Matthew Weaving v. City of Hillsboro

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MATTHEW WEAVING, No. 12-35726
Plaintiff-Appellee,
D.C. No.
v. 3:10-cv-01432-HZ
CITY OF HILLSBORO,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the District of Oregon
Marco A. Hernandez, District Judge, Presiding
Argued and Submitted
October 9, 2013—Portland, Oregon
Filed August 15, 2014
Before: Barry G. Silverman, William A. Fletcher,
and Consuelo M. Callahan, Circuit Judges.
Opinion by Judge W. Fletcher;
Dissent by Judge Callahan
2 WEAVING V. CITY OF HILLSBORO
SUMMARY*
Americans with Disabilities Act
The panel reversed the district court’s judgment, after a
jury trial, in favor of a police officer who alleged that he was
terminated in violation of the Americans with Disabilities
Act.
The officer contended that he was disabled because his
attention deficit hyperactivity disorder substantially limited
his ability to engage in the major life activities of working
and interacting with others. He claimed that Hillsboro Police
Department discharged him because of his disabilities in
violation of the ADA.
The panel held that as a matter of law the jury could not
have found that ADHD substantially limited the officer’s
ability to work or to interact with others within the meaning
of the ADA. The panel held that given the absence of
evidence that the officer’s ADHD affected his ability to work,
and in light of the strong evidence of his technical
competence as a police officer, a jury could not reasonably
have concluded that his ADHD substantially limited his
ability to work. The panel also held that the officer’s
interpersonal problems did not amount to a substantial
impairment of his ability to interact with others.
Accordingly, based on the evidence presented, no reasonable
jury could have found the officer disabled under the ADA.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
WEAVING V. CITY OF HILLSBORO 3
The panel reversed the City of Hillsboro’s motion for
judgment as a matter of law and remanded the case to the
district court.
Dissenting, Judge Callahan wrote that the majority failed
to follow McAlindin v. County of San Diego, 192 F.3d 1226
(9th Cir. 1999), and that there was sufficient evidence to
support the verdict based on the officer’s ADHD substantially
limiting his ability to interact with others.
COUNSEL
Matthew Kalmanson (argued) and Janet Schroer, Hart
Wagner LLP, Portland, Oregon, for Defendant-Appellant.
Jaime B. Goldberg (argued), Makler Lemoine & Goldberg
PC, Portland, Oregon, for Plaintiff-Appellee.
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
4 WEAVING V. CITY OF HILLSBORO
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
WEAVING V. CITY OF HILLSBORO 5
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
6 WEAVING V. CITY OF HILLSBORO
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
WEAVING V. CITY OF HILLSBORO 7
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
8 WEAVING V. CITY OF HILLSBORO
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 V. CITY OF HILLSBORO 9
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
diagnosis and attaching his letter to the Police Chief. He
wrote:
My Psychologist . . . has advised me that
he is confident that with sustained treatment I
will eliminate communication issues that
currently are being considered adverse to the
work environment of the Hillsboro Police
Department (HPD). . . .
During my three years of service with
HPD I have been told multiple times by
several ranking members that my experience,
leadership and knowledge are a tremendous
asset. I’m excited about transforming an
identified weak area into an area of strength
10 WEAVING V. CITY OF HILLSBORO
and becoming an even greater asset to the City
of Hillsboro. I look forward to receiving the
positive support from the City that other HPD
employees, who are afflicted with a mental
disorder or an addiction, receive.
Weaving requested “all reasonable accommodations,”
including reinstatement to his position as an active-duty
sergeant.
On June 16, 2009, Lt. Richard Goerling wrote a
memorandum summarizing the findings of the investigation
of the grievance against Weaving. The investigation,
conducted while Weaving was on leave, included interviews
of 28 HPD employees. Lt. Goerling concluded that Weaving
had “creat[ed] and foster[ed] a hostile work environment for
his subordinates and peers; in particular, he has been
described in terms such as tyrannical, unapproachable, non-
communicative, belittling, demeaning, threatening,
intimidating, arrogant and vindictive.” He wrote, “In the
short time Weaving has been employed at HPD, he has
demonstrated time and again unacceptable interpersonal
communication that suggests he does not possess adequate
emotional intelligence to successfully work in a team
environment, much less lead a team of police officers.”
On Lt. Goerling’s recommendation, the City conducted an
independent medical evaluation and evaluated Weaving’s
fitness for duty. Two doctors found Weaving fit for duty
despite his ADHD diagnosis. On November 24, 2009, the
Deputy Chief of Police sent Weaving, through his attorney,
a sixteen-page letter advising him of the City’s intention to
terminate his employment “unless you persuade me
otherwise.” The letter described in detail Weaving’s
WEAVING V. CITY OF HILLSBORO 11
interpersonal problems and their effect on HPD. After a
hearing, the City terminated Weaving’s employment effective
December 11, 2009.
Weaving sued the City in federal district court under the
ADA. He alleged that (1) the City fired him because he had
an impairment that limited his ability to work or interact with
others, and (2) the City fired him because it regarded him as
disabled. The case was tried to a jury. The City moved for
judgment as a matter of law at the close of Weaving’s case-
in-chief. The district court denied the motion. The City
renewed its motion at the close of all evidence. The district
court again denied the motion.
