W. FLETCHER, Circuit Judge:
We must decide whether, consistent with the Americans with Disabilities Act ("ADA"), an employer properly terminated an employee who had recurring interpersonal problems with his colleagues that were attributable to attention deficit hyperactivity disorder ("ADHD"). Plaintiff Matthew Weaving worked for the Hillsboro Police Department ("HPD") in Oregon from 2006 to 2009. HPD terminated Weaving's employment in 2009 following severe interpersonal problems between Weaving and other HPD employees. Weaving contends that these interpersonal problems resulted from his ADHD. After his discharge, Weaving brought suit under the ADA. He contended that he was disabled because his ADHD substantially limited his ability to engage in two major life activities: working and interacting with others. He claimed that HPD had discharged him because of his disabilities in violation of the ADA.
The jury returned a general verdict for Weaving, finding that he was disabled and that the City of Hillsboro ("the City") had discharged him because of his disability. The City moved for judgment as a matter of law. It also moved for a new trial on the ground of improper jury instructions. The district court denied both motions, and the City appealed.
We reverse. We hold as a matter of law that the jury could not have found that ADHD substantially limited Weaving's ability to work or to interact with others within the meaning of the ADA.
The evidence presented at trial showed the following. In 1973, Weaving, then six years old, was diagnosed with "hyperkinetic activity," known today as ADHD. His pediatrician prescribed medication. Weaving stopped taking medication at age twelve because, as his mother explained to him, he seemed to have outgrown the symptoms of ADHD. He continued, however, to experience interpersonal problems throughout childhood and adolescence.
Weaving joined the Beaverton Police Department ("BPD") in Oregon as a police officer in July 1995. During the application process, he passed a battery of tests, including psychological and medical evaluations. Because he believed ADHD no longer affected him, Weaving did not disclose or discuss his childhood diagnosis and medication. Weaving's evaluations during his employment at BPD described
In 2001, while employed by BPD, Weaving became a narcotics detective on an interagency team. He was removed from the team less than a year later because of "personality conflicts" with another officer. Weaving filed a grievance and was put back on the team in 2003. While still employed by BPD, due to ongoing difficulties with colleagues Weaving left the interagency narcotics team to join an FBI task force. Weaving later learned that an FBI agent had complained to BPD about "communication issues" with him. The agent had written a letter to the BPD Police Chief stating that Weaving was "[f]requently critical and vocal about his fellow investigators" and that he had an "overly aggressive style."
Weaving was hired by HPD in 2006. During the application process, Weaving disclosed what he described as the "intermittent interpersonal communication issues" he experienced at BPD. HPD offered Weaving provisional employment, contingent upon passing a psychological evaluation. Weaving disclosed his childhood history of ADHD but did not believe at that time that ADHD continued to affect him.
Weaving's first-year evaluation at HPD was generally positive. His supervisor, Lt. Jim Kelly, praised his experience and knowledge. Lt. Kelly wrote that he had seen Weaving conduct all his investigations in a "thorough, professional, and conscientious manner." He wrote that Weaving "maintains pos[i]tive and respectful relationships with his teammates, his supervisors, and the community." Lt. Kelly noted that "[a] few members of the Department have the misconception that Weaving is arrogant," but that neither he nor members of Weaving's patrol team had found this to be the case.
Weaving applied for a promotion to sergeant in 2007. The application process included a "psychological leadership assessment," conducted by an off-site psychologist. Weaving did not mention ADHD during the application process because he believed he had outgrown it. The psychologist provided a six-page report in which he described Weaving as having a profile similar to individuals who "tend to be dominant in interpersonal relationships." He described Weaving as "socially interactive" and engaging in "cooperative and outgoing" relationships with others. He observed that Weaving "projects a comfortable social presence" and stated that Weaving "likely presents himself well in just about any type of social situation and is likely to participate with any social group." He described Weaving as "poised in his presentation and articulate in answering the scenarios."
