There is a 2007 decision from the Ninth Circuit Court of Appeals that employees and mid-level managers in Washington should know about. The case is Gambini v. Total Renal Care, Inc., 480 F.3d 950 (9th Cir. 2007), and it involves a mental disability discrimination claim from an employee that suffered from bi-polar disorder.
The facts and result of the Gambini case are difficult for some employers to understand because, by most commonly held standards, this case was brought by a difficult employee.
The employee had a history of health problems that pre-dated her employment with the company. After several months, the employee began to experience depression and anxiety, and she suffered an emotional break down at the office. The employee sought medical treatment and learned that she was suffering from bipolar disorder.
The employee informed her boss that she sought medical treatment for bipolar disorder and she requested some accommodations. The employee told her co-workers that she was experiencing mood swings, which she was addressing with medications, and asked that they not be offended if she was irritable or short with them. The employee also privately told her boss that she was seeing a therapist and struggling with some medication issues.
The employee’s bipolar symptoms became more severe. She became irritable and easily distracted, and it became hard for her to concentrate and assign priorities to her work. The employee sought medical treatment again, and a new health care provider confirmed her bipolar disorder based on her “short fuse, high energy and propensity to exhibit anger and irritability.”
Around this same timeframe, the employee’s supervisors decided to put her on a written performance improvement plan (PIP), which stated that her “attitude and general disposition are no longer acceptable[.]” When the employee arrived at her supervisor’s office for the PIP meeting, she was agitated because she did not know why she was summoned to the meeting.
When the employee was given the PIP document, she began to cry. After she read the PIP in its entirety, she threw it across the desk and, in a flourish of profanities, stated that the PIP was unfair and unwarranted. She stormed out of the office, slamming the door and hurling several choice profanities at her boss. When the employee returned to her cubicle, she was seen kicking and throwing objects in anger.
Most will agree that this was a difficult employee.
The employee requested FMLA leave, which the company provisionally approved subject to medical certification from a heath care provider. In addition, the HR department began an investigation into the PIP meeting by interviewing the employee’s supervisors. Around this same time, several co-workers sent emails to the HR department stating concerns about the employee’s outburst and one co-worker asked the HR department to not allow the employee to return to work.
The next day, the HR Rep. telephoned the employee and fired her over the phone. Three days later the employee wrote to say that her behavior during the PIP meeting was a consequence of her bipolar disorder and she asked the company to reconsider its decision to terminate her. The company refused, and the employee sued.
At trial, the employee’s lawyers asked the trial judge to give the following jury instruction, but the judge refused to do so:
Conduct resulting from a disability is part of the disability and not a separate basis for termination.
After a seven-day jury trial, the jury returned a verdict in favor of the employer and the employee appealed to the Ninth Circuit Court of Appeals who found that it was reversible error for the trial judge to not give the jury instruction the employee requested.
The Ninth Circuit Court of Appeals explained in the Gambini decision that a prior case from the Washington State Supreme Court included the rule in the requested jury instruction that “conduct resulting from the disability . . . is part of the disability and not a separate basis for termination.” The Gambini court also noted that the Washington State Supreme Court had previously drawn upon an obsessive compulsive disorder disability discrimination case from the Ninth Circuit where the court stated that “conduct resulting from a disability is considered part of the disability, rather than a separate basis for termination.” In this prior obsessive compulsive disorder disability discrimination case, the court held that a jury could reasonably find that the employer fired the employee because of her obsessive compulsive disorder because there was a “requisite causal link between” the symptoms of obsessive compulsive disorder and the employee’s inability to conform her behavior to her employer’s expectations of punctuality and attendance.
The Gambini court explained that if an employee can show a causal link between the disability-produced conduct and the termination, the trial court must instruct the jury that it may find that the employee was terminated on the impermissible basis of the disability. The court added that a “decision motivated even in part by the disability is tainted and entitles a jury to find that an employer violated antidiscrimination laws.”
Turning to the facts in the Gambini case, the court stated that the jury should have been given the instruction (“conduct resulting from a disability is part of the disability and not a separate basis for termination”) because evidence existed from which a jury could reasonably infer that the employee’s conduct (some may say misconduct) during and after the PIP meeting were a consequence of her bipolar disorder, which the law protects as part and parcel of her disability.
The Gambini decision is a tough case for some employers to accept, and the employment law defense bar is almost uniformly critical of the decision. However, it makes perfect sense when one considers that the policy of the anti-disability discrimination laws is to help disabled workers remain employed. Indeed, the Gambini court cited a United States Supreme Court decision where our Nation’s High Court stated that the disability discrimination laws are necessary because Congress acknowledged that the American people are simply unfamiliar with and insensitive to the difficulties confronting individuals with disabilities.
Here again, we have a case that calls for employer and mid-level management training. When faced with an employee who suffers from a disability, and when that employee engages in conduct/misconduct caused by the disability, the employer cannot terminate the employee for the “disability caused” conduct. The Gambini case instructs that such conduct is protected as part of the disability. Instead, the employer must carefully consider if the conduct/misconduct is caused by the disability, and if so, the employer must sit down with the employee and work to find a reasonable accommodation.
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