Filed: Feb. 06, 2013
Latest Update: Mar. 26, 2017
Summary: 1, The district court also granted summary judgment on Kelley's, claim for failure to accommodate under the ADA and her state law, slander claim.Voorhees got on the line and spoke with Kesteloot.evidence of animus. Santiago-Ramos, 217 F.3d at 55;thereafter terminated the employee in retaliation).
United States Court of Appeals
For the First Circuit
No. 11-2246
KATHERINE KELLEY,
Plaintiff, Appellant,
v.
CORRECTIONAL MEDICAL SERVICES, INC.,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
[Hon. Margaret J. Kravchuk, U.S. Magistrate Judge]
Before
Lynch, Chief Judge,
Torruella and Lipez, Circuit Judges.
Guy D. Loranger, with whom Nichols, Webb & Loranger, P.A., was
on brief, for appellant.
Matthew J. LaMourie, with whom Michael G. Messerschmidt and
Preti, Flaherty, Beliveau & Pachios, LLP was on brief, for
appellee.
February 6, 2013
LIPEZ, Circuit Judge. Plaintiff Katherine Kelley appeals
from the district court's grant of summary judgment in favor of
defendant Correctional Medical Services, Inc. ("CMS") on her
retaliation claims under the Americans with Disabilities Act
("ADA"), 42 U.S.C. § 12203(a), and the Maine Human Rights Act
("MHRA"), Me. Rev. Stat. Ann., tit. 5, § 4572(2). Kelley contends
that the district court erred in finding that she had failed to
raise a genuine dispute of material fact as to whether CMS's stated
reason for her termination was a pretext for retaliatory animus.
Concluding that Kelley has presented sufficient evidence to bring
to a jury, we vacate the entry of summary judgment on her
retaliation claims.1
I.
The facts are drawn from the deposition testimony and
affidavits, as well as documentary evidence. We recount the
relevant events in the light most favorable to the nonmoving party,
see Roman v. Potter, 604 F.3d 34, 38 (1st Cir. 2010), and draw all
reasonable inferences in her favor, see Acevedo-Parrilla v.
Novartis Ex-Lax, Inc.,
696 F.3d 128, 131-32 (1st Cir. 2012).
1
The district court also granted summary judgment on Kelley's
claim for failure to accommodate under the ADA and her state law
slander claim. Kelley has not raised those claims on appeal and
they are therefore waived. Rodríguez v. Mun. of San Juan, 659 F.3d
168, 175 (1st Cir. 2011).
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A. The CMS Facilities and Kelley's Job Responsibilities
CMS provides medical staffing and health care services
for the inmates at the Maine State Prison. Kelley is a licensed
practical nurse and began employment with CMS at the prison in
spring 2007.
CMS staff treats inmates at the prison in five locations.
Three of these are relevant here: the main clinic, the infirmary,
and the "close unit." In the main clinic, inmates receive
treatment for various medical issues. Patients similarly receive
treatment in the infirmary, but can remain there for longer periods
or overnight if they require constant monitoring. The close unit
serves as a site for distributing medication to the inmates.
Nurses stationed at the main clinic bear responsibility
for the narcotics count, also called "the count." At the
conclusion of each shift, the outgoing nurse and the incoming nurse
count the narcotics stored at the clinic together, after which the
outgoing nurse gives the keys to the clinic to the incoming nurse.
The count and the handover of keys signal the transfer of
responsibility for the main clinic from one nurse to the other.
Responsibility for the main clinic also includes the
obligation to respond to medical emergencies, called "code blues."
A code blue typically requires personnel on duty to respond from
their station to the place where the inmate was located within a
certain time. Code blues sometimes require personnel to respond to
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locations physically distant from their stations, bringing with
them emergency medical equipment, such as a stretcher. During a
code blue, one staff member typically remains behind in the clinic
to call a doctor and prison security, as well as pull the patient's
charts.
During Kelley's employment, most of her regular shifts
were in the close unit, but she worked at times in other locations,
including the infirmary. She did not express a preference for
working in one unit over another. Toward the end of her
employment, her assignments sometimes changed on short notice.
