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Sample Pursuasive Memo


Derek Hale, through his attorney, in his action against Davenport Medical Center (DMC), respectfully requests that the Court denies DMC’s motion for summary judgment. This discrimination action arises from Davenport Medical Center’s (DMC) refusal to hire Derek Hale because of his disability. DMC is filing a motion for summary judgment despite the fact that there are still numerous issues of fact that remain disputed and unanswered.

Under the McDonnell Douglass formulation, Mr. Hale must present a prima facie case of discrimination, to which DMC must present a legitimate, non-discriminatory explanation for not hiring the plaintiff. This then shifts the burden to Mr. Hale, who must then prove that those stated reasons were mere pretext. Since there was no factual basis for DMC’s purported reasons for not hiring Mr. Hale, DMC was only able to provide a post-hoc justification for their actions.


I.   Mr. Hale’s Academic and Professional Background

Derek Hale is a highly experienced board-certified registered nurse with an associate degree in Surgical Technology and Critical Care from Mercy College of Health Science and a bachelor’s degree in Nursing from the University of Iowa. (Pl. Compl. ¶ 2.) Mr. Hale was an ICU nurse at Davenport Medical Center since 2012 and was promoted to ICU team leader in 2017. (Pl. Compl. ¶ 5.) During his time at DMC, Mr. Hale never received below at 9/10 on his general performance assessments. (Hale Aff. 2.) Mr. Hale was involved in just two documented grievances over the course his nearly decade long tenure as an ICU nurse. (Hale Aff. 2-3.) Among the physician and nursing staff at DMC, Mr. Hale had a reputation for being an excellent nurse who was pleasant and professional with strong technical nursing skills. (Blume Aff. 1,3.) In addition to being described as compassionate and patient, Mr. Hale was regularly requested to assist in the most complicated procedures by numerous attending physicians. (Blume Aff. 1.)

II.   Mr. Hale’s Injury, Certified Nurse Specialist Application, and Subsequent Accommodation Request

In April 2020, Mr. Hale was participating in a recreational hockey game where he was illegally checked into the boards, resulting in severe injuries in his back and hip. (Pl. Compl. ¶ 5.) By June of the same year, Mr. Hale’s injuries continued to persist, and he suffered from poor balance due to the severe pain in his lower-back, left hip, and buttocks, causing him to walk slowly and deliberately with the assistance of a cane. (Ex. 1 to Hale Dep.) As a result of his injuries, Mr. Hale can only stand for 20-30 minutes at a time and should stay seated whenever possible. (Ex. 1 to Hale Dep.)

During the course of his physical recovery, Mr. Hale’s supervisor and mentor, Ms. Blume, had retired from being the ICU’s Certified Nurse Specialist, providing an opportunity for Mr. Hale to further progress his career at DMC. (Hale Aff. 2.) Still suffering from his injuries, Mr. Hale and DMC worked together to seek a prospective accommodation for the CNS position(Id.) Due to the tight spaces within the ICU, DMC was unable to accommodate Mr. Hale. (Id.)

III.   Davenport Medical Center’s Hiring Committee and Mr. Hale’s Rejection of the Certified Nurse Specialist Position

Mr. Hale had made it to the final round of the interviewing process for the CNS position and the job was between himself and his colleague, Ms. Morrissey. (Hale Aff. 3.) It was at this time that the DMC Hiring Committee deviated from standard hiring practices as defined in the DMC Human Resources handbook by collecting informal feedback by the ICU staff and discussing the candidates with some members off the nursing staff off the record. (Reya Aff. 1.) Ms. Reya, a member of the Hiring Committee, contacted Ms. Blume, to discuss Mr. Hale’s candidacy, a practice that also deviated from the DMC handbook. (Ex. 1 to Reya Aff.) Mr. Hale was ultimately not offered the CNS position. (Hale Aff. 3.) Initially, Mr. Hale was told by the hiring committee that his colleague was a better personnel fit. (Id.) Later, Ms. Blume informed Mr. Hale that he had not been hired due to concerns regarding his organizational skills. (Blume Aff. 4.)


