You Are Guilty
Senior Member
First, you're not in the 9th Circuit.
Second, and the reason ^^^ is important is because it's widely accepted in the legal community that the 9th Circuit has more mental problems than you do.
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BiPolar Discriminated when seeking LapBand
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Second, and the reason ^^^ is important is because it's widely accepted in the legal community that the 9th Circuit has more mental problems than you do.
tranquility
Senior Member
1. It also doesn't have to do with employment portions of the ADA requiring a reasonable accomidation.
2. (And to YAG.) I think the OP mentioned California at some point which would make the 9th appropriate. However, the 9th circut decision in the case cited relied on Washington law. OP needs to find if California courts would hold similarlly.
3. The case only holds that a disability can include the behavior related to the disability. Whether the behavior is related is a fact for the jury. Whether the behavior was a substantial factor for the decision is a question for a jury. The case then gives many defenses. The case had to do with jury instructions.
4. If the OP can get an appellate ruling that reasonable accomidations must be made in a non-work environment and find that California law in a non-work environment is the same as Washington's in a work-related ADA case, then all she'd have to do is to prove (along with the easier proofs) to a jury that the doctor denied treatment with the outburst as a substantial factor and that such an outburst is a substantial factor of the OPs disability and there is no medical reason not to treat and there is a legal requirement to treat (slavery is not dead!) and that the OP can perform the essential functions as related to his treatment and that there is no medical issues related to the disability (already disproven by the way) and that there is no direct threat to the health or safety to the medical staff (I hope none of them are bipolar, that would really twist the OPs shorts.), then the question would not be rejected in summary judgment and would get to the jury.
Of course, if the jury is made up of people of a type who populates the forum, the OP loses.
JBK in Georgia
Junior Member
Hey, Tranq, I'm trying to get out of the office, so I didn't read the 9th Cir. cite, but why would the 9th Circuit, in an ADA case, be applying state law, as opposed to federal law? I certainly agree that Calif. would be the appropriate place for any such action, so 9th circuit law is as high as you can go without the Supremes.
tranquility
Senior Member
From the opinion:
Gambini originally brought suit in
Pierce County Superior Court in Tacoma, Washington, charging
that DaVita had discriminated against her in violation of
the Washington Law Against Discrimination (“Washington
Law,” Wash. Rev. Code §§ 49.60.010 to 49.60.401) and the
Family Medical Leave Act (“FMLA,” 29 U.S.C. §§ 2601 to
2654). DaVita then timely removed the case to the United
States District Court for the Western District of Washington,
where DaVita prevailed at trial. We affirm as to Gambini’s
FMLA claim, but reverse and remand as to her Washington
Law claim.
----------------------------------
We conclude (1) that the district court abused its discretionwhen it declined to give that instruction and (2) that suchexclusion was not harmless error. [1] Most significantly, the Washington Supreme Court hasitself enunciated the rule embodied in that instruction. On that
--------------------------------------------------------------------------------
Page 10
score Riehl v. Foodmaker, Inc., 94 P.3d 930, 938 (Wash.2004)(en banc) has stated explicitly:Conduct resulting from the disability . . . is part ofthe disability and not a separate basis for termina-tion. In so doing Riehl drew on our own holding in Humphrey v.Memorial Hospitals Ass’n, 239 F.3d 1128, 1139-40 (9th Cir.2001), which in the context of the Americans With Disabili-ties Act (“ADA”) similarly articulated that “conduct resultingfrom a disability is considered part of the disability, ratherthan a separate basis for termination.” As a practical result ofthat rule, where an employee demonstrates a causal linkbetween the disability-produced conduct and the termination,a jury must be instructed that it may find that the employeewas terminated on the impermissible basis of her disability. Because of the Washington Supreme Court’s express reli-ance on Humphrey, we may properly look to that decision inapplying the Washington Law. Indeed, the facts in Humphreyare substantially analogous to Gambini’s situation, and weheld there (239 F.3d at 1140) that a jury could reasonably findthe “requisite causal link between” the symptoms of obsessivecompulsive disorder and Humphrey’s inability to conform herbehavior to her employer’s expectations of punctuality andattendance, so that she was fired because of her disability. As we have said, that principle has been adhered to by theWashington Supreme Court, again in analogous circum-stances. In Riehl, 94 P.3d at 938 an employer terminated andrefused to rehire an employee who began to suffer fromdepression and posttraumatic stress disorder (“PTSD”) afterapproximately five years of service. Evidence that theemployee’s mental disability motivated the adverse employ-ment action included his supervisor’s written comments aboutthe employee’s personality change after his illness, which“suggest[ed] he was not the same as the ‘old [Riehl]’ ” (id.).
--------------------------------------------------------------------------------
Page 11
In light of his favorable performance reviews and promotionswithin the company (id. at 937), the supervisor’s comments“suggest that [the employer’s] decision to fire and/or notrehire Riehl was based on Riehl’s personality difference,which may have been caused by his disability” (id. at 938).In fact, when Riehl was terminated he was told that the deci-sion was not based on his performance (id. at 938).
