Psychiatric Disability Discrimination Lawsuits @ LevyMD

reprinted, in sincere appreciation, with the publisher's permission from:
Better Legal & Business Practice for Psychiatrists and Psychotherapists
http://www.betterlegalandbusinesspractice.com

VOLUME I, NO. 10
DISABILITY DISCRIMINATION SUITS
OCTOBER 25, 2000

BETTER LEGAL AND BUSINESS PRACTICE FOR PSYCHIATRISTS AND PSYCHOTHERAPISTS – California Edition (formerly entitled LAWYERING BULLETIN) is published 15 times annually for the annual subscription fee of $289, but the special introductory rate of $247.50 is in effect through December 31, 2000. The single issue price is $16.50 through December 31st. Visa and MasterCard are accepted.

This newsletter is provided only for information purposes to psychiatrists and psychotherapists to raise general questions to consider at their option. Each clinician’s practice has its own unique problems that this publication is not meant to address. This publication is not intended as legal or professional advice. Readers should not act or refrain from acting based on information in this publication without seeking professional advice. The information in this publication is provided on an “As Is” basis. Deborah Michelle Sanders Publications, Inc. (“DMSPI”) does not warrant or guarantee the accuracy, completeness, or suitability of any information in this publication for any purpose. DMSPI disclaims all warranties, either express or implied, including, but not limited to, the implied warranties of merchantability and fitness for a particular purpose. In no event will DMSPI incur any duty or obligation to any reader. In no event will DMSPI be liable for any direct, indirect, special, incidental, consequential or punitive damages, including, but not limited to, third-party claims or lost profits arising from this publication, however caused and on any theory of liability.

Deborah Michelle Sanders, Esq., P. O. Box 642335, San Francisco, CA 94164-2335; 415-563-7458 Telephone; 415-563-3246 Fax; Deborah.Sanders@att.net. BOARD OF ADVISORS: Mark I. Levy, M.D. (Mill Valley); Rahn Y. Minagawa, Ph.D. (San Jose & San Diego); Richard G. Rappaport, M.D. (La Costa). ISSN 1527-7933

A CLOSE LOOK AT DISABILITY PLAINTIFFS

Mark I. Levy, M.D. asks

Background:

Often in contested disability cases, the plaintiff alleges that they have a DSM-IV Axis I psychiatric condition that is disabling them from working and the defendant argues that they have no Axis I disorder, only an Axis II personality disorder which is a pre-existing and life long condition that is not necessarily disabling.

Questions:

1. Does the existence of a Personality Disorder co-existing with a claim of disability necessarily imply that the two are causally related?

2. What about volition? When is a plaintiff with a Personality Disorder choosing volitionally to not work, vs. being prevented from working due to a disabling condition? Are there any legal guidelines, case law or legal tests of the volitional component?

These questions are not addressed in terms by the courts. I have therefore modified the questions. (A table of cases discussed here and other cases in which the courts have discussed personality disorders, comprising thirteen pages, is available as a separate publication for the regular issue price of $16.50.)

Question 1: What distinguishes persons whose disability discrimination cases are reported from all those with disputes?

The answer that I would give falls into three parts: (a) the conduct of the employees, (b) the nature of their psychological makeup and (c) interpersonal factors.

(a) Most disability discrimination cases turn on the issue of specific employee conduct. There is no “insanity defense” in the workplace.

In 1997 in Kansas, a police officer with a history of suicide attempts, diagnosed with bipolar disorder, PTSD and borderline personality disorder, had been assigned to a desk job as a reasonable accommodation for his disability. This is the background to Houck v City of Prairie Village (#30 on the table of cases). This leading case is often cited, even though it is not precedent in the Ninth Circuit or CA. One afternoon, he and his wife were together at home and “wrestling over a gun. Plaintiff hit his wife. Eventually, plaintiff’s wife left the bedroom. Plaintiff told her to ‘call 911.’ After exiting the bedroom, plaintiff’s wife heard a gunshot in the bedroom and then called 911….” (Apparently, he did not actually shoot himself.) When the police arrived, at some point, plaintiff pushed an officer “off the steps of the house and into some bushes.” He was arrested for domestic violence and battery on a peace officer. (He was taken to jail for a short time and then hospitalized.) His employment was terminated and he sued. “Plaintiff claims that his firing was discrimination because his alleged misconduct was caused by his disability. This claim must be rejected. A person who commits a criminal act as a result of a disabling condition is not excused from the employment consequences of the criminal act because of the disability. [my emphasis]”

