DISABILITY DISCRIMINATION

In Sutton, the plaintiffs were two pilots who had severe myopia. Each had uncorrected vision of 20/200 in the right eye and 20/400 in the left eye, but their vision was 20/20 with the use of corrective lenses. Although both individuals were employed as pilots for a regional airline, they were rejected for commercial pilot positions with United Airlines because their uncorrected vision was not 20/100 or better. The pilots filed suit alleging that United had discriminated against them because of their myopia. The plaintiffs contended that their myopia either was an actual disability or that United had regarded them as disabled. The district court granted United’s motion to dismiss on the basis that the plaintiffs were not disabled, and the Tenth Circuit affirmed.

In ruling on the plaintiffs’ claim for coverage under the ADA, the Supreme Court, in a 7-2 opinion, held that they were not actually disabled because they could fully correct their visual impairments. Justice Sandra Day O’Connor writing for the majority, reasoned that in order to be considered to have an actual “disability” covered by the statute, an individual must be “presently” substantially limited in a major life activity because of a physical or mental impairment. According to Justice O’Connor, “if a person is taking measures to correct for, or mitigate, a physical or mental impairment, the effects of those measures – both positive and negative – must be taken into account when judging whether that person is substantially limited in a major life activity and, thus, disabled under the Act.”

Justice O’Connor found support for her interpretation in the statute’s reference to 43 million Americans with disabilities. Justice O’Connor noted that the figure cited by Congress would have been much higher had Congress viewed as disabled persons those whose impairments were judged in an unmitigated state. In so holding, Justice O’Connor rejected the position of the EEOC and the Justice Department, which had interpreted the ADA as requiring the assessment of an individual’s impairment without regard to mitigating measures. In the Court’s view, this was “an impermissible interpretation of the ADA.”

The Court also ruled that the plaintiffs had failed to allege that they were “regarded as”disabled and, hence, covered by the statute. Justice O’Connor reasoned that regarded as claims normally arise when an employer mistakenly believes that an individual has a substantially limiting impairment. In Sutton, however, the plaintiffs alleged that United mistakenly believed that the plaintiffs were unable to work only as “global airline pilots,” which does not substantially limit any major life activity, including working. Justice O’Connor noted that creating physical criteria for a job, without more, does not violate the ADA. The statute allows employers to prefer some physical attributes over others, so long as the attributes do not rise to the level of substantially limiting impairments.

! Murphy v. United Parcel Service

Murphy v. United Parcel Service involved a plaintiff who was hired by UPS as a truck mechanic. Without medication, Murphy’s blood pressure was approximately 250/160, but with medication, his blood pressure, though still higher than normal, allowed him to function normally. UPS required mechanics to have commercial drivers licenses and to make test drives and emergency road calls. Department of Transportation regulations prohibited drivers with “high blood pressure likely to interfere with ... [the] ability to operate a commercial vehicle safely.” Because UPS believed that Murphy’s blood pressure exceeded this DOT requirement, he was terminated. When Murphy filed suit alleging discrimination under the ADA, the district court dismissed the case finding that Murphy was not actually disabled because he functioned normally with his medication and because he was regarded only as being uncertifiable under DOT regulations. The Tenth Circuit affirmed.

The Supreme Court, following the reasoning in Sutton, upheld the dismissal of Murphy’s ADA claim. Because, with mitigating measures, Murphy was not substantially limited in any major life activity, the Court held that he was not actually disabled. Moreover, the Court found that UPS had not “regarded” him as disabled because of his high blood pressure. The Court explained that in order to be “regarded as” disabled, an employer must believe that an individual’s actual, non-limiting impairment substantially limits one or more major life activities. In Murphy’s case, UPS regarded him as being unable to work in only a specific job that required driving a commercial motor vehicle. There was no evidence that he was limited in either a class of jobs or a broad range of jobs and, indeed, there was uncontroverted evidence that he could have performed a number of mechanic jobs. Accordingly, the Court held that Murphy was also not regarded as disabled.

Justice John Paul Stevens and Steven Breyer dissented in both Sutton and Murphy. Stevens asserted that the analysis of the definition of disability should focus on an individual’s past or present condition “without regard to mitigation that has resulted from rehabilitation, self-improvement, prosthetic devices, or medication.” Although Stevens acknowledged that this general rule should not apply to near sighted persons who simply need to wear glasses, he maintained that “in order to be faithful to the remedial purposes of the Act, we should give it a generous, rather than a miserly construction.” Justice Breyer, joining Stevens dissent, noted the dilemma of determining whether to include in the category of “disabled,” individuals, such as those who wear ordinary glasses, whom Congress may not have intended to protect. However, according to Justice Breyer, “faced with this dilemma, the statute’s language, structure, basic purpose, and history require use to choose” to err on the side of inclusion, rather than exclusion.

