Babb v. Maryville Anesthesiologists P.C. (TWP2)
Filing
28
MEMORANDUM AND OPINION as set forth in following order. Signed by District Judge Thomas W Phillips on 1/16/19. (ABF)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
PAULA E. BABB,
)
)
Plaintiff,
)
)
v.
)
)
MARYVILLE ANESTHESIOLOGISTS,)
P.C.,
)
)
Defendant.
)
No.
3:17-cv-242
Judge Phillips
MEMORANDUM OPINION
Plaintiff Paula E. Babb worked as a Certified Registered Nurse Anesthetist
(“CRNA”)
for
defendant
Maryville
Anesthesiologists,
P.C.
(“Maryville
Anesthesiologists”), a medical practice group that provides anesthesiology services to
Blount Memorial Hospital (the “Hospital”) in Blount County, Tennessee. Plaintiff claims
that Maryville Anesthesiologists regarded her as disabled due to a vision impairment and
terminated her in violation of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §
12101 (2009). The defendant claims that plaintiff was terminated for legitimate nondiscriminatory reasons, namely, that she made serious clinical errors such that she could
not provide safe and appropriate patient care.
Maryville Anesthesiologists has filed a motion for summary judgment [Doc. 14],
with supporting briefs and materials [Docs. 15, 18, 19, 26], and plaintiff has responded in
opposition [Doc. 24]. For the reasons set forth herein, the defendant’s motion [Doc. 14]
will be GRANTED.
I.
Relevant Facts
Maryville Anesthesiologists provides anesthesiology services to the Hospital in
operating rooms and ambulatory surgery centers [Doc. 15-11 at ¶ 3]. Plaintiff began
working as a CRNA with Maryville Anesthesiologists around June 2, 2015 [Doc. 15-1 at
p. 6].
CRNAs with Maryville Anesthesiologists perform a variety of critical duties
including:
conducting
pre-anesthesia
assessments;
administering
pre-anesthetic
medication; administering general and regional anesthesia; performing sedation
techniques; conducting invasive and non-invasive monitoring of patient conditions such as
heart rate, pulse, heart rhythm, and oxygen; administering airway management techniques,
such as intubation and managing ventilation while the patient is paralyzed; monitoring
fluid, electrolyte and acid-base levels; monitoring blood loss and pressures; providing acute
and chronic pain therapy; and providing post-anesthesia care [Doc. 15-1 at pp. 2—5].
CRNAs perform many of these tasks independently and exercise discretion in performing
many of these tasks [Id. at p. 5].
Within a few weeks of plaintiff’s employment with Maryville Anesthesiologists,
Dr. Cheryl Coleman, one of the group’s physician-owners, observed plaintiff placing her
face very close to a computer screen when looking at it [Doc. 15-4 at ¶¶ 2—3]. Dr.
Coleman mentioned her observation and plaintiff responded by stating that she had a
2
degenerative retinal condition and that she would be blind in ten years [Id. at ¶ 3]. 1 Dr.
Coleman asked plaintiff to “let us know when she reached the point that she could not
function” [Id.]. Dr. Coleman reported her concern and her conversation with plaintiff to
Dr. Candace Robertson, who was then the chair of the personnel committee for Maryville
Anesthesiologists [Doc. 15-2 at p. 22]. Dr. Robertson thereafter monitored plaintiff more
closely when she was placing a patient under anesthesia or bringing a patient out of
anesthesia [Id. at p. 23].
In late October 2015, two other physicians reported concerns about plaintiff’s
performance to Dr. Robertson. On October 25, 2015, Dr. Gaelan Luhn sent an e-mail to
Dr. Robertson describing a comment from plaintiff that she could not read a record of a
patient’s anesthesia history – “I can’t read that” [Doc. 15-11 at ¶ 5, p. 4]. Dr. Luhn did not
follow up on plaintiff’s comment because the morning surgery schedule was very busy
[Id.].
On October 28, 2015, Dr. Daniela Apostoaei sent a memo to Dr. Robertson
describing two occasions when plaintiff responded to questions about whether preoperative blood results were within normal limits by stating, “I cannot see that” [Doc. 1511 at ¶ 6, p. 5]. Dr. Apostoaei was concerned that plaintiff “did not take any further
necessary steps to ensure that those blood work results where [sic] acceptable before
proceeding with surgery” [Doc. 15-11 at p. 5]. Dr. Apostoaei also advised that two nurses
1
Plaintiff states that she has to hold paperwork close to her eyes and it takes her longer to focus,
but she disputes that she ever told anyone she would be blind in ten years “because that is not true”
[Doc. 24-3 at ¶ 11].
3
reported that plaintiff “does not appear to see the monitor to document the vitals” [Id.]. 2
Plaintiff admits that she was unable to read the patient record, but she claims that Dr.
Apostoaei asked her for the exact readings from the blood work, not simply whether the
results were within normal limits [Doc. 24-3 at ¶ 14]. According to plaintiff, she responded
that she did not recall the exact number, not that she could not see it. She further claims
she had already confirmed the blood work results were within an acceptable range before
proceeding with surgery [Id.].
On October 30, 2015, Dr. Robertson and another physician, Dr. Wilma Proffitt, met
with plaintiff and described the concerns that had been expressed regarding her ability to
read records and monitors [Doc. 15-11 at ¶ 7]. They emphasized that these issues – reading
records and monitors – impacted patient care and safety [Doc. 15-11 at p. 6]. Plaintiff
responded that she felt her vision was stable and that she could perform her job duties [Id.].
