motivation was discriminatory on its face based on testimony that the person making decisions about who to terminate after the closure said in a staff meeting her termination was due to disability leave (a “smoking gun,” the court stated), among other evidence.

So, the appellate court ruled, a jury “could permissibly find” that her employer terminated her, rather than reassigning her to fill known needs of the larger OB-GYN department, based on genuine issues of fact to be resolved by a jury showing the decision was based, in whole or in part, on her disability.

Similarly, the record supported several permissible inferences a jury could make regarding discrimination for her whistleblowing that showed the decision to terminate the plaintiff without a chance of reassignment, as she requested, had been made in reliance on the representations and recommendations of the department chair, who allegedly wanted to retaliate.

Porter v. Dartmouth-Hitchcock Medical Center, 2nd Cir., No. 20-3894 (Feb. 6, 2024).

Anne Woodworth, J.D., is a freelance writer in Laurel, Md.