Employee Survival Guide® - Discrimination- Misty Porter, MD v. Dartmouth-Hitchcock Medical Center

Episode Date: January 4, 2026

Comment on the Show by Sending Mark a Text Message.A gifted reproductive surgeon sounded the alarm on unsafe care, unethical choices, and a culture willing to cut corners—and then lost her job when her division shut down. We pull the case apart piece by piece, from residents’ warnings about crude surgical technique to a Zika-era consent workaround that put risk ahead of national guidance. Layered over the clinical drama is a personal health crisis: a cerebrospinal fluid leak that forced medical leave, ADA accommodations, and a gradual return to high-level work that colleagues still praised.The turning point isn’t only what happened—it’s how the law chooses to see what happened. One unguarded line from the chief clinical officer—“Misty was on disability”—became direct evidence of discrimination, strong enough to bypass pretext battles and send the case to a jury. Then the split verdict arrived: no liability under federal and New Hampshire standards requiring but-for causation, yet clear liability under Vermont’s Fair Employment Practices Act, which uses a motivating factor test. Geography decided the outcome, converting a “thin” public rationale into a seven-figure judgment once the legal lens shifted.We also examine cat’s paw liability and how biased recommendations flow into negligent decisions. Internal emails show a chair determined to box out the whistleblower, a department short on talent yet unwilling to reassign its star, and leadership acknowledging that the official story didn’t match the internal truth. The result is a playbook for both sides: how to protect patient safety and whistleblowers, how to build a defensible staffing process during closures, and why a single sentence can cost millions when it reveals the motive behind the move. If you care about medicine, law, or the fragile line between them, this story will stay with you. Subscribe, share with a colleague, and tell us: should disability claims use the same standard everywhere? If you enjoyed this episode of the Employee Survival Guide please like us on Facebook, Twitter and LinkedIn. We would really appreciate if you could leave a review of this podcast on your favorite podcast player such as Apple Podcasts and Spotify. Leaving a review will inform other listeners you found the content on this podcast is important in the area of employment law in the United States. For more information, please contact our employment attorneys at Carey & Associates, P.C. at 203-255-4150, www.capclaw.com.Disclaimer: For educational use only, not intended to be legal advice.

Hey, it's Mark here, and welcome to the next edition of the Employee Survival Guide, where I tell you, as always, what your employer does definitely not want you to know about, and a lot more. Welcome to the deep dive. Today, we are immersing ourselves in a legal battle that really peels back the layers on institutional dysfunction within the high-pressure world of elite. academic medicine. This is the story of Dr. Misty Blanchett Porter versus Dartmouth Hitchcock Medical Center, or DHMC, a case that spanned nearly a decade and revealed how deeply intertwined whistleblowing professional retaliation and disability discrimination can become. And it's far more than just a typical employment suit. I mean, this deep dive is our mission to understand how a celebrated

world-class physician ended up completely terminated. Right. And why the ultimate legal resolution, a complex multi-million dollar verdict in 2025 hinged entirely on the legal geography of New England and the definition of two simple words in employment law, but four versus motivating factor. And we are going straight to the sources that tell this definitive story. Our focus is the core evidence, the landmark 2024 Second Circuit Court of Appeals decision, which overturned the initial summary judgment and just blew the case wide open. It really did. And then there's the April 2025 jury verdict form, which delivered this incredibly,

nuanced sort of split decision. And we also have the crucial November 2025 post-trial order. This is where the district court judge really hammered home the importance of state-specific causation standards. So if you want a masterclass in how institutional bias and corporate liability are proving in the courtroom, this is it. To appreciate the gravity of this termination, you have to first understand Dr. Porter's standing. I mean, this was not a physician brought in recently or some kind of peripheral staff member, she had over two decades of dedicated service at DHMC. Her positions were critical, a senior voting member of the professional staff, former acting director of the reproductive endocrinology and infertility or REI division.

And she was jointly appointed to the Department of Radiality too, right? That's right. And the sources, they paint a picture of just extraordinary skill. I remember reading through the testimony about her reputation. It wasn't just local. It was national and international, particularly in gynecologic and early pregnancy pelvic ultrasound. Oh, absolutely. She was the one other physicians consulted when they were stuck. Exactly.

