Banker Terminated When “Regarded As Disabled” And Because Of Perceived Mental Impairment Has ADA Claim
Disability claims involving mental impairments can be tough. That’s why this recent case from a federal district court in the Eight Circuit is an important and helpful read. Here’s what happened in the case of Lizotte v. Dacotah Bank.*
Facts Of The Case
Alfred Lizotte was an assistant vice president of commercial lending at Dacotah Bank where he had been employed since 2003.
On Thursday, November 30, 2006 Lizotte consumed somewhere between 10-12 drinks at a local bar. On his way home, “and for whatever reason”, he decided he “had enough of this”, drove to a cemetery, took a gun out of his backseat, and called his sister.
When his sister arrived at the cemetery, he told her that he “didn’t want to be here anymore.” She unsuccessfully struggled to get the gun and called the police.
Lizotte drove away, was stopped by the police, and taken into custody. He was involuntarily committed to a psychiatric inpatient unit for four days following the incident.
On December 1, 2006 Lizotte called his immediate supervisor and told him that he was unable to come to work. On December 5, 2006 Lizotte’s physician faxed a Dacotah Bank “Certification of Health Care Provider” form indicating that Lizotte could return to full work duties in a week.
On December 8, 2006 the HR director (Bobby Compton) sent Lizotte a letter stating: “Because of the impact of your action in the community, and the ability to perform your job, we are placing you on Leave of Absence to allow us to review the information and consider the issue.”
On December 14, 2006 Lizette met with Compton and two officers of the bank. He was given a letter to sign which said that it was his last day of employment. In exchange for signing the letter he got $6,500.00 in severance pay. Lizette unwillingly signed the letter and thereafter received a “Notification of Employee” resignation form which he refused to sign.
Several months later, Lizotte filed a lawsuit in federal district court in North Dakota alleging discrimination under the Americans with Disabilities Act (“ADA”). The complaint also asserted several state law claims.
ADA: What’s The Law?
The Americans with Disabilities Act law is quite complicated but here it is in a nutshell.
In order for an employee to establish a prima facie case under the ADA, he must show he:
1. is disabled within the meaning of the ADA
2. is qualified to perform the essential functions of the job with or without reasonable accommodation, AND
3. suffered an adverse employment action because of his disability
The ADA defines disability as:
1. a physical or mental impairment that substantially limits one or more major life activities OR
2. a record of such impairment OR
3. being regarded as having such impairment
If a plaintiff establishes all of those elements, the burden shifts to the employer to produce a legitimate, non-discriminatory reason for the discharge.
If the employer establishes a legitimate reason for the discharge, the burden shifts back to the plaintiff to show that the reason given by the employer is a pretext for discrimination — meaning that it’s a “phony excuse.”
The bottom line is after jumping through all of these hoops, there must be evidence from which a jury could reasonably conclude that the individual’s disability “was a factor in the employment decision at the moment it was made.”
The Court’s Opinion In The Case
Regarded As Disabled
The bank argued that Lizotte’s claim should be dismissed as a matter of law because he did not have a disability as defined by the ADA.
Lizotte contended that he met the definition of disability because Defendants regarded him as disabled and mistakenly believed that his mental disorder substantially limited the major life activity of working .
The Court agreed with Lizotte.
Quoting from the landmark case of School Board of Nassau v. Arline which interpreted the “regarded as” language in the Federal Rehabilitation Act, it noted:
Although an individual may have an impairment that does not in fact substantially limit a major life activity, the reaction of others may prove just as disabling.
By including ‘regarded as’ in the Rehabilitation Act ‘Congress acknowledged that society’s myths and fears about disabilities and about disability and disease are as handicapping as are the physical limitations that flow from actual impairment.
Therefore, if an individual can show that an employer or other covered entity made an employment decision because of a perception of disability based on “myth, fear or stereotype, the individual will satisfy the regarded as part of of the definition of disability.
In Lizotte’s case, the defendants:
* were aware that he was being treated for depression
* knew he had attempted suicide the night of November 30th and was hospitalized for several days after the event
* were “blown away” that he was released from the psychiatric unit after only 4 days
* perceived Lizotte’s mental impairment (mood disorder according to his doctor) to be much more restrictive than described by his doctor
* inaccurately believed:
1. that he could not work
2. suffered from a condition that made him potentially violent at work
The Court stated:
There is undisputed evidence that Lizotte was terminated on December 14, 2006 because of the Defendants’ concerns about ‘safety,’ reputation,’customer acceptance,’ ‘liability,’ and a desire to protect the bank’s image in Minot.
The EEOC regulations and case law explicitly state that such ‘attitudinal barriers’ may reflect a perception of disability based on ‘myth,fear or stereotype’ and that this is a scenario the ADA is designed to guard against……..
The Bank Defendants’ “Legitimate Reasons” For Termination And Proof Of “Pretext”
Bank officials stated that it terminated Lizotte because of three concerns:
1. the safety of its employees and customers
2. its reputation in the community
3. its reputation with its employees
The record however, did not support those justifications — and certainly not as a matter of law. For example, as the the Court noted, the evidence showed:
* the suicide incident was not well known in Minot or among other bank employees
* no adverse business results occurred in the two weeks between the suicide attempt and Lizotte’s termination
* no employee said he or she couldn’t work with Lizotte
* there was no financial impact on the bank
* no customers pulled their accounts nor asked to be transferred to a different loan officer
As stated by the Court:
There may have been legitimate, non-discriminatory reason(s) to terminate Lizotte in December 2006, but there are certainly inferences that can be drawn from the evidence presented that the bank acted on the basis of myth, fear,or stereotype, and that Lizotte’s perceived mental impairment was the reason for the termination. …
The ADA does not require that Dacotah bank officials to put its staff and the general public at risk by employing an individual who poses a direct threat to others.
But the ADA does require the bank to provide due consideration to an individual they arguably may have ‘regarded as’ having a mental impairment and who may be able, with reasonable accommodation, to perform his work productively and safely. ….
There is conflicting evidence as to whether the employment decisions were made because of a perception of a disability …. that warrant a jury trial and preclude the granting of partial summary judgment on the ADA claims.
Lessons To Be Leaned
According to the National Institute for Mental Health, mental disorders are common in the United States. An estimated 26.2 percent of Americans ages 18 and older — about one in four adults — suffer from a diagnosable mental disorder in a given year. That’s over 70 million people.
Therefore, millions of people with depression and other mental disorders may be exposed to employment discrimination because of a disability which can and should be accommodated.
This case is a perfect example of what can happen when misconceptions about depression and other mental impairments can result in an illegal discharge under the Americans with Disabilities Act.
*Reprinted from Westlaw with permission of Thomson Reuters. If you wish to check the currency of this case, you may do so using KeyCite on Westlaw by visiting http://www.westlaw.com/.
*This post originally appeared in Employee Rights Post on February 19, 2010. Reprinted with permission from the author.
About the Author: Ellen Simon is recognized as one of the first and foremost employment and civil rights lawyers in the United States. With more than $50* million in verdicts and settlements and over 30 years of experience, Ellen has been listed in Best Lawyers in America and in the National Law Journal as one of the nation’s leading litigators. She has been lauded for her work on landmark cases that established employment law in both state and federal court. Ellen also possesses a wealth of knowledge as a legal analyst discussing high-profile civil cases, employment discrimination and women’s issues. Ms. Simon has been quoted often in local and national news media and is a regular guest on television and radio, including appearances on Court TV. She is the author of the Employee Rights Post, a legal blog devoted to employee and civil rights.
*prior results do not guarantee a similar outcome