Weaving v. City of Hillsboro: Police Officer's ADHD Did Not Constitute Disability Under ADA

In Weaving v. City of Hillsboro, ___ F.3d ___ (8/15/14), a police officer, Weaving, sued his police department and the City of Hillsboro (City), alleging that it terminated him in violation of the Americans with Disabilities Act (ADA) because of problems associated with his attention deficit hyperactivity disorder (ADHD). A jury returned a verdict in his favor, and the City appealed from the ensuing judgment. The Ninth Circuit reversed. 

The Court first reviewed the applicable law under the ADA: 

The ADA forbids discrimination against a “qualified individual on the basis of disability.” 42 U.S.C. § 12112(a). A disability is “a physical or mental impairment that substantially limits one or more major life activities of [the] individual [who claims the disability],” or “a record of such an impairment,” or “being regarded as having such an impairment.” Id. § 12102(1). The ADA provides a nonexhaustive list of “major life activities.” Such activities include “caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.” Id. § 12102(2)(A).

Slip op. at 12-13. 

The Court then held that substantial evidence did not support the judgment. 

Weaving alleged that his ADA substantially limited both his working and his interacting with others. Although both working and interacting with others constitute "major life activities," Weaving did not present substantial evidence to show that his ADHD substantially limited either (1) his ability to work compared to “most people in the general population" or (2) his ability to interact with others. Slip op. at 14-18. Weaving's ADHD may have limited his ability to get along with others, but that did not mean that it limited ability to interact with others. Slip op. at 17.

The opinion is available here.

Smith v. Clark County School District: ADA Plaintiff May Avoid Summary Judgment by Explaining Contradictory Statements In Applications for Disability Benefits

In Smith v. Clark County School District, ___ F.3d ___ (9th Cir. 8/21/13), Jacqlyn Smith worked for a school district, first as a teacher and then as a literary specialist. After aggravating a back injury, Smith applied for medical leave and disability benefits. 

On Smith's application for leave under the Family and Medical Leave Act (FMLA), Smith's doctor stated that Smith was “presently incapacitated” and could not “work at all until released by [a] doctor.” On her application for private disability benefits, Smith stated that her “dates of total disability” ranged from March 31, 2008, to “Not Sure.” On Smith's application for disability retirement under the Nevada Public Employees’ Retirement Systems (PERS), Smith's doctor certified that Smith was “unable to work due to injury or mental or physical illness.” 

At the same time, Smith and the district engaged in negotiations over whether and how she could return to work. Smith contended that she could not work as a teacher, but could work as a literary specialist. The district contended that it could not put her back into a literary specialist position, but offered a teaching position with accommodations. Smith ultimately resigned so that she could receive PERS disability retirement benefits. 

Smith sued the district in federal court, alleging that it violated the Americans with Disabilities Act (ADA) by discriminating against her and not providing reasonable accommodation. The district moved for summary judgment, asserting (1) that Smith was not a “qualified individual” under the ADA because she had represented on her applications for disability benefits that she was permanently disabled; and (2) that the district did not deny Smith a reasonable accommodation. The district court ultimately granted summary judgment, and Smith appealed. 

The Ninth Circuit reversed the judgment. It held that, in deciding whether Smith was a “qualified individual” under the ADA, the district court improperly applied the framework set forth in Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795 (1999), for analyzing the effect of inconsistent statements on applications for disability benefits. Slip op. at 9-11. Relying on Cleveland, the Court first determined that Smith's claims for FMLA leave, private insurance benefits, and PERS disability retirement did not inherently conflict with her ADA claim because they did not account for her ability to work with reasonable accommodation. Slip op. at 11-13. 

However, because Smith had made "certain statements" that "appear to conflict" with her ADA claim, the Court next considered whether Smith had met her burden of explaining these inconsistencies. Slip op. at 13-15. Looking at the facts in the light most favorable to the plaintiff, and considering that "Cleveland’s sufficient-explanation standard is not an exceedingly demanding one," the Court concluded that Smith "gave sufficient explanations for the inconsistencies between her ADA claim and her PERS and FMLA applications to survive summary judgment." Slip op. at 16. 

Smith v. Clark County School District is available here. 

Okwu v. McKim: Ninth Circuit Issues Unusual Americans with Disabilities Act Decision

Okwu v. McKim, --- F.3d --- (9th Cir. 6/12/12) raises an interesting issue: whether a state employee may sue state officers under section 1983 for alleged violations of the Americans with Disabilities Act ("ADA"). Plaintiff Josephine Okwu filed suit against the a number of individuals, each of whom was an employee of the California Department of Transportation (“Caltrans”) or the California Public Employees Retirement System (“CalPERS”).

The defendants in this case determined that Plaintiff Josephine Okwu’s psychological disorders made her unfit for reinstatement from disability retirement to active service with the California Department of Transportation (“Caltrans”). Okwu alleges that this decision deprived her of her right to a reasonable accommodation under the ADA and to the equal protection of the laws under the Fourteenth Amendment. We conclude that Congress’s inclusion of a comprehensive remedial scheme in Title I of the ADA precludes § 1983 claims predicated on alleged violations of ADA Title I substantive rights. We also conclude that Okwu’s allegations of fact do not state a claim under the Equal Protection Clause.

Slip op. at 2-3.

The opinion is a short, interesting read. It is available here.  

Samper v. Providence St. Vincent: Court Holds that Regular Attendance at Work Is an Essential Function for NICU Nurse

In Samper v. Providence St. Vincent, 675 F.3d 1233 (9th Cir., 4/11/12) the Ninth Circuit Court of Appeals held that regular attendance is an essential function of an NICU nurse's duties for purposes of the Americans with Disabilities Act.  

