By Kathleen J. Jennings (firstname.lastname@example.org)
Today’s “email fail” comes to us from a group of physicians in Tennessee. (Babb v. Maryville Anesthesiologists , 6th Cir., No. 19-05148, 11/6/19). Paula Babb is a Certified Registered Nurse Anesthetist (“CRNA”) who had practiced anesthesiology for over a decade. In June 2015, Babb began working as a CRNA at Maryville Anesthesiologists, P.C. Babb also had a “degenerative retinal condition” that made it hard for her to read certain screens and medical records. She informed her bosses of her condition but assured them that it would not affect her ability to do her job. Her bosses were concerned. The head physician asked Babb if she had disability insurance.
Thereafter, Babb would ask other CRNAs and nurses for assistance in reading charts from time to time. Some of those folks reported these incidents back to the Babb’s bosses.
In January 2016, Babb was terminated due to two clinical errors that she was accused of making in October 2015 and January 2016. When communicating its termination decision to Babb, her employer focused exclusively on the clinical errors, and made no mention of Babb’s vision. So far, so good.
However, Babb never saw the termination coming because no one at the practice had criticized her anesthesiology techniques prior to her termination.
Even worse, after Babb was terminated, one of Babb’s fellow CRNAs sent out an email to all Maryville CRNAs that basically said that Babb was fired due her eyesight and “some other issues.” This email was written at the direction of one of the practice’s doctors (who later apparently tried to distance himself from it, unsuccessfully).
The District Court granted the employer’s motion for summary judgment, but the Sixth Circuit Court of Appeals reversed that decision. The Sixth Circuit found two particular fact disputes that precluded summary judgment.
First, there was a factual dispute as to the reasonableness of Maryville’s decision to base Babb’s termination on the two “clinical errors.” Babb had an expert witness who gave an opinion that Babb acted reasonably in the two incidents, which conflicted with the doctors’ assertion that Babb committed critical errors. It probably did not help matters that the doctors had not written Babb up for these or any other errors prior to terminating her.
Second, there was a factual dispute as to whether those clinical errors “actually motivated” Maryville to fire Babb. Here is where the Court pointed to the email sent just hours after Babb’s termination essentially stating that Maryville was firing Babb because of her impaired vision. Indeed, the Court stated that “If 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.”
The moral of this story? Never let an employee send out an email to your other employees discussing the reasons for a former employee’s termination. Moreover, managers and supervisors should not discuss the reasons for an employee’s termination with anyone who does not have an absolute need to know (such as your HR Manager).
Kathleen J. Jennings is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at email@example.com.
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