Porter v. Dartmouth-Hitchcock Med. Ctr.

92 F.4th 129

Misty Blanchette PORTER, M.D., Plaintiff-Appellant, v. DARTMOUTH-HITCHCOCK MEDICAL CENTER, Dartmouth-Hitchcock Clinic, Mary Hitchcock Memorial Hospital, Dartmouth-Hitchcock Health, Defendants-Appellees.

Docket No. 20-3894

August Term, 2021

United States Court of Appeals, Second Circuit

Argued: February 24, 2022

Decided: February 6, 2024

Appeal from the United States District Court for the District of Vermont, Geoffrey W. Crawford, Chief Judge.

GEOFFREY J. VITT, Norwich, Vermont (Vitt & Associates, Norwich, Vermont; Katherine B. Kramer, DGW Kramer, New York, New York, on the brief), for Plaintiff-Appellant.

DONALD W. SCHROEDER, Boston, Massachusetts (Jessica E. Joseph, Morgan McDonald, Foley & Lardner, Boston, Massachusetts, on the brief), for Defendants-Appellees.

Before: LIVINGSTON, Chief Judge, KEARSE and WALKER, Circuit Judges.

KEARSE, Circuit Judge:

Plaintiff Misty Blanchette Porter, M.D., appeals from a judgment of the United States District Court for the District of Vermont, Geoffrey W. Crawford, Chief Judge, dismissing her amended complaint against her former employer, defendants Dartmouth-Hitchcock Medical Center et al. (collectively "DHMC" or "D-H"), principally alleging discriminatory termination of her employment (a) on account of her disability, in violation of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq. ("ADA"), the Rehabilitation Act of 1973, 29 U.S.C. § 701(a) et seq., and the laws of Vermont and New Hampshire; and (b) on account of her reporting to DHMC on conduct by physicians in her DHMC division that she reasonably believed was unlawful (i.e., whistleblowing) or unethical, improper, or harmful to patients (collectively Dr. Porter's "reporting activities"), in violation of New Hampshire law. The district court granted summary judgment in favor of defendants for lack of proof of causation, concluding principally that although Dr. Porter had shown a prima facie case with regard to her disability and her whistleblowing activity, DHMC adduced sufficient evidence of legitimate business reasons for the termination of her employment, to wit, the closure of the division in which she was employed and the unavailability of other suitable positions for her at DHMC; and that Dr. Porter failed to point to evidence sufficient to permit an inference that defendants' proffered reasons for her termination were pretext for the alleged discrimination. See Porter v. Dartmouth-Hitchcock Medical Center, No. 5:17-cv-194, 2020 WL 6789564 (D. Vt. Nov. 3, 2020).

On appeal, Dr. Porter contends principally that the district court applied erroneous legal standards in assessing the causation element of her claims, and that in granting summary judgment the court decided genuine issues of fact as to whether defendants' explanations for their actions were pretext for such discrimination and retaliation, issues that should have been submitted to a jury. For the reasons that follow, we conclude that the district court did not properly apply summary judgment standards in considering the evidence as to pretext and causation, and that it erred in concluding that no rational juror could infer that Dr. Porter was terminated, and not retained, based on her disability or her reporting activities. We affirm insofar as the court dismissed claims by Dr. Porter that she was otherwise discriminated against by denial of a reasonable accommodation for her disability prior to her termination or was retaliated against for exercising her rights to such accommodation.

I. BACKGROUND

The record as to the events at issue here, taken in the light most favorable to Dr. Porter as the party against whom summary judgment was granted, includes the following evidence. Some portions of the record have been filed under seal; they are hereby deemed unsealed to the extent that their contents are quoted or described in this opinion.

DHMC has an obstetrics and gynecology department ("OB/GYN") that, from 1979 through May 2017, included a Reproductive Endocrinology and Infertility Division ("REI" or "REI Division"). REI provided services covering various aspects of reproductive medicine, including the care of children and women with hormonal imbalance and genetic syndromes affecting the reproductive system, procedures for in vitro fertilization ("IVF") and for assisted reproductive technologies ("ART"), complex gynecologic clinical care, surgery for women who desired to have child-bearing capacity, and gynecologic and early pregnancy pelvic ultrasound.

A. Dr. Porter's First 20 Years at DHMC

Dr. Porter began working as a staff physician at DHMC in the REI Division in 1996. She specialized in the treatment of women and their partners who were experiencing difficulties with fertility. A year later she was promoted to the position of Medical Director of the IVF/ART program and was appointed jointly to DHMC's Department of Radiology. In 2001, she became a senior voting member of the DHMC Professional Staff.