She commented that she had known about her eye condition for about ten years and that
she was followed by an ophthalmologist in Chattanooga [Id.]. Plaintiff also stated that she
had disability insurance [Doc. 15-11 at p. 6]. The doctors instructed plaintiff to ask for
help with any record she could not read [Id.]. Drs. Robertson and Proffitt asked plaintiff
to follow up with her ophthalmologist and provide them with “an objective assessment of
her vision,” which she agreed to do [Doc. 15-11 at p. 6]. 3 However, plaintiff never
2
The nurses, Deborah Everett and Markie Williams, were employed by the Hospital [Doc. 15-6 at
¶¶ 2—3; Doc. 15-12 at ¶¶ 2—4].
3
Plaintiff describes this request as a “fool’s errand” and “pointless” because Dr. Robertson’s email summary of the October 30 meeting to the other physicians opined that “[w]e all know that
an ophthalmologist is not going to ‘clear’ her to do anesthesia” [Doc. 24 at pp. 6, 18; Doc. 15-11
at p. 6].
4
provided her employer with a report from her ophthalmologist or any other treatment
provider [Doc. 24-1 at pp. 64—65].
Several CRNAs testified that it was “common knowledge” that plaintiff had issues
with her vision [Doc. 15-3 at ¶ 7; Doc. 15-5 at ¶ 3; Doc. 15-13 at ¶ 3]. There is evidence
that other CRNAs and Hospital staff expressed concerns over plaintiff’s ability to read
monitors and patient records and some of those concerns were relayed to the physicians
[Doc. 15-6 at ¶ 3; Doc. 15-10 at ¶¶ 7—8; Doc. 15-12 at ¶ 4]. Two of the Hospital’s surgeons
requested that plaintiff not work in their operating room due to concerns about her vision
[Doc. 15-2 at p. 30].
On January 2, 2016, Dr. Proffitt sent Dr. Robertson an e-mail describing concerns
from operating room staff that plaintiff could not see and read the monitors [Doc. 15-11 at
¶ 9, p. 7]. Dr. Proffitt also described an incident involving a patient on a fracture table in
which the patient began to wake up too soon and moved, thus almost causing the patient to
fall from the table [Doc. 15-10 at ¶¶ 4—5; Doc. 15-11 at ¶ 10, p. 7]. A fracture table is
thin, narrow operating table that allows the surgeon to stand very close to the affected area
[Doc. 15-11 at ¶ 10]. Because the fracture table is so thin, safety protocols require that the
patient remain asleep until transferred off of the table [Doc. 15-11 at ¶ 10]. Plaintiff admits
that the patient in question did move; fortunately, other staff members reacted and
prevented the patient from falling [Doc. 15-10 at ¶ 4]. Registered Nurse Charles Price
5
reported this incident to Dr. Proffitt in late December 2015 [Doc. 19-1 at ¶ 7; Doc. 19-2 at
¶ 3]. 4
On January 5, 2016, Dr. Luhn related to Dr. Robertson an incident in which plaintiff
had not adequately sedated a patient prior to a robotic surgery [Doc. 15-11 at ¶ 11, p. 8].
Another CRNA, Lisa Green, entered the robotic surgery room to give plaintiff a break
[Doc. 15-7 at ¶¶ 6—7]. Ms. Green became very concerned when she observed that the
patient had four twitches, or movements, and she “dosed the patient right away” [Id. at ¶
7]. A patient having robotic surgery should have zero twitches; four twitches is the highest
level that CRNAs measure [Doc. 15-7 at ¶ 5]. 5 It is very dangerous for a patient to not be
adequately relaxed before a robotic surgery because the robot is rigid and does not move
[Doc. 15-7 at ¶ 4; Doc. 15-11 at ¶ 12]. If a patient moves during a robotic procedure, the
patient can be seriously injured [Id.].
Ms. Green reported to Dr. Luhn, the free
anesthesiologist on duty that day, that the patient had four twitches [Doc. 15-7 at ¶ 8; Doc.
15-9 at ¶ 3]. When Dr. Luhn entered the room an hour later, he observed that the patient
again had four twitches, thus the paralytic agent had begun to wear off [Doc. 15-9 at ¶ 3].
4
Although the parties initially disputed whether this surgery occurred in October or December
2015, it now appears that they agree this incident happened in October. There is some dispute
whether the patient was male or female. It does not appear disputed, however, that Mr. Price
reported this incident to Dr. Proffitt in December 2015 and it came to Dr. Robertson’s attention in
January 2016.
5
By way of explanation, plaintiff states that a twitch monitor is attached to the patient and a
machine sends a stimulant to the patient and records the patient’s reaction to the stimulant [Doc.
24-3 at ¶ 17]. A patient in complete paralysis will have zero twitches but may have up to four
twitches as the paralytic wears off [Id.]. Plaintiff also notes that the machine only reads the number
of twitches every 15 minutes, so a patient may go from zero to four twitches between readings
[Id.]. Because of this, on occasions when she has relieved another CRNA and the patient had four
twitches, plaintiff contends that a patient with four twitches was not considered a serious problem
by her, the surgeon, or anyone else, and was not evidence of a clinical error [Id. at ¶ 18].
6
Dr. Luhn brought this to plaintiff’s attention and she responded that there are different ways
of doing things [Doc. 15-9 at ¶ 3]. 6
On January 8, 2016, Dr. Apostoaei reported to Dr. Robertson that plaintiff wrote the
wrong dosage of medicine on a patient record [Doc. 15-11 at ¶ 13, p. 9]. A nurse caught
the error and corrected it [Doc. 15-11 at p. 9]. Plaintiff admits this error [Doc. 15-1 at pp.
13—14].