Early in disability discrimination litigation, before there was an Americans with Disabilities Act (ADA), when there was only the Rehabilitation Act of 1973, there was a different ethos. Doe v New York University, et al. (#5 on the table; this case is only of historical interest and is not good law) involved medical education, not employment, but the case was all about conduct. When Jane Doe applied to NYU Medical School, she “was accepted after falsely representing that she did not have any chronic or recurrent illnesses or emotional problems. In fact she, while gifted academically, had suffered for many years from serious psychiatric and mental disorders, which evidenced themselves in the form of numerous self-destructive acts and attacks upon others.” Specifically, she had borderline personality disorder and one expression was that she repeatedly self-mutilated in the presence of treating physicians and later university personnel. Eventually, she was given a leave of absence with the understanding that she would have to apply for readmission. Litigation ensued. She then took a job with the federal Dept. of Health, Education and Welfare and its Office of Civil Rights (independently?) investigated her complaint against NYU and found that she had been unlawfully discriminated against. Thereupon, NYU’s federal funding was in jeopardy, so of course much more litigation ensued -- and she was readmitted. While the Court of Appeals held that a “substantial risk” to the safety of others was a factor the trial court must evaluate as the case wore on, she won the right to go to trial. There were no more reported decisions; my understanding is that she completed school. Thereafter, the Supreme Court of the U.S. decided School Board of Nassau County, Florida, et al. v Arline, concerning an elementary school teacher with recurrent tuberculosis, holding that persons with contagious diseases are within the scope of disability discrimination protection, but that the trial court would have to determine whether Arline was “otherwise qualified” for her job because “[a] person who poses a significant risk of communicating an infectious disease to others in the workplace will not be otherwise qualified for his or her job if reasonable accommodation will not eliminate that risk.” Of course, Ms Arline had committed no conduct that posed a “substantial risk” to her students, but the Supreme Court’s holding had made Doe bad law, because the Doe court had not had, so to speak, the legal back-up to be able to remove Doe from school on account of her demonstrated disruptiveness and potential harm to patients.

Congress, in writing the ADA, instituted law that safety considerations involving conduct that is a “direct threat” are valid factual underpinnings to a winning defense against a discrimination suit.

Conduct that has given rise to upheld dismissals of employees can range widely. All of the cases in this paragraph were decided outside the Ninth Circuit and CA; they are not precedent here. In Newberry v East Texas State University (#16), a professor with obsessive-compulsive disorder had simply worked a limited schedule and had railed against colleagues and otherwise harrassed them. The truckdriver with chronic paranoid schizophrenia in Tokar v City of Chicago (#24) had specific racist fixations that led her employer to fear that she might intentionally plow her truck into an innocent bystander who was a person of what was to her the wrong color. Threats to co-workers occurred in Palmer v Circuit Court (#25), Breiland v Advance Circuits, Inc. (#29), and Hardy v Sears, Roebuck and Co. (#33). See also the discussion of being AWOL in my answer to Question 2.

(b) There are few reported decisions in disability discrimination disputes that do not involve a person who presents with either a personality disorder or Axis I substance abuse, certain paraphilias, or an impulse-control disorder (or both). The specified Axis I conditions do not show up less frequently than the personality disorders. Of course, decisions do not set forth all of the evidence in the case, so the psychiatric reports are not well reflected (a full DSM Dx is given in only one of the 35 cases on the chart, #4), and therefore it is very possible that the plaintiffs whose Axis I disorders are referred to may also have a personality disorder. (The universe referred to in the first sentence is of course much larger than the set of cases in the chart, which is restricted to those in which the magic words “personality disorder” were specified by the court in some context, thus being susceptible to retrieval by computerized search.)

An employee with a decent capacity to relate will have built up over time bonds in the workplace, that, upon symptomatic eruption will give him or her “credit” that will yield him or her “slack.” Fitness-for-duty evaluations are triggered as there is lesser on-going relatedness (except of course in the case of actual workplace violence). When an employee returns to work after leave for illness, (s)he is given time to adjust if (s)he has made friends on any level. Therefore, for most employees who have been ill, disputes are worked out with more or less hard feelings and there is nothing to “make a federal case of.”

Unless of course, the employee is litigous. While there is a component of what I noticed DSM refers to [obviously not with regard to the non-existent diagnostic construct of being litigous!] as an “antagonism v agreeableness” personality trait involved, in my experience, it is the sociological factor of the people who advise the employee that tips the balance. There are the “kibbitzers” such as a union representative, friends – or possibly even a therapist – who lack full knowledge of what the employee would be getting into if (s)he were to litigate, but who nonetheless discuss with the employee his or her grievances. Following such talk, the employee may decide to go to an attorney. The lawyer is of course the gate-keeper to the courts for almost all plaintiffs. While (s)he decides whether the case is strong enough to be worth bringing to court, and while (s)he has a duty to explain to the client all of the client’s financial responsibilities and the attorney’s concommitant duties to guard the client’s funds, lawyers do not have any duty whatsoever to initiate disclosure of the risks (and benefits) of litigating. (Health professionals have a duty to obtain consent because of the historic root of a surgeon’s operating as being an assault and battery if otherwise done.) This fact naturally imposes a steep rise in the likelihood of a lawsuit’s being filed if an employee happens to consult an attorney, in comparison to its likelihood for an unrepresented employee. In actuality, 97-98.5% of all employment disability discrimination cases (that go to the Equal Employment Opportunity Commission and/or on to court) are resolved in favor of the employer; in actuality, any litigant who raises the issue of having a mental illness is opening himself or herself to meticulous examination of his or her private life – it would therefore seem meet for the attorney to be required to provide a cost-benefit analysis before proceeding, but such is not the law.

Question 2: How have the courts dealt with conduct reflecting the motivation not to work?

Within the sphere of disability discrimination law, motivation not to work has been discussed in the case law as conduct, specifically (a) being AWOL and (b) making inconsistent representations of whether or not one is able to work.

(a) Under these two cases, termination for being absent without leave is not disability discrimination.

