Weaving v. City of Hillsboro

• Decision Date: 15 August 2014
• Docket Number: No. 12–35726.,12–35726.
• Citation: 763 F.3d 1106
• Parties: Matthew WEAVING, Plaintiff–Appellee, v. CITY OF HILLSBORO, Defendant–Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

763 F.3d 1106

Matthew WEAVING, Plaintiff–Appellee,

v.CITY OF HILLSBORO, Defendant–Appellant.

No. 12–35726.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Oct. 9, 2013.

Decided Aug. 15, 2014.

Matthew Kalmanson (argued) and Janet Schroer, Hart Wagner LLP, Portland, OR, for Defendant–Appellant.

Jaime B. Goldberg (argued), Makler Lemoine & Goldberg PC, Portland, OR, for Plaintiff–Appellee.

Appeal from the United States District Court for the District of Oregon, Marco A. Hernandez, District Judge, Presiding. D.C. No. 3:10–cv–01432–HZ.

Before: BARRY G. SILVERMAN, WILLIAM A. FLETCHER, and CONSUELO M. CALLAHAN, Circuit Judges.

Dissent by Judge CALLAHAN.

OPINION

W. FLETCHER, Circuit Judge:

We must decide whether, consistent with the Americans with Disabilities Act (“ADA”), an employer properly terminated an employee who had recurring interpersonal problems with his colleagues that were attributable to attention deficit hyperactivity disorder (“ADHD”). Plaintiff Matthew Weaving worked for the Hillsboro Police Department (“HPD”) in Oregon from 2006 to 2009. HPD terminated Weaving's employment in 2009 following severe interpersonal problems between Weaving and other HPD employees. Weaving contends that these interpersonal problems resulted from his ADHD. After his discharge, Weaving brought suit under the ADA. He contended that he was disabled because his ADHD substantially limited his ability to engage in two major life activities: working and interacting with others. He claimed that HPD had discharged him because of his disabilities in violation of the ADA.

The jury returned a general verdict for Weaving, finding that he was disabled and that the City of Hillsboro (“the City”) had discharged him because of his disability. The City moved for judgment as a matter of law. It also moved for a new trial on the ground of improper jury instructions. The district court denied both motions, and the City appealed.

We reverse. We hold as a matter of law that the jury could not have found that ADHD substantially limited Weaving's ability to work or to interact with others within the meaning of the ADA.

I. Background

The evidence presented at trial showed the following. In 1973, Weaving, then six years old, was diagnosed with “hyperkinetic activity,” known today as ADHD. His pediatrician prescribed medication. Weaving stopped taking medication at age twelve because, as his mother explained to him, he seemed to have outgrown the symptoms of ADHD. He continued, however, to experience interpersonal problems throughout childhood and adolescence.

Weaving joined the Beaverton Police Department (“BPD”) in Oregon as a police officer in July 1995. During the application process, he passed a battery of tests, including psychological and medical evaluations. Because he believed ADHD no longer affected him, Weaving did not disclose or discuss his childhood diagnosis and medication. Weaving's evaluations during his employment at BPD described him as “[a]loof, abrasive, too outspoken at inappropriate times,” “forcefully outspoken,” “disgruntled,” and “intimidating,” but also stated that he “works well with co-workers” and was “friendly, helpful and hard working.” Some of his supervisors noted that he “[h]ad difficulty working in a team environment.”

In 2001, while employed by BPD, Weaving became a narcotics detective on an interagency team. He was removed from the team less than a year later because of “personality conflicts” with another officer. Weaving filed a grievance and was put back on the team in 2003. While still employed by BPD, due to ongoing difficulties with colleagues Weaving left the interagency narcotics team to join an FBI task force. Weaving later learned that an FBI agent had complained to BPD about “communication issues” with him. The agent had written a letter to the BPD Police Chief stating that Weaving was “[f]requently critical and vocal about his fellow investigators” and that he had an “overly aggressive style.”

Weaving was hired by HPD in 2006. During the application process, Weaving disclosed what he described as the “intermittent interpersonal communication issues” he experienced at BPD. HPD offered Weaving provisional employment, contingent upon passing a psychological evaluation. Weaving disclosed his childhood history of ADHD but did not believe at that time that ADHD continued to affect him.