The district court instructed the jury that Weaving was
disabled if he had a mental impairment that substantially
limited one or more major life activities, including
“interacting with others, working and communicating.” It
also instructed the jury, over the City’s objection, that
“[c]onduct resulting from a disability is part of the disability
and not a separate basis for termination.”
The jury returned a verdict for Weaving, finding him
disabled under the ADA. It found that the City had
terminated him because of his disability. The jury awarded
Weaving $75,000 in damages. The district court awarded
$232,143 in back pay, $330,807 in front pay, and $139,712 in
attorney’s fees. The district court refused Weaving’s request
for reinstatement because of “hostility and antagonism
between” Weaving and HPD.
The City filed a renewed motion for judgment as matter
of law based on insufficient evidence to support the verdict,
as well as a motion for a new trial based on an allegedly
12 WEAVING V. CITY OF HILLSBORO
erroneous jury instruction. The district court denied both
motions. The City timely appealed.
We reverse the denial of the motion for judgment as a
matter of law. We do not reach the denial of the motion for
a new trial.
II. Standard of Review
We review de novo a denial of a motion for judgment as
a matter of law to determine whether substantial evidence
supported the prevailing party’s claims. Erickson v. Pierce
Cnty., 960 F.2d 801, 804 (9th Cir. 1992). “Substantial
evidence is such relevant evidence as reasonable minds might
accept as adequate to support a conclusion even if it is
possible to draw two inconsistent conclusions from the
evidence.” Landes Constr. Co. v. Royal Bank of Can.,
833 F.2d 1365, 1371 (9th Cir. 1987). “It is error to deny a
judgment [as a matter of law] when it is clear that the
evidence and its inferences cannot reasonably support a
judgment in favor of the opposing party.” Erickson, 960 F.2d
at 804.
III. Discussion
The ADA forbids discrimination against a “qualified
individual on the basis of disability.” 42 U.S.C. § 12112(a).
A disability is “a physical or mental impairment that
substantially limits one or more major life activities of [the]
individual [who claims the disability],” or “a record of such
an impairment,” or “being regarded as having such an
impairment.” Id. § 12102(1). The ADA provides a
nonexhaustive list of “major life activities.” Such activities
include “caring for oneself, performing manual tasks, seeing,
WEAVING V. CITY OF HILLSBORO 13
hearing, eating, sleeping, walking, standing, lifting, bending,
speaking, breathing, learning, reading, concentrating,
thinking, communicating, and working.” Id. § 12102(2)(A).
A 2008 amendment to the ADA provides, “The definition
of disability in this chapter shall be construed in favor of
broad coverage of individuals under this chapter, to the
maximum extent permitted by the terms of this chapter.” Id.
§ 12102(4)(A). “The term ‘substantially limits’ shall be
interpreted consistently with the findings and purposes of the
ADA Amendments Act of 2008.” Id. § 12102(4)(B). Those
findings and purposes specifically express Congress’s view
that prior Supreme Court and lower court cases, as well as
Equal Employment Opportunity Commission (“EEOC”)
regulations, had given “substantially limits” an unduly narrow
construction. ADA Amendments Act of 2008, § 2(a)(4)–(8),
Pub. L. No. 110-325, 122 Stat. 3553, 3553. “An impairment
that substantially limits one major life activity need not limit
other major life activities in order to be considered a
disability.” 42 U.S.C. § 12102(4)(C). According to post-
2008 regulations promulgated by the EEOC,
An impairment is a disability . . . if it
substantially limits the ability of an individual
to perform a major life activity as compared
to most people in the general population. An
impairment need not prevent, or significantly
or severely restrict, the individual from
performing a major life activity in order to be
considered substantially limiting.
29 C.F.R. § 1630.2(j)(1)(ii). Determining whether an
impairment is substantially limiting “requires an
individualized assessment.” Id. § 1630.2(j)(1)(iv).
14 WEAVING V. CITY OF HILLSBORO
Weaving contends that the evidence at trial shows that he
is substantially limited in the major life activities of working
and of interacting with others. We take these two activities
in turn.
A. Working
The ADA specifically lists working as a major life
activity. See 42 U.S.C. § 12012(2)(A). Under our pre-2008
case law, in order to show a substantial limitation on his
ability to work, a plaintiff had to establish that his impairment
precluded working not only at a particular job, but also a class
of jobs or a broad range of jobs in various classes. See Sutton
v. United Air Lines, Inc., 527 U.S. 471, 491 (1999); Holihan
v. Lucky Stores, Inc., 87 F.3d 362, 366 (9th Cir. 1996). The
plaintiff had to present specific evidence about relevant labor
markets in order to avoid summary judgment on a claim that
he was substantially limited in his ability to work. Thornton
v. McClatchy Newspapers, Inc., 261 F.3d 789, 795 (9th Cir.
2001); Thompson v. Holy Family Hosp., 121 F.3d 537, 540
(9th Cir. 1997).
