work performance for the previous twelve months.
Recognizing that Adams' own sworn testimony contradicts a finding of being disabled under the ADA, Adams' counsel opines that "when Adams suffers from depression, he often cannot remember events or incidents that occurred during that time period" and therefore his deposition testimony is entitled to "little weight." (Wicks Affirmation at page 6). In support of his opinion, counsel cites to several portions of his client's deposition testimony where, according to counsel, Adams displayed memory loss. (Wicks Affirmation at pages 6-7).
There are several problems with counsel's contentions. First, they are just that -- counsel's contentions. While counsel is a respected member of the bar, he is not a psychiatrist or mental health professional. If Adams truly contends that his sworn deposition testimony as to an indispensable element of his claim should be disregarded by the Court, then Adams must provide medical evidence in the record for the Court to make such a finding. The unsupported opinion of counsel, without more, simply will not suffice.
Second, as plaintiff's counsel points out, there were questions posed to Adams during his deposition where he was unable to specifically recall events or conversations. In responding to those questions, Adams did not hesitate to inform his examiner that he could not recall the answer to the questions posed. For the most part, however, Adams had few problems at his deposition remembering events, occurrences, or conversations relevant to his case. Given the foregoing, it is significant that Adams seemed to easily recall and testify to information at his deposition which he now argues should be given "little weight" because of "memory loss" problems.
Finally, based on the record before the Court, Adams alleged "memory problems" occurred on April 10, 1996, the date of his deposition. If, in fact, there is a medical correlation between depression and memory loss (a correlation not found in the record before the Court), then Adams' problems at his deposition indicate only that he was depressed in April, 1996 and not that he suffered from a "mental impairment" at the time he was terminated from RGH.
In sum, Adams has failed to produce sufficient evidence from which a reasonable jury could find that (1) he had a "mental impairment" at the time of his discharge from RGH and (2) that such "mental impairment" substantially limited his ability to work at the point in time when he was fired. Accordingly, Adams is not disabled within the meaning of the ADA.
2. Adams is not a "Qualified Individual" Under the ADA : Even if Adams were able to show that he had a disability within the meaning of the ADA, summary judgment would nonetheless be appropriate because Adams is unable to demonstrate the second essential element of a prima facie case under the ADA: that he is "otherwise qualified" to perform the job in question.
To determine whether Adams was "otherwise qualified" to do the job of a hospital "BIOTEC," the Court must conduct a two part analysis. First, it "must be determined whether the plaintiff can perform the essential functions of a particular job despite his handicap, and if not, whether the employer could reasonably accommodate the employee so that he could perform the essential functions despite his handicap." Husowitz v. Runyon, 942 F. Supp. 822, 833 (E.D.N.Y. 1996). Adams bears the burden of proving he is "otherwise qualified" for his job. Borkowski v. Valley Cent. School Dist., 63 F.3d 131, 138 (2d Cir. 1995).
A disabled individual is not "otherwise qualified" for a particular employment position if such individual poses a "direct threat" to the health or safety of others which cannot be eliminated by a reasonable accommodation. Altman v. New York City Health and Hospitals Corp., 903 F. Supp. 503 (S.D.N.Y. 1995), aff'd, 100 F.3d 1054 (2d Cir. 1996). A "direct threat" is a "significant risk of substantial harm to the health or safety of the individual or others." 29 C.F.R. 1630.2(r). Where the record demonstrates that an employee poses a significant risk to the health and safety of others which cannot be eliminated by reasonable accommodation, summary judgment in favor of the employer is appropriate. See e.g. E.E.O.C. v. Amego, Inc., 110 F.3d 135 (1st Cir. 1997)(affirming summary judgment against employee who suffered from depression and therefore was unqualified to perform job that required administering and monitoring medication for severely disabled residents of group home); Doe v. University of Maryland Medical System Corp., 50 F.3d 1261 (4th Cir. 1995)(neurosurgery resident who tested positive for HIV was not an otherwise qualified individual with a disability; summary judgment order affirmed); F.F. v. City of Laredo, 912 F. Supp. 248 (S.D. Tex. 1995)(summary judgment granted against bus driver who suffered from bi-polar mental disorder because his handicap posed a significant safety risk and therefore was not "otherwise qualified" for job).
Applying the principles set forth above, it is clear that Adams was not "otherwise qualified" for the BIOTEC position at the time he was terminated. The nature of Adams' essential job functions are not in dispute. As a hospital BIOTEC, Adams was responsible for (1) providing operation assistance for clinical procedures and (2) inspecting, maintaining, calibrating and repairing hospital equipment. (RGH's 56 Stm. Ex. 4). Thus, an essential function of Adams' job was to maintain and repair equipment which the hospital used daily to sustain, save, or improve patient's lives. Since negligent repairs are difficult if not impossible to detect, Adams was expected to perform his job responsibilities independently and carefully.
