Sista v. CDC IXIS North America, Inc. (2d Cir.) Brief as amicus May 26, 2005 05-1506(L), 05-1625(XAP) IN THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT ______________________ A. MICHAEL SISTA, Plaintiff-Appellant/Cross-Appellee, v. CDC IXIS NORTH AMERICA, INC., RAMINE ROUHANI, ADIL NATHANI, ALTERT SAKES, LAWRENCE LAIER, and KAMAL MEHTA, Defendants-Appellees/Cross-Appellants. ________________________________________________ On Appeal from the United States District Court for the Southern District of New York ________________________________________________ BRIEF OF AMICUS CURIAE THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION IN SUPPORT OF PLAINTIFF AND IN FAVOR OF REVERSAL ________________________________________________ ERIC S. DREIBAND General Counsel VINCENT J. BLACKWOOD Acting Associate General Counsel BARBARA L. SLOAN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7014 Washington, D.C. 20507 (202) 663-4721 TABLE OF CONTENTS TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . .i TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . ii STATEMENT OF INTEREST. . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE ISSUE . . . . . . . . . . . . . . . . . . . . 2 STATEMENT OF THE CASE 1. Nature of the Case and Course of Proceedings. . . . . . . 2 2. Statement of Facts. . . . . . . . . . . . . . . . . . . . 3 3. District Court's Decision . . . . . . . . . . . . . . . . 7 STATEMENT OF STANDARD OF REVIEW. . . . . . . . . . . . . . . . 8 ARGUMENT THE DISTRICT COURT ANALYZED DEFENDANTS' DIRECT THREAT DEFENSE UNDER IMPROPER LEGAL STANDARDS . . . . . . . . . . . . . . . . . . . . . .8 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . 14 CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . 15 CERTIFICATE OF SERVICE TABLE OF AUTHORITIES CASES Page(s) Borkowski v. Valley Central School District, 63 F.3d 131 (2d Cir. 1995). . . . . . . . . . . . . . . . 13 Bragdon v. Abbott, 524 U.S. 624 (1999) . . . . . . . . . . . . . . . 9, 10, 12 Branham v. Snow, 392 F.3d 896 (7th Cir. 2004). . . . . . . . . . . . . . . 11 Chevron USA v. Echazabal, 536 U.S. 73 (2002). . . . . . . . . . . . . . . . . . 10-11 Donovan v. Milk Marketing, Inc., 243 F.3d 584 (2d Cir. 2001) . . . . . . . . . . . . . . . 11 Hamlin v. Charter Township of Flint, 165 F.3d 426 (6th Cir. 1999). . . . . . . . . . . . . . 9-10 Hargrave v. Vermont, 340 F.3d 27 (2d Cir. 2003). . . . . . . . . . . . . . . . 11 Hutton v. Elf Atochem North America, 273 F.3d 884 (9th Cir. 2001). . . . . . . . . . . . . . . 11 Lovejoy-Wilson v. NOCO Motor Fuel, 263 F.3d 208 (2d Cir. 2001) . . . . . . . . . . . . . passim School Board of Nassau County v. Arline, 480 U.S. 273 (1987) . . . . . . . . . . . . . . . . . . . 9 STATUTES and REGULATIONS Title I of the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq. . . . . . . . . . . . . . passim 42 U.S.C. § 12111(3). . . . . . . . . . . . . . . . . . . 9 42 U.S.C. § 12111(8). . . . . . . . . . . . . . . . . . . 13 42 U.S.C. § 12113(b). . . . . . . . . . . . . . . . . . . .9 29 C.F.R. § 1630.2(r). . . . . . . . . . . . . . . . 9, 10-11, 12 OTHER AUTHORITY EEOC Interpretive Guidance to ADA Title I Regulations 29 C.F.R. Pt. 1630, App. § 1630.2(r). . . . . . . . . . . 10 29 C.F.R. Pt. 1630, App. § 1630.15(b)(2). . . . . . . . . 11 EEOC: EEOC Enforcement Guidance on Psychiatric Disabilities and the ADA, 8 FEP Manual (BNA) 405:7461 (March 25, 1997) . . . . . . 13 IN THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT ______________________ Nos. 05-1506 & 05-1625 ______________________ A. MICHAEL SISTA, Plaintiff-Appellant/Cross-Appellee, v. CDC IXIS NORTH AMERICA, INC., et al., Defendants-Appellees/Cross-Appellants. ________________________________________________ On Appeal from the United States District Court for the Southern District of New York ________________________________________________ BRIEF OF AMICUS CURIAE THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION IN SUPPORT OF PLAINTIFF ________________________________________________ STATEMENT OF INTEREST The Equal Employment Opportunity Commission is the agency charged by Congress to administer, interpret and enforce Title I of the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq. ("ADA"), and other federal employment discrimination laws. This case raises important questions regarding the legal standards for determining whether an individual poses a direct threat under the ADA. In considering the defendant's motion for summary judgment in this case, the district court required the plaintiff to establish that he did not constitute a direct threat as an element of his prima facie case and, accordingly, required plaintiff to carry the burden of proof on this affirmative defense. This and other aspects of the court's analysis are contrary to the Commission's ADA regulations; they are also inconsistent with caselaw