The 2008 amendments to the ADA relaxed the standard
for determining whether a plaintiff is substantially limited in
engaging in a major life activity, but Weaving cannot satisfy
even the lower standard under current law. The record does
not contain substantial evidence showing that Weaving was
limited in his ability to work compared to “most people in the
general population.” See 29 C.F.R. § 1630.2(j)(1)(ii). On the
contrary, there is evidence showing that Weaving was in
many respects a skilled police officer. Dr. Monkarsh and
Weaving both testified that Weaving had developed
compensatory mechanisms that helped him overcome
ADHD’s impediments and succeed in his career. Weaving’s
WEAVING V. CITY OF HILLSBORO 15
supervisors recognized his knowledge and technical
competence and selected him for high-level assignments. In
2007, before receiving any treatment for adult ADHD, he was
promoted to sergeant. In 2009, a psychologist and a
physician/psychiatrist both deemed Weaving fit for duty as a
police officer.
The only evidence Weaving presents regarding ADHD’s
effects on his ability to work pertains to his interpersonal
problems. He contends in his brief that “[t]he impairment of
the major life activity of ‘working’ was derivative and
resulted from the impairments of the major life activities of
communication and interaction with others.” We discuss in
a moment the lack of evidence showing a substantial
impairment of Weaving’s ability to interact with others.
Given the absence of evidence that Weaving’s ADHD
affected his ability to work, and in light of the strong
evidence of Weaving’s technical competence as a police
officer, a jury could not reasonably have concluded that
Weaving’s ADHD substantially limited his ability to work.
B. Interacting with Others
Weaving also argues that he is disabled because his
ADHD substantially limits his ability to interact with others.
Unlike many of our sister circuits, we have specifically
recognized interacting with others as a major life activity. Cf.
Bodenstab v. Cnty. of Cook, 569 F.3d 651, 656 (7th Cir.
2009) (assuming, without deciding, that interacting with
others is a major life activity); Heisler v. Metro. Council,
339 F.3d 622, 628 (8th Cir. 2003) (same); Steele v. Thiokol
Corp., 241 F.3d 1248, 1255 (10th Cir. 2001) (same); Soileau
v. Guilford of Me., Inc., 105 F.3d 12, 15 (1st Cir. 1997)
(assuming, “dubitante, that a colorable claim may be made
16 WEAVING V. CITY OF HILLSBORO
that ‘ability to get along with others’ is or may be . . . a major
life activity under the ADA”).
We wrote in McAlindin v. County of San Diego, 192 F.3d
1226 (9th Cir. 1999), that “[b]ecause interacting with others
is an essential, regular function, like walking and breathing,
it easily falls within the definition of ‘major life activity.’” Id.
at 1234. There was evidence in McAlindin that the plaintiff
suffered from panic attacks, “fear reaction[s],” and
“communicative paralysis,” which caused him to stay at
home for at least twenty hours per day. Id. at 1235. We held
that this evidence was enough to defeat the defendant’s
motion for summary judgment. Id. at 1235–36. However, we
cautioned:
Recognizing interacting with others as a major
life activity of course does not mean that any
cantankerous person will be deemed
substantially limited in a major life activity.
Mere trouble getting along with coworkers is
not sufficient to show a substantial
limitation. . . .
In addition, the limitation must be
severe . . . . We hold that a plaintiff must
show that his “relations with others were
characterized on a regular basis by severe
problems, for example, consistently high
levels of hostility, social withdrawal, or
failure to communicate when necessary.”
Id. at 1235. In Head v. Glacier Northwest, Inc., 413 F.3d
1053 (9th Cir. 2005), we held that a plaintiff who “avoid[ed]
crowds, stores, large family gatherings, and even doctor’s
WEAVING V. CITY OF HILLSBORO 17
appointments,” and who did not leave the house for weeks
after losing his job, had offered sufficient evidence of
disability to survive summary judgment. Id. at 1060–61.
The evidence in this case differs starkly from that in
McAlindin and Head. The plaintiffs in those cases were so
severely impaired that they were essentially housebound.
McAlindin’s doctor described him as “barely functional,” and
there was evidence that he “suffer[ed] from a total inability to
communicate at times.” McAlindin, 192 F.3d at 1235. Head
avoided contact with others, even members of his family, and
had difficulty even carrying on conversations over the
telephone. Head, 413 F.3d at 1061.
The evidence at trial showed that Weaving has
experienced recurring interpersonal problems throughout his
professional life. Those problems have had significant
repercussions on his career as a police officer, resulting, most
recently, in the termination of his employment with HPD.
But Weaving’s interpersonal problems do not amount to a
substantial impairment of his ability to interact with others
within the meaning of the ADA. Weaving’s ADHD may well
have limited his ability to get along with others. But that is
not the same as a substantial limitation on the ability to
interact with others. See McAlindin, 192 F.3d at 1235; see
also Jacques v. DiMarzio, Inc., 386 F.3d 192, 203 (2d Cir.
2004) (distinguishing “‘getting along with others’ (a
normative or evaluative concept) and ‘interacting with others’
(which is essentially mechanical)”).
In contrast to the plaintiffs in McAlindin and Head,
Weaving was able to engage in normal social interactions.
His interpersonal problems existed almost exclusively in his
interactions with his peers and subordinates. He had little, if
18 WEAVING V. CITY OF HILLSBORO
any, difficulty comporting himself appropriately with his
supervisors. A case like Weaving’s is what we described in
McAlindin as not giving rise to a disability claim. 192 F.3d
at 1235; see also Weidow v. Scranton Sch. Dist., 460 F.
