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October 17, 1991


On Petition for Review of a Decision of the District of Columbia Department of Human Rights

Farrell and Wagner, Associate Judges, and Gallagher, Senior Judge.

The opinion of the court was delivered by: Wagner

American University (the "University") petitions for review of a decision of the District of Columbia Commission on Human Rights (the "Commission") finding that the University discriminated against its former employee, Marionette Phelps, (the "complainant") *fn1 because it fired her for poor job performance without making reasonable accommodation for her handicap (manic-depressive syndrome). The principal issues resolved against the University by the Commission in reaching its decision and presented here for review are: (1) whether substantial evidence supports the Commission's determination that complainant suffered from a mental disablement for which reasonable accommodation could be made within the meaning of D.C. Code § 1-2502(23) (1987); (2) whether the Commission's Conclusion that complainant established a prima facie case of discrimination under D.C. Code § 1-2512(a)(2) (1987) rationally follows from its findings; (3) whether the University had a duty, before firing complainant, to ascertain if she was affected by a disability which could be accommodated; and (4) whether the University was required to offer complainant a "firm choice" between treatment and termination before firing her. We answer each of these questions in the negative, and reverse the decision of the Commission.


The complainant filed a complaint of discrimination against the University on June 14, 1982, with the D.C. Commission on Human Rights under the Human Rights Act of 1977, D.C. Code § 1-2502 et seq. (1981). Complainant alleged that petitioner terminated her employment unlawfully because of her race (Black) and handicap (manic-depressive syndrome). A hearing on the complaint was held on December 9, 1986, and on January 19, 1988, the hearing examiner issued proposed findings of fact and Conclusions of law recommending dismissal of the complaint, having found no unlawful discrimination on either of the two grounds asserted. The Commission affirmed the hearing examiner's findings and Conclusion that the University did not discriminate against complainant because of her race; however, it rejected the examiner's Conclusion on the claim of discrimination based on handicap. The Commission found that complainant had established that termination of her employment resulted from discrimination by the University based on mental disablement in violation of the Human Rights Act. Therefore, the Commission ordered complainant's reinstatement with back pay, adjusted for money received from other employment. The Commission also ordered the University to cease and desist from failing to accommodate individuals with similar handicaps.


Unless otherwise indicated, the pertinent facts as found by the Commission are undisputed. Ms. Phelps was hired by the University in November 1978, as an administrative secretary in the University's Center for Financial Management, which later became the Institute for Applied Public Financial Management (the "Institute"). Prior to applying for the position, Ms. Phelps had been diagnosed as manic-depressive, a condition which resulted in her retirement on full disability from the District of Columbia government. *fn2 In response to a question on the employment application, she disclosed a prior hospitalization, and she explained to Professor Raymond Einhorn, who hired her, that she was suffering from depression for which she required treatment. *fn3 Professor Einhorn told Ms. Phelps that he had consulted with the personnel office and that her condition posed no problem to her employment. To accommodate the complainant's condition, Professor Einhorn modified her work schedule to seventy-six hours every two weeks instead of eighty hours, allowing time for her to attend psychotherapy sessions on Wednesday mornings. The modified schedule was included in complainant's personnel appointment forms, and she maintained the schedule until she was fired.

Professor Einhorn, the Institute's Director, supervised the staff, including Ms. Phelps. In the fall of 1979, Dennis Spyra became Assistant Director for the Institute, and thereafter, both Professor Einhorn and Mr. Spyra jointly supervised the staff. However, at the time of the hearing, the complainant testified that Professor Einhorn was her sole supervisor until the last two months of her employment. Until late 1981, Mr. Spyra and the complainant had a good working relationship, although he noticed that complainant was moody and required special consideration by other staff members. Neither Professor Einhorn nor Ms. Phelps ever shared with Mr. Spyra information regarding Ms. Phelps' mental condition, and Professor Einhorn discouraged inquiries into the matter, instructing Mr. Spyra that staff should work around her.

