Crandall v. Paralyzed Veterans of America , 146 F.3d 894 ( 1998 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 12, 1998 Decided June 23, 1998
No. 97-7112
Donald W. Crandall,
Appellant
v.
Paralyzed Veterans of America,
Appellee
Appeal from the United States District Court
for the District of Columbia
(No. 95cv01741)
John S. Lopatto, III argued the cause and filed the briefs
for appellant.
Elizabeth Sarah Gere argued the cause for appellee. With
her on the brief was Lisa Burns.
Before: Wald, Williams and Tatel, Circuit Judges.
Opinion for the Court filed by Circuit Judge Williams.
Williams, Circuit Judge: Paralyzed Veterans of America
fired Donald Crandall for multiple acts of rudeness to fellow
employees and outside groups working with Paralyzed Veter-
ans. Crandall later disclosed to Paralyzed Veterans that he
had been diagnosed as suffering from manic depression (or
"bipolar disorder"), a disability that he claims caused his
rudeness. He sued Paralyzed Veterans under s 504 of the
Rehabilitation Act of 1973, 29 U.S.C. s 794(a), alleging that it
had discriminated against him "by reason of" his disability, by
firing him and by failing to reasonably accommodate his
psychological disability. The district court granted summary
judgment for Paralyzed Veterans. First, it ruled that the Act
did not cover the organization at the time of the alleged
discrimination, because it was not at the relevant time "re-
ceiving Federal financial assistance," which is a predicate to
liability under s 504. Second, the court held that no reason-
able factfinder could have found that Paralyzed Veterans
discriminated on the basis of Crandall's disability, since it had
neither actual nor constructive notice of his disability when it
fired him. We affirm on both grounds.
* * *
Crandall worked as a law librarian for nearly three decades
at a number of firms, including Verner, Liipfert, Bernhard,
McPherson & Hand in Washington, D.C. He left Verner,
Liipfert after suffering a heart attack and associated anxiety
and depression, but through the good offices of Robert Nel-
son, at one time a managing partner at Verner and later
General Counsel of Paralyzed Veterans, was hired by Para-
lyzed Veterans in September 1991 for a permanent position
as an "Information Specialist."
Crandall's stay there was not a happy one, for him or his
co-workers: he was soon admonished by supervisors for his
habit of verbal abuse. Nelson stuck up for him, arguing that
Crandall's approach stemmed from his experience "in the law
firm where everybody reacted quickly to everybody." Ulti-
mately, however, Crandall abused the employees of an out-
side trade association, which sent Paralyzed Veterans a letter
threatening to cut off access to its library. On September 10,
1992 Paralyzed Veterans drew the line and fired Crandall.
Crandall's written job application materials disclosed no
disability, and he conceded in his deposition that he never told
anyone at Paralyzed Veterans that he had been diagnosed
with or treated for bipolar disorder or any other psychiatric
disorder. In fact, in May 1991 he had been diagnosed as
suffering from bipolar disorder and had been prescribed
Lithium, complementing the Prozac he was already on as a
result of his anxiety/depression diagnosis of the previous
year. Irritable outbursts are apparently among a number of
typical symptoms of the manic phase of bipolar disorder. See
Diagnostic and Statistical Manual of Mental Disorders 328
(4th ed. 1994).
* * *
Section 504 of the Rehabilitation Act, 29 U.S.C. s 794,
provides:
No otherwise qualified handicapped individual in the
United States, as defined in section 706(7) of this title,
shall, solely by reason of his handicap, be excluded from
the participation in, be denied the benefits of, or be
subjected to discrimination under any program or activi-
ty receiving Federal financial assistance....
Crandall was fired on September 10, 1992, but the term of
Paralyzed Veterans' federal grant did not begin until Septem-
ber 11, 1992, according to the funding agency's letter approv-
ing the grant. (Paralyzed Veterans did not actually receive
federal funds until August 1993.) The first question is wheth-
er the Act covered the dismissal of Crandall at all.
Crandall first seeks to move the date of alleged discrimina-
tion forward in time. Because Paralyzed Veterans promised
to pay him through September 30, and for some time after
September 10, 1992 preserved for Crandall an option of
continuing his health insurance with Paralyzed Veterans's
carrier, he says he should be counted as an employee
throughout that period, pointing to some legal purposes for
which the period of continued insurance access would consti-
tute employment. But the object here is not to measure the
duration of Crandall's employment, but rather to pinpoint the
time of the alleged discriminatory act. And if Crandall was
discriminated against at any time, it was when he was notified
that his employment was terminated, not when his benefits
ceased. Under Delaware State College v. Ricks, 449 U.S. 250,
258 (1980), notice of final action fixes the timing of an act of
employment discrimination for statute of limitations purposes,
even when the employee actually works for a long time
thereafter--in Ricks for a full year. Crandall offers no
reason to use a different rule to fix the time of discrimination
for purposes of relating the employer's conduct to the onset
of statutory coverage, and he cites no cases making the
solution turn on the continuation of pay or benefits.