Between January 27, 1994 and April 19, 1994 Adams was cited for three separate instances of incorrectly repairing equipment used to care for hospital patients. The first two incidents involved "thermia units" [thermal blankets]. On both occasions, Adams failed to properly inspect and repair the units and returned them to hospital service despite the fact that they were not operating properly. Upon discovering the first negligent repair, Adams' supervisor (Marchese) gave him a verbal warning. Upon discovering the second error, Marchese gave Adams a written "Record of Warning" which specifically advised Adams that his continued failure to properly inspect and repair equipment could result in termination. Adams read and signed the first written warning acknowledging its factual accuracy. At his deposition, Adams admitted that he had failed to follow departmental policies and procedures in inspecting and repairing the thermia units. (Adams deposition at page 63.)
The third alleged infraction occurred on April 19, 1994 and involved a malfunctioning syringe pump used to feed infants. The pump had recently been repaired by Adams. After investigating the nature of the repairs Adams had completed, Marchese determined that Adams had improperly replaced a broken part with an obsolete part from another pump instead of waiting for the new part to arrive. Again, Adams received a written warning detailing the incident which Adams once again signed without comment or dispute. Although he testified at his deposition that he felt pressured into signing the warning, he conceded that "maybe" his repair of the pump violated department practices and procedures.
(Adams deposition at page 63.) The essential functions of Adams' job included being able to carefully inspect and competently repair equipment used by RGH to care for its patients. The record is clear that between January and April, 1994 Adams exhibited severe deficiencies in performing an essential function of his job. Moreover, Adams' inability to perform his job posed a "direct threat" to the safety of patients at RGH. That fact that his problems may have stemmed in part from an alleged mental health condition does not excuse Adams' failure to perform the essential functions of his job. See Little v. FBI, 1 F.3d 255, 259 (4th Cir. 1993)(employee may be fired for misconduct even if the misconduct is attributable to underlying disability).
Adams argues that even if he was incapable of performing his job, with "reasonable accommodations," any threat to patient safety could have been eliminated. According to Adams' counsel, the reasonable accommodation that RGH should have offered was "time off." Adams' position is fundamentally flawed in two respects. First, Adams never requested an accommodation at the time he was working. It is an employee's burden to inform his employer not only of his alleged disability but also about his need for assistance and to suggest a reasonable accommodation. See Borkowski v. Valley Cent. School Dist., 63 F.3d 131, 139-141 (2d Cir. 1995)(plaintiff bears burden to suggest that a reasonable accommodation is available); Willis v. Conopco, Inc., 108 F.3d 282, 284-285 (11th Cir. 1997) (plaintiff bears burden to identify reasonable accommodation - ADA does not require employer to investigate accommodation before termination). Here, it is undisputed that Adams never requested an accommodation. Moreover, the record is clear that Adams never mentioned to RGH that his depression was affecting his ability to do his job. Employers are not required to be clairvoyant as to hidden medical problems of their employees and provide assistance where none is requested. See Miller v. National Cas. Co., 61 F.3d 627, 629 (8th Cir. 1995)("before an employer must make accommodation for the physical or mental limitations of an employee, the employer must have knowledge that such a limitation exists"). Adams' eleventh hour argument that he could have performed his job with "time off" is not sufficient to infer that RGH discriminated against Adams by its failure to provide such accommodation. Fussell v. Georgia Ports Authority, 906 F. Supp. 1561, 1570 (S.D.Ga 1995)("it is simply too late to raise suggested accommodations two years later in a summary-judgment response brief") aff'd, 106 F.3d 417 (11th Cir. 1997).
Second, even if Adams had made a timely request for "time off," he has failed to demonstrate how such "time-off" would have allowed him to perform the essential functions of his job and whether an unspecified amount of time off was a "reasonable" accommodation given his job responsibilities. While a "modified work schedule" is an accommodation specifically contemplated by the ADA, 42 U.S.C. § 12111(9)(B), elimination of an essential function of the job is not. See e.g. Gilbert v. Frank, 949 F.2d 637, 644 (2d Cir. 1991)(reasonable accommodation "does not mean elimination of any of the job's essential functions"); Aquinas v. Federal Exp. Corp., 940 F. Supp. 73, 79 (S.D.N.Y. 1996)("permission to work only when [plaintiff's] illness permits" is not a reasonable accommodation); Johnson v. Foulds, 1996 WL 388412, *5 (N.D. Ill.)(depressed plaintiff's demand for an indefinite leave of absence from work was not a reasonable accommodation under the ADA), aff'd, 111 F.3d 133 (7th Cir. 1997). Moreover, errors made by employees in the BIOTEC position are difficult to detect and carry potentially life threatening consequences. Given Adam's string of errors, requiring RGH to hire an employee just to review and oversee Adams' work would not be a reasonable accommodation. See Ricks v. Xerox Corp., 877 F. Supp. 1468, 1477 (D.Kan. 1995)(ADA does not require an employer to hire a full-time helper to assist a disabled employee as a reasonable accommodation).
