I Have Management Questions For A Management Lawyer.

Please note: Sending us an email will not make you a client of our Firm. Please do not send us confidential information or sensitive materials through this form.


Watch Out for “Regarding” Employees as Disabled, Even When They Are Not

Under the Americans with Disabilities Act and many state laws, an employer can’t fire a worker because it thinks the person is disabled, even when it’s wrong.  In other words, if you think they are disabled, they generally are, even when you are wrong.  Unfortunately, a medical practice in Tennessee learned this lesson the hard way.

Maryville Anesthesiologists, P.C. hired Paula Babb as a Certified Registered Nurse Anesthetist (“CRNA”).  About a month into her employment, one of the Practice’s doctors, Dr. Coleman, noticed Ms. Babb’s put her face close to the computer screen.  Babb explained she suffered from a degenerative retinal condition that made it hard for her to read certain screens and medical records.  But, she assured Dr. Coleman it did not impact her ability to do the job. Dr. Coleman then relayed this information to Dr. Robertson, an owner of the Practice, and said Babb would be blind in ten years. Babb says she never said this nor would she actually be blind. 

Dr. Coleman and Dr. Proffitt, another owner of the Practice, met with Babb regarding her condition.  Babb explained she was able do her job but that she had a degenerative eye condition.  Drs. Coleman and Proffitt assured her she was a “good fit” and “doing well” at the Practice.  They asked her to schedule an appointment with her ophthalmologist and report back which Babb agreed to do. Dr. Robertson then asked Babb if she had disability insurance because she thought maybe Babb had a disability. 

In the following months, Babb occasionally asked other CRNAs to help her read hospital monitors.  The Practice then put in her annual evaluation it was worried about her eyesight.  Separate and apart from this, the Practice also learned Babb arguably made a few errors performing her job.  The Practice then fired Babb explaining to Babb it was a result of her errors.  However, the next day, Dr. Proffitt instructed a fellow CRNA to send the below email regarding Babb’s departure:

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. 

Babb brought a “regarded as” ADA claim against the Practice arguing the real reason for her termination was not the alleged errors but rather the Practice regarded her as disabled, even though she wasn’t.  The District Court found for the Practice and the Sixth Circuit Court of Appeals reversed.  In its holding, the Court of Appeals said, in referring to the above e-mail, “[i]f 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.”  

This case and the “smoking gun” e-mail serves as a cautionary tale for employers.  First, even if an employee is not truly disabled under state or federal law, the employee can still bring a claim if the company treats one like one is disabled.  Beyond the legal issue, there is a practical note.  No employer should ever send a companywide e-mail explaining the reason for an employee’s departure was a medical condition.  This is a bad practice overall and it runs afoul of many employment laws not to mention the privacy implications.

Brody and Associates regularly provides counsel on the ADA, as well as other civil rights issues and employment laws in general.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.454.0560.  Additionally, if this article generated any additional questions for you, please contact us at info@brodyandassociates.com.  We may address your question in a future blog post.