Matthew Weaving v. City of Hillsboro

Dissent by Judge CALLAHAN.

OPINION

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 Hills-boro 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…

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.

I

The…

I. Background

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

WEAVING V. CITY OF HILLSBORO

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 him as “[a]loof, abrasive, too outspoken at inappropriate times,” “forcefully outspoken,” “disgruntled,” and “intimidating,” but also stated that he “works well with co-workers” and was “friendly, helpful and hard working.” Some of his supervisors noted that he “[h]ad difficulty working in a team…