2 0-3894

P orter v. Dartmouth-Hitchcock Medical Center

1 U NITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 - - - - - - 4 August Term, 2021 5 ( Argued: February 24, 2022 Decided: February 6, 2024 ) 6 Docket No. 20-3894 7

_ ________________________________________________________ 8 M ISTY BLANCHETTE PORTER, M.D., 9 Plaintiff-Appellant, 10 - v. - 11 D A RTM O U T H

- H I T C H C O C K M E D I C AL C E N T E R , D ARTM OUTH

12 H I T C H C O C K C L I N I C , M A RY H I T C H C O C K M E M O R I A L 13 HOSPITAL, DARTMO UTH-HITCHCOCK HEALTH, 14 Defendants-Appellees . 15

_

________________________________________________________ 16 B efore: LIVINGSTON, Chief Judge, KEARSE and WALKER, C ircuit Judges . 17 Appeal b y plaintiff from a judgment of the United States District Court 18 for the District of Vermont, Geoffrey W. Cra wford, Chief Judge, dismissing her1 a mended complaint against her former employer, defendants D artmouth-Hitchcock 2 M e dical C enter et al . ( c ollectively "DHMC"), principally alleging discriminatory 3 termination of her employment (a) on account o f her disability, in violation of the 4 A mericans w ith Disabili ti es A c t of 1990, 42 U.S.C. § 12101 et seq. , the Rehabilitation 5 A ct of 1973, 29 U.S.C. § 701 et seq. , and the laws of Vermont and New Hampshire; 6 and (b) on account of her "whistleblowing"--and other complaints to DHMC o f 7 i mproper, incompetent, and harmful conduct by physicians in her DHMC division-- 8 in violation of New Hampshire law. The district court granted summary judgment 9 in favor of defendants for lack of proof o f causation, concluding principally that 10 a lthough plaintiff had s h own a prima facie case with regard to disability and 11 whistleblowing activity, DHMC adduced sufficient evidence of legitimate business 12 r easons for the termination of her employment, to wit, the closure of the division in 13 which she was employed and the unavailability of other suitable positions for her at 14 D HMC; and that plaintiff failed to point to evidence sufficient to permit an inference 15 that d efendants' proffered rea s o ns for her termination were pretext for the alleged 16 d iscrimination. See Porter v. Dartmouth Hitchcock Medical Center , No. 5 :17-cv-194, 2020 17 W L 6789564 (D. Vt. Nov. 3, 2020).

- 2 -1 On appeal, plaintiff c ontends principally that the d i strict court applied 2 e rroneous legal standards in assessing the c ausation element of her claims, and that 3 in granting summary judgment the court decided genuine issues o f f act as to whether 4 d efendants' explanations for their actions were pr e te x t for such d iscrimination, issues 5 that should have been submitted to a jury. We conclude that the d istrict court did not 6 properly apply sum m ary judgment standards in considering the evidence as t o 7 pretext and causation, and h ence it erred in concluding that no rational juror could 8 infer that plainti ff wa s terminated, and not r etained, based on her disability or her 9 whistleblowing-type acti v i ty . We affirm insofar as the court dismissed plaintiff's 10 c laims that she wa s otherwise discriminated against by d enial of a reasonable 11 a ccommodation for her d i s ability prior to her termination or was retaliated against 12 for exercising her rights to such accommodation. 13 Affirmed in part, vacated and remanded in part. 14 GEOFFREY J. VI TT, Norwich, Vermont (Vitt & 15 Associates, Norwich, Vermont; Katherine B. 16 Kramer, D GW Kramer, New Y ork, New York, 17 on the brief), for Plaintiff-Appellant . 18 DONALD W. S CHROEDER, Boston, Massachusetts 19 (Jessica E. Joseph, Morgan McDonald, Foley & 20 Lardner, Boston, Massachusetts, on the brief), 21 for Defendants-Appellees . - 3 -1 KEARSE, Circuit Judge : 2 Plaintiff Misty Blanchette Porter, M.D., a ppeals from a judgment of the 3 United States District C ourt for the District of Vermont, Geoffrey W. Crawford, Chief 4 Judge, dismissing her a mended complaint a gainst her former employer, defendants 5 D artmouth-Hitchcock M edical Center et al . ( coll ec ti vely "DHMC" or "D-H"), 6 principally alleging discriminatory termination of her employment ( a) on account o f 7 her disability, in v i olation o f the Americans wi th Disabilities Act of 1990, 42 U.S.C. 8 § 12101 et seq. ("ADA"), the Rehabi l itation Act of 1973, 29 U.S.C. § 701(a) et seq. , and 9 the l a ws of V ermont and New Hampshire; and (b) on account o f her reporting t o 10 D HMC on conduct by physicians in her DHMC division that she reasonably believed 11 w as unlawful ( i.e. , whistleblowing) or unethical, improper, o r harmful to patients 12 ( collectively Dr. P orter's "reporting activities"), in violation of New Hampshire law. 13 The district court granted summary judgment in f avor of defendants for l ack of proof 14 o f causation, concluding pr incipally that although Dr. Porter had shown a prima f acie 15 c ase with regard to her d isability and her whistleblowing a ctivity, DHMC adduced 16 sufficient evidence of l egitimate business rea so n s f o r the termination of her 17 e mployment, to w it, the closure o f the d ivision in which she was employed and the 18 unavailability of other suitable positions for her at DHMC; and that Dr. Porter failed - 4 -1 t o point to evidence suffici en t to p ermit an inference that defendants' proffered 2 r easons for her termination were pretext for the a lleged discrimination. See Porter v. 3 D artmouth Hitchcock Medical Center , No. 5:17-cv-194, 2020 WL 6789564 (D. Vt. Nov. 3, 4 2 020). 5 On appeal, Dr. P orter contends principally that the district court applied 6 e rroneous legal standards in assessing the c ausation element of her claims, and that 7 in granting summary judgment the court decided genuine issues o f f act as to whether 8 d efendants' explanations for th eir actions w ere pretext for such discrimination and 9 r etaliation, i ss ues th at should have been submitted t o a jury. For the reasons that 10 follow, we conclude that the d istrict court d id not properly a pply summary judgment 11 standards in considering the evidence a s to pretext and causation, and that it erred 12 in concluding that no rational juror could infer that Dr. Porter was termina ted , a n d 13 not r etained, b ased on her disability o r her reporting activities. We a ffirm insofar as 14 the court dismissed claims b y Dr. Porter that she was otherwise discriminated against 15 b ydenial of a reasonable accommodation for her disability prior to her termination 16 o r was retaliated against for exercising her rights to such accommodation.

- 5 -1 I. BACKGROUND

2 The record as to the events at issue here, taken in the light most favorable 3 t o Dr. Porter as the party against whom summary judgment was granted, includes 4 the following evidence. Some portions of the record have been filed under seal; they 5 a re hereby deemed unsealed to the extent that their contents are quoted or described 6 in this opinion. 7 DHMC has an obstetrics and gynecology department ("OB/GYN") that, 8 from 1979 through M ay 2017, included a Reproductive Endocrinology and Infertility 9 D ivision ("REI" or "RE I Division"). REI provided services covering various aspects 10 o f reproductive medicine, including the care of children and women with hormonal 11 i mbalance and genetic syndromes affecting the reproductive system, procedures for 12 i n vitro fertilization ("IVF") and for assisted reproductive tec hn o logies ("ART"), 13 c omplex gynecologic clinical care, surgery for women who d esired to h a v e c h ild14 b e aring capacity, and gynecologic and early pregnancy pelvic ultrasound.

- 6 -1 A . Dr. Porter's First 20 Years at DHMC 2 Dr. Porter began working as a staff physician a t DHMC in the REI 3 D ivision in 1996. She specialized in the treatment of women and their partners who 4 w ere experiencing difficulties with fertility. A y ear l a ter she was promoted to the 5 position of Medical Director of the IVF/ART program and was appointed j o i n tl y t o 6 D HMC's Department of R adiology. In 2001, she b ecame a senior voting member o f 7 the DHMC Professional Staff.

8 1 . Dr. Porter's Performance 9 Dr. Porter was skilled in radiology, complex OB/GYN surgery, and 10 gen era l gynecological care, and had been internationally recognized for her skill in 11 r eading gynecologic ultraso unds. D r. M i chelle Russell--a physician in DHMC's 12 OB/GYN Department who specialized in maternal-fetal medicine, which focuses o n 13 patients with high-risk pregnancies--worked with Dr. Porter from 200 5 un til Dr. 14 P orter's termination in 2017. ( See Declaration of Dr. Michelle Russell dated March 5, 15 2 020 ("Dr. Russell D ecl."), ¶¶ 1-2.) She described Dr. P orter as " a n outstanding 16 physician" w ith "a broad range of skills, including the ability t o perform complex 17 surgery and read d ifficult ultrasounds. She was our go-to person for complex benign - 7 -1 GY N s urgeries, such as myomectomies (removal of uterine fibroids). Many GYN 2 surgery cases went t o Dr. Porter." ( Id . ¶ 6.) Dr. Russell stated that she " relied on Dr. 3 P orter's expertise o n a regular b asis. . . . We all used Dr. Porter a lot for first trimester 4 u ltrasounds . . . ." ( I d . ¶ 7.) 5 Sharon Parent, an OB/GYN and REI nurse, observed that "[t]here were 6 times when there would literally be a line of OB/GYN doctors waiting to see Dr. 7 P orter." ( Declaration o f Sharon Parent dated February 2 8, 2020 ("Parent Decl."), ¶ 2.) 8 Dr. Leslie DeMars, who at the times relevant here was chair of the 9 OB/GYN Department, often discussed the s k i l l s of Dr. Porter (or "Misty") using the 10 term "Misty magic." She testified that "Misty is an amazingly gifted and dedicated 11 r eproductive endocrinologist and infertility specialist who I think through technical 12 skill and creativity was abl e to achieve lots of d e sired pregnancies for women, and 13 that's her 'Misty magic.'" (Deposition of Dr. Leslie DeMars ( "Dr. DeMars Dep.") at 43.) 14 In 2011, Dr. Porter became Acting Director of the REI Division. A new 15 D irector, Dr. David Seifer, was appointed in May 2016. ( SeePart I.C. below.)

- 8 -1 2 . Dr. Albert Hsu 2 In 2014, D r. Albert Hsu joined the REI Division following the completion 3 o f his fellowship training in reproductive medicine. After learning that the position 4 had been offered to Dr. Hsu, Dr. P orter--who was then REI's Acting D irector--"called 5 him to a sk about his experience handling IVF c ases." (Decla ra tion of Dr. Misty 6 B lanchette Porter dated March 4, 2 0 2 0 ("Dr. Porter Decl."), ¶ 1.) Learning, to her 7 " surprise[,] . . . that he had significantly less experience in doing the basic procedures 8 than would be e xpected of a doctor a t his level of training," she thereafter attempted 9 t o mentor and train him. ( Id . ¶¶ 1-2.) "Given his limited experience, I spent the next 10 6 months directly teaching him at his side, taking call with him 7 d a ys a w eek[,] 11 teaching" him various re l e v ant pr o c e d u r e s. ( D r . Porter Report to Dr. Seifer dated June 12 3, 2016.) 13 No twithstanding Dr. Porter's "considerable investment" of time and 14 e ffort, "Dr. H s u continued to demonstrate poor clinical decision-making and 15 procedure skills." (Dr. Porter Decl. ¶ 2.) Dr. Porter beg an r eporting Dr. Hsu's 16 d eficiencies to Dr. DeMars and to Heather Gunnell, the OB/GYN Practice Manager, 17 w ithin a few months after D r. Hsu began working in REI. ( See, e .g. , Deposition o f Dr. 18 M i sty Blanchette Porter ( "Dr. Porter Dep.") a t 30-31.) She " regularly" told Dr. DeMars - 9 -1 that Dr. Hsu d id not have the capacity to be a competent R EI physician. (Dr. Porter 2 D ecl. ¶ 4.) 3 Other members of the D HMC medical staff w ere similarly critical o f Dr. 4 Hsu's performance. Dr. Porter stated that "[i]t was common for physicians, nurses, 5 nurse practitioners, technicians, and others t o come to me t o express a concern about 6 D r. Hsu . . . . I t old the persons who came to me that they needed to speak with their 7 d irect superviso r an d Dr. Leslie DeMars, who w as Chair of the OB/GYN 8 Dep a rtment." ( I d . ¶ 3.) Dr. Julia MacCallum, who w as in the OB/GYN residen cy 9 program in 2 0 1 2 -2016, spent two years working with Dr. Porter and Dr. Hsu. She 10 " found that Dr. Hsu did not have a good understanding of the basic knowledge that 11 w ould be expected o f an attending physician in an REI Division," and that "[b]ecause 12 D r. Hsu lacked a basic knowledge base, he often provided confusing or misleading 13 information to his patien ts ." ( Declaration o f Dr. Julia MacCallum dated March 5, 14 2 020, ¶ 4; see also id . ¶ 6 (describing Dr. Hsu's lack of awareness of a certain procedure 15 wi th respect t o a myomectomy surgery--which was therefore performed by Dr. 16 M a cCallum who had been a ssisting--and d escribing Dr. Hsu's surgical technique as 17 " unrefined and u nski l l ed," "rushed, i mprecise, and crude"); id . ¶ 7 ("The residents 18 w ere all a ware that there was an element of danger when Dr. Hsu was in the lead in - 10 -1 the OR."); id . ¶ 8 ("Every time h e w en t i n to th e OR, he presented a risk to patient 2 safety.").) 3 Dr. MacCallum told her "direct supervisor about Dr. Hsu being a danger 4 t o patients," which her "supervisor shared . . . with Dr. DeMars"; and Dr. MacCallum 5 herself "told Dr. DeMars about the danger that Dr. Hsu posed to patien ts w hen he 6 o perated." ( Id . ¶ 7.) She stated that "[Dr. D eMars's] r esponses were to the effect o f, 7 ' thanks for telling me,'" and Dr. DeMars "did nothing to prevent him from continuing 8 t o perform procedures." ( Id .) 9 Dr. Russell had also worked with Dr. Hsu; she judged him unqualified 10 for his position at REI. ( See Dr. Russell Decl. ¶ 9 .) "Dr. Hsu di d n ' t have necessary 11 skil l level, and the additional training he r eceived from Dr. Porter did not seem t o 12 im p ro v e h is abilities." ( Id . ¶ 16.) "On a f airly regular basis" she overheard Dr. Hsu 13 o n the telephone g iving patients what appeared to b e "incorrect advice." ( Id . ¶ 4.) She 14 w as "aware of at l east one situation when Dr. Porter was called into th e O R to fix a 15 series of problems that occurred when D r. Hsu was operating." ( Id . ¶ 18.) Dr. Russell 16 al s o d escribed a case in which Dr. Hsu had failed t o notice his patient's m ed i c a l 17 history--a history that called for certain end oc rinological precautions that Dr. Hsu

- 11 -1 f ailed to undertake or recommen d

- - a f a ilure that resulted directly in the patient's 2 l o sing her pregnancy at 26 weeks. ( See id . ¶ 14.) 3 Nurse Parent stated that she had assis ted Dr. Hsu when he was 4 performing IVF transfers and retrievals. She described his uncertainty in performing 5 transfers, which he e vinced in questions he asked of the ultrasound technicians; his 6 inefficient manual "jerk[s] o r tw i t ch[ e s] " e v e n a fter receiving a ssurance that no further 7 movement was needed; and frequent r eports by the patients of their discomfort and 8 pain. (Parent Decl. ¶ 3 .) Parent went to Dr. DeMars multiple times to describe Dr. 9 Hsu's performance in those procedures. ( See i d . ¶¶ 5-6.) 10 In June 2016, Dr. Porter sent an 11-page report to new-REI Director Dr. 11 S eifer in response to his request for an assessment o f the performance of Dr. Hsu. It 12 detailed Dr. Porter's observations as t o, i nter alia, the state of Dr. Hsu's knowled g e, 13 and his deficiencies in critical thinking, in professionalism, and in technical skill. 14 In February 2 017, Dr. DeMars made a division-wide request for 15 c onfidential feedback as to Dr. Seifer's performance. ( SeeDr. DeMars Dep. 114.) In 16 r esponse, Dr. Judith McBean, a per-diem contract provider of services to REI, in 17 a ddition to criticizing Dr. Seifer's skills and standards of c are ( s e e Part I.C.2. below), 18 stated that one of her bi g g est concerns about Dr. Seifer was his failure to address - 12 -1 problems in the performance of D r. Hsu. ( See Dr. McBean email to Dr. DeMars dated 2 F ebruary 22, 2017 ("Dr. McBean email to Dr. DeMars").) She stated that Dr. Hsu's 3 procedures were not within standards set by the American Society for Reproductive 4 M e dicine ("ASRM") and were "both ineffective and costl y to patients"; that his skill 5 set with regard to patient care was inadequate; and that "[h]is surgical skills endanger 6 patients." ( Id .)

