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Moreno v. County of San Joaquin2/4/2002
attempt to get him to lose control, and thereby create a reason to terminate him. Instead, the record supports only the conclusion Moreno was unfit to work as a Group Counselor I. He engaged in three separate instances of misconduct. Accordingly, his assertion the summary judgment was improper because he established a claim for retaliation is without merit.
IV. Americans with Disabilities Act (ADA)
Moreno contends he was a qualified disabled employee under the ADA and therefore the County should have accommodated him, rather than terminating him. Under the ADA, a person is protected from discrimination if he or she suffers from a disability substantially limiting one or more major life activities due to a physical or mental impairment, has a record of such an impairment, or is regarded as having such an impairment. (42 U.S.C. § 12102(2).)
Here, Moreno argues the County regarded him as being disabled, even though he denies having a disability. He contends the County perceived him as being disabled because he was required to undergo two psychological examinations for work.
Personality traits such as poor judgment, quick temper, hostility, and use of profanity do not qualify as mental disorders under the ADA. (29 C.F.R. § 1630.2(h).) A personality conflict with a supervisor or co-worker does not establish a disability within the meaning of the ADA, even if it produces anxiety and depression. (Palmer v. Circuit Court of Cook County (7th Cir. 1997) 117 F.3d 351, 352.) No facts support Moreno's contention the County regarded him as having a disability. The County ordered psychological examinations twice, only after Moreno had engaged in misconduct at work. The County conducted these examinations as part of its investigation of Moreno's misconduct, not for determining if Moreno had a disability. Such examinations do not prove the County considered him disabled. Because Moreno fails to provide any other evidence suggesting the County considered him disabled, he fails to prove he fits the definition of a disabled person under the ADA.
Moreno is also not a "qualified employee" under the ADA. The ADA only protects qualified employees, defined as employees qualified to do the job for which they were hired. (Palmer v. Circuit Court of Cook County, supra, 117 F.3d at p. 352.) Threatening other employees disqualifies an employee from the protection of the ADA. (See E.E.O.C. v. Amego, Inc. (1st Cir. 1997) 110 F.3d 135.)
Palmer v. Circuit Court of Cook County, supra, 117 F.3d 351, provides guidance on this issue. In Palmer, the plaintiff threatened a co-worker and told her supervisor to go to hell. After each incident, the plaintiff was given a suspension and after the second incident she sought psychiatric care. The plaintiff returned to work but was fired after making several threatening phone calls from home to her supervisor. Summary judgment was upheld. The court reasoned if an employer fires an employee because of unacceptable behavior, the fact the behavior was precipitated by a mental illness does not create an issue under the ADA. (Id. at p. 352.) " he ADA does not insulate emotional or violent outbursts blamed on an impairment. An employee who is fired because of outbursts at work directed at fellow employees has no ADA claim." (Hamilton v. Southwestern Bell Telephone Co. (5th Cir. 1998) 136 F.3d 1047, 1052, fn. omitted.) An employer is not required to retain a potentially violent employee. Such a requirement would place the employer on a razor's edge -- in jeopardy of violating the ADA if the employee is fired, yet in jeopardy of being deemed negligent if the employee is retained and hurts someone. (Palmer v. Circuit Court of Cook County, supra,
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