! Albertson’s, Inc. v. Kirkingburg

In the third case decided by the Court, Albertson’s, Inc. v. Kirkingburg, 119 S.Ct. 2169 (1999), involved a truck driver, Kirkingburg, with monocular vision who had been hired by Albertson’s based upon the erroneous understanding that he met DOT standards for commercial truck drivers, which require corrected distant vision acuity of at least 20/40 in each eye and distant binocular acuity of at least 20/40. After Kirkingburg had been terminated, he received a waiver from the DOT standards under a waiver program of the Department. Nevertheless, Albertson’s refused to rehire Kirkingburg who sued claiming a violation of the ADA.

The district court granted summary judgment for Albertson’s, finding that Kirkingburg was not qualified to be a truck driver because he could not meet the basic DOT requirements. The Ninth Circuit reversed, however, finding that Kirkingburg had established that he was disabled under the statute and that Albertson’s could not use compliance with the DOT regulations to justify not hiring him because the Department had a waiver program for which Kirkingburg qualified.

The Supreme Court reversed the Ninth Circuit and dismissed Kirkingburg’s suit under the statute. In a unanimous opinion, written by Justice Souter, with a concurrence by Justice Thomas, the Court held that having monocular vision is not a per se disability under the ADA, because of the many possible variations in vision loss and “the individual’s ability to compensate for the impairment.” Pointing to the Court’s decision in Sutton, Justice Souter pointed out that an individual with monocular vision, like other persons claiming the ADA statutory protections, had to prove that the person’s limitation substantially impaired a major life activity.

In addition, the Court determined that where, as was the case with Albertson’s, an employer establishes as a job qualification that an employee meet an otherwise applicable federal safety regulation, an employer does not have to justify enforcing the regulation solely because the requirement may be waived experimentally in an individual case. The Court went through an extended analysis of the Federal Motor Carrier Safety regulations and the Department of Transportation waiver program. The Court concluded that the waiver program did not change the content of DOT’s regular vision standard “in a way that disentitles an employer like Albertson’s to insist on it.” Accordingly, Albertson’s could adopt the DOT standard and make it a job requirement without violating the statute.

[2] Social Security Disability v. ADA Protections

! Cleveland v. Policy Management System, No.97-1008 (May 24, 1998). The pursuit and receipt of Social Security disability benefits for being too disabled to work does not automatically estop the recipient from also pursuing an ADA claim. The ADA defines “qualified individual” to include disabled persons who can perform essential functions of a job with reasonable accommodation. The Social Security Administration, on the other hand, does not take the possibility of reasonable accommodation into account in determining whether a person is disabled for disability insurance purposes. Thus, courts should not erect a rebuttable presumption that a person who applies for or receives Social Security disability benefits is prevented from asserting that he is a qualified individual with a disability entitled to invoke the protections of the ADA. Nevertheless, a recipient must explain why a claim for Social Security disability is consistent with an ADA claim, and the court should require an explanation of any apparent inconsistency. Cleveland v. Policy Management System, No. 97-1008 (May 24, 1999).

§ 2.01 CIRCUIT AND DISTRICT COURT DECISIONS DEFINING “DISABILITY”

[1] Physical or Mental Impairments Substantially Limiting a Major Life Activity[1]

[a] Cases Where Plaintiff Has or Could Have a Substantially Limiting Impairment

! That the Supreme Court’s decision in Sutton does not necessarily mean the end of ADA suits by individuals who take medication to control their physical or mental impairment is highlighted by the Ninth’s Circuit’s decision.

! McAlindin v. County of San Diego, 201 F.3d 1211 (9th Cir. 1999). In that case, the court of appeals reversed the lower court’s grant of summary judgment to the County of San Diego with respect to the claim of an employee who had been diagnosed as suffering from anxiety, panic, and somatoform disorders. The district court had dismissed McAlindin’s claim on the basis that he failed to establish that he was substantially limited in any major life activities. The Ninth Circuit disagreed, finding that McAlindin had raised a triable issue as to whether he was substantially limited in the major life activities of engaging in sexual relations, sleeping, and interacting with others.