The skill level was consistently described as exceptional. Even the chair of OBGYN, Dr. Leslie DeMars, was quoted using the term misty magic to describe Dr. Porter's ability to perform these, you know, incredibly complex surgical procedures and achieve difficult fertility outcomes. Misty magic. Wow. So we are talking about a unique high-value asset, specializing. infertility sparing surgeries, intricate uterine reconstruction, and crucial consultative services

for cancer patients needing fertility preservation. I mean, she was generating significant revenue and providing unique, necessary patient care. Yet this elite high-functioning service, the REI division, which was the only full-range service in New Hampshire offering Ivy Fart. The only one. It was abruptly shuttered in May 2017. And that raises the first massive question. Why close a successful high-profile division. Right. The answer, according to the court documents, starts with a chaotic internal environment long before the closure. That's where the narrative of institutional failure begins.

The closure was the result of the chaos, not, you know, the cause of Dr. Porter's termination. The period leading up to 2017 was marked by rampant internal conflicts that really boiled down to fundamental issues of patient safety and competence. And this was all regarding two of Dr. Porter's newly hired colleagues. Exactly. Okay. Let's unpack this internal turmoil because Dr. Porter quickly moved from being a celebrated surgeon to an internal watchdog or whistleblower. She was reporting conduct, she believed, was not only poor medical practice, but potentially illegal and unethical. And she was referring staff and concerns directly up the chain of command, specifically to Dr. DeMars and practice managers. She became the central repository for the staff's concerns, which is, as you know, often a very dangerous position for a physician. in an academic setting. Her complaint centered on a junior physician, Dr. Albert Sue, hired in Teddy Fulte, and later, the senior physician and division director, Dr. David Seifer, hired in 2016.

And both of these were hires pushed through by Dr. DeMars. Both of them. So let's start with Dr. Sue. What were the specific competency issues that were flagged? It sounds like there was an immediate knowledge gap. There was a profound gap. Dr. Porter expressed surprise because Dr. Sue had significantly less experienced, than you would expect for someone at his level of training.

Okay. Now, Dr. Porter, being dedicated to the division, spent six months providing dedicated side-by-side mentoring to him. But even after all this intense coaching, he continued to exhibit what was repeatedly labeled poor clinical decision-making and procedure skills. And this wasn't just Dr. Porter's opinion, right? This was corroborated by multiple levels of staff and other senior doctors. Absolutely.

Other esteemed physicians, including Dr. McCallum and Dr. Russell deemed him outright unqualified. The concerns escalated beyond just training deficiencies and into active patient risks. The residents who, you know, often have the clearest, most immediate view of surgical competence, they were acutely aware of the problem. What specifically did the residence report? Well, one resident stated unequivocally that Dr. Sue's surgical technique was unrefined and unskilled, describing his movements as rushed, imprecise, and crude. Crude. I mean, imagine a surgeon being described as crude in a complex, delicate fertility procedure. Exactly. And crucially, the resident testified that, and I'm quoting here, the residents were all aware that there was an element of danger when Dr. Sue operated.

An element of damage. They reported this up the administrative chain, and it ultimately reached Dr. DeMars. The record suggests that Dr. DeMars was alerted to the severity of the danger, but failed to restrict Dr. Sue's clinical activities. That failure to intervene in the face of documented risk, that's a major institutional failure. Was there a specific patient consequence detailed in the sources that illustrates the severity of this lack of judgment? Yes, a deeply unfortunate one. Dr. Michelle Russell detailed a heartbreaking case where Dr. Seuss' failure to notice and act on a critical piece of medical history. History that demanded specific endocrinological precautions led directly to a patient losing her pregnancy at 26 weeks. Oh, that's awful.

