Thursday, November 7, 2019

“Smoking gun” email revives employee’s disability discrimination lawsuit

Maryville Anesthesiologists fired Paula Babb, an experienced Certified Registered Nurse Anesthetist, because it thought she suffered from a visual impairment.

How do we know why it fired her? Because the day after Babb’s termination, one of her co-workers confirmed it in an email (written at the direction of one of the employer’s owners).

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.

Despite this email, the district court granted the employer summary judgment and dismissed Babb’s “regarded as disabled” ADA lawsuit.

On appeal, the 6th Circuit had little difficulty in reviving the claim, in large part because of what it described as the “smoking gun” email.

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, Crystal 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. And, of course, all of this occurred in a context in which Maryville’s physicians felt concerned enough about Babb’s vision to discuss it at the meeting at which they decided to fire Babb, and on the official evaluations they wrote about Babb. (“I see her questionable ability to see reflect on how surgeons and the medical staff lack accepting her.”). 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. 

Employers, if you are short-sighted enough to (a) fire an employee because you believe she suffers from a disability, and (b) confirm that belief in writing, then you deserve whatever fate you suffer in litigation.

* Image by Danish Hussain from Pixabay