Weaving was promoted to sergeant in April 2007. In his annual evaluation, covering the period from May 2007 through April 2008, Lt. Kelly wrote that Weaving's interactions with the public were professional and that he displayed empathy toward members of the public. Lt. Kelly wrote that Weaving's communication style ("[d]irectness") came across to officers as "arrogant" and inspired fear, but that he personally did not have difficulties with Weaving. Lt. Kelly wrote that Weaving was aware of his communication issues and seemed willing to try new approaches.
Weaving's interpersonal difficulties continued after Lt. Kelly's 2008 evaluation. One subordinate testified at trial that he found Weaving's responses to his questions
In addition, 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. He also criticized the language skills of a newly hired Latino officer who did not speak English as his first language.
In March 2009, Weaving issued a several-page disciplinary letter to a subordinate who had driven a marked police vehicle through a surveillance area. At the time of the incident, Weaving had verbally rebuked the officer over the open radio. The officer believed the letter was a disproportionate response to what he had done. He filed a grievance against Weaving with the City Human Resources Department. On April 7, 2009, the City placed Weaving on paid administrative leave pending investigation of the grievance.
Weaving testified that, while he was on leave, it occurred to him that some of his interpersonal difficulties at HPD might have been due to ADHD. He met with a mental health nurse practitioner who prescribed him a low dose of medication and referred him to Dr. Gary Monkarsh, a clinical psychologist. Dr. Monkarsh concluded that Weaving suffered from adult ADHD. Dr. Monkarsh testified at trial that people with ADHD "have a hard time understanding their emotions, the emotions of others, the ability to regulate one's emotions and the emotions of others, the ability to empathize with others." He also testified that someone with Weaving's characteristics "could be an excellent police officer."
On May 7, 2009, Dr. Monkarsh sent a letter to the HPD Police Chief stating that he had diagnosed Weaving as having ADHD. A day later, Weaving wrote to the City Human Resources director informing her of Dr. Monkarsh's diagnosis and attaching
Weaving requested "all reasonable accommodations," including reinstatement to his position as an active-duty sergeant.
On June 16, 2009, Lt. Richard Goerling wrote a memorandum summarizing the findings of the investigation of the grievance against Weaving. The investigation, conducted while Weaving was on leave, included interviews of 28 HPD employees. Lt. Goerling concluded that Weaving had "creat[ed] and foster[ed] a hostile work environment for his subordinates and peers; in particular, he has been described in terms such as tyrannical, unapproachable, noncommunicative, belittling, demeaning, threatening, intimidating, arrogant and vindictive." He wrote, "In the short time Weaving has been employed at HPD, he has demonstrated time and again unacceptable interpersonal communication that suggests he does not possess adequate emotional intelligence to successfully work in a team environment, much less lead a team of police officers."
On Lt. Goerling's recommendation, the City conducted an independent medical evaluation and evaluated Weaving's fitness for duty. Two doctors found Weaving fit for duty despite his ADHD diagnosis. On November 24, 2009, the Deputy Chief of Police sent Weaving, through his attorney, a sixteen-page letter advising him of the City's intention to terminate his employment "unless you persuade me otherwise." The letter described in detail Weaving's interpersonal problems and their effect on HPD. After a hearing, the City terminated Weaving's employment effective December 11, 2009.
Weaving sued the City in federal district court under the ADA. He alleged that (1) the City fired him because he had an impairment that limited his ability to work or interact with others, and (2) the City fired him because it regarded him as disabled. The case was tried to a jury. The City moved for judgment as a matter of law at the close of Weaving's case-in-chief. The district court denied the motion. The City renewed its motion at the close of all evidence. The district court again denied the motion.
The district court instructed the jury that Weaving was disabled if he had a mental impairment that substantially limited one or more major life activities, including "interacting with others, working and communicating." It also instructed the jury, over the City's objection, that "[c]onduct resulting from a disability is part of the disability and not a separate basis for termination."
