## Facts

- Stephanie Gambini worked for Total Renal Care, Inc. (DaVita) as a contracts clerk starting in November 2000.
- In 2001 she experienced depression and anxiety, had an emotional breakdown at work, and was advised her symptoms indicated bipolar disorder.
- She began treatment and medication and informed supervisors and coworkers of the condition and treatment.
- Over time, she experienced worsening symptoms including emotional outbursts, unpredictability, irritability, distraction, and difficulty focusing.
- DaVita presented Gambini with a written performance-improvement plan (PIP).
- At the PIP meeting, Gambini cried, shook, had trouble breathing, threw the plan across a desk, used profanity, and slammed the door as she left.
- DaVita terminated her several days later, citing conduct and performance.
- Gambini later asserted to DaVita that her behavior at the meeting was caused by bipolar disorder and requested reinstatement; DaVita refused.
- She sued under the Washington Law Against Discrimination (WLAD) for disability discrimination and also asserted an FMLA claim.

## Issues

1. Whether, under WLAD, the jury had to be instructed that conduct resulting from a disability is part of the disability and not a separate basis for termination when the employer relied on that conduct as the reason for discharge.
2. Whether the jury was adequately instructed on the employer’s “direct threat” theory and burden, and whether any instructional deficiency was prejudicial.
3. Whether the judgment against Gambini on her FMLA claim should be reversed.

## Decision

- The court reversed the judgment on the WLAD disability-discrimination claim and remanded for a new trial.
- The court held it was error to refuse an instruction (or its equivalent) explaining that disability-caused conduct is part of the disability and cannot be treated as a wholly separate, neutral basis for termination when evaluating discrimination.
- The court concluded the instructional errors were not harmless because they could have affected the verdict on the central dispute: whether DaVita terminated Gambini for disability-related conduct.
- The court found additional problems with the instructions concerning the employer’s “direct threat” theory, contributing to the need for a new trial on the WLAD claim.
- The court affirmed the judgment for DaVita on the FMLA claim.

## Legal Principles

- In disability-discrimination cases under WLAD (as applied here), identical treatment is not the measure of nondiscrimination; reasonable accommodation may require different treatment.
- When an employee presents evidence that alleged workplace misconduct is a manifestation of a disability, the factfinder must be instructed that the conduct is part of the disability for purposes of assessing discriminatory termination.
- Such an instruction does not immunize employees from adverse action; a plaintiff must still show she is a qualified individual who can perform essential job functions with or without reasonable accommodation.
- An employer may assert a “direct threat” defense only under proper legal standards, including the employer’s burden to show a significant risk of substantial harm that cannot be reduced by reasonable accommodation.
- A materially incomplete or misleading jury charge on central liability or defenses requires a new trial when it could have affected the verdict.

## Conclusion

The Ninth Circuit ordered a new trial on the WLAD disability-discrimination claim because the jury was not properly instructed to treat disability-caused conduct as part of the disability and the instructions also inadequately addressed the employer’s “direct threat” theory; it affirmed the employer’s judgment on the FMLA claim.


Gambini v. Total Renal Care, Inc., 486 F.3d 1087 (9th Cir. 2007)