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The ability to interact or get along with others is “a major life activity” within the meaning of the Americans with Disabilities Act, a federal judge in New York has ruled. Addressing a case of first impression among courts in the 2nd U.S. Circuit Court of Appeals, Judge Frederic Block of the Eastern District said that a person suffering from bipolar disorder who had problems with co-workers and supervisors can be considered disabled, and thus protected from discrimination under the ADA. He refused to dismiss a case brought by plaintiff Audrey Jacques, finding that the issue of whether Jacques was regarded as disabled by her employer was a question for the jury. Block also raised the question of whether the employer in Jacques v. DiMarzio Inc., 97-CV-2884, should be sanctioned for seeking $500,000 in a counterclaim against Jacques, which he said appeared to be “nothing more than a naked form of retaliation.” Jacques was hired by DiMarzio in 1989 as a packager and assembler of electronic guitar components. She worked there for almost seven years until she was fired in 1996 following a series of conflicts with her fellow employees and what court papers termed “her confrontational and irrational behavior” with her supervisor. Jacques, who had a long history of psychological problems that included major depressive disorder, claimed that her problems at work stemmed from the fact that she also suffered from bipolar disorder. Between 1990 and 1996, Jacques raised concerns with her supervisors about health and safety conditions at the DiMarzio plant, including poor ventilation and the lack of safety goggles for other workers who were allowed to supplement their incomes by doing work at home. After an incident in which she was treated at a Staten Island hospital for severe headaches and other problems supposedly caused by working in a poorly ventilated factory room, Jacques requested to work at home, but was refused. Finally, in August 1996, she was told by a supervisor that she could perform guitar assembly at home. But within two weeks, the supervisor suggested that she see a psychiatrist. That same supervisor later told Jacques she was fired. A 1996 complaint by Jacques filed with the National Labor Relations Board (NLRB) resulted in a finding by the board that there were no violations of federal labor law. A complaint with the New York State Division of Human Rights was dismissed without comment. But the Equal Employment Opportunity Commission issued a right to sue letter to Jacques in 1997, and she proceeded with her action under the ADA in the Southern District. INTERACTION WITH OTHERS DiMarzio counterclaimed seeking $500,000 in damages for harassment, interference with “business operations” and “employee morale” and damage to the company’s reputation. While DiMarzio conceded in its motion for summary judgment that bipolar disorder can constitute an impairment under the ADA, it argued that the impairment did not necessarily render Jacques disabled within the meaning of the act. Judge Block said the key issue was whether Jacques had offered evidence “to support the allegation that DiMarzio regarded her as disabled from interacting with others.” Jacques had cited a letter to the NLRB by DiMarzio in which it was stated that “We had to deal with her as if she was emotionally disturbed,” because of her tendency to “blow up on us.” “The Second Circuit has not addressed the question of whether the ability to interact or get along with others is a major life activity,” Block said. “Other circuits are split on the question.” In the end, however, Block said: “The ability to interact with others, like other recognized major life activities, is a basic function, necessary for daily human existence.” He said the letter to the NLRB, coupled with the supervisor’s suggestion that she see a psychiatrist, was sufficient to create a triable issue of fact as to whether the company regarded Jacques as having severe problems in her relations with others on a regular basis. Next, Block said Jacques had presented enough evidence to go to a jury with her claim that she could have performed her job if the company had made a reasonable accommodation. Finally, the judge said he was “deeply troubled by DiMarzio’s $500,000 counterclaim,” in apparent retaliation against Jacques, “a vulnerable plaintiff who suffers from a significant mental impairment, for filing her lawsuit.” “She should not be subjected to in terrorem tactics,” he said, while giving the company 30 days to “explain why Rule 11 sanctions should not be imposed.” “Although it remains to be determined whether Rule 11 sanctions are appropriate in this case, the court pauses to admonish the practicing bar against asserting baseless, retaliatory counterclaims,” he said. “Such claims constitute the type of abusive, harassing practices proscribed by Rule 11.” Lisa Sirkin, Minna Kotkin, Stephen Meyer and Harmon Fields of BLS Legal Services Corp. represented Jacques. Gary Ettelman of Ettelman & Hochheiser represented DiMarzio Inc.

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