Wednesday, June 08, 2011

Social Security: Public Policy Concerns Addressed in Freedman v. D.C. Dept. Human Rights

In a letter I wrote to D.C. Delegate Eleanor Holmes Norton dated September 8, 1998 I discussed the public policy concerns posed by the action of an employer in terminating a disabled employee (and failing to advise the employee that he was being terminated by reason of mental illness) rather than placing the employee on extended leave and allowing the employee to collect employer-sponsored long-term disability benefits.

I had addressed this issue in section 3 of the Appeal Brief I filed in the D.C. Court of Appeals in Freedman v. D.C. Department of Human Rights, no. 96-CV-961 (Sept. 1, 1998):

C. DHR's no probable cause determination was arbitrary and capricious in that a finding that the employer had a concern for appellant's mental health and stability (based partly on the advice of mental health professionals that appellant needed counseling, and that according to a psychiatrist could engage in violent behavior) does not lead rationally to a conclusion that that concern prompted or justified the employer's decision to terminate appellant since appellant was a beneficiary of the employer's long-term disability income plan under which he qualified for long-term medical leave under the employer's established leave policy.

The term "ideas of reference," employed in Finding of Fact no. 6 [R. 17], is a psychiatric term of art, which is defined as "the assumption by a patient that the words and actions of others refer to himself or the projection of the causes of his own imaginary difficulties upon someone else; called also delusion of reference." DORLAND'S MEDICAL DICTIONARY 814 (27th ed. 1988). "Ideas of reference" are prominent in the severe (psychotic) mental disorders. R. NOLL, THE ENCYCLOPEDIA OF SCHIZOPHRENIA & THE PSYCHOTIC DISORDERS 169 (New York: Facts on File 1992). "[Ideas of reference are] [o]ne of the most common symptoms of the psychotic disorders. It is an idea that certain events or people in a person's immediate environment have a magical 'special meaning' for that person. For example, a song heard on the radio may be interpreted by a psychotic person as having been specifically played at that time to convey a special meaning to him or her." Id. at 169.

Thus, Finding of Fact no. 6 sets forth the conclusions of a psychiatrist regarding appellant's mental health and potential for violence, and employs the clinical terminology ("ideas of reference") appropriate to the description of a mental disorder. DHR also found that the employer recommended that appellant seek counseling [Rec. 17], that appellant's [pathological] hypersensitivity to his work environment prompted the employer's concerns about his mental health and ability to interact with coworkers [Rec. 19], that appellant regularly consulted mental health professionals [Finding of Fact no. 3] [R. 12], and implicitly affirmed the genuineness of the employer's alleged concern that appellant's continued presence on the employer's premises posed a negligence risk for the employer [Rec. 148].

DHR's various findings relating to the employer's concerns about appellant's mental health and stability do not, however, lead rationally to the agency's determination that the employer's concerns about appellant's mental health provided grounds for the employer's action to terminate [Rec. 7]. See State Farm, 463 U.S. at 43 (under the arbitrary and capricious standard the agency must be found to have articulated a rational connection between the facts found and the choice made).

At the time of his termination on October 29, 1991 appellant was a beneficiary of the employer's Long Term Disability Income Plan ("Plan") [Rec. 29, 42-56], underwritten by UNUM Life Insurance Company of America [Rec. 42]. The Plan provides a monthly benefit to the beneficiary-employee who is unable to perform each of the material duties of his regular occupation [Rec. 48] due to sickness or injury [Rec. 49] and who requires the regular attendance of a physician [Rec. 49]. The Plan does not exclude coverage for disability due to mental illness [Rec. 51].

The Plan does require, however, that the beneficiary-employee submit written notice of claim within 30 days of the date disability starts [Rec. 53].

Even assuming the employer had genuine concerns regarding appellant's mental stability and potential for violence [Rec. 123]--and the potential for tort liability [Rec. 148] arising out of appellant's risk of violence--the alleged business necessity for the employer's termination decision is a mere pretext for discrimination since the employer failed to utilize an available, alternative, less discriminatory means of achieving its business purpose. Cf. Zuniga v. Kleberg County Hosp., Kingsville, Tex., 692 F.2d 986, 992 (5th Cir. 1982). 20/ The employer could have avoided terminating appellant's employment while protecting itself and firm personnel by granting appellant a leave of absence in accordance with its own established long-term leave policy. Cf. Zuniga, 692 F.2d at 992.

DHR did not articulate a "rational connection" between the agency's findings that, on the one hand, (1) the employer determined (in consultation with mental health professionals, including a physician-psychiatrist) that appellant needed counseling [Rec. 19] and that (2) appellant consulted "regularly" with mental health counselors, psychologists and physician-psychiatrists [Finding of Fact no. 3] [Rec. 12] and, on the other, DHR's determination that the employer had a valid, nondiscriminatory reason for the termination. Rather, applying Zuniga, these findings simply support appellant's eligibility for a claim under the employer's long-term disability income Plan, which mandates that the beneficiary-employee require the "regular" attendance of a physician [Rec. 49]. See State Farm, 463 U.S. at 43.

