Jottings By An Employer's Lawyer

Wednesday, November 10, 2004

Burden of Proof On "Direct Threat" Can Be On Employee


An ADA plaintiff making her 2nd trip to the 10th Circuit in her bid to get re-hired as a deputy sheriff comes up empty this time. In McKenzie v. Dovala, 242 F.3d 967 (10th Cir. 2001), Jade McKenzie convinced the Court that summary judgment should not have been granted against her claim of disability discrimination. Sent back for trial, she lost.

Although the jury found that she was disabled, that she was otherwise qualified, that the defendant discriminated against her because of her disability, the jury also found that she posed a "direct threat" to the health and safety of herself and her co-workers and was therefore not qualified to be a peace officer. McKenzie v. Benton (10th Cir. 11/9/04).

After 10 year as a deputy with no problems, McKenzie began to suffer:
from a variety of psychological afflictions, including post-traumatic stress disorder (PTSD) related to childhood sexual abuse by her father. As her condition worsened, she began to miss work frequently. On August 15, 1996, McKenzie fired six rounds from her off-duty revolver into the ground at her father's grave.
After being placed on leave she "suffered serious self-inflicted wounds and drug overdoses requiring several hospital visits," although those seem to have been limited to a six week period immediately following the incident at her father's grave. When her leave pay was exhausted, McKenzie resigned but was told that she could re-apply when she was able.

The Court described what happened when she did re-apply:
Sheriff Dovala told McKenzie that he was unwilling to consider her application, even if she passed a psychological evaluation, and admitted that the Office was reluctant to hire her because of "liability" concerns and fear of public uneasiness related to her past illness. Sheriff Dovala said that members of his staff told him that "based upon what they knew about what had happened in the previous year," McKenzie "would be better off in some other field."

Sheriff Dovala admitted to McKenzie that he had passed over her application when positions became available in the department between November 1996 and October 1997. He acknowledged that when McKenzie visited with him in October 1997, he had met with his supervisors, Mark Benton and Lt. Kinghorn. Without a statutory psychological evaluation, they concluded that they were against considering McKenzie's application based on their knowledge of her prior psychological problems. See Wyoming's Peace Officer Standards and Training (POST) law, Wyo. Stat. Ann. ยง 9-1-704(b)(vii). Sheriff Dovala admitted that he did not consider any individualized assessment of McKenzie's present psychological profile when she was excluded from consideration for reemployment.
While that testimony seems tailor made to show discrimination, the defendant countered with two expert witnesses, both of whose testimony was challenged in the appeal court. The first was a psychologist who had not examined McKenzie and testified that:
[H]e could not testify that McKenzie was a direct threat, but said it was "reasonable" for the Department to conclude she was a "direct threat" based on past behavior. He stated that supervisory police officers were not qualified to perform psychological exams and that such supervisors were suited only for observing behavior. He also conceded that most police supervisors are unfamiliar with the "course" of PTSD, that over half of all people who have PTSD symptoms can recover within one year and PTSD is something one can recover from. He acknowledged that a psychological exam would be a way of determining whether someone had recovered from PTSD.
The second expert was a veteran police supervisor from Chicago:
On voir dire Officer Walton said he was not offering an opinion as to the reasonableness of the defendants' conduct as it related to compliance with the ADA, but only with respect to what a reasonable police supervisor would do. Officer Walton testified that it would be "totally improper" to re-hire McKenzie because she had engaged in dangerous behavior in shooting her father's grave. He also reviewed the medical/mental health history of the plaintiff and concluded that the mental health "history" of impairment precluded the reasonableness of re-hiring McKenzie. On cross-examination, Officer Walton admitted that his opinion was based solely on his knowledge of the mental health history of McKenzie; that he claimed no expertise in PTSD other than what he had read in the VFW journal.
Both experts were challenged on appeal, but the Court held that the district court properly exercised its gatekeeping authority and that the testimony was not reversible error.

The Court also found that the charge which placed the burden of proof on the issue of whether McKenzie posed a direct threat, on her was not error. Noting the unique aspects of a peace officer's job, the Court relied on the 1st Circuits reasoning in E.E.O.C. v. Amego, Inc., 110 F.3d 135, 144 (1st Cir. 1997) where it held:
Where those essential job functions necessarily implicate the safety of others, plaintiff must demonstrate that she can perform those functions in a way that does not endanger others. There may be other cases under Title I where the issue of direct threat is not tied to the issue of essential job functions but is purely a matter of defense, on which the defendant would bear the burden...
Although trying to determine what influenced a jury based on an appellate opinion is rank speculation, I can't help but believe that the crowning testimony might have come from seven fellow officers who "testified about their contacts with McKenzie before, during and after her illness in 1996, and said they would have trouble working with McKenzie due to their knowledge of her past disability as that affected their concerns about "trust," "confidence," and "comfort."

If nothing else, this case is a good reflection of the tension inherent in trying to remove the stigma of mental illness, particularly in certain types of employment.




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