Kelley knew how to conduct the narcotics count as part of her
responsibilities.
B. Kelley's Disability and Her Interactions with Kesteloot
In July 2007, Kelley shattered the right side of her
pelvis during a horseback riding accident. As a result, she
required surgery and took a leave of absence that lasted
approximately six weeks.
Theresa Kesteloot, Kelley's supervisor, had been a CMS
employee since July 2006, and was transferred to Maine State Prison
sometime during Kelley's leave of absence. Before Kelley returned
to work, a representative of CMS's Human Resources Department sent
her an email stating that if she could not return to work after her
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leave of absence, she would be reduced to PRN status.2 The email
referred to Kesteloot having "an issue about her and PRN status,"
and suggested that Kelley contact the Human Resources
representative to discuss the matter further. Kelley also avers
that during her leave of absence, Kesteloot told her on the phone
that she would be fired if she did not work full time after her
leave and that she did not want Kelley to return to work on an as
needed basis.
On September 17, 2007, Kelley returned to work with a
medical note outlining her restrictions. The note stated that she
should use crutches for ambulation, she could not use her hands for
lifting, and her ability to bend and squat was limited. The note
also indicated that she could lift, push, and pull objects as long
as she stayed seated.3
The first night Kelley returned to work, Kesteloot told
her that her doctor's note regarding her medical restrictions had
not been provided on the appropriate CMS form, and that Kelley
could not commence working until she provided a doctor's note on
the correct form. The director of nursing overruled Kesteloot and
permitted Kelley to work her shift. As Kesteloot was providing
2
"PRN" stands for "pro re nata," a Latin phrase that roughly
translates to "as needed."
3
Kelley was subsequently given two more doctor's notes in
October and December of 2007, which stated that she was permitted
to use crutches or a wheelchair at work, and that bending and
squatting should be limited to infrequent episodes during the day.
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Kelley with the proper form, however, she asked Kelley, "seriously,
what are your expectations?" Kelley responded that she intended to
return to work with the use of a cane.
During the first three months after Kelley returned to
work, she worked primarily in the infirmary and the main clinic.
Kelley "sometimes" responded to code blues if they were in other
units; "once or twice" she used crutches to respond to code blues
in the close or medium unit. After some time, Kelley returned to
her pre-injury assignment in the close unit. She nonetheless
worked in the main clinic when necessary.
Throughout 2008, Kelley's leg and health problems impeded
her ability to work double shifts and she began using a cane at
work. Kesteloot told her not to use the cane until and unless she
obtained medical authorization to do so.4 In response, Kelley
procured notes from physicians stating that she should be permitted
to use a cane; these notes also limited her to working only 10.5
hours at a time.5
4
In April 2008, Kesteloot wrote Kelley a memo informing her
that her restriction sheet had expired, and that until she
submitted a new restriction form, "there are no restrictions
concerning your work."
5
At various points in her briefs and deposition testimony,
Kelley states that Kesteloot "took away" her cane, suggesting that
Kesteloot removed her cane by force. This contention finds no
support in the record, which shows only that Kesteloot forbade her
from bringing the cane to work until she provided a doctor's note
authorizing its use.
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Kelley avers that on several occasions after her return,
Kesteloot suggested that she was misrepresenting the extent of her
injuries and that she would be unable to walk if she had truly
fractured her pelvis.6 Kesteloot also consistently criticized
Kelley's job performance, and put written comments that she had not
seen before in her employment file. Violet Hanson, a member of CMS
management, told Kelley that Kesteloot "wanted [her] gone."
In July 2008, Kelley's medical providers recommended that
she have a second hip surgery, which would likely require another
lengthy leave of absence. Kelley testified that she "believe[s]
she had a discussion" with Kesteloot concerning her second surgery.