It's a devastating outcome, and it directly supports Dr. Porter's claim that she was reporting genuinely harmful, negligent conduct, not just, you know, personality conflicts. So if the junior hire was struggling with basic safety and procedure, what about the senior hire, Dr. David Seifer, who was brought in as REI director in 2016? I mean, this was supposed to be the leader of the division. Dr. Seifers' arrival seemed destined for controversy from the start. Court documents indicate Dr. DeMars went to sign. Significant links to hire him, reportedly circumventing the standard national search process and administratively pushing him into the director role. So she really wanted him? She did. And the credentials committee, the body responsible for ensuring physician quality, had serious substantive concerns about him based on unsolicited reports from his previous employer. Wait, his former employer reached out to DHMC warning them about him. Yes. Unsolicited. They reported a limited focus and indicated he had even been asked to cease providing care.

in certain areas at his previous job. So, despite these flashing red lights, Dr. DeMars went ahead, assuring the committee that she would take personal responsibility for his success. She basically staked her professional reputation on this hire. And what was the result? Did the problems stop, or did they just get worse? The problems accelerated. The staff complaints flooded Dr. Porter almost immediately after Dr. Sefer began procedures

in July 2016. And the specific clinical issues reported were extremely. extremely disturbing, focusing heavily on patient pain and rough technique. Give us some of those details that made it into the court record. Well, nurses and technicians were reporting that Dr. Seifer was unnecessarily rough with probes during exams, and that his patients experienced highly unusual levels of pain following routine procedures, particularly oocyte retrievals. Ouch.

And one OBGYN nurse who had 40 years of experience testified that Dr. Seifers' retrievals were the most bloody and painful that I have ever witnessed. 40 years of experience, and that's the worst she's seen. That is a serious indicator. A very serious indicator. That is deeply concerning for patient care. And what about his overall competence in the required surgical landscape of fertility? Well, a well-respected contract provider, a Dr. McBean, conducted an assessment in 2017, and he concluded that Dr. Seifer practiced outside of ASRM standard of care. So below the national standard?

Far below. He was found to lack standard foundational fertility surgeries, specifically hystoroscopy and laparoscopy, and his screening protocols were judged incomplete or scattered. Essentially, he was running an REI division without the full skill set required by national professional standards. So Dr. Porter is sitting on a mountain of evidence. Poor surgical skills, profound medical judgment errors, dangerous clinical technique. But her whistleblowing went further than clinical incompetence. She reported specific, potentially illegal ethical violations. That's the third tier of her complaints. The most basic was Dr. Seifer providing patient care before receiving his New Hampshire medical license. Practicing without a license. Exactly. Dr. Porter reported this to Dr. DeMars, flagging it explicitly as practicing medicine without a license, a serious legal violation. And what about financial improprieties? You mentioned that as well. She flagged several concerns regarding fraudulent billing and procedures performed without consent. She strongly objected to both Dr. Seifer and Dr. Sue deviating from standard agnostic protocols, ordering excessive unnecessary tests, and performing procedures without

patient consent. Like what? For instance, fallopian tube patency testing was performed on patients who weren't even attempting to conceive. Wow. And she also repeatedly counseled Dr. C.O. on improper billing practices, specifically coding outpatient consults as if they were inpatient services. And she flagged this specific practice as improper and potentially fraudulent to management.

She seems to have been relentless in her pursuit of safety. and ethical standards, which is precisely what the institution should want, but so often it's the person pointing out the problem who gets labeled as the problem. That is the central irony of the case. But the complaint that arguably went the highest, reaching risk management, was the Zika virus exposure incident in February 2017. Ah, yes. This involved a couple traveling to a known Zika endemic area.

Let's talk about that specific ethical concern. What did the national guidelines recommend at that time regarding Zika? Well, CDC and American Society for Reproductive Medicine, ASRM guidelines were very clear. Men who had traveled to Zika areas were recommended to delay participation in pregnancy for a full six months after travel. To minimize the risk of sexual transmission, which could lead to severe birth defects like microcephaly. And what did Dr. Seifron and Dr. Sue do? They ignored the guidelines. They had not advised the husband to cryopreserve sperm before traveling, nor did they follow the waiting period after they returned.

