About Us  |  About Cheetah®  |  Contact Us

ADA regarded-as claim of nurse with degenerative retinal condition but no disability revived

By Kathleen Kapusta, J.D.

Under the ADA, observed the appeals court, “your employer can’t fire you because they think you are disabled, even if, in fact, you are not disabled.”

Not only did the court below “use a sledgehammer, when the law required that it use only a scalpel” in excluding in its entirety an expert witness’s proffered testimony in favor of a discharged employee, it erred in finding that no genuine fact dispute existed as to why the employer fired the employee, the Sixth Circuit ruled. Accordingly, it reversed the grant of summary judgment against the employee’s ADA regarded-as claim in which she alleged she was fired because her employer thought she was visually disabled even though she was not (Babb v. Maryville Anesthesiologists P.C., November 6, 2019, Moore, K.).

About a month after the Certified Registered Nurse Anesthetist (CRNA) began working for the small group of anesthesiologists, one of the physician-owners asked her why she was placing her face very close to a computer screen. The employee explained that she suffered from a “degenerative retinal condition” that made it hard for her to read certain screens and medical records but did not affect her ability to do her job. The doctor then told another physician-owner, the one responsible for personnel decision, that the employee “would be blind in ten years.”

Stable. Not long after that, that doctor received reports from two other physician-owners stating similar concerns about the employee’s vision. At a subsequent meeting, the employee explained that she had been diagnosed with this condition 10 years earlier, that it did not affect her ability to do her job, and that her vision was stable. In response, the doctors told her she was a good fit and was doing well, although one mentioned that she “might have a disability.” They also asked her to schedule an appointment with her ophthalmologist and report back.

Errors. Because the doctors instructed the employee to ask other CRNAs to help her with reading hospital monitors, over the next two months she occasionally requested assistance from her coworkers, who then reported their concerns to the doctors about the employee’s vision. Around this same time, one of the physician-owners was told that the employee committed an error unrelated to her vision when she began waking a patient up from surgery before he had been placed on the right bed, causing him to nearly fall off the operating table. A few days later, the practice was told that the employee insufficiently paralyzed a patient prior to surgery.

Email. As a result, the physician-owners held a meeting during which they decided to fire the employee, purportedly because of these two “clinical errors.” Just hours later, another CRNA, at the direction of an owner-physician, sent an email to all CRNAs stating that the practice had fired the employee almost entirely for her worsening eyesight, which had been discussed at length during the meeting.

Lower court proceedings. The employee subsequently sued, alleging the practice fired her because it regarded her as disabled. During discovery, she proffered an expert report from an experienced CRNA who opined that even assuming the two incidents happened exactly as reported, the employee did not violate the standard of care applicable to CRNAs in the area. After finding the report was inadmissible in its entirety, the district court granted summary judgment to the practice, holding that although a reasonable juror could conclude it regarded the employee as disabled, there was no evidence it did not honestly believe her clinical errors rendered her unfit to practice nurse anesthesiology, or that the real reason for its decision was discrimination based on her perceived visual disability.

Expert testimony. On appeal, the court first found the district court erred when it excluded the expert’s proffered testimony in its entirety. Although it correctly identified some statements in the proposed testimony that appeared to be attacks on the doctors’ credibility, on several occasions, she assumed the truth of their factual testimony but then explained why the employee’s actions could still not be considered “clinical errors” under the relevant standard of care. This latter testimony, said the court, was both relevant to the question of pretext and free of improper credibility attacks and the district court erred in failing to explain why it should be excluded.

Further, the district court also erred in treating the expert’s key opinion—that the employee’s behavior during the two incidents accorded with the relevant “standard of care”—as an improper legal conclusion on the question of pretext. She neither opined on the ultimate question of liability nor framed her opinion in the “specialized” language of disability discrimination law. Rather, she merely called into question the factual assertion at the heart of the practice’s defense—that the employee committed “critical” errors and displayed “terrible clinical judgment” during the two incidents. Thus, said the court, although the expert’s “‘standard of care’ testimony could perhaps lead a reasonable juror to infer that Maryville’s invocation of ‘clinical errors’ was nothing more than a pretext for disability discrimination, that possibility does not render [her] testimony inadmissible in toto.

Correct legal standard. Turning to the employee’s ADA claim, the court first noted that there appeared to be some confusion in the circuit as to what a plaintiff must do to establish a “regarded as” ADA claim under the ADAAA. Accordingly, the court clarified that to state the threshold condition of a “regarded as” claim, an employee need only show that her employer believed she 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.”

Regarded as. The court next found the district court correctly determined that a genuine fact dispute existed with respect to the employee’s perceived disability. Not only did the physician-owners and staff openly express concern about the employee’s “degenerative retinal condition,” including during the termination meeting, its head of personnel met with the employee specifically to discuss her vision and during that meeting asked if she had disability insurance. Further, after that meeting, the doctor advised the other physician-owners that the employee’s vision issues might require them to consult an attorney.

And while the practice cited to several cases in support of its assertion that referring an employee to a fitness-for-duty exam when the employer knows the employee has medical problems is not a per se regarded as violation, the employee did not rely solely, or even primarily, on the doctors’ request that she undergo an eye examination. Rather, observed the court, she complied with the request “and had not attempted to use that request as a ‘sword’ against Maryville during this litigation.” Accordingly, those cases did not change its conclusion that a genuine fact dispute existed as to whether the practice regarded the employee as disabled when it fired her.

Pretext. The appeals court, however, disagreed with the lower court’s determination that no genuine fact dispute existed as to why the practice fired the employee. Observing that the practice argued clinical mistakes were “critical errors” while the expert opined that the employee acted reasonably during both incidents, the court found a fact dispute as to the reasonableness of the practice’s decision to base the termination decision on the two errors.

Honest belief rule. And while the practice pointed to the honest belief rule, the court explained that an employee can overcome the rule by pointing to evidence that “the employer failed to make a reasonably informed and considered decision before taking its adverse employment action.” And here, the expert’s testimony challenged the likelihood that a reasonable anesthesiology practice would have actually relied on the facts underlying the practice’s stated reasons for firing employee to fire such an experienced nurse practitioner.

Smoking gun. Further, pointing to the CRNA’s email sent hours after the employee was fired, the court found an “even more glaring” fact dispute regarding whether these errors actually motivated the practice to fire her. Noting that the CRNA admitted she wrote the email at the direction of one of the doctors involved in the termination decision, the court observed that “[i]f 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.”

And while the practice argued that the CRNA based her email on “rumor and innuendo” rather than on the word of the physician-owners, the court noted that accepting that narrative would require it to view the facts in the light more favorable to the practice, and to assume the CRNA was a credible witness, which it could not do. Also rejected was the practice’s assertion that because the CRNA was not a decisionmaker, her email was irrelevant. Her email, said the court, “was a quasi-official communication, written at the behest of one of the key players” in the employee’s termination, almost immediately after her termination, following an in-person conversation with a physician-owner. “It was not a speculative claim shared privately among colleagues; it does not read like gossip.”