from this Court and the Supreme Court. We therefore offer our views to this Court. STATEMENT OF THE ISSUE Whether, in determining that plaintiff posed a "direct threat" within the meaning of the ADA, the district court erred in placing the burden of proof on plaintiff and in failing to apply the legal standards set forth in the ADA regulations and applicable caselaw. STATEMENT OF THE CASE 1. Nature of the Case and Course of Proceedings These are cross-appeals from a final judgment dismissing plaintiff's suit under the Family and Medical Leave Act ("FMLA"), the ADA and state law, and denying the defendant's request for attorney's fees. Plaintiff brought this suit against his former employer, CDC Ixis North America ("CDC"), as well as several individuals, on May 6, 2002, alleging inter alia that he was terminated in violation of Title I of the ADA. District court docket number ("R.")<1>. In July 2003, defendants moved for summary judgment and requested attorney's fees. R.37-39; see also R.59-61 (motion for fees and costs). Plaintiff opposed the motion. R.44- 46. On February 15, 2005, the district court issued a Memorandum Decision and Order granting summary judgment to defendants but denying their request for attorney's fees. R.67 ("Mem."). On the ADA claim, the court held that, as a matter of law, plaintiff could not show that he was "otherwise qualified" because he posed a direct threat. Id. Final judgment was entered on February 16, 2005. R.48. Plaintiff filed a timely notice of appeal on March 14, 2005 (R.49), and defendants cross-appealed on March 25, 2005. R.70. 2. Statement of Facts CDC Ixis North America is the American subsidiary of a large French investment bank. R.38, Defs' Rule 56.1 Statement #2. In the spring of 2001, Michael Sista was a highly compensated employee in the structured credit department, newly promoted to a management position, under the supervision of Adil Nathani. Mem. at 2. In early May, one of Sista's subordinates, Kamal Mehta, overheard a telephone conversation between Sista, who was away from the office, and another subordinate; Sista remarked that they should get a third employee to "beat [Mehta] up on the details" of a particular transaction that Mehta was handling. Id. Like all calls to the structured credit desk, this phone call was recorded. Id. Mehta complained about the remark to Nathani who demoted Sista. Id. at 3. Thereafter, Sista became increasingly depressed and angry. At one point, he asked Nathani's boss, Ramine Rouhani, for a transfer to another department, but Rouhani denied the request, reasoning that the department did not "export" its personnel problems. R.45, Krouner Affidavit ("Aff."), Exhibit ("Exh.")L (Rouhani Dep. 82-83). In late May, Sista told Nathani that he needed to speak to personnel about a "mental health issue" that did not affect his work. Mem. at 3. Nathani responded that if Sista's condition impacted his ability to work, his transactions would be reassigned. Id. at 3-4. Sista also asked Nathani for the names of some psychiatrists. Id. at 3. Although Nathani agreed to supply some names, Sista actually found a psychiatrist on his own. Id. at 3-4. After his initial visits with the psychiatrist, Sista was diagnosed as suffering from a major depressive disorder and prescribed medication. Id.; Krouner Aff., Exh. M (Richardson Dep. 22). In the morning of June 6, Sista met with the head of personnel, Lawrence Laier, to ask that the company pay for the psychiatrist. As the meeting progressed, Sista grew increasingly emotional; he later admitted to his wife that he "blew up" and "yelled" at Laier. Mem. at 4. That afternoon, Sista was called to a meeting with Nathani, Laier and in-house counsel, where he was pressed to take some time off. Id. Sista became more and more agitated during the meeting, insisting that he be permitted to hear the tape of the disputed May phone conversation and complaining that people were violating his privacy by listening to his other tapes. Id. Finally, he said to Nathani: "Did Kamal [Mehta] specifically tell you [the May conversation] took place at 11 o'clock? Cause if you pulled more than one tape, I swear to Christ . . . I swear to Christ I'm comin' for you." Id.; R.40, Rubin Aff., Exh. O, at 11-12. At that point, Laier stepped in and said: "Mike, this meeting is over . . ., you've gone way out of bounds. I – you are – at this point on leave. You'll be paid, you're on leave. . . . I will accept . . . [y]our doctor's assessment that you are able to return to work." Id. at 13-14; Mem. at 5. Sista was not escorted out of the building (Krouner Aff., Exh.J (Zakes Dep. 257)), but his building pass was deactivated. Mem. at 5. Nathani remained at work for two hours after Sista left, out of a stated concern that Sista might harm him. Mehta and another employee were also warned that Sista was "potentially