App’x 181, 185–86 (3d. Cir. 2012) (stating that, assuming
that interacting with others was a major life activity, a
plaintiff who failed to show that her condition caused her to
have trouble getting along with people in general was not
disabled because she was not substantially limited in her
ability to interact with others); Doebele v. Sprint/United
Mgmt. Co., 342 F.3d 1117, 1131 (10th Cir. 2003) (same);
Steele, 241 F.3d at 1255 (same).
As we wrote in McAlindin, a “cantankerous person” who
has “[m]ere trouble getting along with coworkers” is not
disabled under the ADA. 192 F.3d at 1325; see also EEOC
Enforcement Guidance on the Americans with Disabilities
Act and Psychiatric Disabilities, U.S. Equal Employment
Opportunity Commission (March 25, 1997),
http://www.eeoc.gov/policy/docs/psych.html (“Some
unfriendliness with coworkers or a supervisor would not,
standing alone, be sufficient to establish a substantial
limitation in interacting with others.”). One who is able to
communicate with others, though his communications may at
times be offensive, “inappropriate, ineffective, or
unsuccessful,” is not substantially limited in his ability to
interact with others within the meaning of the ADA. Jacques,
386 F.3d at 203. To hold otherwise would be to expose to
potential ADA liability employers who take adverse
employment actions against ill-tempered employees who
create a hostile workplace environment for their colleagues.
WEAVING V. CITY OF HILLSBORO 19
Conclusion
Based on the evidence presented in this case, no
reasonable jury could have found Weaving disabled under the
ADA. His ADHD did not substantially limit either his ability
to work or to interact with others. The district court erred in
denying the City’s motion for judgment as a matter of law.
REVERSED and REMANDED.
CALLAHAN, Circuit Judge, dissenting:
A jury of Matthew Weaving’s peers sat in a courtroom for
four days. They observed and listened to his coworkers, his
supervisors, his doctors, his wife, as well as Weaving,
himself. After being properly instructed on the law of our
circuit, they dutifully studied the evidence and deliberated for
eight hours over the course of two days. They found that
Weaving was disabled and that the City of Hillsboro fired
him because of his disability in violation of the Americans
with Disabilities Act (“ADA”).
Now on appeal, the majority decides that it knows better.
It reweighs the evidence on a cold record and issues its own
diagnosis: Weaving isn’t disabled, he’s just a jerk. Therefore,
the City was free to fire him. In the course of doing so, the
majority usurps the jury’s role and guts our controlling circuit
precedent, McAlindin v. County of San Diego, 192 F.3d 1226
(9th Cir. 1999). Instead of following McAlindin, as it was
bound to do, the majority abrogates McAlindin sub silentio
and replaces our circuit’s standards with those announced in
20 WEAVING V. CITY OF HILLSBORO
another circuit’s patently incompatible decision, Jacques v.
DiMarzio, Inc., 386 F.3d 192 (2d Cir. 2004). I cannot concur.
I
The majority selectively reviews the evidence to cast
Weaving in an unsympathetic light.1 But there are two sides
to every story and the one that the jury heard was more
nuanced than the majority acknowledges.
The evidence showed that Weaving was diagnosed with
ADHD as a child but had been led to believe that he had
“outgrown” his symptoms.2 As an adult, Weaving had a
strong dedication to police work, and initially “was a strong
performer” as a patrol officer who was promoted to sergeant
over several others. However, he had difficulty in his jobs
both at the Beaverton Police Department and the Hillsboro
1
Significantly, the majority places undue emphasis on several incidents,
such as the “water wings” email Weaving sent to a coworker. Weaving’s
supervisor took no issue with the email when Weaving sent it, and the
supervisor initially said that he thought the email was “funny.”
Additionally, although Weaving occasionally used terms such as “meat
eaters” and “salad eaters” to refer to his coworkers, those terms had been
used in the local police culture for a long time and Weaving was not the
only sergeant to use them. Similarly, Weaving’s supervisor approved
Weaving’s lengthy reprimand of a subordinate who drove a marked police
car through a surveillance area, which later became the basis for the
subordinate’s grievance against Weaving. Moreover, although a sergeant
recalled Weaving disparaging the work of an officer who spoke English
as a second language, that sergeant agreed that the report that Weaving
was referring to was of “poor” quality.
2
In fact, although ADHD behavior can evolve over time, ADHD is
thought to be a “lifetime condition.” See ADHD: ‘You don’t outgrow it,’
Wash. Post, Dec. 17, 2013, at E5.
WEAVING V. CITY OF HILLSBORO 21
Police Department (“HPD”), particularly once he was
promoted beyond patrolman. In particular, his coworkers
said that: they would avoid interactions with him; he would
engage in lengthy lectures in response to simple questions; he
would send impulsive emails; he would “beat a dead horse”;
he was “socially retarded”; he made them feel intimidated
and demeaned; he lacked any awareness of the reactions of
others; and that he was hard to approach.
Lieutenant Richard Goerling’s investigation was critical
to the City’s decision to terminate Weaving. Goerling found
that Weaving had difficulty interacting with subordinates,
peers, supervisors, and informants throughout his career.
