Inability to get along with others not covered by ADA

Here's one of those cases where the employer took a tough stand and won. An engineer worked at a company for 15 years. After about 10 years of employment, he took five weeks' medical leave for depression due to breaking up with his girlfriend. The next four years were uneventful, until he got a new manager who was not pleased with his performance. About a year after being assigned this new manager, the engineer was given a verbal warning for his negative attitude.

Nine months later, the engineer and manager got into a dispute about work, and the engineer refused to follow a directive. The manager consulted with HR, then gave him a Final Written Warning/Suspension. It required that during the next four weeks, the engineer must show improvement in four performance areas, and submit a written plan to improve.

One week later, the engineer told the manager that he had been suicidal several years earlier and that he feared he was becoming ill again. Ten days later, the engineer saw a psychiatrist who diagnosed him as suffering from a bout of depression, a condition that was probably caused by receiving the warning. The next day, the engineer told his manager that he was having a difficult time interacting with other people and having a particularly hard time facilitating meetings. The manager relieved him of his responsibilities for facilitating meetings and allowed him mainly to do clerical work.

A week later, the psychiatrist wrote a letter to the employer, asking that the employee's work duties be "restricted so as to avoid responsibilities which require significant interaction with other employees," and advised that he "should not be ridiculed, provoked or startled by or in front of supervisors or other employees."

The company's first response to the doctor's letter came 11 days later, when the manager met with the engineer, told him they felt they already were providing the accommodations requested by the doctor, and notified him that since he had never provided a written improvement plan and had not shown improvement, he would be terminated as per the original written warning.

The employee sued for discrimination on the basis of disability under the ADA. He lost before the 1st U.S. Circuit Court of Appeals. The court held that episodic depression in response to life's vicissitudes is not a "permanent impairment of a major life function." The court went on to say, in dicta, that ability to get along with others is not a major life function, even though "interacting with others" is listed as a major life function in the EEOC compliance manual.

This case is a close call, and should not be relied upon by employers outside the 1st Circuit (North Eastern states). From a values perspective, we might wonder if the manager in this case did everything he could to help the employee be a success.

Case Excerpts

Soileau worked in various capacities for Guilford from 1979 until April 22, 1994. In 1986, he began working in the industrial engineering department as a time study analyst, which involved timing various aspects of production at Guilford. A subset of his duties involved facilitating Process Activity Analysis ("PAA") meetings, at which ways of improving department efficiency were discussed. In 1992, Soileau began working for a new supervisor, Matt Earnest, who found areas of Soileau's performance not to his liking. Around this time, Soileau requested a pay raise which was not granted; after this, Earnest perceived a marked deterioration in Soileau's attitude. The relationship between Soileau and Earnest quickly soured, with Soileau feeling that Earnest was harassing him. While rating Soileau's work performance as average to above average, Earnest consistently cautioned that Soileau needed to gain credibility and the respect of his co-workers. On May 10, 1993, Earnest gave Soileau a verbal warning about his negative attitude at work. Earnest requested that Soileau elicit his co-workers' views on his performance, which Soileau did. When Earnest asked Soileau to come up with a plan to address the weaknesses identified in this survey, Soileau refused, because he felt the survey did not show any problem areas. On March 22, 1994, Earnest instructed Soileau to train a co-worker to perform some of Soileau's duties in preparation for expanding the PAA program to other departments. When Soileau did not do so (because he felt the request was not authorized by the pertinent plant committees), a dispute arose between the two men. After consulting with the company's human resources manager, Earnest issued Soileau a "Final Written Warning/Suspension" on March 23, 1994. This warning listed four performance deficiencies, ordered a two day suspension, and required Soileau to evaluate his own performance and come back with an improvement plan. The warning said there would be a four week period during which Soileau's performance would be monitored. Failure to improve would lead to other consequences, which could include job termination. Earnest explained all of this to Soileau that day. The final warning proved, understandably, to be very stressful for Soileau. On March 28, Soileau told Earnest that he had been suicidal several years earlier and that he feared he was becoming ill again. Earnest had been unaware of Soileau's condition; all he had known was that in 1990 Soileau had taken a disability leave for stress. On April 6, Soileau went to see a psychologist, Dr. Dannel Starbird, whom he had seen four years earlier during a depressive episode which had been precipitated in part by his deteriorating relationship with his girlfriend. In 1990, Dr. Starbird had diagnosed Soileau with dysthymia, a chronic depressive disorder characterized by intermittent bouts of depression. On Dr. Starbird's advice, Soileau had sought and received a five week disability leave from work. He had returned to work without restriction and had no further psychological counselling until just after he received the final warning in March 1994.

