Gambini v. Total Rental Care, Inc.

• Decision Date: 08 March 2007
• Docket Number: No. 05-35209.,05-35209.
• Citation: 486 F.3d 1087
• Parties: Stephanie GAMBINI, Plaintiff-Appellant, v. TOTAL RENAL CARE, INC., d/b/a DaVita, Inc., Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

486 F.3d 1087

Stephanie GAMBINI, Plaintiff-Appellant, v. TOTAL RENAL CARE, INC., d/b/a DaVita, Inc., Defendant-Appellee.

No. 05-35209.

United States Court of Appeals, Ninth Circuit.

Argued October 27, 2006.

Submitted March 1, 2007.

Filed March 8, 2007.

Amended April 24, 2007.

Michael C. Subit and Sean M. Phelan, Frank Freed, Subit & Thomas, LLP, Seattle, WA, for the plaintiff-appellant.

Patricia K. Buchanan and Pamela J. DeVet, Lee, Smart, Cook, Martin & Patterson, P.S., Seattle, WA, for the defendant-appellee.

Appeal from the United States District Court for the Western District of Washington; Ronald B. Leighton, United States District Court Judge. D.C. No. CV-03-05459-RBL.

Before ALFRED T. GOODWIN and ALEX KOZINSKI, Circuit Judges, and MILTON I. SHADUR,^* Senior District Judge.

ORDER AMENDING OPINION AND AMENDED OPINION

SHADUR, Senior District Judge.

ORDER

After review of (a) the petition for rehearing filed by appellee Total Renal Care Inc. d/b/a DaVita, Inc. ("DaVita"), coupled with its motion to withdraw a portion of our opinion and to certify a question to the Washington Supreme Court, and (b) the motion by Washington Retail Association for leave to file a brief amicus curiae in support of that petition and motion, we:

1. deny DaVita's petition for rehearing and its accompanying motion;

2. grant leave to file the amicus curiae brief; and

3. amend our opinion filed on March 8, 2007, slip op. 2685, 480 F.3d 950, by inserting the following two paragraphs at page 2697, 480 F.3d at 956-57, after line 6 and immediately above the caption "Failure To Offer Instruction on `Direct Threat' Defense":

In its petition for rehearing, which has been joined by an amicus brief, DaVita argues that "[n]either the Riehl nor Humphrey Courts state or imply that arguably disabled employees are entitled to absolute protection regardless of their transgressions against the employer, let alone more protection than would be afforded a non-disabled employee for the same misconduct." But the law often does provide more protection for individuals with disabilities. Unlike other types of discrimination where identical treatment is the gold standard, identical treatment is often not equal treatment with respect to disability discrimination—see, e.g., Holland v. Boeing Co., 583 P.2d 621, 623 (Wash.1978) (en banc) ("Identical treatment may be a source of discrimination in the case of the handicapped, whereas different treatment may eliminate discrimination against the handicapped and open the door to employment opportunities."). That's why the ADA and Washington Law require employers to make reasonable accommodations for disabilities.

That said, requiring Prop. Instr. 26 in no way provides employees with absolute protection from adverse employment actions based on disability-related conduct. Under the ADA a plaintiff must still establish that she is "an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires" (42 U.S.C. § 12111(8)). Washington Law has a similar provision: "[T]he prohibition against discrimination because of such disability shall not apply if the particular disability prevents the proper performance of the particular worker involved" (Wash. Rev.Code § 49.60.180(1)). Even if a plaintiff were to establish that she's qualified, under the ADA the defendant would still be entitled to raise a "business necessity" or "direct threat" defense against the discrimination claim (see 42 U.S.C. § 12113(a)-(b)). Defendant may also raise the defense that the proposed reasonable accommodation poses an undue burden (see id. § 12111(10)). Here DaVita would be able to raise any analogous defenses available to it under Washington Law. Our holding is thus far less controversial and sweeping than DaVita and the amici proclaim.

OPINION

Stephanie Gambini ("Gambini") appeals the district court's denial of her renewed motion, alternatively seeking judgment as a matter of law and a new trial, following a jury verdict in favor of her former employer Total Renal Care, Inc., d/b/a DaVita, Inc. ("DaVita"). Gambini originally brought suit in Pierce County Superior Court in Tacoma, Washington, charging that DaVita had discriminated against her in violation of the Washington Law Against Discrimination ("Washington Law," Wash. Rev.Code §§ 49.60.010 to 49.60.401) and the Family Medical Leave Act ("FMLA," 29 U.S.C. §§ 2601 to 2654). DaVita then timely removed the case to the United States District Court for the Western District of Washington, where DaVita prevailed at trial. We affirm as to Gambini's FMLA claim, but reverse and remand as to her Washington Law claim.

