                        United States Court of Appeals


                     FOR THE DISTRICT OF COLUMBIA CIRCUIT


               Argued May 12, 1998        Decided June 23, 1998


                                 No. 97-7112


                             Donald W. Crandall, 

                                  Appellant


                                      v.


                       Paralyzed Veterans of America, 

                                   Appellee


                Appeal from the United States District Court 

                        for the District of Columbia 

                               (No. 95cv01741)


     John S. Lopatto, III argued the cause and filed the briefs 
for appellant.

     Elizabeth Sarah Gere argued the cause for appellee.  With 
her on the brief was Lisa Burns.

     Before:  Wald, Williams and Tatel, Circuit Judges.

     Opinion for the Court filed by Circuit Judge Williams.



     Williams, Circuit Judge:  Paralyzed Veterans of America 
fired Donald Crandall for multiple acts of rudeness to fellow 
employees and outside groups working with Paralyzed Veter-
ans.  Crandall later disclosed to Paralyzed Veterans that he 
had been diagnosed as suffering from manic depression (or 
"bipolar disorder"), a disability that he claims caused his 
rudeness.  He sued Paralyzed Veterans under s 504 of the 
Rehabilitation Act of 1973, 29 U.S.C. s 794(a), alleging that it 
had discriminated against him "by reason of" his disability, by 
firing him and by failing to reasonably accommodate his 
psychological disability.  The district court granted summary 
judgment for Paralyzed Veterans.  First, it ruled that the Act 
did not cover the organization at the time of the alleged 
discrimination, because it was not at the relevant time "re-
ceiving Federal financial assistance," which is a predicate to 
liability under s 504.  Second, the court held that no reason-
able factfinder could have found that Paralyzed Veterans 
discriminated on the basis of Crandall's disability, since it had 
neither actual nor constructive notice of his disability when it 
fired him.  We affirm on both grounds.

 

                                  *   *   *


     Crandall worked as a law librarian for nearly three decades 
at a number of firms, including Verner, Liipfert, Bernhard, 
McPherson & Hand in Washington, D.C.  He left Verner, 
Liipfert after suffering a heart attack and associated anxiety 
and depression, but through the good offices of Robert Nel-
son, at one time a managing partner at Verner and later 
General Counsel of Paralyzed Veterans, was hired by Para-
lyzed Veterans in September 1991 for a permanent position 
as an "Information Specialist."

     Crandall's stay there was not a happy one, for him or his 
co-workers:  he was soon admonished by supervisors for his 
habit of verbal abuse.  Nelson stuck up for him, arguing that 
Crandall's approach stemmed from his experience "in the law 
firm where everybody reacted quickly to everybody."  Ulti-
mately, however, Crandall abused the employees of an out-
side trade association, which sent Paralyzed Veterans a letter 



threatening to cut off access to its library.  On September 10, 
1992 Paralyzed Veterans drew the line and fired Crandall.

     Crandall's written job application materials disclosed no 
disability, and he conceded in his deposition that he never told 
anyone at Paralyzed Veterans that he had been diagnosed 
with or treated for bipolar disorder or any other psychiatric 
disorder.  In fact, in May 1991 he had been diagnosed as 
suffering from bipolar disorder and had been prescribed 
Lithium, complementing the Prozac he was already on as a 
result of his anxiety/depression diagnosis of the previous 
year.  Irritable outbursts are apparently among a number of 
typical symptoms of the manic phase of bipolar disorder.  See 
Diagnostic and Statistical Manual of Mental Disorders 328 
(4th ed. 1994).

                                  *   *   *


     Section 504 of the Rehabilitation Act, 29 U.S.C. s 794, 
provides:

     No otherwise qualified handicapped individual in the 
     United States, as defined in section 706(7) of this title, 
     shall, solely by reason of his handicap, be excluded from 
     the participation in, be denied the benefits of, or be 
     subjected to discrimination under any program or activi-
     ty receiving Federal financial assistance....

     Crandall was fired on September 10, 1992, but the term of 
Paralyzed Veterans' federal grant did not begin until Septem-
ber 11, 1992, according to the funding agency's letter approv-
ing the grant.  (Paralyzed Veterans did not actually receive 
federal funds until August 1993.)  The first question is wheth-
er the Act covered the dismissal of Crandall at all.

