James Colby was a strong man. Emotions were kept in check in the southern military family in which he grew up. He was only about 5 feet 10 inches tall but his muscular frame and manly demeanor made him seem much taller. He had served three tours of combat duty in Vietnam. He was fervently Catholic and believed that only God could save him. He had also had his share of traumas and abuse. His third wife had just left him and taken his beloved son with her. Unfortunately for James, the past was coming to him with a vengeance and he could no longer tolerate keeping his emotions in check. Depression set in, his nascent Post Traumatic Stress Disorder manifested, and his emotional world became unwound.
After coming back from Vietnam, James had gotten a civil service job. He was a diligent worker and fast study. He took night courses to improve his standing. His job duties took him throughout Asia and he relished his job and the associated travel. Now on his 18th year, he had moved from an entry-level position to a high level within the agency.
Sometime in 1997, with the onset of depression, James started to have attendance problems. When this was brought to his attention, he spoke to his supervisor about the emotional problems he was having. He stated that he was in the midst of a divorce and had not been feeling like himself. He was counseled about the attendance problems and he responded by correcting them.
A few months later, James psychological problems began to get out of control. His depression had worsened and he was now having suicidal ideation. Long repressed memories of combat came to him in searing flashbacks. Beginning in 1997 a series of unfortunate events triggered mental/psychiatric disorders including major depression, disassociation, anxiety, panic attacks and recurrence of Post Traumatic Stress Disorder stemming from childhood traumas (including watching his father and sister die a violent death) and combat duty in Vietnam. In late 1997 James informed his then supervisor, that he was under "extreme stress" due to a number of personal issues. Upon his release he told his supervisor that he was requesting reasonable accommodation for his mental disability. James supervisors began a campaign of harassment that drove James to the edge of his sanity. The plain and simple motive for the supervisor's action was unadulterated ignorance of mental illness and a stereotyped view of "crazy people."
As a result of this single fainting incident, James was informed (citing unsubstantiated and anonymous rumors of past similar incidents) his presence in the workplace posed an unspecified danger to himself and/or others, James' access card to the building was de-activated and he was warned that his job was in jeopardy.
When James showed up at my office, two years later, he could not contain his tears. He sobbed uncontrollably for a full hour. After reviewing his file and the attendant history I was horrified by the treatment that this agency had inflicted on this man. I decided that action needed to be taken immediately and that the momentum had to change before it was too late for James.
I prepared a Federal Court complaint for violation of the Rehabilitation Act of 1973 (the federal sector equivalent of the ADA) and an attendant motion for injunctive relief. With the help of his therapist (who was also horrified by his treatment and who had referred him to me) we put together a list of 83 exhibits detailing the treatment meted out by the agency. We asked the Court to order the Agency to put James back to work, with the accommodations put forward by his therapist. In effect, we were asking the Court to determine within weeks of filing the complaint that we would likely win this case. It was an expensive and time-consuming gamble but one that I felt was our only hope of saving James.
In early 1998, James sought medical treatment for the symptoms of his mental/psychiatric disorders. In February 1998, Wesley's psychologist, formally requested accommodations for James' disabilities:
Since I am trained in ADA [Americans with Disabilities Act] issues I may be able to advise Human Relations on accommodation before and after he [Wesley] is back on duty. Please call...
At the agency's request James Doctor completed the first of many reports entitled "Documentation of a Medical Condition" which repeatedly asked for the same information. Failure to provide this information, they were told would be grounds for termination. Although this initial document clearly stated that James had a covered disability, was able to return to work, and posed no risk to himself or others in the workplace, agency management continued to require, in fact had ordered continual submissions of such documentation. Each request asked for the same information that had previously been provided. James' Doctor stated to the Court, as follows:
It appears from the correspondence I have reviewed and my direct knowledge of the events that have occurred between James Colby and his employer, that the agency has not as of this date approached in good faith his needs for reasonable accommodation. It is exceptional, bordering on bizarre, that his employer has asked for the same information from me on so many occasions (5) over such a short period of time (about a year). Furthermore, when they receive the response, have never implemented any of the recommended accommodations. This demonstrates a lack of seriousness, lack of good faith, and no commitment to their employee . . . I would characterize Mr. Colby's employer, as using tactics that appear to be intended to stall and buy time which constitutes a form of harassment and intimidation.
James and his therapist decided that perhaps a face-to-face meeting might help break the communications impasse. Accordingly, they made arrangements for a discussion of the ADA and reasonable accommodations with agency management. A two-hour meeting was held at the therapist's office with agency managers. Instead of following what seemed to be a simple plan for removing barriers in the workplace so James could perform the duties of the job he was qualified to do, the agency required yet another "Documentation of a Medical Condition" report to be submitted by James therapist. The report asked for information that had already been supplied orally and in writing fully a half dozen times.