C. The October 17, 2008 Night Shift
On the night shift of October 17, 2008, which runs from
10 PM to 7:30 AM, matters came to a head between Kelley and
Kesteloot. Although Kelley was on vacation on that date, she
received a call asking her to take a shift in the close unit in
place of another nurse who had been originally scheduled to staff
the unit. She arrived for work at around 10 PM. By the time she
arrived, however, a second employee also needed a substitute,
requiring a staffing reshuffle. Since a nurse was not required to
6
The record does not disclose the dates these incidents took
place. Kelley's statement of material facts states that the "last"
of these conversations took place on July 22, 2008, but the only
evidence cited to support this contention is Kelley's affidavit,
which states that these incidents took place on "three occasions"
without specifying when.
-7-
staff the close unit until it was time to set up the medications at
around 3:30 or 4 AM, Kelley's assignment was changed to the main
clinic without her knowledge.
Bruce Lumsden was the registered nurse on duty in the
main clinic when Kelley arrived. Kelley noted the alteration in
her assignment, and discussed the matter with Lumsden. Kelley told
him of her mobility restrictions and stated that her leg was
bothering her that day. She expressed concern about her ability to
respond to a code blue, in part because she would have difficulty
lifting the stretcher. She asked to switch responsibilities with
Ann Voorhees, a nurse who was scheduled to work in the infirmary,
since the infirmary was generally a lighter assignment than working
in the clinic. Lumsden responded that Kelley should ask Voorhees
to switch positions.
Kelley then approached Voorhees and requested the switch,
but Voorhees initially refused. Lumsden then left Kelley in the
main clinic alone and went to speak to Voorhees. Upon his return,
he informed Kelley that he and Voorhees had spoken with Kesteloot
via telephone, and that Voorhees had agreed to come out of the
infirmary since that location did not require constant supervision.
Pursuant to Kesteloot's instructions, Kelley and Voorhees were to
staff the main clinic together, and the latter would do any
"running around" that was needed. After this conversation, Lumsden
-8-
did the narcotics count for the main clinic with another nurse,
Deborah Hill, and left.
Contrary to the agreed-upon arrangement, Voorhees refused
to leave the infirmary, stating that she had barely slept the night
before and did not want to take on the additional clinic
responsibilities. Kelley told Hill that she could not staff the
clinic alone due to her leg problems and her lack of familiarity
with the position. She further noted that responsibility for the
main clinic would obligate her to respond to code blues and that
staffing the clinic would be too stressful for her.7 Kelley stated
that she wanted to go home rather than assume responsibility for
the main clinic. Hill, who had already worked two shifts prior to
the night shift, wanted to leave work, but could not do so until
she did the narcotics count with another nurse, thereby
transferring responsibility for the main clinic.
Kelley then called Kesteloot at home and requested her
help in getting Voorhees to leave the infirmary and assist Kelley
in the main clinic. The call was transferred to the infirmary, and
Voorhees got on the line and spoke with Kesteloot. Voorhees
subsequently came to the main clinic and told Kelley that the three
of them, as well as Hill, would speak together about the situation,
with Kesteloot participating via speakerphone.
7
Kelley testified that she believed she "could have"
responded to code blues, but that doing so would have been awkward
and that people would have laughed at her.
-9-
D. The Speakerphone Conversation and Aftermath
During the pivotal speakerphone call, Kesteloot attempted
to enforce her original plan of having Voorhees leave the infirmary
to assist Kelley in the main clinic. Kesteloot told Kelley,
however, that "it was only fair" that Kelley conduct the narcotics
count for the main clinic because Voorhees had already done the
count in the infirmary. Hill and Kelley mentioned that Hill had
already conducted a proper count with Lumsden. Kesteloot responded
that Kelley should conduct the count with Hill nonetheless, but
Kelley reiterated that the count had already been done and refused
to accept the clinic keys.8 She expressed her belief that the main
clinic assignment would "require[] too much physical activity" and
that she did not feel "comfortable with the physical
responsibilities of [being in] charge in the clinic."9 Kelley also
made a remark about leaving work because she could not accept
responsibility for the clinic. Kesteloot responded that if she
left, she would be fired and reported to the Board of Nursing for
abandoning her post.