dangerous". Id. Later that evening, Sista discovered that he no longer had access to the company computer system. He then slit his left wrist, severing an artery. Mem. at 5. He was admitted to the hospital and, after his wife spoke to Laier, placed on FMLA leave. Id. at 5-6. Laier informed Sista that he would not be allowed to return without "a letter from an appropriate medical professional in the mental health field indicating that you are able to perform in an appropriate manner in the workplace." Id. at 6. Throughout the summer, Sista continued to see the psychiatrist and was treated with anger-management drugs. See Mem. at 6-7 & n.3. In mid-August, the psychiatrist wrote a note saying that Sista would likely be able to return to work after Labor Day, September 3. Id. at 7 n.3. Laier subsequently informed Sista that his FMLA leave would expire on August 30, and his job would not be held open after that time. Rubin Aff., Exh. B9 (letter). Accordingly, with the doctor's permission, Sista indicated that he would return on August 30, some five days earlier than stated in the doctor's mid-August letter. Mem. at 6-7. On hearing this plan, Laier advised Sista to remain out for two more weeks, using accrued vacation, because Nathani was away. When Nathani returned, he told Laier and Rouhani that he did not want Sista back at all because Nathani "felt he was in danger" due to Sista's earlier threat, and, because Sista had never apologized or recanted the threat, his return would be disruptive to the structured credit group. Mem. at 7. Accordingly, Sista was terminated. Id. Sista brought suit alleging inter alia that he was terminated because of his disability – actual or perceived. CDC moved for summary judgment, arguing that summary judgment on the ADA claim was appropriate because Sista did not have a substantially limiting impairment, nor was he regarded as having such an impairment; CDC also argued that Sista was not "otherwise qualified" because he posed a direct threat to the safety of his co-workers. Mem. at 9. 3. District Court's Decision The district court granted summary judgment for CDC on Sista's ADA claim. The court did not address CDC's argument that Sista was not covered by the ADA because he did not have a disability. Mem. at 9 n.5. Instead, the court turned directly to the question of whether Sista was "otherwise qualified." The court stated that "Plaintiff bears the burden of production and persuasion with respect to whether he is otherwise qualified." Mem. at 9. According to the court, "Plaintiff is not otherwise qualified unless he is able, with or without assistance, to perform the essential functions of the job in question." Id. at 9-10. The court added, "[w]here a plaintiff poses a direct threat to the health or safety of other individuals, courts have held that [he] was not otherwise qualified to perform his or her job." Id. at 10. A "direct threat," the court continued, "is a significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation." Id. Applying that standard, the court concluded that, "drawing all reasonable inferences in favor of Plaintiff, Plaintiff as a matter of law cannot show that he was ‘otherwise qualified' to perform his job at CDC." Mem. at 10. The court based this conclusion on the evidence that Plaintiff "told his wife that he ‘blew up' and ‘yelled' during a meeting with the HR Director;" that he "threatened to come after his boss;" that his "threatening words were violent;" and that "Plaintiff committed physical violence against himself." Id. The court stated that, although "Plaintiff contends that his threat was professional . . . his conduct nevertheless violated CDC policy and renders him not otherwise qualified." Id. Finally, the court added, "Plaintiff has proffered no plausible accommodation that would have eliminated his threatening conduct at the workplace." Id. at 11 n.6. The court rejected plaintiff's argument that defendant's proffered explanation for his termination – the threat – was pretextual. Mem. at 11. The court reasoned that plaintiff's actions "provided a reasonable basis to terminate his employment." Id. at 12. Nor, in the court's view, was there "evidence from which it could be inferred that Defendants' reason for terminating Plaintiff was discriminatory animus because of his mental or emotional disability." Rather, "Plaintiff's behavior was simply conduct which an employer could legitimately determine was inappropriate and unacceptable in the workplace." Id. STATEMENT OF STANDARD OF REVIEW This Court reviews the grant of summary judgment de novo, construing the evidence in the light most favorable to the non-moving party. Lovejoy-Wilson v. NOCO Motor Fuel, Inc., 263 F.3d 208, 212 (2d Cir. 2001). ARGUMENT THE DISTRICT COURT ANALYZED DEFENDANTS' DIRECT THREAT DEFENSE UNDER IMPROPER LEGAL STANDARDS. The district court concluded