2d Circuit tears apart district court in reinstating disability discrimination case

This disability discrimination case took the Court of Appeals almost two years to decide, and it totals 100 pages. The Court finds that a jury may find that the plaintiff, a medical doctor, was fired because of her disability. The decision emphasizes that trial courts must be careful in resolving disputed facts on a motion for summary judgment. The Second Circuit finds one strand of the district court's reasoning "puzzling."

The case is Porter v. Dartmouth-Hitchcock Medical Center, issued on February 6. Plaintiff began working at the medical center in the Reproductive Endocrinology and Infertility Division (REI) in 1996. In November 2015, she developed neurological problems and took a leave of absence, returning to work on a part-time basis, taking another medical leave of absence in August 2016, which lasted until November. By April 2017, plaintiff was again performing the full range of her prior skills and was working additional hours. But in Spring 2017, defendants decided to close the DEI unit. But they also decided to keep one medical provider on board for OB/GYN duties, and they were considering keeping plaintiff in the unit to handle ultrasound in the gynecology department. But she was denied the position.

One of the decisionmakers on plaintiff's discharge was Dr. Merrens. At a meeting, he was asked why plaintiff was not being retained by the medical center. Dr. Merrens said that "Misty," the nickname for plaintiff,  was "on disability." When someone mentioned that plaintiff "was coming back," Dr. Merrens changed the subject. On this topic, Dr. Merrens then said in an email that plaintiff "currently works at 20% of her time currently[.]" Another decisionmaker, Dr. DeMars, wrote in an email that people who wanted plaintiff to continue working at the medical center were "remembering Misty as a full time employee wearing 3 hats, and not the one who has been out for almost 18 months." While defendant knew plaintiff was interested in staying on at the medical center, Dr. Merrens did not discuss this with her.

Reversing summary judgment on the disability discrimination claim, the Court of Appeals (Kearse, Walker and Livingston) notes that Dr. Merrens' comments about why plaintiff was not being retained were direct evidence of disability discrimination, even if, as the district court held, these admissions were "not conclusive" evidence of discriminatory intent. The actual standard is not whether the admissions were conclusive but whether they might support a verdict in plaintiff's favor; they do. Nor was plaintiff required to present "a pattern of discriminatory comments" by decisionmakers. Such evidence would certainly strengthen plaintiff's case, the Court of Appeals holds. The Court writes, "When the decisionmaker was asked 'why' an employee was not being retained, his answer that she was 'on disability' virtually precludes a ruling as a matter of law that disability has played no role." In addition, the Court writes, "in rejecting Dr. Merrens's 'on disability' statement on the ground that it was not 'more explicit,' the court refused to view in Dr. Porter's favor a statement that on its face supported her claims, and it invaded the province of the jury to decide whether the 'on disability' response to 'why' was sufficiently clear to be accepted as showing disability motivation." 

Other problems with the district court's ruling in granting summary judgment include its finding that "it would not be reasonable" to infer that Dr. Merrens meant what he said because he gave the "on disability" answer "before the entire OB/GYN Department." The Court of Appeals states, "While it likely was not anticipatable that Dr. Merrens would make such a statement openly, the fact remains that there is first-hand evidence that he did. It was not within the province of the court in ruling on a motion for summary judgment to decide as a matter of law that Dr. Merrens's statement--which the court acknowledges was literally 'true,' --was not in fact responsive to the plain question that immediately preceded it."

The district court also improperly rejected other evidence of disability discrimination, including Dr. Merrens' email response that plaintiff was only working "at 20% of her time currently." While the district court noted this statement was "probably unwise" and it "is not reasonably possible to read it as evidence of animus or discriminatory intent," the Court of Appeals regards this as a "puzzling" rationale in disregarding Dr. Merrens' response. Dr. Merrens was not asked about the other two REI doctors, only about plaintiff, and "it would make no sense to explain that two of the three physicians were being terminated because the third was working only part time (especially if the part-time percentage were as low as the Dr. Merrens email mistakenly portrayed it)." In addition, "Doubtless DHMC would agree that the statement was 'unwise' from its point of view; but that is precisely because it would be quite   reasonable to read that express reference to limited capability as evidence of motivation based on disability."