! The court of appeals concluded that engaging in sexual relations was an ADA major life activity in light of the Supreme Court’s decision in Bragdon v. Abbott, 524 U.S. 624 (1998), where the Court recognized that reproduction and the sexual dynamics surrounding it are central to the life process itself. The court of appeals also determined that sleeping would be a major life activity, since an individual who sleeps the recommended eight hours every day spends one-third of each day sleeping and sleeping is critical to maintaining personal health. Finally, the Ninth Circuit concluded that interacting with others would constitute a major life activity because it is an essential, regular function. In considering McAlindin’s situation, the court of appeals found that a factual issue existed as to whether McAlindin’s mental impairments limited these major life activities. McAlindin had submitted affidavit testimony that he was impotent as a result of medications he was taking, that he experienced difficulty sleeping at night because his medications disrupted his normal sleep patterns, and that his fear reaction and total inability to communicate at times inhibited his interaction with others. The court emphasized that the use of medication may not eradicate the effects of a mental or physical impairment and a disability under the ADA may arise either due to the symptoms of the condition itself or as a result of the medication’s side effects.

! In Taylor v. Phoenixville School Dist., 174 F.3d 142 (3d Cir. 1999), in which the court of appeals upheld its earlier decision reversing the district court’s grant of summary judgment in favor of the employer with respect to the ADA claim of a secretary with bipolar disorder. In reversing the district court, the court of appeals held that a jury should decide whether the secretary’s bipolar disorder and the side effects from the Lithium she took to control the disorder, limited her abilities to think care for herself, concentrate, and interact with others. The court noted that the secretary had been confined to a hospital because she was psychotic, had become increasingly agitated, and that she suffered paranoid delusions that persons were trying to kill her. The court of appeals also found that the secretary’s employer school district had more than enough information to put it on notice that the secretary might be disabled due to her bipolar disorder. In addition, the court found that when the secretary’s son asked for “accommodations” from the school district, the district bore the burden of seeking whatever additional information it may have needed pertaining to the secretary’s disability and possible accommodations. Accordingly, the court of appeals held that a reasonable jury could conclude that the school district failed to engage in an interactive process of seeking accommodations for the secretary and, hence, failed to fulfill its ADA obligations.

! In Durrant v. Chemical/Chase Bank/Manhattan Bank, 81 F. Supp.2d 518 (S.D.N.Y. 2000), the federal district court for the Southern District of New York denied summary judgment to the employer. The court found that a factual issue existed as to whether a discharged employee with a leg injury, who subsequently developed depression, had a disability under the ADA. The court acknowledged that because the plaintiff’s leg injury was a temporary, non-chronic problem, this did not constitute a disability. Nonetheless, the district court found that a factual issue existed as to whether the severity of the plaintiff’s depression, its anticipated duration at the time of her discharge and its permanent or long-term impact, could substantially limit the plaintiff’s major life activity of working. The court also found that a factual issue existed as to whether the former employee, who had been on medical leave for her leg injury and who was discharged while she was being hospitalized for depression, was a qualified individual who could have returned to work and performed her essential job functions had she been given additional medical leave as a reasonable accommodation.

! In Amir v. St. Louis University, 184 F.3d 1017 (8th Cir. 1999), the court of appeals upheld the district court’s conclusion that a former medical student’s Title II claim could proceed because the student had sufficiently demonstrated that his obsessive compulsive disorder constituted an ADA disability. The district court had found that the plaintiff’s disorder affected his ability to eat and drink without vomiting, his ability to concentrate and learn, and his ability to get along with others. Although the court of appeals questioned whether the “ability to get along with others” constituted a major life activity, it conceded that “eating, drinking, and learning were major life activities” and, accordingly, that the plaintiff had established coverage under the ADA.

! In Schneiker v. Fortis Insurance Co., 200 F.3d 1055 (7th Cir. 2000), the Court of Appeals for the Seventh Circuit upheld the district court’s grant of summary judgment dismissing the ADA claim of a former employee with depression. The court found that the former employee had failed to demonstrate that her depression had substantially limited her ability to work, despite her contention that her depression was triggered by stress. In so holding, the circuit court pointed out that there was no evidence that the plaintiff’s inability to work in stressful situations precluded her from a class of jobs. The record showed only that she could not work for particular supervisor, and conflict with a supervisor alone did not establish that the plaintiff met the definition of disability under the ADA.