Case I: Plaintiff “was terminated and not reinstated because she abandoned her job. That this job abandonment may have been the result of a previously undisclosed … bipolar … disorder does not constitute either disability discrimination or a refusal to provide a reasonable accommodation to a mental disorder,” Brundage v Hahn , #2 (CA Court of Appeal, Second Appellate District [Los Angeles], 1997). Three months after she received medical leave for substance abuse treatment, she failed to report to work and did not contact her employer for six weeks. During that time, she was terminated. “Because …[the employer] did not know about Brundage’s manic-depressive disorder, it could not have terminated her because of that disorder.” She argued that reinstatement would be the appropriate reasonable accommodation for her disability. The court held that “‘[r]easonable accommodation’ does not include excusing a failure to control a controllable disability or giving an employee a ‘second chance’ to control the disability in the future…. Brundage does not ask that her disability be accommodated, she asks that job abandonment allegedly arising from the failure to control the disability be forgiven. The ADA does not mandate giving a second chance to an employee who abandoned her job.”

Case II: In Ellison v Northwest Airlines, Inc., et al., #4 , a 1996 case from a federal trial court in the Ninth Circuit, plaintiff had an adjustment disorder or severe depression with accompanying anxiety or Major depression, recurrent vs. dysthymic disorder/Mixed personality disorder with histrionic, dependent, narcissistic, paranoid, and antisocial traits. (He had failed to file his lawsuit within the required filing time period. He argued that an dispensation “ought to apply here on account of his ‘severe mental condition.’” However, during the earlier period of his illness, he took action on a union grievance, a workers’ compensation claim, a medical malpractice suit and brought his ADA claim before the Equal Employment Opportunity Commission. Later in the course of his illness, his treating physician said that his “condition ‘seemed to improve’ and was ‘generally better.’” So the court ruled against him and barred his claim.) Although the case was already disposed of as not having been filed in time, the court also held that “there is no evidence Defendants terminated him because of his mental illness.” Plaintiff had been terminated after approximately seven weeks of being absent without leave, nine days of which was after the return-to-work date that the hospital psychiatrist had specified. Plaintiff’s supervisor “fired Plaintiff because Plaintiff ‘was absent without leave …[for eight days] based on …[the hospital psychiatrist’s] letter stating that [Plaintiff] would be able to return to work on … [a given day].” The court quoted a case with similar facts: “The Postal Service did not fire Miller because of his [mental] illness. It fired him because even though his psychiatrist had pronounced him able to return to work, he did not return. Miller’s superiors had no reason to believe that he was prevented from returning by his mental illness.”

(b) Under these four cases, making inconsistent representations on whether or not one is able to work can have various results, depending on what exactly was stated.

Case I: The Supreme Court of the U.S. held in 1999 in Cleveland v Policy Management Systems Corp. that “pursuit, and receipt, of …[Social Security Disability Insurance Benefits] does not automatically estop [“stop”] the recipient from pursuing an ADA claim. Nor does the law erect a strong presumption against the recipient’s success under the ADA. Nonetheless, an ADA plaintiff cannot simply ignore her SSDI contention that she was too disabled to work…. [S]he must explain why that SSDI contention is consistent with her ADA claim that she could ‘perform the essential functions’ of her previous job, at least with ‘reasonable accommodation.’ … In her brief in this Court, Cleveland explains the discrepancy between her SSDI statements that she was ‘totally disabled’ and her ADA claim …. The first statements, she says, ‘were made … [to the Social Security Administration, which] does not consider the effect that reasonable workplace accommodations would have on the ability to work.’… Moreover, she claims the SSDI statements were ‘accurate statements’ if examined ‘in the time period in which they were made.’ … The parties should have the opportunity in the trial court to present, or to contest, these explanations….”

Case II: (One month before the Cleveland decision, the Ninth Circuit issued a set of opinions in a state disability insurance benefits case, Fredenburg v Contra Costa County Dept. of Health Services (#1). Cleveland does not make Fredenburg bad law, because Cleveland concerns federal Social Security Disability Insurance Benefits, and contains no language that can be generalized to state benefits. Furthermore, Cleveland’s description of the inconsistent statements it considers is straightforward, indicating that the inconsistency reflected the complexity of reality, whereas in Fredenburg, as you will read, there is much questioning of whether the plaintiff was genuine in her representations. In any event, the majority opinion in Fredenburg allows inconsistent statements to be explained, just as Cleveland does.)

This is what went on in Fredenburg. A plaintiff therapist or (depending on the page on which you’re reading) psychiatrist with (according to the majority opinion) paranoia and major depression or (according to the dissent) adjustment disorder and “personality disorder” won the right to go to trial. She had been placed on indefinite leave without pay when she “had on-the-job difficulties with co-workers,” and she received six months’ worth of State Disability Insurance benefits. At that time, “a state psychiatrist found her capable of returning to work. Fredenburg attempted to have the benefits continued, certifying … that she was still disabled and incapable of doing her regular work, but she was unsuccessful…. The following month, Fredenburg sought to return to work.” She refused to undergo the requested fitness-for-duty examination , so was not allowed to return. She then sued for disability discrimination. The trial court threw out her suit on the ground that she had made inconsistent statements about whether she was able to work. This is what the majority held:

Fredenburg was not playing fast and loose with, or committing fraud on, the court. Her case illustrates the problems faced by a worker in her position. Her employer concluded that she could not perform her job…. She disagreed with her employer’s determination and unsuccessfully challenged it. Then, without pay because of her asserted disability, she applied for temporary disability benefits and received them. What else was she to do? When those benefits were terminated because the state decided she was no longer disabled, she disagreed but was unsuccessful…. She then asked her employer to take her back, and the employer refused. So she brought suit under the ADA, claiming that she was able to perform her job. It is true that Fredenberg took inconsistent positions during this saga, but her employer and the state, considered together, were not treating her consistently either. She has not denied any of the representations she made; the court has not been misled….

