By Brandon L. Dixon and Erin Dougherty Foley
Seyfarth Synopsis: The Americans with Disabilities Act (ADA) not only provides protection to individuals who have physical or mental impairments, but to individuals an employer may perceive to have such impairments. These cases can be challenging for employers to defend, and the recent Sixth Circuit case, Babb v. Maryville Anesthesiologists, P.C., demonstrates how failure to appropriately identify and communicate about an employee’s perceived (or actual) impairment can create obstacles to a successful defense.
Maryville Anesthesiologists employed Paula Babb as a Certified Registered Nurse Anesthetist (CRNA). About a month into her employment with Maryville, one of its physician-owners, Dr. Coleman, noticed that Babb was placing her face usually close to a computer screen at work. Babb explained to Dr. Coleman that she suffered from a degenerative eye condition. While it meant she had to hold medical records close to her eyes to read them, Babb assured Dr. Coleman that her eye condition did not impede her ability to safely perform her duties as a CRNA.
As time passed, other reports of issues related to Babb’s vision began to surface, which ultimately led a few physician-owners to meet with Babb. She tearfully explained to them her eye condition diagnosis, and that it did not impact her ability to do her job. The physician-owners calmed her by telling her that she was a “good fit” and “doing well.” They then asked her to schedule an appointment with her ophthalmologist and report back. Babb agreed to do so. They also asked Babb if she had disability insurance because one of the owners believed she “might have a disability.” A physician-owner then emailed the other owners to report about the meeting with Babb, concluding with a note that they may need to speak with their attorney about Babb’s visual impairment.
In the next few months, Babb committed two separate errors at work that were unrelated to her vision. At the next meeting of the Maryville’s physician-owners, they made the decision to terminate Babb based on the two “clinical errors,” which they argued evidenced a lack of ability to provide safe patient care. The decision, which came only two months after the meeting during which Maryville told Babb she was doing well, came as a surprise to Babb. Hours after her termination, and at the direction of a physician-owner, a first-year CRNA circulated an email to Maryville employees announcing Babb’s termination. In it, the CRNA noted Babb had been “having major issues with her eyesight,” and, critically, “[Babb’s eyesight problems], in addition to other issues, has forced the group to make a very difficult decision” to let her go.
Maryville prevailed at summary judgment. The district court first deemed inadmissible Babb’s expert testimony. The expert called into question the reasonableness of Maryville’s decision to terminate Babb over the two clinical errors, explaining that they were not gross violations of the standard of care for CRNAs. It then found that there was a genuine issue of material fact concerning whether Maryville regarded Babb as “disabled.” Nevertheless, the court granted summary judgment in favor of Maryville, reasoning that there was “no evidence that [Maryville] did not honestly believe” the clinical errors cited in support of Babb’s termination did not render her unsuited for a CNRA position. Further, the court concluded that Babb could not show that the real reason for her termination was discrimination based on her perceived visual disability.
The Sixth Circuit reversed, first observing that the district court erred by disregarding the entirety of the expert witness’s testimony simply because there were some objectionable elements of the expert report. It then moved on to find that while it agreed with the lower court’s conclusion that fact issues existed about whether Maryville regarded Babb as disabled, the district court had used the incorrect “substantially limits one or more major life activities” standard. The correct inquiry, the appellate court explained, is whether the plaintiff has shown the employer believed the he or she had a “physical or mental impairment” (regardless of whether the impairment limits or is perceived to limit a major life activity). An employer may rebut this by showing that the perceived impairment is both transitory and minor. Here, the court found ample evidence establishing that Maryville may have regarded Babb as disabled, including Maryville’s query into whether Babb had disability insurance and expressing that they may need to meet with their attorney about Babb’s vision issues. Thus, there was indeed a genuine issue of material fact as to whether Maryville regarded Babb as disabled, even when using the correct standard.
Next, the circuit court reversed the district court’s ultimate holding that the evidence supported summary judgment in favor Maryville. The focus here was on whether there was a genuine issue of material fact as to Babb’s position that the “clinical errors” cited by Maryville as the reason for her termination were pretext. It held that there were two fact disputes sufficient to allow Babb to survive summary judgment. First, it determined there were fact issues surrounding the reasonableness of Maryville’s decision to terminate Babb for the clinical errors; the less serious the errors, the more likely they were not the true motivation for her termination. This is where the expert testimony the lower court improperly excluded was relevant, and when properly considered, created a fact issue precluding summary judgment.
The second fact dispute was, more generally, whether Babb’s perceived disability was the actual reason for her termination. The court did not mince words, noting that the email the CRNA sent on behalf of the physician-owners referencing Babb’s eye condition as the reason for her termination was “smoking gun” evidence of pretext. That is, the CRNA’s email was clear evidence that the actual reason for Babb’s termination may have been because of her perceived disability. While Maryville maintained that the CRNA’s email was based innuendo and rumors, there was contrary evidence that she wrote it at the specific direction of the owners. The court declared that if this “cannot get an employment discrimination plaintiff past summary judgment on the question of pretext, it is hard to imagine what could.” Accordingly, it reversed the district court’s grant of summary judgment for Maryville, potentially sending this case to trial.
Congress eased the burden on employees bringing a “regarded as” claim by enacting the Americans with Disabilities Amendment Act. Some courts and attorneys are still operating under the old standard, which required a plaintiff to show that an employer “mistakenly believed” an impairment would “substantially limit one or more major life activities.” However, this case reminds us that a plaintiff now need only show that the employer believed that he or she had a physical or mental impairment to satisfy the threshold question in a “regarded as” case.
The case also serves as a reminder of the importance and sensitivity of communications and decisions surrounding an employee’s actual or perceived impairment. Employers should take great care in identifying, discussing, and documenting any issues that may give rise to an Americans with Disabilities Act claim. The same is true concerning any authorized or official communication announcing an employee’s departure. Assuming such communication is deemed necessary, it should be carefully drafted or reviewed by HR and/or an attorney. Failure to do so can open the door to the type of “smoking gun” evidence that makes surviving a legal challenge to otherwise legitimate personnel decisions far more difficult and costly.
If you have any questions regarding this area or need assistance evaluating personnel decisions relating to potential physical or mental impairment, please contact the authors, your Seyfarth Attorney, or any member of Seyfarth Shaw’s Absence Management and Accommodations Team.