8
Kelley quibbles with the characterization that she "refused"
responsibility for the clinic, but during her deposition she
herself stated that she "refused to accept the keys."
9
These quotations come from Hill's recollection of the
crucial speakerphone conversation.
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Kesteloot asked Kelley if she was "refusing to go and
count the narcotics and sharps10 in the clinic as your supervisor
is asking you to do," and noted that refusing to take the keys was
tantamount to disobeying a direct order. Kelley expressed her
willingness to remain on duty in the main clinic, but persisted in
refusing to do the narcotics count.
At some point in the midst of the call, Voorhees stated
that she would "do it all," including the narcotics count in the
main clinic. The last thing Kesteloot stated on the speakerphone
call was that she would call back to the infirmary to speak with
Voorhees alone. The call had taken about ten minutes in total.
After the speakerphone call, Kelley remained in the
clinic and began doing paperwork. Voorhees returned to the
infirmary and had a separate phone conversation with Kesteloot, who
asked Voorhees to have security call her at home so that she could
arrange to have Kelley escorted off the premises. Kesteloot had
two security officers escort Kelley out of the building at around
midnight.
After Kesteloot spoke with security, she became nervous
about her decision to remove Kelley and reviewed the CMS Success
Guide, a personnel manual for CMS employees. The guide contained
language indicating that refusing the main clinic assignment was a
10
The term "sharps" refers to devices such as needles and
scissors that could cause wounds or punctures in those handling
them.
-11-
serious disciplinary offense. After preparing her own written
statement and obtaining one from Voorhees, Kesteloot submitted a
written recommendation to her superiors on October 28, 2008,
stating that Kelley should be terminated for failure to carry out
her supervisor's reasonable instruction. This recommendation was
also provided to CMS's Human Resources Division, which agreed with
Kesteloot's assessment.11 Kelley was fired the next day.
Kelley then filed a complaint in the district court
alleging, inter alia, that Kesteloot recommended her termination in
retaliation for Kelley's request for an accommodation on the night
of October 17, 2008. The case was referred to a magistrate judge,
who issued a lengthy memorandum opinion granting summary judgment
in CMS's favor. The court ruled that Kelley had failed to adduce
evidence that Kesteloot's stated basis for terminating Kelley was
pretextual, and concluded that Kelley's evidence of retaliatory
animus was too conclusory and speculative to take to trial. After
appellant filed an objection, the district court heard argument on
11
The parties disagree as to whether Kesteloot or the HR
department had the final say as to whether Kelley should be
terminated. Kesteloot was undisputedly part of the decisionmaking
process, however, and CMS does not contend that the HR department's
decision somehow broke the causal chain leading to Kelley's
termination. Accordingly, this distinction is immaterial. See
Sánchez-Rodríguez v. AT&T Mobility P.R., Inc., 673 F.3d 1, 15 (1st
Cir. 2012) (observing that retaliation claim requires plaintiff to
point to "'some evidence of retaliation by a pertinent
decisionmaker'" (quoting Randlett v. Shalala,
118 F.3d 857, 862
(1st Cir. 1997)).
-12-
the matter and subsequently affirmed the magistrate judge's ruling
in a brief order. This timely appeal followed.
II.
To survive summary judgment on a retaliation claim, the
plaintiff "must establish a genuine issue of material fact as to
whether [s]he . . . was retaliated-against within the meaning of
the ADA." Carreras v. Sajo, Garcia & Partners, 596 F.3d 25, 32
(1st Cir. 2010) (citing Fed. R. Civ. P. 56(c)).12 We review the
district court's grant of summary judgment de novo. See
Cabán-Hernández v. Philip Morris USA, Inc.,
486 F.3d 1, 8 (1st Cir.
2007). "Summary judgment is appropriately granted where there is
no genuine issue of material fact, and the moving party is entitled
to judgment as a matter of law." Vives v. Fajardo,
472 F.3d 19, 21
(1st Cir. 2007). In reviewing the facts, we "draw all reasonable
inferences in the light most favorable to the nonmovant." Cabán-
Hernández, 486 F.3d at 8.