Having failed to move the date of alleged discrimination
forward past September 10, 1992, Crandall next tries to move
the date of Paralyzed Veterans's coverage by the Act back-
wards in time. Here he argues that because it pledged in
June 1992 in its federal grant application to abide by federal
rules and regulations, it was bound by s 504 even before it
was awarded a grant.
But Paralyzed Veterans's anti-discrimination assurances
and general promise to abide by applicable rules were ex-
pressly stated as promises to do so "if the application is
approved." Moreover, although the letter from Legal Ser-
vices Corporation approving the grant was dated September
4, 1992, the letter made the grant contingent on acceptances
by the grantees (which appear to have occurred on Septem-
ber 14, 1992), and set September 11, 1992 as the starting date
of the grant. Crandall does not explain how Paralyzed
Veterans's contingent promises could have become binding
before it actually bound itself to the grant terms by accepting
the government's offer in the manner it prescribed. Thus
both the formal start of the grant period and Paralyzed
Veterans's contractual commitment came after the date of
Crandall's dismissal. The district court was correct to hold
that s 504 did not apply at the time of the alleged act of
discrimination. We assume in Crandall's favor, without de-
ciding, that either of those dates was controlling, rather than
Paralyzed Veterans's actual receipt of funds or its start on
the work funded by the grant.1
In any event, s 504 prohibits only discriminatory acts
performed "solely by reason of" the plaintiff's handicap. The
courts of appeals have overwhelmingly agreed that for this
causal link to be shown the employer must have acted with an
awareness of the disability itself, and not merely an aware-
ness of some deficiency in the employee's performance that
might be a product of an unknown disability. They have so
found under both the Rehabilitation Act itself and the analo-
gous provision of the Americans with Disabilities Act
("ADA"), 42 U.S.C. s 12112(a) (providing that no employer
"shall discriminate against a qualified individual with a dis-
ability because of the disability of such qualified individu-
al...."). See, e.g., Taylor v. Principal Financial Group,
Inc., 93 F.3d 155, 163 (5th Cir. 1996) ("To prove discrimina-
tion [under the ADA], an employee must show that the
employer knew of such employee's substantial physical or
mental limitation."); Morisky v. Broward County, 80 F.3d
445, 447-49 (11th Cir. 1996) (liability under the ADA requires
actual or constructive notice of the disability); Collings v.
Longview Fibre Co., 63 F.3d 828, 834 (9th Cir. 1995) (assum-
ing plaintiffs had a medically recognizable drug disability,
they could not make out a case under the ADA where they
could not show that employer was aware of it); Miller v.
__________
1 Crandall points to the publication in the July 29, 1992 Federal
Register of an announcement about the grant. But since the
statement merely expresses the Legal Services Corporation's "in-
tention to award" the grant, see 57 Fed. Reg. 33528 (July 29, 1992),
we do not see how it could support a finding that Paralyzed
Veterans was "receiving Federal funds" as of that date, the condi-
tion that triggers s 504 liability.
National Casualty Co., 61 F.3d 627, 629 (8th Cir. 1995)
(under ADA, "[b]efore an employer must make accommoda-
tion for the physical or mental limitation of an employee, the
employer must have knowledge that such a limitation ex-
ists."); Hedberg v. Indiana Bell Tel. Co., 47 F.3d 928, 932
(7th Cir. 1995).
In Hedberg, for example, the plaintiff suffered from pri-
mary amyloidosis, a degenerative condition that causes fa-
tigue (and often death). He was fired for poor job perfor-
mance, including tardiness and laziness, and the tardiness and
laziness may have been a product of his disability. 47 F.3d at
933. Like Crandall, Hedberg had not disclosed the disability
to his employer before he was terminated. The court held
that if Hedberg had been fired just on account of his tardi-
ness and laziness,
[t]he ADA hardly requires that merely because some
perceived tardiness and laziness is rooted in disability, an
employer who has not been informed of the disability,
and who has no reason to know of the disability, is bound
to retain all apparently tardy and lazy employees on the
chance that they may have a disability that causes their
behavior.
Id. at 934.
In an effort to parry Paralyzed Veterans's notice argument,
Crandall points to authority that seems to equate dismissal
for conduct arising from a disability with dismissal "by reason
of" the disability. Here he rests on Teahan v. Metro-North
Commuter Railroad Co., 951 F.2d 511 (2d Cir. 1991), in which
an alcoholic employee was laid off because of excessive,
alcohol-induced, absenteeism. The employer, whose aware-
ness of the disability was undisputed, defended on the ground
that it could fire a disabled employee when it relied merely on
the symptoms of the disability, and not on the disability itself.