----------------------------
So, I have to conclude that particular aspect related to the ADA and 9th circut is not necessary for the OP to prove. Good catch.
Gambini originally brought suit in
Pierce County Superior Court in Tacoma, Washington, charging
that DaVita had discriminated against her in violation of
the Washington Law Against Discrimination (“Washington
Law,” Wash. Rev. Code §§ 49.60.010 to 49.60.401) and the
Family Medical Leave Act (“FMLA,” 29 U.S.C. §§ 2601 to
2654). DaVita then timely removed the case to the United
States District Court for the Western District of Washington,
where DaVita prevailed at trial. We affirm as to Gambini’s
FMLA claim, but reverse and remand as to her Washington
Law claim.
----------------------------------
We conclude (1) that the district court abused its discretionwhen it declined to give that instruction and (2) that suchexclusion was not harmless error. [1] Most significantly, the Washington Supreme Court hasitself enunciated the rule embodied in that instruction. On that
--------------------------------------------------------------------------------
Page 10
score Riehl v. Foodmaker, Inc., 94 P.3d 930, 938 (Wash.2004)(en banc) has stated explicitly:Conduct resulting from the disability . . . is part ofthe disability and not a separate basis for termina-tion. In so doing Riehl drew on our own holding in Humphrey v.Memorial Hospitals Ass’n, 239 F.3d 1128, 1139-40 (9th Cir.2001), which in the context of the Americans With Disabili-ties Act (“ADA”) similarly articulated that “conduct resultingfrom a disability is considered part of the disability, ratherthan a separate basis for termination.” As a practical result ofthat rule, where an employee demonstrates a causal linkbetween the disability-produced conduct and the termination,a jury must be instructed that it may find that the employeewas terminated on the impermissible basis of her disability. Because of the Washington Supreme Court’s express reli-ance on Humphrey, we may properly look to that decision inapplying the Washington Law. Indeed, the facts in Humphreyare substantially analogous to Gambini’s situation, and weheld there (239 F.3d at 1140) that a jury could reasonably findthe “requisite causal link between” the symptoms of obsessivecompulsive disorder and Humphrey’s inability to conform herbehavior to her employer’s expectations of punctuality andattendance, so that she was fired because of her disability. As we have said, that principle has been adhered to by theWashington Supreme Court, again in analogous circum-stances. In Riehl, 94 P.3d at 938 an employer terminated andrefused to rehire an employee who began to suffer fromdepression and posttraumatic stress disorder (“PTSD”) afterapproximately five years of service. Evidence that theemployee’s mental disability motivated the adverse employ-ment action included his supervisor’s written comments aboutthe employee’s personality change after his illness, which“suggest[ed] he was not the same as the ‘old [Riehl]’ ” (id.).
--------------------------------------------------------------------------------
Page 11
In light of his favorable performance reviews and promotionswithin the company (id. at 937), the supervisor’s comments“suggest that [the employer’s] decision to fire and/or notrehire Riehl was based on Riehl’s personality difference,which may have been caused by his disability” (id. at 938).In fact, when Riehl was terminated he was told that the deci-sion was not based on his performance (id. at 938).
----------------------------
So, I have to conclude that particular aspect related to the ADA and 9th circut is not necessary for the OP to prove. Good catch.
Last edited:
Tranquility wrote:
To counter, there is nothing in the record that says otherwise
You seem to have summed it up... I'm to lose before I begin.
The HOSPITAL is in California, therefore 9th Circuit Appellate Law would apply. As far as the JUMP necessary from the work environment to the medical one from the case cited, not a very hard one. Heck, they even said "violent outburst" is a result of bipolar! pretty much handed it to me on a silver platter, except I'm not violent, but prone to "outbursts."
This WOULD come before a federal court because I don't live in that state (as above) diversity of citizenship.
Florida Law (and the 11th Circuit) wouldn't apply!
Again, I don't believe this is a slam dunk, but is surely does sound like I'm more right than most of you originally thought. And, again, I'm not going to do anything until after I have the procedure and I can walk into court and say, "See, I had it any way and I did it regardless of my disability that they discriminated against!"
I have a recording of the supervisor telling me basically why I was taken back to committee, in a nutshell he was defending his staff saying they (the $6 - $8/hour employees) would not be “subjected to any abuses, belittling, or talked down to.” I also have the recordings of my conversations, messages left, and emails. These messages (vocal and electronic) could be interpreted two ways. 1) With people not knowing the sender was mentally ill and 2) Knowing that the sender was mentally ill. My review of them shows NO “abuse, belittling or talking down to.” It does show frustration, irritability and anxiety (all components of my disability).
All my physical tests and mental tests indicated I am (and was) ready and able to have this test. The doctor who looked at my ultra-sound and Endoscopy said, “you’re cleared for Lap Band!” He also dictated in the Endoscopy notes, “This is a pleasant young man…”
Let’s approach this from, there is a legal requirement NOT to abandon a case after you take it SHY of the doctor doesn’t have the experience, training, or staff to deal with the situation… he has a psychiatrist and two social workers on staff.