Through Fed.R.Civ.P. 56(c), it is appropriate to grant a motion for summary judgment when the evidence provides that there are no genuine issues of material facts. Young v. Warner-Jenkins Co., Inc., 152 F.3d 1021 (8th Cir. 1998). Although the moving party possesses the burden of establishing that there are no issues of material fact, the non-moving may defeat a motion for summary judgment by fashioning an inference of unlawful discrimination. Id.; Schaffhauser v. United Parcel Serv., Inc., 794 F.3d 902 (8th Cir. 2015).



Mr. Hale was a qualified candidate able to perform the essential functions of the CNS position and DMC’s reasons for not hiring him were illegitimate and discriminatory. Under the McDonnel Douglas formulation, when an employee claims that an employer’s actions violated their rights under the Americans with Disabilities Act (ADA), they must first provide a prima facie case of discrimination, which causes the burden to then shift to the employer who must provide a legitimate and non-discriminatory reason for their actions, which if done successfully then shifts the burden back to the employee who must prove the employer’s stated reasons were mere pretext. McDonnell Douglas Corp. v. Green 411 U.S. 792 (1973); Rehrs v. Iams Co., 486 F.3d 356 (8th Cir. 2007); Schaffhauser v. United Parcel Serv., Inc., 794 F.3d 903 (8th Cir. 2015); Lidge-Myrtil v. Deere & Co., 49 F.3d 1310 (8th Cir. 1995).

For the plaintiff to establish the initial prima facie case of employment discrimination, they must prove (1) that they have a disability recognized under the ADA; (2) that they were qualified and able to complete the essential functions of the job with or without reasonable accommodations; and (3) that they suffered adverse employment actions due to their disability. Rehrs, 486 F.3d at 356. Mr. Hale and Davenport Medical Center (DMC) agree that Mr. Hale has a disability under the framework of 29 C.F.R. § 1630.2(i).

Mr. Hale asserts that DMC did not hire him for the Clinical Nurse Specialist (CNS) position because of his disability. Despite Mr. Hale’s extensive educational and professional background, DMC claims that he was not a qualified candidate for the CNS position due to his inability to stand for more than thirty consecutive minutes, which they argue prevents him from conducting live observations. Mr. Hale contends that DMC’s purported reasons for not hiring him were the pretext for their discriminatory actions because live observation is merely a marginal duty. Consequently, DMC has not provided a legitimate and nondiscriminatory explanation and is not entitled to a motion of summary judgment.

A.   Standing for Long Periods of Time Is Not an Essential Function of the CNS Position Because It Is Not A Requirement Posted Within the Job Description.

Mr. Hale is a fully qualified candidate for the CNS position because live supervision was merely a marginal function of the job, therefore standing for long periods of time is not required. To be considered qualified for a position, an individual should have the requisite background and they should, despite their disability, be able to complete the essential functions, which are duties fundamental and not marginal, of that position, with or without reasonable accommodation. E.E.O.C v. Wal-Mart Stores, Inc., 477 F.3d 568 (8th Cir. 2007); Rehrs, 486 F.3d at 356.

In determining whether a job function is essential or merely marginal, a court will look to the consequences on non-performance, the amount of time spent on the function, the incumbent’s experiences, and any inferences that can be drawn from the job description. Minnihan v. Mediacom Commc’n Corp., 779 F.3d 810 (8th Cir. 2015); Wal-Mart Stores, Inc., 477 F.3d at 568. In Rehrs, where the plaintiff argued that he could not do the shift rotations because of a disability, the court, relying on 29 C.F.R. § 1620.2, emphasized the consequences of the plaintiff not performing the function in relation to his co-workers, reasoning the adverse effects represented the essential nature of the function. Id. Similarly in Minnihan, where the plaintiff asserted that driving was not an essential function of the job he lost, once again the court looked towards the impact that not performing the function had on his co-workers and looked toward the implied duties within the job posting. Minnihan, 779 F.3d at 810-812. It reasoned that the duties in the job description inferred additional functions, meaning that essential functions could be inferred and not explicitly stated. Id.

