Labor & Employment Law Daily Medical condition that ‘caused’ officer’s memory loss of her first warning might be covered disability
Thursday, May 2, 2019

Medical condition that ‘caused’ officer’s memory loss of her first warning might be covered disability

By Marjorie Johnson, J.D.

She adequately alleged that the memory-loss symptoms could manifest on more than one occasion and that because she had been working as a police officer without incident, she could perform the essential functions with or without a reasonable accommodation.

An African-American police officer who was terminated from her position with the U.S. Capitol Police (USCP) after Amtrak alerted her employer that she had twice been caught riding without a ticket advanced to discovery on her federal claims of discrimination based on disability, race, and sex. At this early stage, she sufficiently alleged that she had a conductor’s permission to take the “courtesy rides,” that she failed to remember Amtrak’s first warning due to her known medical condition which caused memory loss, and that she was treated less favorably than similarly situated white males. However, a federal court in the District of Columbia dismissed her due process claim since she conceded that she received notice and a meaningful opportunity to be heard (Niles v. U.S. Capitol Police, April 25, 2019, Chutkan, T.).

Head injury. While on duty in 2005, the officer suffered a seizure after she hit her head on a bike rack and fell to the ground and hit her head again. She was transported to the hospital where it was determined that her seizure was caused by the fall and/or a brain tumor. About seven years later, she was promoted to the rank of sergeant.

Accused of misconduct. About two years later, she was riding an Amtrak train to work when she was accused of failing to pay for a ticket. Though she claimed that a conductor gave her verbal permission to be a “courtesy rider,” the Amtrak police warned her not to board Amtrak trains without a paid ticket or a conductor’s permission. She then continued to commute on Amtrak as a “courtesy rider.”

During her Amtrak commute about three months later, she boarded the train after a conductor purportedly allowed her to take a courtesy ride. When a different conductor asked for her ticket, she explained that she had been given permission to board, but the conductor wouldn’t allow it. When she exited early at the next stop, Amtrak police asked for her USCP credentials and supervisor’s contact information. She then paid the fare and was allowed to proceed to her final destination.

Claimed she couldn’t remember. The Amtrak police subsequently reported the two incidents to the USCP Office of Professional Responsibility (OPR). During OPR’s investigation, the officer denied what she had done was illegal and maintained that she had no recollection of the incident. The following month, she was charged with violating policies relating to “conduct unbecoming” and “truthfulness.”

Diagnosed with memory loss. Meanwhile, she consulted with a doctor who diagnosed her with transient global amnesia (TGA), a loss of memory “that manifests itself as a paroxysmal, transient loss of memory function,” with patients experiencing “striking loss of memory for recent events.” She saw another doctor for a second opinion who confirmed the diagnosis and added a diagnosis of “short-term memory loss” related to severe stress, depression, and anxiety.

Fired following hearing. The Disciplinary Review Board (DRB) held a hearing at which the officer presented medical evidence and her doctor testified about the TGA diagnosis. She was found guilty of both charges and the DRB subsequently recommended that she be demoted due to the conduct unbecoming charge and terminated due to the truthfulness charge. Six months later, after being given the option to resign, she was terminated.

Plausibly disabled. The USCP contended that the employee failed to plausibly allege that she had a qualifying disability since she only asserted that TGA prevented her from remembering the Amtrak officials’ version of the facts. However, while she went into detail about her inability to recall that one event, she also adequately alleged that TGA symptoms could manifest on more than one occasion. For example, she claimed that the condition caused “striking loss of memory for recent events,” implying that her memory loss could happen more than once. This was enough to allege that she suffered an impairment that substantially limited a major life activity, which included reading, concentrating, thinking, and communicating—all of which could be negatively or substantially impacted by memory loss.

She also plausibly alleged that she could perform the “essential functions of her job with or without reasonable accommodation” despite her employer’s assertion that her memory lapses would impair her ability to carry a gun or recall events. She pointed to her doctor’s characterization of her symptoms and the fact that she never sought an accommodation and worked as a police officer until she was removed in August 2015, without complaints regarding her performance. This was sufficient at this early stage.

Pretext. The court also rejected USCP’s contention that the officer undisputedly failed to show that its proffered reason for terminating her was pretextual. In particular, it argued that she failed to show that her alleged comparators engaged in similar conduct since, although she claimed that several white male officers who violated the code of conduct were not terminated for their behavior, she didn’t allege that they were disabled or that they rode a train without paying or were untruthful when questioned by OPR. But because she was not required to present comparator evidence in advance of discovery, summary judgment was not appropriate.

No due process violation. However, the officer’s due process claims failed as a matter of law. As a public employee, she was entitled to notice of the charges against her, an explanation of the evidence, and an opportunity to present her side of the story. She conceded that she received just that: She received notice that she was charged with conduct unbecoming and truthfulness. She then had over four months to prepare for the hearing, where she “presented her medical evidence, of her prior seizure and brain tumor” and her doctor’s testimony. Though she argued that USCP “failed to consider” her medical evidence when making its decision to terminate her, this was flatly contradicted by the hearing transcript and written decision.

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