At the January 13, 2016 monthly meeting of the physician-owners, those present
discussed the recent surgical incidents involving plaintiff and the issues with her sight
reported from Hospital employees [Doc. 15-11 at ¶ 15]. Dr. Luhn described the robotic
surgery incident and the physicians discussed the comments from operating room staff
regarding plaintiff’s inability to see monitors or read records [Id.]. The physician-owners
who were not present were called and informed of the concerns [Id.]. Because of plaintiff’s
clinical errors, particularly the two surgical incidents, the physician-owners concluded that
plaintiff could not provide safe and appropriate patient care and they voted unanimously to
discharge plaintiff [Id.]. Dr. Robertson opines that clinical errors, such as bringing
someone out of anesthesia too soon or failing to ensure a patient is fully relaxed during a
robotic surgery, are different than having difficulty reading records or information on a
monitor [Doc. 15-11 at ¶ 14]. Clinical errors demonstrate a lack of clinical knowledge or
judgment or both [Id.].
6
Plaintiff disputes when Dr. Luhn entered the surgery room and whether Ms. Green had “dosed
the patient.”
7
On January 14, 2016, Drs. Luhn and Shivers met with plaintiff and told her that
Maryville Anesthesiologists was ending her employment [Doc. 15-1 at pp. 13—15]. When
plaintiff asked why, Dr. Luhn referenced the fracture table and robotic surgery incidents,
as well as her charting of the wrong dose of morphine [Id.]. Plaintiff asked them to
reconsider the decision and Dr. Luhn stated that he would speak to the other physicians
again [Id. at p. 14]. On January 18, 2016, plaintiff e-mailed Dr. Robertson and inquired
about her employment status [Doc. 15-14]. Dr. Robertson confirmed that plaintiff’s last
day of employment was January 14 and that the fracture table and robotic surgery incidents
were the reasons for her termination [Id.].
On January 14, 2016, Dr. Proffitt instructed Crystal Aycocke, a CRNA who assisted
the group with scheduling, to notify the other CRNAs that plaintiff was no longer employed
with Maryville Anesthesiologists and the other CRNAs would have to cover additional
shifts due to her departure [Doc. 15-3 at ¶¶ 4—5]. Neither Dr. Proffitt nor any other
physician told Ms. Aycocke the reason why plaintiff was no longer employed [Doc. 15-3
at ¶ 5, 10]. That evening, Ms. Aycocke sent the following e-mail to the other CRNAs:
As most of you know, Paula 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 OR 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. She 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 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.
8
[Doc. 15-3 at p. 2]. Ms. Aycocke drafted the e-mail based on her own opinion without
input from the physicians or any pre-approval [Doc. 15-3 at ¶¶ 6, 10—11].
The record contains evidence that Maryville Anesthesiologists has discharged two
other CRNAs who, in their opinion, lacked the clinical skills necessary for the job [Doc.
15-8 at ¶ 3; Doc. 15-11 at ¶¶ 17—18]. Neither Camille Fritz nor David Kinlaw were given
warnings or other progressive discipline prior to their terminations [Id.]. Dr. Robertson
stated that the practice does not utilize progressive corrective action when a CRNA displays
a lack of clinical skills or judgment because the CRNAs must function independently [Doc.
15-11 at ¶ 19]. If they cannot do so safely, they create a risk for patients in a very vulnerable
position [Id.].
II.
Plaintiff’s Expert Report
In support of her opposition to summary judgment, plaintiff has filed the Declaration
and Expert Report of Jennifer W. Hultz [Doc. 24-8], a CRNA who has opined on plaintiff’s
actions in the two contested surgical cases and whether her actions complied with the
appropriate standard of care for CRNAs. In the reply brief, Maryville Anesthesiologists
argues that Ms. Hultz’s expert report should be excluded in considering the motion for
summary judgment [Doc. 26 at pp. 5—8]. Defendant does not challenge Ms. Hultz’s
qualifications to provide expert testimony. Instead, defendant argues that the testimony is
not helpful or necessary for the jury to understand the facts and that the testimony regarding
the standard of care is not relevant or helpful [Id.]. Plaintiff has not responded to
defendant’s request to exclude the expert report.
9
In her declaration, Ms. Hultz concludes that “there is reason to doubt Maryville
Anesthesiologists new version of what happened in the robotic surgery on January 5, 2016”
[Doc. 24-8 at ¶ 11]. Ms. Hultz also describes Mr. Price’s confusion as to when the fracture
table surgery occurred as “very difficult to accept” [Id. at ¶ 21]. Ms. Hultz concludes that
“nothing in this case suggests any legitimate basis to doubt [plaintiff’s] ability to practice
safe anesthesia care for patients” [Id. at ¶ 26]. In her expert report, Ms. Hultz opines that
plaintiff’s actions in the two surgical incidents “were in all respects appropriate,
reasonable, and consistent with the standard of care applicable to CRNAs in Tennessee,
and none of Paula Babb’s actions in either instance should have subjected her to discipline,
much less termination, by her employer” [Doc. 24-8 at p. 10]. Ms. Hultz also concludes
that “Ms. Babb’s actions in the two instances described above could not legitimately have
been the basis for her termination, because her actions did not fall outside the standard of
care” [Id. at p. 12]. 7
Fed. R. Evid. 702 permits the consideration of expert testimony “if (1) the testimony
is based upon sufficient facts or data, (2) the testimony is the product of reliable principles
and methods, and (3) the witness has applied the principles and methods reliably to the
facts of this case.” The Court must ensure “that an expert’s testimony both rests on a
reliable foundation and is relevant to the task at hand.” Daubert v. Merrell Dow Pharm.,
Inc., 509 U.S. 579, 597 (1993). The relevancy prong, at issue here, requires that the expert
7
The Court notes that Ms. Hultz’s declaration also contains certain technical opinions regarding
anesthesia care which are not directly pertinent to defendant’s challenge of her testimony for
purposes of the pending motion [see Doc. 24-8 at ¶¶ 13—16].