Among other things, Goerling concluded that Weaving
refused to accept responsibility for his behavior. Goerling
also repeatedly suggested that Weaving was a bully and
intimidated his coworkers. At trial, however, Goerling
admitted on the stand that he was biased against Weaving and
that his report contained numerous inaccuracies and
omissions in what were represented as interviewees’ direct
quotations. Additionally, none of the City’s witnesses
actually suggested that Weaving had bullied or intentionally
intimidated his coworkers.
Deputy Chief Chris Skinner adopted Goerling’s
characterization of Weaving as a “bully” and suggested that
he was “hostile” in his letter advising Weaving of the City’s
decision to terminate Weaving’s employment. Despite the
fact that Weaving was found “fit for duty,”3 Skinner
concluded that Weaving was critically deficient in the area of
3
The “fitness-for-duty” assessment came as a result of a psychiatrist and
a psychologist concluding that Weaving’s ADHD would not prevent him
from returning to work as a police officer.
22 WEAVING V. CITY OF HILLSBORO
emotional intelligence. At trial, Skinner testified that
Weaving’s lack of emotional intelligence was the
“foundation” of his decision. Skinner recognized that
Weaving said that he had ADHD, but suggested that
Weaving’s recent diagnosis was inconsistent with his earlier
statements indicating that he had outgrown his symptoms and
found that it did not substantially limit him in any major life
activity, including work as a law enforcement officer.
Skinner thus concluded that Weaving was not disabled and,
in any event, that HPD could not accommodate him by
returning him to duty as a sergeant.
At trial, Weaving explained that although he was aware
that he had a history of childhood problems with ADHD, he
initially did not believe that he was affected by it as an adult
and also “didn’t want to be stigmatized as a police officer
with a mental disorder.”4 Weaving’s treating psychologist,
Dr. Gary Monkarsh, testified that Weaving displayed “one of
the clearest examples of adult ADHD I’ve ever encountered
in my clinical practice in 25 years.” Dr. Monkarsh’s
testimony suggested that much of Weaving’s problematic
behavior was attributable to his ADHD, and that it could be
successfully treated with medication and therapy. Among
other things, Weaving had been able to improve his weak
emotional intelligence—a common symptom of those
suffering from ADHD—through therapy. Dr. Monkarsh
elaborated that there is a “big difference” between someone
who is simply “a jerk” and someone who has ADHD.
4
Indeed, the City’s human resources director suggested that Weaving
might prefer to resign after he notified the City that he had ADHD because
the information would “get out” to other potential law enforcement
employers.
WEAVING V. CITY OF HILLSBORO 23
Driven by his love of his profession, Weaving had been
able to become a successful police officer by developing
compensatory mechanisms, such as calendaring systems, that
allowed him to prioritize his tasks and overcome some of the
effects of his disability, like slow processing speed.
Nonetheless, Weaving was “unable to self-regulate” some of
the other symptoms of ADHD without therapy, including
impulsiveness, “not seeming to listen when spoken to, . . .
interrupting others, . . . difficulty waiting his turn, blurting out
comments without having emotional intelligence, [and lack
of] awareness of the effect that that communication would
have on his other workers at the police department.” ADHD
thus impaired Weaving’s major life activities, including his
“work.” Dr. Monkarsh also indicated that although
Weaving’s ability to articulate sounds was not impaired, his
communication was impaired because of his lack of ability to
speak with emotional intelligence.
Dr. Leslie Carter, an examining psychologist, agreed with
Dr. Monkarsh’s diagnosis. Dr. Carter explained that
Weaving had difficulty with his visual processing speed, an
ADHD symptom. Dr. Carter elaborated:
[W]hat most people find is that they are
inattentive to visual details, one thing that
they have difficulty doing is paying attention
to the facial expressions that people give. If
they take—if a person takes more than 10
seconds to register facial expressions and
respond to them, like processing speed, then
they are thought to be out of sync or
unempathetic to other people, and they don’t
feel right. And they—they make other people
irritable, because they’re not quick enough
24 WEAVING V. CITY OF HILLSBORO
with their responses, and they’re not
recognizing the other person’s needs as
quickly as they should.
Despite these diagnoses, based on a “file review” and without
an actual examination, the City’s expert testified that
Weaving did not have ADHD.
In his closing argument, Weaving’s counsel explained
that he was substantially impaired in the major life activities
of “interacting with others, working and communicating,”
and continued:
Communicate, well, what does that mean?
Well, it means a lot of what Dr. Monkarsh
said, about what Chief Skinner said. Those
are emotional intelligence things about
communicating. It means not being
impulsive, not being impulsive, where these
things are coming up over and over again,
pushing those e-mail buttons, giving those 30-
minute lectures over and over and over again.
That’s communicating.
The City argued that Weaving was not disabled.
The district court instructed the jury with the following
variant of the model instruction:
Major life activities are the normal
activities of living which a non-disabled
person can do with little or no difficulty, such
as caring for oneself, performing manual
tasks, walking, sleeping, seeing, hearing,
WEAVING V. CITY OF HILLSBORO 25
speaking, breathing, learning, engaging in
sexual relations, reproducing, interacting with
others, working, and communicating.
A limitation is substantial if the disabled
person is unable to perform the major activity
or is significantly restricted in doing so, when
compared to the average person in the general
population.
