Today, our employee’s rights lawyers present to you the case of Porter v. Dartmouth-Hitchcock Med. Ctr., 92 F.4th 129 (2d Cir. 2024), a perfect example of direct evidence of employment discrimination. In this case, when the decision maker was asked why the employee was not being retained, he pointed directly to her “being on disability” and then followed it up with an email saying that she should not be remembered as the same person as she was pre-disability. Sounds like an abundantly clear case of wrongful termination, right? Well, hold onto your hats because the District Court Judge held that this was insufficient evidence of discrimination and dismissed the lawsuit. Let’s dive into what the United States Court of Appeals for the Second Circuit had to say about that.
How do you prove discrimination and wrongful termination through direct evidence?
Direct evidence of discrimination under Title VII, the Americans with Disabilities Act (“ADA”), and the Age Discrimination in Employment Act (“ADEA”) refers to explicit or overt statements, actions, or policies that directly indicate discriminatory intent based on a protected characteristic such as race/color, gender, sexual orientation, national origin, religion, disability, and age. Direct evidence typically involves clear and unambiguous statements or conduct that explicitly demonstrate discriminatory motives or intentions. Examples of direct evidence of discrimination under Title VII may include:
- Verbal or written statements expressing bias or prejudice against individuals based on their protected characteristic (e.g., making derogatory remarks about a person’s race or gender identity).
- Explicit instructions or policies that explicitly discriminate against individuals belonging to certain protected groups (e.g., a company policy that states only individuals of a certain race or gender will be considered for promotion).
- Direct admissions of discriminatory intent by decision-makers or individuals involved in the hiring, promotion, or termination processes (e.g., stating that a candidate was not hired or fired because of their religion, disability, or national origin).
- Unequal treatment or disparate impact on employees based on their protected characteristic, evidenced by clear patterns or practices within an organization (e.g., consistently passing over female employees for promotions in favor of less qualified male candidates).
- Written or electronic communications containing discriminatory statements or directives (e.g., emails or messages that contain discriminatory language or instructions).
Direct evidence of discrimination and wrongful termination provides a straightforward basis for proving a violation of Title VII because it directly demonstrates discriminatory intent or motive, without the need for inference or interpretation.
With that said, the United States Supreme Court has held that “[t]here will seldom be ‘eyewitness’ testimony as to the employer’s mental processes.” St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 524, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). And “[e]mployers are rarely so cooperative as to include a notation in the personnel file that the firing is for a reason expressly forbidden by law,” Bickerstaff v. Vassar College, 196 F.3d 435, 448 (2d Cir. 1999). As a result of this rarity, most courts become so accustomed to utilizing an indirect methodology to divine whether there was a discriminatory intent that they can forget that direct evidence should be looked at first.
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So, what happened in Porter?
Dr. Misty Blanchette Porter, a highly esteemed physician, initiated legal proceedings against Dartmouth-Hitchcock Medical Center (DHMC) following her termination, alleging discrimination under the Americans with Disabilities Act. Dr. Porter’s tenure at DHMC spanned over two decades, during which she made significant contributions as a member of the Reproductive Endocrinology and Infertility Division (REI).
Within the REI Division, Dr. Porter excelled in various facets of reproductive medicine, including in vitro fertilization (IVF), assisted reproductive technologies (ART), and complex gynecological surgeries. Her expertise extended to radiology, where she garnered international recognition for her proficiency in interpreting gynecologic ultrasounds. Colleagues and superiors alike praised her skills, often referring to her abilities as “Misty magic.” Sharon Parent, an OB/GYN and REI nurse, testified that “there would literally be a line of OB/GYN doctors waiting to see Dr. Porter.”
In November 2015, Dr. Porter developed a cerebral spinal fluid (“CSF”) leak that caused her serious neurological problems and necessitated a medical leave. Despite encountering health challenges, Dr. Porter demonstrated resilience by gradually returning to work on a near full-time basis. Overcoming her neurological issues, she progressively resumed her full range of responsibilities, receiving accolades for her performance, including an outstanding review for a complex surgery she conducted.
Regrettably in 2017, after years of mismanagement including the hiring of problematic leadership, DHMC decided to close the REI program and terminate most of its staff, including Dr. Porter. Nurses and physicians within the department expressed the critical need for Dr. Porter’s expertise to be retained, but Dr. Leslie DeMars, who was chair of the OB/GYN Department, claimed there was no open positions. Other contradictory evidence points to staffing shortages in the OB/GYN Department.