Instead, they proceeded to use potentially exposed sperm to create embryos with a donor oocyte. And Dr. Porter objected. Vemently. She made it clear she would not be involved and explicitly warned them against proceeding, stating it was unethical and unsafe. So the ultimate decision was to proceed with the elective embryo transfer anyway. Yes. DHMC's Risk Management Department became involved. They actually created a special consent form for the couple to assume the risk and hold DHMC harmless

and then proceeded with the transfer, resulting in an ongoing high-risk pregnancy. Unbelievable. And Dr. Porter later learned that risk management had told staff they do things outside of national guidelines all the time. This really crystallized Dr. Porter's role as the persistent, uncompromising critic fighting for patient safety against a culture of a corporate expediency. Okay, here's where the narrative pivot point occurs. All of this intense high-state's institutional conflict has happened.

right when Dr. Porter is dealing with a catastrophic personal health crisis. Right. This shift in context is what fundamentally changes the legal landscape for the institution. The timing is tragic, yes. In late 2015, Dr. Porter developed a severe cerebral spinal fluid or CSF leak. For anyone unfamiliar, this is an excruciating condition where the protective fluid surrounding the brain and spinal cord leaks out. And that causes serious neurological symptoms, right? Profoundly debilitating ones.

Blurred vision, unrelenting head and neck pain, tinnitus, loss of balance. It can be awful. She had to take significant time off to address this. Two substantial medical leaves. The first spanned from December 2015 to April 2016. The second, which included undergoing complex surgery to repair the leak at the Mayo Clinic, ran from August 2016 to November 2016. And even when she came back, she wasn't at full capacity.

No, even upon her return, she remained on long-term disability. LTD status, gradually phasing back into her work. When she returned, DHSC was providing accommodations under the Americans with Disabilities Act, the ADA, correct? They were. And initially, these accommodations appeared functional and reasonable. Dr. DeMars approved limited hours, private office space for focused, quiet work, restricted duty, so no multitasking or emergency triage, and permission to work from home for activities like reading ultrasounds and consultations.

And she was ramping up her hours. She was. By March 2017, she had scaled up to a 12th. 20-hour workweek. So was the institution able to argue that she was incompetent or unable to perform the core functions of her job due to the disability? No, quite the opposite. The Court of Appeals explicitly affirmed that despite the limited hours, she was performing at her usual high level of expertise. So her skills were still there? Absolutely. There's a note in the record from the chief medical officer, Dr. Maria Padden, telling Dr. Porter, Misty, you are a talented surgeon. After

observing a complex procedure in April 2017. DHSC acknowledged there was no question of Dr. Porter's competence. That's a crucial distinction. The institution admits she's gifted and competent, but she needs accommodations. The only noted issue during this period was the encroachment by the problem physicians Dr. Seifer and Dr. Sue. Right. They would frequently violate the terms of her accommodation by demanding her attention or asking questions during her restricted work hours, effectively ensuring she had no protected time for recovery or focused work. So they were making it harder for her.

They were. But legally, the Court of Appeals later dismissed Dr. Porter's pre-termination claims of failure to accommodate, finding that the initial accommodations granted were effective and allowed her to perform her job, even if they were constantly challenged by her colleagues. The real legal battle shifted to what happened when the division closed. And that takes us directly to the smoking gun evidence that entire, altered the trajectory of this case. The division closure was announced in May 2017. DHMC claimed it was a neutral business decision. They claimed it was a blanket termination of all

providers because the REI division had dissolved. But the crucial piece of direct evidence came from the person who made the ultimate decision. Dr. Edward Marins, the chief clinical officer. Okay, tell us about the exchange that took place in the OBGYN staff meeting. This is key. It's the whole case, really. Dr. Marins was attempting to explain the closure. A colleague, Dr. Michelle Russell, who knew the high value of Dr. Porter skills, asked a simple, pointed question in front of the assembled staff. And that question was, she asked, I can understand why the other two needed to leave, but why Misty? And Dr. Marins' response. Dr. Russell testified that his sole immediate response was, Misty was on disability.

That's it, just on disability. That was the reason he gave. She was so stunned by the answer that she vividly remembered the specific word used. Let's pause on the way to that statement. Yeah. Why, in a legal context, is that so incredibly significant that the Court of Appeals called it a game changer? Because the Court of Appeals explicitly ruled that this response constituted direct evidence of discrimination. This is huge. Huge.