7 B . Dr. Porter's Disability 8 In November 2015, Dr. Porter developed a cerebral spinal fluid ("CSF") 9 l e ak that caused her serious neurological problems, including blurred vision, severe 10 head and neck pain, tinnitus, and loss of b alance. In D ecember she began a medical 11 l e ave of absence, during which she had a procedure in an attempt to stop the leak. 12 Dr. Porter returned to work in April 2016 o n a part-time basis, working 13 five-to-seven hours a week. In June, she increased her work schedule t o 12 hours a 14 w eek, although with lim i ta ti o n s o n the scope of her work. In July, she requested a 15 number of accommodations that were r ecommended by her physic ia n, i n cluding 16 private office space, r estricted duties , no multi-tasking, and a work schedule of no 17 more than 12 hours a week. Dr. DeMars granted the requested accommodations. As - 13 -1 di s c ussed in Part II.D. below, Dr. Porter complains that Drs. Seifer and Hsu 2 frequently encroached on the agreed accommodations. 3 In l ate August 2016, Dr. P orter began a second medical leave of absence, 4 which lasted until November. In September she underwent surgery to r epair the C SF 5 l e ak, following which she was restricted to b ed r est for six weeks. During that time, 6 she nonetheless did some work, including reading ultrasounds, p roviding 7 c onsultations, and participating i n tea m meetings by telephone. She physically 8 r eturned to work in November, a t first working f our h ours a week. She gradually 9 increased her schedule, working seven hours a week in D e c e mber; and by March 2017 10 she was working 20 h ours a week. 11 In a ddition to her increased hours, the number of complex tasks that Dr. 12 P o r te r c o u l d pe r fo r m a l so g r a d u a l ly increased, and by A pril 2017, she wa s pe r fo r ming 13 the full r ange of her prior skills. I n A p ri l, she performed a complex surgery, 14 proctored by Dr. Maria Padin, DHMC's then-Chief Medical Officer, following which 15 D r. Padin sent her a note saying, "Misty[,] You are a talented surgeon" (Dr. Padin 16 e mail to Dr. P orter d ated April 11, 2017 ( "Dr. Padin April 2017 email to Dr. Porter")).

- 14 -1 C . Dr. David Seifer 2 In the meantime, Dr. S eifer had been appointed Director of REI in May 3 2 016. He became Director of REI through the efforts o f Dr. DeMars. His route to that 4 position--as described by Dr. Edward Merrens, who chaired the DHMC credentials 5 c ommittee--was neither traditional nor uncontroversial. REI was closed a year later; 6 D r. Seifer's performance in the interim had been generally criticized.

7 1 . Dr. Seifer's Hiring 8 In May 2016, Dr. Merrens was DHMC's Chi ef Med ical Officer ( see 9 D eposition of D r. E d ward Merrens ("Dr. Merrens Dep.") at 78); he would soon 10 transition to Chief C linical Officer ( s ee id . a t 29). In the latter position he would 11 e ventually make the decision to close R EI. ( See id . at 19, 152 ; DHMC S tatement o f 12 Undisputed Material F acts in Support of Defendants' M o tion for Summary Judgment 13 o n All Claims ("DH MC Rule 56 Statement") ¶ 11). Dr. Merrens testified about the 14 a ppointment of Dr. Seifer as REI Director and about the closing of REI. 15 The credentials committee was displeased with the process b y which Dr. 16 D eMars proposed Dr. S e ifer's appointment as R EI D irector. DHMC's usual process 17 for filling a division d irector position included a national search, print a ds, - 15 -1 networking, reaching o ut to national societies, a winnowing process, and 2 interviewing potential candidates, before making an o ffer. ( See Dr. Merrens Dep. 74.) 3 D r. DeMars, however, a short time before proposing that Dr. Seifer be made director 4 o f REI, had hired D r. Seifer in an "administrative role, which was c ompletely within 5 her discretion . . . and then, o nce he was in the system, then she basically leveraged 6 that to then push him in as division director." ( Id . at 175; s e e id . at 74-75.) 7 The c ommittee also ha d serious substantive concerns about Dr. Seifer 8 bec a us e, "independently, members of [the f aculty a t his previous e mployer had] 9 r eached out to [DHMC]" to express "concerns about his practice," and to state that he 10 " had a more limited focus in terms of his a pproach to reproductive endocrinology," 11 " a different practice style," and perhaps "different capabilities than his [former] 12 c olleagues." (Dr. Merrens Dep. 75.) And "there was the suggestion that he had also 13 b e en asked to cease providing care in some areas." ( Id .) 14 Dr. M errens, a s c hair of the credentials committee, sought clarification 15 a s t o Dr. Seifer's "sta tus " at his former e mployer, "the procedures he w as asked t o 16 stop," and whether he "had been fully vetted for his r ole" at D HMC. ( Id .) He "had Dr. 17 D eMars come before the committee to explain her rationale for bringing [Dr. S eifer] 18 forward and her u nderstanding." ( Id . at 77.) Dr. D eMars expressed her displeasure - 16 -1 that D r. Seifer's former colleagues had contacted DHMC to convey thei r c oncerns. 2 ( See id .) She told the committee that Dr. Seifer was an accomplished p hy s i cian, that 3 he might have had a falling-out with his peers, that she believed his former situation 4 had not been a good fit, and that the director role at REI would be a better fit. ( See id . 5 a t 77-78, 83.) 6 Dr. Merrens testified that Dr. DeMa rs assured the committee "that she 7 w ould take personal responsibility that [Dr. S eifer] wo uld b e a success." ( Id . at 77.) 8 The committee thus "allowed [Dr. DeMars] to hire Dr. Seifer with the understanding 9 that s h e would ensure that he would be a success in this role ." ( Id . (emphasis added); see 10 i d . at 83 ("That's how she left the meeting."); id . ("this was on her").)

11 2 . Dr. Seifer's Performance as REI Director 12 Dr. Seifer began work at REI o n June 15, 2 016. His tenure a s RE I 's 13 D irector was not a success. "[C]omplaints about . . . Dr. Seifer[] started from the very 14 b e ginning o f his employment at D-H in the spring of 2016 and accelerated in July 2016 15 when he began doing procedures." (Dr. P orter Answer to DHMC Interrogatory 10.) 16 A lthough Dr. Porter was u nable to recall the "specific dates when individuals 17 c omplained," she s ta ted that there "was an e ndless stream, from multiple sources, - 17 -1 o ver multiple conversations, and in multiple d ifferent situations." ( Id .) In response 2 t o D HMC's interrogatory r equesting identification of "each a nd every REI nurse, 3 u ltrasound technician, and embryologist w h o a p p roached [her] in July 2016 and 4 e xpressed serious reservations about [Dr. Seifer's] alleged substanda rd tec hnical 5 abi li ty . . . and other concerns impacting patient safety" (DHMC Interrogatory 10 6 ( internal quotation marks omitted)), D r. Porter named 12 persons as "some" of those 7 ind i v i duals: the head of the embry o l o gy l ab o r a t o ry, an e mb ry o l o gi st , fo u r u l tr a so und 8 technicians, and six nurses (Dr. Porter Answer to DHMC Interrogatory 10). 9 Dr. Porter stated that the principal criticisms were that Dr. Sei fer was 10 unnecessarily rough with intravaginal ultrasound probes; that his patients woke up 11 w ith more pain than w as typical following routine oocyte harvests; that the test tubes 12 into which follicular asp i ra tes were collected were unusually bloody; that he 13 a ppeared to be disoriented; and that he d id not seem t o know what he was d oing. 14 ( See id .) "The theme was always very c lear, and the concerns were always similar-- 15 specifically, that the REI Division Director was unsafe with patients," and Dr. Porter 16 instructed e v e ryone who complained or commented t o her to report their concerns 17 t o OB/GYN chair Dr. DeMars and other persons in "the chain of command." ( Id .)

- 18 -1 Parent, one of the nurses i dentified by Dr. Porter a s concerned about Dr. 2 S eifer, had assisted both D r. Hsu and D r. S eifer in performing oocyte retrievals, and 3 she stated, "I went t o Dr. Leslie DeMars on multiple o ccasions because I was worried 4 about what I saw happening to the women who were being treated by Drs. Seifer and 5 Hsu." (Parent Decl. ¶ 6 .) Dr. DeMars's response was "that Dr. P o rter set a high bar 6 and [ Parent] had to accept that other d octors d id things differently." ( Id . ) Parent, an 7 OB/GYN nurse for some four decades, including 17 years at REI ( id . ¶ 1), stated that 8 " [Dr. Seifer's] retrievals were the most bloody and painful that I have ever witnessed" 9 ( id . ¶ 4). 10 Dr. Russell, in her declaration, observed that "[t]he nursing staff found 11 i t incredibly difficult to work with Dr. S eifer and Dr. Hsu." (Dr. Russell Decl. ¶ 17.) 12 D r. Russell stated that she did not work much with Dr. Seifer; but her o ffice was close 13 t o his, and she regularly heard him on the telephone "say[ing] things to patients that 14 d idn't sound right, including seemingly incorrect advice." ( I d . ¶ 4.) 15 Dr. Russell also stated that when sh e "sent consults to D r. Seifer, his 16 c onsults were not at the l evel of other REIs tha t [ she had] worked with, despite his 17 many years of experience. He certainly d id not have the competency needed to be a 18 d ivision director." ( I d . ¶ 16.) - 19 -1 In February 2017, in response to Dr. DeMars's division-wide request for 2 a ssessments of Dr. Seifer's performance, Dr. McBean, who served REI on a per-diem 3 b a s is and was "a well-thought-of provider" (Dr. Merrens Dep. 185), gave her 4 e valuation of Dr. Seifer. As t o technical skills, Dr. McBean stated that "Dr. Seifer ha[d] 5 b e en a practicing REI physician for years, but upon arrival [ he] did n o t s eem to 6 understa n d o ur s ys tem for oocyte retrieval," which had been standard "for over 7 7 y ears"; that "he does not d o the standard fertility surgeries of hysteroscopy and 8 l a paroscopy," d espite the fact that "a broad set of skills is critical for success in a small 9 program"; and that he has "limited ul trasound skills both in performing and 10 interpreting." (Dr. McBean email to Dr. DeMars.) As to standard of care, Dr. M c B ean 11 stated that Dr. Seifer "practic[ed] outside of ASRM standard o f c a re" ; that his 12 " conversations regarding ASRM guidelines during team meetings . . . do not r eflect 13 current standards"; and that his "screening and evaluation of patients is often 14 incomplete or scatteredand causes concern in patients." ( Id .)

15 D . Dr. Porter's Reports of Wrongdoing by Drs. Seifer and Hsu 16 In addition to the concerns reported b y REI staff a s to the competence o f 17 D rs. Seifer and Hsu and their non-adherenc e t o pr o fe ssi o n a l st an d a r d s, Dr. Porter and - 20 -1 staff members expressed concerns about other i m proprieties. These included 2 procedures performed wi th out the patient's consent, procedures performed or 3 r epeated unnecessarily or in excess of applicable guid el i nes, and procedures that 4 w ere contraindicated by the patient's condition. 5 The most pervasive practice causing such concerns was the performance 6 b y Drs. Seifer and Hsu of mock embryo transfers. Such trial transfers were not part 7 o f the standard infertility e v a luation but were used after a patient o r couple d ecided 8 that she or they w ere l ikely to proceed with an embryo transfer. Trial transfers are 9 sometimes categorically inappropriate, because some patients decide never to have 10 IVF, or decide to adopt, o r achieve pregnancy with simpler means such as ovulation 11 induction. But Drs. S eifer and Hsu, unlike any DHMC REI physicians before them-- 12 and while Dr. Porter was o n her medical leave of absence--ordered that mock embryo 13 transfers be perform ed o n every new infertility patient. ( See Dr. Porter Answer t o 14 D HMC Interrogatory 12.) 15 Dr. Porter testified that Dr. Seifer and Dr. Hsu "were ordering and 16 performing u nnecessary testing and . . . th ey w ere b illing for that unnecessary 17 testing." (Dr. Porter Dep. 38.) Many patients had insurance for diagnostic testing for 18 infertility; but such diagnostic testing did not include trial e mbryo transfers. Thus, - 21 -1 the d ecision of Drs. S eifer and Hsu to have such mock transfers routinely performed 2 for all infertility patients invited accusations of insurance fraud. 3 Dr. P orter a lso i dentified staff members who informed her that Dr. Hsu 4 had perf orm e d u nnecessary fallopian tube patency studies, i.e. , tests to determine 5 whether the tubes were o pen. He had perfo rm ed such tests on patients who 6 presented f o r abnormal bleeding, not for concerns regarding fertility; for these 7 patients, such a study w as n o t in d ic a ted. In addition, Dr. Hsu and Dr. Seifer were 8 " observed . . . performing a tubal patency study on a patient whose tubes were tied 9 ( thus, it was impossible that she r equired a tubal patency study)." (Dr. P o rter Answer 10 t o DHMC Interrogatory 11.) "It is unlawful billing fraud t o order and bill f o r tes ts 11 that you know are unnecessary." (Dr. Porter Answer to DHMC Interrogatory 12.) 12 Dr. P orter w as a lso informed that procedures w ere being performed by 13 D r. Seifer, or by Dr. Hsu with Dr. Seifer observing, without the patients' consent. She 14 i d entified staff m embers who had observed such procedures and had first-hand 15 knowledge that pati en t c o n s ent, written o r oral, had not b een obtained. Dr. Porter 16 a sked that these infractions be reported t o the supervising radiologists. She also met 17 w ith the lead ultrasound technician and asked him to report these complaints to Dr. 18 D eMars. ( SeeDr. Porter Answer to DHMC Interrogatories 10-11.) - 22 -1 Dr. P orter reported, or directed others to r e port, these concerns about the 2 a cts of Drs. Seifer and/or Hsu--performing unnecessary procedures, billing for such 3 proc e dures, performing them without patient consent--to OB/GYN Practice Manager 4 Gunnell, and to OB/GYN chair Dr. D eMars. ( S e e Dr. Porter Answer to DHMC 5 Interrogatories 10-12.) 6 D r . P o r te r a l s o l e a rne d fr o m the he a d o f D H M C ' s e mb ry o l o gy l ab o r a t o ry 7 - and r e po r te d t o D HM C 's Risk M ana g e me nt pe r so nne l

- - tha t D r s. S e i fe r and Hsu, w i th 8 r espect to a c ouple under their joint care, had not followed rec o m m endations o f 9 A SRM and/o r the United States Center for D isease Control ("CDC") with regard t o 10 e mbryo transfer and i mplantation where there was a known risk of transmission o f 11 the Zika v irus. The genera lly applicable guidance w as that men should delay 12 participation in a pregnancy for six months a fter traveling to a known Zika-endemic 13 a rea such as Brazil. The couple in question had been evaluated by Dr. Seifer o r Dr. 14 Hsu on the d a y th ey were to leave for a vacation in Brazil. Drs. Seifer and Hsu 15 neither requested that the couple cryopreserve the husband's sperm before going t o 16 B razil nor followed the ASRM or CDC guidelines for a waiting period after their trip. 17 L ess than six months after their return, the c ouple created two embry o s fro m a n 18 anonymous oocyte donor, using cryopreserved sperm of the husban d th a t had - 23 -1 potentially been exposed to the Zika virus. ( See Dr. P o rter Answer to DHMC 2 Interrogatory 16.) 3 In a dditi o n, i n the summer after he started in REI, Dr. Seifer was 4 providing care t o patients before h e w as licensed to practice in New Hampshire. 5 A lthough he did so in the presence of Dr. Hsu, Dr. Po rter objected that Dr. Seifer's 6 a ctions constituted th e practice of medicine without a license in violation of New 7 Hampshire law. She reported this conduct to Dr. DeMa rs. ( See Dr. Porter Dep. 8 3 3-34.)

9 E . The Decision To Close REI 10 By the S pring of 2017, the nursing staff in REI had dwindled to a single 11 f ully trained nurse. One R EI nurs e had been terminated in November 2016; and 12 nurse Parent, who had given DHMC a year's notice of her intention to retire, retired 13 in December 2016. Those nurses had not been replaced; thus, in the spri n g o f 2017 14 R EI had only five "providers": D r. Seifer, Dr. Porter, Dr. Hsu, Dr. M cBean who 15 provided per-diem services, and nurse practitioner Elizabeth Todd. ( Dr. Porter Decl. 16 ¶ 5.) According to DH MC,

- 24 -1 [i]n the M arch/April timeframe, OB / G YN D epartment 2 management and DHMC leadersh i p had multiple discussions 3 regarding issues in the REI Divisi on, including the general 4 dysfunction as well a s the nursing shortage pre d i c a m e n t . . . . Dr. 5 DeMars , Chair of the OB/GYN D epartment, Daniel Herr i ck , Vice 6 President of Perioperative and Surgical Services, and D r. Ed[ward] 7 Merrens , Chief Clinical Officer, participated in these meetings , along 8 with others. 9 ( DHMC Rule 56 Statement ¶ 10 (emphases added).) 10 The closing of REI was r ecommended by Herrick, a DHMC vice 11 president for OB/GYN who was the "ad ministrative partner" of the department's 12 chair. (Deposition of Daniel Herrick ("Herrick Dep.") at 1 2 2 ; s e e i d . at 12-13, 27.) 13 Herrick testified that i n o r around February 2017, he and Dr. D eMars had attended 14 a workshop with DHMC's Hum a n Resources personnel, including those who did 15 r ecruiting, and others, to discuss problems a t REI. ( S ee Herrick Dep. 30, 49-51.) He 16 testified that " [f]ollowi n g th a t meeting when everyone left the room, Leslie and I 17 r emained, and I shared with Leslie that it w as my very strong recommendation that 18 w e needed to ei th er s hut the program down or put it on hiatus . . . , but that we 19 c annot continue." ( Id . at 50.) "[S]he agreed that based on what we had just heard that 20 she did not see another option," and "it was at that point that we made the decision 21 t o recommend to the senior leadership that we would shut the program down." ( Id .