Race stated the following business necessity for appellant's termination: "on the basis of disruptive work habits, unusual behavior and discussions with outside [mental health] consultants [including a physician-psychiatrist, who attributed appellant's complaint of harassment to an identifiable psychiatric symptom ("ideas of reference") that may be associated with a risk of violent behavior], I believe that termination is warranted.

Indeed, to do otherwise may prove to be negligent" [Rec. 148]. The employer could have used alternative means to accomplish the same purpose. Cf. Zuniga, 692 F.2d at 992. Instead of terminating appellant, the employer could have granted a medical leave to appellant consistent with the employer's formal policy permitting leave of absence for reasons of medical disability, as evidenced by the employer's participation in a group Long Term Disability Income Plan [Rec. 42-56]. Cf. Zuniga, 692 F.2d at 992.

Because the employer failed to utilize an alternative, less discriminatory means of preventing harm to incumbent employees posed by an allegedly paranoid [Rec. 140], potentially violent and mentally disturbed employee [Rec. 123], the firm's asserted business purpose stands revealed as pretext, and its business necessity defense must fail. Cf. Zuniga, 692 F.2d at 994. Appellant's termination, and the resultant controversy, could easily have been avoided by the simple expedient of treating appellant no different from all the other employees eligible under the employer's long term disability leave policy. Cf. Zuniga, 692 F.2d at 994.

It is observed, additionally, that the employer effectively precluded appellant from filing a notice of claim under the Plan, which requires that notice be filed within 30 days of onset of disability [Rec. 53]. The employer failed to advise appellant at the termination meeting on October 29, 1991 of his rights under the Plan [Rec. 29] or provide sufficient facts concerning the emotional or psychological reasons for the termination to alert appellant to file a timely claim [Rec. 74, 138-139].

The employer, in its sworn interrogatory responses to DHR [Rec. 123, 138-139], admits that it did not advise appellant at the termination meeting that the termination decision was supported by consultations with two mental health professionals, including a physician-psychiatrist, or that, in the psychiatrist's opinion, appellant's complaint of harassment was attributable to a psychiatric symptom ("ideas of reference") that might be associated with a risk of violent behavior [Rec. 123], which rendered appellant "not suitable for employment" [Rec. 18]. 21/

The employer, in effect, admits that it failed to make information available timely to appellant that was reasonably necessary for appellant to file a valid claim for benefits consistent with the terms of the Plan [Rec. 49].

It was not until December 1992 (more than one year after appellant's termination on October 29, 1991), upon appellant's receipt of the employer's Response to Interrogatories and Document Request [Rec. 87] filed by the employer with DHR, that appellant was apprised that the employer's termination decision was motivated by the employer's concerns about appellant's mental health and stability, and that the termination decision was supported by the employer's consultation with a physician-psychiatrist [Rec. 30]. Even if appellant had retained insurance coverage by converting to an individual plan under COBRA immediately following the termination on October 29, 1991, the incomplete facts provided at the termination meeting concerning the reasons for the termination [Rec. 123, 138-139] would have been insufficient to alert appellant to file a timely disability claim by November 29, 1991, within the Plan's 30-day notice-of-onset-of-disability requirement [Rec. 30]. 22/

Appellant's assertion that Race advised appellant that the firm had concerns about the quality of appellant's work product [Rec. 277, 349, 454] is contained in one document that appellant submitted to DHR in late November or early December 1991 [Rec. 334-349], prior to DHR's discretionary decision to institute the complaint, dated February 4, 1992 [Rec. 170]; appellant's assertion, though controverted by the employer's interrogatory response filed May 22, 1992 [Rec. 139], was against appellant's interest when appellant submitted the document to DHR in late 1991 [Rec. 334].



20/ In Zuniga, a disparate impact sex discrimination case, a hospital's claim that a pregnant X-ray technician was discharged because of the fear of endangering the fetus and exposing itself to negligence liability was deemed not worthy of credence by the court, since the hospital could have achieved its business purpose by granting the plaintiff a leave of absence under the hospital's policy permitting leave of absence for reasons of family health. The court found that the stated business necessity for the termination was merely a pretext for discrimination. Id., 692 F.2d at 992.