The jury returned a verdict for Weaving, finding him disabled under the ADA. It found that the City had terminated him because of his disability. The jury awarded Weaving $75,000 in damages. The district court awarded $232,143 in back pay, $330,807 in front pay, and $139,712 in attorney's fees. The district court refused
The City filed a renewed motion for judgment as matter of law based on insufficient evidence to support the verdict, as well as a motion for a new trial based on an allegedly erroneous jury instruction. The district court denied both motions. The City timely appealed.
We reverse the denial of the motion for judgment as a matter of law. We do not reach the denial of the motion for a new trial.
We review de novo a denial of a motion for judgment as a matter of law to determine whether substantial evidence supported the prevailing party's claims. Erickson v. Pierce Cnty., 960 F.2d 801, 804 (9th Cir.1992). "Substantial evidence is such relevant evidence as reasonable minds might accept as adequate to support a conclusion even if it is possible to draw two inconsistent conclusions from the evidence." Landes Constr. Co. v. Royal Bank of Can., 833 F.2d 1365, 1371 (9th Cir.1987). "It is error to deny a judgment [as a matter of law] when it is clear that the evidence and its inferences cannot reasonably support a judgment in favor of the opposing party." Erickson, 960 F.2d at 804.
The ADA forbids discrimination against a "qualified individual on the basis of disability." 42 U.S.C. § 12112(a). A disability is "a physical or mental impairment that substantially limits one or more major life activities of [the] individual [who claims the disability]," or "a record of such an impairment," or "being regarded as having such an impairment." Id. § 12102(1). The ADA provides a nonexhaustive list of "major life activities." Such activities include "caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working." Id. § 12102(2)(A).
A 2008 amendment to the ADA provides, "The definition of disability in this chapter shall be construed in favor of broad coverage of individuals under this chapter, to the maximum extent permitted by the terms of this chapter." Id. § 12102(4)(A). "The term `substantially limits' shall be interpreted consistently with the findings and purposes of the ADA Amendments Act of 2008." Id. § 12102(4)(B). Those findings and purposes specifically express Congress's view that prior Supreme Court and lower court cases, as well as Equal Employment Opportunity Commission ("EEOC") regulations, had given "substantially limits" an unduly narrow construction. ADA Amendments Act of 2008, § 2(a)(4)-(8), Pub.L. No. 110-325, 122 Stat. 3553, 3553. "An impairment that substantially limits one major life activity need not limit other major life activities in order to be considered a disability." 42 U.S.C. § 12102(4)(C). According to post-2008 regulations promulgated by the EEOC,
29 C.F.R. § 1630.2(j)(1)(ii). Determining whether an impairment is substantially limiting "requires an individualized assessment." Id. § 1630.2(j)(1)(iv).
The ADA specifically lists working as a major life activity. See 42 U.S.C. § 12102(2)(A). Under our pre-2008 case law, in order to show a substantial limitation on his ability to work, a plaintiff had to establish that his impairment precluded working not only at a particular job, but also a class of jobs or a broad range of jobs in various classes. See Sutton v. United Air Lines, Inc., 527 U.S. 471, 491, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999); Holihan v. Lucky Stores, Inc., 87 F.3d 362, 366 (9th Cir.1996). The plaintiff had to present specific evidence about relevant labor markets in order to avoid summary judgment on a claim that he was substantially limited in his ability to work. Thornton v. McClatchy Newspapers, Inc., 261 F.3d 789, 795 (9th Cir.2001); Thompson v. Holy Family Hosp., 121 F.3d 537, 540 (9th Cir.1997).
The 2008 amendments to the ADA relaxed the standard for determining whether a plaintiff is substantially limited in engaging in a major life activity, but Weaving cannot satisfy even the lower standard under current law. The record does not contain substantial evidence showing that Weaving was limited in his ability to work compared to "most people in the general population." See 29 C.F.R. § 1630.2(j)(1)(ii). On the contrary, there is evidence showing that Weaving was in many respects a skilled police officer. Dr. Monkarsh and Weaving both testified that Weaving had developed compensatory mechanisms that helped him overcome ADHD's impediments and succeed in his career. Weaving's supervisors recognized his knowledge and technical competence and selected him for high-level assignments. In 2007, before receiving any treatment for adult ADHD, he was promoted to sergeant. In 2009, a psychologist and a physician/psychiatrist both deemed Weaving fit for duty as a police officer.
