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Davidson v. Midelfort Clinic

January 7, 1998

BARBARA DAVIDSON, PLAINTIFF-APPELLANT,

v.

MIDELFORT CLINIC, LTD., DEFENDANT-APPELLEE.



Appeal from the United States District Court for the Western District of Wisconsin.

No. 95 C 551 Barbara B. Crabb, Judge.

Before POSNER, Chief Judge, and ROVNER and DIANE P. WOOD, Circuit Judges.

ROVNER, Circuit Judge.

ARGUED FEBRUARY 13, 1997

DECIDED JANUARY 7, 1998

The Midelfort Clinic in Eau Claire, Wisconsin terminated Barbara Davidson from her position as a psychotherapist, citing among her principal deficiencies her backlog of dictation. Davidson filed suit under the Americans with Disabilities Act, contending that as a result of Adult Residual Attention Deficit Hyperactivity Disorder ("ADD"), she has a "disability" as the ADA defines that term and that Midelfort refused to reasonably accommodate that disability. See 42 U.S.C. sec. 12112(b)(5)(A). She also claimed that Midelfort discharged her in retaliation for filing a claim of discrimination with the EEOC. See 42 U.S.C. sec.12203(a). The district court entered summary judgment in favor of Midelfort. Because we conclude that Davidson has presented sufficient evidence that she has a "record" of a substantially limiting impairment, we reverse the judgment in part and remand for further proceedings. We otherwise affirm the judgment below on the disability claim for lack of evidence that Davidson presently has a substantially limiting impairment resulting from ADD or that Midelfort regarded her as having such an impairment. Because Davidson has not identified sufficient evidence of a causal link between the filing of her original charge of discrimination and her subsequent termination, we also affirm the entry of summary judgment on the retaliation claim.

I.

We accept the following facts as true for purposes of reviewing the grant of summary judgment.

Midelfort hired Davidson on August 31, 1993 and assigned her to work with a "child and adolescent team" that the clinic was forming at that time, in part to serve youths who, like Davidson, have ADD. Davidson earned a master's degree in psychology from the University of Wisconsin-Stout in 1990 and is a licensed school psychologist and counselor. Before commencing her employment with Midelfort, Davidson had worked as a psychologist and crisis counselor for the River Falls, Wisconsin school district and as a therapist for St. Croix Psychological Services, also in River Falls.

When she interviewed for the job with Midelfort, Davidson disclosed that she herself suffers from ADD, a chronic psychological disability resulting from a biochemical imbalance. The disorder can interfere with one's cognitive processes, including the ability to concentrate, to learn, to organize one's thoughts, to verbalize them, and to formulate explanations. People who have ADD are often hyperactive, impulsive, and susceptible to distraction. Although Davidson was not formally diagnosed as having ADD until 1992, she has struggled with the disorder for many years.

Throughout her secondary and post-secondary education, ADD imposed obstacles to learning that Davidson managed to circumnavigate through hard work, adaptive techniques, and help from her professors. Because she was easily distracted, for example, Davidson found it difficult to concentrate in the classroom and required much more time than her peers needed to read and study. She attended a private high school, where she had the benefit of extensive individual tutorial assistance from her teachers and flexible deadlines for her assignments. The same degree of one-on-one help from her professors and flexibility with deadlines characterized her undergraduate and graduate education. Davidson also succeeded in developing certain techniques that compensated for the limitations resulting from ADD. For example, Davidson sat in the front row during lectures in order to avoid distraction. She would later tape record her notes and then transcribe them into writing, using the repetition and kinesthetic effort to commit them to memory. Likewise, when she read new material, Davidson often found it necessary to write out an entire passage she had just read in order to be able to organize the information mentally. Given the extensive time she devoted to study outside of class, Davidson often found that she could not keep up with the workload and was periodically forced to withdraw from classes. She nonetheless attained a grade point average of 3.87 on a 4.0 scale in her graduate course work, although Davidson characterizes that as merely an "average" GPA.