Soileau told Dr. Starbird that his job was in jeopardy. Dr. Starbird diagnosed Soileau as suffering from a bout of depression, a condition that was probably caused by receiving the warning. On April 7, Soileau told Earnest that he was having a difficult time interacting with other people and having a particularly hard time facilitating the PAA meetings. Earnest agreed that, for the time being, Soileau would be relieved of his responsibilities for facilitating meetings and would mainly do clerical work. That was done. On April 12, Dr. Starbird wrote to Guilford. The letter asked that Soileau's work duties be "restricted so as to avoid responsibilities which require significant interaction with other employees," and advised that Soileau "should not be ridiculed, provoked or startled by or in front of supervisors or other employees." Earnest and Soileau met on April 21; Earnest said he felt the accommodations already made met the requests in the doctor's letter. At no time during that meeting or the four week trial period did Soileau present an improvement plan to address the four points raised in the written warning. On April 22, Soileau's employment was terminated. Earnest told Soileau it was because there had been no improvement in the four problem areas and because Soileau had not submitted an improvement plan. In May, Soileau began looking for another job. He looked for full-time employment and placed no restrictions on the type of work sought.

Soileau has successfully shown that he met the first element; his diagnosed dysthymia is a mental impairment within the meaning of the statute. See 29 C.F.R. s 1630.2(h)(2). However, the evidence Soileau produced does not suffice, as a matter of law, for a reasonable jury to conclude that he was substantially impaired in a major life activity. Soileau constructs his argument by saying that the ability to get along with others is the major life activity [FN1] in which he is substantially impaired. The regulations promulgated by the Equal Employment Opportunity Commission under the ADA do not list such an ability among the exemplars of major life activities. [FN2] Id. s 1630.2(i).

FN1. Although Soileau also argued to the district court that his ability to work was the major life activity that had been impaired, he has not pursued this claim on appeal. In any event, this claim would fail because he has not shown he is unable to work. See 29 C.F.R. s 1630.2(j)(3).

FN2. The EEOC Compliance Manual does list interacting with others as a major life activity. EEOC Compliance Manual (CCH) s 902.3, P 6883, at 5311 (1995). While this court has found reference to the EEOC Compliance Manual to be helpful on occasion, see, e.g., Katz, 87 F.3d at 31, the manual is hardly binding. Cf. Schmidt v. Safeway Inc., 864 F.Supp. 991, 1001 (D.Or.1994) (noting that the EEOC Technical Assistance Manual "is not law" and "does [not] have the force of law").

The concept of "ability to get along with others" is remarkably elastic, perhaps so much so as to make it unworkable as a definition. While such an ability is a skill to be prized, it is different in kind from breathing or walking, two exemplars which are used in the regulations. Further, whether a person has such an ability may be a matter of subjective judgment; and the ability may or may not exist depending on context. Here, Soileau's alleged inability to interact with others came and went and was triggered by vicissitudes of life which are normally stressful for ordinary people--losing a girlfriend or being criticized by a supervisor. Soileau's last depressive episode was four years earlier, and he had no apparent difficulties in the interim. To impose legally enforceable duties on an employer based on such an amorphous concept would be problematic. It may be that a more narrowly defined concept going to essential attributes of human communication could, in a particular setting, be understood to be a major life activity, but we need not address that question here. The evidence does not establish that Soileau had particular difficulty in interacting with others, except for his supervisor. Impairment is to be measured in relation to normalcy, or, in any event, to *16 what the average person does. Soileau claims he had to leave pubs and stores when they became crowded. But there is nothing extraordinary about preferring uncrowded places. Soileau performed his normal daily chores, went grocery shopping, and visited pubs. That he left pubs and stores when he felt there were too many people does not establish that the nature and severity of his impairment were substantial. While Dr. Starbird believes that Soileau's underlying disorder (dysthymia) will be a life-long condition, Soileau has failed to adduce any evidence that his impairment--the acute, episodic depression--will be long-term. His last depressive episode, in 1990, required only a five week work absence before he was able to return to his duties without restriction. During the 1994 episode, Dr. Starbird suggested, at most, that Soileau not have to run meetings for a four month period. Considering these factors both separately and together, Soileau has not met his burden. The impairment must be a significant one to trigger the Act's obligation. III

SOILEAU v. GUILFORD OF MAINE, INC.,
105 F.3d 12 (1st Cir., 1997)

Information here is correct at the time it is posted. Case decisions cited here may be reversed. Please do not rely on this information without consulting an attorney first.