! In Spades v. City of Walnut Ridge, 186 F.3d 897 (8th Cir. 1999), the Eighth Circuit Court of Appeals upheld the district court’s dismissal of an ADA claim filed by a former police officer who was terminated after he attempted suicide by inflicting a gun shot wound to his head. Following his suicide attempt, the plaintiff had received treatment, including medication and counseling for depression, and the plaintiff alleged that he was capable of returning to work and performing his duties as a police officer. However, his employer, the City of Walnut Ridge, refused to re-employ the plaintiff after being advised that because it had knowledge of the plaintiff’s violent use of a firearm, his continued employment with the city as a police officer would increase the city’s exposure to legal liability. As a consequence, he was terminated. The court of appeals upheld the district court’s grant of summary judgment on the basis that the plaintiff had failed to establish that he was disabled under the ADA in light of the Sutton and Murphy opinions. The court noted that the record showed that the plaintiff took medication and received counseling for his depression and the plaintiff conceded that this treatment allowed him to “function without limitation.” Thus, the court concluded that the plaintiff’s “depression is corrected and cannot substantially limit a major life activity – a requirement for finding that an individual is disabled within the meaning of the ADA.” The court also found that the plaintiff could not establish that he had been regarded as being disabled because the record did not support any allegation that the city perceived the plaintiff as disabled within the meaning of the Act.

! In Leisen v. Shelbyville, 135 F.3d 805 (7th Cir. 1998), the Seventh Circuit upheld the district court’s grant of summary judgment to the plaintiff’s former employer, the City of Shelbyville Fire Department, because the plaintiff failed to establish that her claimed “depression” substantially limited any major life activity and there, even if it did, that she was a qualified individual with a disability. The plaintiff, who had been hired as a firefighter for the city of Shelbyville, had been terminated when she failed to gain state certification as a paramedic, which her employment contract required. The plaintiff attributed her inability to obtain certification to her emotional disabilities, and the plaintiff’s counselor testified that the plaintiff suffered from “sleep problems, memory problems, crying and anxiety, suicidal ideation [and] ... some depression.” Even if plaintiff had a recognized mental impairment, the district court found that it did not qualify as an ADA covered “disability” because the plaintiff was not substantially limited in any major life activity.

The Court of Appeals upheld the district court’s determination. Even though the plaintiff had difficulty obtaining certification as a paramedic, this did not show that she was substantially limited in the major life activity of learning “any more than the fact that a particular individual might not be able to pass a course in physics or philosophy would allow an inference that all learning activity was substantially limited.” Similarly, the appeals court noted that the record contained no evidence to establish that the plaintiff was substantially limited in the major life activity of working since “not everyone can be a firefighter, and [plaintiff] showed at most that her disability interfered with her ability to perform that particular job.” Alternatively, the court of appeals upheld the district court’s ruling that the plaintiff was not a qualified individual with a disability because the requirement to obtain a paramedic certification was a reasonable one, and “that an employer does not have to change basic job qualifications just because someone is disabled.”

! In Hoeller v. Eaton Corporation, 149 F.3d 621 (7th Cir. 1998), the court of appeals upheld the district court’s grant of summary judgment in favor of the employer, Eaton Corporation, on the plaintiff’s claim that Eaton terminated his employment because of his bipolar disorder. Although the disorder produced mood swings from depression to mania, the court of appeals found that the plaintiff had failed to establish that his bipolar disorder substantially limited any major life activities. The court noted that there was no evidence that plaintiff’s disorder substantially limited his “thought processes” or his “communication skills and interpersonal relationships.”

! An elementary school guidance counselor with a history of depression was held not to be covered by the ADA because the employee’s depression was not severe enough to substantially limit a major life activity. Olson v. Dubuque Community School District, 137 F.3d 609 (8th Cir. 1998). The Eighth Circuit Court of Appeals agreed with the district court’s grant of summary judgment in favor of the employer on the basis that the guidance counselor was not disabled. The undisputed evidence showed that the counselor reported to work regularly and felt that she was able to perform her job in a satisfactory manner, despite periodic episodes of depression. The guidance counselor also failed to demonstrate that her employer regarded her as having a disability. Although the employer knew that the guidance counselor had a history of depression, this information, without more, did not establish that it regarded her as having a disability covered by the ADA.

! In Cody v. Cigna Healthcare, 139 F.3d 595 (8th Cir. 1998), the plaintiff, Carole Cody, worked in St. Louis as a nurse for Cigna Healthcare. Cody claimed that she suffered from depression and anxiety, and, as a consequence, it was difficult for her to go to certain parts of the city she considered dangerous. As a result of co-worker complaints about Cody’s strange behavior and that Cody had spoken about carrying a gun, Cigna scheduled a meeting with Cody who arrived with a noticeable bulge in her purse. A local security specialist was sent to the meeting and Cigna offered Cody a paid leave of absence with her return contingent upon undergoing a psychiatric evaluation. Cody left the meeting and when she refused to return to work, Cigna terminated her.