A. Retaliation Claims Under the ADA
A retaliation claim under the ADA is analyzed under the
familiar burden-shifting framework drawn from cases arising under
Title VII. See Freadman v. Metro. Prop. and Cas. Ins. Co., 484
12
Generally, disability-related claims under the MHRA are
"construed and applied along the same contours as the ADA." Dudley
v. Hannaford Bros. Co., 333 F.3d 299, 312 (1st Cir. 2003). Kelley
does not assert that her state law claims are distinguishable in
any material way from her federal claims, so we apply the same
analysis to both.
-13-
F.3d 91, 106 (1st Cir. 2007); see also Soileau v. Guilford of
Maine, Inc., 105 F.3d 12, 16 (1st Cir. 1997) (observing that
"guidance on the proper analysis of [an] ADA retaliation claim is
found in Title VII cases"). To make out a prima facie retaliation
claim, the plaintiff must show that: "(1) she engaged in protected
conduct; (2) she experienced an adverse employment action; and (3)
there was a causal connection between the protected conduct and the
adverse employment action." Calero-Cerezo v. U.S. Dep't of
Justice,
355 F.3d 6, 25 (1st Cir. 2004). Once the plaintiff has
made a prima facie showing of retaliation, the defendant "must
articulate a legitimate, non-retaliatory reason for its employment
decision." Id. at 26. If the defendant meets this burden, the
plaintiff must show that the proffered legitimate reason is
pretextual and that "the job action was the result of the
defendant's retaliatory animus." Id. (citing St. Mary's Honor Ctr.
v. Hicks,
509 U.S. 502, 510-11 (1993)). Requesting an
accommodation is protected conduct under the ADA's retaliation
provision. Freadman, 484 F.3d at 106.
The district court found that Kelley had made out a prima
facie retaliation claim, and that CMS had adduced sufficient
evidence of a legitimate, non-discriminatory reason for her
termination, namely, Kelley's refusal to obey her supervisor's
instruction. The only issues on appeal are whether the district
court erred in concluding that Kelley failed to raise a genuine
-14-
dispute of material fact as to pretext and retaliatory animus.
While summary judgment may be appropriate even "'where elusive
concepts such as motive or intent are at issue,'" Vives, 472 F.3d
at 21 (quoting Benoit v. Tech. Mfg. Corp., 331 F.3d 166, 173 (1st
Cir. 2003)), we have stated that "where a plaintiff . . . makes out
a prima facie case and the issue becomes whether the employer's
stated nondiscriminatory reason is a pretext for discrimination,
courts must be 'particularly cautious about granting the employer's
motion for summary judgment.'" Hodgens v. Gen. Dynamics Corp.,
144
F.3d 151, 167 (1st Cir. 1998) (quoting Stepanischen v. Merchants
Despatch Transp. Corp.,
722 F.2d 922, 928 (1st Cir. 1983)).
"[T]here is no mechanical formula for finding pretext."
Che v. Mass. Bay Transp. Auth., 342 F.3d 31, 39 (1st Cir. 2003)
(internal quotation marks omitted). Instead, "[i]t is the type of
inquiry where 'everything depends on the individual facts.'" Id.
at 40 (quoting Thomas v. Eastman Kodak Co.,
183 F.3d 38, 57 (1st
Cir. 1999)). The inquiry focuses on whether the employer truly
believed its stated reason for taking action adverse to the
employee. See Feliciano de la Cruz v. El Conquistador Resort &
Country Club,
218 F.3d 1, 7 (1st Cir. 2000). The plaintiff bears
"[t]he ultimate burden of persuading the trier of fact that the
defendant intentionally discriminated against the plaintiff."
Reeves v. Sanderson Plumbing Prods., Inc.,
530 U.S. 133, 143 (2000)
(alteration in original) (internal quotation mark omitted).
