The U.S. Court of Appeals for the First Circuit recently found in Kelley v. Correctional Medical Services, Inc. that an employer who terminated a disabled employee for insubordination may be liable to the employee for retaliation because the employer's supervisor had previously made disparaging comments related to the employee's disability.

Katherine Kelley, a prison nurse employed by Correctional Medical Services (CMS), became disabled after injuring her hip while horseback riding. Kelley alleged that after her injury and resulting medical leave, her supervisor accused Kelley of lying about her injury, prohibited Kelley from using a cane until she could provide a note from her doctor, and told Kelley that she had to work full-time. A CMA manager also told Kelley that her supervisor "wanted her gone."

During a shift when there was a shortage of available nurses, Kelley was assigned to a post that would have required her to respond to medical emergencies throughout the prison facility. Kelley refused to perform that duty, stating that the assignment would require too much physical activity. Kelley also refused to perform a second responsibility of the position, counting narcotics, not because of her disability but because she claimed that another nurse had already completed that task. On a conference call with Kelley's supervisor, another nurse agreed to handle both job duties that Kelley refused to do. After the call, however, Kelley's supervisor instructed security to escort Kelley from the building because she refused assignments. Kelley's supervisor subsequently reviewed the CMA personnel manual and confirmed that refusing an assignment is a terminable offense. CMA then terminated Kelley's employment for insubordination.

Kelley sued CMA, claiming that she had been discharged in retaliation for her requests for reasonable accommodations. The U.S. District Court for the District of Maine granted summary judgment for CMA, holding that Kelley had failed to produce evidence suggesting that the stated reason for her termination – insubordination – was pretextual. The First Circuit reversed, finding that Kelley had produced sufficient evidence to allow a jury to determine whether her termination was an overreaction to justify dismissal of an employee who had asserted her right under the Americans with Disabilities Act to request reasonable accommodations.

The First Circuit noted that even though Kelley was insubordinate and that part of her insubordination was unrelated to her disability, there was evidence that Kelley's supervisor had expressed hostility towards Kelley's disability and seemed eager to be rid of her. The First Circuit ruled that under such circumstances, a jury should determine whether Kelley's supervisor seized upon her insubordination as a basis for Kelley's dismissal in order to mask her retaliatory animus.

The Kelley decision shows that a terminated or disciplined employee may have a retaliation claim even if the employee committed an otherwise terminable offense. Before disciplining an employee, employers should ensure that the discipline imposed is proportionate to the offense and that there is no evidence to suggest that the discipline is a masked form of retaliation.

Table of Cases

Crocker v. Townsend Oil Co., 464 Mass. 1 (2012).

Bellone v. Southwick-Tolland Reg'l Sch. Dist., No. 12-30105-KPN (D. Mass. Jan. 14, 2013).

Awuah v. Coverall N. Am., Inc., No. 12-1301 (1st Cir. Dec. 27, 2012).

Jones v. Nationwide Life Ins. Co., 696 F.3d 78 (1st Cir. 2012).