- 25 -1 a t 50-51.) Herrick testified that "[a ] s o f A p ri l 18," Dr. DeMars concurred that they 2 should recommend to senior management that REI be closed, and that its staff, 3 including physicians, be terminated. ( Id . at 49.) 4 Dr. DeMars, however, testified that b y the time she w as i n c l uded in 5 d iscussions as to the f uture of the REI Division with Dr. Merrens and other senior 6 management, the decision to close REI had already been made. She testified that at 7 her first such meeting she tri ed to p ropose a reduced R EI that did not include IVF, 8 and a plan to have Dr. Porter deal with ultrasounds, to have Dr. Hsu undertake the 9 r emaining REI duties, and to "counsel [Dr. S eifer] out o f his position"-- i.e. , to end his 10 e mployment at DHMC. (Dr. DeMars D ep. 13 9 ; s ee id . at 136, 139-40.) Dr. DeMars 11 testified that her plan was summarily rejected: 12 Essentially every single point I brought up w as dismissed, and I 13 was told that there was not going to be any plan, that I was not 14 allowed to make any plan. 15 Q. Who told you that? 16 A. Ed [ i.e. , Dr. Merrens]. That it was my fault. 17 ( Id . at 140.) 18 The final decision to close REI was made on April 20 or 21. ( SeeDr. 19 M e rrens Dep. 148.) Dr. Merrens testified that - 26 -1 the decision was we're just going to shut REI down. We're not 2 going to continue some select services, and we're just going to 3 shut this down and go from there. 4 Q. And what was the decision about staffing at that 5 point? 6 A. In terms that we would shut down the program, end, 7 end the providers, terminate the providers that were engaged 8 in it . . . . 9 ( Id .; but see id . at 149 (noting that nurse "Beth Todd was someone that could 10 c ontinue on working just in GYN").) 11 Despite that decision to close REI, Dr. DeMars on April 25-- 12 e nvisioning the "rebirth of this program"--sent Herrick an email urging that she be 13 a llowed to hire a certain candidate for REI "in some capacity asap." (Dr. DeMars 14 e mail to Herrick dated April 25, 2017 ("Dr. DeMars April 25 email to Herrick").) 15 She stated that "it is very hard to hire REIs into an academic program. That's how 16 w e got stuck with David [ i.e. , Dr. Seifer]." ( Id .) 17 In that email, Dr. DeMars also commented on REI's current staff of 18 physicians, in part, as follows: 19 While David is not a good leader, his failure is also the result of 20 a masterful takedown by Misty Porter. If she had wanted to support 21 him, she would have made the division successful .

- 27 -1 Misty is counting on her longevity and my friendship to 2 come in as the savior of the division. 3 Ed is also lumping Albert[ i.e. , Dr. Hsu] into "he's been a 4 problem since day 1" . This is not a fair characterization o f Albert . 5 Again, Misty has decided that she no longer wants to work 6 with him or teach him, and she is bullying him. He did an 7 amazing job by himself Jan-Aug 2016. 8 David is a nudge, who somehow lacks situational 9 awareness, but he came into a dysfunctional division with half 10 the team determined to make him fail. 11 . . . . 12 We have to be very careful about the conditions under 13 which we can terminate our providers. David 's wife is a Pedi 14 Endocrinologist who works mostly in Manchester. It is 15 conceivable that he could join one of the Boston IVF practices (Lord 16 help them) and compete directly for these patients. 17 ( Id . (emphases added).) 18 On May 4, DHMC informed the REI staff--and began informing REI 19 patients--that REI would close at the end of May. Herrick, when asked in his 20 d eposition "[w]hy was the decision made to close the division," testified that the 21 d ecision 22 was pretty straightforward . It was marginally profitable. It was 23 at that time totally dysfunctional. We were unable to sustain staff 24 to run the operation . Patients were not getting the care that they

- 28 -1 deserved, and we were not able to provide care that was 2 [consistent with] the reputation of Dartmouth-Hitchcock. 3 Q. Anything else? 4 A. No. 5 ( Herrick Dep. 13 (emphases added).) 6 Dr. Merrens, however, indicated that the reason for the decision to 7 c lose REI was not straightforward. The shortage of nurses was only the last 8 " straw." (Dr. Merrens Dep. 186.) He had sought input from Aimee Giglio, 9 D HMC's head of Human Resources ( see id . at 22), as to how to frame a solid 10 e xplanation for the closure, stating that 11 [w]hile on the surfacewe are pinningthe dissolution of our 12 reproductive endocrinology program on our failure to maintain 13 and recruit nurses for this work, it is ultimately the dysfunction of 14 the physicians who worked in this area for years ( as well as recent 15 hires ) and ultimately a failure of leadership, for which I hold 16 Leslie [ i.e. , Dr. DeMars] fully accountable. 17 The fact that f ailures of such programs due to nursing 18 shortages are not common and we'll be referring patients to a 19 similar, rural academic REI center in Burlington Vermont, will 20 make our explanation to the public, patients and the media, well, 21 rather thin . 22 ( Dr. Merrens email to Giglio dated May 2, 2017 (emphases added).) Giglio 23 r esponded: - 29 -1 Let's discuss this morning. I appreciate your candorand 2 recognition of the issues. PR here is very sensitive--goes 3 without saying. We will need to manage internal vs. external 4 messaging and issues . 5 ( Giglio email to Dr. Merrens dated May 2, 2017 (emphases added).)

6 F . The Termination of Dr. Porter's Employment at DHMC 7 REI was closed effective June 2017. Dr. Porter's employment at 8 D HMC ended on June 3, 2017. Herrick testified that "[t]he entire program was 9 shuttered so all of the providers were terminated"; Dr. Porter "was terminated 10 a long with the closure of the REI program." (Herrick Dep. 14-15.) "[B]ecause she 11 w as in the program and because the program was closed, therefore her 12 e mployment was terminated." ( Id . at 15.) 13 Dr. Merrens likewise testified that Dr. Porter was terminated simply 14 [b]ecause we closed the program, the REI program. So her 15 termination was, occurred at the same time we terminated the 16 other physician providers in the program. We ended the 17 program in which she worked. 18 ( Dr. Merrens Dep. 19.) At the time of REI's closure, Dr. Porter also had a joint 19 a ppointment in DHMC's Radiology Department. ( See, e.g. , id . at 43.) But on June

- 30 -1 3, Dr. Porter's entire employment at DHMC was ended. ( See id . ; DHMC Answer 2 ¶¶ 95-96.) 3 Despite Herrick's statement that when REI closed all of the REI 4 providers were termin ated, one provider was not. Nurse Todd was instead 5 r eassigned to OB/GYN. ( S eeDr. Merrens Dep. 24-25.) Dr. Merrens received 6 numerous emails sugg e sting that Dr. Porter should be retained, including one 7 from OB/GYN Nurse Coordinator Victoria Maxfield ( seeMaxfield email to Dr. 8 M e rrens dated May 12, 2017 ("Maxfield May 12 email to Dr. Merrens" or "Maxfield 9 e mail") (further described below)). In response to that email, Dr. Merrens stated, 10 i nter alia, that decisions with regard to REI's staff had been made "at the 11 r ecommendation of Dr. De[M]ars." (Dr. Merrens email to Maxfield dated May 12, 12 2 017 ("Dr. Merrens May 12 email to Maxfield").)

13 1 . Dr. DeMars's Non-Recommendation To Retain Dr. Porter 14 Both Herrick and Dr. Merrens testified in their depositions that after 15 the decision was made to close REI, there was no request by Dr. DeMars for Dr. 16 P orter to be retained in OB/GYN. Herrick said that after Dr. DeMars on April 18 17 " supported closing the REI Division and terminating the physicians" (Herrick - 31 -1 D ep. 49), she suggested that "there[ was] an option of keeping Dr. Porter and 2 having her do ultraso und in the gynecology department" ( id . at 55). But Dr. 3 D eMars broached this as "more of a potential option" ( id . at 54); and she then "put 4 i tforth as n otreally a practical opening" ( id . at 58 (emphasis added)). Herrick 5 testified that in various discussions he had with Dr. DeMars and Gunnell it was 6 c oncluded that the ultrasound work was already adequately staffed, that there 7 w as no anticipation of additional demand, and that there thus was no need for Dr. 8 P orter. Although Herrick's domain was budgets and finance ( see id . at 33, 55), he 9 testified that there was no actual "analysis of whether there was sufficient demand 10 for [Dr. Porter] to do this work" ( id . at 56 ("analysis," he said, "might be the wrong 11 w ord")). Herrick testified that keeping Dr. Porter at DHMC "was never planned in 12 [ his] mind." ( Id . at 54.) 13 Dr. Merrens, in his deposition, testified that his "understanding 14 through Dr. DeMars was that [Dr. Porter's] primary interest . . . was around REI 15 and IVF" (Dr. Merrens Dep. 204), and that she would not want to do other work. 16 He said that after receiving many messages about Dr. Porter, he "reflected" about 17 her with Dr. DeMars, and that that "discussion" convinced him that Dr. Porter was 18 not interested in purs u ing anything different from IVF. ( Id . at 207-08; but see id . - 32 -1 a t 209 ("I don't think I had specific conversations with Dr. DeMars about Dr. 2 P orter" in mid-May).) As discussed in Part II.E.2. below, Dr. Merrens testified that 3 " [t]here was never a proposal thatwe're going to end the program and Misty will 4 c ontinue on doing GYN ultrasound ." ( Id . at 169 (emphases added).)

5 2 . Dr. Merrens's "Disability" Answer to Dr. Russell's Question 6 Dr. Merrens testified that "there was nothing about [Dr. Porter's] 7 d isability that led to [his] decision about her termination." (Dr. Merrens Dep. 216.) 8 However, Dr. Russell- -who attended the OB/GYN department meeting that was 9 c onvened for Dr. Merrens to address his decision to close REI--described Dr. 10 M e rrens's answer to "why" Dr. Porter was not being retained by DHMC as follows: 11 Dr. Merrens said that the REI Division was closed due to 12 problems recruiting adequate nursing staff for the division. He 13 then began discussing personnel and the termination of three 14 physicians in conjunction with the closure. When he began 15 discussing personnel, I raised my hand (I was seated towards 16 the front) and asked Dr. Merrens why Dr. Porter had been 17 terminated . I said something like, "I can understand why the 18 other two needed to leave, but why Misty ?" Dr. Merrens 19 responded by saying that Misty was "on disability." I specifically 20 recall him using the word "disability" in his response, because I

- 33 -1 was so shocked that he said that. I said something like, 2 "but she was coming back," a nd Dr. Merrens moved on to a 3 different subject . 4 ( Dr. Russell Decl. ¶ 10 (emphases ours).)

5 3 . Dr. Merrens's Response to the Maxfield Email 6 Nurse Maxfield in her email to Dr. Merrens described Dr. Porter's 7 e xpertise and OB/GYN's staffing needs in a number of areas. Having been 8 e mployed in the OB/GYN clinic for some 18 years, including the most recent eight 9 y ears as Nurse Coordinator and Uro/GYN Charge Nurse, and having worked with 10 D r. Porter during those 18 years, Maxfield observed that Dr. Porter "provides 11 r eproductive endocrinology expertise separate from infertility." (Maxfield May 12 12 e mail to Dr. Merrens.) She stated that Dr. Porter's "expertise in gynecologic 13 u ltrasounds, myomectomies, hysteroscopy, and gyn surgeries provide a level of care 14 to women that is not available from other members of the Gynecology staff . " ( Id . 15 ( emphasis added).) Maxfield observed that OB/GYN " is short staffed already with 16 G YN MD's ," and said "I hope there is a way we could still keep Dr. Porter as a 17 non-infertility REI specialist, GYN surgeon and expert in gynecologic imaging. 18 Her expertise and skil ls are greatly needed!" ( I d . (emphasis added).) - 34 -1 Dr. Merrens promptly responded to Maxfield's email, stating in full as 2 follows: 3 Victoria, 4 Thanks for your email. The recommendations around 5 closing the program and its staff were at the recommendation 6 of Dr. De[M]ars. As you know Dr. Porter currently works at 20% 7 of her time currentlyand I'm not sure of her interest in staying on 8 if the infertility part were to cease. I'm clearly aware how 9 difficult this is for patients and staff. I have been answering 10 emails all week, heartfelt concerned and sad at this transition. I 11 completely understand. 12 ( Dr. Merrens May 12 email to Maxfield, at 2:19 p.m. (emphasis added).) A few 13 minutes later, Dr. Merrens sent the following email to Dr. DeMars: 14 I am getting inundatedwith heartfelt and long emails 15 wondering why Misty can't stay on to do her ultrasound complex 16 operative and teaching roleeven if we end REI. I suspectthat you 17 considered this in the evaluation the program and your 18 knowledge of Misty. I just need to know how betterto answer 19 this question. 20 ( Dr. Merrens email to Dr. DeMars dated May 12, 2017, 2:27 p.m. ("Dr. Merrens 21 M ay 12 email to Dr. DeMars") (emphases added).) 22 Dr. DeMars responded with a lengthy email, stating at the outset that 23 the inquirers asking why Dr. Porter was not being retained were " remembering 24 M i sty as a full timeemployee wearing 3 hats, and not the one who has been out for - 35 -1 a lmost 18 months . " (Dr. DeMars email to Dr. Merrens dated May 12, 2017 ("Dr. 2 D eMars May 12 email to Dr. Merrens") (emphases added).) 3 Dr. Merrens's response to the Maxfield email had stated that he was 4 " not sure of [Dr. Porter's] interest in staying on if the infertility part were to cease." 5 A s described in Part II.C.3. below, Dr. Merrens testified that at some point he 6 r eceived a document from Dr. Porter stating expressly that she had an interest in 7 r emaining in OB/GYN even if the infertility part were to cease. However, he never 8 d iscussed such a possibility with her.