     Crandall first seeks to move the date of alleged discrimina-
tion forward in time.  Because Paralyzed Veterans promised 
to pay him through September 30, and for some time after 
September 10, 1992 preserved for Crandall an option of 
continuing his health insurance with Paralyzed Veterans's 



carrier, he says he should be counted as an employee 
throughout that period, pointing to some legal purposes for 
which the period of continued insurance access would consti-
tute employment.  But the object here is not to measure the 
duration of Crandall's employment, but rather to pinpoint the 
time of the alleged discriminatory act.  And if Crandall was 
discriminated against at any time, it was when he was notified 
that his employment was terminated, not when his benefits 
ceased.  Under Delaware State College v. Ricks, 449 U.S. 250, 
258 (1980), notice of final action fixes the timing of an act of 
employment discrimination for statute of limitations purposes, 
even when the employee actually works for a long time 
thereafter--in Ricks for a full year.  Crandall offers no 
reason to use a different rule to fix the time of discrimination 
for purposes of relating the employer's conduct to the onset 
of statutory coverage, and he cites no cases making the 
solution turn on the continuation of pay or benefits.

     Having failed to move the date of alleged discrimination 
forward past September 10, 1992, Crandall next tries to move 
the date of Paralyzed Veterans's coverage by the Act back-
wards in time.  Here he argues that because it pledged in 
June 1992 in its federal grant application to abide by federal 
rules and regulations, it was bound by s 504 even before it 
was awarded a grant.

     But Paralyzed Veterans's anti-discrimination assurances 
and general promise to abide by applicable rules were ex-
pressly stated as promises to do so "if the application is 
approved."  Moreover, although the letter from Legal Ser-
vices Corporation approving the grant was dated September 
4, 1992, the letter made the grant contingent on acceptances 
by the grantees (which appear to have occurred on Septem-
ber 14, 1992), and set September 11, 1992 as the starting date 
of the grant.  Crandall does not explain how Paralyzed 
Veterans's contingent promises could have become binding 
before it actually bound itself to the grant terms by accepting 
the government's offer in the manner it prescribed.  Thus 
both the formal start of the grant period and Paralyzed 



Veterans's contractual commitment came after the date of 
Crandall's dismissal.  The district court was correct to hold 
that s 504 did not apply at the time of the alleged act of 
discrimination.  We assume in Crandall's favor, without de-
ciding, that either of those dates was controlling, rather than 
Paralyzed Veterans's actual receipt of funds or its start on 
the work funded by the grant.1

     In any event, s 504 prohibits only discriminatory acts 
performed "solely by reason of" the plaintiff's handicap.  The 
courts of appeals have overwhelmingly agreed that for this 
causal link to be shown the employer must have acted with an 
awareness of the disability itself, and not merely an aware-
ness of some deficiency in the employee's performance that 
might be a product of an unknown disability.  They have so 
found under both the Rehabilitation Act itself and the analo-
gous provision of the Americans with Disabilities Act 
("ADA"), 42 U.S.C. s 12112(a) (providing that no employer 
"shall discriminate against a qualified individual with a dis-
ability because of the disability of such qualified individu-
al....").  See, e.g., Taylor v. Principal Financial Group, 
Inc., 93 F.3d 155, 163 (5th Cir. 1996) ("To prove discrimina-
tion [under the ADA], an employee must show that the 
employer knew of such employee's substantial physical or 
mental limitation.");  Morisky v. Broward County, 80 F.3d 
445, 447-49 (11th Cir. 1996) (liability under the ADA requires 
actual or constructive notice of the disability);  Collings v. 
Longview Fibre Co., 63 F.3d 828, 834 (9th Cir. 1995) (assum-
ing plaintiffs had a medically recognizable drug disability, 
they could not make out a case under the ADA where they 
could not show that employer was aware of it);  Miller v. 

__________
     1 Crandall points to the publication in the July 29, 1992 Federal 
Register of an announcement about the grant.  But since the 
statement merely expresses the Legal Services Corporation's "in-
tention to award" the grant, see 57 Fed. Reg. 33528 (July 29, 1992), 
we do not see how it could support a finding that Paralyzed 
Veterans was "receiving Federal funds" as of that date, the condi-
tion that triggers s 504 liability.