Here, live supervision is a marginal function based on DMC’s posted description, and there are no clear adverse consequences toward the nursing staff absent live supervision. Unlike in Minnihan, where the job description required a valid license, creating the inference that driving was an essential function, no such inference can be made using DMC’s job posting. Although the posting does reference live supervision, the ambiguous language of “may include observations” does not raise nearly the same inference as the one seen in Minnihan. The case here is further distinguished from Minnihan in that the plaintiff there caused his colleagues to work additional hours and take on additional duties due to his inability to complete the essential functions of his job. Under this formulation, live supervision would be more akin to a marginal function given there is not any clear evidence that Mr. Hale’s inability to conduct live supervision for extended periods of time would force his colleagues or his subordinates to take on any additional responsibilities or force them to work additional hours.

Additionally, here the incumbent, Ms. Blume, despite incorporating live supervision into her role of CNS more than is detailed in the job description, testified that watching the ICU nurses is not “a huge part of the job”. Unlike in Rehrs, where the shift rotations were integral to 100% of the job, and in contrast to Minnihan, where driving helped facilitate at least 50% of his job, Ms. Blume estimated that only seventy-five live supervisions were conducted in a work year, which roughly accounts to just 15% of the job. The court in Minnihan does note, however, that an aspect of a job may be essential even if it is only done for a few minutes each week. Id. However, taken as a whole, a court would likely rule that live supervision is merely a marginal function of the CNS position given it is not a required element within the job description, there is no implication it is essential, there are no clear adverse consequences in failing to perform live supervision, and that even the incumbent noted in her sworn affidavit it is not essential.

B.   Derek Hale Had an Excellent Reputation as an ICU Nurse and DMC’s Assertion that He is Not a Good Personnel Fit is a Willfully Exaggerated Post-Hoc Explanation.

The explanation of an employer’s actions in response to an assertion of discriminatory practices must be legitimate and should accurately characterize the reasons for their choices. Id. For instance, in Young, when the defense misrepresented the plaintiff’s job performance, the court ruled that misrepresentation of past employee performance can raise an inference of pretext. Id. It reasoned that a jury could infer that the employer is hiding an unlawful or discriminatory explanation behind their willfully exaggerated one. Id.

Conversely, an employer can use the pervasive and systematic history of poor performance as an explanation for the personnel decisions made against the employee. Bharadwaj, 954 F.3d at 1135; Lidge-Myrtil, 49 F.3d at 1312. In Bharadwaj, where the plaintiff, a doctor, was fired after repeated quarrels with nurses and other doctors, the court held that the plaintiff’s prolonged and documented pattern of his inability to get along with his colleagues was a legitimate reason for this termination. Bharadwaj, 944 F.3d at 1134. It reasoned that although the plaintiff argued his employer’s explanations were false, the evidence would support their reasons for firing him. Id.; see also Lidge-Myrtil, 49 F.3d 1308 (holding that past subpar performance can be a legitimate rebut to accusations of discrimination where an employee had numerous meetings with her supervisors regarding issues with co-workers and where they received multiple poor performance assessments).

DMC’s claim that Mr. Hale was not hired because he was not a good personnel fit is inaccurate and willfully exaggerated. Unlike in Bharadwaj, where the plaintiff showcased a pervasive pattern outward hostility towards his co-workers, Mr. Hale possessed multiple accolades among his colleagues at DMC. In addition to being an ICU team leader, Mr. Hale never received below a 9/10 on his general performance ratings, and according to the affidavit of Mr. Hale’s most recent supervisor, Nancy Blume, he was an “excellent nurse” that was “very well thought of” and was “regularly requested by many attendings” to assist on the “most complicated ICU cases”. Unlike in Bharadwaj, where the court accepted the employer’s assertion that the plaintiff was fired due to personnel issues, here a court would likely reject DMC’s explanation that Mr. Hale was not hired because he was not a good personnel fit and would likely view it as willful exaggeration given his strong professional record.

