Nixed Disability Verdict Adds Insult to Injury

     (CN) – An Oregon police department fired a sergeant because he was “ill-tempered,” not because he had attention deficit hyperactivity disorder, a divided 9th Circuit ruled Friday.
     As a dissenting judge succinctly put it, the majority’s ruling finds that former police officer Matthew Weaving “isn’t disabled, he’s just a jerk.”
     The Hillsboro, Ore., Police Department (HPD) fired Weaving in 2009 after a history of “interpersonal problems” with subordinates and fellow officers.
     While his superiors generally considered Weaving “thorough, professional, and conscientious,” some coworkers described him as outspoken, arrogant and condescending, according to the appellate ruling.
     “Weaving referred to some HPD officers in a derogatory fashion, calling them ‘salad eaters,’ rather than ‘meat eaters’ or ‘warriors,’ to imply that the officers were weak,” the ruling states. “He also criticized the language skills of a newly hired Latino officer who did not speak English as his first language.”
     During a suspension from duty prior to his dismissal, Weaving was diagnosed with attention deficit hyperactivity disorder (ADHD). He had received the same diagnosis as a child. A clinical psychologist suggested that the disorder may have contributed to Weaving’s relative inability to get along with others.
     Weaving subsequently requested “‘all reasonable accommodations,’ including reinstatement to his position as an active-duty sergeant,” but the police department fired him anyway.
     He then claimed in a federal complaint against the department that his termination had violated the Americans with Disabilities Act (ADA). A Portland jury agreed after a four-day trial and awarded him $75,000 in damages and more than $500,000 in front and back pay.
     In reversing Friday, the appellate majority noted the difference between “getting along” with coworkers and “interacting” with them.
     “One who is able to communicate with others, though his communications may at times be offensive, ‘inappropriate, ineffective, or unsuccessful,’ is not substantially limited in his ability to interact with others within the meaning of the ADA.,” Judge William Fletcher wrote for the majority. “To hold otherwise would be to expose to potential ADA liability employers who take adverse employment actions against ill-tempered employees who create a hostile workplace environment for their colleagues.”
     Weaving failed to show that he had a “substantial impairment,” especially considering “the strong evidence of Weaving’s technical competence as a police officer,” according to the ruling.
     Writing in dissent, Judge Consuelo Callahan argued that the majority had improperly second-guessed the jury with its own facts.
     “Now on appeal, the majority decides that it knows better,” she wrote. “It reweighs the evidence on a cold record and issues its own diagnosis: Weaving isn’t disabled, he’s just a jerk. Therefore, the city was free to fire him. In the course of doing so, the majority usurps the jury’s role and guts our controlling circuit precedent.”
     “The law protects the disabled, not the likable,” Callahan added.
     Jaime Goldberg of Portland’s Makler Lemoine & Goldberg represented Weaving on appeal, and Matthew Kalmanson of Hart Wagner argued for the defendants. Neither immediately returned a request for comment on Friday.

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