Labor & Employment Law Daily Bipolar assistant PD failed to show termination for discourteous behavior was pretext for disability bias
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Friday, November 6, 2020

Bipolar assistant PD failed to show termination for discourteous behavior was pretext for disability bias

By Kathleen Kapusta, J.D.

Despite numerous warnings that her conduct was abrupt, rude, hostile, or discourteous, the county had no reason to know of her disabilities at the time it decided to terminate her.

Although a county employer argued that courtesy in dealing with coworkers, staff, and others was an essential job function of a public defender, and the federal court in Arizona agreed that “courtesy in dealing with others is required by civilized society at large,” it nonetheless found the employee, who suffered from bipolar disorder, PTSD, and anxiety, sufficiently established through her performance evaluations that she was a qualified individual under the ADA and Rehab Act. However, because she could not show that the county’s reason for terminating her—her discourteous behavior—was pretextual, the court granted summary judgment against her disability discrimination claims (Adams v. Maricopa County, October 30, 2020, Liburdi, M.).

Symptoms. The employee, an attorney in the Maricopa County public defender office, alleged that as a result of her bipolar and generalized anxiety disorders, PTSD, and depression she had numerous symptoms that “wax and wane randomly,” but don’t resolve, including mood swings, irritability, racing thoughts, and trouble with social situations. Further, she claimed, she “periodically acted out in inappropriate ways.”

Altercations. In late July and early August 2018, she took FMLA leave to adjust to medication changes. Two days after returning to work “with no restrictions,” she allegedly slammed into her secretary’s office to let her know she was displeased with her and accused another attorney of “deep sixing” one of her cases while she was out.

Investigation. During an investigation of the incidents, the HR manager discussed with the employee another incident with a judge who had threatened to file a bar complaint against her. Although the employee acknowledged that she previously had memory deficits, she stated that she did not believe there was any medical reason she could not perform the essential functions of her job.

Performance reviews. Throughout her 20 year-tenure with the public defenders’ office, the employee received good performance evaluations. However, she also received multiple warnings regarding her abrupt, rude, hostile, and discourteous behavior. According to one supervisor, the employee behaved like a bully and working with her was like “being in an abusive relationship.”

Intent to terminate. On February 4, 2019, the Public Defender sent an “intent to terminate” letter to the employee outlining facts supporting his decision to terminate her, which he claimed was made prior to that date and which advised the employee of a February 13 pre-disciplinary hearing. On February 11, the employee sent a letter to the PD stating for the first time that she suffered from the various conditions and that some of the incidents with her coworkers were manifestations of her disabilities. She also attached a letter from her psychiatrist stating her diagnoses and that “[p]ersons with BPD and PTSD often present with issues related to anxiety, anger control and interpersonal communication problems when under stress or pressure.”

Hearing. At the pre-termination hearing, she again raised the issue of her disabilities and asked to discuss possible accommodations. Six days later, the PD sent the employee another letter declaring that he was proceeding with her termination.

Disabled. In seeking summary judgment on her ADA and Rehab Act claims, the county first argued that the employee was not disabled as she denied any disability or need for accommodation and in her interview with the HR manager stated that there was a medical reason she could not perform her job’s essential functions. But the employee claimed that statement was related to an alleged memory deficit and that her neurological disabilities affect her sleeping, eating, concentrating, thinking and interacting with others. Thus, the court found sufficient evidence of disability.

Qualified. In arguing that she was not a qualified individual, the county asserted that courtesy in dealing with coworkers, staff, and judicial personnel was an essential function of her position. It also pointed to various rules establishing courtesy requirements for its employees. For her part, the employee argued that at most, courtesy was a “policy requirement” and her performance evaluations through the years showed she was able to perform her job’s essential functions. The court, however, noted that the performance evaluations also contained scoring factors related to “professionalism” and “compliance with policies and procedures,” that the employee had been disciplined numerous times for violating those policies, and that she was on notice the county considered courtesy to be a required element of her position. Nonetheless, it found the evaluations provided evidence from which a reasonable jury could conclude she was a qualified individual.

Adverse action. Also rejected was the county’s assertion that the employee was not terminated because she was irritated, frustrated, had a short temper or mood swings but rather because she made rude statements when she became “displeased.” The employee asserted that she suffered from various symptoms due to her disabilities and that as a result of her disabilities, she acted out in inappropriate ways during her employment with the county. Further, her psychologist stated that “the behavioral disruptions experienced by a person who suffers from Bipolar Disorder I are consistent with the behaviors and outbursts identified in” the employee’s notice of termination. Based on this evidence, said the court, a jury could find she was terminated for conduct arising from her disability.

Pretext. The employee, however, could not show that the county’s proffered reason for terminating her—she was discourteous to coworkers, colleagues, and staff—was pretextual. Not only did the county’s February 4 letter provide specific, enumerated instances of her disruptive behavior over nearly two decades, at the time it was issued, the county unaware of her claimed disabilities. And while she argued that because of her post-hoc notice of disability and request for accommodations, she was excused of all past violations of county policy and was entitled to avoid termination, that was “not supported by substantive law.” Accordingly, the court granted summary judgment against her disability discrimination claim.

Failure to accommodate. Nor could she advance her failure-to-accommodate claim. The parties disputed whether the county made the final decision to terminate the employee when it sent the February 4, letter. But even if it accepted the employee’s assertion that her termination was only “imminent” when she notified the county of her disabilities several days later, the court found the county had already provided notice of its intent to terminate. Moreover, when it sent the letter, it had no reason to believe she suffered from a disability as she had returned to work only two days before with a “no restrictions” clearance from her doctor. Thus, said the court, given that the county had no reason to know of her disabilities or limitations when it notified her of its intent to terminate, her accommodation requests were “too late.”

Moreover, said the court, even if the county was required to engage in the interactive process between the intent to terminate letter and the official termination letter, it was not required to address the behavior that precipitated the employees’ termination. Although she argued that the PD was required to consider her response to the notice of intent to terminate letter before making a final decision, that argument, said the court “overlooks the fact that only prospective protections are afforded by the ADA.”

Reasonable accommodation. Nor did the employee show that a reasonable accommodation was facially possible. As to her suggestion that a leave of absence, flexible hours, working from home, and/or a “self-paced workload” would have been reasonable, there was no evidence they would have helped her perform her job’s essential duties. There was evidence she was “abusive” to staff shortly after returning from a leave, and the record indicated that being absent from work and having other attorneys handle her cases caused her displeasure.

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