The only evidence Weaving presents regarding ADHD's effects on his ability to work pertains to his interpersonal problems. He contends in his brief that "[t]he impairment of the major life activity of `working' was derivative and resulted from the impairments of the major life activities of communication and interaction with others." We discuss in a moment the lack of evidence showing a substantial impairment of Weaving's ability to interact with others. Given the absence of evidence that Weaving's ADHD affected his ability to work, and in light of the strong evidence of Weaving's technical competence as a police officer, a jury could not reasonably have concluded that Weaving's ADHD substantially limited his ability to work.
Weaving also argues that he is disabled because his ADHD substantially limits his ability to interact with others. Unlike many of our sister circuits, we have specifically recognized interacting with others as a major life activity. Cf. Bodenstab v. Cnty. of Cook, 569 F.3d 651, 656 (7th Cir.2009) (assuming, without deciding, that interacting with others is a major life activity); Heisler v. Metro. Council, 339 F.3d 622, 628 (8th Cir.2003) (same); Steele v. Thiokol Corp., 241 F.3d 1248, 1255 (10th Cir.2001) (same); Soileau v. Guilford of Me., Inc., 105 F.3d 12, 15 (1st Cir.1997) (assuming, "dubitante, that a colorable claim may be made that `ability to get along with others' is or may be ... a major life activity under the ADA").
Id. at 1235. In Head v. Glacier Northwest, Inc., 413 F.3d 1053 (9th Cir.2005), we held that a plaintiff who "avoid[ed] crowds, stores, large family gatherings, and even doctor's appointments," and who did not leave the house for weeks after losing his job, had offered sufficient evidence of disability to survive summary judgment. Id. at 1060-61.
The evidence in this case differs starkly from that in McAlindin and Head. The plaintiffs in those cases were so severely impaired that they were essentially housebound. McAlindin's doctor described him as "barely functional," and there was evidence that he "suffer[ed] from a total inability to communicate at times." McAlindin, 192 F.3d at 1235. Head avoided contact with others, even members of his family, and had difficulty even carrying on conversations over the telephone. Head, 413 F.3d at 1061.
The evidence at trial showed that Weaving has experienced recurring interpersonal problems throughout his professional life. Those problems have had significant repercussions on his career as a police officer, resulting, most recently, in the termination of his employment with HPD. But Weaving's interpersonal problems do not amount to a substantial impairment of his ability to interact with others within the meaning of the ADA. Weaving's ADHD may well have limited his ability to get along with others. But that is not the same as a substantial limitation on the ability to interact with others. See McAlindin, 192 F.3d at 1235; see also Jacques v. DiMarzio, Inc., 386 F.3d 192, 203 (2d Cir.2004) (distinguishing "`getting along with others' (a normative or evaluative concept) and `interacting with others' (which is essentially mechanical)").
In contrast to the plaintiffs in McAlindin and Head, Weaving was able to engage in normal social interactions. His interpersonal problems existed almost exclusively in his interactions with his peers and subordinates. He had little, if any, difficulty comporting himself appropriately with his supervisors. A case like Weaving's is what we described in McAlindin as not giving rise to a disability claim. 192 F.3d at 1235; see also Weidow v. Scranton Sch. Dist., 460 Fed.Appx. 181, 185-86 (3d Cir.2012) (stating that, assuming that interacting with others was a major life activity, a plaintiff who failed to show that her condition caused her to have trouble getting along with people in general was not disabled because she was not substantially limited in her ability to interact with
As we wrote in McAlindin, a "cantankerous person" who has "[m]ere trouble getting along with coworkers" is not disabled under the ADA. 192 F.3d at 1325; see also EEOC Enforcement Guidance on the Americans with Disabilities Act and Psychiatric Disabilities, U.S. Equal Employment Opportunity Commission (March 25, 1997), http://www.eeoc. gov/policy/docs/psych.html ("Some unfriendliness with coworkers or a supervisor would not, standing alone, be sufficient to establish a substantial limitation in interacting with others."). 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. Jacques, 386 F.3d at 203. 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.
