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.
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."