that Michael Sista could not establish a prima facie case of discrimination under the ADA because, in the court's view, he posed a direct threat and, so, "as a matter of law," could not show that he was otherwise qualified. In reaching this decision, however, the court misallocated the burden of proof and failed to apply the legal standards set forth in the ADA regulations and applicable caselaw. As the district court correctly recognized, an individual who poses a direct threat to the health or safety of others in the workplace is not entitled to the protections of the ADA. See, e.g., Bragdon v. Abbott, 524 U.S. 624, 648 (1999); Hamlin v. Charter Township of Flint, 165 F.3d 426, 431 (6th Cir. 1999) (citing 42 U.S.C. § 12113(b)). A "direct threat" means "a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation." 29 C.F.R. § 1630.2(r); see also 42 U.S.C. § 12111(3); Lovejoy-Wilson v. NOCO Motor Fuel, 263 F.3d 208, 220 (2d Cir. 2001) (quoting regulation). Inclusion of the direct- threat provision in the ADA stems from the recognition in School Board of Nassau County v. Arline, 480 U.S. 273, 287 (1987), of "the importance of prohibiting discrimination against individuals with disabilities while protecting others from significant health and safety risks, resulting, for instance, from a contagious disease." Bragdon, 524 U.S. at 649. To protect disabled individuals from discrimination based on "prejudice, stereotypes, or unfounded fear" (Lovejoy-Wilson, 263 F.3d at 220), however, the legal standard for establishing a direct threat defense is demanding. The key inquiry is not "whether a risk exists, but whether it is significant." Bragdon, 524 U.S. at 649. Thus, this Court explained, an employer such as CDC may not deny an employment opportunity to an individual with a disability merely because of a "speculative or remote" risk; there must instead be a "high probability" of "substantial harm." Lovejoy- Wilson, 263 F.3d at 220 (citing Hamlin, 165 F.3d at 432). Moreover, before excluding an individual such as Sista from the workplace on the ground that he poses a "direct threat," an employer such as CDC must conduct an "individualized assessment of [the individual's] present ability to safely perform the essential functions of [his] job." Chevron USA v. Echazabal, 536 U.S. 73, 86 (2002); Lovejoy-Wilson, 263 F.3d at 220. In making this assessment, an employer's subjective belief, even if maintained in good faith, would not relieve it of liability. Bragdon, 524 U.S. at 649. Rather, a determination that the individual poses a direct threat must be based on a "‘reasonable medical judgment that relies on the most current medical knowledge and/or the best available objective evidence.'" Echazabal, 536 U.S. at 86 (quoting with approval 29 C.F.R. § 1630.2(r)); see also 29 C.F.R. Pt. 1630, App. § 1630.2(r) (EEOC Interpretive Guidance stating that direct threat consideration "must rely on objective factual evidence," which may include "input from the individual with a disability, the experience of the individual with a disability in previous similar positions, and opinions of medical doctors, rehabilitation counselors, or physical therapists who have expertise in the disability involved and/or direct knowledge of the individual with the disability"). Factors relevant to this determination include "(1) the duration of the risk; (2) the nature and severity of the potential harm; (3) the likelihood that the potential harm will occur; and (4) the imminence of the potential harm." See 29 C.F.R. § 1630.2(r)); Echazabal, 536 U.S. at 86; Lovejoy-Wilson, 263 F.3d at 220. Finally, as this Court has recognized, "direct threat" is an "affirmative defense." Lovejoy-Wilson, 263 F.3d at 219. It is, therefore, the "defendant's burden to establish that a plaintiff poses a ‘direct threat' of harm to others," rather than the plaintiff's burden to prove that he does not. Hargrave v. Vermont, 340 F.3d 27, 35 (2d Cir. 2003); 29 C.F.R. Pt. 1630, App. § 1630.15(b)(2). Accord Hutton v. Elf Atochem N. Am., 273 F.3d 884, 893 (9th Cir. 2001); Branham v. Snow, 392 F.3d 896, 907 (7th Cir. 2004); cf. Donovan v. Milk Mktg., Inc., 243 F.3d 584, 586 (2d Cir. 2001) (noting, in context of sexual harassment claim, that Second Circuit's references to "affirmative defense" signify that defendant bears burden of persuasion). Notwithstanding this controlling precedent, in determining that Sista posed a direct threat in this case, the district court failed to apply this settled legal standard. According to the court, Nathani considered plaintiff to be dangerous because, if allowed to return, he might make good on his threat to "com[e] for" Nathani. See Mem. at 7. The court also opined that the threat to Nathani was "violent" and plaintiff's suicide attempt was also violent. Id. at 10. However, the court made no attempt to assess whether, at the