$680K ADA Judgment Upheld For Officer

Mickel Hoback was a police officer with the City of Chattanooga, Tennessee. After starting work for the City, Hoback enlisted in the military. He served in Iraq for over a year, returning to the Department in late November 2005. At some point after returning from Iraq, Hoback was diagnosed with post-traumatic stress disorder. Hoback received counseling and treatment, including psychotropic medication, from the Veterans Administration.

On April 14, 2009, Hoback went to see his usual therapist, Michael Bearden. He complained about headaches, vomiting, intrusive thoughts, and sleeplessness. Bearden called the VA and made an appointment for Hoback to change his medication. Hoback met with Dr. Estella Acosta at the VA a few minutes later. Hoback testified that in this meeting Dr. Acosta asked him whether he ever thought about dying, and he said that he thought about getting shot sometimes. After talking with Hoback, Dr. Acosta filled out a Certificate of Need for Involuntary Commitment, which stated that Hoback was “depressed and despondent and states that he is feeling suicidal.” But Hoback was not involuntarily committed. He left the VA, went to Bearden’s office, and then drove himself to the hospital. Hoback stayed overnight and was released the next day.

After hearing about the attempted involuntary committal, the Department placed Hoback on administrative leave and asked him to take a psychological fitness for duty test. Hoback complied with the Department’s request and met with Donald L. Brookshire, Psy.D. several times to complete the test. Dr. Brookshire also reviewed Bearden’s notes and Dr. Acosta’s Certificate of Need for Involuntary Commitment, but he did not speak to either professional. Dr. Brookshire then wrote a report concluding as follows:

“Hoback is not psychologically fit to safely perform the duties as a police officer. He is currently diagnosed by the VA with PTSD. A pattern of excessive anger, suicide and homicide thoughts and impulsive and aggressive acting out behaviors are viewed as potential risks to his successful and safe functioning as a police officer.”

After receiving Dr. Brookshire’s report, the Department told Hoback to either apply for another position with the City or to request FMLA benefits. Hoback did neither and instead asked for a second opinion. In June and July 2009, Terrell M. McDaniel, Ph.D. evaluated Hoback. Dr. McDaniel’s report acknowledged that “Dr. Brookshire’s impressions and conclusions were consistent with the information provided him, as well as his impressions over several interviews with Mr. Hoback.” However, Dr. McDaniel ultimately concluded that Hoback was fit for duty as a police officer.

Police Chief Freeman Cooper fired Hoback on July 21, 2009, after Hoback had exhausted his personal leave time. Cooper based his decision on Dr. Brookshire’s report, even though he had received a preliminary oral report from Dr. McDaniel. Cooper also did not talk to Hoback’s VA specialist, VA psychiatrist, or medical doctor before making his decision.

Hoback sued the City, contending that his termination violated his rights under the Americans With Disabilities Act. A jury returned a verdict in favor of Hoback, awarding him $130,000 in back pay, $300,000 in front pay, and $250,000 for emotional distress for a total award of $680,000. The City then appealed.

The federal Sixth Circuit Court of Appeals upheld the jury’s award. The City argued that the jury’s verdict should be set aside because it was categorically inconsistent with the fact that Hoback asked for disability benefits. The City also contended that the verdict should be set aside because Hoback made false statements to his VA psychologist for the purpose of increasing his disability benefits.

The Court concluded that “we find no reason to set aside the jury’s verdict on these bases. The record does not show that Hoback ever said that he was unable to work. And the City does not point to any obvious inconsistencies between Hoback’s application for benefits and his position taken in this litigation. As we have explained, the law does not require plaintiffs to choose between applying for benefits and pursuing an ADA claim. They may do both. Moreover, Hoback’s embellishments, even if taken as true, do not demonstrate an inability to do his job. The jury had a chance to hear Hoback’s explanations for his disability requests and weigh his credibility accordingly, and the City has offered no reason to overturn the jury’s decision.”

Hoback v. City of Chattanooga, 2013 WL 6698042 (6th Cir. 2013).