In most discrimination cases, the plaintiff, Dr. Porter, has to rely on circumstantial evidence. That means they use the McDonnell-Douglas burden-shifting framework, prove you were fined. while qualified, the employer offers a neutral reason. A pretext. Right, a pretext. And then you have to prove the employer's neutral reason is false or merely a cover for discrimination. It's a very high bar. So Marenz's statement essentially provided a shortcut bypassing that high burden.

Exactly. Direct evidence means the decision maker, the person with the power, said the discriminatory thing out loud. He offered the prohibited reason, her disability status, as the explanation for the termination decision. You don't need to hunt for proof of pretext if the boss admits the discriminatory reason was the motive. That's it. Now, the initial district court judge, trying to be charitable, tried to dismiss the statement as inconclusive, suggesting Marins might have meant something else. Maybe she had disability income. Maybe she was less available.

And the appellate court said no. And that's precisely why they reversed the summary judgment. The Second Circuit ruled that by speculating about Marins' true intent, by trying to find an, innocent interpretation, the district court invaded the role of the jury. It's the jury's job to weigh that evidence, assess Marin's credibility, and decide if he meant what he said. The court said basically let the jury decide. This statement is direct evidence. It goes to the jury period. It was, as the court later called it, an unwise statement, but one that opened the door for Dr. Porter entirely. So let's dive into DHSC's official public narrative for the termination, because the sources show it was

immediately contradicted by the internal reality. DHMC claimed the closure was due to general dysfunction and a severe nursing shortage. Right, dwindling down to just one fully trained REI nurse. That was the public line. It was. But Dr. Marens, the chief clinical officer, exposed the pretext in his own internal communications. He emailed HR stating that while they were pinning the dissolution of our reproductive endocrinology program on our failure to maintain and recruit nurses for this work, He admitted that this explanation was rather thin.

He called his own explanation rather thin in writing. In an email. So what was the real reason Maren cited internally? He laid the blame squarely on his colleague, Dr. DeMars, the chair of OBGYN. He stated the ultimate cause was the dysfunction of the physicians and ultimately a failure of leadership, for which I hold Leslie Dr. DeMars fully accountable. That is an explicit admission that the primary cause of the closure was the failure of Dr. DeMars' controversial hires. The exact people Dr. Porter had been whistleblowing about for years.

Okay. So if the division closed because of the incompetence of the two new doctors and Dr. Porter was the competent doctor doing necessary revenue generating work, why fire her? D.HMC claimed all providers were terminated. But was that true? No. The evidence showed nurse practitioner Beth Todd was reassigned to OBGYN. Okay. And Dr. Porter pointed out that she, an acclaimed surgeon, was performing substantial non-arrowing. REI, work gynecologic ultrasound, complex surgery, fertility preservation. This was work the department actively needed. And they needed people, right.

They did. The OBGYN department itself had submitted a request to hire another gynecologist in June 2017 because it was demonstrably short-staffed. So we have an institution admitting they are short-staffed and closing a division due to failed leadership, yet they are firing their most valuable, gifted, revenue-generating surgeon who also happened to be disabled and a whistleblower. It makes no sense on the surface. Did Dr. Porter even try to get reassigned? Absolutely. She formally communicated her strong interest in remaining in a non-IV, non-R-E-I role within OBGYN directly to Dr. Merrins. But here's the critical point.

Dr. Marins, the ultimate decision maker, never spoke to her directly about reassignment options. That is a massive operational failure or perhaps an intentional omission. He testified that he thought a lot about this and even reflected with Leslie, Dr. DeMars, but did not follow up with Dr. Porter. Instead, he relied heavily on the recommendation of Dr. DeMars, stating the staffing decisions were made at the recommendation of Dr. DeMars. And this reliance on a highly compromised source, this is what opened the door for the cat's paw theory. It paved the way for the jury to accept the cat's paw theory of liability. Okay, let's take the time to really unpack the cat's paw theory, because this