9 G. Summary Judgment Dismissing the Present Action 10 Dr. Porter commenced the present action in October 2017. Her six11 c ount amended complaint ("Complaint") alleged principally that the termination 12 o f her employment by DHMC resulted in part from her reporting and causing to 13 b ereported what she reasonably believed to be unlawful, unethical, or medically 14 d angerous conduct by Drs. Seifer and Hsu, including performance of medical 15 procedures without cl ient consent, the performance of unnecessary procedures, 16 fraudulent billing practices, and knowingly allowing the transfer and implantation 17 o f an embryo where the transmission of Zika virus was a known risk. The - 36 -1 C omplaint asserted that her termination in these circumstances constituted 2 w rongful discharge and whistleblower discrimination in violation of New 3 Hampshire law (coun ts 1 and 2). 4 In addition, the Complaint alleged that when DHMC terminated her 5 e mployment Dr. Porter was on long-term disability, although she had been able to 6 r eturn to work half-time, and with that accommodation she was performing at her 7 u sual high level of expertise and was able to meet all essential job requirements. It 8 a lleged that DHMC, in terminating Dr. Porter's employment, neither "evaluate[d] 9 the feasibility of restructuring her position or reassigning her to another position 10 w ithin" OB/GYN nor told her that such an accommodation of her disability 11 " would be an undue hardship." (Complaint ¶ 107.) It alleged that the termination 12 o f her employment was motivated in part by her disability, in violation of the 13 A DA, 42 U.S.C. § 12101, and § 504 of the Rehabilitation Act, 29 U.S.C. § 794(a) 14 ( counts 3 and 4), as well as in violation of the laws of New Hampshire and 15 V ermont (counts 5 and 6). Dr. Porter also alleged that she had been denied 16 a dequate other accommodation during her shorter workweeks. 17 DHMC moved for summary judgment dismissing the Complaint in 18 i t s entirety, contending that Dr. Porter could not show that she was denied - 37 -1 a ccommodation for her disability or that her termination was the result of any 2 prohibited discrimina tion or retaliation. It proffered evidence, principally the 3 d eposition testimony of Herrick and Dr. Merrens, to show that the decision to 4 c lose REI was a legitimate business decision unrelated to Dr. Porter's disability or 5 t o her reporting activities, and that there was no other suitable position for Dr. 6 P orter at DHMC. 7 Dr. Porter, disputing DHMC's suggestion that the closure of REI 8 made the June 2017 termination of her employment at DHMC necessary, stated 9 that in fact in the spring of 2017 she was doing mostly non-REI work. ( See¶¶ 1-22 10 o f Dr. Porter Answer to DHMC Interrogatory 7, describing her responsibilities 11 that, at the time of her termination, were "not REI-related" and that were sufficient 12 " to occupy [her] entire schedule, even . . . full-time".) 13 For example, Dr. Porter "was regularly consulted by GYN oncology 14 and hematology oncology for young women with cancers (e.g., breast, 15 ly mphomas, colorectal, endometrial cancer, borderline ovarian cancer, and 16 c ervical cancer) who desired fertility preservation." ( Id . ¶ 1.) She provided first 17 trimester ultrasounds and care for patients with pregnancy complications ( id . 18 ¶ 11); she provided co nsults for, inter alia, pregnancies in unusual locations ( i d . - 38 -1 ¶ 12), pediatric gynec ology ( id . ¶ 20), and abnormal uterine bleeding in pre- and 2 post-menopausal wom en ( id . ¶ 16). She performed ultrasound-guided benign 3 gynecologic procedures such as biopsies of the uterine lining, draining of pelvic 4 cysts, and removal of imbedded IUDs ( id . ¶ 17), and performed minimally 5 invasive advanced lap aroscopic surgery for many benign gynecological diagnoses 6 ( id . ¶ 2). 7 Dr. Porter also pointed out that even without an REI division, DHMC 8 still needs capability to perform fertility evaluations; until she was terminated, she 9 performed such evaluations which, when indicated, included ultrasound-guided 10 tubal patency studies, which "[n]one of the remaining gynecologists at D-H kn[ew] 11 how to do." ( Id . ¶ 10.) Dr. Porter stated, "one of the generalist OB/GYNs called me 12 shortly after my termination and asked me to walk her through how to perform 13 the procedure, as she had never done or seen one, and a patient on her schedule 14 l a ter that day had requested it." (Id .) 15 As to DHMC's assertion that in June 2017, when REI was closed, there 16 w as no available DHMC position to which she could be reassigned, Dr. Porter 17 submitted evidence of OB/GYN's June 2017 request to hire another GYN 18 physician. ( SeeAttachment to Gunnell email to Chief Clinical Officer Dr. Merrens - 39 -1 and Chief Medical Officer Dr. Padin dated June 30, 2017 ("OB/GYN's June 2017 2 Hiring Request").) Th e request--signed by Gunnell and DeMars--said, inter alia, 3 that another GYN physician was "essential for provision of direct patient care in 4 the Ob/Gyn clinic, operating rooms, and Birthing Pavilion," and that OB/GYN 5 " ha[s] a shortage of subspecialists and generalists in the department." ( Id .) It 6 stated: "We have no c apacity to fill in these duties with existing staff." ( Id .) 7 The district court, in an opinion dated November 3, 2020, see2020 WL 8 6 789564 ("D.Ct. Op."), granted summary judgment dismissing the Complaint. For 9 D r. Porter's disability and whistleblowing claims, the court employed the 10 M c Donnell Douglas burden-shifting analysis, under which the plaintiff bears the 11 b u rden of showing a prima facie case of unlawful discrimination; the burden of 12 production then shifts to the employer to articulate a legitimate, 13 nondiscriminatory rea son for its adverse employment action; if the employer 14 a dduces such evidence, the plaintiff, in order to avoid summary judgment, must 15 point to evidence sufficient to permit an inference that the employer's proffered 16 r eason is pretext for the alleged prohibited discrimination, see M cDonnell Douglas 17 Corp. v. Green , 411 U.S. 792, 802-07 (1973).

- 40 -1 The district court ruled that the evidence adduced by Dr. Porter, 2 v iewed in the light most favorable to her, was sufficient to meet the first step of the 3 M c Donnell Douglas analysis as to her whistleblowing and disability discrimination 4 c laims. See, e.g. , D.Ct. Op., 2020 WL 6789564, at *9 ("[s]ome portion of" Dr. Porter's 5 r eporting activities, i.e. , "[h]er criticism of Dr. Seifer and Dr. Hsu[,] continued 6 through the spring of 2017," and "likely qualifies as protected whistleblowing 7 a ctivity"); id . at *13 (Dr. Merrens and Dr. DeMars were aware of Dr. Porter's 8 d isability). And the court found that "Dr. Porter's complaints about the other 9 physicians are communications that would satisfy the public policy" element of a 10 w rongful discharge claim. Id . at *15. However, the court found that DHMC 11 proffered legitimate business reasons for closing REI and terminating Dr. Porter's 12 e mployment and that Dr. Porter failed to adduce sufficient evidence to permit an 13 inference that those rea sons were pretext for the alleged discrimination, and thus, 14 a ll of Dr. Porter's principal claims failed for lack of proof of causation. 15 As to the causation element of the whistleblower and wrongful 16 d ischarge claims, the district court found that there was no evidence that Dr. 17 M e rrens, as decisionmaker, knew of Dr. Porter's reporting activities ( seePart II.E.1. 18 b e low). It thus concluded that there was no evidence that DHMC closed REI and - 41 -1 terminated Dr. Porter because of her reporting activities. SeeD.Ct. Op., 2020 WL 2 6 789564, at *8-*11, *15. Although Dr. Porter contended that Dr. Merrens made the 3 d ecision to deny her further employment at DHMC because he was influenced to 4 d o so by Dr. DeMars, who had received Dr. Porter's reports and was angry at her 5 persistent complaints of improper and unlawful conduct, the court stated (as 6 d escribed in Part II.E.2. below) that Dr. DeMars advocated for Dr. Porter's 7 r etention, and that the evidence did not support an inference that her irritation at 8 D r. Porter's criticism of Dr. Seifer was so great that she would retaliate by 9 r ecommending Dr. Porter's termination. See id . at *9-*11. 10 As to the causation element of Dr. Porter's disability claims, the 11 d istrict court ruled that there was no proof that her disability was a "but-for" cause 12 o f DHMC's decision not to move her to another position within DHMC. As set 13 forth more fully in Part II.C.2. below, the court ruled principally that, standing 14 a lone, Dr. Merrens's reference to Dr. Porter's "disability" in response to Dr. 15 Russell's inquiry as to why Dr. Porter was not being retained was "inconclusive," 16 and, inter alia, that there was no evidence of "more explicit statements of 17 d iscrimination" or of "a pattern of discriminatory comments," and that there were 18 " possible interpretations" of that response other than its literal meaning. Id . at *13. - 42 -1 II. DISCUSSION

2 On appeal, Dr. Porter contends principally that the district court 3 a pplied incorrect legal standards in assessing the causation element of her 4 termination-of-employment claims, and that the court inappropriately resolved 5 g enuine issues of fact as to whether DHMC's explanations for terminating her 6 e mployment, and not reassigning her to another DHMC position, were pretext for 7 unlawful discrimination and retaliation. As to these claims, we agree. For the 8 r easons that follow, we conclude principally that the district court did not 9 properly apply summ ary judgment standards in considering the evidence as to 10 D HMC's reasons for not retaining Dr. Porter within OB/GYN; and it thus erred in 11 c oncluding that no rational juror could infer that there was a causal connection 12 b e tween Dr. Porter's disability or her reporting activities and defendants' decision 13 not to retain her in OB /GYN.

- 43 -1 A . Summary Judgment Principles 2 Principles governing consideration of motions for summary 3 judgment, and appella te review of the grant of such motions, are well established. 4 A motion for summary judgment may properly be 5 granted--and the grant of summary judgment may properly be 6 affirmed--only where there is no genuine issue of material fact 7 to be tried, and the facts as to which there is no such issue 8 warrant the entry of judgment for the moving party as a matter 9 of law. SeeFed. R. Civ. P. 56(c)(2) . . . . T he function of the district 10 court in considering the motion for summary judgment is not to 11 resolvedisputed questions of fact but only to determine whether , as 12 to any material issue, a genuine factual dispute exists. S ee, e.g. , 13 Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 249-50 . . . (1986) 14 (" Liberty Lobby "). 15 K

aytor v. Electric Boat Corp. , 609 F.3d 537, 545 (2d Cir. 2010) (" Kaytor ") (emphases 16 a dded). 17 In reviewing the evidence and the inferences that may 18 reasonably be drawn, the court " may not make credibility 19 determinations or weigh the evidence . . . . ' Credibility 20 determinations, the weighing of the evidence, and the drawing of 21 legitimate inferences from the facts are jury functions, not those of a 22 judge .'" Reeves[ v. Sanderson Plumbing Products, Inc.], 530 U.S. 23 [133,] 150 [(2000)] (quoting Liberty Lobby, 477 U.S. at 255 . . . ). 24 K

aytor, 609 F.3d at 545 (emphases in Kaytor ). Further, 25 the district court may not properly consider the record in piecemeal 26 fashion . . . ; rather, it must "review all of the evidence in the 27 record," . . . . And in reviewing all of the evidence to determine - 44 -1 whether judgment as a matter of law is appropriate, "the court 2 must draw all reasonable inferences in favor of the nonmoving party," 3 . . . even though contrary inferences might reasonably be drawn 4 . . . . 5 I d . (quoting Reeves , 530 U.S. at 150 (other internal quotation marks omitted) 6 ( second emphasis in Kaytor; first emphasis ours)). Thus, while the court is 7 r equired to review the record as a whole, it "' must disregard all evidence favorable to 8 the moving party that the jury is not required to believe .'" Kaytor, 609 F.3d at 545 9 ( quoting Reeves , 530 U.S. at 151 (intermediate quotation marks omitted) (emphasis 10 in Kaytor )).

11 B . Causation Standards Governing Employment Disability Discrimination Claims 12 The ADA and the Rehabilitation Act prohibit covered employers from 13 d iscriminating against qualified individuals on account of disability. The ADA 14 prohibits "discriminat[ion] against a qualified individual on the basis of disability in 15 r egard to," inter alia, "the . . . discharge of employees." 42 U.S.C. § 12112(a) 16 ( emphasis added). The Rehabilitation Act provides that 17 [n]o otherwise qualified individual with a disability . . . shall, 18 solely by reason of her or his disability, be excluded from the 19 participation in, be denied the benefits of, or be subjected to

- 45 -1 discrimination under any program or activity receiving Federal 2 financial assistance . . . ." 3 2 9 U.S.C. § 794(a). The ADA defines a "'qualified individual'" as one "who, with or 4 w ithout reasonable accommodation, can perform the essential functions of the 5 e mployment position that such individual holds or desires." 42 U.S.C. § 12111(8). 6 It defines "disability" a s 7 (A) a physical or mental impairment that substantially 8 limits one or more of the major life activities of such 9 individuals; 10 (B) a record of such an impairment; or 11 (C) being regarded as having such an impairment . . . . 12 I d . § 12102(1). The Rehabilitation Act, with respect to employment, uses 13 e ssentially the same definition. See29 U.S.C. § 705(9). And as amended in 1992, it 14 u ses the same standards as those applicable to employment discrimination claims 15 under the ADA: 16 The standards used to determine whether this section [ i.e. , 17 29 U.S.C. § 794] has been violated in a complaint alleging 18 employment discrimination under this section shall be the 19 standards applied undertitle I of the Americans with Disabilities Act 20 of 1990 (42 U.S.C. 12111 et seq.) and the provisions of sections 21 501 through 504, and 510, of the Americans with Disabilities 22 Act

- 46 -1 of 1990 (42 U.S.C. 12201-12204 and 12210), as such sections 2 relate to employment . 3 2 9 U.S.C. § 794(d) (footnote omitted) (emphases added). 4 The ADA and the Rehabilitation Act require covered employers to, 5 i nter alia, make "reasonable accommodations to the known physical or mental 6 l i mitations of an otherwise qualified individual with a disability who is . . . an 7 e mployee," unless the employer "can demonstrate that the accommodation would 8 i mpose an undue hard ship on the operation of [its] business." 42 U . S.C. 9 § 12112(b)(5)(A); s ee 29 U.S.C. § 794(d); 45 C.F.R. § 84.12. "The term 'reasonable 10 a ccommodation' may include . . . job restructuring . . . [and] reassignment to a 11 v acant position . . . ." 42 U.S.C. § 12111(9)(B). Unless the employer can 12 d emonstrate that an accommodation would impose on its operations undue 13 hardship, the denial o f a reasonable accommodation constitutes prohibited 14 d iscrimination. See42 U.S.C. §§ 12112(a) and (b)(5)(A); 29 U.S.C. § 794(d). 15 The "'on the basis of'" language in the ADA imposes a "but-for" 16 standard of causation . Natofsky v. City of New York , 921 F.3d 337, 349 (2d Cir. 2019) 17 ( " Natofsky "). And because "the Rehabilitation Act incorporates the ADA's 18 c ausation standard for employment discrimination claims," such a claim under the

- 47 -1 Rehabilitation Act--notwithstanding the presence of the word "solely" in § 794(a)-- 2 a lso is governed by the but-for standard of causation. Id . at 346. The amending 3 " text of the statute, § 794(d), requires applying the ADA causation standardto 4 e mployment discrimination claims asserted under the Rehabilitation Act." 5 N atofsky, 921 F.3d at 345 (emphasis added). 6 We note that the district court articulated the converse principle, 7 stating that " Natofskyaligned the ADA standard with the 'solely by reason' 8 standard of the Rehabilitation Act, which requires a plaintiff to demonstrate that 9 d isability was the sole cause of the adverse employment action," D.Ct. Op., 2020 10 W L 6789564, at *11 (other internal quotation marks omitted); but see id . at *11-*13 11 ( apparently applying the but-for standard). N atofskyitself makes clear that 12 when a plaintiff alleges an employment discrimination claim 13 under the Rehabilitation Act, the causation standard that 14 applies is the same one that would govern a complaint alleging 15 employment discrimination under the ADA , 16 9 21 F.3d at 345 (emphasis added), i.e. , "but-for." 17 The New Hampshire and Vermont statutes invoked by Dr. Porter in 18 c ounts five and six of the Complaint are similar to the ADA and the Rehabilitation 19 A ct in prohibiting disability-based employment discrimination, and the district

- 48 -1 c ourt dismissed all four disability discrimination counts for lack of proof of 2 c ausation. But the district court stated that New Hampshire "follows the 'sole 3 r eason' standard of the Rehabilitation Act," D.Ct. Op., 2020 WL 6789564, at *11, 4 c iting a 1991 New Hampshire case; and it stated that Vermont law "[s]imilarly . . . 5 follows the language of the Rehabilitation Act," id ., and cited a 1995 Vermont case. 6 Given that the Rehabi l itation Act's own causation standard was changed with the 7 1 992 amendment discussed above, and now requires that employment 8 d iscrimination claims under that Act be governed by the ADA's "but-for" 9 standard, we leave it to the district court on remand to reassess and reconsider the 10 c ausation standards governing Dr. Porter's disability claims under the relevant 11 S tate laws.

12 C . The Claims of Termination Based on Disability 13 1 . The Analytical Framework 14 In cases concerning alleged employment discrimination, "[t]here will 15 seldom be 'eyewitness ' testimony as to the employer's mental processes," St. 16 Ma r

y's Honor Center v. Hicks , 509 U.S. 502, 524 (1993) (other internal quotation 17 marks omitted), as " [e]mployers are rarely so cooperativeas to include a notation in - 49 -1 the personnel file that the firing is for a reason expressly forbidden by law," 2 B ickerstaff v. Vassar College, 196 F.3d 435, 448 (2d Cir. 1999) (internal quotation 3 marks omitted) (emph asis ours). Consequently, many discrimination claims 4 d epend on proof by circumstantial evidence. But " statements or actions by [the 5 e mployer's] decisionmakers . . . that may be viewed as directly reflectingthe alleged 6 d iscriminatory attitude " constitute the proverbial "smoking gun." Id . at 446 (internal 7 quotation marks omitted) ("directly reflecting" emphasized in original; other 8 e mphases ours). 9 "[T]he McDonnell Douglas framework does not apply in every 10 e mployment discrimination case." Swierkiewicz v. Sorema N.A. , 534 U.S. 506, 511 11 ( 2002) (discussing Trans World Airlines, Inc. v. Thurston , 469 U.S. 111, 121 (1985) 12 ( " Thurston ")). "The shifting burdens of proof set forth in McDonnell Douglas are 13 d esigned to assure that the plaintiff [has her] day in court despite the unavailability 14 o f direct evidence." Thurston , 469 U.S. at 121 (internal quotation marks omitted) 15 ( emphases ours). The " McDonnell Douglas test is inapplicablewhere the plaintiff 16 presents direct evidence of discrimination," e.g. , that the employer's motivation was 17 " discriminatory on its face." Id . (emphases added).