Background

In November 2000 Gambini began working as a contracts clerk at DaVita, a company that provides dialysis to renal patients. It is undisputed that Gambini had a history of health problems that predated her employment at DaVita. After several months at DaVita she began to experience depression and anxiety, and in April 2001 she experienced an emotional breakdown at work. Gambini eventually met with a mental health provider at the community health clinic and was told that her symptoms were consistent with bipolar disorder.

Upon returning to work several days later, Gambini informed her supervisor Robin Warren ("Warren") that she was seeking medical treatment for bipolar disorder. When Warren was promoted in May 2001, DaVita replaced her with Carrie Bratlie ("Bratlie"), who became Gambini's new direct supervisor. Gambini also told Bratlie that she was suffering from bipolar disorder and requested several accommodations. In addition, Gambini told her co-workers that she was experiencing mood swings, which she was addressing with medications, and asked that they not be personally offended if she was irritable or short with them. Gambini privately divulged to Bratlie that she was seeing a therapist and struggling with some medication issues.

Gambini's bipolar symptoms grew more severe in April 2002—she found herself increasingly irritable and easily distracted and began to have a hard time concentrating or assigning priorities as between her tasks. Gambini admitted to a fellow co-worker, who also suffered from bipolar disorder, that she was struggling to perform her job because of her symptoms. That co-worker recommended that Gambini seek treatment from psychiatric nurse practitioner Bobbie Fletcher ("Fletcher"), who confirmed Gambini's bipolar disorder based on Gambini's "short fuse," high energy, and propensity to exhibit anger and irritability.

During that period Gambini's current and former supervisors, Warren and Bratlie, convened to discuss Gambini's attitude and what they perceived as her poor job performance. Their meeting culminated in a decision to deliver a written performance improvement plan to Gambini at a later meeting that would include Bratlie, Gambini, and Gina Lovell ("Lovell"), the Supervisor of Payor Contracting. Accordingly, on July 11, 2002 Bratlie emailed Gambini, requesting that she come to Bratlie's office without indicating any specific purpose for the meeting.

Upon arriving at Bratlie's office Gambini was already agitated because she did not know the purpose of the meeting or why Lovell was in attendance. When Bratlie presented Gambini with the improvement plan, the first sentence of which stated, "[Gambini's] attitude and general disposition are no longer acceptable in the SPA department," Gambini began to cry. Reading the remainder of the document did not alleviate Gambini's symptoms—instead she found her face growing hot and felt a tightening feeling in her chest, as well as short ness of breath and shaking. When she had finished reading the performance plan, Gambini threw it across the desk and in a flourish of several profanities expressed her opinion that it was both unfair and unwarranted. Before slamming the door on her way out, Gambini hurled several choice profanities at Bratlie. There is a dispute about whether during her dramatic exit Gambini warned Lovell and Bratlie that they "will regret this," but Bratlie did observe Gambini kicking and throwing things at her cubicle after the meeting. Back at her cubicle, Gambini tried unsuccessfully to call Fletcher to tell her about how upset the meeting made her feel and about her ensuing suicidal thoughts.

Gambini reported for work the next morning and received a return phone call from Fletcher who, alarmed about Gambini's suicidal thoughts, told Gambini to go directly to the hospital. Gambini told Bratlie that she needed to check into the hospital, and Bratlie asked Gambini's boyfriend Todd DeMille ("DeMille") to pick her up and take her to the hospital. When DeMille arrived, Bratlie gave him FMLA forms for Gambini to fill out. She also signed the personnel change notice for Gambini's leave request. Gambini went straight from work to St. Joseph's Hospital, where her bipolar diagnosis was reconfirmed.

On July 16 DaVita provisionally approved Gambini's request for FMLA leave, subject to medical certification from her health care provider. Additionally, DaVita's human resource generalist Mara McLemore ("McLemore") began an investigation into the July 11 meeting with Gambini by interviewing Gambini's supervisors. During the investigation McLemore asked Bratlie via email about Gambini's expected date of return. During the same time frame several employees sent emails to McLemore stating concerns about Gambini's outburst. For example, one employee specifically requested that Gambini be prevented from returning to work.

On the following business day, McLemore and Bratlie called Gambini on her cell phone to tell her that her employment was being terminated. Three days later Gambini sent DaVita a letter stating that her behavior during the July 11 meeting was a consequence of her bipolar disorder and asking DaVita to reconsider its decision to terminate her. When DaVita...