“Smoke” Should Be Enough to Get to a Jury, Let Alone a Smoking Gun

The Sixth Circuit’s opinion in Babb v. Maryville Anesthesiologists P.C. draws attention to the troubling and pervasive trend of misapplying the summary judgment standard under Rule 56 of the Federal Rules of Civil Procedure to plaintiffs in employment discrimination cases.[1]

Babb, an anesthesiology nurse, filed a lawsuit claiming that her former employer, Maryville Anesthesiologists, P.C. violated the Americans with Disabilities Act’s (“ADA”) “regarded as” provision[2] when it terminated her employment based on its erroneous belief that she was visually disabled, while, in fact, she was not visually disabled. [3] Maryville claimed that it fired Babb for a legitimate, nondiscriminatory reason, relying on two alleged “clinical errors.”[4] Maryville moved for summary judgment.[5] The federal district court in the Eastern District of Tennessee entered an order excluding the plaintiff’s expert witness report that opined the “clinical errors” alleged by the employer did not violate the standard of care for a Certified Registered Nurse Anesthetist (“CRNA”) and granted summary judgment in favor of the employer on plaintiff’s claim for employment discrimination under the ADA.[6] Relying on the “honest belief doctrine”[7], the district court found that no genuine issues of material fact existed as to whether the employer acted pretextually.[8] Babb appealed the district court’s decision.[9] The Sixth Circuit reversed the district court’s grant of summary judgment because the district court “overlooked too many genuine factual issues” and also “improperly excluded expert testimony favorable to Babb.”[10]

The Sixth Circuit’s analysis of the standard for summary judgment motions in employment discrimination cases is instructive. At the outset, the court states that under Rule 56(a), summary adjudication is proper when “the movant shows there is no genuine dispute as to any material fact.”[11] Notably, it cautions that courts are precluded from “weighing the evidence and determin[ing] the truth of the matter” and that their inquiry is limited to whether the evidence demonstrates that genuine disputes of material fact exist or “is so one-sided” that a reasonable juror could not possibly find in favor of the opposing party.[12]

An employee claiming a violation of the ADA’s “regarded as” provision must show that (1) the employer “regarded” them as disabled; and (2) the employer discharged them because of this belief (in other words, they would not have been terminated “but for” the employer’s perception that they were disabled).[13] To survive a motion for summary judgment, the employee must show, through direct or circumstantial evidence, that genuine issues of material fact exist as to each element. Circumstantial evidence of discrimination is viewed through the familiar lens of McDonnell Douglas.[14] While McDonnell Douglas provides a burden-shifting framework for establishing a prima facie case of discrimination, plaintiffs opposing summary judgment do not bear the same burden of proof imposed on the movant. The Sixth Circuit’s opinion explains the interaction of the McDonnell Douglas framework and the Rule 56 summary judgment, urging that “we must always keep in mind that, at summary judgment, the employee “need not prove that the [employer’s] proferred rationale is pretextual, as that would be enough proof for summary judgment in favor of the [employee].”[15] Thus, to show pretext sufficient to defeat the defendant’s motion for summary judgment, the employee “must prove only enough to create a genuine issue as to whether the rationale is pretexual.”[16]

On appeal, Babb argued that material factual disputes existed as to whether the “clinical errors” claimed by Maryville were merely pretext and that real reason behind her termination was the employer’s erroneous belief that Babb was disabled.[17] In determining that genuine factual disputes existed on this issue, the Court relied on the plaintiff’s expert report opining that plaintiff’s actions were reasonable, and therefore, tended to show that discrimination was the true reason that Maryville fired the plaintiff. The Court further reasoned that the expert report showed that the employer’s claim of “honest belief” was questionable because Maryville “failed to make a reasonably informed and considered decision” before terminating Babb.[18] Moreover, the Court found a “glaring factual dispute” regarding the employer’s real reason for firing Babb based on an email written a few hours after Babb’s termination and at the direction of a decision maker that basically said Maryville fired Babb because it believed she had a visual disability. The Court viewed this email within the context of other evidence, including a meeting held the same day during which the doctors decided to terminate plaintiff after discussing both plaintiff’s vision and the “clinical errors” and evaluation comments about her visual impairment. After evaluating the evidence, the Court commented that “[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.”[19]