We wish to make clear, however, that … Fredenburg certainly would not be entitled to retain disability benefits and, at the same time, recover back pay for the same period on her claim that her employer violated the ADA…. Our ruling relieves Fredenburg of an untenable choice between disability benefits and an ADA claim…, but it does not permit a double recovery based on inconsistent positions.

Three judges heard this case, and there are three opinions. Here is the second one, technically a “concurring opinion.”

I write separately only to stress that … the [trial] court is at liberty to determine … whether … Fredenburg’s claims fail [as] a matter of law….

While judicial estoppel [the casting out from court of litigation, based on inconsistent claims in documents by the same party] applies only to a “knowing misrepresentation to or even a fraud on the court,” the holding of [the precedent the three judges are explicating] distinguishes chicanery from inadvertence or mistake…. Here we seem to confront a situation somewhere in the middle. Appellant appears to have simultaneously insisted to the state disability agency that she continued to be disabled when it sought to cut off her benefits, while seeking to maintain an ADA claim without requesting any specific accommodation [implying that she could carry out the essential functions of her job without any difficulty]. Adding further to the confusion, Fredenburg also claims discrimination based on her initial removal from work, arguing presumably that the County’s claim that she suffered from paranoia was pretextual [implying that she had no impairment that, if it substantially limited a major life function, would constitute an ADA disability]. While these inconsistent claims regarding her ability to work, return to work and inability to work might be satisfactorily explained, for example, by the nature of her psychological impairment, or the passage of time, on remand the … court is free to consider all the evidence….

The dissent is by Judge Alex Kozinski, whom you may have read as a book reviewer and serendipitous essayist for The New York Times and such. (Endorsement of his writing style is not necessarily an endorsement of his philosophy.)

Fredenburg repeatedly represented to the state Employment Development Department … that she was incapable of performing her regular work. She is now claiming that she can perform her regular work, and in fact could do so all along. There is absolutely no way to reconcile the two positions….

The simple explanation is that Fredenburg told one story in one proceeding, and then, when it didn’t get her what she wanted, she told a different and inconsistent story in another proceeding. The majority responds to Fredenburg’s obvious mendacity with a rhetorical question: ‘What else was she to do?’ … What Fredenburg was to do was to tell the truth at all times….

There is nothing Fredenburg could possibly have done to be any less forthright or more inconsistent than she was. If this be not ‘fast and loose,’ I’m not sure what is….

Although her illness was ‘potentially’ temporary, nowhere does she allege that she was disabled during the time that she was collecting benefits, and then later got better, as did [the plaintiff in a precedent that] has no application here, and to suggest that it does belittles the claims of honest plaintiffs who admit to taking disability benefits during a leave of absence in which they seek to recover….

…By saying that prior judicial statements are to be treated just like prior statements made to a fish merchant or a fortune teller, the majority drives a stake through the heart of the doctrine of judicial estoppel….

…I cannot agree with the majority here that sworn statements on applications for disability benefits … should be granted no more weight than statements in casual conversation. The majority’s opinion allows people to slough off prior inconsistent representations when they become inconvenient, much like a snake sheds its skin. It is one thing to allow a plaintiff to explain how her previous representations were actually truthful and consistent with what she claims today…; it is a far different thing to look away from a plaintiff’s previous representations with a wink and a nudge because she was “forced” to lie in order to fenagle benefits from the welfare state….

That’s more foment of views than is typical for Court of Appeals decisions, and sometimes when such fecundity occurs, the law is significantly changed the next time the identical issue comes up.

Case III: Hatfield v Quantum Chemical Corp. (#17) is a trial court case decided outside the Ninth Circuit and CA; it is not precedent here. Hatfield held that the plaintiff was no longer qualified to recover under the ADA since he had accepted long-term disability benefits from the employer’s carrier before the date he scheduled a back-to-work conference.

Case IV: In a case decided outside the Ninth Circuit and CA that is not precedent here, “the cynic might regard plaintiff’s objective as finding a defendant to sue rather than an employer to serve,” due to serial job hops truncated by workers’ compensation and other claims, Wilson v Freightliner Corp. (#15). The plaintiff, with hospitalizations for attempted suicide and psychosis, and treatment for substance abuse and chronic schizophrenia, had made many false statements about his job and health histories on his employment application, and then made inconsistent statements in this ADA claim and in a Social Security benefits application. Defendant not only got the case thrown out, but also the plaintiff’s attorney had to pay half the defense attorney’s fees for having made frivolous arguments like “the plaintiff’s belated suggested ‘accommodation’ – that he stand on a rolling step stool to lift and affix parts to a continuously moving axle – [which] is hardly worth the cost of the ink it requires to mention it.”