time he was seeking to return to work after his leave, Sista would pose a significant risk of substantial harm to himself or others, in light of the four factors set out in the regulations and cited with approval in Lovejoy-Wilson – that is, the duration of the risk, the nature and severity of the potential harm, and the likelihood and imminence of the potential harm. See 29 C.F.R. § 1630.2(r); Lovejoy-Wilson, 263 F.3d at 220. The only medical evidence mentioned in the court's decision are the letters from Sista's psychiatrist; the most "current" one of those released Sista to return to work. There is no suggestion, for example, that CDC asked Sista to be reassessed by an independent psychiatrist or obtained follow-up detailed documentation from his psychiatrist. As noted above, subjective beliefs, even if held in good faith, are not sufficient by themselves to establish a direct threat. Bragdon, 524 U.S. at 649. Furthermore, the district court effectively and improperly imposed on Sista the burden of proving that he did not pose a direct threat as an element of his prima facie case and, so, erroneously allocated the burden of proof on direct threat to Sista. See Mem. at 9-11. Specifically, the court reasoned that an individual who poses a direct threat is not "otherwise qualified," and, to establish a prima facie case, a plaintiff "bears the burden of production and persuasion with respect to whether he is otherwise qualified." Mem. at 10. This reasoning is flawed. An individual is "qualified", for purposes of establishing a prima facie case under the ADA, if, "with or without reasonable accommodation, [he] can perform the essential functions of the employment position [he] holds or desires." See 42 U.S.C. § 12111(8); Lovejoy-Wilson, 263 F.3d at 215-17; Borkowski v. Valley Cent. Sch. Dist., 63 F.3d 131, 135 (2d Cir. 1995) (defining "otherwise qualified" under Rehabilitation Act). An employer such as CDC may argue that, despite the evidence that he meets this standard, the individual was properly excluded from the workplace because he would pose a direct threat to himself or others, but that is, as this Court recognized, an affirmative defense as to which the employer bears the burden of production and persuasion. See Lovejoy-Wilson, 263 F.3d at 219. Of course, an employer may discipline or terminate an individual who, because of disability, makes a threat against other employees if the same discipline would be imposed on a non-disabled employee engaged in the same conduct. See EEOC: EEOC Enforcement Guidance on Psychiatric Disabilities and the ADA at Question/Answer #30, 8 FEP Manual (BNA) 405:7461, 7476 (March 25, 1997), available at www.eeoc.gov/policy/guidance/html. Here, the district court stated that Sista's conduct violated company policy; that defendant "could legitimately" have determined that the conduct was "inappropriate and unacceptable;" and that termination on that basis would be "reasonable." Mem. at 10, 12. If the evidence established that Sista's termination was in fact based on a non- discriminatory application of CDC's conduct standards, CDC could be entitled to summary judgment on that ground. However, the analysis of whether, because of a disability, Sista posed a "direct threat" within the meaning of the ADA is quite different from the analysis of whether he was fired for violating company policy. The district court erroneously based its summary judgment holding on the ground that Sista constituted a direct threat without applying the appropriate standards to that determination. CONCLUSION For the foregoing reasons, the Commission respectfully asks this Court to reject the district court's analysis of the direct threat issue. Respectfully submitted, ERIC S. DREIBAND General Counsel VINCENT J. BLACKWOOD Acting Associate General Counsel ________________________________ BARBARA L. SLOAN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7014 Washington, D.C. 20507 (202) 663-4721 CERTIFICATE OF COMPLIANCE In accordance with Federal Rule of Appellate Procedure 32, I certify that this brief was prepared with Courier New (monospaced) typeface, 12 point font, and contains 3175 words, from the Statement of Interest through the Conclusion, as determined by the Word Perfect 9 word counting program. ____________________________ Barbara L. Sloan CERTIFICATE OF SERVICE I hereby certify that two copies of the foregoing brief were sent this 26th day of May, 2005, by first-class mail, postage prepaid, to the following counsel of record: Todd J. Krouner, Esq. Law Offices of Todd J. Krouner 113 King Street Chappaqua, NY 10514 Howard J. Rubin, Esq. DAVIS & GILBERT LLP 1740 Broadway New York, NY 10019 __________________________ Barbara L. Sloan *************************************************** <1> The Commission takes no position on any other questions that may be raised in this appeal.