The ADA Does Not Protect Persons With Bipolar Disorder in the Fourth Circuit
On behalf of Morris E. Fischer, LLC posted in Articles on January 12, 2014
After twenty one years of loyal work for Verizon, in 1999 Fran Darcangelo’s employer did what few other companies on the current corporate landscape today would dare do: they fired her.
The reason so few companies would attempt to remove her today is because of American big business’ "Fear of Firing," as reported in a BusinessWeek cover story : Fear Of Firing :How the threat of litigation is making companies skittish about axing problem workers (April 23, 2007).
Darcangelo is a member of a "protected class": she suffers from Bipolar Disorder, a psychiatric illness which, according to the National Alliance on Mental Illness ("NAMI") afflicts more than ten million Americans. As a member of a protected class, one might have thought that Verizon would hesitate to fire her for fear of the inevitable litigation her termination would trigger. Yet fire her it did. After years of litigation, the Fourth Circuit Court of Appeals finally affirmed a renewed Summary Judgment dismissal, ruled upon after a postponed trial date.
Bipolar Disorder, or manic depression, is a medical illness that causes extreme shifts in mood, energy, and functioning. These changes may be subtle or dramatic and typically vary greatly over the course of a person’s life as well as among individuals. The illness affects men and women equally. Bipolar Disorder is a chronic and generally life-long condition with recurring episodes of mania and depression that can last from days to months that often begin in adolescence or early adulthood, and occasionally even in children. Most people generally require some sort of lifelong treatment. While medication is one key element in successful treatment of bipolar disorder, psychotherapy, support, and education about the illness are also essential components of the treatment process.
The American Disabilities Act ("ADA") and Reasonable Accommodation
The ADA is a federal civil rights law in effect since 1992. Its purpose is to protect people with disabilities from discrimination in employment, in the programs and activities offered by state and local governments, and in accessing the goods and services. A "reasonable accommodation" under the Americans with Disabilities Act is any modification or adjustment to a job or the work environment that will enable a qualified applicant or employee with a disability to participate in the application process or to perform essential job functions. A Reasonable Accommodation also includes adjustments to assure that a qualified individual with a disability has rights and privileges in employment equal to those of employees without disabilities.
Title I of the ADA protects "qualified employees with disabilities." The term "qualified" means that the individual satisfies the skill, experience, education, and other job-related requirements of the position sought or held, and can perform the primary job tasks of the position, with or without reasonable accommodation.
For three years, Darcangelo had received an accommodation under the ADA
of paid time off to attend psychiatric appointments. However, that accommodation ended after Darcangelo’s manager, James Conrad, drafted a document titled Eliminate the Root Cause, in which he admitted his awareness of her "special medical condition," yet he targeted her for future disciplinary action anyway. Not long thereafter, Darcangelo’s supervisor, Charles "Butch" English, contacted Verizon’s medical administrator to allege the company’s concerns with Darcangelo. All the "concerns" had occurred at least four years prior to that point in time. No matter. Darcangelo was forced to undergo a company underwritten "independent" medical examination and was removed from her job for five weeks.
Whenever employees are unjustly terminated, unlikely things happen. In this case, following Conrad’s memo, Verizon informed Darcangelo that the accommodation was discontinued, with no medical reason. Another suspicious event was a surprise promotion offer to Darcangelo. "After they started complaining about me," says Darcangelo, "they still offered me a promotion. Maybe they just wanted me to leave town, but I didn’t take the hint."
In a written opinion, The Fourth Circuit Court of Appeals upheld the District Court of Maryland’s dismissal of Fran’s case on Renewed Summary Judgment. Darcangelo v. Verizon Md. Inc., 2005 U.S. Dist. LEXIS 37660 (D. Md. June 7, 2005) because her expert witness Dr. Douglas Anderson, M.D., F.A.C.F.P., a highly regarded Forensic Psychiatrist, testified at deposition as to the nature of Bipolar disorder. Namely, that people like Fran Darcangelo are capable of more easily losing their judgment which could impact their ability to act professionally 100% of the time. As such, Verizon argued that since Darcangelo’s job involved a significant amount of phone work with technicians at off site locations to install or repair various phone system problems, she was not capable of meeting a Verizon designated essential function of her position: professional behavior. The Court agreed and granted Verizon’s Renewed Summary Judgment motion.