10
testimony assist the trier of fact. Id. at 591. Particularly relevant here, “it is well-settled
that the Court should not admit testimony that is directed solely to lay matters which a jury
is capable of understanding and deciding without the expert’s help. …Although an expert
may opine on an issue of fact within the jury’s province, he may not give testimony stating
ultimate legal conclusions based on those facts.” Wilhoite v. Bi-Lo, LLC, No. 3:06-CV-32,
2007 WL 5117410, at *2 (E.D. Tenn. June 29, 2007).
First, the statements in Ms. Hultz’s declaration which question the credibility of
other witnesses are not appropriate for consideration on a motion for summary judgment.
See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986) (the court may not weigh
the evidence or make credibility judgments). It is the province of the jury to assess the
credibility of witnesses and the jury is capable of determining which witnesses are
believable and which are not. Smith v. Jones, 721 F. App’x 419, 423 (6th Cir. 2018)
(“[e]xperts may not testify about the credibility of other witnesses”).
Second, Ms. Hultz’s statements that plaintiff’s actions should not have subjected
her to discipline or termination and that they were not a “legitimate” basis for her
termination are also improper. While these opinions are couched in terms of whether
plaintiff performed properly in the two surgical cases, the statements are really telling the
jury what result to reach. By opining whether defendant’s stated reason for termination
was pretextual or not, these statements invade the province of the jury by stating the
ultimate legal question. Wilhoite, 2007 WL 5117410, at *2; see Brightwell v. Bandera
Cty., No. SA-16-CA-1216-XR, 2017 WL 5346393, at *8 (W.D. Tex. Nov. 13, 2017)
(expert opinions as to whether employer had a legitimate non-discriminatory reason for
11
terminating plaintiff improperly invade the province of the jury); Trentham v. Hidden
Mountain Resorts, Inc., No. 3:08-CV-23, 2010 WL 11519874, at *3 (E.D. Tenn. Jan. 15,
2010) (human resources expert opinion as to the employment actions taken is “the very
task with which the jury is charged”). Accordingly, the Court agrees with Maryville
Anesthesiologists and Ms. Hultz’s declaration and expert report will not be considered in
ruling on the pending motion.
III.
Standard of Review
Summary judgment under Rule 56 of the Federal Rules of Civil Procedure is proper
“if the movant shows that there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The moving party bears
the burden of establishing that no genuine issues of material fact exist. Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986); Moore v. Philip Morris Cos., 8 F.3d 335, 339 (6th Cir.
1993). All facts and all inferences to be drawn therefrom must be viewed in the light most
favorable to the non-moving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986); Burchett v. Kiefer, 310 F.3d 937, 942 (6th Cir. 2002). “Once
the moving party presents evidence sufficient to support a motion under Rule 56, the
nonmoving party is not entitled to a trial merely on the basis of allegations.” Curtis
Through Curtis v. Universal Match Corp., 778 F. Supp. 1421, 1423 (E.D. Tenn. 1991)
(citing Celotex, 477 U.S. 317). To establish a genuine issue as to the existence of a
particular element, the non-moving party must point to evidence in the record upon which
a reasonable finder of fact could find in its favor. Anderson v. Liberty Lobby, Inc., 477
12
U.S. 242, 248 (1986). The genuine issue must also be material; that is, it must involve
facts that might affect the outcome of the suit under the governing law. Id.
The Court’s function at the point of summary judgment is limited to determining
whether sufficient evidence has been presented to make the issue of fact a proper question
for the factfinder. Id. at 250. The Court does not weigh the evidence or determine the truth
of the matter. Id. at 249. Nor does the Court search the record “to establish that it is bereft
of a genuine issue of material fact.” Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479—
80 (6th Cir. 1989). Thus, “the inquiry performed is the threshold inquiry of determining
whether there is a need for a trial—whether, in other words, there are any genuine factual
issues that properly can be resolved only by a finder of fact because they may reasonably
be resolved in favor of either party.” Anderson, 477 U.S. at 250.
IV.
Analysis
Plaintiff’s complaint asserts four claims: (1) disability discrimination under the
ADA [Doc. 1 at ¶¶ 48—54]; (2) violation of ADA confidentiality [Id. at ¶¶ 55—60]; (3)
invasion of privacy [Id. at ¶¶ 61—64]; and (4) interference with prospective employment
[Id. at ¶¶ 65—71]. Maryville Anesthesiologists moved for summary judgment on all
claims [Doc. 14]. In response, plaintiff concedes that summary judgment is appropriate on
Counts Two through Four [Doc. 24 at p. 14, n.16]. Accordingly, the Court will address the
only remaining claim: whether summary judgment is appropriate on plaintiff’s claim of
disability discrimination.
13
A.
Prima Facie Case
The ADA prohibits covered employers from discriminating against qualified
individuals with a disability. 42 U.S.C. § 12112 (2009). A plaintiff may prove that she
was discriminated against based on her disability either through direct or indirect evidence.
Hedrick v. W. Reserve Care Sys., 355 F.3d 444, 453 (6th Cir.), cert. denied, 543 U.S. 817
(2004). Plaintiff has presented no direct evidence of disability discrimination so her claims
must be reviewed under the McDonnell Douglas burden-shifting framework. Id. at 452—
53. To state a prima facie case of discrimination under the ADA, the plaintiff must
establish that: (1) she is disabled; (2) she was otherwise qualified for the position, with or
without reasonable accommodation; (3) she suffered an adverse employment decision; (4)
the employer knew or had reason to know of her disability; and (5) the disabled individual
was replaced. Ferrari v. Ford Motor Co., 826 F.3d 885, 894 (6th Cir. 2016); Whitfield v.
