A nurse who was fired for insubordination after refusing to carry out an order she felt she could not handle while recovering from a serious injury could sue her employer for retaliation under the Americans with Disabilities Act, the 1st U.S. Circuit Court of Appeals has ruled.
The employee, who worked for a private contractor that provided health services to state prisons, claimed her employer fired her in retaliation for her requests to accommodate her disability.
Even before the incident that directly led to her termination, the employee claimed her supervisor repeatedly showed hostility toward her requests, including accusing her of exaggerating her disability and imposing petty requirements regarding her medical documentation.
A U.S. District Court judge dismissed the employee’s action on summary judgment, finding insufficient evidence that the employer’s stated reason for the termination was a pretext for retaliation.
But the 1st Circuit reversed.
The incident leading directly to the employee’s termination “may reasonably be viewed as the culmination of [a] history of disability-based conflict,” Judge Kermit V. Lipez wrote for the court. “Under these circumstances, a reasonable factfinder could conclude that [the employee’s] refusal to obey an instruction of [her supervisor] served as a convenient pretext for eliminating an employee who had engaged in ADA-protected conduct one too many times.”
The 22-page decision is Kelley v. Correctional Medical Services, Inc.
Triable issues of fact
Plaintiff’s counsel Guy Loranger of Old Orchard Beach, Maine, said while courts have long been too quick to grant summary judgment in employment discrimination cases, the ruling in Kelley shows a trend the other way.
“Now courts are starting to look back and really analyze the facts and recognizing triable issues of fact, and I think that’s what happened in this case,” he said, likening his client’s refusal to take on a task she physically could not handle to a delivery driver refusing to park illegally and break the law.
“One juror might say it’s insubordination and another might say it’s not,” Loranger said. “But whenever there are two ways to look at an issue, the case should go forward for the jury to decide.”
Robert S. Mantell of Rodgers, Powers & Schwartz in Boston, who represents plaintiffs in employment cases, said the 1st Circuit “did an outstanding job of applying discrimination law to a common factual scenario,” broadening the concept of “pretext” in the process.
“Pretext may be shown when an employer overreacts in a calculated fashion to a workplace difficulty, where the justification for the employment decision is questionable, and where there has been an ongoing pattern of discriminatory hostility,” said Mantell, who was not involved in the litigation.
Meanwhile, Evan M. Fray-Witzer of Ciampa Fray-Witzer in Boston, who represents employers, said he has been seeing a lot of cases like Kelley, in which the underlying discrimination claim seems weak and the retaliation claim ends up “being the tail that wags the dog.”
Actions like the employee’s in Kelley normally would be reasonable grounds for termination and may well still prove to be so at trial, Fray-Witzer said.
“But the 1st Circuit found that the supervisor’s comments, which could be seen as hostile to the employee’s request for reasonable accommodation, was enough to create a triable issue of fact as to the supervisor’s motivation,” he continued. “It’s a reminder of how important it is for employers to focus solely on an employee’s performance and not to let other factors creep into — or even appear to creep into — the decision-making process.”
Matthew J. LaMourie of Preti, Flaherty, Beliveau & Pachios in Portland, Maine, declined to comment, citing the ongoing nature of the litigation.
Plaintiff Katherine Kelley, a licensed practical nurse, began working for defendant Correctional Medical Services, Inc., which provides medical staffing and health care services for inmates at Maine State Prison, in spring 2007.
That July, Kelley shattered her pelvis in a horseback riding accident, necessitating surgery and a six-week medical leave.
During Kelley’s leave, a new supervisor, Theresa Kesteloot — who had been with CMS since July 2006 — transferred to the Maine State Prison.
According to Kelley, her new supervisor was hostile toward her disability and requests for accommodation from the start.
For example, while Kelley was still on leave, Kesteloot allegedly suggested that she would not be allowed to return unless she could come back full time.