MALPRACTICE INSURANCE COVERAGE

Unspecified Profession

Do you remember EST? Someone named Arnold Siegel, whose profession is not stated in the opinion, but who was not a licensed therapist in CA, in 1985 “opened an offshoot of EST called The Conversation,” in NY but apparently also in CA. He “supervised” Abigail Adams, in a “‘many-faceted relationship’ in which he was her ‘teacher, therapist, counselor, tutor, employer and a person who undertook the responsibility, for money, to psychologically rescue and make her a better person, psychologically.’ Adams characterized this as a ‘consumer’ relationship. She alleged by commencing a ‘sexual but non-dating’ relationship with her, Siegel took advantage of her vulnerability as an employee and her need for psychological help from EST.” Siegel held a variety of insurance policies with a total of five carriers, one of which issued a malpractice policy (again, we do not know Siegel’s profession). Naturally, none of the five want to be on the hook for defense costs (and ensuing damages), so they have been jockeying. On October 16th, the Court of Appeal, Second Appellate District (Los Angeles) in Commercial Underwriters Insurance Co. v Superior Court of Los Angeles County gave the malpractice carrier contribution rights from some of the other carriers, because Adams’s “stomach pain, headaches, skin problems, and infertility” are bodily injuries and because Adams had alleged that Siegel had committed one negligent act (malpractice) as well as many intentional acts. (Intentional acts are typically outside the scope of coverage of insurance policies.)

Physician’s Alleged Malpractice – Defense of “Health Care Extender”

By having accepted a defense from her husband psychiatrist’s malpractice carrier, his widow, “who was not a therapist,” who had participated with her husband in couples therapy with a couple who became plaintiffs against her husband and her, was obligated to accept arbitration of her disputes with the malpractice carrier, Norcal Mutual Insurance Co. v. Newton, Court of Appeal, First Appellate District (San Francisco), October 10th. The widow had preferred to be in court. The underlying claims have to do mostly with the specific content reported to the National Practitioner Data Bank concerning the preceding settlement of the case against her husband.

EMPLOYMENT CONTRACTS

A locum tenens (temporary employment) anesthesiologist had objected to proceeding with surgery on a certain patient, due to atrial fibrillation (heartbeat aberration). A few days later, the medical group’s shareholders decided not to renew his contract. The anesthesiologist was given the right to go to trial, because the CA Business and Professions Code includes a section (2056(c)) that termination of employment of a physician for “advocating for medically appropriate health care … violates the public policy of this state,” Khajavi v Feather River Anesthesia Medical Group, Court of Appeal, Third Appellate District (Sutter County), October 10th.

PATIENTS’ RIGHTS - ADA

Employers in the Ninth Circuit have a duty to engage in an interactive process with employees who state that they have a disability, with regard to reasonable accommodations. This is “an informal process to clarify what the individual needs and identify the appropriate accommodation.” “A seniority system is not a per se bar to reassignment” to another job as a reasonable accommodation. “However, a seniority system is a factor in the undue hardship analysis.” Plaintiff will go to trial in Barnett v. U.S. Air, October 4th.

