Washington Law Bars Dismissal of Disruptive Employee

Stephanie Gambini's supervisors at DaVita Inc., a dialysis provider, were concerned about her attitude and work performance. They knew she suffered from bipolar disorder and noticed that she was irritable and having trouble concentrating on her work as a clerk. On July 11, 2002, they summoned her to a meeting to discuss a performance improvement plan. When they presented the plan, Gambini threw it across the desk, cursed at her supervisor and stormed out of the room. Although Gambini later denied it, witnesses said she told her supervisors that they would "regret doing this." They also saw her throwing things when she returned to her desk. In the aftermath, several employees sent e-mails expressing concerns about working with Gambini.

Gambini checked into a hospital the next day. The company provisionally approved her request for FMLA leave on July 16, 2002, while the HR department was investigating the July 11 meeting. The next business day, the company terminated her. Three days later, Gambini sent DaVita a letter stating that her behavior was a consequence of her bipolar disorder and asking the company to reconsider. When it refused to do so, she sued, charging violations of Washington state's disability discrimination law.

In December 2004 a federal jury in the Western District of Washington found in DaVita's favor.

But the 9th Circuit overturned the verdict March 1, 2007, ruling that the judge should have instructed the jury that "conduct resulting from the disability ?? 1/2 is part of the disability and not a separate basis for termination." In other words, because Gambini's bipolar disorder caused her disruptive behavior, the behavior was protected under state and federal laws.

The 9th Circuit decision in Gambini v. Total Renal Care d/b/a DaVita shocked employment attorneys. While many mental illnesses are protected by the ADA, most attorneys advise that employers can dismiss workers who make threats or engage in disruptive behavior if the same behavior by other employees would result in termination. In essence, the 9th Circuit gave mentally ill employees the right to preferential treatment, putting the rights of disabled employees above their co-workers' right to work in an environment free of threatening behavior.

"It's an extraordinary opinion that pushes the law beyond the pale of reasonableness," says Jeffrey Pasek, member in Cozen O'Connor. "This decision insulates people with disabilities from employers' standards of conduct."

Catch-22

In its decision the 9th Circuit relied on its 2001 ruling in Humphreys v. Memorial Hospitals Association. In Humphreys, the court found that an employee's obsessive-compulsive disorder made it impossible for her to comply with attendance rules. The court found her employer violated the ADA by terminating her for absences and tardiness caused by her mental illness. Accordingly in Gambini, the court said that the ADA and the Washington disability law required the trial court to instruct the jury to consider conduct arising from the disability as part of the disability and not as valid grounds for termination.

Employment attorneys argue that there is a significant difference between the facts in Gambini and Humphreys that the 9th Circuit failed to recognize.

"It's extremely important to differentiate between employees who can't get to the level of performance required by the employer due to a disability and those who engage in affirmative misconduct, indeed violent outbursts," says Anthony Oncidi, partner in Proskauer Rose. "Where this opinion goes wrong is that it doesn't differentiate between those situations."

The decision also runs counter to guidance from the EEOC. The EEOC states, "?? 1/2 an employer never has to tolerate or excuse violence, threats of violence, stealing or destruction of property. An employer may discipline an employee with a disability for engaging in such misconduct if it would impose the same discipline on an employee without a disability."

Additionally, allowing an employee with a mental disorder to create a hostile work environment could place an employer at risk of violating other federal laws, such as Title VII and OSHA.

"Talk about a Catch-22," says Edward Harold, partner in Fisher & Phillips.

Seeking Clarification

DaVita has petitioned for a rehearing and also has asked the 9th Circuit to certify the question of law raised by the case to the Washington Supreme Court to determine if the 9th Circuit correctly interpreted the state's disability discrimination law.

"The good news is that if the 9th Circuit misinterpreted the Washington state law, the Washington Supreme Court will have an opportunity to fix that," Oncidi says.

But until then, employers in the 9th Circuit face difficult choices.

"Employers will be between a rock and a hard place trying to protect the rights of allegedly disabled employees and protecting the well-being of coworkers and supervisors," Oncidi says.

While Gambini does not address the issue of reasonable accommodation for disabilities under the ADA, Jill Chasson, partner in Perkins Coie, says employers should be especially careful in light of the decision to engage in an interactive exchange with employees about possible accommodations before disciplining or terminating them.

Harold suggests that employers revise job descriptions to include standards of conduct within the essential job functions. Because the ADA requires the disabled employee to be able to perform essential job functions in order to be a qualified individual with a disability, such a job description would give the employer ammunition to fight a discrimination claim.

But the decision hasn't changed Harold's basic advice to clients dealing with a threatening employee.

"I'd rather trample on someone's civil rights than risk physical harm to someone else," he says.

Senior Editor

Mary Swanton

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