Depression as a disability within the meaning of the Americans With Disabilities Act

Depression as a disability within the meaning of the Americans With Disabilities Act

Swanson v University of Cincinnati, CA6, 268 F.3d 307

Is the inability to work in a particular area due to a medical condition a disability within the meaning of the Americans With Disabilities Act [ADA]? The Circuit Court of Appeals, Sixth Circuit, decided that where an individual can perform satisfactorily in other areas, he or she does not suffer from a substantially limiting disability sufficient to maintain a claim of unlawful discrimination within the meaning of the ADA.

The Swanson case involved a surgical resident's claim of disability based on his inability to work in one area of medicine due to depression. Dr. John Swanson claimed that the University of Cincinnati [UC] and University Hospital [UH] unlawfully discriminated against him by failing to accommodate his disability -- major depression arising from the break-up of a significant four-year relationship, his parents' separation while he was in college, and other personal losses.

The district court ruled that Swanson's major life activities were not substantially limited by his condition because any restrictions were short-term in nature and mitigated by medication. In addition, his limitations were no greater than those experienced by the average person. As to Swanson's claim of “substantial limitation in his ability to work,” the district court noted that he did not miss any days of work; “his reviewers consistently noted he was able to work hard, even at the peak of his illness”; and his record at the University of Nevada indicated Swanson could give a “solid” performance in surgery with proper medication.

Based on these factors, the court decided that his depression had only a short-term effect on his performance and he was not substantially limited in the major life activity of working.

UH, on the other hand, contended that it did not believe Swanson was disqualified from performing a broad range of jobs, and encouraged him to switch to another medical specialty. Apparently Swanson declined to do so. In any event, the district court rejected his claim that UC and UH regarded him as disabled. Finding that Swanson was not disabled, the district court granted summary judgment to UC and UH.

To establish a prima facie case of discrimination because of disability the individual must show that he or she:

1. is an individual with a disability according to the statute;

2. is “otherwise qualified” to perform the job requirements, with or without reasonable accommodation;

3. suffered an adverse employment decision;

4. the employer knew or had reason to know of his disability; and

5. the position remained open after the adverse employment decision or the disabled individual was replaced.

The Circuit Court, agreeing with the district court, said that Swanson did not show that he could not perform all medical task due to depression, merely those associated with surgery, affirmed the lower court's dismissal of his complaint. 

Determining “in-service” status for the purposes of qualifying for a disability retirement allowance

Determining “in-service” status for the purposes of qualifying for a disability retirement allowance

Matter of Jetter, 288 A.D.2d 591 [see also Jetter v. McCall, 241 A.D.2d 746; Jetter v. Hevesi, 5 A.D.3d 941]

The Jetter case points out that although an applicant for disability retirement benefits has the burden of demonstrating his or her eligibility for such benefits, there must be substantial evidence in the record to support the Retirement System's rejection of the application.

New York State Trooper Roy P. Jetter discovered that he was awarded in-service disability retirement benefits pursuant to Retirement and Social Security Law [RSSL] Section 363-b (b) (2) (b), rather than pursuant to RSSL Section 363-b (b) (2) (a). Benefits received pursuant to Section 363-b (b) (a) apparently are treated more favorably for Federal personal income tax purposes.*

Jetter asked the Retirement System to reconsider its determination. The System decided that although Jetter's disability indeed was casually related to the October 1992 incident, such incident did not occur while he was “in service” and, therefore, he was not entitled to in-service benefits. Jetter appealed.

The Appellate Division noted that to be eligible to receive benefits under Section 363-b (b) (2) (a), Jetter had to establish that he sustained an in-service disability. Jetter's attorney, however, elected to object to the System's interjection of the in-service issue instead of offering proof concerning the issue. This tactical decision, said the court, does not entitle Jetter to a new hearing.

Notwithstanding this, the Appellate Division concluded that the System's “underlying determination is not supported by substantial evidence” and thus Jetter was entitled to a re-hearing because of this.

The only evidence presented on the in-service issue came from (1) Jetter's application for benefits, in which the then Superintendent of the State Police indicated that his injury was sustained while Jetter was “on-duty”; and (2) Jetter's hearing testimony during which he stated that “[w]ith the police department and the use of the [government] vehicle[s], you are on duty when you leave your house and begin to drive.”

While the System was free to reject any or all of Jetter's testimony on this point, its determination “must still be supported by substantial evidence in the record, which would include evidentiary facts and inferences which could fairly be drawn therefrom.”

As the record did not contain any evidence concerning Jetter's regular work schedule or assigned duties, his specific schedule and assigned tour on the day of the incident or whether he engaged in any work-related activities while he was en route to his office, the System's finding that Jetter's injury occurred “before [he] was scheduled to begin his tour” cannot stand.

Significantly, the court said that although Jetter had not entered his place of employment prior to sustaining the disabling injury, that fact, standing alone, does not constitute substantial evidence to support the underlying determination, and cross-examination of Jetter did not result in the elicitation additional facts from which it could be inferred that Jetter was not in service at the time he was injured.

The court's conclusion: Since the record made before the Retirement System did not have sufficient evidence to make a reasoned determination concerning whether or not Jetter had been injured “while in-service,” this case had to be returned to the Retirement System “for a further hearing on that limited point.”

* RSSL retirement benefits are not subject to New York State personal income tax.

Terminated probationer denied a name-clearing hearing

Terminated probationer denied a name-clearing hearing

Matter of Johnston v Kelly, 35 A.D.3d 297, 828 N.Y.S.2d 10

Kevin Johnston, because he served as a probationary police officer, could be terminated from his position without a hearing or a statement of reasons, for any reason or no reason at all, provided the dismissal was not made in bad faith, was not for constitutionally impermissible reasons, or was not in violation of law.