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Here, there is substantial overlap between Kelley's
evidence of pretext and of discriminatory animus. See
Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 54
(1st Cir. 2000) (stating that plaintiffs "may use the same evidence
to support both conclusions, provided that the evidence is adequate
to enable a rational factfinder reasonably to infer that unlawful
discrimination was a determinative factor in the adverse employment
action" (quoting Thomas, 183 F.3d at 57) (internal quotation marks
omitted)). Consequently, in order to determine whether CMS's
asserted justification was a mask for retaliatory animus, we must
review the history of Kelley and Kesteloot's interactions regarding
the former's earlier requests for accommodations.
B. The Evidence of Pretext and Retaliatory Animus
As noted, the record shows that long before the crucial
events of October 17, 2008, Kelley and Kesteloot had a number of
disagreements regarding Kelley's need for accommodation. Even
before Kelley returned to work after her medical leave, Kesteloot
suggested that she would not be permitted to return unless she
could come back full time. When Kelley did in fact return from her
leave of absence, Kesteloot tried to prevent her from working until
she returned with a properly formatted doctor's note describing the
extent of her injuries. Kesteloot's own supervisor overruled this
decision and permitted Kelley to begin work and bring a properly
formatted note at a later date. Moreover, Kelley's affidavit
-16-
states that Kesteloot "accused [her] of lying about having a
fractured pelvis and no hip socket" and suggested that she would
essentially be immobile if her injuries were truly that extensive.
There was also the evidence that Kesteloot prohibited Kelley from
using a cane until she returned with a doctor's note stating that
she was required to use the cane to aid her mobility, despite the
fact that Kelley's disability was more than evident. Taken
together, this circumstantial evidence could lead a jury to
conclude that Kesteloot was repeatedly hostile to any accommodation
of Kelley's disability.
Importantly, Kesteloot's comments and actions were
consistently linked to Kelley's disability and her need for
accommodation. Hence, the presence of discriminatory animus is a
reasonable inference that arises from these interactions, thereby
distinguishing this case from those where the employer's proffered
basis for its adverse action may have been false, but the record
contains little to no evidence suggesting that the adverse action
stemmed from an unlawful motive. See Reeves, 530 U.S. at 148
(observing that summary judgment may be appropriate in cases where
"the plaintiff created only a weak issue of fact as to whether the
employer's reason was untrue and there was abundant and
uncontroverted independent evidence that no discrimination had
occurred"). Also, the consistent links between Kesteloot's
hostility and Kelley's disability distinguishes this case from that
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of the plaintiff in Roman, a Title VII case on which appellees
rely. In that case, we rejected the plaintiff's numerous claims of
retaliation partly on the basis that she had relied heavily on her
"subjective belief in retaliation," rather than on concrete
evidence of animus. 604 F.3d at 41. The record in Roman showed
that the employer had taken numerous adverse actions against the
plaintiff that were well supported by legitimate nondiscriminatory
reasons, without any evidence connecting those adverse actions to
Roman's protected activity. Id. at 40-42. By contrast, the
evidence in this case describes exchanges between Kelley and
Kesteloot that were closely connected to the former's requests for
accommodations for her disabled status, and Kesteloot's resistance
to these accommodations.
This background of disability-based animus is also
probative of a pretextual ground for terminating Kelley's
employment. One well-established method of demonstrating pretext
is "to show that discriminatory comments were made by the key
decisionmaker or those in a position to influence the
decisionmaker." Santiago-Ramos, 217 F.3d at 55; see also
Domínguez-Cruz v. Suttle Caribe, Inc., 202 F.3d 424, 433 n.6 (1st
Cir. 2000); Palasota v. Haggar Clothing Co.,
342 F.3d 569, 578 (5th
Cir. 2003) (observing that remarks related to protected
characteristic "are appropriately taken into account . . . even
where the comment is not in the direct context of the termination")
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(citation omitted) (internal quotation marks omitted). As
described above, Kesteloot's interactions with Kelley extended
beyond mere comments or remarks suggestive of animus. On repeated
occasions, Kesteloot exhibited her resistance to accommodating
Kelley through both her words and her conduct prior to October 17,
2008. See Mesnick v. General Elec. Co., 950 F.2d 816, 828 (1st
Cir. 1991) (observing that plaintiff may meet pretext burden by
relying on "comments by the employer which intimate a retaliatory
mindset").