Tennessee, 639 F.3d 253, 259 (6th Cir. 2011). Furthermore, the plaintiff’s disability must
be a “but for” cause of the adverse employment action. Tennial v. United Parcel Serv.,
No. 15-6356, 2016 WL 6156315, at *7 (6th Cir. Oct. 24, 2016); Lewis v. Humboldt
Acquisition Corp., 681 F.3d 312, 318 (6th Cir. 2012) (en banc).
The plaintiff may establish the first prong of the prima facie case if the plaintiff is
regarded by an employer as having a physical or mental impairment that substantially limits
one or more of the plaintiff's major life activities (“regarded as disabled”). 8 Gruener v.
8
In addition to the “regarded as” definition, the ADA definition of “disability” includes (1) an
individual with a physical or mental impairment that substantially limits one or more major life
activities or (2) an individual who has a record of such an impairment. 42 U.S.C. § 12102(1)(A)(B) (2009). Neither of these additional definitions are at issue in this case.
14
Ohio Cas. Ins. Co., 510 F.3d 661, 664 (6th Cir. 2008) (citing Sullivan v. River Valley Sch.
Dist., 197 F.3d 804, 810 (6th Cir. 1999)) (quotations omitted); see also 42 U.S.C. §§
12102(1)(C) (2009). Major life activities include “caring for oneself, performing manual
tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking,
breathing, learning, reading, concentrating, thinking, communicating, and working.” 42
U.S.C. § 12102(2)(A) (2009). Neither party addresses which of plaintiff’s major life
activities is limited, but the Court assumes that “seeing” is the major life activity at issue. 9
An employee is “regarded as” disabled under the ADA if his or her employer (1)
mistakenly believes that the employee has a physical impairment that substantially limits
one or more major life activities, or (2) mistakenly believes that an actual, non-limiting
impairment substantially limits one or more major life activities. Ferrari, 826 F.3d at 893;
see 42 U.S.C. § 12102(3)(A) (2009) (“[a]n individual meets the requirement of ‘being
regarded as having such an impairment’ if the individual … has been subjected to an action
prohibited under this chapter because of an actual or perceived physical or mental
impairment whether or not the impairment limits or is perceived to limit a major life
activity”); 29 C.F.R. § 1630.2(g)(1)(iii) (2012) (“[b]eing regarded as having such an
impairment … means that the individual has been subjected to an action prohibited by the
ADA as amended because of an actual or perceived impairment that is not both ‘transitory
9
To the extent the plaintiff claims that she was regarded as disabled in the major life activity of
working, she would be required to show that she was regarded as precluded from a broad range or
class of jobs, not just her job at Maryville Anesthesiologists. See Sutton v. United Air Lines, Inc.,
527 U.S. 471, 492 (1999); Mahon v. Crowell, 295 F.3d 585, 591 (6th Cir. 2002). Plaintiff has
presented no such evidence.
15
and minor’”). “Thus, an individual may fall into the definition of one regarded as having
a disability if an employer ascribes to that individual an inability to perform the functions
of a job because of a medical condition when, in fact, the individual is perfectly able to
meet the job's duties.” Ross v. Campbell Soup Co., 237 F.3d 701, 706 (6th Cir. 2001).
Maryville Anesthesiologists argues that plaintiff was not regarded as disabled
simply because it noticed her conduct or performance issues and requested a fitness for
duty evaluation [Doc. 15 at pp. 14—17]. Defendant argues the October 2015 meeting with
plaintiff and Drs. Proffitt and Robertson was a reasonable response to reported concerns
from other physicians and staff who worked directly with plaintiff. Further, the discharge
decision was based on two surgical incidents and a charting mistake which led the
physician-owners to conclude that plaintiff could not provide safe and appropriate patient
care. Regarding the e-mail from Ms. Aycocke, defendant notes that she was not a decisionmaker and therefore her e-mail comments are irrelevant. Defendant also argues that
plaintiff cannot show a causal connection between her perceived disability and her
termination [Id. at pp. 17—18].
In response, plaintiff points to Dr. Robertson’s testimony that she asked plaintiff
about disability insurance in the October meeting because Dr. Robertson believed plaintiff
“might have a disability” [Doc. 24 at p. 17]. Plaintiff relies on Dr. Coleman’s statement to
Dr. Robertson that plaintiff would be blind in ten years, something plaintiff claims she
never said, and to the concerns about her vision reported from other CRNAs as evidence
of how she was perceived [Id.]. Plaintiff also points to Ms. Aycocke’s e-mail statement
that plaintiff had “major issues with her eyesight” that “seemed to be getting even worse”
16
[Doc. 24 at p. 17]. Finally, plaintiff relies on Dr. Robertson’s admission that concerns
about plaintiff’s vision were discussed at the meeting when the decision to terminate was
made [Id. at p. 18]. Plaintiff further argues that this evidence is sufficient to show that the
perception of her vision was a “but for” cause of her termination [Id. at pp. 18—19].
Defendant emphasizes prior “regarded as” cases from the Sixth Circuit where the
court held that an employer does not regard an employee as disabled by directing the
employee to undergo a fitness for duty examination. In Sullivan v. River Valley Sch. Dist.,
a long-term teacher began engaging in odd and disruptive behavior and the district
superintendent became concerned about the plaintiff’s fitness for duty. 197 F.3d 804,
808—09 (6th Cir. 1999), cert. denied, 530 U.S. 1262 (2000).