Cody, thereafter, filed suit under the ADA and the Missouri Human Rights Act, but the district court dismissed the case on the basis that Cody was unable to establish that she was disabled. The Eighth Circuit affirmed, concluding that even though Cody was diagnosed with depression, there was no evidence that her mental impairment substantially limited any of her major life activities. Although Code claimed that she experienced anxiety in elevators, driving and entering high-crime areas, the court concluded that Cody’s statements only demonstrated that her depression “caused difficulties in her life, she did not show it was such a substantial impairment as to amount to a disability under the ADA..”

In addition, the court concluded that the evidence did not establish that Cigna regarded Cody as having an impairment. Although Cody argued that Cigna’s offering her paid medical leave and requiring that she see a psychologist before returning to work indicated that Cigna viewed her as disabled, the court of appeals disagreed. The court reasoned that “an employer’s request for a mental evaluation is not inappropriate if it is not obvious that an employee suffers from a disability” and “a request for an evaluation is not equivalent to treatment of the employee as though he were substantially impaired.” According to the appeals court, “while some of Cody’s behavior may have been unusual, the evidence that she submitted does not establish that Cody was treated as if she were disabled.”

! A discharged nurse, who was diagnosed with depression and breast cancer, was held not to be substantially limited in any major life activity in Lusk v. Christ Hospital, 2000 U.S. Dist. LEXIS 2691 (N.D. Ill. February 29, 2000). The federal district court for the Northern District of Illinois found that there was no evidence to suggest that the plaintiff’s impairment affected her performance as a licensed practical nurse (LPN) or substantially limited her ability to work generally. The plaintiff had made only a bare assertion that her impairments limited her ability to work as an LPN at a performance level she had achieved for 14 years prior to the onset of her physical and mental impairments. The plaintiff also failed to show that her former employer was aware of her depression. The plaintiff did not tell her employer that she had been diagnosed as being clinically depressed until the day she was given an indefinite suspension. Even though the plaintiff’s supervisor recognized that she was facing “substantial emotional difficulties,” the district court found that this did not mean that the employer knew she had a disability.

! In McConnell v. Pioneer Hi-Bred International, 2000 U.S. Dist. LEXIS 3355 (D.S.D. January 24, 2000), the federal district court for South Dakota dismissed on summary judgment, the claim of a discharged employee who took lithium daily to treat his bipolar disorder. The court determined that the plaintiff failed to establish that his bipolar disorder constituted a disability under the ADA because, according to the plaintiff’s own testimony, he felt fine while taking lithium and he did not present any medical evidence to show that his bipolar disorder substantially limited his ability to do his job at the time of his discharge. The district court also found that the employer did not regard the plaintiff as disabled when it sought medical expert advice to determine whether the problems with the plaintiff’s job performance were related to his bipolar condition. The court reasoned that an employer should not be punished for obtaining expert medical opinion, rather than reaching misperceptions based upon non-medical, lay interpretations of limitations that bipolar disorder might cause. The medical expert had informed the employer that the problems the plaintiff was experiencing in the workplace were not the result of his bipolar disorder, but rather were due to his basic personality traits.

! In Robb v. Horizon Credit Union, 66 F. Supp.2d 913 (C.D. Ill. September 14, 1999), the federal district court for the Central District of Illinois, held that a former employee with depression did not have a disability covered under the ADA even though she suffered a mental impairment that affected her life activities. Because Supreme Court precedent requires that the effects of anti-depressant medication be taken into consideration, the district court found that the former employee’s depression did not substantially limit any of her major life activities. The former employee conceded that as long as she was taking her medications, she was capable of working and was not substantially limited in any major life activity.

! A former fraud investigator, who allegedly suffered from bipolar disorder and obsessive compulsive disorder failed, to demonstrate that he was disabled under the ADA and, hence, his case was dismissed on summary judgment by the district court of Kansas in Sherrer v. GE Capital Corporation, 9 AD Cases (BNA) 1820 (D. Kan. July 2, 1999). Although the plaintiff contended that his mental impairments occasionally caused him to speak too quickly, limited his ability to learn and limited his ability to work, the court ruled that these limitations were not substantially limiting. The court emphasized that the plaintiff had acknowledged that when he took his medications, he generally could control the symptoms of his mental disorders.

In Bowers v. Multimedia Cablevision, Inc., 10 AD Cases (BNA) 671 (D. Kan. August 10, 1999), the federal district court for Kansas granted summary judgment to the employer and dismissed a former employee’s claim that his psychological condition constituted an ADA-covered disability because it substantially limited his ability to work. The plaintiff’s physician testified that the plaintiff continued to have some problems dealing with “co-workers and the like,” but the evidence demonstrated that the plaintiff was responding well to his medication, that his condition was temporary, and that he had been successfully employed as a computer programmer following his discharge from the defendant.