- 50 -1 Courts in New Hampshire and Vermont also follow this approach, 2 a pplying the McDonnell Douglas burden-shifting framework when the plaintiff has 3 o nly indirect, not direct, evidence of discriminatory motivation. See Burnap v. 4 S omersworth School District, 172 N.H. 632, 637, 232 A.3d 390, 395 (2019); Robertson v. 5 M

y lan Laboratories, Inc. , 176 Vt. 356, 364, 848 A.2d 310, 318 (2004). 6 In the present case, there is direct evidence that the decision by Dr. 7 M e rrens to terminate, rather than continue, Dr. Porter's employment was based on 8 her disability. As set out in Part I.F. above, Dr. Russell, in the meeting of OB/GYN 9 staff convened by Dr. M errens to explain the closing of REI, asked Dr. Merrens 10 " why Misty" was being terminated rather than retained, and his sole response was 11 that Dr. Porter was "on disability." (Dr. Russell Decl. ¶ 10.) As described in Dr. 12 Russell's declaration, her question was precise; and the answer--by the person who 13 had made the decision --was responsive, succinct, and explicit. Dr. Merrens's 14 r esponse constitutes direct evidence that Dr. Porter's employment at DHMC was 15 e nded based, in whole or in part, on her disability. Accordingly, the M cDonnell 16 D ouglas burden-shifting test--although its conditions were easily met on this 17 r ecord--was inapplicable to Dr. Porter's claims that the termination of her 18 e mployment violated the federal and state laws at issue. - 51 -1 2 . DHMC's Focus on Dr. Porter's Disability 2 In ruling that the evidence of Dr. Merrens's "on disability" response to 3 D r. Russell's "why Misty" question was not evidence from which a rational juror 4 c ould infer that Dr. Porter's termination was motivated by her disability, the 5 c ourt's discussion was principally as follows: 6 Standing alone, . . . this exchange is inconclusive . It would not be 7 reasonable to interpret the exchange as a confession by Dr. Merrens 8 before the entire OB/GYN Department that he had terminated a long9 time employee and colleague because she was partially disabled . That 10 is the only interpretation which would directly support plaintiff's 11 claim. There are other possible interpretations . These include the 12 possibility that Dr. Merrens was assuring the group that Dr. 13 Porter had access to income independent to her hospital salary. 14 It is also possible that Dr. Merrens and Dr. Russell misunderstood 15 one another entirely. None of these interpretations would 16 support a claim of discrimination and the court will not speculate 17 about what Dr. Merrens may have meant to say . The comment 18 would play a role if it formed part of a pattern of discriminatory 19 comments by Dr. Merrens or others within the hospital. By 20 itself , it is insufficient to provide evidence of discriminatory 21 intent. 22 D .Ct. Op., 2020 WL 6789564, at *13 (emphases added); see also id . (Dr. Merrens's 23 " [m]entioning her disability in front of a large group of colleagues or discussing it in 24 a n email with another staff member may have been insensitive," but these 25 statements " provide no basis" on which a reasonable jury could find disability-based

- 52 -1 d iscrimination " standing alone without the context of more explicit statements of 2 d iscrimination " (emphases added)). 3 This analysis misapplied summary judgment standards in several 4 w ays. First, in finding that Dr. Merrens's "on disability" response to the "why" 5 question was "inconclusive," the court applied the wrong standard for assessing 6 e vidence adduced in opposition to a motion for summary judgment. Such 7 e vidence need not be conclusive; it need only be, when viewed in the light most 8 f avorable to the claimant, sufficient to present a genuine issue as to a material fact. 9 And if it meets that standard, it is the province of the factfinder, not the summary 10 judgment court, to decide what to conclude. 11 Second, even if Dr. Merrens's "on disability" response to the "why" 12 question, were not in itself a sufficiently direct explanation by the decisionmaker 13 t o withstand DHMC's motion for summary judgment on the claims of disability 14 d iscrimination, it could not properly be assessed in isolation. Yet the district court 15 b e gan its analysis by viewing the exchange as "[s]tanding alone," and it ended that 16 passage by stating tha t this evidence was insufficient "[b]y itself." 17 Nor was the court correct in finding that Dr. Merrens's "on disability" 18 r esponse was insufficient because it was not "part of a pattern of discriminatory - 53 -1 c omments by Dr. Merrens or others within the hospital." While proof of such a 2 pattern would provid e additional support for a finding of discrimination, it was 3 not required. Cf . A rlington Heights v. Metropolitan Housing Development Corp. , 429 4 U .S. 252, 266, n.14 (1977) (A "pattern" of discrimination is "not . . . a necessary 5 predicate to a violatio n of the Equal Protection Clause. A single invidiously 6 d iscriminatory governmental act" is not "immunized by the absence of such 7 d iscrimination in the making of other comparable decisions."). When the 8 d ecisionmaker was asked "why" an employee was not being retained, his answer 9 that she was "on disability" virtually precludes a ruling as a matter of law that 10 d isability has played no role. 11 Further, in rejecting Dr. Merrens's "on disability" statement on the 12 g round that it was not "more explicit," the court refused to view in Dr. Porter's 13 f avor a statement that on its face supported her claims, and it invaded the 14 province of the jury todecide whether the "on disability" response to "why" was 15 sufficiently clear to be accepted as showing disability motivation. 16 The district court acknowledged that an "interpretation" of the "on 17 d isability" response by Dr. Merrens as genuinely meaning what he said in answer 18 t o the "why" question " would directlysupport plaintiff's claim." D.Ct. Op., 2020 WL - 54 -1 6 789564, at *13 (emphasis added). But the court stated that "[i]t would not be 2 r easonable" to infer that Dr. Merrens meant what he said, because he gave that 3 answer "before the entire OB/GYN Department." Id . While it likely was not 4 anticipatable that Dr. Merrens would make such a statement openly, the fact 5 r emains that there is first-hand evidence that he did. It was not within the 6 province of the court in ruling on a motion for summary judgment to decide as a 7 matter of law that Dr. Merrens's statement--which the court acknowledges was 8 l i terally "true," id .--was not in fact responsive to the plain question that 9 i mmediately precededit. 10 And while stating that "the court will not speculate about what Dr. 11 M e rrens may have meant to say," id . (emphasis added), the court in fact speculated 12 that it was "possib[le] that Dr. Merrens was assuring the group that Dr. Porter had 13 a ccess to income independent to her hospital salary," or that it was "possible that 14 D r. Merrens and Dr. Russell misunderstood one another entirely," id . If there is 15 e vidence in the record that could make such "other possible interpretations," id ., 16 more than mere speculation, the choice among them will be the responsibility of 17 the jury, not the court.

- 55 -1 In addition to rejecting Dr. Merrens's "on disability" response to Dr. 2 Russell's "why" as having any evidentiary value, the district court similarly 3 r ejected other such evidence, most notably, Dr. Merrens's response to the email 4 from OB/GYN nursing coordinator Maxfield who hoped that Dr. Porter could be 5 r etained to fill existing gaps in the department's services. Dr. Merrens's response 6 stated, in part: 7 "As you know Dr. Porter currently works at 20 % of her time 8 currently . . . ." 9 I d . (quoting Dr. Merrens May 12 email to Maxfield). The court--stating that that 10 e mail was "probably unwise"--interpreted this statement as 11 Dr. Merrens referr[ing] to Dr. Porter's disability status in 12 explaining his decision to terminate all three physicians . His 13 comment was inaccurate about the percentage of time Dr. 14 Porter was working, and, like so many emails, probably unwise, 15 but it is not reasonably possible to read it as evidence of animus 16 or discriminatory intent. 17 D .Ct. Op., 2020 WL 6789564, at *13 (emphases added). This rationale for 18 d isregarding Dr. Merrens's response is puzzling. 19 Maxfield had not inquired about the other two REI physicians, only 20 about Dr. Porter. More importantly, it would make no sense to explain that two of 21 the three physicians were being terminated because the third was working only - 56 -1 part time (especially i f the part-time percentage were as low as the Dr. Merrens 2 e mail mistakenly portrayed it). 3 Finally, while characterizing Dr. Merrens's statement "about the 4 percentage of time Dr. Porter was working" as "probably unwise," the district court 5 c oncluded that "it is not reasonably possible to read it as evidence of animus or 6 d iscriminatory intent." Id . Doubtless DHMC would agree that the statement was 7 " unwise" from its point of view; but that is precisely because it would be quite 8 r easonable to read that express reference to limited capability as evidence of 9 motivation based on d isability. 10 That "reasonably possible" inference appears to have occurred to Dr. 11 M e rrens himself, given that, just minutes after his response to Maxfield, he 12 e mailed Dr. DeMars stating that he needed a "better" way to answer inquiries 13 about why Dr. Porter was not being retained (Dr. Merrens May 12 email to Dr. 14 D eMars). 15 Dr. DeMars's response may not have suggested a "better" explanation, 16 for her email itself also referred to Dr. Porter's disability. Dr. DeMars stated, inter 17 a lia, that the inquirers asking why Dr. Porter was not being retained were 18 " remembering Misty as a full time employee wearing 3 hats, and not the one who has - 57 -1 b e en out for almost 18 months . " (Dr. DeMars May 12 email to Dr. Merrens 2 ( emphases added).) 3 A jury would be entitled to view Dr. DeMars's response to Dr. 4 M e rrens's email as supporting Dr. Merrens's repeated references to Dr. Porter's 5 d isability as a reason for her termination.

6 3 . The Denial of a Reassignment Accommodation 7 As noted in Part II.B. above, the ADA and the Rehabilitation Act 8 provide that reasonable accommodation for an individual with a disability may 9 include job restructuring or reassignment to a vacant position, see42 U.S.C. 10 § 12111(9)(B); 45 C.F.R. § 84.12. And "[t]he ADA envisions an 'interactive process' 11 b ywhich employers and employees work togetherto assess whether an employee's 12 d isability can be reasonably accommodated." Jackan v. New York State Department 13 o f Labor, 205 F.3d 562, 566 (2d Cir. 2000) (emphasis added). With respect to the 14 r equirement for such a reassignment accommodation, the plaintiff has the burden 15 o f proving "that a vacancy existed into which he or she might have been 16 transferred." I

d .

- 58 -1 The record shows that Dr. Porter presented such evidence. In May 2 2 017, after the impending closure of REI was announced, Dr. Merrens was 3 " inundated" with emails urging that Dr. Porter be retained. (Dr. Merrens May 12 4 e mail to Dr. DeMars.) One was the Maxfield email that noted Dr. Porter's 5 " expertise" in several specified areas and stated that OB/GYN was "is short staffed 6 a lready with GYN MD's." (Maxfield May 12 email to Dr. Merrens.) And Dr. 7 M e rrens was well aware prior to the decision to close REI that OB/GYN was 8 " short-staffed"; he testified "we . . . had not been able to recruit physicians to a 9 number of areas within OB/GYN." (Dr. Merrens Dep. 202.) 10 In response to Maxfield's email, Dr. Merrens had also stated, "I'm not 11 sure of [Dr. Porter's] interest in staying on if the infertility part were to cease." (Dr. 12 M e rrens May 12 email to Maxfield.) But after it was announced in May 2017 that 13 R EI would close, Dr. Porter informed Dr. Merrens in writing that she was in fact 14 interested in being rea ssigned to OB/GYN notwithstanding that "the infertility part 15 w ould cease." (Dr. Merrens Dep. 206.) Dr. Porter was a "highly respected," 16 " talented clinician" ( id . at 43); see also id . at 207 (Dr. Porter was "a talented 17 physician"); and Chief Medical Officer Padin, after observing Dr. Porter perform a 18 c omplex surgery in April 2017, stated that Dr. Porter was "a talented surgeon" (Dr. - 59 -1 P adin April 2017 email to Dr. Porter). There was "no question of [Dr. Porter's] 2 c ompetence." (Herrick Dep. 127.) 3 Yet Dr. Merrens would not even speak to Dr. Porter about a 4 r eassignment to OB/GYN. ( See, e.g. , Dr. Merrens Dep. 206 ("Q. At any point did 5 y ou talk to Dr. Porter about whether she did have an interest in staying on if the 6 infertility part were tocease? A. I did not.").) There was no interaction between 7 e mployee and employer, only the employee's request. Although Dr. Merrens says 8 he gave Dr. Porter's request "a lot" of thought, there is no indication that he 9 c onsidered it seriously: 10 Q. Did it cause you to reevaluate her termination when 11 you found out that she did, in fact, have a very strong interest in 12 remaining at Dartmouth-Hitchcock , even without the infertility 13 piece? 14 A. I would say that I thought a lot about this and even 15 reflected with Leslie, like, [w]hat are the opportunities, and how do 16 we think about this ? . . . . 17 . . . . 18 Q. Did you ever sit down with Dr. Porter and propose to her a 19 very limited role and assess her interest ? 20 A. No . 21 ( Id . at 207-08 (emphases added).) - 60 -1 And in June, DHMC having just terminated Dr. Porter, OB/GYN 2 sought permission to hire a new gynecologist, stating, inter alia, that OB/GYN 3 " ha[s] a shortage of subspecialists and generalists in the department"; that 4 OB/GYN "ha[s] no cap acity to fill in these duties with existing staff"; that another 5 GYN physician was "essential." (OB/GYN's June 2017 Hiring Request.) 6 In sum, from Dr. Merrens's direct "on disability" answer to the 7 question of "why" Dr. Porter was being terminated and not retained, as well as 8 from the other evidence--including (a) OB/GYN's June 2017 Hiring Request, (b) Dr. 9 M e rrens's awareness of "a number of areas" in which OB/GYN was "short-staffed," 10 ( c) Dr. Porter's communication to Dr. Merrens of her interest in an OB/GYN 11 position that did not c enter on infertility, (d) Dr. Porter's recognized skills, and (e) 12 several statements by Dr. Merrens and Dr. DeMars that, in the context of whether 13 t o terminate or retain Dr. Porter, referred explicitly or implicitly to Dr. Porter's 14 d isability--a jury could permissibly infer that reassigning Dr. Porter to OB/GYN 15 instead of terminatingher employment would have been a reasonable 16 a ccommodation, and that she would have been so reassigned but for her disability. 17 Accordingly, we vacate the district court's dismissal of Dr. Porter's 18 c laims that her employment was terminated on the basis of her disability in - 61 -1 v iolation of the ADA, the Rehabilitation Act, and the laws of New Hampshire and 2 V ermont.

3 D . Claims of Retaliation and Other Denials of Accommodation 4 Dr. Porter also asserted claims that retaliatory and discriminatory 5 d enials of reasonable accommodation had occurred during the period of her 6 d isability prior to her termination. The district court dismissed these claims on the 7 g round that the circumstances of which she complains in that period did not 8 c onstitute a denial of reasonable accommodation. Viewing the record as a whole, 9 w e agree. 10 The accommodations granted to Dr. Porter included two medical 11 l e aves of absence; a very limited schedule upon her returns to work, beginning 12 w ith workweeks of five hours (in April 2016) or four hours (in November 2016), 13 w ith increases as she felt able; and permission for some of her work to be done 14 from home. She has not asserted that any of these accommodations were not 15 f ulfilled. In June 2016, Dr. Porter presented DHMC with a list of a dozen 16 r equested workplace-condition accommodations that were recommended by her 17 d octor, including limited work periods, a quiet workspace, frequent rest breaks, - 62 -1 and only gradual increases in responsibilities and multi-tasking. Dr. Porter 2 a cknowledges that Dr. DeMars informed the REI staff of these accommodations by 3 " sen[ding] out an email to members of the department." (Dr. Porter Dep. 45.) She 4 d oes not contend that DHMC refused to agree to any accommodations she 5 r equested. 6 Rather, Dr. Porter contends that Drs. Seifer and Hsu encroached on 7 a greed accommodations, principally by asking her questions. She also describes 8 two specific occasions of other encroachment, the first of which occurred in mid9 June 2016 on her first day dealing with ultrasounds following her return to work. 10 D r. Porter needed space in the ultrasound reading room, and Drs. Seifer and Hsu 11 d id not leave the room when she requested. ( See Dr. Porter Answer to DHMC 12 Interrogatory 6.) Dr. Porter complained of this, and she acknowledges that Dr. 13 D eMars "emailed [Drs. Seifer and Hsu] to remind them of the restriction that I was 14 not to be distracted inthe ultrasound reading room." (Dr. Porter Answer to 15 D HMC Interrogatory 4.) 16 Dr. Porter's other specific complaint concerned a weekend in March 17 2 017 when, although she was not in the on-call schedule, she was forced to be on 18 c all because Drs. Seifer and Hsu were away (attending "non-urgent, elective - 63 -1 meetings") and were unreachable. This resulted in an REI nurse's having to call 2 D r. Porter "at home on the weekend to have [her] make all treatment decisions," 3 e ven though Dr. Porter "was not approved by [her] physicians to take call." (Dr. 4 P orter Answer to DHMC Interrogatory 6.) However, such an encroachment on a 5 single weekend out of the several dozen weekends during her period of disability 6 i s insubstantial, especi ally given that it occurred in March 2017 when Dr. Porter 7 w as working 20 hours a week, and that she had told Dr. Seifer months earlier that 8 she "would consider being in the call schedule when [she] was back to 20 hours a 9 w eek" ( id .). 10 Dr. Porter complains as a general matter that Drs. Seifer and Hsu 11 frequently interrupted her at work or telephoned her at home to ask her questions 12 o r to seek opinions. But the accommodations she had requested did not include 13 b a rring her less experienced colleagues from seeking her advice and counsel. 14 A reasonable accommodation is one that "enable[s] an individual with 15 adisability who is qualified to perform the essential functions of that position 16 . . . [or] to enjoy equal benefits and privileges of employment." 29 C.F.R. 17 § § 1630.2(o)(1)(ii) and (iii). Thus, a granted accommodation should be "effective"; 18 b u t it need not be perfect, s ee, e.g. , Noll v. International Business Machines Corp. , 787 - 64 -1 F .3d 89, 95 (2d Cir. 2015). Dr. Porter states that with the accommodations granted, 2 she was able to perform at her usual high level of expertise. The fact that the 3 e ncroachments of which she complains may have been annoying or stressful did 4 not make the accomm odations ineffective. 5 Dr. Porter also claims that DHMC retaliated against her for being on 6 d isability or for complaining about encroachments by Drs. Seifer and Hsu on the 7 a greed-upon accommodations, but she has not pointed to evidence sufficient to 8 support such a claim. Although she states that when she returned to work on her 9 r educed schedule, "I heard comments from colleagues about me not pulling my 10 w eight due to my limitation on work hours" (Dr. Porter Answer to DHMC 11 Interrogatory 4), she h a s not pointed to evidence of any adverse employment 12 a ction she experienced as a result of her complaints about the intrusive conduct by 13 D rs. Seifer and Hsu. 14 We affirm the grant of summary judgment dismissing Dr. Porter's 15 c laims of retaliation and denial of reasonable accommodation for her disability 16 prior to her terminatio n.

