First Circuit Reverses Summary Judgment for Retaliation Claim

On February 6, 2013, the First Circuit Court of Appeals reversed summary judgment granted to Correctional Medical Services, Inc. ("CMS") for an alleged retaliation claim under the Americans with Disabilities Act.

In spring 2007, Katherine Kelley, a licensed practical nurse, was employed by CMS at the Maine State Prison. While horseback riding in July 2007, she injured the right side of her pelvis and required surgery. She took a six-week medical leave of absence. CMS sent Kelley's supervisor Theresa Kesteloot as her interim replacement.

Kelley returned to work on September 17, 2007 with a medical note on her restrictions. Kesteloot refused to let Kelley return to work because the restrictions were not on the appropriate CMS form. The director of nursing overruled her, allowing Kelley to return to work with crutches.

Of the three stations at the prison, the main clinic, the infirmary, and the close unit, Kelley primarily worked at the infirmary and the main clinic and occasionally responded to code blues at the prison using her crutches. Experiencing leg and health problems over a period of time, her physician authorized the use of a cane and limited her work time to 10.5 hours. Kesteloot would not allow her to use the cane, even with medical authorization, and questioned the authenticity of the injury.

When Kelley informed her employer that she would require a second surgery and another leave of absence, Kesteloot stated that this was critical to her job performance.

While Kelley was on vacation, Kesteloot called her to substitute for another employee and was shuffled to a station that would impact her limited mobility in the event of a code blue. When the other two staff members refused to compromise on their placements, Kesteloot was called to resolve the dispute. After a conference call with all three nurses, Kesteloot stationed Kelley to the place least impacted by a code blue. Kesteloot then held a private phone conversation with one of the other staff members and shortly thereafter, Kelley was escorted out by two prison guards. Upon Kesteloot recommendation, Kelley's employment with CMS was terminated.

Kelley filed a retaliation complaint in the district court, which was summarily dismissed for failing to produce evidence of her claims. Kelley filed an objection to the ruling, but the magistrate judge affirmed. Kelley appealed.

The First Circuit determined that there was substantial pretext evidence for a rational fact finder to reasonably infer that unlawful discrimination factored into the termination. In reviewing the history between Kelley and Kesteloot, the First Circuit noted the numerous obstacles Kesteloot created before accommodating Kelley's disability and stated that these acts created circumstantial evidence that could lead a jury to conclude Kesteloot's hostility towards Kelley's disability.

The First Circuit vacated the summary judgment for CMS and remanded for further proceedings. See: Kelley v. Corr. Med. Servs., 2013 U.S. App. LEXIS 2588 (1st Cir. Me. 2013); Case no. 11-2246.

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