Based on the evidence presented in this case, no reasonable jury could have found Weaving disabled under the ADA. His ADHD did not substantially limit either his ability to work or to interact with others. The district court erred in denying the City's motion for judgment as a matter of law.
CALLAHAN, Circuit Judge, dissenting:
A jury of Matthew Weaving's peers sat in a courtroom for four days. They observed and listened to his coworkers, his supervisors, his doctors, his wife, as well as Weaving, himself. After being properly instructed on the law of our circuit, they dutifully studied the evidence and deliberated for eight hours over the course of two days. They found that Weaving was disabled and that the City of Hillsboro fired him because of his disability in violation of the Americans with Disabilities Act ("ADA").
Now on appeal, the majority decides that it knows better. 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, McAlindin v. County of San Diego, 192 F.3d 1226 (9th Cir.1999). Instead of following McAlindin, as it was bound to do, the majority abrogates McAlindin sub silentio and replaces our circuit's standards with those announced in another circuit's patently incompatible decision, Jacques v. DiMarzio, Inc., 386 F.3d 192 (2d Cir.2004). I cannot concur.
The majority selectively reviews the evidence to cast Weaving in an unsympathetic light.
The evidence showed that Weaving was diagnosed with ADHD as a child but had been led to believe that he had "outgrown" his symptoms.
Lieutenant Richard Goerling's investigation was critical to the City's decision to terminate Weaving. Goerling found that Weaving had difficulty interacting with subordinates, peers, supervisors, and informants throughout his career. Among other things, Goerling concluded that Weaving refused to accept responsibility for his behavior. Goerling also repeatedly suggested that Weaving was a bully and intimidated his coworkers. At trial, however, Goerling admitted on the stand that he was biased against Weaving and that his report contained numerous inaccuracies and omissions in what were represented as interviewees' direct quotations. Additionally, none of the City's witnesses actually suggested that Weaving had bullied or intentionally intimidated his coworkers.
Deputy Chief Chris Skinner adopted Goerling's characterization of Weaving as a "bully" and suggested that he was "hostile" in his letter advising Weaving of the City's decision to terminate Weaving's employment. Despite the fact that Weaving was found "fit for duty,"
At trial, Weaving explained that although he was aware that he had a history of childhood problems with ADHD, he initially did not believe that he was affected by it as an adult and also "didn't want to be stigmatized as a police officer with a
Driven by his love of his profession, Weaving had been able to become a successful police officer by developing compensatory mechanisms, such as calendaring systems, that allowed him to prioritize his tasks and overcome some of the effects of his disability, like slow processing speed. Nonetheless, Weaving was "unable to self-regulate" some of the other symptoms of ADHD without therapy, including impulsiveness, "not seeming to listen when spoken to, ... interrupting others, ... difficulty waiting his turn, blurting out comments without having emotional intelligence, [and lack of] awareness of the effect that that communication would have on his other workers at the police department." ADHD thus impaired Weaving's major life activities, including his "work." Dr. Monkarsh also indicated that although Weaving's ability to articulate sounds was not impaired, his communication was impaired because of his lack of ability to speak with emotional intelligence.
Dr. Leslie Carter, an examining psychologist, agreed with Dr. Monkarsh's diagnosis. Dr. Carter explained that Weaving had difficulty with his visual processing speed, an ADHD symptom. Dr. Carter elaborated:
Despite these diagnoses, based on a "file review" and without an actual examination, the City's expert testified that Weaving did not have ADHD.