concept is key to how institutions are held liable when the animus comes from a manager, not the CEO. For our listener, what exactly is the cat's paw theory in this context? The term comes from an old fable where a monkey uses a cat's paw to pull chestnuts out of a fire, avoiding burning himself. Right. Legally, the cat's refers to the situation where a supervisor, Dr. Tamar's in this case, the biased cat, harbors retaliatory or discriminatory animus against an employee, Dr. Porter. The supervisor then influences an otherwise neutral decision-maker, Dr. Marins, the unwitting monkey, to take an adverse action against the employee. The employer is liable if the decision-maker relied negligently on the biased information provided by the supervisor. So the question isn't whether Marz was personally biased, but whether he was negligent in letting DeMars, the cat, pull his strings.

Yeah. Why was Dr. DeMars so invested in ensuring Dr. Porter was terminated? The evidence of DeMars Anamis is stunningly clear in the record. Remember, Marin held DeMars fully accountable for the failure of the REI division. Right. DeMars deflected that blame entirely onto Dr. Porter, her chief whistleblower. How does she express that blame? She stated explicitly that Dr. Porter had engineered a masterful takedown of the division

and that the entire REI program would have been successful if Dr. Porter had simply supported her failed hire, Dr. Seifer. So in her mind, Dr. Corder was the professional saboteur, not the patient safety. the advocate. Precisely. She described Dr. Porter as a disruptive behavior, disruptive influence on the team. She stated to Marins that if they were to retain Dr. Porter, she would have to be put into a box enough to keep her from being disruptive. Put into a box. That's incredible language. It implies that reporting serious clinical and ethical violations constitutes a disruptive influence that needed to be contained. And we have evidence that DeMars explicitly used Dr. Porter's disability status as a rationale for firing her.

even if Marins was the one who said it out loud later. Yes. In an email exchange where Marins noted he was getting inundated with emails asking why Dr. Porter couldn't stay on, DeMars responded by stating that those inquirers were remembering Misty as a full-time employee wearing three hats and not the one who's been out for almost 18 months. So she's explicitly linking it to her medical leave. Directly. That statement explicitly ties her termination recommendation to the duration of Dr. Porter's

medical leave and her current part-time disabled status. She seems to have gone to extraordinary lengths to ensure the terminations stuck. She did. She was unambiguous, stating to Marins, it was the right decision to include Dr. Porter in the terminations, and I don't want to change that decision. So she was firm on it. But the most disturbing evidence of her desire to remove Dr. Porter, regardless of the reasons, came when she speculated that her life and the messaging would be much easier if DHSC's general

counsel could somehow find that Dr. Porter was involved in medication diversion issues and facing loss of license. Wait, wait. She suggested looking for an entirely new, potentially made up criminal reason to justify the firing after the fact. That is the clear implication. She was hunting for an unimpeachable termination-worthy cause after the decision had essentially been made and communicated to Marins.

This kind of behavior provides powerful evidence for a jury to conclude that DeMars was motivated purely by animus and retaliation. So the cat's paw theory was successful because Marins, the decision maker, failed to insulate himself from this obvious bias. He knew the department was short-staffed, knew Dr. Porter was gifted, received her request for reassignment, and yet he relied entirely on the person whose professional reputation had been ruined by the whistleblower. That's the legal conclusion of negligence.

He had all the evidence that Dr. DeMars was biased and seeking revenge for. for her own institutional failure, yet he chose to let her recommendation dictate his final decision regarding Dr. Porter's employment status. And that's why the case went to trial. This was why the appellate court vacated the summary judgment and sent the case to trial on both the disability discrimination and the wrongful discharge whistleblower claims. That brings us to the actual trial outcome. After the 2024 appellate court victory for Dr. Porter, the case proceeded to a three-week

jury trial, culminating in a complex, divided verdict in April 2025. This verdict is a masterclass in how different states apply different legal tests. The verdict farm is truly eye-opening because it tells us what the jury believed factually, but also how high the legal hurdles were. The jury found DHSC not liable on all federal and New Hampshire state claims. Not liable on anything federal. Nothing. That includes the Federal Americans with Disabilities Act, the ADA, the ADA, the Rehabilitation Act, the New Hampshire Whistleblowers Protection Act, the New Hampshire Law Against Discrimination, and the state.