It is difficult to envision any evidence that would have met the district court’s standard on the issue of pretext. This is because the district court in Babb applied the wrong burden of proof to the plaintiff at the summary judgment stage.[20] As suggested by the Sixth Circuit, the district court likely reached its decision by requiring the plaintiff to prove that Maryville’s proffered reason for her termination was pretextual, essentially shifting the summary judgment movant’s burden of proof to the plaintiff.[21] This type of burden-shifting is not contemplated or required under McDonnell Douglas and violates the standard set forth in Rule 56. Unfortunately, Babb is representative of a broader swath of federal district court decisions in which plaintiffs with legitimate claims involving heavily contested issues of material fact are unable to meet an improper burden imposed on them, and as a result, lose their right to have their case heard and decided by a jury. [22]

Rule 56 sets forth the proper standard for evaluating a motion for summary judgment in employment discrimination cases. Applying an elevated burden to plaintiffs violates Rule 56 and contradicts Congress’ intent in passing the Civil Rights Act of 1991[23], which gives the right to a jury trial to Title VII and ADA plaintiffs demanding compensatory and punitive damages.

[1] Babb v. Maryville Anesthesiologists P.C., No. 19-5148, *1 ( 6th Cir. Nov. 6, 2019); See Christopher J. Emden, Subverting Rule 56? McDonnell Douglas, White v. Baxter Healthcare Corp., and the Mess of Summary Judgement in Mixed-Motive Cases, 1 Wm. & Mary Bus. L. Rev. 139 (2010), https://scholarship.law.wm.edu/wmblr/vol1/iss1/6)

[2] 42 U.S.C. §§ 12101(1), 12112(a).

[3] Babb, No. 19-5148 at *7.

[4] Id. at *18.

[5] Id. at *7.

[6] Id. at *8.

[7] The “honest belief rule” has been described as a “disbelief doctrine” that allows an employer to escape liability for its adverse employment action against an employee “based on incorrect information if the employer honestly believed the information to be true at the time it made employment decision.” Sandra F. Sperino, Disbelief Doctrines, 39 Berkeley J. Emp. & Lab. L. 231 (2018) (citing Loyd v. St. Joseph Mercy Oakland, 766 F.3d 580, 590 (6th Cir. 2014)), https://scholarship.law.berkeley.edu/bjell/vol39/iss1/8/).

[8] Babb, No. 19-5148 at *8.

[9] Id.

[10] Id. at *2.

[11] Id. at *12.

[12] Id.

[13] Id.

[14] Id. at *14 (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under McDonnell Douglas, the plaintiff must establish a prima facie case of discrimination by showing “(1) he or she is disabled, (2) he or she is otherwise qualified for the position, with or without reasonable accommodation, (3) he or she suffered an adverse employment action, (4) the employer knew or had reason to know of the plaintiff’s disability, and (5) the position remained open while the employer sought other applicants or the disabled individual was replaced”. Id. at *14-15 (internal citations omitted). Interestingly, the Court noted that certain evidence presented by plaintiff was arguably direct evidence and ADA “regarded as” claims do not fit neatly within the McDonnell Douglas framework, it did not address these issues because both parties treated McDonnell Douglas as the relevant standard.

[15] Id. at *15 (citing Whitfield v. Tennessee, 639 F.3d 253, 260 (6th Cir. 2011).

[16] Id. at *15.

[17] Id.

[18] Id. at *19.

[19] See Babb, No. 19-5148 at *1, 19 (6th Cir. Nov. 6, 2019). In the Fourth Circuit, a“[p]laintiff does not need a “smoking gun” to show that genuine issues of material fact exist as to pretext Merritt v. Old Dominion Freight Line, 601 F.3d 289, 299-300 (4th Cir. 2010) (“[c]ircumstantial evidence is not only sufficient, but may also be more certain, satisfying and persuasive than direct evidence.”) (quoting Desert Palace, Inc. v. Costa, 539 U.S. 90, 100 (2003) (internal quotations omitted).

[20] Babb, No. 19-5148 at *15, 19.

[21] Id. at *15.

[22] See A. Lee Parks and Edward D. Bukley, The Vanishing Jury Trial in Employment Litigation (Nov. 14, 2013), https://www.pcwlawfirm.com/the-vanishing-jury-trial-in-employment-litigation.html (describing how “the mountain of summary adjudications creates precedent that narrows the law in a way that works to effectively eliminate the right to a jury trial.”).

[23] 42 U.S.C. § 1981a.