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Cop with ADHD: Cantankerous jerk or disabled under ADA?

August 21st, 2014  |  Kathy Kapusta

Did it just get a little more difficult for an employee in the Ninth Circuit to assert a substantial limitation on the ability to interact with others? In a case involving an alleged mental disability, a divided Ninth Circuit panel found that a municipal police officer who was diagnosed with ADHD as a child, and who stopped taking medication at the age of 12 but nonetheless continued to experience interpersonal problems throughout childhood, adolescence, and in his job, including being described by his peers as “tyrannical, unapproachable, noncommunicative, belittling, demeaning, threatening, intimidating, arrogant and vindictive,” was not substantially limited in his ability to work or to interact with others within the meaning of the ADA.

The officer joined a city police department in 1995 after passing a battery of tests, including psychological evaluations. At that point, he did not disclose his childhood ADHD diagnosis. During his time with the department, he had communication issues, was seen as abrasive and intimidating, and was removed from a detective team because of personality conflicts with another officer.

Communication issues. When he was subsequently hired by the Hillsboro Police Department in 2006, he disclosed what he described as “intermittent interpersonal communication issues” he experienced at the other department. He also disclosed his history of ADHD. While his first year evaluation at HPD was generally positive, his supervisor admitted that a few members of the department considered him to be arrogant.

A year later, he was promoted to sergeant. He continued to have communication issues, however, and in 2009, he was placed on leave after a subordinate filed a grievance against him. While on leave, he met with a clinical psychologist who concluded that he suffered from ADHD. The officer then contacted the city’s HR director, informed her of his diagnosis, and requested all reasonable accommodations, including reinstatement to his position as an active-duty sergeant.

Termination. Despite his request, the officer was terminated when an investigation into the grievance revealed that he had created and fostered a hostile work environment for his subordinates and peers. According to the investigator, the officer “has demonstrated time and again unacceptable interpersonal communication that suggests he does not possess adequate emotional intelligence to successfully work in a team environment, much less lead a team of police officers.”

Jury verdict. The employee then sued, alleging among other things that the city fired him because he had an impairment that limited his ability to work or interact with others. Although a jury found that he was disabled, and the court below denied the city’s motion for judgment as a matter of law, the panel majority reversed.

No limit on ability to work. The Ninth Circuit first found that the evidence did not show that the officer was limited in his ability to work compared to “most people in the general population.” To the contrary, there was evidence showing that he was in many respects a skilled police officer. Not only did he and his psychologist testify that he developed compensatory mechanisms that helped him overcome the impediments of ADHD and succeed in his career, his supervisors recognized his knowledge and technical competence and selected him for high-level assignments.

In addition, the panel majority noted, before receiving any treatment for adult ADHD, he was promoted to sergeant. In 2009, a psychologist and a physician/psychiatrist both deemed him fit for duty as a police officer. Given the absence of evidence that his ADHD affected his ability to work, and in light of the strong evidence of his technical competence as a police officer, the appeals court found that a jury could not reasonably have concluded that his ADHD substantially limited his ability to work.

Mere trouble getting along with coworkers. As to his assertion that he was disabled because his ADHD substantially limited his ability to interact with others, the court noted that unlike many of its sister circuits, in McAlindin v County of San Diego, it specifically recognized interacting with others as a major life activity. In McAlindin, however, the court cautioned that this “of course does not mean that any cantankerous person will be deemed substantially limited in a major life activity. Mere trouble getting along with coworkers is not sufficient to show a substantial limitation.”

Limitation must be severe. Rather, the court cautioned in McAlindin, the limitation must be severe. For instance, the Ninth Circuit pointed out, it held in Head v. Glacier Northwest, Inc., that a plaintiff who avoided crowds, stores, large family gatherings, and even doctor’s appointments and who did not leave the house for weeks after losing his job, offered sufficient evidence of disability to survive summary judgment.

No substantial impairment. Finding that the evidence here differed starkly from McAlindin and Head, the panel majority noted that while the officer experienced recurring interpersonal problems throughout his life, which had significant repercussion on his career as a police officer, those problems did not amount to a substantial impairment of his ability to interact with others within the meaning of the ADA. While the court found that his ADHD “may well have limited his ability to get along with others,” that was not the same “as a substantial limitation on the ability to interact with others.”

Unlike the plaintiffs in McAlindin and Head, the court pointed out, the employee here was able to engage in normal social interactions. His interpersonal problems existed almost exclusively in his interactions with his peers and subordinates, the court stated, observing that he had little difficulty comporting himself appropriately with his supervisors. “As we wrote in McAlindin, a ‘cantankerous person’ who has ‘[m]ere trouble getting along with coworkers’ is not disabled under the ADA,” the court explained.

Citing to the Second Circuit’s decision in Jacques v. DiMarzio, Inc., the court observed that one who is able to communicate with others, though his communications may at times be offensive, “inappropriate, ineffective, or unsuccessful,” is not substantially limited in his ability to interact with others within the meaning of the ADA. “To hold otherwise would be to expose to potential ADA liability employers who take adverse employment actions against ill-tempered employees who create a hostile workplace environment for their colleagues.” Thus, the court concluded, no reasonable jury could have found the employee disabled under the ADA.

Dissent. In a lengthy dissent, however, Judge Callahan argued that while, to the casual observer, the officer may not have appeared disabled, “that doesn’t give a panel of appellate judges license to brush away the contrary medical evidence and jury findings. Mental disabilities that cause socially unacceptable behavior are less obvious than physical disabilities, but the Americans with Disabilities Act protects those suffering from either form of disability equally,” the judge wrote.

Judge Callahan pointed out that a jury of the officer’s peers sat in a courtroom for four days, observed and listened to him as well as his coworkers, doctors, and wife, dutifully deliberated on the evidence, and found that he was disabled and that he was discharged because of his disability in violation of the ADA. “Now on appeal, the majority decides that it knows better. It reweighs the evidence on a cold record and issues its own diagnosis: [the employee] isn’t disabled, he’s just a jerk. Therefore, the City was free to fire him.”

In coming to this conclusion, the dissent argued that the majority usurped the jury’s role, gutted McAlindin, and replaced “our circuit’s standards with those announced in another circuit’s patently incompatible decision, Jacques v. DiMarzio, Inc.” Stating that the majority may not have liked the employee, “or at least the picture of him that it paints based on a cold record,” Judge Callahan wrote that “the outcomes of our disabled litigants’ cases should not turn solely on the amount of sympathy they inspire. The law protects the disabled, not the likeable.”