wrongful discharge claims. But they found DHSC liable on one claim. Disability discrimination in violation of the Vermont Fair Employment Practices Act, or VEPA. Precisely. This split verdict means the jury clearly accepted Dr. Porter's fundamental factual narrative. That discrimination occurred. But they believed that DHMC's actions did not meet the causation standard required by the federal and New Hampshire statutes. But it did meet the lower standard required by Vermont law. Exactly. This is the absolute crux of the entire deep dive. We have to slow down and explain the difference between the but-force standard and the motivating factor standard. So let's start with the but-for standard used in the federal and New Hampshire claims where she lost. The but-force standard

is demanding. It requires the plaintiff, Dr. Porter, to prove that her disability was the sole necessary cause of her termination. Think of it like a chain of dominoes. If you have five dominoes lined up, disability, whistleblowing, dysfunction, chaos, nursing shortage. Right. The But-4 standard asks, if we remove the disability domino, would the final domino termination still fall? And if the answer is yes, if she would have been fired anyway due to DeMars' retaliation or the division closure, then the claim fails under But-Four. Exactly. The jury, by rejecting all the federal and Newhantra claims, was essentially saying, we see the discrimination, but Dr. Porter had so many enemies and the department was so dysfunctional that DHSC would have terminated her employment any. way, even if she hadn't been disabled.

So the disability was a reason, but not the necessary reason. Correct. That is a tough legal standard to meet, especially in a messy corporate environment where there are always multiple reasons for termination. It is the standard imposed on disability claims by the U.S. Supreme Court post-2009, making them harder to prove than typical claims of race or sex discrimination under Title VII. Okay. Now, let's contrast that with the standard under the Vermont Fair Employment Practices Act v. FIFA. where Dr. Porter successfully won her liability claim.

What's different there? Vivipa uses the lower motivating factor standard. This standard is identical to the standard historically and currently used in employment discrimination cases based on race, sex, religion, or national origin under federal Title VII. Okay. Under this instruction, the jury only had to find that Dr. Porter's disability was a motivating factor, meaning one of the things that pushed DHMC toward the termination decision, even if other legitimate or illegitimate factors were also at play.

So using the domino analogy, if the disability domino just pushed the termination domino slightly, even if four other dominoes were also pushing it, Vepa liability is established. That's a good analogy. Another way to think of it is a recipe. For the federal but four claims, the disability had to be the only active ingredient necessary for the cake to bake. For Vepa, the disability only had to be one ingredient that contributed to the final flavor. And Marins' statement, Misty was on disability, that's the proof of that ingredient. It's perfect proof for the jury that the disability was at least one motivating factor in the decision to include her in the terminations, even if Tamar's retaliation was another separate factor. Naturally, DHMC immediately challenged this outcome, arguing that since VEPA mirrors federal law, it should adopt the federal disability standard of but for, not the lower motivating factor standard.

Of course. That became the focus of the critical post-trial motion in November 2025. DHMC asked the district court to overturn the verdict or grant a new trial, claiming the jury instructions on VFEPA were legally flawed. And the judge said no. The district court judge denied the motion decisively, upholding the entire verdict. What was the primary legal justification for upholding the lower motivating factor standard for VFEPA disability claims? This is where the intricacies of state federal legal relationships come into play. It boils down to Vermont, legal precedent, and legislative intent. The court noted that Vermont precedent consistently ties VEPA standards and burdens of proof directly to federal Title VII case law, not the ADA or the Rehabilitation Act, even though those acts deal with disability.