Because Adams failed to timely request a reasonable accommodation and failed to show how "time off" would have permitted him to perform the essential functions of his job, his ADA claim must fail.
3. Adams Was Not Terminated Because of His "Disability" :
The third and final element of a prima facie case of disability discrimination in violation of the ADA is that the employee must show that the challenged job action was taken solely by reason of the employee's disability. Here too, Adams' proof falls far short of establishing a prima facie case of discrimination.
In order for an employer to fire its employee because of a disability, the employer must "at the very least . . . have knowledge of the disability." Kolivas v. Credit Agricole, 1996 U.S. Dist. LEXIS 17478, *8, 1996 WL 684167, *3 (S.D.N.Y.); See also Monette v. Electronic Data Sys. Corp., 90 F.3d 1173, 1186, n.13 (6th Cir. 1996)(plaintiff must show employer had knowledge of disability); Morisky v. Broward County, 80 F.3d 445, 448 (11th Cir. 1996)(plaintiff can not prove discrimination without showing employer knew of disability); Hedberg v. Indiana Bell Telephone Co., 47 F.3d 928, 931-934 (7th Cir. 1995)(employer must have knowledge of disability in order to impose liability under ADA); Estwick v. U.S. Air Shuttle, 950 F. Supp. 493, 503 (E.D.N.Y. 1996)("plaintiff must present some evidence that the employer knew that the plaintiff suffered from a disability").
In the instant case, it is undisputed that Adams (1) never informed Marchese or any supervisor at RGH that he was suffering from depression, (2) never asked or arranged for RGH to receive medical information about his alleged disability, and (3) never informed Marchese or any supervisor at RGH that he visited the hospital emergency department on January 20, 1994 because he was feeling "nervous" and "depressed."
Despite the fact that he failed to inform his employer about his alleged impairment, Adams claims that RGH should have known about his disability because in early 1994 he was behaving "strangely" at times and made three mistakes in his work. However, "an employer is not obligated to observe employees for any behavior which may be symptomatic of a disability, and then divine that the employee actually suffers from a disability." Lippman v. Sholom Home, Inc., 945 F. Supp. 188, 192 (D. Minn. 1996). Adams' alleged "strange behavior" and negligent work performance could be attributable to many things besides an ADA covered disability. It simply is not reasonable to expect RGH to infer that Adams suffered from a mental disability which the ADA would require the hospital to accommodate from the limited proof of "strange behavior" and performance problems found in the record. See Miller v. National Cas. Co., 61 F.3d 627, 629-630 (8th Cir. 1995)(it is plaintiff's obligation to inform employer about mental illness, employer is not obligated "to divine the presence of a disability" from an employees bad work habits or from a "stressful family situation"); Hedberg v. Indiana Bell Tel. Co., 47 F.3d 928, 934 (7th Cir. 1995)("the ADA does not require clairvoyance"); Lippman v. Sholom Home, Inc., 945 F. Supp. at 192. ("The ADA does not place upon the employer the burden of determining why an employee fails to perform satisfactorily").
Furthermore, even if Adams could establish that RGH knew or should have known that he had a covered "mental impairment," Adams still would be unable to show that his firing was a discriminatory act by RGH. Adams has conceded that he violated RGH's policies and procedures. Pursuant to the RGH personnel manual, such violations were cause for termination. (See, Exhibit "7" annexed to Docket # 9). Discrimination under the ADA is not established if the disability caused unacceptable job performance. Cowan v. MaBstoa, 961 F. Supp. 37, 41 (E.D.N.Y. 1997). See also Teahan v. Metro-North Commuter Rail Co., 951 F.2d 511, 516 (2d Cir. 1991)("If the consequences of the handicap are such that the employee is not qualified for the position, then a firing because of that handicap is not discriminatory, even though the firing is solely by reason of the handicap"); Adamczyk v. Chief, Baltimore County Police Dept., 952 F. Supp. 259 (D. Md. 1997)(employer does not discriminate when disciplining employee for violation of employers own rules and regulations, even if misconduct was caused by disability).
While RGH may be guilty of making a swift and unfavorable employment decision, the ADA does not protect Adams unless the decision reflects discrimination based upon a disability. Because Adams cannot show that RGH fired him "because of" his disability, his ADA claim must fail.
For the foregoing reasons, defendants motion for summary judgment is granted and plaintiff's complaint is hereby dismissed.
HON. JONATHAN W. FELDMAN
UNITED STATES MAGISTRATE JUDGE
DATE: August 15, 1997
Rochester, New York