- 65 -1 E . The Whistleblower Discrimination and Wrongful Discharge Claims 2 New Hampshire's Whistleblowers' Protection Act provides, in 3 r elevant part, that 4 [n]o employer shall . . . discharge . . . or otherwise discriminate 5 against any employee regarding . . . employment because : 6 (a) The e mployee, in good faith, reports or causes to be 7 reported, verbally or in writing, what the employee has 8 reasonable cause to believe is a violation of any law or rule 9 adopted under the laws of this state, a political 10 subdivision of this state, or the United States . . . . 11 N.H. Rev. Stat. Ann. § 275-E:2(I)(a) (emphases added). This statute "contemplates 12 aseries of events" beginning with "notice to the employer of a violation." In re Fred 13 F uller Oil Co. , 144 N.H. 607, 612, 744 A.2d 1141, 1145 (2000). New Hampshire 14 c ourts apply the M cDonnell Douglas burden-shifting framework in evaluating such 15 whistleblower discrimination claims. S ee In re Seacoast Fire Equipment Co. , 146 N.H. 16 6 05, 608, 777 A.2d 869, 872 (2001). 17 Under New Hampshire common law, a plaintiff may recover against 18 her former employer o n a claim of wrongful discharge for, inter alia, being 19 " discharged because [s]he performed an act that public policy would encourage" 20 ( hereafter, for present purposes, "public policy reporting"), if she shows that the

- 66 -1 d efendant, in terminating her employment "was motivated by bad faith, malice, or 2 r etaliation." Cloutier v. Great Atlantic & Pacific Tea Co. , 121 N.H. 915, 921-22, 436 3 A .2d 1140, 1143-44 (1981). The public policy factor may "be based on non4 statutory policies," id . at 922, 436 A.2d at 1144; and malice may be established by 5 proof that "the recorddoes not support the stated reason for the discharge," see 6 S traughn v. Delta Air Lines, Inc. , 250 F.3d 23, 44 (1st Cir. 2001). 7 The district court found that the record contained sufficient evidence 8 t o permit a jury to find that Dr. Porter had engaged in whistleblowing activity or 9 public policy reportin g by informing Dr. DeMars of conduct by her two REI co10 physicians that could r e asonably be believed to be illegal, fraudulent, unethical, or 11 harmful to patients. B ut DHMC argued that it had terminated Dr. Porter because 12 i tclosed REI and there was no other suitable position for her, and the court 13 c oncluded that Dr. Porter had not pointed to sufficient evidence that the decision 14 not to retain Dr. Porter was "because" of her whistleblower or public-policy15 r eporting activities. SeeD.Ct. Op., 2020 WL 6789564, at *9-*11 (whistleblowing 16 a ctivity); id . at *15 (public policy reporting). 17 As discussed in Part II.E.1. below, the district court's conclusion that 18 there was no evidence of causation rested principally on its view that Dr. Merrens - 67 -1 w as the person who made the decision to terminate Dr. Porter's employment at 2 D HMC, and that he did not know of Dr. Porter's reporting activities, s e e id . at *8. 3 D r. Porter argued that there was sufficient evidence that Dr. Merrens did have 4 such knowledge. But she contended, alternatively, that even if Dr. Merrens did 5 not know, DHMC could nonetheless be held liable because Dr. DeMars--to whom 6 D r. Porter had made, or caused to be made, the critical reports--sought Dr. Porter's 7 termination in retaliation and in bad faith, and that as to Dr. Porter's termination, 8 D r. DeMars either was the actual decisionmaker ( seePart II.E.3. below) or caused 9 D r. Merrens to make that decision because of her advice ( s eePart II.E.2. below, 10 d iscussing the "cat's paw" theory of liability). The district court rejected both of 11 these contentions that Dr. Porter's termination resulted from impermissible 12 animus on the part of Dr. DeMars, stating that the record instead suggested that 13 D r. DeMars wanted, and advocated, to have DHMC retain Dr. Porter. 14 As to each of the district court's factual premises-- i.e. , that Dr. Merrens 15 had no knowledge of Dr. Porter's reporting activities, and that Dr. DeMars wanted 16 and attempted to retain Dr. Porter at DHMC--the record contains evidence that 17 w ould permit a factfinder to draw reasonable inferences contrary to those drawn 18 b ythe district court in granting summary judgment. While as to Dr. Porter's - 68 -1 c laims of whistleblowing and reporting discrimination we have not seen a 2 smoking gun similar to Dr. Merrens's immediate "disability" response to why Dr. 3 P orter had not been retained, the record contains ammunition from which a jury 4 c ould find (1) that Dr. Merrens had the requisite knowledge of Dr. Porter's 5 r eporting activity, or (2) that if he lacked such knowledge, either (a) he as 6 d ecisionmaker relied on the retaliatory or bad-faith recommendation by Dr. 7 D eMars, or (b) the ultimate decisionmaker as to Dr. Porter's termination--as 8 c ontrasted with the decision to close REI--was not Dr. Merrens but Dr. DeMars.

9 1 . The State of Dr. Merrens's Knowledge 10 With respect to the decision to terminate Dr. Porter, the district court 11 d escribed the record as to the knowledge of Dr. Merrens as follows: 12 Dr. Porter does not contest that the principal decision-maker-- 13 Dr. Merrens--had no knowledge of her complaints about Dr. Seifer 14 and Dr. Hsu . He expressly denies such knowledge . There is no 15 evidence to the contrary. It is unsurprisingthat the chief clinical 16 officer of a large hospital would not know about intra17 departmental complaints about disputes over patient care and 18 billing practices. The reasons DHMC offers to explain the 19 closure of the REI Division are substantial. While the parties 20 disagree about whether the closure was a good business 21 decision, i t followed months of deliberation over business concerns . 22 No reasonable jury could find that the concerns of hospital - 69 -1 leadership about staffing levels or physician conflictwere excuses 2 they concocted to deflect attention from their true motive of 3 retaliating against Dr. Porter. 4 D .Ct. Op., 2020 WL 6789564, at *9. Although the district court thus apparently 5 v iewed it as established that Dr. Merrens lacked knowledge of Dr. Porter's 6 r eporting activities, the record does not warrant that finding as a matter of law. 7 First, the district court's view that Dr. Porter did not dispute Dr. 8 M e rrens's assertion of ignorance as to her reporting activity disregarded her 9 a rgument that, in labeling her a cause of REI's problems, Dr. Merrens used 10 " dysfunction" as a "code word" for her reporting on the incompetence of Drs. 11 S eifer and Hsu. (Dr. Porter Response in Opposition to DHMC's Motion for 12 Summary Judgment at 16; see also Dr. Porter brief on appeal at 22 (contending that 13 " dysfunction" was a code word to refer to her whistleblower and public-policy14 r eporting activity, as well as her disability).) Implicit in the contention that Dr. 15 M e rrens used "a code word" for Dr. Porter's whistleblower and public-policy16 r eporting activity, is a contention that Dr. Merrens knew of that reporting activity. 17 Second, while the court also relied on Dr. Merrens's "express[] deni[al 18 o f] such knowledge"--apparently referring to his affidavit stating that when he 19 made and announced his decision to close REI he " w as not aware of whether Dr. - 70 -1 M i sty Blanchette Porter had raised any complaints or concerns regarding. . . employees 2 . . . within the REI Division" (Affidavit of Dr. Edward Merrens dated January 28, 3 2 020, 4 (emphases added))--credibility determinations are within the province of 4 the factfinder. A jury would not be required to believe Dr. Merrens's claim that he 5 d id not know of Dr. Porter's reporting activity; thus, the court in deciding the 6 summary judgment m otion could not properly rely on his disclaimer. 7 Further, the district court inferred that Dr. Merrens's denial of 8 knowledge of Dr. Porter's reporting activity was credible because it would be 9 " unsurprising that the chief clinical officer of a large hospital would not know 10 about the intra-departmental complaints about disputes over patient care and 11 b i lling practices." D.Ct. Op., 2020 WL 6789564, at *9. This may well be so as a 12 matter of routine day- to-day operation. But, as the court also recognized, "the 13 c losure of an entire division serving many women and families was a major 14 d ecision by DHMC." Id . at *3. DHMC stated that, in March and April 2017, before 15 that major decision was made, "OB/GYN Department management and DHMC 16 l e adership,"--identified as Dr. DeMars, Herrick, and Dr. Merrens--" had multiple 17 d iscussions regarding issues in the REI Division, including the general dysfunction ." 18 ( DHMC Rule 56(b) Statement ¶ 10 (emphases added).) A rational juror could well - 71 -1 infer that--in the "multiple discussions regarding" REI's "issues"--before Dr. 2 M e rrens made "a major decision" affecting "many women and families," D.Ct. Op., 3 2 020 WL 6789564, at *3, it was probable that he would have requested concrete 4 information as to the n ature of the "general dysfunction" in order to assess 5 whether there was available a solution less drastic than dissolution. And indeed, 6 a s discussed below, Dr. Merrens testified that in those discussions they "had a fair 7 a mount of discovery about the dysfunction of the group" (Dr. Merrens Dep. 166). 8 In their depositions, Dr. Merrens and Herrick were asked about the 9 nature of "the dysfunc tion." Herrick, whose principal concern was finance, 10 testified that he had heard no negative comments about the skills or competence of 11 any of the physicians, and he provided no concrete information as to the nature of 12 the dysfunction, other than the dearth of nurses. Herrick testified that Dr. DeMars 13 r epeatedly "described Misty as being a disruptivebehavior, disruptiveinfluence on 14 the team." (Herrick Dep. 118-19 (emphases added).) But he gave little insight as to 15 what that meant: 16 Q. What does that mean? 17 A. That means that, well, based on what, I guess you'd 18 have to ask Leslie .

- 72 -1 Q. Did anybody ask her what does that mean? 2 A. Leslie just explained that [Dr. Porter] tries to use her 3 previous friendship to influence behaviors of Leslie and of the 4 team and that she is disruptive at times. 5 Q. There's a lot of behavior that might fall within the 6 term "disruptive," right? 7 A. Yeah, there is. 8 . . . . 9 Q. Okay. So did anyone in the conversations you're 10 talking about get down to a little granular level sayinglook, 11 here's what she does that really makes it difficult? 12 A. I don't recall any conversations about that

. . . . 13 ( Id . at 119-20 (emphases added).) 14 Nor did Herrick himself observe any disruptive behavior by Dr. 15 P orter. Although in an email to Dr. Merrens he said, " [b]ased on my observations and 16 i nteractions , Misty has been the biggest driver to the dysfunction within REI" 17 ( Herrick email to Dr. Merrens dated May 12, 2017 ("Herrick May 12 email to Dr. 18 M e rrens") (emphasis added)), Herrick confessed in his deposition, " I have no 19 o bservations of Misty herself related to this , any negative or positive" (Herrick 20 D ep. 123 (emphasis added)).

- 73 -1 Although no details as to the nature of Dr. Porter's alleged 2 d ysfunction were forthcoming from Herrick, somewhat greater insight is available 3 from the deposition of Dr. Merrens. With respect to senior management's 4 e xamination into the dysfunction of REI, Dr. Merrens was not referring simply to 5 i t s shortage of nurses; while that was an important factor, he said that was "just the 6 l a st wheel to come off the cart." (Dr. Merrens Dep. 124.) He testified that "there 7 w ere many, many problems in this division, and, by . . . late April . . . I was 8 a pprised of how significant those problems were." ( Id . at 168.) He stated that 9 " [t]here were clearly challenges around Albert[ Hsu]'s capability," and there were 10 " the issues with David Seifer." (Dr. Merrens Dep. 166-67.) He said management 11 had "gone through allthis work to understand that, at every level, there is 12 d ysfunction and we're not sure that we can safely provide carefor women in an 13 o ngoing fashion." ( Id . at 163 (emphases added).) 14 But while Dr. Merrens stated that all three REI physicians contributed 15 t o the dysfunction ( s ee, e.g. , id . at 213), he attributed the issues of professional 16 c ompetence only to Drs. Seifer and Hsu. Dr. Porter, in contrast, was described as a 17 " talented surgeon" (Dr. Padin April 2017 email to Dr. Porter after observing her 18 perform surgery in Ap ril 2017); a "talented physician" (Dr. Merrens Dep. 207); and 19 a"talented clinician" ( id . at 43). When asked whether he agreed with Herrick's - 74 -1 statement that "Misty ha[d] been the biggest driver to the dysfunction within REI" 2 ( Herrick May 12 email to Dr. Merrens (emphasis added)), Dr. Merrens responded 3 in part as follows: 4 [As to the] dysfunction amongst those three physicians, . . . each 5 had a role in the dysfunction. . . . It was not just Dr. Hsu and 6 Dr. Seifer. Misty played a role, whether she was present or 7 whether she was on leave, in understanding, involving herself , and 8 doing a whole range of things . . . . 9 ( Dr. Merrens Dep. at 213 (emphases added).) 10 We think it peculiar to refer to a physician's "understanding" as a 11 f actor contributing to dysfunction. Indeed, as shown above, Dr. Merrens testified 12 that through management's discussions about every level of REI, he had come to 13 " understand" that it was "not sure" that REI could "safely provide care." (Id . 14 a t 163.) A jury could reasonably infer that Dr. Merrens's pointing to Dr. Porter's 15 " understanding" and her "involving herself" reflected his recognition that 16 whistleblowing on illegalities and reporting on misconduct impacting patients' 17 health and safety enta il (a) understanding that certain conduct was unlawful, 18 unethical, or unsafe, and (b) getting involved sufficiently to report it. That 19 interpretation may alsobe viewed as further supported by Dr. DeMars's statement 20 t o Dr. Merrens that, given "Misty's past behavior and her inability to just be a 21 w orker bee," Dr. DeMars was disinclined to retain Dr. Porter at DHMC unless she - 75 -1 " could be put into a box enough to keep her from being disruptive" (Dr. DeMars 2 M ay 12 email to Dr. Merrens). 3 Given Dr. Merrens's testimony that his decisions in April and May 4 2 017--to close REI and not retain Dr. Porter--were based fundamentally on the 5 problematic practices and performance of Drs. Seifer and Hsu, and on Dr. Porter's 6 " understanding" and her "involving herself" to do "a whole range of things," a 7 r ational juror could permissibly infer that Dr. Merrens was in fact aware that one 8 c ategory of "things" Dr. Porter had done was to report on practices of her two 9 c olleagues that she reasonably believed to be illegal, unethical, or endangering 10 patient safety, and tha t his reference to a "dysfunction" on the part of Dr. Porter 11 w as code for her reporting activities. 12 We conclude that the district court erred in dismissing Dr. Porter's 13 c laims of whistleblower discrimination and wrongful discharge on the basis that 14 D r. Merrens as a matter of law lacked knowledge of her reportage.

