A California federal district court has held that “passive-aggressive disorder” is not a disability under California’s anti-discrimination law, a statute that defines disability more broadly than does the Americans with Disabilities Act Amendments Act (ADAAA). Gliha v. Butte-Glenn Cmty. Coll. Dist, 2013 U.S. Dist. LEXIS 84266 (E.D. Cal. June 14, 2013).
Gliha had been the executive director of development at the Community College for about six years when (according to Gliha) the College’s Vice President for Planning and Information began to subject him to “hyperscrutiny.” Gliha was given a formal reprimand and performance improvement plan. This discipline accused him of denigrating the Public Relations and Marketing Department’s efforts, “bullying” employees, being disloyal, and creating a hostile work environment. Gliha was ordered to undergo counseling for his “passive-aggressive” behavior.
Perhaps not surprisingly, Gliha disagreed and claimed that he had been wrongfully accused of bullying employees and acting unprofessionally on multiple other occasions. Then Gliha met with the College’s president and claimed that, in reality, he was being discriminated against by his boss because of his sexual orientation. Two months later, Gliha again alleged that he was being treated differently and subject to a hostile work environment because he is gay.
Soon thereafter, Gliha was told that he could resign or that he would be fired. When he refused to accept a separation package, Gliha was fired. He then filed four claims under California’s FEHA and one federal law claim. The College moved to dismiss the state law claims.
The court dismissed the disability and failure-to-accommodate claims under the FEHA. Gliha claimed that he was fired because of his perceived passive-aggressive disorder. Gliha was twice told he should undergo counseling for passive-aggressive disorder even though he was never diagnosed with the condition.
The FEHA broadly prohibits discrimination based on an employee’s “mental or psychological disorder or condition, such as intellectual disability, organic brain syndrome, emotional or mental illness, or specific learning disabilities, that limits a major life activity.” Notably, a recognized “mental disability” under California law requires only a “limitation” upon a major life activity, not a “substantial limitation” as required under the ADA.
But even so, said the judge, “the court has not located, and plaintiff has not provided, any reason to include ‘passive aggressive’ disorder, standing alone, within the meaning of ‘disability’ as explained in the FEHA.” She continued that “an inability to get along with one’s supervisor does not give rise to a disability within the meaning of either the FEHA or the ADA.” This holding is consistent with the way most courts look at disability claims when “getting along with others” is in play.
Last year, for example, the U.S. District Court for the District of Maryland dismissed a claim by a former Maryland Department of Agriculture worker with a similar claim. Higgins v. Maryland Dep’t of Agric., 2012 U.S. Dist. LEXIS 25303 (D. Md. February 28, 2012). In that case, the court found that the employee failed to demonstrate he was a qualified individual with a disability when he was terminated for “intolerably disruptive behavior.”
Higgins had worked at the Department since 1987 and, for the most part, received positive reviews. Beginning in 2002, he started to receive bad reviews, including concerns that he was confrontational, abrasive, and abrupt with the public and his co-workers. In 2006, he was diagnosed with bipolar II disorder. Over the next three years, his behavior continued to be rude, disruptive and unusual. Eventually, he was fired. Higgins sued, and the court found that courteous behavior was an essential function his job. The court also found that he failed to do his job because of his bad behavior and that his bad behavior was not excused because of his disability. He failed to demonstrate that a reasonable accommodation would have improved his behavior. Tolerating his disruptive behavior was not a reasonable accommodation.
An essential function of almost any job is not only to be mentally and physically able to perform the tasks assigned (with or without reasonable accommodation for those with a disability) but also to be emotionally able to conduct oneself in an appropriate manner when dealing with co-workers.