Weaving's first-year evaluation at HPD was generally positive. His supervisor, Lt. Jim Kelly, praised his experience and knowledge. Lt. Kelly wrote that he had seen Weaving conduct all his investigations in a “thorough, professional, and conscientious manner.” He wrote that Weaving “maintains pos [i]tive and respectful relationships with his teammates, his supervisors, and the community.” Lt. Kelly noted that “[a] few members of the Department have the misconception that Weaving is arrogant,” but that neither he nor members of Weaving's patrol team had found this to be the case.

Weaving applied for a promotion to sergeant in 2007. The application process included a “psychological leadership assessment,” conducted by an off-site psychologist. Weaving did not mention ADHD during the application process because he believed he had outgrown it. The psychologist provided a six-page report in which he described Weaving as having a profile similar to individuals who “tend to be dominant in interpersonal relationships.” He described Weaving as “socially interactive” and engaging in “cooperative and outgoing” relationships with others. He observed that Weaving “projects a comfortable social presence” and stated that Weaving “likely presents himself well in just about any type of social situation and is likely to participate with any social group.” He described Weaving as “poised in his presentation and articulate in answering the scenarios.”

Weaving was promoted to sergeant in April 2007. In his annual evaluation, covering the period from May 2007 through April 2008, Lt. Kelly wrote that Weaving's interactions with the public were professional and that he displayed empathy toward members of the public. Lt. Kelly wrote that Weaving's communication style (“[d]irectness”) came across to officers as “arrogant” and inspired fear, but that he personally did not have difficulties with Weaving. Lt. Kelly wrote that Weaving was aware of his communication issues and seemed willing to try new approaches.

Weaving's interpersonal difficulties continued after Lt. Kelly's 2008 evaluation. One subordinate testified at trial that he found Weaving's responses to his questions “demeaning.” Another subordinate testified that Weaving's responses to questions were “intimidating,” making him “feel stupid and small.” In May 2008, a fellow sergeant wrote an email to Weaving and two other officers complaining about the number of “unapproved reports” that had been waiting for him when he arrived for his shift on Sunday morning, and questioning an earlier shift's decision to tow two cars. Weaving replied in an email:

Allow me to respond to your email that by the way is a “PUBLIC RECORD”;

....

I'll respond to the second part of your inquisitive email [the part about the two cars] with a metaphorical analogy. Envision a swimming pool with a deep end and a shallow end separated by a floating rope....

There are many more potential hazards in the deep end and a person would be foolish to venture there without the technical expertise, stamina and initiative to keep from drowning. There are countless people who are good swimmers but still remain in the shallow end for fear of the potential danger the deep end harbors. Still, there are others who negligently and recklessly venture to the deep end without any technical proficiency and tragically drown. My recommendation to you is that you remain in the shallow end where you can splash around with the kids.

What really upsets me about your inquiry is not the simple fact that you question my judgment and knowledge but the manner in which you have done so. If you have any desire to discuss this incident further or any other incident please do not do so in a public record email, come and find me any day of the week! I'm easy to locate, I'm in the deep end so bring your water wings!

In addition, Weaving referred to some HPD officers in a derogatory fashion, calling them “salad eaters,” rather than “meat eaters” or “warriors,” to imply that the officers were weak. He also criticized the language skills of a newly hired Latino officer who did not speak English as his first language.

In March 2009, Weaving issued a several-page disciplinary letter to a subordinate who had driven a marked police vehicle through a surveillance area. At the time of the incident, Weaving had verbally rebuked the officer over the open radio. The officer believed the letter was a disproportionate response to what he had done. He filed a grievance against Weaving with the City Human Resources Department. On April 7, 2009, the City placed Weaving on paid administrative leave pending investigation of the grievance.

Weaving testified that, while he was on leave, it occurred to him that some of his interpersonal difficulties at HPD might have been due to ADHD. He met with a mental health nurse practitioner who prescribed him a low dose of medication and referred him to Dr. Gary Monkarsh, a clinical psychologist. Dr. Monkarsh concluded that Weaving suffered from adult ADHD. Dr. Monkarsh testified at trial that people with ADHD “have a hard time understanding their emotions, the emotions of others, the ability to regulate one's emotions and the emotions of others, the ability to empathize with others.” He also testified that someone with Weaving's characteristics “could be an excellent police officer.”

On May 7, 2009, Dr. Monkarsh sent a letter to the HPD Police Chief stating that he had diagnosed Weaving as having ADHD. A day later, Weaving wrote to the City Human Resources director informing her of Dr. Monkarsh's...