Den Hartog v. Wasatch Academy

• Decision Date: 28 October 1997
• Docket Number: No. 96-4040,96-4040
• Citation: 129 F.3d 1076
• Parties: 122 Ed. Law Rep. 401, 7 A.D. Cases 764, 11 NDLR P 84, 97 CJ C.A.R. 2622 Howard DEN HARTOG, Plaintiff-Appellant, v. WASATCH ACADEMY and Joseph Loftin, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1076

129 F.3d 1076

122 Ed. Law Rep. 401, 7 A.D. Cases 764,

11 NDLR P 84,

97 CJ C.A.R. 2622

Howard DEN HARTOG, Plaintiff-Appellant, v. WASATCH ACADEMY and Joseph Loftin, Defendants-Appellees.

No. 96-4040.

United States Court of Appeals,

Tenth Circuit.

Oct. 28, 1997.

Stephen W. Cook, Salt Lake City, UT, argued the cause for Plaintiff-Appellant.

Elizabeth T. Dunning, Salt Lake City, UT, argued the cause for Defendants-Appellees. Brett J. DelPorto and Carolyn Cox, Salt Lake City, UT, assisted on the briefs.

Before EBEL, HOLLOWAY, and MURPHY, Circuit Judges.

EBEL, Circuit Judge.

Plaintiff-Appellant Howard Den Hartog ("Den Hartog") was discharged by defendant-appellee Wasatch Academy ("Wasatch"), a boarding school where Den Hartog had been teaching and working for over twenty-five years. He was discharged because his adult son Nathaniel, who suffers from bipolar affective disorder, attacked and threatened several members of the Wasatch community, including threats to the headmaster's two children, over a one-year period. Den Hartog sued Wasatch and its headmaster, alleging violation of the Americans with Disabilities Act ("ADA") and breach of contract. The district court granted the defendants' motion for summary judgment on the ADA claim, but allowed the breach of contract claim to proceed. After the district court denied Den Hartog's motion in limine to suppress certain evidence, a jury rendered a verdict in favor of the defendants on the contract claim. Den Hartog now appeals both the district court's grant of summary judgment on the ADA claim and its denial of his motion in limine.

We hold that the ADA allows an employer to discipline or discharge a non-disabled employee whose disabled relative or associate, because of such relative or associate's disability, poses a direct threat to the employer's workplace. Because there is no genuine dispute of fact on this record that Den Hartog's son, Nathaniel, posed such a threat to the workplace at Wasatch, we conclude that the

discharge of Den Hartog did not violate the ADA. Accordingly, we affirm.

BACKGROUND

Because this is an appeal from a grant of summary judgment, the following facts are set forth in the light most favorable to Den Hartog, the non-movant. See Kaul v. Stephan, 83 F.3d 1208, 1212 (10th Cir.1996). All reasonable inferences from the factual record have been drawn in favor of Den Hartog.

Defendant Wasatch is a private boarding school for students in the ninth through twelfth grades, located in Mt. Pleasant, Utah. In recent years, its student body has numbered approximately 160 students, and it has employed about 45 full-time staff and faculty members. Mt. Pleasant is a small town, consisting of less than 2 1/2 square miles and approximately 2,000 residents. Co-defendant Joseph Loftin ("Loftin") has served as headmaster for Wasatch from 1988 to the present. During the times at issue, Loftin lived on campus with his wife and three children.

Except for two years during which he taught elsewhere, plaintiff Howard Den Hartog was employed by Wasatch Academy from 1964 until July 1994, pursuant to a series of one-year contracts. During that period, Den Hartog worked as a teacher, in the buildings and grounds department, and as a school historian. In accordance with Wasatch's general policy requiring full-time faculty to live on campus, Den Hartog lived on the Wasatch campus with his wife and four children every year that he taught there.

Den Hartog's youngest child, Nathaniel Den Hartog ("Nathaniel"), was born in December 1971. Nathaniel lived with his parents until he graduated from Wasatch in June 1990. During the 1990-91 school year, Nathaniel went away to college. However, Nathaniel did not return to college the next year, but instead lived on the Wasatch campus with his parents.

In July 1992, Den Hartog took Nathaniel to Dr. John Merriweather, a psychologist in private practice in Mt. Pleasant. Dr. Merriweather tentatively diagnosed Nathaniel as having "bipolar affective disorder" (formerly called "manic depressive psychosis"), and recommended that Nathaniel be hospitalized and treated. Accordingly, Nathaniel was admitted to the Western Institute of Neuropsychiatry in Salt Lake City on July 20, 1992, where Dr. Merriweather's diagnosis was confirmed and Nathaniel was treated with lithium. Nathaniel was discharged on July 30, 1992, and returned to his parents' home on the Wasatch campus. At that time, Loftin was aware of Nathaniel's diagnosis and at some point became aware of Nathaniel's lithium treatment. Upon Nathaniel's return, Loftin hired him to do part-time work on campus including yard work, painting, and assisting in the day care center.