"They looked at the handful of days when I had a problem," Fran says. "They didn’t look at all the days of twenty one years when I did "good" to "better than good" work. No one is good as gold every day for twenty one years!"
The Court also ignored much of the evidence in the case which demonstrated that the incidents of behavior for which she was responsible, did not involve abusive phone behavior. Rather, they involved confrontations with her co-workers who sat in cubicles in a common area: confrontations that for the most part were started by them. There were no complaints about Darcangelo by the employees with whom she interacted with on the telephone. The only employees with whom she had difficulty were the ones who gave her difficulty. Much of the opinion was centered on Darcangelo’s inability to interact with co-workers.
Dr. Anderson testified that Verizon could have sensitized employees to her condition which would have fostered a more tolerant and peaceful environment. Instead, Verizon managers ignored and hid Darcangelo’s condition. Dr. William E. Wright, Verizon’s Medical Director, recommended to Butch English that the co-workers in Darcangelo’s workgroup be given ADA counseling and training to educate them about working with a person with her mental health condition. It was undisputed that this accommodation was never provided or even attempted. In fact, Verizon managers repeatedly denied even having knowledge of Darcangelo’s condition.
Essential Functions under the ADA
What is the legal definition of "essential function?" 29 CFR 1630.2 defines "essential functions" as such:
Essential functions -- (1) In general. The term essential functions means the fundamental job duties of the employment position the individual with a disability holds or desires. The term "essential functions" does not include the marginal functions of the position. (2) A job function may be considered essential for any of several reasons, including but not limited to the following:
(i) The function may be essential because the reason the position exists is to perform that function; (ii) The function may be essential because of the limited number of employees available among whom the performance of that job function can be distributed; and/or (iii) The function may be highly specialized so that the incumbent in the position is hired for his or her expertise or ability to perform the particular function.
(3) Evidence of whether a particular function is essential includes, but is not limited to:
(i) The employer's judgment as to which functions are essential;
(ii) Written job descriptions prepared before advertising or interviewing applicants for the job;
(iii) The amount of time spent on the job performing the function;
(iv) The consequences of not requiring the incumbent to perform the function;
(v) The terms of a collective bargaining agreement;
(vi) The work experience of past incumbents in the job; and/or
(vii) The current work experience of incumbents in similar jobs.
Notably, Congress considered but soundly rejected a proposal that would have given employers sole or primary discretion to pronounce which are the essential functions of a position.
The Court ignored the critical evidence in the case which revealed the nature of what was truly an essential function in Fran’s job of Central Office Technician. The position description did not list one word about getting along with other employees or professional behavior. Instead, it focused almost exclusively on the technical knowledge and experience the position required and which Darcangelo possessed. Furthermore, Darcangelo’s work environment and many of her co-workers were quite unprofessional. An independent witness confirmed that James Conrad, one of Darcangelo’s supervisors and author of the "Eliminate the Root Cause" document himself used profanity at a management meeting with employees regarding professionalism. Barbara Lee, one of Darcangelo’s co-workers was written up three times for unprofessional behavior. Lee also challenged co-workers to physical altercations in the parking lot.
The Court also ignored the decades of service by Frances Darcangelo, the excellent work evaluations and promotions. Darcangelo began her tenure at Verizon (then known as C&P Telephone) as a janitor in 1977. She performed well and was promoted several times, finally reaching Central Office Technician in 1988. The next year she took a leave of absence to serve in the United States Air Force. While serving her country she suffered a psychotic episode that led to her hospitalization, the diagnosis of bipolar disorder and ultimately her service-connected partial disability and pension. She returned to Verizon in 1990 and continued to perform admirably until her wrongful termination. A jury could have easily found that Fran Darcangelo met the essential functions of the Central Office Technician position.
