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Kelley v. Correctional Medical Services, Inc., No. 11-2246 (1st Cir. Feb. 6, 2013)

A common scenario in employment cases is the manager or supervisor who overreacts to a blow-up at work by firing the employee. What the employer may deem as a measured response to insubordination can, after the fact, be held by a court or jury to be the culmination of unlawful discrimination or retaliation. In this case, the First Circuit returns just such a case for a trial, reversing summary judgment entered against a nurse who was fired after complaining that she was being worked beyond her restrictions.  

The employee (Kelley) is a licensed practical nurse, who - owing to a horseback riding accident - worked under medical restrictions, limiting her hours and requiring the use of crutches or a cane. Her workplace was a state prison. Although the restrictions made it difficult for her to carry out some facets of her job, such as a managing a stretcher, the staff was able to stretch enough to pick up those duties. 

Kelley's supervisor, Kesteloot, according to the summary judgment record evinced mistrust of Kelley's restrictions, hinting that she believed Kelley "was misrepresenting the extent of her injuries and that she would be unable to walk if she had truly fractured her pelvis. Kesteloot also consistently criticized [fn] Kelley's job performance, and put written comments that she had not seen before in her employment file. Violet Hanson, a member of CMS management, told Kelley that Kesteloot 'wanted [her] gone.'"

On October 17, 2008, Kelley was called into work on a scheduled day-off and discovered that she had been assigned - without notice - to the main prison clinic, which would have taxed her medical restrictions. She was unable at first to persuade her colleagues to switch assignments, which led to a conference call between Kesteloot, Kelley, and two There nurses, Hill and Voorhees.

During the conference call, Kesteloot directed Voorhees to join Kelley, yet also ordered Kelley to conduct a narcotics count of the main clinic. Kelley (joined by Hill) protested that the narcotics count had already been completed, and added that the main clinic assignment would "require[] too much physical activity" and that she did not feel "comfortable with the physical responsibilities of [being in] charge in the clinic." Kelley, in the end, refused to accept the keys to the clinic.

Kesteloot then ordered Kelley removed from the clinic by security and had her fired on grounds of insubordination. Kelley claimed that the termination was in retaliation for her speaking out against being worked beyond her medical restrictions. The district court granted summary judgment.

The First Circuit reverses. The panel holds that a jury must ultimately weigh whether the reason for the termination was insubordination or, rather, a "disingenuous overreaction" prompted by the supervisor's irritation with Kelley's insistence that her workplace accommodations be horned.

The record contained considerable evidence that Kesteloot resented Kelley's restrictions:

"Even before Kelley returned to work after her medical leave, Kesteloot suggested that she would not be permitted to return unless she could come back full time. When Kelley did in fact return from her leave of absence, Kesteloot tried to prevent her from working until she returned with a properly formatted doctor's note describing the extent of her injuries. Kesteloot's own supervisor overruled this decision and permitted Kelley to begin work and bring a properly formatted note at a later date . . . . There was also the evidence that Kesteloot prohibited Kelley from using a cane until she returned with a doctor's note stating that she was required to use the cane to aid her mobility, despite the fact that Kelley's disability was more than evident."

The opinion summarizes the district court's error in crediting the employer's argument that Kelley's insubordination was to blame:

"In granting summary judgment, the district court focused almost exclusively on Kelley's insubordination. The court concluded that on October 17, Kesteloot had made an effort to accommodate Kelley by requiring Voorhees to handle the physically demanding duties, Thereby rendering baseless Kelley's resistance to assuming responsibility for the main clinic. Although this view of the record is reasonable, it disregards the record evidence Kesteloot's ongoing disability-based animus and the way in which that animus might have influenced Kesteloot's adverse employment action against Kelley. Moreover, an employer's seeming willingness to accommodate an employee's disability does not conclusively preclude a finding that the employer was motivated by retaliatory intent."

Ultimately, because "Kesteloot's comments and actions were consistently linked to Kelley's disability and her need for accommodation," this history presented circumstantial evidence of retaliatory intent, and also that "Kelley's refusal to obey an instruction of Kesteloot served as a convenient pretext for eliminating an employee who had engaged in ADA-protected conduct one too many times."

Please visit the professional bio of Paul W. Mollica at the Outten & Golden LLP website.

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