1. Dr. Porter's Performance

Dr. Porter was skilled in radiology, complex OB/GYN surgery, and general gynecological care, and had been internationally recognized for her skill in reading gynecologic ultrasounds. Dr. Michelle Russell--a physician in DHMC's OB/GYN Department who specialized in maternal-fetal medicine, which focuses on patients with high-risk pregnancies--worked with Dr. Porter from 2005 until Dr. Porter's termination in 2017. (See Declaration of Dr. Michelle Russell dated March 5, 2020 ("Dr. Russell Decl."), ¶¶ 1-2.) She described Dr. Porter as "an outstanding physician" with "a broad range of skills, including the ability to perform complex surgery and read difficult ultrasounds. She was our go-to person for complex benign GYN surgeries, such as myomectomies (removal of uterine fibroids). Many GYN surgery cases went to Dr. Porter." (Id. ¶ 6.) Dr. Russell stated that she "relied on Dr. Porter's expertise on a regular basis .... We all used Dr. Porter a lot for first trimester ultrasounds ...." (Id. ¶ 7.)

Sharon Parent, an OB/GYN and REI nurse, observed that "[t]here were times when there would literally be a line of OB/GYN doctors waiting to see Dr. Porter."

(Declaration of Sharon Parent dated February 28, 2020 ("Parent Decl."), ¶ 2.)

Dr. Leslie DeMars, who at the times relevant here was chair of the OB/GYN Department, often discussed the skills of Dr. Porter (or "Misty") using the term "Misty magic." She testified that "Misty is an amazingly gifted and dedicated reproductive endocrinologist and infertility specialist who I think through technical skill and creativity was able to achieve lots of desired pregnancies for women, and that's her 'Misty magic.'" (Deposition of Dr. Leslie DeMars ("Dr. DeMars Dep.") at 43.)

In 2011, Dr. Porter became Acting Director of the REI Division. A new Director, Dr. David Seifer, was appointed in May 2016. (See Part I.C. below.)

2. Dr. Albert Hsu

In 2014, Dr. Albert Hsu joined the REI Division following the completion of his fellowship training in reproductive medicine. After learning that the position had been offered to Dr. Hsu, Dr. Porter--who was then REI's Acting Director--"called him to ask about his experience handling IVF cases." (Declaration of Dr. Misty Blanchette Porter dated March 4, 2020 ("Dr. Porter Decl."), ¶ 1.) Learning, to her "surprise[,] ... that he had significantly less experience in doing the basic procedures than would be expected of a doctor at his level of training," she thereafter attempted to mentor and train him. (Id. ¶¶ 1-2.) "Given his limited experience, I spent the next 6 months directly teaching him at his side, taking call with him 7 days a week[,] teaching" him various relevant procedures. (Dr. Porter Report to Dr. Seifer dated June 3, 2016.)

Notwithstanding Dr. Porter's "considerable investment" of time and effort, "Dr. Hsu continued to demonstrate poor clinical decision-making and procedure skills." (Dr. Porter Decl. ¶ 2.) Dr. Porter began reporting Dr. Hsu's deficiencies to Dr. DeMars and to Heather Gunnell, the OB/GYN Practice Manager, within a few months after Dr. Hsu began working in REI. (See, e.g., Deposition of Dr. Misty Blanchette Porter ("Dr. Porter Dep.") at 30-31.) She "regularly" told Dr. DeMars that Dr. Hsu did not have the capacity to be a competent REI physician. (Dr. Porter Decl. ¶ 4.)

Other members of the DHMC medical staff were similarly critical of Dr. Hsu's performance. Dr. Porter stated that "[i]t was common for physicians, nurses, nurse practitioners, technicians, and others to come to me to express a concern about Dr. Hsu .... I told the persons who came to me that they needed to speak with their direct supervisor and Dr. Leslie DeMars, who was Chair of the OB/GYN Department." (Id. ¶ 3.) Dr. Julia MacCallum, who was in the OB/GYN residency program in 2012-2016, spent two years working with Dr. Porter and Dr. Hsu. She "found that Dr. Hsu did not have a good understanding of the basic knowledge that would be expected of an attending physician in an REI Division," and that "[b]ecause Dr. Hsu lacked a basic knowledge base, he often provided confusing or misleading information to his patients." (Declaration of Dr. Julia MacCallum dated March 5, 2020, ¶ 4; see also id. ¶ 6 (describing Dr. Hsu's lack of awareness of a certain procedure with respect to a myomectomy surgery--which was therefore performed by Dr. MacCallum who had been assisting--and describing Dr. Hsu's surgical technique as "unrefined and unskilled," "rushed, imprecise, and crude"); id. ¶ 7 ("The residents were all aware that there was an element of danger when Dr. Hsu was in the lead in the OR."); id. ¶ 8 ("Every time he went into the OR, he presented a risk to patient safety.").)

Dr. MacCallum told her "direct supervisor about Dr. Hsu being a danger to patients," which her "supervisor shared ... with Dr. DeMars"; and Dr. MacCallum herself "told Dr. DeMars about the danger that Dr. Hsu posed to patients when he operated." (Id. ¶ 7.) She stated that "[Dr....