! A former employee’s depression was held not to constitute an ADA covered disability in Pack v. K Mart Corporation, et al., 166 F.3d 1300 (10th Cir. 1999), because the depression did not substantially limit her major life activities. The plaintiff and the EEOC, as amicus curiae, contended that the depression substantially limited the plaintiff’s major life activities of sleeping and concentrating. The Tenth Circuit agreed that sleeping is a major life activity, reasoning that it “is a basic activity that the average person in the general population can perform with little or no difficulty, similar to the major life activities of walking, seeing, hearing, speaking, breathing, etc.” However, the court held that concentration, in and of itself, is not a major life activity, although it may be a “significant and necessary component of a major life activity, such as working, learning or speaking.”

In considering the extent to which the plaintiff’s depression limited her major life activity of sleeping the court noted that the plaintiff had episodes of sleep disruption and waking without feeling rested. Nevertheless, the court found no indication that the plaintiff’s sleep problems were severe, long term, or had a permanent impact upon the plaintiff. In addition, the court noted that the plaintiff’s physician was able to control the plaintiff’s sleep problems with medication, even going too far in some instances, and making the plaintiff too sleepy or drowsy. According to the court, this evidence confirmed that the plaintiff’s major life activity of sleeping was not substantially limited by her depression.

! In Reeves v. Johnson Controls, 140 F.3d 144 (2d Cir. 1998), the court of appeals upheld the district court’s decision that a former employee who suffered from a panic disorder with agoraphobia was not covered by the ADA, despite the contention that his condition substantially limited the major life activity of “every day mobility.” Although plaintiff could not travel over bridges or through tunnels, board trains unaccompanied, or drive along routes prone to traffic tie-ups, the court found that the plaintiff was sufficiently mobile to travel to and from work on a regular basis. The court stated that an ADA plaintiff may not tailor the definition of “major life activity” to fit the specific circumstances of the impairment, which is what the plaintiff in Reeves was trying to do. Also, the court questioned whether “everyday mobility” should be considered a “major life activity.”

! Former employee who suffered from depression and anxiety disorders that rendered him unable to cope with stress or to work in unduly stressful environments was not substantially limited in the major life activity of work. Gaul v. AT&T, Inc., 955 F. Supp. 346 (D.N.J. 1997), aff’d sub nom., Gaul v. Lucent Technologies, Inc., 134 F.3d 576 (3d Cir. 1998). The court determined that “unduly stressful” jobs do not constitute a recognized occupational classification, and, hence, the plaintiff was not significantly restricted in his ability to perform either a class or jobs or a broad range of jobs in various classes. Further, to the extent that the plaintiff claimed that in order to accommodate his depression and anxiety disorders he merely needed to be transferred away from a certain supervisor, the court reasoned that he was not disabled under the ADA.

! A company president who was demoted after he received treatment for cancer was held not to be actually disabled under the ADA, even though his monthly chemotherapy treatments affected his ability to perform his job-related functions. EEOC v. R.J. Gallagher Co., 181 F.3d 645 (5th Cir. 1999). In so holding, the court of appeals noted that the plaintiff’s cancer had gone into complete remission and the plaintiff’s doctors had cleared him for unqualified return to work. The court, however, remanded to the district court on the issues of whether the plaintiff could establish a record of a disability or being regarded as disabled. With respect to a record of a disability, the court emphasized that the plaintiff would need to make an individualized showing that he had a record of an impairment that substantially limited one or more major life activities. The court rejected the EEOC’s statement in its Interpretive Guidance, 29 C.F.R. § 1630.2 App., that the ADA “protects former cancer patients from discrimination on the basis of their prior medical history.” The court pointed out that it is not enough for a plaintiff simply to show that he has a record of a cancer diagnosis; in order to establish the existence of an ADA-covered “disability,” there must be a record that the impairment substantially limits one or more major life activities. In addition, the court emphasized that on remand, the plaintiff would need to show that the employer regarded his cancer as substantially limiting one or more major life activities. In so ruling, the court of appeals rejected the employer’s contention that its offer of another position to the plaintiff conclusively disproved the plaintiff’s allegation that he was perceived as being disabled. The court noted that the offer could have been pretextual and that a “pretextual offer cannot shield the employer from ADA liability for its discriminatory action.”

! A police department’s requirement that a police officer with depression undergo a medical evaluation and be supervised by a physician was upheld in Krocka v. City of Chicago, 203 F.3d 507 (7th Cir. 2000). The Seventh Circuit Court of Appeals concluded that the police department’s requirements were not evidence that the department regarded the police officer as being disabled. Even though the results of the police officer’s medical evaluation might indicate the police department’s perception of the officer’s ability to function on the job, the court said this was not evidence that the department regarded him as disabled. The circuit court found that once the department learned that the officer was experiencing mental health difficulties, it was reasonable for the department to evaluate the officer’s fitness for duty, especially because of the significant safety concerns presented by a police officer’s position.

