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Police Officer With ADHD Not Limited Enough In Interactions With Others, 9th Cir. Decides

Tuesday, August 19, 2014

By Patrick Dorrian

Aug. 18 - A former Oregon police officer with attention deficit hyperactivity disorder failed to show he is disabled under the Americans with Disabilities Act, a divided U.S. Court of Appeals for the Ninth Circuit held Aug. 15, overturning a lower court's $777,662 judgment for the officer.

Matthew Weaving didn't establish that his condition substantially limited him in the major life activity of interacting with others, the appeals court found 2-1, because the interpersonal problems he experienced were almost entirely with peers and subordinates, and not with supervisors or the public.

The Hillsboro Police Department fired Weaving after an investigation concluded that his "tyrannical, unapproachable, noncommunicative, belittling, demeaning, threatening, intimidating, arrogant and vindictive" style created a hostile environment for other employees.

Judge William A. Fletcher distinguished earlier cases- McAlindin v. County of San Diego, 192 F.3d 1226, 9 AD Cases 1217 (9th Cir. 1999) and Head v. Glacier Northwest, Inc., 413 F.3d 1053, 16 AD Cases 1606 (9th Cir. 2005)-in which plaintiffs were so restricted in their ability to interact with others that "they were essentially housebound." Employers shouldn't face ADA liability for taking adverse employment action "against ill-tempered employees who create a hostile workplace environment for their colleagues," he said.

The court also rejected Weaving's contention that his ADHD rendered him substantially limited in the major life activity of working. That argument was specifically linked to his interpersonal problems, the court said. Moreover, Weaving was consistently rated a technically competent officer and had been promoted to sergeant, the court noted.

Judge Barry G. Silverman joined the majority opinion.

Judge Consuelo M. Callahan dissented. She said the majority didn't follow binding circuit precedent on the issue and erred in finding the evidence insufficient to support the jury's verdict that Weaving's ADHD substantially limited his ability to interact with others.

"[T]he majority decides that it knows better. It reweighs the evidence on a cold record and issues its own diagnosis: Weaving isn't disabled, he's just a jerk," Callahan wrote.

Clearer Standard Still Needed

Jeffrey D. Polsky of management firm Fox Rothschild LLP in San Francisco told Bloomberg BNA Aug. 18 that the decision is "favorable to employers to the extent that it narrows the ability of employees to rely on alleged disabilities" to excuse unpleasant interactions with co-workers.

But there's still a lack of clarity on the issue, Polsky said. "What employers really need," he said, "is better guidance from the legislature or the courts on where to draw the line" for purposes of setting fair employment policies.

Jinny Kim, director of the Disability Rights Program with the Legal Aid Society-Employment Law Center in San Francisco, called the decision "disappointing."

Because the court set the standard for proving substantial limitation in interactions with others at the "barely functional" level, Kim told Bloomberg BNA Aug. 18, it will be harder for workers with disabilities to successfully assert their workplace rights.

Polsky and Kim agree that the decision represents a break from circuit precedent.

"In contrast to the plaintiffs in McAlindin and Head, Weaving was able to engage in normal social interactions. His interpersonal problems existed almost exclusively in his interactions with his peers and subordinates," the majority said.

"I was a little surprised," Polsky said. Given that a jury had reached a verdict, the question should have been whether there was sufficient evidence and, if there was, the judgment should have been upheld, he said.

"I agree that the opinion is a departure from circuit precedent" and establishes a more stringent and tougher standard for workers with disabilities, Kim said. By limiting relief under the ADA to employees such as those in McAlindin and Head who are barely functional, the court looked at the issue too narrowly, she said.

History of Interpersonal Problems at Work

Weaving was diagnosed with "hyperkinetic activity"-now known as ADHD-when he was 6, but he believed he later outgrew the condition. Prior to joining the Hillsboro Police Department in 2006, he had worked for the Beaverton, Ore., Police Department since 1995.

According to the opinion, throughout his time working for both police departments, Weaving had difficulty working with some fellow officers and in team environments, and was sometimes viewed as arrogant and abrasive. Among other things, he occasionally implied that some colleagues were weak by referring to them as "salad eaters" rather than as "meat eaters" or "warriors." Nevertheless, the HPD promoted him to sergeant in 2007 after he passed a "psychological leadership assessment."

In March 2009, a subordinate filed a grievance challenging discipline Weaving had meted out as being overly harsh. Weaving was placed on paid leave while the department investigated.

While Weaving was on leave, he was diagnosed with adult ADHD. His clinical psychologist-Dr. Gary Monkarsh-sent a letter to the police chief disclosing Weaving's diagnosis. Weaving separately wrote to the department's human resources director requesting "all reasonable accommodations."

However, based on the investigation of the subordinate's grievance, the city determined after interviewing 28 of Weaving's co-workers that he had created and fostered a hostile work environment. It also found that he had demonstrated "unacceptable interpersonal communication" skills and a lack of "emotional intelligence."

Following a hearing, Weaving was fired even though Monkarsh had stated that, with treatment, Weaving "could be an excellent police officer."

Weaving sued under the ADA and a jury found in his favor, awarding him $75,000 in damages. The trial court denied Weaving reinstatement because of his lingering "hostility and antagonism" with the city, but awarded him $232,143 in back pay, $330,807 in front pay, and $139,712 in attorneys' fees. The city appealed.

Substantial Limitation Not Shown

Reversing, the Ninth Circuit noted that under the ADA Amendments Act, the standard for determining whether an individual is substantially limited in a major life activity has been relaxed. "[B]ut Weaving cannot satisfy even the lower standard under current law," it said.

Regarding Weaving's contention that he is substantially limited in the major life activity of working, the majority said the only proof Weaver presented was related to his interpersonal problems, while other evidence showed he was recognized for his job knowledge and technical competence and was given "high-level assignments." In addition, both Weaving and Monkarsh testified that Weaving had developed "compensatory mechanisms" to deal with his ADHD and had built a successful career, the majority said.

Fletcher said Weaving also failed to show a substantial limitation on his ability to interact with others. Weaving's experience didn't approach the situations at issue in McAlindin and Head , the judge said.

Under those cases, Fletcher said, a worker showed not just trouble getting along with co-workers, but rather severe problems consistently demonstrating a high level of hostility.

"In contrast to the plaintiffs in McAlindin and Head, Weaving was able to engage in normal social interactions. His interpersonal problems existed almost exclusively in his interactions with his peers and subordinates," Fletcher wrote.

Because Weaving didn't establish that he was substantially limited in a major life activity, he didn't prove he was disabled under the ADA and the city was entitled to judgment as a matter of law, the appeals court ruled.

Jaime B. Goldberg of Makler Lemoine & Goldberg PC in Portland, Ore., represented Weaving. Matthew Kalmanson and Janet Schroer of Hart Wagner LLP in Portland represented the city.

To contact the reporter on this story: Patrick Dorrian in Washington at pdorrian@bna.com

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

Text of the opinion is available at http://www.bloomberglaw.com/public/document/MATTHEW_WEAVING_PlaintiffAppellee_v_CITY_OF_HILLSBORO_DefendantAp .

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