Manifested Psychological Problems NotEnoughtoStickADAClaimtoCity

Manifested Psychological Problems Not Enough to Stick ADA Claim to City

ByJerryL.PigsleyandKellyM.Ekeler,Harding&Shultz, P.C., L.L.O.

In a case involving a series of psychological evaluations, discharge proceedings, and lawsuits, a court of appeals upheld the termination of a Chicago police officer. See Brumfield v. City of Chicago, Nos. 11-2265 and 11-3836 (7th Cir. Nov. 6, 2013). Linda Brumfield was a Chicago police officer from 1999 until she was fired in 2010. According to Brumfield, in 2006 she began to experience psychological problems, and the City began to require periodicpsychologicalevaluationstodetermineifshewas fit to continue to perform her job.

In2008,BrumfieldsuedtheCityallegingthattheCitywas discriminating against her based upon her race, sex, and sexual orientation by subjecting her to the psychological evaluations.While the 2008 lawsuit was pending, the City initiated discharge proceedings against Brumfield relating to an incident in which Brumfield shoved a towing company employee during a dispute over towing truck fees. The Police Board did not discharge Brumfield but suspended her without pay for 180 days.

While the 2008 lawsuit was still pending, the City again initiated discharge proceedings against Brumfield relating to an incident where Brumfield told her captain that she wasgoingtobeinjuredondutyandthenfelltotheground, feigning injury. This time the Police Board upheld the City ’s decision to terminate Brumfield. Following her termination,Brumfieldfiledtwomorelawsuitsagainstthe City,alleging,inpart,thattheCityviolatedtheAmericans with DisabilitiesAct (“ADA”) when it suspended her and later terminated her employment. The three lawsuits against the City were eventually concludedintheCity ’sfavor.Brumfieldappealedthelower courts’decisions,andtheSeventhCircuitCourtofAppeals consolidated the appeals. The Court of Appeals affirmed the lower courts’ decisions and made two significant holdings of law.

First, the Court considered Brumfield’s argument that her conduct during the feigned-injury incident was merely a manifestation of her psychological problems and that she was therefore discharged because of her disability. The CourtrejectedBrumfield’sargumentandexplainedthatan employer may fire an employee for engaging in unacceptable workplace behavior without violating the ADA even if the behavior is precipitated by a mental illness. The ADA does not require an employer to accommodate disabilities that have no bearing on an employee’sabilitytoperformtheessentialfunctionsofher job. Brumfield did not allege that her psychological problems prevented her from performing the essential functions of her job. Quite the opposite, Brumfield’s psychological evaluations determined she was fit for duty as a police officer.

Second, the Court held that Title II of the ADA does not coverdisability-basedemploymentdiscrimination.TitleIof the ADA specifically prohibits employment discrimination because of disability, whileTitle II prohibits the exclusion from the benefits, services, programs or activities because of disability. But, because Brumfield was procedurally estopped from bringing her claims under Title I of the ADA, she sought to revive her claims underTitle II of the ADA. In rejecting Brumfield’s claims under Title II, the Court reasoned that getting and keeping a job were not

“the receipt of services, ” nor was employment a “program oractivityprovidedbyapublicentity ”coveredunderTitle II of theADA.

TheCourt’sholdingthatTitleIIoftheADAdoesnotcover claims for discrimination in employment aligned with the majority of circuit courts. However, the Eighth Circuit Court of Appeals, the court of jurisdiction for South Dakota, has not yet decided the issue.Thus, it is uncertain whether a municipality in South Dakota may be liable for discrimination in employment under Title II of theADA.

The Brumfield caseremindsusthatalthoughmunicipalities must make reasonable accommodations for a qualified employeewithadisability,municipalitiesarenotrequiredto accommodate a disability that does not impact the employee’sabilitytodoherjob.Mere“badbehavior”isnot excusedundertheADA.Nevertheless,anemployeemaybe abletoconnectbadbehaviortoadisabilitythatimpactsthe employee’s ability to perform the essential functions of the employee’s job, and municipalities must be diligent in distinguishing the two different scenarios. Even if a South Dakotacourtfollowsthemajorityofcircuitcourtsandholds that Title II of the ADA does not cover discrimination in employment, municipalities must be ready to handle an employment discrimination claim brought under Title I of theADA.

Editor’s Note: This article is not intended to provide legal advice to our readers. Rather, this article is intended to alert our readers to new and developing issues and to provide some common sense answers to complex legal questions. Readers are urged to consult their own legal counsel or the author of this article if the reader wishes to obtain a specific legal opinion regarding how these legal standards may apply to their particular circumstances. The authors of this article, Jerry L. Pigsley and Kelly M. Ekeler, can be contacted at 402-434-3000, or at Harding & Shultz, P.C., L.L.O., P.O. Box 82028, Lincoln, NE 68501-2028, jpigsley@hslegalfirm.com or kekeler@hslegalfirm.com.