I had already begun following their instructions, like stopping caffeine (been off it since they asked me with one or two screw ups because I forget when I get to a restaurant or something), I increased my physical activity, I bought a Bowflex and am shopping for a tread-mill, surveyed for local centers where I could have fills (i.e. fillcenterusa.com), located an online support group and began engaging them. Also, my therapist agreed that I’m well aware of what this will take and am committed to it.
To counter, there is nothing in the record that says otherwise
Would you name one or two of those issues that you allege “disproven?”
Again, shy of me being physically violent, there isn’t. I use my mouth, not my fists. People see how big I am (and again, I’m male) and they when I raise my voice they assume I am violent, I’m not, but I’m vocal.
You seem to have summed it up... I'm to lose before I begin.
The HOSPITAL is in California, therefore 9th Circuit Appellate Law would apply. As far as the JUMP necessary from the work environment to the medical one from the case cited, not a very hard one. Heck, they even said "violent outburst" is a result of bipolar! pretty much handed it to me on a silver platter, except I'm not violent, but prone to "outbursts."
This WOULD come before a federal court because I don't live in that state (as above) diversity of citizenship.
Florida Law (and the 11th Circuit) wouldn't apply!
Again, I don't believe this is a slam dunk, but is surely does sound like I'm more right than most of you originally thought. And, again, I'm not going to do anything until after I have the procedure and I can walk into court and say, "See, I had it any way and I did it regardless of my disability that they discriminated against!"
tranquility
Senior Member
I am astonished you feel you have any chance. Your entire post was nothing more than argument. That you can make an argument that something was or was not a fact does not make it so.
Diversity would not be the federal jurisdiction, but federal question if you sued under the ADA. Be aware there are attorney costs provisions in the type of suit envisioned. While the provisions are designed to encourage plaintiffs (although the statutes are written in a neutral language), they can be used against the plaintiff if the argument is without merit (or other criteria) per case law. As my last word on the subject, I think you are straying very close to an argument without merit and are at risk of attorney's fees of the opponent's. While you may not have much, you seem as though you have some things and a judgment against you will clean you out.
Still, because of the provisions, an attorney is far more willing to take the case as he knows he will be paid in victory even if the damages are not that much. Shop it around. I suspect you will not find any takers, but you never know. You might find someone who is especially hungry and who isn't very busy right now and who would be looking for a quick nusiance deal with the doctor.
Diversity would not be the federal jurisdiction, but federal question if you sued under the ADA. Be aware there are attorney costs provisions in the type of suit envisioned. While the provisions are designed to encourage plaintiffs (although the statutes are written in a neutral language), they can be used against the plaintiff if the argument is without merit (or other criteria) per case law. As my last word on the subject, I think you are straying very close to an argument without merit and are at risk of attorney's fees of the opponent's. While you may not have much, you seem as though you have some things and a judgment against you will clean you out.
Still, because of the provisions, an attorney is far more willing to take the case as he knows he will be paid in victory even if the damages are not that much. Shop it around. I suspect you will not find any takers, but you never know. You might find someone who is especially hungry and who isn't very busy right now and who would be looking for a quick nusiance deal with the doctor.
Shay-Pari'e
Senior Member
seniorjudge
Senior Member
Why don't you just go to another doctor?
I am quite familiar with the court system and thus avoid it at all costs....
P
PamiToni
Guest
Why would any self-respecting girl hook up with this roley-poley? Are there no decent men left in NJ and she's settling?
stealth2
Under the Radar Member
That's really what we're all trying to figure out. She's a really nice girl in all ways. And we can't figure out why she'd hook up with this guy.
Ozark_Sophist
Senior Member
A doctor's office cannot function without support staff. Doctor's back up their staff when there is conflict between patient and staff. Your attitude toward the "$5 to $8 wage earners" is enough to put me off. How much do you earn an hour?
I am on disability but I never forget to be grateful for the disability system. I did not expect to be granted disability. Although I had worked hard (and paid into the system), my disability limited my occupational choices. Thanks to VR, I have earned a college education and soon will be going back to work.
I have tremendous respect for people who work through disabling pain or in the face of a terminal illness. And I have respect for people who do work those low paying jobs and take pride in their work. I never forget it is through their contributions to the social security system that I was able to get an education to go back to work to make contributions to the system for when they need it.
I am on disability but I never forget to be grateful for the disability system. I did not expect to be granted disability. Although I had worked hard (and paid into the system), my disability limited my occupational choices. Thanks to VR, I have earned a college education and soon will be going back to work.
I have tremendous respect for people who work through disabling pain or in the face of a terminal illness. And I have respect for people who do work those low paying jobs and take pride in their work. I never forget it is through their contributions to the social security system that I was able to get an education to go back to work to make contributions to the system for when they need it.
P
PamiToni
Guest
Must be a misguided sense of mercy or guilt. Maybe she's punishing herself for something.
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