Furthermore, in comparing Lidge-Myrtle, where the plaintiff had numerous poor performance reviews and multiple complaints from co-workers, in his eight-year tenure as an ICU nurse Mr. Hale only received one complaint filed against him following a disagreement between himself and a nurse that is no longer employed at DMC. This further supports that a court should find DMC’s claim that there were personnel concerns surrounding Mr. Hale to be outwardly exaggerated. Such exaggerations draw strong similarities to those made against the plaintiff in Young, where the employer purposefully misrepresented the plaintiff’s work history and failed to include crucial context surrounding their performance reviews. There, the court ruled that such misrepresentation could raise an inference of discrimination. Such inferences can also be drawn here, seeing as how even the informal feedback collected against DMC policy provided further evidence of Mr. Hale’s strong credentials as an ICU nurse and a prospective Clinical Nurse Specialist. According to Ms. Blume’s affidavit, referring to the “off the record” feedback, Mr. Hale’s colleagues “thought his technical skills were excellent” and that he was “pleasant and professional”. Given Mr. Hale’s strong professional background and impressive record as an ICU nurse, DMC’s assertion that he was not a good personnel fit is not an accurate characterization of Mr. Hale’s job performance and raises an inference discrimination.

C.   DMC’s Deviation from Standard Hiring Practices by Using Informal Verbal Feedback Was the Pretext for Discrimination.

Mr. Hale was subjected to discriminatory practices when DMC deviated from their own hiring policy when they collected unofficial feedback from some of the hospital staff. An employer’s failure to follow their own policies when acting adversely to an employee is one way that a plaintiff can establish pretext in the employer’s discriminatory actions. Schaffhauser, 794 F.3d at 904.

When an employee alleges that an employer acted in a discriminatory manner, deviation from standard practices and organizational policies may be viewed as pretext for discrimination. Lake v. Yellow Transp., Inc., 596 F.3d 874 (8th Cir. 2010); Schaffhauser, 794 F.3d at 904. In Young, when the employer deviated from the employee policy manuals, the court ruled that when combined with the mischaracterization of employees past performances, the employer’s failure to adhere to their own policy could reasonably be pretext for discrimination. Young, 152 F.3d at 1024. It reasoned that such deviations from policy could supply an inference of discrimination. Id. Similarly, in Lake, a court ruled that an employer’s actions precluded summary judgment after they fired the plaintiff for misconduct but did not fire his white coworkers who had also failed to do what was required of them. Lake, 596 F.3d at 876. It reasoned that the defendant had applied their policy unequally and in doing so had created a factual dispute as to pretext. Id.

Conversely, in Schaffhauser, the court ruled that the plaintiff’s employer had not violated their own policies in a manner that would suggest discrimination when they failed to follow their own investigative guidelines. Schaffhauser, 794 F.3d at 904. The court reasoned there must be some connections between failing to adhere to their own policies and the allegation of discrimination. Id.Furthermore, the court offered the rationale that it cannot force a company to follow all of their own policies, as that would be the court determining how a private business should operate. Id.

DMC deviated from its standard hiring practices and did not follow its own policies when it gathered informal feedback from a select number of staff members during the CNS hiring process. Like in Young, where the employer both misrepresented the employee’s past job performance and did not follow their own policies by holding an absence against him, here DMC attempted to further exaggerate Mr. Hale’s personnel concerns by informally collecting feedback “off the record”. Similar to how the court in Young ruled that the combination of misrepresentation and deviation from policy raised an inference of discrimination, here too a jury could find that DMC’s actions during the hiring process were illegitimate and discriminatory. Additionally, like in Lake, where disparate applications of company policy resulted in the plaintiff being fired but not his white co-workers, DMC’s unusual interviewing practices resulted in Mr. Hale being overlooked for the CNS position. In line with the holding in Lake, a court would likely rule that such a failure to comply with their own policy would cause an employer’s explanation for the alleged discriminatory action to be illegitimate.