In his closing argument, Weaving's counsel explained that he was substantially impaired in the major life activities of "interacting with others, working and communicating," and continued:
The City argued that Weaving was not disabled.
The jury found that Weaving had proven that he had a disability under the ADA, that the City failed to reasonably accommodate his disability, and that the City discharged him because of it. Nonetheless, the jury found that Weaving had not proven that he was regarded as having a disability. The district court subsequently awarded equitable relief in the form of significant back and front pay in light of Weaving's inability to find other employment and the court's finding that Weaving would not be rehired in law enforcement.
We review the district court's denial of a renewed motion for judgment as a matter of law de novo. Escriba v. Foster Poultry Farms, Inc., 743 F.3d 1236, 1242 (9th Cir. 2014). Such a motion should be granted "if the evidence, construed in the light most favorable to the nonmoving party, permits only one reasonable conclusion, and that conclusion is contrary to the jury's verdict." Id. (citation omitted). In reviewing such a motion, we must scrutinize the entire evidentiary record and "draw all reasonable inferences in favor of the nonmoving party and `disregard all evidence favorable to the moving party that the jury is not required to believe.'" Id. at 1242-43 (citation omitted).
Weaving's claims were predicated on impairments in his ability to communicate, interact with others, and work. He contended that his disability substantially impaired his ability to communicate and interact with others. His alternative (unsuccessful) theory was that HPD perceived him as having a communication disability that prevented him from working as a police officer.
The ADA prohibits employers from discriminating against qualified individuals on the basis of a disability. 42 U.S.C. § 12112. A "disability" is "a physical or mental impairment that substantially limits one or more major life activities of such individual." 42 U.S.C. § 12102(1). An individual may establish coverage under the ADA based on an actual impairment, a record of having an impairment, or being regarded as having an impairment. Id.; 29 C.F.R. § 1630.2(g)(2). Major life activities "include, but are not limited to ... speaking ... communicating, and working."
There was sufficient evidence to support the verdict based on Weaving's ADHD substantially limiting his ability to interact with others. However characterized, the gist of Weaving's primary claim all along has been that he suffered from the type of impairment that we recognized in McAlindin v. County of San Diego, 192 F.3d 1226, 1234-35 (9th Cir.1999). In McAlindin, the plaintiff contended that he suffered from anxiety and panic disorders that would cause him to become "incapacitated" and force him to lie down "at least once a month." Id. at 1230-31, 1241. Among other things, during one stress-induced incident that precipitated his taking leave from work, he became agitated, accusatory, and shouted at a supervisor. Id. at 1231.
We reversed the district court's grant of summary judgment on the plaintiff's ADA claim. Id. at 1230. We recognized that a plaintiff with an "interacting with others" impairment could prevail "[b]ecause interacting with others is an essential, regular function, like walking and breathing."
In so holding, we disagreed with the First Circuit, which had found that "the `ability to get along with others' was too vague to be a major life activity." Id. at 1234 (discussing Soileau v. Guilford of Me., Inc., 105 F.3d 12, 15 (1st Cir.1997)). We noted that interacting with others was no more vague than many other recognized major life activities, such as "caring for oneself." Id. at 1234-35. Nonetheless, we also stated that merely being "cantankerous" or getting into "trouble" with coworkers was not sufficient to show a substantial limitation under the then-applicable
In Head v. Glacier Northwest, Inc., 413 F.3d 1053, 1056-57, 1060-61 (9th Cir.2005), we reversed a grant of partial summary judgment on a similar ADA claim where the plaintiff suffered from the periodic inability to leave his house. He admitted that the behavior did not occur all the time, but asserted that it occurred "`many times' or `most' of the time." Id. at 1061. Although recognizing that the plaintiff's impairment did not appear to be as severe as the plaintiff's in McAlindin, we found that it was sufficient to avoid summary judgment. Id. at 1060-61.