Kelley returned in September 2007, with a medical note outlining her restrictions, including lifting restrictions and the need for crutches to move around. But Kesteloot apparently tried to prevent her from working at all until she returned with a properly formatted doctor’s note on the appropriate CMS form. Kesteloot’s supervisor overruled that decision.
Additionally, Kelley claimed, Kesteloot accused her of lying about having a fractured pelvis, suggesting she would be immobile if her injuries were really that extensive.
Kelley also presented evidence that Kesteloot prevented her from using a cane until she presented a doctor’s note stating that she needed it to aid her mobility, despite her disability being more than evident.
Matters came to a head the night of Oct. 18, 2008. Kelley was on vacation but received a call asking her to come in and replace another nurse on the night shift in the “close unit,” where the primary duties were dispensing medication.
When she arrived, a second employee needed a substitute. Since a nurse was not needed for the close unit until it was time to set up the medications at around 4 a.m., Kelley was switched to the much more demanding “main clinic,” where nurses treated inmates for medical issues, responded to medical emergencies at locations that were often far from the station, and, at the end of each shift, counted all narcotics stored at the clinic.
Kelley claimed her leg was bothering her that day. Concerned about her mobility restrictions and her ability to respond to code blues, she asked Ann Voorhees, the nurse scheduled to work in the less demanding prison infirmary, to switch with her.
Voorhees, who had barely slept the night before, initially refused to take on the extra responsibilities of the main clinic. But she purportedly agreed in a phone call with Kesteloot to work the main clinic alongside Kelley and do any necessary “running around.”
Nonetheless, Voorhees subsequently refused to leave the infirmary. Kelley called Kesteloot at home to resolve the situation. Kesteloot apparently tried to enforce the plan via speakerphone, but also told Kelley “it was only fair” for her to conduct the narcotics count for the main clinic since Voorhees had already done the count in the infirmary.
Kelley protested that a count had already been done in the main clinic before she arrived and further reiterated that she felt uncomfortable with the physical demands of the clinic that night. When Kesteloot asked Kelley if she was disobeying a direct order, Kelley said she was willing to remain in the clinic but would not do the narcotics count.
At some point during the call, Voorhees agreed to “do it all.” But after the call, Kesteloot arranged for security to escort Kelley out of the building. Kelley was fired for insubordination the next day.
Kelley sued CMS in U.S. District Court, alleging that the company fired her in retaliation for requesting an accommodation that night.
U.S. Magistrate Judge Margaret J. Kravchuk granted summary judgment for the employer, finding Kelley’s evidence of retaliatory animus too conclusory and speculative for a jury. U.S. District Court Judge D. Brock Hornby affirmed and Kelley appealed.
The 1st Circuit noted that the record showed a history of disagreement between Kelley and Kesteloot over the employee’s need for accommodation long before the events that led to the termination.
More importantly, Lipez said, the supervisor’s comments and actions were consistently linked to Kelley’s disability and her accommodation requests.
“Hence, the presence of discriminatory animus is a reasonable inference that arises from these interactions … distinguishing this case from those where the employer’s proffered basis for its adverse action may have been false, but the record contains little to no evidence suggesting that the adverse action stemmed from an unlawful motive,” he wrote.
Such a background of disability-based animus “is … probative of a pretextual ground for terminating Kelley’s employment,” Lipez said, adding that the events of Oct. 17 could reasonably be viewed as “the culmination” of a history of disability-based conflict.
“Put another way, a reasonable factfinder could find that Kesteloot’s action against Kelley was ‘a disingenuous overreaction to justify dismissal of an annoying employee who asserted [her] rights under the ADA,’ rather than the firing of an insubordinate employee,” the judge said, quoting the 7th Circuit’s 2011 decision in Miller v. Ill. Dep’t of Transp.
Meanwhile, regarding Kesteloot’s apparent attempt to accommodate Kelley’s disability that night by requiring Voorhees to handle the physically demanding duties, Lipez said that an employer’s “seeming willingness” to accommodate a disability does not preclude a finding that the employer was motivated by retaliatory intent.