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Court Snubs Disability, Age Claims Linked To Comment About Hiring Younger Nurses

Wednesday, May 8, 2013
By Chris Opfer

A 58-year-old nurse with plantar fasciitis failed to show she was fired because of her age or impairment by alleging that a doctor told her he needed to hire “younger” nurses, the U.S. District Court for the Middle District of Tennessee ruled May 3 (Newcomb v. Allergy & ENT Assocs. of Middle Tenn. PC, M.D. Tenn., No. 3:10-cv-01230, 5/3/13).

Not only was the alleged remark made roughly three years before Janice Newcomb was fired from her job as a nurse at Allergy and ENT Associates, but the doctor who made it did not refer specifically to Newcomb's condition, according to the court. As a result, the comment did not establish that he regarded Newcomb as disabled, despite being aware that she had been provided a reasonable accommodation after fracturing her foot.

The court granted summary judgment to Allergy ENT on Newcomb's claims under the Americans with Disabilities Act Amendments Act and Age Discrimination in Employment Act.

Finding that her plantar fasciitis did not qualify as a disability under the ADAAA, the court further held that Newcombe was unable to show that the reasons given for her termination were a pretext for disability or age discrimination.

Newcomb presented evidence showing that her performance was adequate prior to her termination, but the court said she did not counter the other reasons given by the medical practice, including frequent “disappearances” and a negative attitude.

Judge Kevin H. Sharp issued an opinion rendering the court's decision. 

'A Bad Luck Streak.'

Newcomb began working as a nurse for Allergy ENT in October 2000.

She started to experience plantar fasciitis in 2005 and was hobbled by a hairline fracture in her left heel after awkwardly stepping off a curb two years later.

“Already suffering from a painful foot condition, then a curb incident causes a hairline fracture--that's a bad luck streak in dancing school, the nursing profession, or any busy, walking-intensive workplace,” Sharp observed.

Nevertheless, Allergy ENT allowed Newcomb to focus primarily on making allergy serum mixes--a job that could be done while sitting--during the eight months she wore a walking boot and was under doctor's orders not to put weight on the injured foot. The nurse was also asked to occasionally help administer shots and her request for a stool to sit on for this purpose was granted.

Newcomb's doctor determined that the fracture was completely healed in April 2008 and lifted her physical restrictions.

Around the same time, Dr. Lee Bryant talked to Newcomb on at least two occasions about increasing her productivity at mixing allergy serums. Newcomb stepped up her output immediately following each of the conversations, according to Bryant, but later slipped back to slower, unacceptable production levels.

Nevertheless, Newcomb received a “very good” performance evaluation in 2008 and was cited as a leader in her area. 

Various Issues Cited in Firing

Brenda Peek became Allergy ENT's practice manager in September 2008.

Peek began to institute a number of changes aimed at increasing efficiency among the staff soon thereafter. Among other efforts, she designed a system in which technicians rotated core duties: giving shots, mixing serums, and performing allergy tests.

Newcomb resisted the new schedule, however, and refused to adhere to it. Peek spoke with Newcomb about her attitude and other issues on at least one occasion in early 2009.

Two allergy nurses reported to Peek during the same time period that Newcomb and fellow nurse Sheryl Russell had told them to “slow down” their work pace because they were making Newcomb and Russell “look bad.” Newcomb later denied the conversation.

According to practice records, Newcomb gave the most allergy shots among the nursing staff in February 2009 and prepared the second-highest number of serum mixes. She gave the most shots again in April 2009, after her comparative production dipped during the previous month.

Newcomb and Russell were fired in April 2009 as part of staffing changes recommended by Peek and approved by Bryant and Dr. Scott Fortune.

Peek said she specifically selected Newcomb for termination based on her perception that Newcomb was not as productive as she could be and at times “disappeared” from the workplace. Also contributing to her decision, Peek said, were complaints about Newcomb's attitude from other nurses, her refusal to stick to the new schedule, and reports that she had “bad-mouthed” Allergy ENT physicians in front of patients.

Newcomb and Russell were later replaced by younger nurses.

Newcomb sued Allergy ENT, alleging disability and age discrimination claims under the ADAAA and ADEA.

In support of her allegations, Newcomb asserted that Bryant had commented to her in 2006 that he was “going to have to hire younger nurses.” 

Comment Not Proof of 'Regarded As' Claim

Granting summary judgment to Allergy ENT, the court found that Newcomb's plantar fasciitis did not render her disabled, nor “regarded as” disabled under the ADAAA.

Newcomb based her disability claims solely on this impairment--not the temporary heel fracture--and failed to provide any evidence that it substantially limited a major life function, according to the court.

Meanwhile, the court also said Bryant's alleged remark about needing to hire younger nurses was not evidence that he viewed her as disabled. The statement was made approximately three years before Newcomb's termination and did not reference her specific condition.

“Even coupled with Bryant's awareness that she requested to sit on a stool while giving shots, this isolated remark does not demonstrate that Allergy ENT mistakenly believed she had an ongoing disability that substantially limited a major life activity,” Sharp explained.

The court further observed that the remark, at best, reflected only Bryant's personal viewpoint.

“Assuming for the sake of argument that Bryant's comment did establish that he personally regarded Newcomb as disabled, it would not demonstrate that Allergy ENT did: she offers no proof that fellow decision-maker Fortune and the manager who recommended her discharge, Peek, held a similar view,” Sharp wrote. 

Pretext Evidence Insufficient

Nor did Bryant's alleged comment show that Newcomb's age was the “but for” cause of her termination, according to the court.

“Of course, a remark made three years before termination is, at best, indirect evidence, since it does not require the conclusion that unlawful discrimination was the actual cause of Newcomb's termination,” Sharp found.

The comment was also ambiguous, the court explained, because it arguably related to both Newcomb's age and her health.

The court also found that Newcomb failed to show the stated reasons for her firing were a pretext for disability or age discrimination.

Newcomb called into question the performance-related bases for the firing by pointing to the 2008 evaluation and her productivity in the months before her termination, according to the court. However, Newcomb did not contradict the other factors cited, including her “disappearances,” attitude, and practice of bad-mouthing doctors.

Andy L. Allman of Hendersonville, Tenn., represented Newcomb. Allergy and ENT was represented by John G. Harrison and Luther Wright of Ogletree, Deakins, Nash, Smoak & Stewart in Nashville, Tenn.

Text of the opinion is available at

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