By Mitchell Riese and Mitchel Wilson
In Maish v. Napalitano, U. S. District Court for the Western District of Washington denied the Border Patrol’s motion for summary judgment and permitted a Border Patrol applicant’s disability discrimination claims to go to trial. The Court concluded the applicant, Maish, had a viable claim under the federal Rehabilitation Act for disability discrimination when the Border Patrol failed to hire Maish after learning of his mental illness.
Maish was a combat veteran, served four tours in Iraq and Afghanistan, and served almost a year as an agent for Customs and Border Protection (“CBP”) on the Mexican border. He resigned and moved to the Puget Sound area and again sought employment with CBP for the Canadian border. Maish was given tentative offers for more than one position, pending aptitude tests, medical examinations, drug tests, and various other requirements. Maish suffers from PTSD, which lead the VA to rate him as 40% disabled.
Maish failed to disclose his mental illness in a medical questionnaire he submitted to CBP; he states that he told them in May and July 2009, while CBP claimed it did not receive notice of his VA rating until February 2010. Over the course of his treatment, Maish’s symptoms had markedly improved, and his doctor concluded that his symptoms were “manageable and will not be significantly exacerbated while completing job related duties.” CBP required that Maish submit to a psychological evaluation by a psychologist retained by CBP. That evaluator disagreed with Maish’s doctor and recommended CBP not hire Maish. CBP then withdrew its job offer. Maish requested a waiver of CBP’s medical requirements, but CBP immediately informed him, with no record of its reasoning, that the waiver review board had denied his request.
Maish first sought review with the Office of Personal Management, and then with the Equal Employment Opportunity Commission, both of which affirmed CBP’s decision.
The Rehabilitation Act, which applies to federal employees, and ADA share the same analysis; Maish must prove he is (1) disabled, (2) otherwise qualified for employment, and (3) suffered discrimination because of his disability.
The Court concluded that Maish may bring his claims to trial and in fact had established two elements of the claim as a matter of law. 1) He has a disability and 2) CBP withdrew its tentative job offer after learning of his mental illness. The only remaining issue is whether he is qualified for the position. Ahe court concluded the case is proper for trial for the following reasons:
A reasonable jury could conclude that Mr. Maish met all applicable mental health standards. The standards do not mandate that every mental health condition is disqualifying. They instead mandate a case-by-case inquiry into whether the condition is likely to impact job performance. A jury considering those standards could credit evidence that Mr. Maish had previously worked as a border patrol agent without incident, and the evidence from Mr. Maish’s treating physician that his mental health conditions were stable and would not interfere with his job performance. It could discredit the contractor’s two page opinion, which was based on little more than a review of Maish’s physician’s report with no effort to follow up. It could conclude that by deferring to its contractor without further inquiry, CBP abandoned its responsibility to conduct a case-by-case inquiry into the employability of applicants with mental health conditions.
The Court denied Maish’s motion for summary judgment as well, leaving the matter to be resolved at trial.
The Court’s decision in this case underlines an important principle upheld by the disability discrimination laws, which is that individual employees must be evaluated on an individual basis, and that an employer making assumptions about an individual’s physical or mental condition and how that may affect their ability to do the job does so at the risk of incurring liability for disability discrimination. The courts have been clear that whether or not an individual is qualified to perform a given job must be determined based on the individual’s own circumstances and not based on assumptions made by the employer.
