Ninth Circuit Protects Employee's Violent Outbursts

An employee claiming "bi-polar" disorder was privileged to storm out of the boss' office, throw papers at the boss, and kick and toss objects around her cubicle, according to the Ninth Circuit Court of Appeals.

Gambini received a warning for her attitude. She claims she had bi-polar disorder. During the meeting over the warning, she became upset, left the meeting, and then started kicking her cubicle and throwing objects. Employees complained they were in fear of her next outburst. The Company hospitalized her and provided FMLA paperwork. They later terminated her employment.

Gambini sued and lost the case at trial. In Gambini v. Total Renal Care, deciding the case under Washington law (but tracking its own ADA jurisprudence), the Court of Appeals said that the jury should have been instructed that "if it found that her conduct at issue was caused by or was part of her disability, then it could find that one of the substantial reasons she was fired was her bi-polar condition."

That means the jury has to consider whether the conduct at issue is associated with a mental disability that cannot be seen or really measured. Is the conduct a result of an impairment, or just the result of a bad day, or someone emboldened by ADA protection maybe?

Consider a state like California where nearly every condition is a disability. Any conduct an employee can attribute to a disability is protected? What if the employee's symptoms include breaking things or setting them on fire? What if the employee "because" of a disability does not control bodily functions? How about touching other employees? Cursing? Taking unannounced days off?

Yes, these examples are subject to an "undue hardship" analysis, but the employer has the burden of proving undue hardship, and it's a tough burden. Direct threat? Even tougher! What if the employer fired twenty people without disabilities for throwing objects at a supervisor? The person with a disability gets a pass? I understand there are folks with real disabilities who need a boost. But I don't think the ADA was intended to be stretched in this fashion. Additionally, the opportunity for abuse is pretty high with a decision like this.

Tiny bright spot for the employer - the Ninth Circuit said that the FMLA claim was properly dismissed because the employer showed it would have fired Gambini regardless of her having taken leave.