15 2 . Dr. DeMars and the "Cat's Paw" Theory 16 If Dr. Porter is unable to persuade the jury that Dr. Merrens, as 17 d ecisionmaker, knew of her reports of conduct or practices she believed to be 18 i l legal or otherwise wrongful, she may nonetheless be able to recover on her - 76 -1 c laims of whistleblower discrimination or wrongful discharge on a "cat's paw" 2 theory of liability--if such a theory is available under New Hampshire law, see 3 generally Burnap v. Somersworth School District, 172 N.H. at 639, 232 A.3d at 397. 4 Under that theory, an employer may be held liable for the animus of a supervisor 5 who was not charged with making the ultimate adverse employment decision but 6 who was relied on by the decisionmaker. See, e.g. , Staub v. Proctor Hospital, 562 7 U .S. 411, 420-21 (2011); id . at 415 n.1; Natofsky, 921 F.3d at 350; Vasquez v. Empress 8 A mbulance Service, Inc. , 835 F.3d 267 (2d Cir. 2016) (" Vasquez "); Ameen v. Amphenol 9 P rinted Circuits, Inc. , 777 F.3d 63, 70 (1st Cir. 2015). 10 DHMC states that Dr. Porter raises the cat's paw theory of liability for 11 the first time on appeal, and it contends that the theory is available 12 "only when an employer in effect adopts an employee's 13 unlawful animus by acting n egligentlywith respect to the 14 information provided . . . and thereby affords that biased 15 employee an outsize role in its own employment decision, can 16 the employee's motivation be imputed to the employer and 17 used to support a claim." 18 ( DHMC brief on appeal at 27-28 (quoting Vasquez, 835 F.3d at 275 (emphasis in 19 D HMC brief).) DHMC argues that "there is no evidence that Dr. Merrens closed 20 the program on Dr. DeMars' recommendation," and "no evidence that Dr. Merrens, 21 a s the decisionmaker, negligently gave effect to any purported retaliatory animus

- 77 -1 possessed by Dr. DeMars." (DHMC brief on appeal at 28.) These contentions are 2 w ide of the mark. 3 First, in arguing to the district court that Dr. Merrens relied on 4 i mpermissible motivations of Dr. DeMars, Dr. Porter was focusing not on the 5 c losing of REI but rather on the termination of her employment. She argued that, 6 a s to "the decision to terminate Dr. Porter, separate and apart from the decision to 7 c lose the REI Division," Dr. DeMars "presented that recommendation to Dr. 8 M e rrens, who adopted it." (Dr. Porter Response in Opposition to DHMC's Motion 9 for Summary Judgment at 19-20.) While Dr. Porter apparently did not give her 10 a rgument the "cat's paw" label, she plainly asserted the main elements of the cat's 11 paw theory. 12 Second, DHMC's reliance on Vasquez is misplaced, as that case alleged 13 aretaliatory motive of one of the plaintiff's co-workers, not of a supervisor. We 14 noted that 15 [w]hile the Supreme Court ha[d] approved holding an 16 employer liable for the retaliatory intent of one of its 17 "supervisors" under a "cat's paw" theory, it specifically 18 "express[ed] no view as to whether the employer would be 19 liable if a co-worker, rather than a supervisor, committed a 20 discriminatory act that influenced the ultimate employment 21 decision."

- 78 -1 V

asquez, 835 F.3d at 273 (quoting Staub , 562 U.S. at 422 n.4). We concluded that the 2 e mployer could be held liable if a co-worker's retaliatory act was allowed to 3 influence the employer's decision to fire the plaintiff, and if that influence was 4 " attributable to the employer's own negligence," id . 5 In the present case, Dr. DeMars was no mere co-worker. As Dr. 6 M e rrens described Dr. DeMars's position, "[s]he's the department chair, and she's 7 the one that has been managing . . . each of these principal people in her 8 d ivision. . . . [S]he is directly responsible for every aspect of this division" (Dr. 9 M e rrens Dep. 167), including "management of the principal physicians" ( id . at 214). 10 And in his May 12 email to Maxfield explaining why Dr. Porter had not been 11 r etained, he began by saying that the decisions with respect to REI "staff" had been 12 made "at the recommendation of Dr. De[M]ars." Thus, the Vasquez principle that 13 an employer is not liable for a non-negligent decision prompted by a mere co14 w orker, rather than by a supervisor, is not applicable here. 15 We note, however, that if Dr. Merrens made the decision to terminate 16 D r. Porter without knowing of her reporting activity, and if Dr. Porter were 17 r equired to show that he did so negligently, there is evidence from which a jury 18 c ould reasonably find such negligence. The record includes testimony that:

- 79 -1 Dr. Merrens knew that there were issues as to the capabilities of 2 D r. Hsu and Dr. Seifer ( See, e.g. , Dr. Merrens Dep. 166-68); 3 Dr. DeMars, in order to persuade the Credentials Committee to 4 a llow her to make Dr. Seifer the REI Director, had "take[n] personal 5 r esponsibility that [Dr. Seifer] would be a success" in that position (Dr. 6 M errens Dep. 77); 7 Dr. Merrens knew that Dr. DeMars was well aware that her 8 position as chair of OB /GYN was in jeopardy if Dr. Seifer failed as REI 9 D irector. He testified that it "was understood" that Dr. Seifer's 10 performance would im pact "decisions about [Dr. DeMars's] 11 c ompetence as . . . chair" of OB/GYN ( id . at 83); and Dr. DeMars 12 testified that when the committee reluctantly allowed her to make Dr. 13 S eifer REI Director, Dr. Merrens "looked at me . . . and said this is on 14 y ou" (Dr. DeMars Dep. 127); 15 Dr. Merrens knew that Dr. Porter was "a talented physician" 16 ( Dr. Merrens Dep. 207), "a talented clinician who [wa]s highly 17 r espected" ( id . at 43); 18 Dr. DeMars repeatedly described Dr. Porter as "disruptive" 19 ( Herrick Dep. 119-20); 20 Dr. Merrens knew that Dr. DeMars had resented the fact that 21 D r. Seifer's former colleagues were warning DHMC about Dr. Seifer's 22 shortcomings ( seeDr. Merrens Dep. 77 ("[Dr. DeMars] expressed that 23 s he was not pleasedthat people from [Dr. Seifer's former employer] had 24 c ontacted us and expressed [their] concern " (emphases added))); 25 As to Dr. Merrens's meetings with Dr. DeMars and Herrick 26 about the future of REI and its staff, Herrick could not say that anyone 27 a sked Dr. DeMars what she meant by calling Dr. Porter "disruptive" 28 ( Herrick Dep. 120); and 29 Dr. Merrens, despite receiving a letter from Dr. Porter stating 30 e x pressly that she wanted to remain at DHMC despite the cessation of - 80 -1 infertility practice, never spoke to Dr. Porter herself and instead 2 " reflected with"--and was "convinced" by--Dr. DeMars that Dr. Porter 3 w as interested only in IVF (Dr. Merrens Dep. 206-208). 4 In short, the record includes evidence that Dr. Merrens knew (a) that 5 the performances of Dr. Hsu and Dr. Seifer were substandard, (b) that Dr. Porter 6 understood that their conduct was problematic, (c) that Dr. DeMars knew her 7 position as OB/GYN c hair was in jeopardy because of Dr. Seifer's failure, giving 8 her a motive to retalia te against Dr. Porter for reporting Dr. Seifer's failures, and 9 ( d) that Dr. DeMars was displeased about being warned--even in advance--about 10 shortcomings of a can d idate she favored, and thus would not recommend 11 r etaining Dr. Porter unless she could be kept in a box. The district court 12 r ecognized that "Dr. DeMars's involvement in hiring Dr. Seifer in 2016" could have 13 motivated "her . . . to be angry at his critics a year later" since "his tenure at DHMC 14 d id not go well." D.Ct. Op., 2020 WL 6789564, at *11. If Dr. Merrens made the 15 d ecision to terminate Dr. Porter without knowing of Dr. Porter's reporting activity, 16 ajury could reasonably find that, as he had learned of the "significant" capability 17 and performance "problems" of Drs. Seifer and Hsu, he was negligent (1) in not 18 a sking what Dr. DeMars meant when she said that the highly respected Dr. Porter 19 w as "disruptive," (2) in basing his decision that Dr. Porter should be terminated on 20 D r. DeMars's representations that Dr. Porter was not interested in non-IVF work at - 81 -1 D HMC without even speaking to Dr. Porter despite Dr. Porter's having written to 2 him expressly stating that she had such an interest, and (3) in not attempting to 3 d etermine whether Dr. DeMars's non-recommendation of Dr. Porter's retention 4 and possible misrepresentation of Dr. Porter's interest in remaining at DHMC 5 w ithout an IVF practice were impermissibly motivated. 6 The district court rejected any possibility that DHMC could be liable 7 for a discriminatory termination of Dr. Porter's employment on the basis of 8 r etaliatory motivation by Dr. DeMars because it found--as described in the next 9 sections--that there w a s insufficient evidence of any bad-faith, malicious, or 10 r etaliatory actions or motivation on the part of Dr. DeMars. In so ruling, the court 11 r eferred to Dr. DeMars's efforts to retain Dr. Porter, and her attitude toward Dr. 12 P orter.

13 a . Efforts 14 As to Dr. DeMars's efforts to retain Dr. Porter at DHMC, the court 15 stated principally as f ollows: 16 The evidence is undisputed that following the announcement 17 of the closure of the REI Division, Dr. DeMars and Mr. Herrick 18 considered retaining Dr. Porter to perform ultrasound work within 19 the Gynecology Department . In Dr. DeMars's initial discussions 20 with senior managementabout reorganizing the REI Division, she - 82 -1 advocated for "keep[ing Dr. Porter] in an ultrasound role" despite her 2 medical leave . ([Dr. DeMars Dep.] 139.) Dr. DeMars testified 3 that "[i]t was unclear to me how long her recovery was going to 4 take, and I wantedto be able to give her as much time as she 5 needed to recover and to put her in an ultrasound-heavy role 6 that would, we could then grow that role or grow her otherwise 7 as her recovery allowed." ( Id. ) 8 Following the decision to close the division, Dr. DeMars 9 continued to seek a way to keep Dr . Porter on staff at DHMC. She 10 testified in her deposition that "I had a choice of c ould I keep her 11 within the department or c ould I have her be a member of the 12 Department of Radiology." The Radiology Department advised 13 that they had no open position. DHMC has supplied an 14 affidavit from the chair of the Radiology Department 15 confirming that in 2017, "the Department of Radiology did not 16 have any need to hire or move a physician into the Departmentto 17 perform or read only gynecologic and/or early obstetric 18 ultrasounds, or any other small sub-segment of ultrasounds." 19 Mr. Herrick determined that the existing patient need for 20 ultrasound evaluation was already met by existingstaff and that 21 there was no business need for another physician to read 22 ultrasounds. ([Herrick Dep.] 54-64.) Dr. DeMars was never 23 able to c reate a new position for Dr. Porter in the OB/GYN 24 Department . 25 D .Ct. Op., 2020 WL 6789564, at *10 (other internal citations to the record omitted) 26 ( emphases ours). 27 We have several difficulties with the district court's characterization 28 o f Dr. DeMars's actions. First, we note that in stating that Dr. DeMars "advocated" 29 k eeping Dr. Porter, the court cited deposition testimony in which Dr. DeMars said 30 she "wanted" to keep Dr. Porter (Dr. DeMars Dep. 139). In crediting that - 83 -1 testimony by Dr. DeMars as to her mental state, the court both assumed Dr. 2 D eMars's veracity and, based on that assessment of her credibility, drew its own 3 inference that actual ad vocacy had ensued. As will be discussed in the next 4 section, there is evidence from which a jury could infer that Dr. DeMars's 5 d eposition testimony that she "wanted" Dr. Porter to remain at DHMC was not 6 g enuine. But in addition, Dr. Merrens in his deposition repeatedly denies that Dr. 7 D eMars actually advocated Dr. Porter's retention (see, e.g. , Dr. Merrens Dep. 150, 8 1 69, 209, 228). 9 In chronological order, the three stages at which the district court's 10 above ruling characterizes Dr. DeMars as having made efforts to keep Dr. Porter at 11 D HMC are: Dr. DeMars's initial meeting with senior management, the period 12 b e tween the decision to close REI and the announcement of that decision, and the 13 period after the announcement. We see the record of Dr. DeMars's efforts at the 14 first stage as, at best, equivocal and the inference that she made such efforts later 15 a s unsupported. 16 It is not clear from the present record precisely when Dr. DeMars's 17 first meeting with senior management on this matter occurred. But as discussed in 18 P art I.E. above, Herrick's deposition testimony indicates that Herrick, Dr. DeMars, 19 and Gunnell did not meet with senior management to discuss REI until after April - 84 -1 1 8. According to Herrick, by the time of that meeting, Dr. DeMars had agreed that 2 R EI should be shut down and its entire staff terminated. ( See Herrick Dep. 49.) 3 D r. DeMars testified, however, that she had planned to recommend at that first 4 meeting that Dr. Porter be retained to deal with ultrasounds; that the decision had 5 a lready been made to close REI and terminate the physicians; and that every 6 suggestion she made was summarily "dismissed, and [she] was told that there was 7 not going to be any pl an, that [she] was not allowed to make any plan." (Dr. 8 D eMars Dep. 139-40.) She testified that, as to the possibility of "redeploying Dr. 9 P orter to do ultrasound work," there was no discussion at that meeting; "[t]hat was 10 something that I had i n the back of my mind." ( Id . at 158.) 11 Herrick testified that after April 18, Dr. DeMars had suggested that 12 " there's an option" of keeping Dr. Porter, but "it was more of a potential option" 13 that Dr. DeMars herself then said was "not really" practical. ( I d . at 55, 54, 58.) 14 Ajury would be entitled to infer that Dr. DeMars was not in fact advocating for 15 the retention of Dr. Porter. 16 Dr. Merrens testified that his decision to close REI was made on April 17 2 0 or 21; the decision was announced at DHMC internally on May 4. Contrary to 18 the district court's view of the record, we have not seen evidence that Dr. DeMars 19 a dvocated retaining Dr. Porter at DHMC after April 21. Other than her deposition, - 85 -1 the only statements we have seen in the record from Dr. DeMars after that date are 2 ( a) her April 25 email to Herrick (quoted in part in Part I.E. above), commenting on 3 the three REI physicians and seeking permission to hire a new candidate in the 4 hopes that REI would soon be revived, and (b) her May 12 email to Dr. Merrens. 5 Dr. DeMars's April 25 email surely does not compel an inference that 6 she was making an attempt to retain Dr. Porter at DHMC. Rather, Dr. DeMars 7 makes certain negativ e comments about Dr. Porter ( see Part II.E.2.b. below); and 8 that email's only reference to a position for Dr. Porter at DHMC states, "We could 9 o ffer her [an] ultrasound only position," but that would make it "impossible" to 10 " keep[] her out of any rebuilding plans." This email was not addressed to Dr. 11 M e rrens; and when he read it in his deposition he did not interpret Dr. DeMars's 12 statements as recomm ending an offer, and he testified that "[t]here was never a 13 proposal . . . to end th e program and Misty will continue on doing GYN 14 u ltrasound." (Dr. Merrens Dep. 161, 169.) 15 Nor could the district court's descriptions of Dr. DeMars's supposed 16 e fforts to find another position for Dr. Porter in OB/GYN or in the Radiology 17 D epartment justify a conclusion as a matter of law that Dr. DeMars advocated for 18 D r. Porter's retention. The determination by Herrick, for example, that OB/GYN 19 had no need for Dr. Porter because "the existingpatient need for ultrasound - 86 -1 e valuation was already met by existingstaff," D.Ct. Op., 2020 WL 6789564, at *10 2 ( citing Herrick Dep. 54 (emphases added)), was entirely superficial: The "existing 3 staff" that met "the exi sting patient need" included Dr. Porter; her work included 4 non-REI ultrasounds ( see, e.g. , paragraphs 10, 11, and 17 of Dr. Porter Answer to 5 D HMC Interrogatory 7). Further, Herrick testified that there was no actual 6 " analysis" as to ultrasound demand in the future; "we did some conversations, 7 some analysis," whichwere just conversations among himself, Dr. DeMars, and 8 Gunnell; he said "you know[,] analysis might be the wrong word." (Herrick 9 D ep. 55-57.) 10 The statement from the Radiology Department that it "did not have 11 any need to hireor move a physician into the Department," D.Ct. Op., 2020 WL 12 6 789564, at *10 (internal quotation marks omitted) (emphases ours), is simply 13 puzzling: Dr. Porter w as at that time already a member of the Radiology 14 D epartment; she "had a dual appointment" in OB/GYN and Radiology "at the time 15 o f termination." (Dr. Merrens Dep. 43.) When REI was closed, DHMC terminated 16 D r. Porter's employment entirely. 17 The district court's finding that Dr. DeMars attempted to have Dr. 18 P orter retained in OB/GYN after the decision to close REI was reached on April 20 19 o r 21 or announced on May 4, is also contrary to the testimony of Dr. Merrens. His - 87 -1 v iew nearly from the outset had been that REI should be closed and that all of its 2 staff should be termin ated. ( See, e.g. , Dr. Merrens Dep. 20 ("[w]e ended the 3 program, and, in endi ng the program, we made the decision also that the people 4 that provided that care . . . would also be terminated," including "Misty"); id . 5 a t 128-29; but see id . at 148-49 (Todd was allowed to continue in OB/GYN).) 6 But after sending his May 12 email to Maxfield stating that the 7 d ecisions as to REI's staff had been made on Dr. DeMars's recommendations, Dr. 8 M e rrens sent an email to Dr. DeMars. Seeking an appropriate way to respond to 9 the "inundat[ion]" of "emails wondering why Misty can't stay on to do her 10 u ltrasound complex operative and teaching role even if we end REI," he said, 11 " I suspectthat you considered this . . . ." (Dr. Merrens May 12 email to Dr. DeMars 12 ( emphases added).) Dr. Merrens's stating only that he "suspect[ed]" that Dr. 13 D eMars had considered why Dr. Porter should not be retained can reasonably be 14 interpreted by a factfin der as meaning that Dr. DeMars had not in fact 15 r ecommended to Dr. Merrens that Dr. Porter be retained. And indeed, Dr. 16 D eMars's immediate response confirmed that she had not made such a suggestion, 17 a s she hypothesized what might have occurred " [i]f I had made a decision to tryto 18 k eep her." (Dr. DeMars May 12 email to Dr. Merrens (emphasis added).)

