EEO REPORT - Ninth Circuit Holds That an Employer Cannot Terminate an Employee for Conduct That Is Caused by a Disability
 
October 8, 2007
 
Erika Royal- Ft Lauderdale

The Americans with Disabilities Act (ADA) protects disabled employees from discrimination based on a disability. The Ninth Circuit Court of Appeals recently interpreted Washington’s Law Against Discrimination, which is patterned after the ADA, to preclude an employer from terminating an employee based on conduct or behavior, even though extreme, that is caused by or is a part of the disability. Gambini v. Total Renal Care, Inc., 486 F. 3d 1087 (9th Cir. 2007).

The Facts

Stephanie Gambini was employed as a contracts clerk for DaVita, Inc., a company that provides kidney dialysis. Gambini began to experience depression and anxiety and eventually experienced a complete emotional breakdown at work. She was diagnosed with bipolar disorder.

Gambini told her supervisors that she was seeking medical treatment for bipolar disorder. She also told several of her co-workers that she was experiencing mood swings, which she was attempting to address with medication, and asked that they not be offended if she was irritable or “short” with them. Over time, Gambini’s bipolar symptoms worsened. She became increasingly irritable and easily distracted, and had difficulty concentrating and prioritizing her tasks.

About this time, Gambini’s supervisors decided to give her a written performance plan to address her perceived attitude and performance problems. When Gambini read the performance plan, the first sentence of which stated, “[Gambini’s] attitude and general disposition are not any longer acceptable in the SPA department,” she became anxious and began to cry. When she finished reading the document, Gambini threw it across the desk and, in a “flourish of several profanities,” argued that the performance plan was unfair and unwarranted. After the meeting, Gambini was seen at her cubicle kicking and throwing things. The next day, at the urging of her therapist in response to Gambini’s expression of suicidal thoughts, Gambini checked herself into the hospital.

Meanwhile, DaVita investigated Gambini’s conduct. Several employees stated concerns about Gambini’s outburst and one asked that Gambini not return to work. The next day, DaVita told Gambini that her employment was being terminated. Three days later, Gambini sent DaVita a letter stating that her bipolar disorder caused her outburst and requesting that DaVita reconsider its termination decision. When DaVita refused, Gambini sued, alleging violations of the Family and Medical Leave Act and the Washington Law Against Discrimination.

The Trial Court’s Jury Instruction Decision

DaVita won at trial. But there was a problem. Gambini had asked the district court to instruct the jury that “Conduct resulting from a disability is part of the disability and not a separate basis for termination,” but the court refused. On appeal, the Ninth Circuit ruled that the district court erred by refusing to give this instruction and that Gambini was entitled to a new trial.

Relying on both Washington State decisions and Ninth Circuit decisions interpreting the ADA, the Court ruled that conduct resulting from a disability is part and parcel of the disability, not a separate basis for termination. “[I]f the law fails to protect the manifestations of her disability, there is no real protection in the law because it would protect the disabled in name only,” the Court concluded. In other words, where an employee demonstrates a causal link between the disability-produced conduct and the termination, a jury must be instructed that it may find that the employee was terminated because of her disability.

Here, the evidence, including DaVita’s knowledge of Gambini’s condition and its admission in discovery that one of the reasons it terminated Gambini was that “she had frightened people with her violent outbursts,” would allow a properly instructed jury to infer that Gambini’s “violent outburst” was a consequence of her bipolar disorder, which the law protects as part and parcel of her disability. It would thus allow the jury to conclude that DaVita terminated her employment because of her disability – not for a legitimate reason. Because the jury could so find, Gambini was entitled to a new trial where the jury would be instructed that terminating her because of a disability-related outburst was tantamount to terminating her because of her disability.

The Court rejected DaVita’s argument that such a rule gives disabled employees absolute protection regardless of their transgressions and more protection than a non-disabled employee would receive. “[T]he law often does provide more protection for individuals with disabilities,” because “identical treatment often is not equal treatment with respect to disability discrimination.” And the proposed jury instruction did not give Gambini absolute protection from adverse actions based on disability-related misconduct. Gambini would still need to show that she was a qualified individual with a disability and that her disability caused the misconduct. Also, the employer could show that its actions were justified by the ADA’s “business necessity” or “direct threat” defenses or that the proposed accommodation poses an undue burden. DaVita would be entitled to raise any analogous defenses available under Washington law.

The Lesson

Although this case was brought under Washington’s Law Against Discrimination and not the ADA, it appears likely that the Ninth Circuit would apply the same rule under the ADA. This case raises questions about whether an employer may discipline, and even terminate, a disabled employee for violation of valid work rules that apply to all employees. Where the disability is mental, not physical, it is more likely that a court, like the Ninth Circuit here, will find that conduct or behavior caused by the disorder is protected by the antidiscrimination laws like the ADA. This decision is a good reminder that, if an employee can show that the conduct for which he or she is being disciplined is caused by his or her disability, the discipline or employment action may be found to be because of the employee’s disability, resulting in liability for the employer. The Gambini decision underscores the individualized nature of the analysis required under the ADA to determine whether an employee is entitled to a reasonable accommodation and whether the accommodation sought is reasonable given all of the circumstances.

For more information, email Erika Royal at erika.royal@hklaw.com or call toll free, 1-888-688-8500.