VOLUME I, NO. 10 SUPPLEMENT
TABLE OF CASES ON PERSONALITY DISORDERS
OCTOBER 25, 2000

Case	*Circuit*	Ct	Diagnosis	*Cause of Action*	Holding
1. Fredenburg v Contra Costa County Dept. of Health Services, 172 F.3^rd 1176 (1999)	9^th	(CA)	Paranoia, major depressive episode. In dissent: adjustment disorder, personality d.o.	ADA	Summary judgment for defendant reversed; plaintiff psychiatrist may go to trial. Her having received State Disability Insurance benefits for being unable to work temporarily is not legally inconsistent with a later claim that she can return to work. Concurrence tells trial ct to evaluate her inconsistent claims [carefully]. Dissent: “she was ‘forced’ to lie in order to finagle benefits….”
2. Dacasin v Bay Area Rapid Transit District, 1998 U.S. Dist LEXIS 18626 (1998)	(9^th)	N. D. CA	Personality disorder	ADA and CA Fair Employment and Housing Act (FEHA)	Plaintiff’s attorney brought up at time of appeal plaintiff’s alleged mental disability, which plaintiff denies. Plaintiff had been referred for a psychiatric fitness for duty evaluation after having allegedly threatened to kill his supervisor. Court considered only plaintiff’s foot problems, and this case thus is irrelevant.
3. Brundage v Hahn, 57 Cal. App. 4^th 228, 66 Cal. Rptr. 2d 830 (Second Appellate District, Division Five, 1997)	STATE Court	Ct. of Appeal	Bipolar I (employer understood this to mean a personality disorder)	ADA and FEHA	3 months after medical leave for drug rehab, plaintiff was AWOL & did not contact employer for 6 weeks. Court held that plaintiff was discharged for job abandonment before employer knew that she had any disability. “'Reasonable accommodation' does not include … giving an employee a ‘second chance’ to control the disability in the future.”
4. Ellison v Northwest Airlines, Inc, et al., 938 F. Supp. 1503 (1996)	(9^th)	Dt. Hawaii	Adjustment disorder; Severe depression with accompanying anxiety; DSM Dx – see article	ADA	Plaintiff had failed to file suit timely, and argued that his mental incapacity excused him. Court held he could always deal with his legal affairs (union grievance, workers’ comp, medical malpractice claims, etc.), and that his discharge was for having been AWOL after the date when his physician had said he could return to work.
5. Doe v New York University, et al., 666 F.2d 761 (1981) [the “Jane Doe” case] Long since bad law under a Sup. Ct. U.S. case, but the most thoroughly litigated personality disorder suit there has ever been.	2d	(S.D. NY)	Borderline personality disorder; one symptom was self-mutilation when confronting deans, doctors	Rehabilitation Act of 1973	Academically qualified pre-med had lied on her application re psych history. 2 months into school, it came out in part. Leave of absence, and major psych care. Reapplication denied; she sued, and government threatened to cut off NYU’s federal funding…. Trial ct eventually reinstated her in school. 2d Circuit held that “substantial risk” to safety of others is factor trial ct must evaluate.
6. Doe v. Pfrommer,et al., 148 F.3d 73 (1998)	2d	(N. D. NY)	Personality disorder and dysthymia	Rehabilitation Act of 1973 AND the ADA	Services specifically and exclusively directed to persons with disabilities, such as the vocational rehabilitation in this case, are evaluated under the law under the standard of whether the services provided to non-handicapped persons by the agency are also made available to persons with disabilities. Plaintiff had been terminated for lack of “insight into his behaviors.”
7.Schwartz v The COMEX, 1997 U.S. Dist. LEXIS 4658 (1997)	(2d)	S. D. NY	Paranoid personality disorder	ADA	Plaintiff’s claims dismissed for failure to allege that his disorder causes impairment in a major life activity, which would be necessary to show that his employer (NYMEX) discriminated against him in terminating his employment, due to having perceived his as being disabled. (The EEOC had determined that NYMEX had reorganized and eliminated job positions.)
8.Pilman v New York City Housing Authority, 2000 U.S. Dist. LEXIS 2229 (2000)	(2d)	S.D. NY	Personality disorder, paranoid type	ADA	(This is an opinion by a magistrate, not a judge, and it elides the issue of whether plaintiff could perform the essential functions of her job, if she were to receive reasonable accommodations.) The case was sent to trial on the issue of whether the employer should have provided further r.a.’s. The employer had already given her a year’s leave of absence to recover and reapply for her job.
9.Kemer v Johnson, 900 F. Supp. 677 (1995)	(2d)	S.D.NY	Depressive neurosis and schizotypal personality disorder	Pro se claim (filed under ADA); claim construed liberally (Rehab.Act '73 – U.S. Gov. defendant)	Plaintiff was not “otherwise qualified” for the job he sought because he never completed and filed a job application. A human resources staffer had explained to plaintiff the deficiency of his having left blanks in the application, and had given him a new application, because plaintiff had said he is disabled. “Once a reasonable accommodation has been made, a defendant [fulfills its duty].”
10.John Olson v. General Electric Astrospace aka Martin Marrietta Astrospace, 101 F.3d 947 (1996)	3d	(D. NJ)	Depression, multiple personality disorder, PTSD, possible sleep disorder	ADA	Plaintiff had been laid off and was passed over for reemployment in another division. The person who wrote a recommendation that an applicant with more experience be hired over plaintiff had been plaintiff’s supervisor and was familiar with his absences for illness. Therefore, the case was sent to trial on the issue of whether GE had discriminated on perceived disability.
11.DiBenedetto v City of Reading, et al., 1998 U.S. Dist. LEXIS 11804 (1998)	(3rd)	E. D. PA	ADHD; 3/94: personality d.o. w obsessv, paranoid & impulsv features; 12/95: remission fm adjustment d.o.	ADA	Case of plaintiff police officer was sent to trial on issue of whether he is a “qualified person with a disability.” (Opinion not the strongest to cite because court notes “that all three parties have done an abysmal job of creating a factual record for this court;” thus, factual showing that plaintiff was required to make may not have actually been made.)