In this context, considering whether the dismissal could have
been "solely by reason of [plaintiff's] handicap," the court said
that "the relevant inquiry" was whether the employee was
discharged solely for conduct caused by the underlying dis-
ability. If so, then the employee was discriminated against
solely by reason of his handicap, in violation of s 504. Id. at
517.
We doubt whether, even apart from the notice issue, Teah-
an can be read to endorse the general proposition that if a
disability causes poor job performance, and if the poor perfor-
mance causes dismissal, then the dismissal was "by reason of"
the disability. Such a reading would be in direct conflict with
other circuits. See Palmer v. Circuit Court of Cook County,
117 F.3d 351, 352 (7th Cir. 1997); Newland v. Dalton, 81 F.3d
904, 906 (9th Cir. 1996); Little v. FBI, 1 F.3d 255, 258-59 (4th
Cir. 1993); Taub v. Frank, 957 F.2d 8, 11 (1st Cir. 1992). It
seems more probable that the court intended merely to be
sure that employers could not get off the hook by showing
that they bore no discriminatory animus against the disability
itself, independently of their attitude toward its manifesta-
tions. This purpose is suggested by Teahan's example of a
limping employee whose limp causes him to make an annoy-
ing thumping noise: the employer could not defend firing the
employee for the thumping, rather than the limping, on the
grounds that the employer only cared about thumping. Id. at
516-17.
In any event, whatever the merits of a broad reading of
Teahan for cases where the employer has notice of the
disability, we can see none in the absence of notice. The
Second Circuit could hardly have resolved its hypothetical of
the thumping employee as it did if the employee had no
apparent limp, merely an unexplained tendency to make
irritating noises. Especially in any area where medical ap-
praisals are relatively contestable or contingent on patients'
self-descriptions, dispensing with a notice requirement would
invite employees to manipulate the statutory protection, se-
curing post hoc disability diagnoses that encompass the con-
duct leading to their firing. (We make the point not because
there is the slightest suggestion that Crandall fabricated his
disability--there is none--but to illustrate the perverse con-
sequences of a rule dispensing with notice.) If the behavior
is "not so obviously [a] manifestation[ ] of an underlying
disability that it would be reasonable to infer that an employ-
er actually knew of the disability," Hedberg, 47 F.3d at 934,
and the employer has no other notice of the disability, there
can be no actionable discrimination.
On Paralyzed Veterans's motion for summary judgment the
question was whether Crandall had offered evidence from
which a reasonable person could find that Paralyzed Veterans
had any notice, actual or constructive, regarding his disability.
See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986);
Anderson v. Liberty Lobby, 477 U.S. 242, 257 (1986). In our
only prior ruling on the form of the notice the plaintiff must
give the defendant, we rejected the proposition that there
must be "precise notice." See Blackwell v. U.S. Dep't of the
Treasury, 830 F.2d 1183 (D.C. Cir. 1987). Here, too, no great
refinement of the concept of notice is needed, beyond the
bedrock requirement of an adequate, prior alert to the defen-
dant of the plaintiff's disabled status.
Insofar as Crandall claims that his rude behavior itself was
so extreme as to afford notice, we reject his claim. A layman
cannot reasonably be expected to infer a psychiatric disorder
merely from rudeness, given the prevalence of rudeness
without psychiatric disorder. Alternatively, Crandall tries to
satisfy the notice requirement by pointing to conversations
with Nelson (occurring first at Verner, Liipfert and later at
Paralyzed Veterans) arising out of his 1990 application to
Verner, Liipfert's insurer, UNUM, for total disability bene-
fits. The insurer denied the claim and Crandall executed a
release in exchange for a small settlement. In the course of
this he discussed with Nelson the possibility of an administra-
tive appeal of UNUM's decision. But Crandall did not say in
his deposition that he told Nelson of even having claimed a
psychiatric disability. At oral argument Crandall's counsel
repeatedly mentioned the 1991 diagnosis's reference to psy-
chiatric disability, and Nelson's testimony that he did not
recall ever seeing the diagnosis. Despite Crandall's efforts to
make Nelson's non-recollection look fishy, he offered no rea-
son to suppose that Nelson would have seen the diagnosis in the ordinary
course of his work at Paralyzed Veterans (it was issued four
years after Nelson left Verner, Liipfert). Thus Crandall can
extract nothing useful from Nelson's testimony on the point.
Finally, Crandall points to Nelson's efforts to excuse Cran-
dall's rudeness by reference to his longtime exposure to work
in big law firms. Whatever the merits of this as an explana-
tion of rudeness, we fail to see how Nelson's effort to help his
former colleague hold his job is evidence that Nelson (or
anyone else at Paralyzed Veterans) was aware of Crandall's
disability.
We express no opinion whether, had he shown statutory
coverage and notice, Crandall's claim could otherwise have
survived summary judgment.
* * *
The judgment of the district court is
Affirmed.