In contrast, in Jacques v. DiMarzio, Inc., 386 F.3d 192, 200-04 (2d Cir.2004), the Second Circuit vacated a jury verdict based on an instruction that tracked the McAlindin standard. It held that in order to satisfy the standard for an "interacting with others" impairment, a plaintiff must establish that "the impairment severely limits the plaintiff's ability to connect with others, i.e., to initiate contact with other people and respond to them, or to go among other people — at the most basic level of these activities." Id. at 203 (emphasis omitted). The court elaborated: "The standard is not satisfied by a plaintiff whose basic ability to communicate with others is not substantially limited but whose communication is inappropriate, ineffective, or unsuccessful." Id. In announcing this standard, the Second Circuit disparaged McAlindin, stating:
Id. at 202-03 (original ellipsis omitted). The court went on to suggest — as the dissent in McAlindin did — that the "Ninth Circuit approach" would frustrate "the maintenance of a civil workplace environment" by exposing employers to the risk of litigating hostile work environment claims by "unpleasant" employees.
We, however, are compelled to construe the evidence in favor of the jury's verdict. See Escriba, 743 F.3d at 1242-43. Here, the evidence showed that Weaving was well beyond being merely cantankerous or troublesome. To the contrary, he had problems in his interactions with just about everyone throughout his career in law enforcement. Not only was he unable to engage in meaningful communication on a regular basis, but his ADHD made him seem unapproachable to his coworkers, thus completely precluding some interactions. Moreover, the majority's suggestion that Weaving's "interpersonal problems" were limited to his interactions with peers and subordinates is dead wrong. HPD's own investigation repeatedly suggested otherwise.
Weaving's relations with others were undoubtedly characterized on a regular basis by severe problems including "high levels of hostility," "failure to communicate when necessary" due to his perceived unapproachability, and a constant inability to engage in "meaningful discussion." See McAlindin, 192 F.3d at 1235. That is sufficient to satisfy McAlindin, which by its own terms, did not limit relief to the "housebound." Consequently, under the law of our circuit, the jury was entitled to conclude that Weaving's ADHD substantially limited his ability to interact with others.
The City argues that even if Weaving can prevail under his "interacting with others" theory, the verdict should be vacated and remanded for a new trial because he could not prevail under his inability to "work" theory. Weaving's ADA claim was based on alternative predicates supporting one legal claim. "When a general verdict may have rested on factual allegations unsupported by substantial evidence, we will uphold the verdict if the evidence is sufficient with respect to any of the allegations." McCord v. Maguire, 873 F.2d 1271, 1273-74 (9th Cir.) (finding that a general verdict on a single claim of medical negligence had to be upheld where it was undisputed that four of the alleged acts of negligence were supported by the evidence and the defendant failed to request a special verdict form, despite the fact that four other acts were disputed), amended on other grounds, 885 F.2d 650 (9th Cir.1989). Accordingly, because Weaving satisfied the McAlindin standard, it does not matter whether he failed to establish that he had a work impairment.
Not all disabilities are obvious. To a casual observer, Matthew Weaving may not appear to be disabled. But that doesn't give a panel of appellate judges license to brush away the contrary medical evidence and jury findings. Mental disabilities that cause socially unacceptable behavior are less obvious than physical disabilities, but the Americans with Disabilities Act protects those suffering from either form of disability equally.
The majority may not like Matthew Weaving — or at least the picture of him that it paints based on a cold record. But the outcomes of our disabled litigants' cases should not turn solely on the amount of sympathy they inspire. The law protects the disabled, not the likeable. Cf. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 854, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992) ("[N]o judicial system could do society's work if it eyed each issue afresh in every case that raised it. Indeed, the very concept of the rule of law underlying our own Constitution requires such continuity over time that a respect for precedent is, by definition, indispensable." (citations omitted)). Because the majority has gutted our controlling precedent and substituted its own factual findings for that of the jury, I respectfully dissent.
Wendy F. Hensel, Interacting with Others: A Major Life Activity Under the Americans with Disabilities Act?, 2002 Wis. L.Rev. 1139, 1194 (citations and footnotes omitted).