12.Davidson, et al. v Atlantic City Police Dept., et al., 1999 U.S. Dist. LEXIS 13553 (1999)	(3rd)	D. NJ	“no substantial psychiatric … condition, except perhaps a Narcissistic Personality Disorder”	ADA	While plaintiff was not damaged even if defendants had liability, because police dept allowed him to return to work after extended absence, an extended leave of absence of one year as a matter of law would not be a reasonable accommodation. Court quotes a case stating that an employer “was not required to wait indefinitely for [the employee’s] recovery.”
13.Gent v Gordon, 1995 U.S. Dist. LEXIS 21874 (1995)	(4^th)	W. D. VA	Personality disorders and depression	ADA	Plaintiff wasn’t “a qualified individual with a disability” as an employment applicant at the vocational rehabilitation agency where he was receiving services, because he had no experience in the mental health field. He was afforded due process in being terminated from voc rehab services, since he was given an opportunity for a hearing, but didn’t appear (without good cause).
14.Clark v Virginia Board of Bar Examiners, 880 F. Supp. 430 (1995)	(4^th)	E. D. VA	Major depression, recurrent – “condition, which occurred a few yrs. ago, affected her for 13 mos.”	ADA	Applicant who had passed Bar exam admitted to Bar. Application questions asking for broad disclosure of all treatment/counseling “f mental, emotional or nervous disorders” within past 5 years enjoined [prohibited].
15.Wilson v Freightliner Corp., 1997 U.S. Dist. LEXIS 6187 (1997)	(4^th)	W. D. NC	Hospitalizations for attempted suicide & psychosis; treatment for substance abuse, chronic schizophrenia	ADA	Plaintiff’s lawyer in this case was assessed ½ of the defendant’s attorney fees for her “ill considered and meritless arguments” in a claim “so utterly lacking in merit.” “[T]he nature and extent of the plaintiff’s fraud in obtaining employment was so great in this case as to arguably constitute criminal conduct. To reward such conduct … would be unconscionable.”
16.Newberry v East Texas State University, 161 F.3d 276 (1998)	5^th	(N. D. TX)	Obsessive-compulsive personality disorder	ADA	“[W]here an employee engages in conduct that is legitimately a basis for dismissal, and the employer believes that the employee’s conduct is symptomatic of disability, the employer may fire the employee on the basis of the conduct itself, as long as the collateral assessment of disability plays no role in the decision to dismiss.” Prof’s conduct was harassment of colleagues, limited work hours.
17.Hatfield v Quantum Chemical Corp., 920 F. Supp. 108 (1996)	(5^th)	S. D. TX	Severe major depression, PTSD, borderline personality disorder	ADA	Plaintiff’s alleged substantial limitation on working is restricted to an inability to work with his supervior [who had sexually harassed him], not to being able to work in a class or broad range of jobs, as required. Plaintiff’s having accepted long-term disability benefits through the employer before the date of a back-to-work conference means that he was no longer ADA “qualified.”
18.Dees v Austin Travis County Mental Health and Mental Retardation [Center], 860 F. Supp. 1186 (1994)	(5^th)	W. D. TX	Class representative had various Dx’s; consumers served by CMH were class	ADA	Board meetings moved to 9:30 am or later, due to consumers’ experiencing sedation in early AM. Court commented: “If … dedicated community members … must suffer fear of legal reprisal for their well-intended efforts, their willingness to participate … may well be lost. Accordingly, the Court hopes those who the ADA is designed to assist … exercise … common sense ….”
19.Hunt v Boyd Gaming Corp. D/B/A Treasure Chest Casino, 1997 U.S. Dist. LEXIS 9361 (1997)	(5^th)	E. D. LA	Either PTSD & alcohol abuse or“Dysthymia; narcissistic & antisocial features [of an] adjustment [disorder]”	ADA	Employer “was not obligated to accommodate Plaintiff by reassigning him to a new position” instead of terminating his employment due to “habitual absenteeism.”
20.McCready v Michigan State Bar Standing Committee on Character and Fitness, 926 F. Supp. 618 (1995)	(6^th)	W. D. MI	Alcoholism and various personality disorders	ADA	Bar applicant, with history of “a significant record of civil infraction and misdemeanor convictions and arrests,” has failed to make the required showings that the Bar discriminated against him on the basis of disability, and all of his claims were dismissed.
21.Duncan v State of Wisconsin Dept. of Health and Family Services, 166 F.3d 930 (1998)	7^th	(W. D. WI)	Employer’s psychiatrist found no “psychological disability”; plaintiff was sent for alcohol abuse Tx	ADA and Rehabilitation Act, “referring interchangeably to precedents under both statutes”	“Even if [for the sake of argument, the employer] … thought that [plaintiff] was ill-suited to the job … because he had a personality d.o., that would demonstrate only that he had trouble at one specific job – a showing of disability that we have specifically found to be inadequate under … the … ADA [regarding a substantial limitation in the major life activity of working].”
22.Doe v. County of Milwaukee, 871 F.Supp. 1072 (1995)	(7^th)	E. D. WI	Multiple personality disorder	ADA	Statute of limitations issue (can suit be heard at this late date? Issue) under Title II, which governs state and local governments – no law is established that is substantive.
23.Weiler v Household Finance Corp., et al., 1998 U.S. Dist. LEXIS 10566 (1995)	(7^th)	N. D. IL	Depression & anxiety	ADA	“The evidence shows that the plaintiff had a personality conflict with [her supervisor] …, albeit one which caused her to suffer anxiety and depression to an apparently significant degree. A disability is a part of someone and goes with her to her next job.” Case dismissed.