Davidson's references from her first post-graduate employment speak in glowing terms of her counseling abilities and her devotion to the work. According to Davidson, she succeeded in her positions with the River Falls school district and the St. Croix clinic because her supervisors viewed her frequent questions as a strength and provided her with the structured work environment that she needed. She also notes that she worked long hours to compensate for her ADD.

As Davidson recounts events, however, the Midelfort Clinic was not so accommodating. Her immediate supervisor at Midelfort was Colleen Skold, the manager of behavioral health services. One may infer from the record that the relationship between Skold and Davidson was never a warm one. According to Davidson, when as a new employee she questioned Skold about clinic policies and procedures, Skold would become impatient, admonishing her to "make it short" or to take her inquiries to other therapists. When Davidson did pose questions to her colleagues, they told her that it was Skold's responsibility to provide orientation. Skold in turn criticized Davidson as being "intrusive," "impulsive," and "immature," and told her that she "smiled too much."

Davidson also cites a number of remarks and actions by Skold which, although susceptible of differing interpretations, could be read to bespeak a certain skepticism or negativity relating to ADD. For example, as Midelfort began to see increasing numbers of people with ADD among its clients, Skold observed that "the floodgates have opened" and that people with ADD might unduly tax the clinic's resources. She expressed displeasure with the fact that people with ADD also accounted for a disproportionate share of the clinic's missed appointments. Yet, she also rejected the suggestion that the staff be permitted to telephone reminders to ADD clients in advance of their appointments, even when someone pointed out that problems with schedule organization went hand in hand with ADD; Skold believed that ADD clients should instead "take responsibility for their disabilities." Finally, although Davidson had been told at the outset of her employment at Midelfort that it would be appropriate for her to discuss her own experience with ADD to clients and staff, Skold later told Davidson that she talked about it too much. *fn1

Soon after she began work at Midelfort, Davidson found herself falling behind on her dictation. Therapists at Midelfort were apparently required to dictate their patient notes for transcription by other staff members and inclusion in the patient's file. ADD makes it more difficult for Davidson to organize her thoughts without first writing them down on paper, so Davidson's solution was to write out her notes before dictating them, an obviously time-consuming process. When Skold found out that Davidson was frequently working late, she admonished her not to work after hours because the custodial staff had expressed concern. Davidson subsequently learned from the custodians, however, that they had voiced no objection to her hours and that other therapists routinely worked late. When Davidson mentioned her difficulty to a colleague, Sandra Hanson, Hanson told her that when she had trouble keeping up with her dictation in the past, Skold had ordered her a portable Dictaphone that she could use at home. But when Davidson approached Skold to request that she be given a portable Dictaphone, Skold refused. When Davidson later repeated the request, Skold told her that she had discussed the matter with human resources director Donna Marten, who had wondered aloud whether Davidson's request was just an "excuse." Skold told Davidson that she agreed with Marten that it was. When Davidson explained to Skold that she wrote out her notes as a way to compensate for her ADD, Skold observed that "successful therapists do not need to write out their dictation." *fn2

In January 1994, Skold gave Davidson a written evaluation criticizing her for her not being organized, submitting her dictation late, and working overtime. Davidson told Skold that these were problems resulting from ADD and asked for Skold's assistance in formulating accommodations. Skold has admitted, however, that she made no effort to accommodate Davidson's ADD. She did not, for example, consult with other professionals at Midelfort (two of whom treated Davidson) to determine what accommodations might be made. She did not believe it incumbent upon her to do anything that would accommodate Davidson's disability. Indeed, she had no interest in even knowing whether ADD was the explanation for Davidson's performance shortcomings.

In the Spring of 1994, Davidson took her concerns to Marten, the director of human resources at Midelfort. She told Marten in February that Skold was ignoring her requests for accommodation. When in April, Davidson was given a six-month evaluation repeating the criticisms that Skold had made in January, Davidson again asked that her disability be accommodated. According to Davidson, Marten was no more accommodating than Skold. Instead, Marten told ...


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