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May/June 2007 U.S. Courts
of Appeals Split on Whether ADA Protects Employee
Macy Plaintiff Sharon Macy was employed by the defendant board of education as a physical-education teacher from August 1981 until November 30, 2000. Macy suffered from “post concussive syndrome” caused by repeated head injuries. Her symptoms included irritability and “outbursts of anger.” On November 1, 2000, as Macy was leaving her school for the afternoon, she saw a group of boys playing basketball outdoors unsupervised. Macy threatened to kill the boys, insisting she “meant it.” She also made remarks about the marital status and sexual activity of the boys and their family members, including “derogatory comments about men to the effect that they raped women, that they got them pregnant and left them.” Following this incident, the superintendent ordered an investigation, which uncovered many previous incidents involving Macy. The incidents included Macy leaving the school building without signing out, pushing a chair off a stage, calling a student a “total loser,” violating grading policy, kicking a trash can when students misbehaved, making derogatory comments about a parent and other employees in front of a classroom of students (including the parent’s child), sending a fake detention to the assistant principal, skipping assigned bus duty, improperly disciplining students, slamming a book against the floor and making derogatory comments about other employees during a meeting, and announcing she would not follow discipline policies. Based on the November 1, 2000, incident and the investigation, the board terminated Macy on November 30, 2000. Macy appealed the termination all the way to the Kentucky Supreme Court but lost. The November 1, 2000, incident also led to Macy’s criminal conviction for making terroristic threats. After administrative proceedings, Macy sued in federal district court, alleging she had been terminated because of her post concussive syndrome. This, she claimed, was a violation of the ADA. The district court granted summary judgment in favor of the board and dismissed Macy’s claims. Macy appealed to the Sixth Circuit, which affirmed. The evidence showed that the board had fired Macy because of her conduct in the November 1, 2000, incident, which was consistent with prior instances of inappropriate conduct disclosed in the superintendent’s investigation. The board contended this was a “legitimate, nondiscriminatory reason” for Macy’s termination. Macy argued it was not, because her “verbal outbursts, anxiety, anger and ... irritability” were symptoms of her post concussive syndrome, which meant the board actually fired her because of her disability. The court of appeals rejected Macy’s argument and upheld her termination, noting that “an employer may legitimately fire an employee for conduct, even conduct that occurs as a result of a disability, if that conduct disqualifies the employee from his or her job.” (Emphasis added.) Gambini Plaintiff Stephanie Gambini was a contracts clerk for defendant DaVita, Inc. from November 2000 until July 17, 2002. Gambini suffered from bipolar disorder, which caused irritability and short-temperedness. Beginning in April 2002, Gambini’s symptoms grew significantly worse. Around that time, DaVita decided to place Gambini on a performance improvement plan because, as the plan’s first sentence put it, her “attitude and general disposition [we]re no longer acceptable.” Gambini was called into a small meeting on July 11, 2002, with her supervisor and one other person, where the plan was presented to her. When Gambini read the first sentence, she began to cry. After reading all of it, Gambini threw it and “in a flourish of several profanities” said it was “unfair and unwarranted.” Then, “[s]lamming the door on her way out” of the meeting, Gambini “hurled several choice profanities” at her supervisor. Gambini may also have said to the meeting’s participants that they “will regret this.” After the meeting, Gambini’s supervisor observed her at her cubicle “kicking and throwing things.” As a result of her conduct on July 11, Gambini was terminated. She sued in federal district court, claiming disability discrimination under Washington state law, which is governed by the same standards as the ADA. Gambini lost after a jury trial. On appeal before the Ninth Circuit, Gambini argued that the jury found against her because of the trial court’s error in failing to instruct the jury that “conduct resulting from a disability is part of the disability and not a separate basis for termination.” The court of appeals agreed, reasoning that where there is a “causal link” between the “disability-produced conduct” and the termination, a jury may find that “the employee was terminated on the impermissible basis of her disability.” If Gambini’s “violent outburst” on July 11 was a “consequence of her bipolar disorder,” the law protected it as “part and parcel of her disability.” The court therefore ruled that Gambini was entitled to a new trial on her disability claim. Employer Notes Macy’s outcome is neither objectionable nor surprising. Gambini’s outcome, however, is both. Nevertheless, things are not quite as bad in the Ninth Circuit or Washington State as the Gambini outcome makes them look. The Ninth Circuit noted that disability-generated misconduct is not entitled to “absolute” protection. First, under the ADA and a parallel Washington law provision, a plaintiff must establish that with or without reasonable accommodation, she “can perform the essential functions of the employment position.” Arguably, an employee who has repeated violent outbursts cannot perform the essential functions of her job. Second, several affirmative defenses may be available to employers who terminate such an employee. These include proof that accommodating such an employee would impose an “undue burden” on the employer, that “business necessity” may require such an employee’s termination, and/or that the employee poses a “direct threat” to the “health or safety of others in the workplace.” Continuing to employ an individual prone to violent outbursts would be folly; doing so could itself raise liability issues. But before taking any adverse action, an employer is well advised to consult counsel to determine the precise rules of the jurisdiction and to formulate a plan to navigate them successfully when it becomes necessary to remove a disruptive employee from the workplace. Christopher
H. Mills, Managing Partner, New Jersey Regional Office,
Fisher & Phillips LLP, Somerset, N.J., and David J. Treibman,
Associate, Fisher & Phillips LLP, Somerset, N.J. |
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In
April, two federal courts of appeals issued contradictory rulings as
to whether the Americans with Disabilities Act (ADA) protects an employee
whose misconduct is caused by a disability. In both cases, violent outbursts
by an employee resulted in her termination. In Macy v. Hopkins County
School Board of Education (6th Cir. 2007), the Sixth Circuit held
that the ADA does not protect such conduct. In Gambini v. Total
Renal Care, Inc. (9th Cir. 2007), the Ninth Circuit held that it
does, though the protection is not “absolute.”