Justices Won't Review Denial of ADA Claim For Police Sergeant With Attention Disorder

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By Kevin McGowan

March 2 — Denying a petition filed by a fired Oregon police officer, the U.S. Supreme Court March 2 declined to review a federal appeals court ruling the officer couldn't show his attention deficit hyperactivity disorder rendered him disabled under the Americans with Disabilities Act.

In a 2-1 decision, the U.S. Court of Appeals for the Ninth Circuit had overturned a $777,662 ADA judgment for Matthew Weaving, a police sergeant fired by Hillsboro, Ore., after the department substantiated a co-worker's grievance that Weaving created a hostile working environment.

Contrary to the district court, the appeals court said Weaving failed to show his ADHD substantially limited his performance of any major life activity (763 F.3d 1106, 30 AD Cases 673 (9th Cir. 2014)).

In seeking Supreme Court review, Weaving argued the Ninth Circuit's narrow construction of “disability” violates explicit language in the ADA Amendments Act that says the statutory definition of disability “shall be construed in favor of broad coverage” and that the issue of whether an individual's impairment is a disability “should not demand extensive analysis.”

The Ninth Circuit improperly failed to credit Weaving's treating physicians' testimony that his ADHD substantially limited him in the major life activity of communicating with others, which the jury accepted in returning a verdict for Weaving, he said.

The Ninth Circuit's decision conflicts with the ADA's command that courts should broadly construe “disability” and with decisions from at least two other federal circuits that under the ADA Amendments Act, disability must be broadly construed in favor of expansive coverage, Weaving said.

The justices should grant review to address the circuit conflict and resolve the important issue of how courts should address “disability” under the ADA Amendments Act, Weaving said.

Opposing review, Hillsboro denied any circuit conflict exists on the issues raised in Weaving's case. Rather, the Ninth Circuit correctly applied its precedent to determine Weaving's ADHD didn't substantially limit his ability to interact with others, including his superiors and the public, even though he apparently couldn't get along with some peers and subordinates, Hillsboro said.

Fired After Conflict With Fellow Officers 

Weaving was hired by the Hillsboro Police Department in 2006 and later promoted to sergeant. In April 2009, Hillsboro placed Weaving on paid administrative leave after a fellow officer filed a grievance complaining about Weaving's treatment of his peers and subordinate employees.

While on leave, Weaving consulted with a physician who diagnosed him with adult ADHD. Weaving as a child had been diagnosed with ADHD and had taken medication for the impairment until age 12, according to his Supreme Court brief. Weaving's physician subsequently testified that the ADHD could explain some of Weaving's difficulties in interacting with his fellow officers.

After an investigation that included interviews with 28 officers, Hillsboro in December 2009 fired Weaving for creating and fostering a hostile work environment.

Weaving sued under the ADA, and Hillsboro argued his ADHD wasn't a disability covered under the act because it didn't substantially limit his performance of any major life activity. But a jury determined that Weaving's impairment was an ADA-covered disability, that Hillsboro failed to reasonably accommodate his condition and that the city had fired Weaving because of his disability.

The district court denied Hillsboro's post-trial motions, concluding the jury had sufficient evidence to find Weaving had an actual disability and the employer discriminated against him based on his ADHD.

But on appeal, the Ninth Circuit said as a matter of law, Weaving couldn't show his ADHD substantially limited his performance of any major life activity, including communicating, interacting with others or working. In dissent, Judge Consuelo Callahan would have affirmed the district court's judgment, saying the majority erred by ruling the evidence couldn't support the jury's conclusion that Weaving's ADHD substantially limited his ability to interact with others.

Meaning of ADA Amendments at Issue 

In his Supreme Court petition, Weaving said the Ninth Circuit improperly relied on caselaw predating the ADA Amendments Act to find his ADHD didn't substantially limit him in any major life activity.

When Congress passed the ADA Amendments Act, which took effect Jan. 1, 2009, it expressly rejected narrow court constructions of the ADA and said the statutory term “disability” should be construed broadly in favor of coverage, Weaving said.

The Ninth Circuit decision conflicts with Mazzeo v. Color Resolutions Int'l, LLC, 746 F.3d 1264, 29 AD Cases 757 (11th Cir. 2014), and Summers v. Altarum Inst., Corp., 740 F.3d 325, 29 AD Cases 1 (4th Cir. 2014), both of which correctly held Congress in the ADA Amendments Act enacted a broad definition of disability and said courts shouldn't follow previous decisions restricting statutory coverage, Weaving said.

The Ninth Circuit said a jury couldn't find Weaving's ADHD substantially limited any major life activity, even though his two treating physicians testified his ADHD symptoms specifically impaired his ability to communicate and interact with others, Weaving said.

In so ruling, the Ninth Circuit “engaged in the ‘extensive analysis' frowned upon by the ADA,” as amended, and narrowly construed the definition of disability, “contrary to statutory language that compels broad construction,” Weaving said.

The Ninth Circuit's decision perpetuates a narrow construction of disability that Congress expressly repudiated in the ADA Amendments Act, Weaving said.

The Supreme Court “needs to resolve the conflict between the circuits and with the ADAAA created by the decision below,” Weaving said.

No Circuit Split, City Says 

Meanwhile, Hillsboro said in its opposition brief that Supreme Court review isn't warranted of this “fact-specific case” in which the appeals court appropriately applied circuit precedent regarding the major life activity of “interacting with others.”

The Ninth Circuit reasoned the district court improperly conflated “interacting with others” with “getting along with others,” Hillsboro said. That Weaving apparently alienated his peers and subordinates doesn't mean he was substantially limited in “interacting with others,” when he was able to communicate with superiors and the public in performing his job, Hillsboro said.

Nor does the Ninth Circuit's decision create a conflict with other appeals courts about “disability” under the ADA, Hillsboro said.

Neither the Eleventh Circuit decision in Mazzeo nor the Fourth Circuit ruling in Summers is “remotely similar” to Weaving's case, the city said.

“Neither concerned facts developed at trial, ADHD, the major life activity of ‘interacting with others,' or an employee who created a hostile work environment,” Hillsboro said. “There is no unifying issue of law between those cases and this one that might be indicative of a circuit split. There simply was sufficient evidence or allegations of a disability in Mazzeo and Summers, while in this case, sufficient evidence was missing.”

Matthew J. Kalmanson of Hart Wagner LLP in Portland, Ore., represented Hillsboro. David M. Grey of Grey & Grey in Santa Monica, Calif., represented Weaving.

To contact the reporter on this story: Kevin McGowan in Washington at kmcgowan@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com

Summaries of labor and employment law cases denied Supreme Court review appear in Section E.