After Johnston was terminated from his position before completing his probationary period, he sued and obtained a court order from Supreme Court directing that he be given a “name-clearing hearing.”

The Appellate Division held that Supreme Court’s granting Johnston’s petition for such a hearing was incorrect. The Appellate Division pointed out that the lower court had improperly granted Johnston’s request for a name-clearing hearing as “the sole purpose of a name-clearing hearing is to afford the employee an opportunity to prove that the stigmatizing material in the personnel file is false."

Here, said the Appellate Division, Johnston has not demonstrated that the materials contained in his personnel file are stigmatizing. More importantly, Johnston had not denied the truth of the central factual assertions in his personnel records that formed the basis for his probationary termination. The decisions notes that Johnston “denied facts that were not stated in the report,” or denied statements in the report that were, at most, “tangential to the central issues.”

In any event, the satisfaction that the individual could expect obtain following the holding of a name clearing hearing is limited. Although it could result in a terminated probationary or provisional employee "clearing" his or her name, clearing his or her name does not automatically result in the individual winning reinstatement to his or her former position.

As the Court of Appeals held in Matter of Stanziale [55 NY2d 735], -- where the basis for dismissal is of a "stigmatizing nature" the individual is entitled to some due process so as to clear his or her name --. However the courts have not yet held that an individual is entitled to more than "some due process" insofar as redress or relief within the context of a name-clearing hearing is concerned.

In contrast to the ruling in Johnston, in Matter of Murphy v City of New York, Appellate Division, First Department, 35 A.D.3d 319, the court ruled that John J. Murphy was entitled to a name clearing hearing following his “coerced retirement” from his position with the New York City Employees’ Retirement System.

Here the Retirement system conceded that the element of dissemination has been satisfied. Murphy had sufficiently alleged that the report prepared by Retirement System personnel contains inaccuracies and that the report's conclusions are stigmatizing, “as they arguably accused Murphy of immorality.” Regardless whether Murphy resigned or was fired, the court said that he has satisfied the requirement of loss of employment that is necessary to demand a name-clearing hearing.

Determining the creditability of a witness

Determining the creditability of a witness

Sarmiento v Newsday, 287 A.D.2d 851

Newsday dismissed Marta Sarmiento from her position after she allegedly uttered a racial epithet in Spanish to a fellow employee in violation of Newsday's rules governing its employees’ conduct. When Sarmiento applied for unemployment insurance, her application was denied on the ground that she had lost her employment due to her misconduct.

Sarmiento appealed and ultimately the Unemployment Insurance Appeals Board, affirming the decision of its Administrative Law Judge [ALJ], ruled that Sarmiento was entitled to benefits. The ALJ had found Sarmiento's “testimony to be the more credible and lacking any disinterested witnesses to the incident in question.” Newsday appealed.

The Appellate Division, Third Department, affirmed the Board's determination, holding that while “[o]ffensive conduct in the workplace, including the use of abusive language, can be found to constitute disqualifying misconduct,” here the only direct evidence that Sarmiento uttered a racial slur was given by the alleged victim thereof who had admittedly been at odds with claimant for some time. Accordingly, the Board's decision was based on it view as to the credibility of the testimony of the witnesses.

The issue of credibility is one for the Board to resolve and as there is substantial evidence to support the Board's decision finding claimant entitled to receive unemployment insurance benefits, the court declined to overturn its ruling.

Judicial review of position classification decisions

Judicial review of position classification decisions

Matter of Civil Serv. Employees Assn., Inc., Local 1000, AFSCME, AFL-CIO v State of New York Unified Ct. Sys., 35 A.D.3d 1005, 826 N.Y.S.2d 481

Observing that when a position classification decision is made, "[t]he courts have the power to reverse or modify a particular classification . . . [only] if it is 'wholly arbitrary or without any rational basis,'" the Appellate Division dismissed CSEA’s attempt to compel the Office of Court Administration’s Chief Administrative Judge to reclassify certain Court Clerks (JG-18) positions to Senior Court Clerk (JG-21).

In the words of the Appellate Division: “[s]o long as the [position] classification determination has a rational basis, this Court may not disturb it even if there are legitimate grounds for a difference of opinion.”

CSEA argued that the Office of Court Administration’s decision to eliminate the position of Senior Court Clerk in the Third and Fourth Judicial Departments, while retaining the Senior Court Clerk position in the First and Second Judicial Departments, had no rational basis because there were no differences in the job duties of Court Clerks upstate and Senior Court Clerks downstate.

The Appellate Division, pointing out that by law the Court Clerks in the First and Second Judicial Departments are peace officers, rejected CSEA’s argument that the additional duties expected of peace officers are not relevant as they are not mentioned in the job description for Senior Court Clerk. It said that “Repeating in the job standard what has been conferred by the Legislature would be unnecessary.”

As to CSEA’s claim that it was unlikely that “Senior Court Clerks will be called upon to provide backup to uniformed courtroom security,” the court said that this is not determinative as the duties required from title classifications need only be performed "as the need occurs."

CSEA also contended that the Office of Court Administration’s decision “violates Civil Service Law §115.” §115 states that it is "the policy of the state to provide equal pay for equal work." Although CSEA argued “that the peace officer status for Senior Court Clerks is meaningless and that the clerical duties of both titles are identical,” the Appellate Division said that it disagreed that the peace officer status of the Senior Court Clerk is meaningless, concluding that Senior Court Clerks and Court Clerks do not “provide equal work.”