! In Watson v. City of Miami Beach, 177 F.3d 932 (1999), the Eleventh Circuit had held that a police department had not violated the ADA when it ordered a fitness-for-duty examination of a police officer who had overreacted in a situation and was regarded as paranoid. The examination found that the plaintiff, Watson, was “somewhat obsessional in style and experiencing symptoms typically associated with stress.” The doctor who conducted the examination recommended that Watson return to work with appropriate stress management counseling. The court of appeals found that the police department had good cause for concern as to whether Watson was fit to be an officer and, accordingly, that the fitness for duty examination was job related and consistent with business necessity:

Police departments place armed officers in positions where they can do tremendous harm if they react irrationally. Contrary to Watson’s contention, the ADA does not, indeed cannot, require a police department to forego a fitness-for-duty examination to wait until a perceived threat becomes real or questionable behavior results in injuries.

The Eleventh Circuit also found that Watson had not presented sufficient evidence to show that he was regarded as having a mental impairment. Watson had pointed to evidence that other police officers regarded him as “paranoid,” “disgruntled,” “oppositional,” “difficult to interact with,” “unusual,” “suspicious,” “threatening,” and “distrustful.” The court of appeals found that these characterizations of Watson’s behavior merely showed that he had “serious personality conflicts with members of his department” but that such conflicts do not rise to the level of a mental impairment under the ADA.

! In Duncan v. State of Wisconsin Dept. of Health and Family Services, et al., 166 F.3d 930 (7th Cir. 1999), the plaintiff was employed as a youth counselor at a correctional facility for young males operated by the State of Wisconsin. The plaintiff was terminated two months after an incident in which one of his young charges complained that plaintiff had been verbally abusive. The incident prompted the correctional facility to order the plaintiff to submit to various psychological tests at the state’s expense. The plaintiff completed some, but not all, of the program the psychiatrist recommended for him. After plaintiff missed several meetings with counselors and officials of the correctional facility, he was fired. The plaintiff then sued under Title II of the ADA, which prohibits discrimination by state and local governments, and the Rehabilitation Act of 1973. The district court granted summary judgment in favor of the State of Wisconsin, and the Seventh Circuit upheld the district court’s determination. The court of appeals agreed with the district court that the plaintiff was not covered under the ADA or the Rehabilitation Act as being “disabled” even though the plaintiff had argued that the correctional facility officials had regarded him as having a personality disorder, and as being substantially limited in the major life activity of working. The Seventh Circuit pointed out that the plaintiff had demonstrated that he was regarded only as having trouble performing one specific job – not working in general. The court noted that because the correctional facility officials had responded to problems in the plaintiff’s unit by transferring him to another facility, this indicated that the officials believed he could work successfully in a slightly different environment.

! In Newberry v. East Texas State University, et al., 161 F.3d 276 (5th Cir. 1998), the Fifth Circuit affirmed the lower court’s dismissal of the ADA claims of a tenured university professor who had been discharged because of his poor work performance and lack of collegiality. Although the professor had been diagnosed with depression, and one of his supervisors knew this fact, the court of appeals emphasized that the university had dismissed him because of his work performance and lack of collegiality. The court noted there was no evidence that the perception of plaintiff as being mentally ill had been a motivating factor in his dismissal. The court of appeals contrasted this situation with that of an employer who regarded mentally ill people as inherently dangerous and, then, to avoid the danger, fired an employee with a mental illness. The circuit court, therefore, upheld the jury verdict that the plaintiff was not a qualified individual with a disability under the ADA. As stated by the court, the plaintiff’s dismissal came about not because of others’ attitudes about the disorder, but because his behavior interfered with his job performance “and perhaps because the behavior displeased others.”

! In Witter v. Delta Air Lines, Inc., 138 F.3d 1366 (11th Cir. 1998), the court held that in order for an employee to be regarded as disabled, the employer must believe that the employee is unable to perform a class of jobs, not just a single job. The plaintiff was an airline pilot who had suffered from a bipolar disorder and was grounded for a period of time. Subsequently, the airline’s doctor determined he was qualified to fly unless there was any future unusual behavior. Later, plaintiff and his co-employees filed claims against each other due to difficulties flying together. The two other crew members considered plaintiff to present a safety hazard. The airline’s doctor re-evaluated plaintiff, determined he had a Narcissistic Personality Disorder, and suggested he be grounded. The court ruled that the plaintiff had failed to show that the employer regarded him as being disabled because he was restricted only from an airline pilot position. The court found that this restriction was not broad enough to substantially limit his employment opportunities, because there were many other jobs that plaintiff could have held with his experience and education.