In contrast to Schaffhauser, where the employer’s lack of adherence to their own company policy was unrelated to the plaintiff’s discrimination claim, here DMC’s failure to comply with their own policy is directly tied to Mr. Hale’s assertion they were acting in a discriminatory manner. Since it would appear that the informal feedback collected by the hiring committee was directly used to support one of their explanations for not hiring Mr. Hale, a court would likely find that a failure to follow policy within this context would be directly related to claims of discrimination. Consequently, Mr. Hale was subject to discriminatory practices when the hiring committee at DMC failed to follow their own interviewing protocols.

D.   D. DMC Provided Mr. Hale With Inconsistent Explanations as to Why He Was Not Hired for the CNS Position.

The inconsistent explanations DMC provided as to why Mr. Hale was not hired for the CNS position were the pretext for discrimination. Inconsistent and disparate explanations from an employer regarding the accusation of discriminatory behavior can enough for the inference of pretext. Young, 152 F.3d at 1022; Allen v. Interior Constr. Serv., LTD. , 214 F.3d 978 (8th Cir. 2000).

An inference of pretext can be raised when an employer provides inconsistent and disparate explanations for the actions that the plaintiff is alleging to be discriminatory. Young, F.3d at 1022; Wal-Mart Stores, Inc. , 477 F.3d at 570. In Wal-Mart, where the plaintiff alleged Wal-Mart had provided inconsistent explanations for not hiring him, the court looked to the factual context of the plaintiff’s application relative to the employer’s reasons for not hiring and found the purported reasons were not only inconsistent but factually inaccurate. Id. In doing so, the court reasoned that an inference of pretextual discrimination could be raised due to the post-hoc rationalization that Wal-Mart was presenting to the court. Id. Similarly, in Young, where the defendant’s explanation to the court for firing the plaintiff was contradictory, the court ruled that a discrepancy in explanations supported a reasonable inference of discrimination. Id. It also reasoned that inconsistent explanations can be further supported when the initial explanation appears to be dubious. Id.; contrast to Allen 214 F.3d at 983 (holding that although inconsistent explanations can be pretext, the explanations themselves must be persuasive of a proffered reason where plaintiff argued that employer’s explanations were inconsistent due to breadth).

The initial explanation that Mr. Hale received for why he was not hired is inconsistent with the one provided to him later. Like in Wal-Mart, where the prospective employer provided a dubious initial explanation as to why the plaintiff was not hired, here the hiring committee told Mr. Hale that their personnel concerns were the reason he was not selected, despite his stellar history at DMC. Mr. Hale was then told by his former mentor that his lack of organizational skills were the motivating reasons he was not hired for the position. Concerns over his organizational skills were never formally documented in any of Mr. Hale’s prior performance reviews. In her affidavit, Ms. Blume recognized why Mr. Hale could feel like he had been “given inconsistent reasons”. Aligned with the ruling in Wal-Mart, a court would likely find that the inconsistent reasons rooted in dubious explanations would raise an inference of pretextual discrimination. Additionally, like in Young, where the court ruled that the differing explanations for termination appeared to be in conflict with each other, there is little evidence to support any commonalities or overlap in the explanations provided to Mr. Hale. Although he did have a disagreement with a former DMC employee over the way the former employee organized a patient’s room, there is minimal recorded support for either explanation provided by DMC.


Mr. Hale was fully qualified for the CNS position but was overlooked due to discriminatory practices conducted by DMC in response to his disability. Mr. Hale possessed the requisite academic and professional background for the position and could perform all essential, non-marginal functions. DMC’s failure to comply with their own hiring policies by collecting informal staff feedback was discriminatory in both practice and nature. Furthermore, by providing Mr. Hale with inconsistent explanations as to why he was not hired, DMC was attempted to formulate a post-hoc rationalization to justify their pretextual discrimination. These reasons provide sufficient question as to the pretext of DMC’s actions and should preclude summary judgment.