After an informal
consultation with a psychologist, the superintendent recommended and the school board
accepted the recommendation that the plaintiff undergo mental and physical fitness-forduty examinations. Id. at 809. The plaintiff refused to do so and was eventually terminated
for various acts of misconduct and insubordination. Id. at 810. The Sixth Circuit held that
the employer’s request for the employee to undergo a medical exam “is not enough to
suggest that the employee is regarded as … disabled.” Id. “A request that an employee
obtain a medical exam may signal that an employee’s job performance is suffering, but that
cannot itself prove perception of a disability because it does not prove that the employer
perceives the employee to have an impairment that substantially limits one or more of the
employee’s major life activities.” Id. at 811. “[E]xpressing concern over an employee’s
job performance does not show that an employer regards an employee as having a disability
that substantially limits a major life activity.” Id.
17
The Sixth Circuit reaffirmed the Sullivan holding after the 2008 amendments to the
ADA. In Pena v. City of Flushing, 651 F. App’x 415, 418—19 (6th Cir. 2016), the plaintiff
was fired after refusing to attend a medical examination for returning to work after a
medical leave. Noting that the “regarded as” definition of the ADA was expanded by the
2008 amendments to the ADA, the Court nevertheless affirmed the holding in Sullivan. Id.
at 420. The Court rejected the argument that referring an employee for a fitness for duty
examination when the employer is aware of the employee’s medical condition is a per se
“regarded as” violation of the ADA. Id. Rather, Congress made a “policy choice” when
it permitted employers to request a fitness for duty examination so long as the exam was
“job-related and consistent with business necessity.” Id. Thus, both Sullivan and Pena
require the conclusion that defendant’s request that plaintiff provide them with “an
objective assessment of her vision” from her ophthalmologist, without more, is not
evidence that defendant regarded her as disabled.
As noted by the Sixth Circuit, whether a plaintiff was “regarded as” disabled is “a
question embedded almost entirely in the employer’s subjective state of mind” such that
proving the case becomes extraordinarily difficult.”
Ross, 237 F.3d at 709.
Mere
knowledge of an employee’s health problems is not enough to show that the employee was
regarded as disabled. See Wolfe v. U.S. Steel Corp., 567 F. App’x 367, 374 (6th Cir. 2016);
Simpson v. Vanderbilt Univ., 359 F. App’x 562, 568 (6th Cir. 2009); Brohm v. JH Props.,
Inc., 149 F.3d 517, 522 (6th Cir. 1998) (“evidence that an employer knows that an
employee has a disability is not enough to establish that this knowledge was the basis for
termination”). It is undisputed that Maryville Anesthesiologists was aware of plaintiff’s
18
vision issue based on her early conversation with Dr. Coleman, the October 2015 meeting
with Drs. Proffitt and Robertson, and the concerns reported by other CRNAs and Hospital
employees. But knowledge of her health condition is not enough to show that plaintiff was
regarded as disabled without evidence that this knowledge was the basis for her
termination.
Although she has not tied it specifically to her prima facie case or her arguments on
pretext, plaintiff has submitted a copy of her draft performance evaluation [Doc. 24-11]. It
is undisputed that this evaluation was not completed prior to her termination. Per Dr.
Robertson’s testimony, the physician-owners submitted their comments and evaluations of
employees through a confidential web-based program [Doc. 15-2 at pp. 26—27].
Plaintiff’s incomplete evaluation included the following comments:
• “not in her control-her vision”
• “I see her questionable ability to see to reflect on how surgeons and
the medical staff lack accepting her and thus not want to work with
her in the OR. She should be willing to be truthful in times when it is
difficult to read medical records.”
• “concerned about her eyesight”
• “worried about her eyesight”
[Doc. 24-11 at p. 3]. These comments reflect an awareness of her health condition, which,
as noted, is not enough to show that the employee was regarded as disabled. Wolfe, 567 F.
App’x at 374; Simpson, 359 F. App’x at 568; Brohm, 149 F.3d at 522. Further, these
comments express concern about plaintiff’s ability to perform her job as a CRNA, but they
19
do not show any perception about the impact of her condition on her daily life. “[T]he
Court’s focus in the regarded as disabled inquiry is not on the defendant’s belief about the
plaintiff’s ability to perform functions on the job, but rather the defendant’s belief about
‘the effect of the impairment on the individual’s daily life.’” Dunaway v. Ford Motor Co.,
134 F. App’x 872, 878 (6th Cir. 2005) (quoting E.E.O.C. v. DaimlerChrysler Corp., 111
F. App’x 394, 399 (6th Cir. 2004)). Thus, the draft performance review comments do not
show that she was regarded as disabled.
Plaintiff also relies on Ms. Aycocke’s e-mail to the CRNAs that plaintiff had “major
issues with her eyesight” that “seemed to be getting even worse” as evidence that defendant
regarded her as disabled [Doc. 15-3 at p. 2]. Ms. Aycocke states that she composed the email herself without input from or review by any of the physician-owners [Doc. 15-3 at ¶¶
6, 11] and there is no dispute that she was not a decision-maker with regard to plaintiff’s
termination. See Rowan v. Lockheed Martin Energy Sys., Inc., 360 F.3d 544, 550 (6th Cir.
2004). Thus, Ms. Aycocke’s e-mail is not attributable as a statement by the employer as
evidence that plaintiff was regarded as disabled.
Finally, plaintiff emphasizes Dr. Robertson’s admission that she asked whether
plaintiff had disability insurance at the October 2015 meeting because plaintiff “might have
a disability” [Doc. 15-2 at p. 14] and defendant’s acknowledgement that concerns
regarding plaintiff’s vision were discussed at the termination meeting. Defendant has
emphasized that, although plaintiff’s vision was discussed at the termination meeting, it
was not a reason for her termination. Because the burden of establishing a prima facie case
should not be “onerous,” Ferrari, 826 F.3d at 894, the Court finds that these facts are some
20
evidence to satisfy the first prong of a prima facie case, i.e., that she was regarded as
disabled.