Dr. Michelle Russell testified regarding meeting held by Dr. Edward Merrens, who was the decision-maker responsible for terminating Dr. Porter:
When he began discussing personnel, I raised my hand (I was seated towards the front) and asked Dr. Merrens why Dr. Porter had been terminated. … Dr. Merrens responded by saying that Misty was “on disability.” I specifically recall him using the word “disability” in his response, because I was so shocked that he said that.
In an email to Dr. Merrens, OB/GYN Nurse Coordinator Victoria Maxfield wrote “I hope there is a way we could still keep Dr. Porter as a non-infertility REI specialist, GYN surgeon and expert in gynecologic imaging. Her expertise and skills are greatly needed!” Dr. Merrens promptly responded to Maxfield’s email, stating in part by pointing (incorrectly) to her disability: “As you know Dr. Porter currently works at 20% of her time currently …” When Maxfield pressed further about other staff pushing to keep Dr. Porter, Dr. Merrens again pointed to her disability by stating that the inquirers asking why Dr. Porter was not being retained were “remembering Misty as a full-time employee wearing 3 hats, and not the one who has been out for almost 18 months.”
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How did the District Court mess this up?
The District Court held that the meeting and email comments could be interpreted in a non-discriminatory fashion or that the questions were misunderstood. The District Court further held that these direct statements of discrimination were insufficient because they did not form a pattern of discriminatory statements. Then the District Court dismissed the statements as insensitive and ill-advised but not proof of discrimination.
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Did the United States Court of Appeals for the Second Circuit fix this, hopefully?
Yes, thankfully, it did. The Second Circuit Court of Appeals came down hard on the District Court, starting with:
This analysis misapplied summary judgment standards in several ways. First, in finding that Dr. Merrens’s “on disability” response to the “why” question was “inconclusive,” the court applied the wrong standard for assessing evidence adduced in opposition to a motion for summary judgment. Such evidence need not be conclusive; it need only be, when viewed in the light most favorable to the claimant, sufficient to present a genuine issue as to a material fact. And if it meets that standard, it is the province of the factfinder, not the summary judgment court, to decide what to conclude.
The Second Circuit Court of Appeals further rejected the District Court’s requirement of a pattern:
Nor was the court correct in finding that Dr. Merrens’s “on disability” response was insufficient because it was not “part of a pattern of discriminatory comments by Dr. Merrens or others within the hospital.” While proof of such a pattern would provide additional support for a finding of discrimination, it was not required. … When the decisionmaker was asked “why” an employee was not being retained, his answer that she was “on disability” virtually precludes a ruling as a matter of law that disability has played no role.
Then, the Second Circuit pointed out the absurdity of the District Court’s rationale that because no manager be stupid enough to admit discrimination in front of a room of doctors, Dr. Merrens’s “on disability” must have been meant to mean something else:
the court stated that “[i]t would not be reasonable” to infer that Dr. Merrens meant what he said, because he gave that answer “before the entire OB/GYN Department.” Id. While it likely was not anticipatable that Dr. Merrens would make such a statement openly, the fact remains that there is first-hand evidence that he did. It was not within the province of the court in ruling on a motion for summary judgment to decide as a matter of law that Dr. Merrens’s statement … was not in fact responsive to the plain question that immediately preceded it.
This was not simply an appellate court telling a district court that it made a mistake. This was the United States Court of Appeals for the Second Circuit making a point, including telling the District Court that “the court refused to view in Dr. Porter’s favor a statement that on its face supported her claims,” “it invaded the province of the jury,” and “the court in fact speculated.”
With the reversal, Dr. Porter will now have the case sent back to the same District Court to preside over a jury trial regarding her wrongful termination.
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Disclaimer:
The employment discrimination and wrongful termination content provided on this blog serves for general informational purposes only and should not be considered legal advice regarding your employment rights. No attorney-client relationship is established by accessing or reading the employment law information presented on this blog. While we strive to provide accurate and up-to-date information, we make no representations or warranties regarding its completeness, accuracy, or reliability. Any reliance on the information provided is at your own risk. Additionally, the views expressed in individual blog posts are those of the author and do not necessarily reflect the views of the law firm or its attorneys. For personalized legal advice, consult with a qualified attorney familiar with the specific facts of your case. Call Spitz for a free consultation.