Factors to consider in deciding whether a
major life activity is substantially limited
include:
(1) the nature and severity of the
impairment;
(2) the duration or expected duration of
the impairment; and
(3) the permanent or long-term impact of
the impairment.
The jury found that Weaving had proven that he had a
disability under the ADA, that the City failed to reasonably
accommodate his disability, and that the City discharged him
because of it. Nonetheless, the jury found that Weaving had
not proven that he was regarded as having a disability. The
district court subsequently awarded equitable relief in the
form of significant back and front pay in light of Weaving’s
inability to find other employment and the court’s finding that
Weaving would not be rehired in law enforcement.
26 WEAVING V. CITY OF HILLSBORO
II
We review the district court’s denial of a renewed motion
for judgment as a matter of law de novo. Escriba v. Foster
Poultry Farms, Inc., 743 F.3d 1236, 1242 (9th Cir. 2014).
Such a motion should be granted “if the evidence, construed
in the light most favorable to the nonmoving party, permits
only one reasonable conclusion, and that conclusion is
contrary to the jury’s verdict.” Id. (citation omitted). In
reviewing such a motion, we must scrutinize the entire
evidentiary record and “draw all reasonable inferences in
favor of the nonmoving party and ‘disregard all evidence
favorable to the moving party that the jury is not required to
believe.’” Id. at 1242–43 (citation omitted).
III
A
Weaving’s claims were predicated on impairments in his
ability to communicate, interact with others, and work. He
contended that his disability substantially impaired his ability
to communicate and interact with others. His alternative
(unsuccessful) theory was that HPD perceived him as having
a communication disability that prevented him from working
as a police officer.
The ADA prohibits employers from discriminating
against qualified individuals on the basis of a disability.
42 U.S.C. § 12112. A “disability” is “a physical or mental
impairment that substantially limits one or more major life
activities of such individual.” 42 U.S.C. § 12102(1). An
individual may establish coverage under the ADA based on
an actual impairment, a record of having an impairment, or
WEAVING V. CITY OF HILLSBORO 27
being regarded as having an impairment. Id.; 29 C.F.R.
§ 1630.2(g)(2). Major life activities “include, but are not
limited to . . . speaking . . . communicating, and working.”5
42 U.S.C. § 12102(2)(A). The current version of the
regulations, effective May 24, 2011, further indicates that
major life activities “include, but are not limited to . . .
communicating, interacting with others, and working.” 29
C.F.R. § 1630.2(i)(1)(i). Additionally, the ADA provides
that: “The definition of disability . . . shall be construed in
favor of broad coverage of individuals.” 42 U.S.C.
§ 12102(4)(A). Thus, mental impairments are covered in
addition to physical impairments. 29 C.F.R.
§ 1630.2(g)(1)(i). Such impairments consist of “[a]ny mental
or psychological disorder, such as an intellectual disability
(formerly termed ‘mental retardation’), organic brain
syndrome, emotional or mental illness, and specific learning
disabilities.” 29 C.F.R. § 1630.2(h)(2). ADHD qualifies as
an “impairment” under the ADA. See Davidson v. Midelfort
Clinic, Ltd., 133 F.3d 499, 506 (7th Cir. 1998).
There was sufficient evidence to support the verdict based
on Weaving’s ADHD substantially limiting his ability to
interact with others. However characterized, the gist of
Weaving’s primary claim all along has been that he suffered
from the type of impairment that we recognized in McAlindin
v. County of San Diego, 192 F.3d 1226, 1234–35 (9th Cir.
1999). In McAlindin, the plaintiff contended that he suffered
from anxiety and panic disorders that would cause him to
become “incapacitated” and force him to lie down “at least
once a month.” Id. at 1230–31, 1241. Among other things,
during one stress-induced incident that precipitated his taking
5
This suggests that “speaking” and “communicating” are distinct major
life activities.
28 WEAVING V. CITY OF HILLSBORO
leave from work, he became agitated, accusatory, and shouted
at a supervisor. Id. at 1231.
We reversed the district court’s grant of summary
judgment on the plaintiff’s ADA claim. Id. at 1230. We
recognized that a plaintiff with an “interacting with others”
impairment could prevail “[b]ecause interacting with others
is an essential, regular function, like walking and breathing.”6
Id. at 1234. Thus, we held that a plaintiff could prevail where
he showed “that his ‘relations with others were characterized
on a regular basis by severe problems, for example,
consistently high levels of hostility, social withdrawal, or
failure to communicate when necessary.’” McAlindin,
192 F.3d at 1235 (citation omitted). Summary judgment was
inappropriate on the plaintiff’s claim because the evidence
indicated that he “suffer[ed] from a total inability to
communicate at times, in addition to a more subtle
impairment in engaging in meaningful discussion.” Id. at
1235–36. We emphasized that the plaintiff’s claims were
supported by “clinical findings” and “medical evaluations.”
Id. at 1235.
In so holding, we disagreed with the First Circuit, which
had found that “the ‘ability to get along with others’ was too
vague to be a major life activity.” Id. at 1234 (discussing
Soileau v. Guilford of Me., Inc., 105 F.3d 12, 15 (1st Cir.