So while federal courts treat disability differently than race or sex, Vermont state courts treat them all the same under VEPA. Precisely. The court specifically cited the post-2009 Second Circuit Natofsky decision, which confirmed. that federal disability claims require the stricter but for standard. However, the Vermont Supreme Court, even in very recent decisions like Hammond in 2023, continued to apply the Title VII framework, the motivating factor standard, to all VEPPA claims, including disability. So that suggests a deliberate state policy choice. It does. The district court judge noted Vepa's structure as a unified statutory regime. The Vermont legislature chose to include all protected

traits, race, sex, sexual orientation, disability within a single comprehensive anti-discrimination law. Right. The court reasoned that the legislative intent must have been to use a single uniform causation standard for all of those classes. And since that uniform standard is tied to Title VII, it remains motivating factor. The judge refused to certify the question to the Vermont Supreme Court because, in his view, the existing precedent was crystal clear. Vefepa operates under its own more inclusive standard, regardless of how federal courts have tightened the screws on the ADA. And think about the implication for you, the listener. If Dr. Porter had brought her case only under the federal standard or only under New Hampshire state law, she would have lost,

the millions in damages rested entirely on the legal principle that Vermont treats a disability claim the same way it treats a sex or race discrimination claim. It's a powerful illustration that geographical location matters immensely in employment law. successful VP claim translated directly into the final judgment award. Let's talk about the specific damages the jury awarded Dr. Porter. The jury determined she was entitled to substantial economic damages, lost income and expenses, totaling a million dollars. A million dollars. And additionally, she was awarded non-economic damages for the mental anguish, pain, and suffering caused by the discrimination amounting to $125,000. Leading to a total judgment entered of $1,100,000, leading to a total judgment entered of $1,125,000.

The jury rejected the punitive damages, which suggests they believe the conduct was discriminatory, but perhaps not malicious or outrageously reckless enough to warrant further financial punishment. That's a fair reading. Punitive damages require an even higher level of egregious conduct. The jury found that DHSC discriminated, but perhaps that discrimination was more a result of Maren's negligence in relying on the vengeful de Mars, the successful cat's paw argument, rather than an institutional intent to maliciously injure Dr. Porter. Still, over a million dollars was awarded solely because the causation standard in Vermont was met.

That's right. This has been a fascinating deep dive. We've seen a system breakdown where a gifted surgeon, celebrated by her peers, was simultaneously marginalized for both her whistleblowing exposing incompetence and her medical recovery from a severe CSF leak. Her career was abruptly terminated based on what the courts ultimately deemed questionable pretext, fueled by a supervisor who was retaliating for being exposed. The documents reveal a profound disconnect between DHMC's stated reasons for the division

closure, a nursing shortage and dysfunction, and the internal truth, a failure of leadership compounded by a discriminatory decision maker relying on a subordinate supervisor, Dr. DeMars, who had every motive to ensure the chief critic was eliminated. And the decision maker's own unwise statement about Dr. Porter being on disability was the piece of direct evidence that allowed the jury to. to skip the complex pretext debate entirely. The final result is a monumental win for Dr. Porter, resting on a razor-thin legal distinction. It underscores how critical it is for institutions to ensure that every single staffing decision,

especially during a reorganization or termination, is completely free of discriminatory or retaliatory intent. In this case, Marins failed to investigate to Mars's obvious bias, and that led directly to the successful invocation of the cat's paw theory. You know, what's fascinating here is how the legal process successfully dissects institutional communication and corporate narratives. The chief clinical officer, Dr. Marins, had to admit in deposition that he needed a better way to explain the termination of a gifted surgeon. Right. And for you, the listener, this race is an important question that extends far beyond this medical center. If an institution has to search for the best way or the finest way to explain a professional business decision,

how often is that convenient justification being used to shield the organization, from uncomfortable underlying truths about managerial revenge or bias. And in an era where whistleblower protections are vital, what is the true cost to an organization when internal friction is allowed to destroy its best assets simply because they spoke up? That intersection of professionalism, retaliation, and law is something worth continuing to explore. If you like the Employees' Survival Guide, I'd really encourage you to leave a review. We try really hard to produce information to you that's informative, that's time, timely that you can actually use and solve problems on your own and at your employment.

So if you like to leave a review anywhere you listen to our podcast, please do so. And leave five stars because anything less than five is really not as good, right? I'll keep it up. I'll keep up the standards up. I'll keep the information flowing at you. If you'd like to send me an email and ask me a question, I'll actually review it and post it on there. You can send it to m-C-R-U-Y at C-A-P-C-Law.com. That's capclaw.com.

Thank you.