At this point in time, not only were the requests for accommodation ignored, the agency became increasingly hostile towards James. Rather than give consideration to the accommodations requested on James' behalf, the agency's contracted a medical consultant, who wrote: "Based onÉhistory it is my opinion that Mr. Colby is not fit to work at this time and no accommodations will be helpful." Astonishingly enough, the agency doctor reached this conclusion, based on the very requests for accommodation that James and his therapist had submitted. The statement by the agency doctor, that "no accommodations will be helpful" was directly contrary to all medical evidence and the advice of James' treating psychologist. All previous documentation submitted to the agency had consistently stated that James could return to duty with the usual full set of responsibilities, with reasonable accommodations, without posing a risk to him-self or others. No reasons or rebuttal were given for the agency doctor's conclusion.
James was placed on non-duty status on August 20, 1998. On September 15, 1998, through written correspondence, James' supervisor proposed that James be placed on enforced leave for an indefinite period of time based on an "apparent incapacity to adequately perform the duties" of his position. Colby's therapist articulates the Agency's actions as follows:
I would characterize Mr. Colby's employer, as employing tactics that appear to be intended to stall and buy time, which constitutes a form of harassment and intimidation. . . It is my impression that Mr. Colby's employer simply does not believe the statements prepared by his healthcare providers, including me. The best example is their repeated inquiries about his "dangerousness". Typically, when an employer has a written record that a professional treating someone with a psychiatric disorder has stated that the individual is not dangerous they do not probe further. They accept it as a fact and employ it as a basis of their own decisions about the employee. This has not been the case for Mr. Colby because his employer still challenges the truthfulness of written statements.
The real reason that the agency was refusing to accommodate Colby's mental disability was simple prejudice. Throughout the course of their correspondence with Colby, the agency kept making reference to some alleged threat that Colby posed to himself and others. This was contrary to the reports given by his treating psychologist and psychiatrist who had thoroughly examined him.
Colby requested that management identify the specific risk he posed. Colby's supervisor responded to his request with the discriminatory statement: "The risk your presence imposes concerns your medical conditionÉ"
Shortly before filing the lawsuit, I sent a demand letter to the agency. The very same agency doctor who had previously declared Colby "not fit to work" now opined, that, in fact, Mr. Colby was now cleared to go back to work. No accommodations were provided but severe restrictions were placed on James. Return to work orders were sent directly to Mr. Colby with no copies given to counsel or to his treating psychologist. The stress of being ordered back to work without accommodation after having been harassed for two years sent Mr. Colby into a tailspin of severe depression for which he required hospitalization.
It was evident to me that the agency was all along acting on some stereotypical view that James was a "nut" who had "gone off the deep end" or was going to go "berserk" and that the agency's actions and lack of accommodations were nothing but a ruse for unlawful prejudice.
The agency was hoping that if they strung James along long enough and harassed him to no end he would eventually quit.
After I filed the complaint and attendant motion for injunctive relief, the agency's attorneys had the temerity, in the face of all their prior statements, to question whether James had "an actual disability." What ultimately made the difference in this case was the motion for injunctive relief. Having put our case forward in a powerful way, the defense was hard-pressed to justify many of the outrages in the case. Had the case proceeded on a normal schedule, the war of attrition would have ultimately cost James more of his precious mental health, let alone our collective resources.
I found a number of compelling cases stemming from the stigma associated with HIV, where the Courts had ordered employers to take back employees who had been placed on non-duty status as a result of irrational fears. In ordering the re-employment of an HIV positive teacher the Ninth Circuit Court of Appeals reasoned as follows:
Chalk's original employment was teaching hearing-impaired children in a small-classroom setting, a job for which he developed special skills beyond those normally required to become a teacher. His closeness to his students and his participation in their lives is a source of tremendous personal satisfaction and joy to him and of benefit to them. The alternative work to which he is now assigned is preparing grant proposals. This job is "distasteful" to Chalk, involves no student contact, and does not utilize his skills, training or experience. Such non-monetary deprivation is a substantial injury which the court was required to consider. . . . Several cases support petitioner's claim that his non-monetary deprivation is irreparable. The most striking parallel is E.E.O.C. v. Chrysler Corp., 546 F. Supp. 54 (E.D. Mich. 1982), aff'd, 733 F.2d 1183 (6th Cir. 1984), where the court granted a preliminary injunction ordering reinstatement of employees terminated in violation of the Age Discrimination in Employment Act. . . . irreparable injury was found in the consequent emotional stress, depression and reduced sense of well-being, which constituted "psychological and physiological distress . . . the very type of injury Congress sought to avert."
Chalk v. U.S.D.C., 840 F.2d 701, 704 (9th Cir. 1987). In this case, we argued that the agency's continued refusal to allow James to return to work was contributing to his mental deterioration and that such a refusal was also a continuing violation of the law against discrimination.
Shortly before the motion was set to be heard, the defendants offered to settle the case on very favorable terms to James Colby. He was reinstated, re-assigned to a more responsive supervisor with protection, his fees were paid for and he received an attractive amount of damages. He received full back-pay, medical costs, attorney's fees and costs. The whole litigation took under three months from filing of the complaint and ultimately resulted in a resolution that likely saved Colby's life and upheld the right to be free of invidious discrimination.