6
Accord Lemire v. Silva, 104 F. Supp. 2d 80, 86–87 (D. Mass. 2000)
(“Human beings are fundamentally social beings. The ability to interact
with others is an inherent part of what it means to be human. Even if we
had the capacity to live without any human interaction, that capacity is
immaterial in view of the highly interactive society in which we live. The
ability to interact is thus both fundamental in itself and also essential to
contemporary life. Beyond doubt, the ability to interact is at least as basic
and as significant as the ability to learn or to work.”).
WEAVING V. CITY OF HILLSBORO 29
1997)). We noted that interacting with others was no more
vague than many other recognized major life activities, such
as “caring for oneself.” Id. at 1234–35. Nonetheless, we also
stated that merely being “cantankerous” or getting into
“trouble” with coworkers was not sufficient to show a
substantial limitation under the then-applicable ADA
standards. Id. at 1235. The dissent criticized the “interacting
with others” standard as “vague” and implying that “a
person’s foul temperament may no longer be a reason to deny
that person a job.” Id. at 1240.
In Head v. Glacier Northwest, Inc., 413 F.3d 1053,
1056–57, 1060–61 (9th Cir. 2005), we reversed a grant of
partial summary judgment on a similar ADA claim where the
plaintiff suffered from the periodic inability to leave his
house. He admitted that the behavior did not occur all the
time, but asserted that it occurred “‘many times’ or ‘most’ of
the time.” Id. at 1061. Although recognizing that the
plaintiff’s impairment did not appear to be as severe as the
plaintiff’s in McAlindin, we found that it was sufficient to
avoid summary judgment. Id. at 1060–61.
In contrast, in Jacques v. DiMarzio, Inc., 386 F.3d 192,
200–04 (2d Cir. 2004), the Second Circuit vacated a jury
verdict based on an instruction that tracked the McAlindin
standard. It held that in order to satisfy the standard for an
“interacting with others” impairment, a plaintiff must
establish that “the impairment severely limits the plaintiff’s
ability to connect with others, i.e., to initiate contact with
other people and respond to them, or to go among other
people—at the most basic level of these activities.” Id. at 203
(emphasis omitted). The court elaborated: “The standard is
not satisfied by a plaintiff whose basic ability to communicate
with others is not substantially limited but whose
30 WEAVING V. CITY OF HILLSBORO
communication is inappropriate, ineffective, or
unsuccessful.” Id. In announcing this standard, the Second
Circuit disparaged McAlindin, stating:
While we accept the Ninth Circuit’s
premise that “interacting with others” is a
“major life activity” under the ADA, we
conclude that the Ninth Circuit’s test for
determining when a limitation on this activity
is “substantial” for ADA purposes is
unworkable, unbounded, and useless as
guidance to employers, employees, judges,
and juries. According to the Ninth
Circuit—whose opinion in McAlindin the
district court’s jury instructions in this case
tracked—a plaintiff’s impairment in
“interacting with others” is “substantial” for
purposes of the ADA when it is
“characterized on a regular basis by severe
problems, for example, consistently high
levels of hostility, social withdrawal, or
failure to communicate when necessary,”
McAlindin, 192 F.3d at 1235, so that a mere
“cantankerous[ness],” is not enough. Id.
The Ninth Circuit’s presumed
demarcation—between persons who are
“hostile” and those who are “cantankerous”—
does not exist. . . . In a similar vein, the Ninth
Circuit’s phrase, “consistently high levels of
social withdrawal,” fails to capture the
appropriate standard.
WEAVING V. CITY OF HILLSBORO 31
Id. at 202–03 (original ellipsis omitted). The court went on
to suggest—as the dissent in McAlindin did—that the “Ninth
Circuit approach” would frustrate “the maintenance of a civil
workplace environment” by exposing employers to the risk of
litigating hostile work environment claims by “unpleasant”
employees.7 Id. at 203.
The majority distinguishes McAlindin and Head by
claiming that Weaving was “able to engage in normal social
7
Contrary to the Second Circuit’s criticisms, the McAlindin standard
relies heavily on the existence of medical evidence to show a severe and
regular impairment and does not simply give the ill-tempered free reign
to cause havoc in the workplace. As one commentator explained:
The McAlindin standard, whereby those demonstrating
severe problems on a regular basis, such as
“consistently high levels of hostility, social withdrawal
or failure to communicate when necessary,” strikes a
good balance between frivolous and significant
interacting with others claims. . . . Just as an individual
in a wheelchair “may be mobile and capable of
functioning in society but still be disabled because of a
substantial limitation on their ability to walk or run,” an
individual capable of interacting with others some of
the time who nevertheless experiences significant
difficulty in doing so likewise is substantially limited in
the ability to interact with others. When applied
diligently but not insurmountably to protect those who
can demonstrate regular and severe difficulties
communicating with others and interacting within
appropriate social parameters, this standard should
effectively negate the possibility of a floodgate of
litigation.
Wendy F. Hensel, Interacting with Others: A Major Life Activity Under
the Americans with Disabilities Act?, 2002 Wis. L. Rev. 1139, 1194
(citations and footnotes omitted).
32 WEAVING V. CITY OF HILLSBORO
interactions” and that the plaintiffs in those cases “were
essentially housebound.” Then, relying on the Jacques
standard and channeling the McAlindin dissent, it holds that
those who are capable of communicating but whose
communications may be “inappropriate, ineffective, or
unsuccessful” cannot prevail under the ADA because
otherwise, employers would be exposed to liability in the
form of actions by “ill-tempered employees who create a
hostile workplace environment for their colleagues.”