Monika Samper, a neo-natal intensive care unit (“NICU”) nurse, sought an accommodation from her employer [to accommodate her fibromyalgia], Providence St. Vincent (“Providence”), that would have allowed her an unspecified number of unplanned absences from her job. She wanted to opt out of Providence’s attendance policy, which sanctioned five unplanned absences of unlimited duration as well as other permitted absences. Samper appeals the district court’s summary judgment in favor of Providence on her reasonable accommodation claim under the Americans with Disabilities Act (“ADA”). Because regular attendance is an essential function of a neo-natal nursing position at Providence, we affirm.  

675 F.3d at 1235.  

The Court began by noting that understaffing could compromise patient care, then described Providence's attendance policy: 

Nonetheless, striking a balance between the needs of patients and employees, Providence's attendance policy allows its employees to take up to five unplanned absences during a rolling twelve-month period. In addition, "[u]nplanned absences related to family medical leave ... jury duty, bereavement leave and other approved bases are not counted" towards this limit, and each absence, however long, counts as only one occurrence.  Samper challenges the application of this generous absence policy to her circumstances. 

Ibid.  The Court reviewed Samper's long history of missing time from work for a variety of reasons, including health and personal reasons.  The Court's "essential functions" analysis is fairly brief and direct: Many jobs require regular attendance; a few do not.  NICU nurse is one of those jobs that cannot be done from a remote location.  Regular attendance is even more essential for a NICU nurse than it is for most other jobs.  Id. at 1237-1239.  

Samper's performance is predicated on her attendance; reliable, dependable performance requires reliable and dependable attendance. An employer need not provide accommodations that compromise performance quality—to require a hospital to do so could, quite literally, be fatal.

Id. at 1241.  

The opinion is available here.  

Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC: Teacher/Minister May Not Sue Church for Discrimination, Wrongful Termination

In Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, --- S.Ct. ----, 2012 WL 75047 (1/11/12), the Supreme Court considered whether a minister may sue her church for wrongful termination based on acts of discrimination. In a unanimous opinion written by Chief Justice Roberts, the Court held that the Establishment and Free Exercise Clauses of the First Amendment bar such actions.

Cheryl Perich worked as a teacher for Hosanna-Tabor. She was considered "called," meaning that she was regarded as having been called to her vocation by God through a congregation. She taught academic and religious classes and led the students in prayer. Perich was diagnosed with narcolepsy and went on disability leave. When Perich advised the school that she was able to return to work, it told her that it had filled her position. After Perich showed up for work, Hosanna-Tabor terminated her.

Perich filed a charge with the Equal Employment Opportunity Commission (EEOC), alleging that Hosana-Tabor had terminated her employment in violation of the Americans with Disabilities Act (ADA). 42 U. S. C. §12101 et seq. The EEOC filed suit, alleging that Hosanna-Tabor had fired Perich in retaliation for threatening to file an ADA lawsuit. Hosanna-Tabor moved for summary judgment, arguing that Perich was a minister, and she had been fired for a religious reason - namely, that her threat to sue the Church violated the Synod’s belief that Christians should resolve their disputes internally. The District Court agreed that the suit was barred by the ministerial exception and granted summary judgment in Hosanna-Tabor’s favor. The Sixth Circuit Court of Appeals vacated the decision, but the Supreme Court granted certiorari and affirmed.

The Court began by tracing the history of the First Amendment Establishment and Free Exercise Clauses from the Magna Carta, through the reign or Henry VIII, to the founding of the colonies by the Puritans, and the early days of the United States. The principal lesson drawn from this history is that the government under the First Amendment has no role in telling a church whom to choose as its minister. In the words of then Secretary of State James Madison in 1806, the selection of church functionaries was an “entirely ecclesiastical” matter left to the Church’s own judgment. Slip op. at 9.

The Court then considered whether "this freedom of a religious organization to select its ministers is implicated by a suit alleging discrimination in employment." Slip op. at 13. The Court held that there is a “ministerial exception,” grounded in the First Amendment, that precludes application of anti-discrimination legislation to claims concerning the employment relationship between a religious institution and its ministers. Ibid.

The members of a religious group put their faith in the hands of their ministers. Requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision. Such action interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs. By imposing an unwanted minister, the state infringes the Free Exercise Clause, which protects a religious group’s right to shape its own faith and mission through its appointments. According the state the power to determine which individuals will minister to the faithful also violates the Establishment Clause, which prohibits government involvement in such ecclesiastical decisions.

Slip op. at 13-14.

The Court then held that the ministerial exception applied to the facts of the present case. The Court declined to set a bright line rule on the limits of the ministerial exemption and instead looked to the particular facts of the case, including: Hosanna-Tabor held Perich out as a minister; her title as a minister "reflected a significant degree of religious training followed by a formal process of commissioning;" Perich held herself out as a minister of the Church by accepting the formal call to religious service; and her job duties reflected a role in conveying the Church’s message and carrying out its mission. Slip op. at 16-18. The Court concluded:

The interest of society in the enforcement of employment discrimination statutes is undoubtedly important. But so too is the interest of religious groups in choosing who will preach their beliefs, teach their faith, and carry out their mission. When a minister who has been fired sues her church alleging that her termination was discriminatory, the First Amendment has struck the balance for us. The church must be free to choose those who will guide it on its way.

Slip op. at 21-22.

The opinion is available here.