24.Tokar v City of Chicago, 1999 U.S. Dist. LEXIS 19863 (1999)	(7^th)	N. D. IL	Chronic paranoid schizophrenia	ADA	Truck-driver had filed 38 workers’ comp claims; city placed her on leave; later, her psychiatric condition deteriorated. Her employment was terminated. Court held that she might have had a case for illegal retaliation earlier, but by the time she was actually fired, the city had “evidence … that [plaintiff] posed a real safety hazard.”
25.Palmer v Circuit Court, Social Serv. Dep’t., 905 F. Supp. 499 (1995) [subsequently affirmed by 7^th Cir., 117 F.3^rd 351 (1997), then writ of certiorari denied, 522 U.S. 1096 (1998) and then rehearing denied, 523 U.S. 1042 (1998); that is, this district court opinion is good law]	(7^th)	N.D. IL	Delusional (paranoid) d.o. and Major depression	ADA	After “making threats of physical violence” and having “used abusive language,” “the ‘cause’ of plaintiff’s termination, as hard as this may be for the plaintiff to accept, was not discrimiantion due to her mental illness … but plaintiff’s own failure to recognize the acceptable limits of behavior in a clearly difficult situation for both the plaintiff and her co-workers.”
26.Madonia v Mavo Leasing, Inc., et al., 2000 U.S. Dist. LEXIS 5488 (2000)	(7^th)	N.D. IL	Major depression & depression-related paranoia	ADA	“[Supervisor’s] statements referring to plaintiff as ‘goofy’ & ‘a little crazy’ [are not enough evidence for this case to go to trial]….[P]laintiff’s behavior … was undeniably odd [threat to a co-worker & much swearing, which he alleged was due to inhalation of antifreeze fumes from his truck] …. [A]nimus to plaintiff’s mental condition was [not why he was fired] but … he breached the [psychiatric treatment agreement, which had been reached with union representation].”
27.Gilbert v Robb, 1997 U.S. Dist. LEXIS 9077 (1997)	(7^th)	N. D. IL	Obsessive compulsive personality d.o.	ADA	Case went to trial of a high school teacher. He successfully struck from the school district’s pleadings various representations as inadmissible evidence, and also removed from consideration for certain purposes 2 psychiatric evaluation letters that he had attached to his own complaint. *His lawyer’s work was so convoluted and unusual as to itself be “obsessive.”*
28.Cody v CIGNA Healthcare of St. Louis, Inc., 139 F.3d 595 (1998)	8^th	(E. D. MO	Plaintiff claimed depression without Dx; paranoia & schizotypal personality d.o. found 3 yrs after she left the job	ADA	Employer may request a psychological evaluation “if it is not obvious that an employee suffers from a disability,” [without triggering a finding that the employer perceives the employee as being disabled]. “Employers need to be able to use reasonable means to ascertain the cause of troubling behavior without exposing themselves to ADA claims….”
29.Breiland v Advance Circuits, Inc., 976 F. Supp. 858 (1997)	(8^th)	D. MN	Major depression & schizoid personality d.o.	ADA	“[T]he ADA [does not] obligate… [employer] to ignore plaintiff’s misconduct [in violating workplace offensive behavior and violence policies].”
30.Houck v City of Prairie Village, et al., 978 F. Supp. 1397 (1997)	(10^th)	D. KS	PTSD, borderline personality d.o., bipolar d.o. with history of suicide attempts	ADA	Police officer had battered his wife and then assaulted an arresting police officer. He claimed he was in the process of attempting suicide and “claims that his firing was discriminatory because his alleged misconduct was caused by his disability. This claim must be rejected. A person who commits a criminal act as a result of a disabling condition is not excused from the employment consequences of the criminal act because of the disability.”
31.Dale v Moore, et al., 121 F.3d 624 (1997)	11^th	(N. D. FL)	Bipolar d.o.	ADA	Plaintiff, while his application to the Florida Bar was pending, sued on what was essentially a defamation claim concerning an internal document summarizing his medical records. He was thereafter admitted to the Bar. The court held that it lacked jurisdiction over plaintiff’s claim under the rule that limits the authority of federal district courts and courts of appeals to review claims that a party could have raised in a case in state court that reached final decision.
32.Witter v Delta Air Lines, Inc., et al., 138 F.3d 1366 (1998)	11^th	(N.D. GA)	“some features of Cyclothymia. When stressed, he exhibits significant symptoms of Narcissistic Personality D.o.”	ADA	Airline pilot could not go to trial on claim that employer perceived him as disabled where he only presented evidence that he was “‘unable’ … to pilot airplanes for anybody…. [P]iloting airplanes is too narrow a range of jobs to constitute a ‘class of jobs’ as that term is defined in [the law.]”
33.Hardy v Sears, Roebuck and Co., 1996 U.S. Dist. LEXIS 19008	(11^th)	N. D. GA	Bipolar d.o.	ADA	“[A]busive & threatening behavior directed by an employee towards co-workers and customers may dictate that an employee cannot perform the essential functions of a given job…. A ‘substantial’ disruption may be created by (1) even 1 severe episode of highly combative & threatening behavior, (2) a series of less severe incidents … or (3) a combination thereof.”
34.Rio v Runyon, 972 F. Supp. 1446 (1997)	(11^th)	S. D. FL	No disabling mental condition – plaintiff had alleged agoraphobia, depression & anorexia nervosa	Rehabilitation Act of 1973	Plaintiff failed to satisfy her burden of proof with respect to any element of her claim.
35.Kirbens v Wyoming State Board of Medicine, et al., 992 P.2d 1056 (1999)	STATE court	Supreme – WY	Bipolar II & narcissistic personality d.o.	ADA	Surgeon who did not challenge his psychiatrist’s testimony at licensure revocation proceedings that he posed a public-safety risk is not a qualified individual with a disability entitled to ADA protection.

Psychiatric Disability Discrimination Lawsuits

Ct

Diagnosis

Holding

6. Doe v. Pfrommer,et al., 148 F.3d 73 (1998)