21/ Race, the individual who failed to disclose to appellant facts concerning his consultation with a psychiatrist [Rec. 74, 138-139]--facts that were needed by appellant to file a timely disability claim under the Plan--is the same individual who factually misrepresented to DHR his knowledge of appellant's sexual orientation [R. 17, 133, 139, 140]. Race's failure to disclose to appellant facts concerning his consultation with a psychiatrist was, therefore, not simply injurious to appellant; Race's failure to disclose was invidiously based on appellant's membership in a protected class, his knowledge about which Race mendaciously attempted to conceal from DHR. Cf. Anderson v. Baxter Healthcare Corp., 13 F.3d at 1124 ("If the only reason an employer offers for firing an employee is a lie, the inference that the real reason was a forbidden one . . . may rationally be drawn.")

22/ While it is true that the physician, Dr. Ticho, did not conduct a personal examination of appellant, it is nonetheless instructive to observe that an employer has a duty, arising out of common law, to disclose to an employee, prior to or during employment, information the employer acquires when a physician it engages discovers a serious medical problem while examining the employee in accordance with the employer's requirements. See Meinze v. Holmes, 532 N.E.2d 170, 173 (Ohio App. 1987) citing Betesh v. United States, 400 F.Supp. 238, 245 (D.D.C. 1974) (interpreting Maryland common law). In the present case the employer's failure to provide information to appellant, derived from the employer's consultation with a physician, concerning appellant's mental health may have breached a common law duty to disclose. It is noted, incidentally, that Digweed--who, as the employer's personnel administrator, oversees the firm's employee benefits programs [Rec. 480-481]--was present at the termination meeting [Rec. 138]. At the termination meeting Digweed reviewed with appellant issues pertinent to insurance benefits--including appellant's COBRA rights, and health and life insurance issues [Rec. 480-481]--but omitted any mention of appellant's rights under the disability Plan or the employer's consultation with a psychiatrist [Rec. 123, 138-139]. Digweed is designated in the employer's personnel records as one of the three decisionmakers who terminated appellant's employment [Rec. 167].


Gary Freedman said...

DHR Finding of Fact 3 states:

3. Complainant consulted regularly with Mental Health Counselors, Psychologists and Psychiatrists starting in 1989 with 28 consultations between January 1 and October 8, 1991. Some of those consultations were with professionals connected with Respondent’s Employee Assistance Program. Complainant invited his supervisor to attend one of his sessions with a psychologist.

DHR Finding of Fact 6 states:

6. Respondent also sought outside professional guidance because of the emotional and psychological nature of Complainant’s allegations and his coworkers responses. Respondent contacted an unnamed counselor from its Employee Assistance Program and an outside psychiatrist. Dr. Gertrude Ticho identified Complainant’s behavior, putting a negative meaning to virtually every event as “ideas of reference” and cautioned that individuals in similar circumstances may become violent. After Respondent’s investigators consulted with Complainant’s supervisor and Respondent’s Management team, Respondent terminated Complainant’s employment.

Gary Freedman said...

Albert H. Taub, M.D. advised the D.C. Medical Board in 1999 that I suffered from paranoid schizophrenia in response to a complaint I filed against him:

February 22, 1999

Mr. James R. Granger, Jr.
Executive Director
Government of the District of Columbia
Board of Medicine
Dept. of Consumer and Regulatory Affairs
Occupational and Professional Licensing Administration
614 H Street N.W., Room #108
Washington, D.C. 20001

Re: Mr. Gary Freedman: your letter of January 6, 1999

Dear Mr. Granger:

This is not an issue of quality of care. Appropriate medication has been offered to Mr. Freedman who refuses to take the medicine (an antipsychotic). He is insisting that I absolve him of any mental illness in 1988 when he was in a struggle with his law firm. The letter is not possible since I only have been meeting with him since August of 1998 and can make no statement about his mental status in 1988.

My first direct contact with Mr. Gary Freedman occurred last summer [Friday August 7, 1998] when I became his psychiatrist for the purpose of prescribing medication. Ms. Lisa Osborne, a psychology intern at that time, started to see him in weekly psychotherapy.

In view of Mr. Freedman's long record of mental illness (paranoid schizophrenia) I recommended antipsychotic medication which he refused. At first I saw him weekly and subsequently I have been seeing him monthly. He has always refused medication. One week he tentatively agreed to try medication, but changed his mind. At the time he said he might try medication, if I were to sign the letter of August 17, 1998 (revised 8/22/98) vindicating him in his legal struggles with his former law firm which took place approximately ten years ago.

I didn't sign his manifesto since I could make no judgments about events that occurred ten years ago. He didn't seem surprised at my refusal to sign and I don't believe he really expected me to sign. However, it did give him a face saving reason to refuse medication. He has never agreed to take medication that I suggested. Ms. Osborne, the rest of the clinical staff, and I did not feel he was at that time imminently homicidal or suicidal.

Subsequently, he has settled down into his usual lifestyle which includes prolific letter writing. Please let me know if I can be of further assistance to you.


Albert H. Taub, M.D.
Faculty Member
Department of Psychiatry
Residency Training Program
St. Elizabeths/CMHS

[Docket no. 99-198]