Around November, 1992, Nathaniel moved to California. However, after two months there, he stopped taking his lithium and as a result suffered a manic episode. In January, 1993, the police found Nathaniel selling his possessions in a grocery store parking lot. Following that incident, his mother flew to California and brought him back to Wasatch, where Loftin once again hired him to do part-time work on campus.

During early 1993, when Nathaniel was twenty-one years old, he developed "close ties" with Loftin's sixteen-year-old son Travis. On March 12, 1993, Nathaniel took Travis to Provo, Utah, without the Loftins' knowledge, and attempted to have Travis admitted to Charter Canyon Hospital, a psychiatric hospital there. When a hospital employee called Joseph Loftin, Loftin went to Provo to pick up Travis. Before Loftin arrived, Nathaniel left the hospital without Travis. ¹

Two days later, Nathaniel telephoned the Loftin home several times, looking for Travis. Nathaniel told Loftin that he would slit his own wrists if Loftin did not put Travis on the phone. Loftin, in response, called both the police and Nathaniel's counselor Brian Whipple. That same evening, Nathaniel visited his treating psychiatrist, Dr. J. Bruce Harless, to discuss these phone calls. At this On March 18, 1993, the Loftins found a number of messages from Nathaniel on their answering machine. In one of these messages, while speaking in a tone of voice which scared Loftin and which Dr. Harless "readily perceived as being threatening," Nathaniel stated that the Loftins should keep a very close eye out on their four-year-old daughter, Allison. In another message, Nathaniel said that he had drained quarts of blood from his body recently, and offered to show this blood to Loftin to prove he was "serious."

visit, Nathaniel told Dr. Harless that he really had no intention of harming himself, but was merely attempting to coerce the Loftins into disclosing Travis's location.

After listening to the recorded messages, Loftin called the police, who listened to the messages and told Loftin to take the threats seriously. The police also called Dr. Harless. Nathaniel's parents were then contacted. Although the Den Hartogs agreed to take Nathaniel to a hospital, they were unable to coax or coerce Nathaniel out of their house. Consequently, they called the police, who transported Nathaniel to the Utah Valley Regional Medical Center, where Nathaniel was temporarily admitted. The next day, at the request of Dr. Harless, Loftin applied for Nathaniel to be involuntarily committed to an institution.

On March 31, 1993, a Utah state judge determined that Nathaniel posed "an immediate danger of physical injury" to himself or others, and ordered his commitment to the custody of the Utah State Division of Mental Health for six months.

The next day, April 1, 1993, Den Hartog and his wife Esther met with Loftin and others to discuss the situation. The Den Hartogs recorded the meeting. At the meeting, Loftin repeatedly told the Den Hartogs that he did not want Nathaniel on campus because of his threatening behavior. Loftin also said that if Nathaniel's condition resulted in the Den Hartogs being unable to live at Wasatch, then Den Hartog might be terminated. Esther Den Hartog responded that "if we lived here [on campus] and we were having a Christmas celebration with our family we would not say, Nathaniel, you cannot come home because Joe Loftin says you cannot be here." Den Hartog did not object to this statement.

On April 16, 1993, the Wasatch Board of Trustees met and voted unanimously to:

endorse the action of the Headmaster, President of the Board, and the Executive Committee in this matter: essentially

1. Restraining order on Nathaniel Den Hartog

2. Apartment in [Salt Lake City] for Esther and Nathaniel for an undetermined period

3. If necessary, pay out their contract if they must leave the community.

Pursuant to this vote, Wasatch rented an apartment in Salt Lake City for Nathaniel and his mother to live in after Nathaniel was released. Two Wasatch Trustees visited the Den Hartogs in their home the next day, to inform them of the Board's decision. No restraining order was ever obtained against Nathaniel.

Despite having been remanded to state custody for six months on March 31, Nathaniel was released from the Utah Valley Regional Medical Center on April 19, 1993. Within a week of his release, Nathaniel visited Mt. Pleasant, where he came onto the Wasatch campus. Several Wasatch Trustees received calls from staff and faculty who were concerned about Nathaniel's presence. Loftin became concerned that as long as Den Hartog worked and lived on campus Nathaniel would continue visiting. As a result, on May 14, 1993, Wasatch assigned Den Hartog to spend the 1993-94 school year writing a school history from Wasatch's development office in Salt Lake City. Den Hartog was to receive his full salary plus a living allowance to pay for a home, utilities, and food.

In August, 1993, Nathaniel enrolled in Snow College and moved to Ephraim, Utah, twenty miles from Mt. Pleasant. Den Hartog provided Nathaniel with a car and placed no restrictions on where Nathaniel could go. On one occasion Nathaniel drove to the Wasatch campus to attend a basketball game...