Manic depressive employee properly fired when AWOL

An employee with a history of drug rehabilitation and other medical absences was terminated for being away without leave after she did not contact her employer for over six weeks. When she finally called in, she informed the employer for the first time that she was manic-depressive (bi-polar disorder) and that her 6-week absence was caused by a change in her medication.

The employer asked her to prove her claim with doctor's certification. The note stated, in its entirety: "Catherine Brundage has been hospitalized under my care at Kaiser Mental Health Center from January 1, 1994, to [January 11, 1994] for bipolar disorder. This condition caused her to be in a state of mental confusion for approximately six weeks prior to this hospitalization, during which time she was unable to function adaptively or work at her usual job. [] She has now improved and should be able to return to work on January 20, 1994."

The employer believed that this note did not justify her failure to call in to work, terminated her employment, and denied her reinstatement since her termination was for misconduct.

The California Court of Appeals held in favor of the employer. The Court held the employer "failed to reinstate Brundage not because of her manic-depressive disorder, but because it concluded her manic-depressive disorder had not caused her unexplained six-week absence from the job."

For the purposes of this appeal, County does not contest that Brundage suffered from a disability or was subjected to the adverse action of termination. County asserts it is undisputed that Brundage was terminated because of her job abandonment. Brundage, on the other hand, claims her termination was a discriminatory act based on her mental disability, in that she was terminated because her manic-depressive disorder caused her to be absent from work for a six-week period. We agree with County.

FN2. Brundage further contends she is a "qualified individual" because her absence was caused by her disability, which could be controlled with medication, and that she is otherwise qualified to work as a deputy assessor. County presented conflicting evidence on this issue. We need not decide whether Brundage's job abandonment rendered her unqualified as we conclude that, regardless of Brundage's qualification, she was terminated for a nondiscriminatory reason.

The ADA prohibits discrimination "because of" a disability. (42 U.S.C. 12112(a).) An adverse employment decision cannot be made "because of" a disability, when the disability is not known to the employer. While knowledge of the disability can be inferred from the circumstances, knowledge will only be imputed to the employer when the fact of disability is the only reasonable interpretation of the known facts. "Vague or conclusory statements revealing an unspecified incapacity are not sufficient to put an employer on notice of its obligations under the ADA." (Morisky v. Broward County, supra, 80 F.3d at p. 448 [plaintiff's illiteracy and history of special education classes insufficient to put employer on notice of developmental disability]; see also Miller v. National Cas. Co., supra, 61 F.3d at p. 630 [absenteeism, claims of stress, and a relative's statement employee was "mentally falling apart" insufficient to put employer on notice of manic-depression]; Larson v. Koch Refining Co. (D. Minn. 1996) 920 F. Supp. 1000, 1005 [tardiness and poor work performance insufficient to impute knowledge of a disability]; Carlson v. InaCom Corp. (D. Neb. 1995) 885 F. Supp. 1314, 1322 [absenteeism and claims of occasional headache insufficient to impute knowledge of disabling migraine condition].)

BRUNDAGE v. COUNTY OF LOS ANGELES OFFICE OF THE ASSESSOR,
___Cal.App.4th ___, 97 CDOS 6740 (CA 2, August 21, 1997)

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