Defendant next argues that plaintiff cannot show a causal connection between her
perceived disability and her termination [Doc. 15 at pp. 17—18]. Defendant contends
neither the October 2015 meeting nor Ms. Aycocke’s e-mail establish a causal connection.
As with the “regarded as” prong, plaintiff emphasizes Ms. Aycocke’s e-mail and
the admission that the physician-owners discussed plaintiff’s vision at the termination
meeting [Doc. 24 at pp. 18—20]. In reply, defendant contends that the two surgical
incidents were errors in clinical judgment and not as a result of any issue with her vision
[Doc. 26 at pp. 2—3]. Thus, defendant contends there is no evidence that plaintiff’s vision
was a “but for” cause of her termination.
The Court agrees with plaintiff. Dr. Robertson’s belief that plaintiff “might have a
disability” and the admission that the defendant discussed her vision impairment during
the meeting to terminate her employment is some evidence that the decision, at least in
part, was “because of” her vision. Thus, there is a question of fact as to whether plaintiff
can establish a causal connection between her perceived vision impairment and her
termination.
B.
Whether Defendant’s Legitimate Non-Discriminatory Reason is Pretextual
Once the plaintiff has established a prima facie case, the burden of production shifts
to the defendant to present evidence of a legitimate, non-discriminatory reason for the
termination. Hedrick, 355 F.3d at 453. Because of the fracture table and robotic surgery
incidents, Maryville Anesthesiologists concluded that plaintiff demonstrated a lack of
21
clinical skill or judgment and that she could not provide safe and appropriate patient care
[Doc. 15 at pp. 18—19; Doc. 15-11 at ¶¶ 14—15]. Plaintiff does not really dispute that
these are legitimate, non-discriminatory reasons, but instead argues that these reasons are
pretext for discrimination [Doc. 24 at pp. 20—25]. The Court agrees that defendant has
presented a legitimate, non-discriminatory reason for plaintiff’s termination. See DiGiosia
v. Aurora Health Care, Inc., 48 F. Supp. 3d 1211, 1221 (E.D. Wis. 2014) (“[i]t is difficult
to think of a more important consideration than patient safety for a health care provider”).
To survive a motion for summary judgment, plaintiff need not definitively prove
that the defendant’s reason is pretextual, but rather “must prove only enough to create a
genuine issue as to whether the rationale is pretextual.” Ferrari, 826 F.3d at 895; Whitfield,
639 F.3d at 260. Plaintiff can show pretext in three interrelated ways: (1) that the proffered
reasons had no basis in fact, (2) that the proffered reasons did not actually motivate the
employer's action, or (3) that they were insufficient to motivate the employer's action.
Kocsis v. Multi-Care Mgmt., Inc., 97 F.3d 876, 883 (6th Cir. 1996). The Sixth Circuit has
cautioned against a formulaic application of this test and described pretext as “a
commonsense inquiry: did the employer fire the employee for the stated reason or not?
This requires a court to ask whether the plaintiff has produced evidence that casts doubt on
the employer’s explanation, and, if so, how strong it is. ... [A]t bottom the question is
always whether the employer made up its stated reason to conceal intentional
discrimination.” Chen v. Dow Chemical Co., 580 F.3d 394, 400 n.4 (6th Cir. 2009); see
E.E.O.C. v. Ford Motor Co., 782 F.3d 753, 767 (6th Cir. 2015) (“[t]o demonstrate pretext,
22
a plaintiff must show both that the employer’s proffered reason was not the real reason for
its action, and that the employer’s real reason was unlawful”) (emphasis in original).
Plaintiff argues that the two surgical incidents relied on by defendant are insufficient
to explain her termination, i.e., the third avenue for showing pretext [Doc. 24 at pp. 21—
25]. Plaintiff contends there are several disputed facts regarding both surgeries and that
these inconsistencies, along with the admission that plaintiff’s vision was discussed at the
termination meeting, are sufficient to show pretext [Id.].
In reply, defendant emphasizes that plaintiff’s termination was based on the
information it had at the time, even if some of that information later turned out to be
incorrect, i.e., the “honest belief” rule [Doc. 26 at pp. 3—5]. Defendant further contends
that, even if plaintiff’s vision was discussed at the termination meeting, it does not mean
that the physician-owners are lying about their reasoning and does not cast doubt on the
honesty of their stated reasons [Id. at pp. 4—5].
Regarding the fracture table surgery, plaintiff contends that Mr. Price, who reported
the incident to defendant, is confusing two surgeries [Doc. 24-3 at ¶ 5]. Plaintiff claims
that the fracture table patient Mr. Price described was female, rather than male. She recalls
that this surgery was problem-free, even though the case was complex due to the patient’s
obesity [Id. at ¶¶ 3, 6]. Plaintiff recalls a second fracture table surgery involving a male
patient who began to move after she had given a reversing agent to allow him to start
breathing on his own, but there was no “near fall” as described by Mr. Price [Id. at ¶¶ 4,
7]. Plaintiff also makes much of the fact that Mr. Price and Dr. Robertson testified that the
fracture table incident occurred during a weekend in December 2015. Mr. Price has since
23
corrected his testimony to acknowledge that the surgery occurred in October 2015 [Doc.
19-1 at ¶ 5].