After giving her best years to the company, they kicked her to the curb. "I was employed over twenty one years. If they thought I had a problem they could have demoted me, or reassigned me. They never did. The Verizon I worked for is a regulated utility with a legal obligation to protect the health and safety of its customers. They can’t have it both ways: that they knew I was a train wreck of a worker but allowed me to stay on as a train wreck." She argues that the behavior of the company reflects their basic satisfaction with her job performance over the course of that time. "My last ten years, I worked on fiber optic systems, working on the service of hundreds of thousands of customers every day. But they didn’t demote me or transfer me. Instead, they say they left a raving lunatic in charge. How bad could I have really been?"
Verizon itself offered Darcangelo $172,500.00 to settle her case. Not only that, Verizon believed that it had actually reached a legally binding settlement offer with her and initiated a hearing to enforce the settlement, to which Darcangelo prevailed. This squarely conflicts with Verizon spokesman, Bob Varetonni, who stated in a newspaper article his very strong belief that Verizon’s actions in this case were appropriate.
The Enormous Danger in the Fourth Circuit’s Precedent ofDarcangelo v. Verizon, Md., Inc., 189 Fed. Appx., 217, 2006U.S. App. LEXIS 17206 (4th Cir. Md. 2006).
Frances Darcangelo, love her or hate her, represents someone suffering with Bipolar not protected by the ADA. The true injustice of the Darcangelo case is that any employer could write in its handbook, We Are Responsible : Our Code of Business Conduct, as Verizon did, that an essential function of any job is to be professional at all times and all employees are entitled to a 100% non-hostile environment. Therefore, no matter what the position, sales person, truck driver, computer programmer, accountant, air conditioner repairman, tennis instructor or lab researcher, there is no job in the world today that doesn’t require some sort of communication to an employer about something.
Even a professional hockey player, the National Hockey League could contend, may get abusive with a referee or fans and cost his team unnecessary penalty minutes. NASA could claim that it couldn’t send a lone astronaut with B-Polar disorder to Mars on a six year mission because the federal government insists on a 100% hostile free work environment. Since the astronaut would be required to communicate with scientists in Houston on some level, the bi-polar astronaut could be abusive. As such, that employee could not fulfill the essential functions of the position.
Consequently, no one with Bipolar disorder is protected by the ADA in the Fourth Circuit states of Maryland, Virginia, North Carolina, South Carolina and West Virginia. Not surprisingly, to date, there is no reported case of anyone with Bipolar and an ADA case in those states who has survived Summary Judgment in an employment discrimination case.
The problem, according to James P. Ward, founder and President of ADA Watch and the National Coalition for Disability Rights, in written testimony submitted to the House Committee on the Judiciary on September 13, 2006, is that the ADA simply does not offer the kind of protection its drafters anticipated it would have. "Sixteen years after passage of the Americans with Disabilities Act (ADA), the American Bar Association reports that more than 97% of employment cases under the ADA are ruled in favor of employers with most dismissed on ‘summary judgment,’" wrote Ward. "Judges, acting more like benefits managers, are deciding if a person is ‘disabled’ enough to deserve protection under the ADA---rather than hearing the facts of the alleged discrimination."
Ward, in his written testimony before the House, cited one of the ADA’s drafters, Robert Burgdorf, Jr., as concluding "that ‘legal analysis has proceeded quite a way down the wrong road.’ Burgdorf points to a judicial tendency to view ADA plaintiffs as seeking special benefits and treatment instead of equal rights."
"People with disabilities such as epilepsy, diabetes, and mental illnesses," wrote Ward, "are routinely denied justice and labeled ‘not disabled enough’ by judges who narrowly interpret the intent of Congress in passing the ADA."
"Employers are discarding people like me," says Darcangelo. "I used to work and pay taxes. Now I’m on welfare. You can either employ people or pay them welfare. That’s the system we have. Is it better to have people be as productive as they can be, or do you leave them on welfare?"
Fran thought she fell squarely under the protection of the Americans with Disabilities Act (the "ADA"). Apparently she did not. Fran Darcangelo sums it up best. "For employees today, it’s alright to be crazy. It’s just not all right to be diagnosed and in treatment."