Babb v. Maryville Anesthesiologists, P.C., No. 19-5148 (6th Cir. Nov. 6, 2019)

| Nov 6, 2019 | Daily Developments in EEO Law |

A nurse is fired, supposedly for clinical errors, but an email is circulated to staff saying that she was fired because she “has been having major issues with her eyesight and as of late, it has seemed to be getting even worse.” The Sixth Circuit finds that the email and other evidence present a triable case of regarded-as disability discrimination under the ADA.

Babb v. Maryville Anesthesiologists, P.C., No. 19-5148 (6th Cir. Nov. 6, 2019): Ms. Babb, a Certified Registered Nurse Anesthetist (“CRNA”) at Maryville, was observed “placing her face very close to a computer screen” by one of the physician-owners of the clinic, named Coleman. Ms. Babb told Dr. Coleman that she was diagnosed with a “degenerative retinal condition” that made it difficult to read certain screens and medical records, but that otherwise was manageable.

Dr. Coleman told the other owners about the condition, expressing concern that Ms. Babb could be blind within ten years, and convened a meeting with Ms. Babb. At the meeting in October 2015, Ms. Babb reiterated “that the disorder did not affect her ability to do her job, and that her vision was otherwise ‘stable.'” Two other physician-owners, Drs. Robertson [head of personnel] and Proffitt, “first reassured Babb that, vision issues notwithstanding, she was a ‘good fit’ and was ‘doing well,'” but nevertheless asked her to “schedule an appointment with her ophthalmologist and report back,” and also suggested that she look into disability insurance.

Matters deteriorated from there. The physician-owners took note of how often Ms. Babb asked other staff to read monitors for her. Her “alleged” vision problems were noted in her year-end performance evaluations. She was cited for a mistake that occurred months earlier “completely unrelated to her vision,” i.e., prematurely awakening a client before being removed from a “fracture table.” Finally, in January 2016, Ms. Babb was charged with clinical error during a “robotic arm” surgery. The ownership met, discussed the errors and Ms. Babb’s vision, and decided to fire her.

Despite telling Ms. Babb that she was “dismissed for cause because of the concerns … over the robotic case and the fracture table incident,” another CRNA named Aycocke on January 13, 2016 emailed a different explanation to the staff:

“As most of you know, [Babb] has been having major issues with her eyesight and as of late, it has seemed to be getting even worse. We have had numerous complaints from [hospital] staff regarding her inability to read the monitor, etc. Over the past several months the group has given her several opportunities to provide documentation from her eye specialist saying that she was safe to practice. [Babb] was unable to provide this documentation.[] This, in addition to a few other issues, has forced the group to make a very difficult decision. As of today, she is no longer with our group. Sorry to be the bearer of bad news. This was one of the reasons that our meeting was postponed. See you all tomorrow.”

Ms. Babb sued the clinic for “regarded as” disability discrimination under the ADA. The district court granted summary judgment fon the supposed ground that there was “no evidence that [Maryville] did not honestly believe that Ms. Babb’s “clinical errors” rendered her unfit to practice nurse anesthesiology, or “that the real reason for [Maryville’s] decision was discrimination [on the basis of Babb’s perceived visual disability].”

The Sixth Circuit reverses. It holds first that the district court erred under Federal Rule of Evidence 702 by excluding an expert report submitted by plaintiff showing that, even if the two errors were credited, Ms. Babb did not violate the standard of care applicable to CRNAs in the area. The grounds for exclusion – that the report supposedly attacked the credibility of the doctors, and also opined on the “ultimate legal issue” – were an abuse of discretion because they overstated the actual content of the report and in any event were only part of the testimony, the balance of which was unobjectionable.

Second, the panel holds that plaintiff could establish that the clinic regarded her as disabled for purposes of the ADA. The panel acknowledges that past Sixth Circuit decisions had “regrettably” disregarded the 2008 ADA Amendments Act changes that lowered the threshold for this condition, i.e., “an employee need only show that their employer believed they had a ‘physical or mental impairment,’ as that term is defined in federal regulations.” (The panel disapproves those decisions.)

On the liability question, the clinic argued that it was entitled to summary judgment on the claim because there was no genuine dispute of fact about (1) “whether it ‘regarded’ Babb as disabled” or (2) whether “its stated reasons for terminating Babb, i.e., the two clinical errors” were genuine and not a pretext for discrimination. The panel observes, in a footnote, that a “pretext” analysis might not be necessary because “the January 13, 2016 … e-mail arguably provided direct evidence in support of Babb’s discrimination claim,” but no party argued that point below.

As to (1), the record contained ample evidence “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.” While asking Ms. Babb to undergo an eye examination might be supported as a valid fitness-for-duty examination, plaintiff did not challenge the examination.

As to (2), “Babb has submitted expert testimony suggesting that she acted reasonably during both incidents, and in accordance with local CRNA standards.” While the clinic cited its “honest belief” that Ms. Babb’s mistakes were serious, an employee in the Sixth Circuit can surmount that defense with evidence that “the employer failed to make a reasonably informed and considered decision before taking its adverse employment action.” The expert report rebutted the “likelihood that a reasonable anesthesiology practice would have actually relied on those facts to fire an experienced nurse practitioner like Babb.”

Additionally, the record presented evidence that the clinic did not actually rely on those reasons for Ms. Babb and was motivated instead by her perceived disability:

“Recall that Maryville has never tried to defend its termination of Babb on grounds that Babb’s vision created a safety hazard, and has instead insisted that Babb’s termination occurred solely because of clinical errors unrelated to her vision. But, yet, just hours after Maryville decided to fire Babb, [] Aycocke wrote an e-mail to her fellow CRNAs essentially stating that Maryville was firing Babb because of her impaired vision …. More striking still, far from being mindless office gossip, Aycocke admits that she composed this e-mail at the direction of Dr. Proffitt-one of the key players involved in Babb’s termination-shortly after Dr. Proffitt informed her of Babb’s termination.”

While there was a dispute about whether the email was authorized – a credibility issue that could not be resolved on summary judgment – it was well enough to go to a jury. “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.”

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