Regarding the robotic surgery, plaintiff claims she had not given the patient a
muscle relaxant because the robot was not docked; her practice, which she followed in the
January 5, 2016 surgery, was not to provide muscle relaxant to paralyze the patient until
almost immediately before the surgery began [Doc. 24-3 at ¶ 22]. She claims that Dr. Luhn
did not enter the surgery room after the surgery had begun [Id. ¶ 21]. She further opines
that “there is nothing wrong with a patient having twitches before surgery and especially
before the robot is docked for surgery. In fact, allowing the patient to have twitches and
continue to have twitches can allow the CRNA to have baseline [sic] of information
regarding how the patient metabolizes the anesthesia” [Id. at ¶ 20]. In further support of
her position, plaintiff claims the surgeon did not ask for the patient to be given more
relaxation drugs and records of her work on prior robotic surgery cases were approved
without criticism [Id. at ¶¶ 23—25].
A defendant is entitled to summary judgment on the issue of pretext by showing its
“reasonable reliance on the particularized facts that were before it at the time the decision
was made.” Smith v. Chrysler Corp., 155 F.3d 799, 807 (6th Cir. 1998). “[T]he key inquiry
is whether the employer made a reasonably informed and considered decision before taking
an adverse employment action.” Id.; see Allen v. Highlands Hosp. Corp., 545 F.3d 387,
398 (6th Cir. 2008) (the inquiry is whether the employer has an “honestly held belief” that
the employee committed a terminable offense and whether the adverse decision was a
“reasonably informed and considered decision.”). The application of the honest belief rule
24
is not automatic; the plaintiff has the opportunity to present proof to the contrary. Smith,
155 F.3d at 807. However, “the plaintiff must allege more than a dispute over the facts
upon which his discharge was based. He must put forth evidence which demonstrates that
the employer did not ‘honestly believe’ in the proffered non-discriminatory reason for its
adverse employment action.” Braithwaite v. Timken Co., 258 F.3d 488, 494 (6th Cir. 2001)
(citations omitted).
At the time of the physicians’ meeting in January 2016, they were presented with
the following particularized facts:
(1) Ms. Green entered the robotic surgery room to give plaintiff a break and
observed the patient with four twitches [Doc. 15-7 at ¶ 7]. She was very concerned
and “dosed the patient” immediately [Id.]. Ms. Green also reported this to Dr. Luhn,
who was the free anesthesiologist on duty that day [Id. at ¶ 8]. After receiving Ms.
Green’s report, Dr. Luhn went to the surgery room about an hour later and observed
the patient had four twitches [Doc. 15-9 at ¶ 3]. When Dr. Luhn mentioned the
number of twitches to plaintiff, she responded that there “different ways of doing
things” [Id.]. Dr. Luhn described these events at the physicians’ meeting in January
[Id. at ¶ 4].
(2) Mr. Price reported an incident to Dr. Proffitt when a patient on a fracture
table began to awaken before the patient was moved to a regular bed because
plaintiff reversed the anesthetic too soon [Doc. 15-10 at ¶ 4]. Mr. Price also reported
this to the Hospital’s risk management group within days after it occurred [Id. at ¶
5; Doc. 19-1 at ¶ 6]. Mr. Price reported the incident to Dr. Proffitt in December
2015 and, at that time, believed the surgery had occurred in December [Doc. 19-1
at ¶ 7]. Dr. Proffitt believed that the surgery had occurred in December 2015 and
she reported this to Dr. Robertson on January 2, 2016 [Doc. 19-2 at ¶¶ 3—4; Doc.
15-11 at ¶ 9].
(3) On January 8, 2016, Dr. Apostoaei reported to Dr. Robertson that
plaintiff had written the wrong medication on a patient record [Doc. 15-11 at ¶ 13].
(4) Other CRNAs and Hospital employees had reported concerns about
plaintiff’s vision and her ability to safely perform her job [Doc. 15-6 at ¶ 3; Doc.
15-10 at ¶¶ 7—8; Doc. 15-11 at ¶ 6, 9; Doc. 15-12 at ¶ 4].
25
Thus, the information before the employer was that plaintiff had made two clinical
errors in administering (or failing to administer) anesthesia during surgery and one
medication charting error. The physicians were also aware that other employees and staff
had concerns about plaintiff’s ability to safely treat patients and that two Hospital surgeons
did not want her to practice on their patients. While plaintiff makes much of the change in
testimony by Mr. Price as to the timing of the fracture table surgery, this evidence came to
light through litigation and was not before the physicians at the time of their decision.
Moreover, the correct date of the surgery is not the salient point; the issue is whether the
physicians’ understanding of plaintiff’s actions during the surgery led them to conclude
that she did not have the clinical skill or judgment to provide safe patient care. Similarly,
plaintiff’s dispute as to when Dr. Luhn entered the robotic surgery and when the patient
showed twitches does not change what the physicians understood the facts to be at the time
of their decision. Most importantly, although plaintiff has disputed certain facts regarding
the reasons for her discharge, she has not presented evidence that Maryville
Anesthesiologists did not honestly believe those facts at the time of her termination.
Braithwaite, 258 F.3d at 494.
In sum, the evidence is that the clinical errors, based on the facts known at the time,
led the defendant to conclude that plaintiff lacked the clinical judgment to provide safe
anesthesia care to their patients.
This is a sufficient reason to terminate plaintiff’s
employment. There is no evidence that the physicians did not honestly believe these facts
or that the real reason for their decision was discrimination. Accordingly, plaintiff cannot
26
show that the stated reasons for her discharge were pretextual and summary judgment is
appropriate.
V.
Conclusion
For the reasons set forth herein, the defendant’s motion for summary judgment
[Doc. 14] is GRANTED. An appropriate order will be entered.
s/ Thomas W. Phillips
SENIOR UNITED STATES DISTRICT JUDGE
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