! In Haschman v. Time Warner Entertainment Co., 151 F.3d 591 (7th Cir. 1998), the appeals court upheld a jury verdict for the plaintiff, finding that she was a qualified individual with a disability entitled to pursue an ADA claim. Plaintiff suffered from systemic lupus erythematosus and suffered periodic flare-ups, which required her to take a leave of absence. When plaintiff requested a second leave, she was terminated. The employer contended that plaintiff failed to perform the essential functions of her job prior to her leave of absence, due to her poor job performance. The court, however, found that plaintiff’s poor job performance was not documented until she suffered a flare-up of her lupus. Accordingly, the court determined that there was sufficient evidence to support a jury finding that plaintiff had performed the essential functions of her position and was terminated in violation of the ADA.

! In Norris v. Sysco Corp., 191 F.3d 1043 (9th Cir. 1999), the Ninth Circuit held that a former employee who received total disability benefits from the employer’s insurance carrier and from the state was not judicially estopped from pursuing an ADA claim. The court found that the record failed to demonstrate that the ADA’s definition of disability and the definitions of disability under the employer’s insurance plan and the state disability plan were so congruent that judgment should be entered against the former employee. The court noted that there was an explanation for any inconsistencies in the record and that juries are regularly called upon to consider evidence of inconsistencies. Further, the court of appeals pointed out that the nature of an individual’s disability may change over time, which may explain any inconsistencies.

! An employee who suffered from depression and anxiety and who was discharged for excessive absenteeism was held by the Eighth Circuit in Greer v. Emerson Electric Co., 185 F.3d 917 (8th Cir. 1999), not to be a qualified individual with a disability. The court found that regular and reliable attendance was an essential function of the employee’s job and the employee admitted that she was discharged for no reason other than absenteeism.

! In Loeb v. Trans World Airlines, Inc., 1999 U.S. App. LEXIS 25475 (8th Cir. October 12, 1999), the Eighth Circuit Court of Appeals upheld the district court’s grant of summary judgment dismissing the claims of a discharged employee who applied for and received Social Security disability benefits after being diagnosed with depression, manic depression, obsessive compulsive disorder and alcoholism. The court found that the discharged employee had failed to prove that she was able to perform the essential functions of her job even with reasonable accommodation. The former employee failed to explain how her sworn representations to the Social Security Administration that she was unable to work were consistent with her ADA claim that she could perform her job with accommodations.

! A 20-year employee, who was fired for verbally abusing and striking a female co-worker, has no ADA claim despite the employee’s contention that his outburst was caused by post traumatic stress disorder. Hamilton v. Southwestern Bell Tel. Co., 136 F.3d 1047 (5th Cir. 1998). The court ruled that the plaintiff had failed to show that his diagnosis of PTSD was a disability under the ADA because the plaintiff admitted that his PTSD was a temporary condition stemming from an episode that occurred four months before his discharge. Accordingly, the court found that the plaintiff’s PTSD did not substantially limit him in any major life activity, including working. In addition, even if the plaintiff had an ADA disability, the employer did not violate the statute by firing him for cursing at a female manager and slapping her hand down. “The ADA does not insulate emotional or violent outbursts blamed on an impairment.... An employee who was fired because of outbursts directed at fellow employees has no ADA claim.” The court reasoned that the plaintiff’s discharge was “not discrimination based on PTSD, but rather his failure to recognize the acceptable limits of behavior in a workplace environment.” According to the court, the plaintiff “cannot hide behind the ADA and avoid accountability for his actions.”

! In Barbera v. DiMartino, 702 A.2d 1370 (N.J. App. 1997), cert. denied, 708 A.2d 64 (1998), plaintiff, Thomas Barbera, Jr., was terminated as an Assistant Trial Court Administrator after having assaulted his supervisor. Barbera suffered from a psychiatric disability and the assault was a product of Barbera’s medical condition. Barbera sued under the New Jersey Law Against Discrimination, alleging that he was terminated because of his disability. After trial, the jury returned a verdict in favor of the employer and Barbera appealed. The court of appeals affirmed the jury’s verdict. The court said, “we see no reason why ... employers subject to laws protecting the handicapped and disabled nonetheless should not be able to take appropriate action on account of egregious or criminal conduct of an employee, regardless of whether the employee’s disability contributed to the conduct.”