Why ‘the disability made me do it’ defense didn’t fly here

Employees might have health conditions that meet the definition of “disability” under federal law – but that doesn’t mean a court’s going to buy it if they say “the disability made me do it” when they break the rules.

And if they were fired for misconduct, courts tend to reject “the disability made me do it” as an argument that could show the termination was based on illegal discrimination.

That’s what a Texas federal court found in the case that follows.

It decided that even if a firefighter’s apparent intoxication at city hall was due to low blood sugar rather than an intoxicating substance, the city didn’t fire him because of his disability but because his behavior violated several city policies.

Another significant point: He was warned after earlier misconduct that further policy violations could mean termination.

His termination stands.

He Was in Constant Pain

The Huntsville Fire Department (HFD) hired Jason January as a full-time firefighter in January 2000. Starting in 2009, he was also the HFD’s training officer.

In June 2015, after gastrointestinal problems, January had his gallbladder removed – but the problems continued.

January said he was in “constant pain”; had trouble sleeping and eating; and could be sick for days at a time with “nausea, diarrhea, severe fatigue, and incontinence.”

A fit-for-duty exam in early 2016 cleared him to work, noting he’d been instructed not to take “sedating meds while at work” and that it wasn’t clear if he’d continue to be fit to work.

He Was Caught Asking for Painkillers

Soon after his fitness test, Police Chief and Director of Public Safety Kevin Lunsford informed January he was being put on unpaid administrative leave.

January was accused of asking co-worker John Waldo to give him painkillers that Waldo had been prescribed but wasn’t taking, including via an e-message that said “something to the effect of ‘Don’t forget. If you are throwing away those meds I am low and hurting all to hell[.]’” January admitted it, saying he made “a poor choice[.]”

Lunsford concluded January had violated a city policy against illegal distribution of drugs and it had “the potential to be very damaging to the City’s reputation.” Under a separate city policy, that could be grounds for termination. His discipline included a warning that he could be fired for additional misconduct.

In December 2017, January resigned to accept a full-time position with another fire department and switched to volunteer firefighter status with the HFD.

But after the city accepted his resignation, January asked the city to revoke it and let him come back to full-time status. As the chief was about to retire, the city determined the new chief would decide January’s request.

Then January applied to become the next chief. Instead, the city chose 28-year firefighter Greg Mathis.

Mathis did reverse January’s resignation but took away his training-officer duties.

The chief also announced new positions. January applied for five of them, but younger firefighters got the jobs. He agreed they were qualified but went to human resources in November 2018 to complain about age and disability bias.

The city hired an outside counsel to investigate January’s complaint.

In February 2019, January told the city manager he was going to file a bias charge with the state’s agency and the Equal Employment Opportunity Commission. In March 2019, he went to city hall to copy documents for the charge.

The city secretary, who helped him, said he was slurring his words and scared her by saying, “When all of this comes out, they’re going to be sorry that they messed with me,” especially as she felt trapped because he was blocking her way out of the small room.

When she was able to get out, she quickly took refuge in a ladies room.

January went on to the city manager’s office. There, several people thought he seemed under the influence. They called the police, who arrived, including Lunsford.

‘It Was My Blood Sugar’

January refused to take a drug test but later said he tested his blood sugar when he got home and it was low, which can make him seem intoxicated. He also took a drug test the next day. It was negative.

Lunsford sent him a memo that said he was on paid leave because Lunsford found his “behavior was so extreme” that he “had serious doubts about your ability to perform your duties at your next scheduled shift assignment.”

The assistant chief of police investigated and reported most witnesses agreed January’s behavior that day brought discredit to himself or the department.

January’s written report of the incident said: “I was unable to sleep, and I had been throwing up most of the food that I would eat. I believe this was the cause of the appearance of a worn out and confused person.”

Meanwhile, the outside counsel investigating January’s bias complaint issued a final report that found “no factual or legal basis” for January’s discrimination, retaliation, and disability claims.

Lunsford notified January that it was reasonable to conclude from his behavior at city hall that he was under the influence and had violated several city policies. This in addition to his earlier prescription-drug misconduct warranted termination.

January appealed, citing his later negative drug test and arguing his behavior was due to “a medical issue, not a pharmaceutical one” – but the city manager upheld his termination.

Meanwhile, investigators at the state agency concluded that “the evidence does not establish that [January’s] treatment by the employer was based on Age, Record of Disability, Regarded as Disabled, Retaliation, or any other reason prohibited by the laws.”

January sued the city for:

• disability discrimination and failure to accommodate under the Americans with Disabilities Act (ADA) and the Rehabilitation Act, and
• retaliation under the ADA, the Rehabilitation Act and the Age Discrimination in Employment Act (ADEA) for filing the state/federal charge of bias.

But a Texas federal judge granted the city judgment without a trial.

The Legal Tests

To state a valid disability discrimination claim, January had to show he:

1. has a disability or was regarded as disabled
2. was qualified for the job, and
3. suffered an adverse employment decision based on disability.

To state a valid failure-to-accommodate claim, he had to show:

1. he was qualified for the job
2. his employer knew about his disability and his limitations it caused him, and
3. the employer didn’t make reasonable accommodations for his known limitations.

To be “qualified” under these tests, January had to be able to perform the essential functions of the job with or without reasonable accommodation.

And to state a valid retaliation claim, he had to show:

1. he did something the law protects from retaliation
2. he was fired, and
3. a connection between the two shows his protected act caused his termination.

‘Disability Made Me Do It’ Doesn’t Fly

The court found January showed he has a “disability” as the ADA defines that term as he has “a physical or mental impairment that substantially limits one or more major life activities” – and federal regulations have said that’s to be judged by comparison to most people in the general population.

January’s intermittent gastrointestinal issues qualify as they limit his ability to walk, sleep, eat, work, and digest – and sometimes require heavy pain medication.

The court also found he is qualified to do the job as he performed it from the time of his surgery to the time he was terminated – and pointed out he was not fired for poor performance but for the city hall incident.

But the court held his bias claims failed because he couldn’t show he was fired because of his disability.

And his retaliation claims failed because he couldn’t show the person who decided to fire him even knew he’d filed the state/federal bias charges.

As the court wrote, “The record evidence does not support the broad inference that if one employee at the Huntsville City Hall knows something, all employees do.”

Key: Misconduct and Disability Are Separate

The court added, “Even if every City Hall employee were aware that January had low blood sugar on March 28, 2019, that knowledge did not require them to ignore all misconduct.”

Courts have held that disability and misconduct are separate. The fact that misbehavior or misconduct was precipitated by a disabling condition does not stop employers from disciplining it.

Here, “January chose to drive to City Hall on a day that he was impaired – whether from lack of sleep, low blood sugar, a substance, or some combination” – and his behavior violated city policies.

As the city had warned him in 2016 that additional policy violations would result in termination, the court wrote the city had simply “acted consistently with that warning.”

It granted the city judgment without a trial.

Takeaway: The EEOC has advised that employers may discipline employees whose disabilities cause them to violate conduct rules, so long as the rule is job-related and consistent with business necessity — and all employees are required to comply with the rule. That is the lesson of this ruling.

January v. City of Huntsville, No. H-21-303, 2022 WL 2292879 (S.D. Tex. 6/24/22).