- 88 -1 Dr. DeMars stated, "it was the right decision to include [Dr. Porter] in 2 the terminations, and I don't want to change that decision ." ( Id . (emphasis added).) 3 W e have not seen in the record any recommendation by Dr. DeMars to Dr. 4 M e rrens for the retention of Dr. Porter thereafter. 5 Finally, we note that Dr. Merrens's May 12 email to Maxfield, in 6 a ddition to saying that the staffing decisions had been made on Dr. DeMars's 7 r ecommendations, said that Dr. Merrens was not sure of Dr. Porter's interest in 8 staying at DHMC if th e re were no infertility practice. But in his deposition, Dr. 9 M e rrens stated that at some point Dr. Porter wrote to him stating exactly such an 10 interest: 11 Q. Did you ever receive communication from Dr. Porter 12 expressing that she did, in fact, want to stay on, even if the infertility 13 part were to cease ? 14 A. Yes . 15 Q. Did that give you information about her interest? 16 A. She had sent a document. I'm not sure of the date. I 17 reviewed it as part of the, of some of the information. She 18 conveyed to us a document expressing her dismay at the 19 closure of the program, her perspectives on her value, her years 20 of service, and what she could bring to it. There was not a 21 mention of other issues that were going on related to Dr. Hsu or 22 Dr. Seifer, nor was there any mention of her disability. It was 23 more around there are other things that I can, that, that I'm interested 24 in . - 89 -1 ( Dr. Merrens Dep. 206 (emphasis added).) 2 Dr. Merrens testified that he never spoke with Dr. Porter about her 3 d esire to be reassigned to OB/GYN ( see id . at 206, 208); he only "reflected" about it 4 w ith Dr. DeMars ( id . at 207). Although the timing and depth of their "reflect[ions]" 5 a re unclear--( see, e .g. , id . at 209 ("Q. When you talked to Dr. DeMars . . . around 6 this time, middle of May 2017, what were your discussions about Dr. Porter? A. I 7 d on't think I had specific conversations with Dr. DeMars about Dr. Porter."))--Dr. 8 M e rrens testified that he "was convinced" by Dr. DeMars that Dr. Porter "was 9 r eally tied to REI and IVF" ( id . at 208); and Dr. DeMars did not recommend 10 r eassigning Dr. Porter to OB/GYN: 11 Q. Did Dr. DeMars suggest finding a way to keep Dr. Porter 12 at Dartmouth-Hitchcock ? 13 A. She did not . 14 ( Dr. Merrens Dep. 209 (emphases added); see also id . at 169 ("[t]here was never a 15 proposal that we're go ing to end the program and Misty will continue on doing 16 GYN ultrasound"); id . at 227 ("Q. Did you believe that Dartmouth-Hitchcock was 17 [ on May 18th, 2017] working on a way to keep Misty Blanchette Porter? A. No."); 18 i d . at 228 ("[w]e were not working on a way to keep Misty Blanchette Porter

- 90 -1 e mployed"); id . at 150 ("I was not presented with a plan by Leslie" for Dr. Porter to 2 c ontinue just with ultrasound. "That was not part of the plan.").) 3 In sum, the record does not support the district court's conclusion as a 4 matter of law that after Dr. Merrens decided to close REI, Dr. DeMars "advocated" 5 that Dr. Porter be retained and reassigned rather than terminated. Instead, the 6 r ecord includes evidence that Dr. DeMars described her own early suggestions of 7 such a possible optionas not really practical; that after the final decision was 8 r eached to close REI, Dr. DeMars advocated to Dr. Merrens the termination of all 9 R EI staff except nurse Todd; that the Radiology Department's statement that it did 10 not need to bring in a new physician was irrelevant since Dr. Porter was already a 11 member of that department; that the financial conclusions were not based on any 12 a ctual analysis of future need; and that Dr. Merrens, after receiving directly from 13 D r. Porter her statement of interest in reassignment to OB/GYN for non-IVF14 r elated work, elected not to speak to Dr. Porter and instead relied only on Dr. 15 D eMars who--far from advocating for Dr. Porter's retention--said "it was the right 16 d ecision to include her in the terminations, and I don't want to change that 17 d ecision."

- 91 -1 b . Attitudes 2 As to Dr. DeMars's attitude toward Dr. Porter, the district court found 3 that the evidence showed that Dr. DeMars was "[i]rritated" by Dr. Porter's 4 " criticism of" Dr. Seifer, D.Ct. Op., 2020 WL 6789564, at *9, but not " sufficiently 5 angered or embarrassed by Dr. Porter's complaints against Dr. Seifer to retaliate by 6 o pposing her retention," id . at *10 (emphasis added). The court's finding that Dr. 7 D eMars was not sufficiently angered to have a retaliatory animus was based on its 8 v iew that 9 [t]here is no evidence of this anger . It is a theory which is 10 often stated in Plaintiff's papers but remains u nsupported by an 11 email or deposition testimony. No reasonable jury could infer that 12 Dr. DeMars decided not to arrange for a new position within the 13 OB/GYN Department because Dr. Porter had criticized Dr. Seifer . 14 At most, Dr. DeMars's involvement in hiring Dr. Seifer in 2016 15 gave her reason to be angry at his critics a year later and 16 disappointed that his tenure at DHMC did not go well. 17 I d . at *11 (emphases added). The court concluded that "[t]here is . . . no evidence 18 that Dr. DeMars sought to terminate Dr. Porter's employment at DHMC. The 19 d eposition testimony is to the contrary . " I d . (emphasis added). 20 We cannot see that the record supports these findings by the district 21 c ourt. First, the statement that "[t]here is . . . no evidence that Dr. DeMars sought 22 t o terminate Dr. Porter's employment at DHMC" ignores the emails of Dr. Merrens

- 92 -1 and Dr. DeMars themselves. ( SeeDr. Merrens May 12 email to Maxfield, stating 2 the decisions as to REI "staff" upon its closing were made "at the recommendation 3 o f Dr. De[M]ars"; Dr. DeMars May 12 email to Dr. Merrens, stating that "it was the 4 r ight decision to include [Dr. Porter] in the terminations, and I don't want to 5 change that decision"). 6 Second, any "deposition testimony . . . to the contrary" by Dr. Merrens 7 o r Dr. DeMars should not have been considered by the district court in ruling on 8 D HMC's motion for summary judgment, given that a jury is not required to credit 9 awitness's testimony. 10 Third, in noting that Dr. DeMars's interest in having Dr. Seifer 11 succeed "gave [Dr. DeMars] reason to be angry at his critics a year later" but 12 finding she was not "sufficiently angered" to have retaliated, D.Ct. Op., 2020 WL 13 6 789564, at *11, *10, the district court engaged in weighing the evidence. The 14 d rawing of factual inferences and weighing the evidence is the province of a 15 f actfinder, not of the court in considering a motion for summary judgment. 16 Viewing the record as a whole in the light most favorable to Dr. 17 P orter, we conclude that a jury could permissibly infer that Dr. DeMars--who, 18 a ccording to Dr. Merrens, never recommended that Dr. Porter be retained--bore 19 D r. Porter ill will for insistently reporting, and causing other REI staff members to - 93 -1 r eport their observations of, impermissible or unsafe conduct and practices by Drs. 2 S eifer and Hsu, and particularly by Dr. Seifer. As described in Part I.C.1. above, 3 D r. Seifer was made REI director in May 2016 despite substantial warnings from 4 his most recent former colleagues. He was appointed on Dr. DeMars's strong 5 e ndorsement, with Dr. Merrens's express warning to Dr. DeMars that if Dr. Seifer 6 f ailed it "was on her," and it was thus "understood" that DeMars's tenure as 7 OB/GYN's chair was i n jeopardy (Dr. Merrens Dep. 83). 8 Dr. Seifer began his REI work on June 15, 2016, and before the end of 9 July, Dr. Porter had heard reports from at least a dozen REI staff members as to Dr. 10 S eifer's lack of competence. Dr. Porter instructed them to report their concerns up 11 the chain of command and to Dr. DeMars. Dr. DeMars said she had heard such 12 r eports in July from multiple sources. 13 In November 2016, Dr. DeMars collected REI staff members' 14 a ssessments of Dr. Seifer's performance. Dr. Porter's evaluation, and others, were 15 negative; but Dr. DeMars sent them to DHMC's Medical Staff Office with a 16 c overing summary that characterized the evaluations favorably, stating that there 17 w ere no repeated criticisms of Dr. Seifer from the physicians, patients, or staff ( see 18 i d . at 96-97, 101-02, 106, 109). In February 2017, Dr. DeMars collected additional 19 a ssessments of Dr. Seifer's performance, which also were negative. Dr. DeMars - 94 -1 d id not inform Dr. Merrens of any of these negative evaluations. ( SeeDr. Merrens 2 D ep. 118-19, 121-22.) Dr. Merrens viewed the evaluations--when he finally saw 3 them--as raising "significant concerns" as to, inter alia, Dr. Seifer's technical skill, 4 a pproach to patients, and standard of care ( id . at 120). Dr. DeMars said that she 5 d id not tell Dr. Merrens "about any of the[] issues reflected in the" negative 6 e valuations, "[b]ecause he [had] looked at me in the Credentialing Committee and 7 said this is on you." (Dr. DeMars Dep. 127.) 8 In contrast to Dr. DeMars's nondisclosure of the negative views of Dr. 9 S eifer to Dr. Merrens, Dr. DeMars shared negative views of Dr. Seifer with others. 10 In July 2016--barely si x weeks after Dr. Seifer started work at REI--Dr. DeMars 11 texted a former chair of OB/GYN stating, 12 I'm not sure that DS is clinically competent

. . . . I don't know what 13 he's been doing for 25 years, but I'm not sure it was IVF. . . . I 14 have heard separately voiced concerns from nursing, anesthesia and 15 ultrasound techs . The lab folks complain about bloody aspirates 16 and low egg counts. 17 ( Dr. Merrens Dep. 88-89 (internal quotation marks omitted) (emphases ours).) In 18 A pril 2017, Dr. DeMars's email to Herrick observed, inter alia, that after Dr. Seifer's 19 termination from DHMC "[i]t is conceivable that he could join one of the Boston 20 IVF practices," but Dr. DeMars added, " Lord help them ." (Dr. DeMars April 25 21 e mail to Herrick (emphasis added).) And despite the fact that Dr. Seifer's REI - 95 -1 a ppointment was due solely to Dr. DeMars's own tenacious endorsement despite 2 the reluctance of the credentials committee and the warnings of Dr. Seifer's former 3 c olleagues ( see Part I.C.1. above), and that Dr. Seifer was her "responsibility" (Dr. 4 D eMars Dep. 110 ("I made the decision to hire him")), Dr. DeMars described her 5 situation as getting "stuck with" Dr. Seifer (Dr. DeMars's April 25 email to 6 Herrick); and she plac ed the blame for Dr. Seifer's failures squarely on Dr. Porter. 7 She said: 8 While David is not a good leader, his failure is also the 9 result of a masterful takedown by Misty Porter . If she had wanted 10 to support him, she would have made the division successful. 11 ( Id . (emphasis added).) 12 In her April 25 email to Herrick, Dr. DeMars also noted that Dr. Porter 13 had strong ties to the University of Vermont Medical Center ("UVM"). And, 14 a pparently referring to an ongoing DHMC in-house investigation into a 15 mysteriously stored c ollection of medicines ( s ee Herrick Dep. 68, 87 (a bag of 16 medicines found "in a storage closet . . . were for multiple patients, and . . . it was 17 unclear why they were there")), Dr. DeMars predicted that Dr. Porter would surely 18 b ehired by UVM "unless she is going to be forced to resign over the medication 19 d iversion issues " (Dr. DeMars April 25 email to Herrick (emphasis added)). And 20 d espite her previous friendship with Dr. Porter, Dr. DeMars said: - 96 -1 My life and the messaging would be much easier if [DHMC's 2 general counsel] determines that all three providers are at 3 fault in the medi diversion issue and are facing loss of license . 4 ( Id . (italics ours) (bolding in original).) 5 Given this record, a rational juror would not be required to credit Dr. 6 D eMars's testimony that she wanted only the best for Dr. Porter. The jury could 7 instead infer that Dr. DeMars's representations and recommendations to Dr. 8 M e rrens convincing him to terminate Dr. Porter rather than reassigning her to 9 OB/GYN, were motiv ated by bad faith, malice, or retaliation, given, i nter alia, 10 # Dr. DeMars's blaming Dr. Porter for Dr. Seifer's failure-- 11 despite the pre-hiring warnings from Dr. Seifer's former 12 colleagues and the numerous multi-source, on-site criticisms of 13 his performance at REI; 14 # her assertion that Dr. Porter--"who ha[d] been out for almost 15 18 months" (Dr. DeMars May 12 email to Dr. Merrens)--could 16 have made Dr. Seifer a success; and 17 # her emphatic view that " My life and the messaging would 18 be much easier if " she could tell others that Dr. Porter, who 19 was "gifted and dedicated" (Dr. DeMars Dep. 43)--but who 20 reported unlawful, unethical, and harmful conduct--was let go 21 because she was at risk of " los[ing her] license " to practice 22 medicine. 23 We conclude that the district court erred in finding that the record 24 l a cked evidence from which a jury could permissibly find that Dr. Merrens 25 terminated Dr. Porter's employment--rather than reassigning her, as she requested, - 97 -1 t o fill known needs of OB/GYN--in reliance on the representations and 2 r ecommendations from Dr. DeMars that were motivated by malice, bad faith, or a 3 d esire for retaliation.

4 3 . Dr. DeMars as Decisionmaker 5 In the above discussion, we have explored the record as to whether or 6 not Dr. Merrens knewof Dr. Porter's reporting activity--and the evidence of his 7 r eliance on reflections or discussions he had with Dr. DeMars--on the assumption 8 that Dr. Merrens was the ultimate decisionmaker as to whether to terminate Dr. 9 P orter rather than retain her at DHMC. In so doing we do not mean to exclude the 10 possibility that a jury c ould find that the actual decisionmaker with respect to the 11 termination of Dr. Porter, after Dr. Merrens decided that REI would be closed, was 12 not Dr. Merrens but Dr. DeMars, who plainly knew of Dr. Porter's reporting 13 a ctivities. 14 While Dr. Merrens testified that he was responsible for those 15 d ecisions because he was "ultimately responsible for everything that happens from 16 aclinical aspect at Dartmouth-Hitchcock" (Dr. Merrens Dep. 20), it is not clear that 17 he was the actual deci sionmaker with regard to termination or retention of the REI 18 staff. For example, while his initial view was that when REI closed, all staff should - 98 -1 automatically be terminated, one staff member--nurse Todd--was in fact thereafter 2 r etained in OB/GYN. That decision was made although Dr. Merrens did "not" 3 have a "complete und erstanding" of Todd's capabilities (Dr. Merrens Dep. 25); and 4 his testimony lends its elf to an inference that the decision was made by Dr. 5 D eMars. He said, "I don't remember Dr. DeMars explaining why Beth Todd was 6 r etained." (Dr. Merrens Dep. 25-26.) 7 An inference that the decision to retain Todd had been made by Dr. 8 D eMars would be entirely consistent with Dr. Merrens's May 12 email to Maxfield 9 stating that the REI-cl osure staffing decisions had been made "at the 10 r ecommendation of Dr. De[M]ars"). And the jury could infer that Dr. DeMars, not 11 D r. Merrens, had also made the decision not to retain Dr. Porter, especially given 12 that, minutes after Dr. Merrens sent his email to Maxfield in response to her 13 inquiry as to why Dr. Porter was not being retained, he emailed Dr. DeMars 14 stating that he " need[ed] to knowhow better to answer this question." (Dr. Merrens 15 M ay 12 email to Dr. DeMars (emphasis added).) 16 In sum, the record is susceptible to several permissible inferences as to 17 the cause of DHMC's decision to terminate Dr. Porter. It did not lend itself to a 18 judgment as a matter of law in favor of DHMC on her claims that she was 19 terminated because of her reporting activities. - 99 -1 CONCLUSION

2 We have considered all of the parties' respective arguments 3 challenging or supporting the judgment of the district court and, except as noted 4 above, have found them to be without merit. For the reasons discussed above, we 5 v acate so much of the judgment as dismissed plaintiff's claims of disability 6 d iscrimination in the termination of her employment, in violation of the ADA, the 7 Rehabilitation Act, and the laws of New Hampshire and Vermont, and her claims 8 o f whistleblower discrimination and wrongful discharge in violation of New 9 Hampshire law, and w e remand for trial of those claims. We affirm so much of 10 the judgment as dismissed plaintiff's other claims that defendants, prior to her 11 termination, failed to accommodate her disability or retaliated against her on 12 a ccount of her disability. 13 Costs to plaintiff.

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