The events of October 17 may reasonably be viewed as the
culmination of this history of disability-based conflict. On that
evening, Kelley requested yet another accommodation for her
disability, precipitating a confrontation between Kesteloot and
Kelley regarding what kind of accommodation was appropriate.
Notably, during the crucial speakerphone call, Voorhees eventually
agreed to "do it all," including doing the narcotics count and
taking the clinic keys. Although this concession seemingly
resolved the dispute, Kesteloot nonetheless proceeded to have
Kelley escorted from the premises after the call ended, and
promptly recommended her termination. Such conduct suggests her
eagerness to be rid of Kelley. Under these circumstances, a
reasonable factfinder could conclude that Kelley's refusal to obey
an instruction of Kesteloot served as a convenient pretext for
eliminating an employee who had engaged in ADA-protected conduct
-19-
one too many times. See Wright v. CompUSA, Inc., 352 F.3d 472, 478
(1st Cir. 2003) (holding, in case where employee was terminated
"immediately after returning from medical leave and requesting
accommodation," that employee had raised triable issue as to
whether alleged insubordination or request for accommodation had
motivated his discharge).
Put another way, a reasonable factfinder could find that
Kesteloot's action against Kelley was "a disingenuous overreaction
to justify dismissal of an annoying employee who asserted [her]
rights under the ADA," rather than the firing of an insubordinate
employee. Miller v. Ill. Dep't of Transp., 643 F.3d 190, 200 (7th
Cir. 2011); cf. Shellenberger v. Summit Bancorp, Inc.,
318 F.3d
183, 190 (3d Cir. 2003) (holding that employee had adduced
sufficient evidence that employer had "tired of her persistent
requests for an accommodation" and therefore "fired [her] in
retaliation for her protected activity rather than (or in addition
to) her insubordinate behavior").
In granting summary judgment, the district court focused
almost exclusively on Kelley's insubordination. The court
concluded that on October 17, Kesteloot had made an effort to
accommodate Kelley by requiring Voorhees to handle the physically
demanding duties, thereby rendering baseless Kelley's resistance to
assuming responsibility for the main clinic. Although this view of
the record is reasonable, it disregards the record evidence of
-20-
Kesteloot's ongoing disability-based animus and the way in which
that animus might have influenced Kesteloot's adverse employment
action against Kelley. Moreover, an employer's seeming willingness
to accommodate an employee's disability does not conclusively
preclude a finding that the employer was motivated by retaliatory
intent. Cf. Soileau, 105 F.3d at 16 (stating that it would be
"anomalous" to interpret the ADA as "leav[ing] employees
unprotected if an employer granted the accommodation and shortly
thereafter terminated the employee in retaliation"). Although CMS
tries to explain Kesteloot's prior conduct as merely a supervisor's
diligent adherence to protocol, it is insufficient at this stage of
the case to depict Kesteloot's actions as "arguably non-
discriminatory," Acevedo-Parrilla, 696 F.3d at 144. Where
"permissible inferences that could be drawn from the facts" support
the employee's claims, the employer is not entitled to summary
judgment. Dominguez-Cruz, 202 F.3d at 433. There are such
inferences here.
III.
While the ADA is not "a license for insubordination at
the workplace," Reed v. LePage Bakeries, Inc., 244 F.3d 254, 262
(1st Cir. 2001), the employer cannot invoke the specter of
insubordination in order to "mask[] retaliation for requesting [an]
accommodation." Wright, 352 F.3d at 478. Kelley has raised
triable issues as to whether Kesteloot conveniently seized upon
-21-
Kelley's refusal to assume primary responsibility for the main
clinic as a basis for her termination, and whether this decision
was the product of retaliatory animus. We therefore vacate the
district court's entry of summary judgment in CMS's favor on
Kelley's retaliation claim under the ADA and MHRA and remand for
further proceedings. Costs are awarded to the appellant.
So ordered.
-22-
