92 F.4th 129
2d Cir.2024Background
- Dr. Misty B. Porter was a long‑time REI physician at Dartmouth‑Hitchcock (DHMC); she developed a serious CSF leak in 2015, took medical leave, and returned part‑time with accommodations.
- While at DHMC Porter reported and caused others to report substantial patient‑safety, consent, and billing concerns about two REI physicians (Drs. Seifer and Hsu), including unnecessary procedures and possible insurance/consent violations.
- DHMC leadership decided in spring 2017 to close the REI division (citing dysfunction and staffing shortages) and terminated REI providers on June 3, 2017; DHMC did not retain Porter although OB/GYN later requested additional GYN hiring.
- At an OB/GYN meeting, Chief Clinical Officer Dr. Merrens was asked why Porter was not retained and reportedly answered she was "on disability." DHMC relied on program closure and lack of suitable positions as legitimate reasons for termination.
- Porter sued for disability discrimination (ADA and Rehabilitation Act and state law), wrongful discharge and whistleblower retaliation (New Hampshire law), and failure to accommodate; the district court granted summary judgment for DHMC on causation/pretext grounds but allowed that Porter made prima facie showings.
- The Second Circuit vacated summary judgment as to termination claims for disability discrimination and whistleblower/wrongful discharge (holding the district court misapplied summary‑judgment standards with respect to causation and pretext), but affirmed dismissal of pre‑termination accommodation/retaliation claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the district court properly assessed causation/pretext for disability‑based termination | Porter: decisionmakers relied on disability; Merrens's "on disability" remark + other evidence permits inference of but‑for causation and pretext | DHMC: closure of REI and lack of suitable positions were legitimate, non‑discriminatory reasons; no proof of but‑for causation or pretext | Court: district court misapplied summary judgment principles; vacated dismissal and remanded (genuine issues of fact exist) |
| Whether Merrens's statement that Porter was "on disability" is admissible direct evidence of discriminatory motive | Porter: Merrens's remark is direct evidence and should not be treated as inconclusive | DHMC: the comment is ambiguous/insufficient alone and other reasonable interpretations exist | Court: the comment is probative direct evidence and cannot be disregarded at summary judgment; jury may credit it |
| Whether Porter was denied a reasonable reassignment accommodation (reassignment to OB/GYN/Radiology) | Porter: OB/GYN was understaffed and sought hires; she expressed interest in non‑REI work and had the skills; reassignment was a reasonable accommodation | DHMC: no suitable vacancy; Radiology had no need; retention was not feasible | Court: fact issues as to availability and employer's process; rejection of reassignment claims reversed for trial (reasonable juror could find but‑for causation) |
| Whether Porter’s whistleblower/wrongful‑discharge claims survive (including cat’s‑paw liability based on Dr. DeMars) | Porter: her reports were protected; DeMars knew and may have retaliated or influenced Merrens (cat’s‑paw) | DHMC: ultimate decision made by Merrens who lacked knowledge; DeMars advocated retention and there is no evidence of retaliatory animus sufficient to show causation | Court: reversed as to termination claims — record permits reasonable inferences that Merrens knew, relied on DeMars, or that DeMars was the decisionmaker; cat’s‑paw and causation are jury issues |
Key Cases Cited
- McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) (burden‑shifting framework for discrimination claims)
- Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000) (courts may not weigh credibility at summary judgment; jury decides inferences)
- Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) (summary judgment standard on genuine issue of material fact)
- St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993) (direct evidence and McDonnell Douglas discussion)
- Natofsky v. City of New York, 921 F.3d 337 (2d Cir. 2019) (ADA and Rehabilitation Act causation standard is but‑for)
- Staub v. Proctor Hosp., 562 U.S. 411 (2011) ("cat's paw" liability where supervisor's bias causes adverse action through decisionmaker)
- Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252 (1977) (single act of discrimination can be actionable; pattern not required)
- Kaytor v. Electric Boat Corp., 609 F.3d 537 (2d Cir. 2010) (summary judgment review and limits on court factfinding)
- Jackan v. New York State Dep't of Labor, 205 F.3d 562 (2d Cir. 2000) (interactive process and reassignment burden in ADA cases)
- Vasquez v. Empress Ambulance Serv., Inc., 835 F.3d 267 (2d Cir. 2016) (employer liability where co‑worker/supervisor influence is attributable to employer)