We, however, are compelled to construe the evidence in
favor of the jury’s verdict. See Escriba, 743 F.3d at 1242–43.
Here, the evidence showed that Weaving was well beyond
being merely cantankerous or troublesome. To the contrary,
he had problems in his interactions with just about everyone
throughout his career in law enforcement. Not only was he
unable to engage in meaningful communication on a regular
basis, but his ADHD made him seem unapproachable to his
coworkers, thus completely precluding some interactions.
Moreover, the majority’s suggestion that Weaving’s
“interpersonal problems” were limited to his interactions with
peers and subordinates is dead wrong. HPD’s own
investigation repeatedly suggested otherwise.8 His doctors
explained that his disability caused the severe lack of
emotional intelligence that the City invoked when it fired
him—he was not simply being “a jerk” who refused to
8
Goerling noted that supervisors regarded Weaving as “non-receptive
to constructive criticism, self-satisfying, assuming,” that Weaving filed
“formal complaints against his supervisors,” and Weaving seemed “to
create . . . interpersonal conflict everywhere he was assigned.” Skinner
concluded that Weaving was unable “to work and communicate
effectively with others in a team environment” given the “well
documented impacts of [his] past interactions with subordinates,
supervisors, and peers.”
WEAVING V. CITY OF HILLSBORO 33
control himself. The jury outright rejected the City’s
opposing argument that Weaving was not disabled.
Weaving’s relations with others were undoubtedly
characterized on a regular basis by severe problems including
“high levels of hostility,” “failure to communicate when
necessary” due to his perceived unapproachability, and a
constant inability to engage in “meaningful discussion.” See
McAlindin, 192 F.3d at 1235. That is sufficient to satisfy
McAlindin, which by its own terms, did not limit relief to the
“housebound.” Consequently, under the law of our circuit,
the jury was entitled to conclude that Weaving’s ADHD
substantially limited his ability to interact with others.9
B
The City argues that even if Weaving can prevail under
his “interacting with others” theory, the verdict should be
vacated and remanded for a new trial because he could not
prevail under his inability to “work” theory. Weaving’s ADA
claim was based on alternative predicates supporting one
legal claim. “When a general verdict may have rested on
9
Even if I were to agree that the Jacques standard is preferable as a
matter of policy, a three-judge panel cannot overrule McAlindin absent an
intervening controlling authority to the contrary. See Miller v. Gammie,
335 F.3d 889, 899 (9th Cir. 2003) (en banc). No such authority exists.
Indeed, the only intervening authorities are the amendments to the ADA
and regulations, which if anything, support a more expansive
interpretation of the ADA. See ADA Amendments Act of 2008, Pub. L.
No. 110-325, § 2(a)(4), 122 Stat. 3553 (2008) (amending the ADA to
overrule Supreme Court decisions that had “narrowed the broad scope of
protection intended to be afforded by the ADA.”); 29 C.F.R.
§ 1630.2(i)(1)(i) (including “communicating” and “interacting with
others” among the list of major life activities).
34 WEAVING V. CITY OF HILLSBORO
factual allegations unsupported by substantial evidence, we
will uphold the verdict if the evidence is sufficient with
respect to any of the allegations.” McCord v. Maguire, 873
F.2d 1271, 1273–74 (9th Cir.) (finding that a general verdict
on a single claim of medical negligence had to be upheld
where it was undisputed that four of the alleged acts of
negligence were supported by the evidence and the defendant
failed to request a special verdict form, despite the fact that
four other acts were disputed), amended on other grounds,
885 F.2d 650 (9th Cir. 1989). Accordingly, because Weaving
satisfied the McAlindin standard, it does not matter whether
he failed to establish that he had a work impairment.10
IV
Not all disabilities are obvious. To a casual observer,
Matthew Weaving may not appear to be disabled. But that
doesn’t give a panel of appellate judges license to brush away
the contrary medical evidence and jury findings. Mental
disabilities that cause socially unacceptable behavior are less
obvious than physical disabilities, but the Americans with
Disabilities Act protects those suffering from either form of
disability equally.
The majority may not like Matthew Weaving—or at least
the picture of him that it paints based on a cold record. But
the outcomes of our disabled litigants’ cases should not turn
10
I would also hold that the district court did not err in giving the
instruction providing that “[c]onduct resulting from a disability is part of
the disability,” which was fully consistent with our decisions in Gambini
v. Total Renal Care, Inc., 486 F.3d 1087, 1093 (9th Cir. 2007), and
Humphrey v. Memorial Hospitals Ass’n, 239 F.3d 1128, 1139–40 (9th Cir.
2001).
WEAVING V. CITY OF HILLSBORO 35
solely on the amount of sympathy they inspire. The law
protects the disabled, not the likeable. Cf. Planned
Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 854 (1992)
(“[N]o judicial system could do society’s work if it eyed each
issue afresh in every case that raised it. Indeed, the very
concept of the rule of law underlying our own Constitution
requires such continuity over time that a respect for precedent
is, by definition, indispensable.” (citations omitted)).
Because the majority has gutted our controlling precedent and
substituted its own factual findings for that of the jury, I
respectfully dissent.