Ms. Phelps received satisfactory evaluations from Professor Einhorn, who never complained about her work. She was promoted to Administrative Assistant in 1979 and thereafter received salary increases based on work performance. Due to ill health, Professor Einhorn was frequently away from the office, and Mr. Spyra assumed full supervisory authority in his absence. In January 1982, Professor Einhorn left the Institute, and Mr. Spyra was appointed Acting Director.

Commencing in late 1981 and continuing into the spring of 1982, Ms. Phelps' moodiness and problems with staff became more pronounced. Her job performance deteriorated, and Mr. Spyra noticed that she appeared drowsy, unmotivated, and short-tempered. Ms. Phelps' job was important to the smooth operation of the office, as she coordinated activities and handled the telephones, filing, typing and reception. Ms. Phelps' behavior caused friction with members of the small staff (four or five), who became reluctant to approach her for work related matters. Although Mr. Spyra suspected that Ms. Phelps might have a medical problem, he did not question her about it because he believed it to be a personal matter. Indeed, Ms. Phelps was taking prescribed medication for her manic-depressive condition. Ms. Phelps did not discuss her condition with Mr. Spyra because she felt it was not his business.

Complainant's behavior and job performance was affecting the morale and productivity of the office, and Mr. Spyra tried to discuss the problem informally with her, but she refused. *fn4 Upon the advice of a friend in the personnel office, Mr. Spyra undertook more formal action. To that end he met with Ms. Phelps on May 13, 1982, but again she refused to discuss the matter, contending that her performance was satisfactory. On May 17, 1982, Mr. Spyra wrote a letter to Ms. Phelps outlining her deficiencies as mentioned at the meeting, including poor attitude toward work and staff, poor quality of work (i.e., typing, scheduling, etc.), inability to discharge job responsibilities without supervision, sleeping on the job, poor motivation, and screaming at staff, supervisor and other University employees. In that letter, Mr. Spyra also expressed doubts about Ms. Phelps' ability to continue at the Institute because of her refusal to discuss the problems rationally.

Mr. Spyra approached Ms. Phelps the next day about the difficulties, but she again rebuffed him. Therefore, Mr. Spyra presented her with the alternative of resigning or being terminated. By letter dated May 21, 1982, Ms. Phelps informed her supervisor that she would not resign, and Mr. Spyra responded orally that he would terminate her. On May 25, 1982, he gave her a letter notifying her that she would be terminated on May 26, 1982, for the following reasons, which were elaborated upon fully: deficiencies in overall job performance; poor attitude toward work; disrespect for the supervisor based on numerous verbal outbursts; throwing memos; and failing to observe warnings. An actual termination date of June 11, 1982, was established by the University, and complainant was given administrative leave in the interim. *fn5 Ms. Phelps met with the University's Director of Personnel and its personnel officer on May 24, 1982. When she became upset about the prospect of losing her job, the Personnel Director referred her to the University Counseling Center.

To terminate an employee involuntarily, the University's personnel policy requires a determination by the employee's immediate supervisor, inter alia, that the employee is unable or fails or refuses to maintain fitness for satisfactory performance and that the employee's conduct impairs the effectiveness of the University's operations. Under the policy the supervisor must give the employee timely notice of the problem and, with the assistance of the office of personnel, try to assist the employee to maintain or recover effectiveness or find a more compatible position. The employee is entitled to two weeks notice prior to the effective date of separation.

Crediting the testimony of Mr. Spyra, the hearing examiner determined that he had attempted to discuss with complainant her work performance on numerous occasions between January 1, 1982 and May 17, 1982. The examiner also found that the meetings were undertaken to assist the complainant in improving her performance, but she refused to cooperate, believing that she had no deficiencies. Therefore, the hearing examiner concluded that Mr. Spyra had given complainant timely notice of the problems and attempted to find a resolution for them. Although these findings were supported by substantial evidence, the Commission rejected them and substituted its own. The ...

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