National Casualty Co., 61 F.3d 627, 629 (8th Cir. 1995) 
(under ADA, "[b]efore an employer must make accommoda-
tion for the physical or mental limitation of an employee, the 
employer must have knowledge that such a limitation ex-
ists.");  Hedberg v. Indiana Bell Tel. Co., 47 F.3d 928, 932 
(7th Cir. 1995).

     In Hedberg, for example, the plaintiff suffered from pri-
mary amyloidosis, a degenerative condition that causes fa-
tigue (and often death).  He was fired for poor job perfor-
mance, including tardiness and laziness, and the tardiness and 
laziness may have been a product of his disability.  47 F.3d at 
933.  Like Crandall, Hedberg had not disclosed the disability 
to his employer before he was terminated.  The court held 
that if Hedberg had been fired just on account of his tardi-
ness and laziness,

     [t]he ADA hardly requires that merely because some 
     perceived tardiness and laziness is rooted in disability, an 
     employer who has not been informed of the disability, 
     and who has no reason to know of the disability, is bound 
     to retain all apparently tardy and lazy employees on the 
     chance that they may have a disability that causes their 
     behavior.

Id. at 934.

     In an effort to parry Paralyzed Veterans's notice argument, 
Crandall points to authority that seems to equate dismissal 
for conduct arising from a disability with dismissal "by reason 
of" the disability.  Here he rests on Teahan v. Metro-North 
Commuter Railroad Co., 951 F.2d 511 (2d Cir. 1991), in which 
an alcoholic employee was laid off because of excessive, 
alcohol-induced, absenteeism.  The employer, whose aware-
ness of the disability was undisputed, defended on the ground 
that it could fire a disabled employee when it relied merely on 
the symptoms of the disability, and not on the disability itself.  
In this context, considering whether the dismissal could have 
been "solely by reason of [plaintiff's] handicap," the court said 
that "the relevant inquiry" was whether the employee was 
discharged solely for conduct caused by the underlying dis-
ability.  If so, then the employee was discriminated against 



solely by reason of his handicap, in violation of s 504.  Id. at 
517.

     We doubt whether, even apart from the notice issue, Teah-
an can be read to endorse the general proposition that if a 
disability causes poor job performance, and if the poor perfor-
mance causes dismissal, then the dismissal was "by reason of" 
the disability.  Such a reading would be in direct conflict with 
other circuits.  See Palmer v. Circuit Court of Cook County, 
117 F.3d 351, 352 (7th Cir. 1997);  Newland v. Dalton, 81 F.3d 
904, 906 (9th Cir. 1996);  Little v. FBI, 1 F.3d 255, 258-59 (4th 
Cir. 1993);  Taub v. Frank, 957 F.2d 8, 11 (1st Cir. 1992).  It 
seems more probable that the court intended merely to be 
sure that employers could not get off the hook by showing 
that they bore no discriminatory animus against the disability 
itself, independently of their attitude toward its manifesta-
tions.  This purpose is suggested by Teahan's example of a 
limping employee whose limp causes him to make an annoy-
ing thumping noise:  the employer could not defend firing the 
employee for the thumping, rather than the limping, on the 
grounds that the employer only cared about thumping.  Id. at 
516-17.

     In any event, whatever the merits of a broad reading of 
Teahan for cases where the employer has notice of the 
disability, we can see none in the absence of notice.  The 
Second Circuit could hardly have resolved its hypothetical of 
the thumping employee as it did if the employee had no 
apparent limp, merely an unexplained tendency to make 
irritating noises.  Especially in any area where medical ap-
praisals are relatively contestable or contingent on patients' 
self-descriptions, dispensing with a notice requirement would 
invite employees to manipulate the statutory protection, se-
curing post hoc disability diagnoses that encompass the con-
duct leading to their firing.  (We make the point not because 
there is the slightest suggestion that Crandall fabricated his 
disability--there is none--but to illustrate the perverse con-
sequences of a rule dispensing with notice.)  If the behavior 
is "not so obviously [a] manifestation[ ] of an underlying 



disability that it would be reasonable to infer that an employ-
er actually knew of the disability," Hedberg, 47 F.3d at 934, 
and the employer has no other notice of the disability, there 
can be no actionable discrimination.

     On Paralyzed Veterans's motion for summary judgment the 
question was whether Crandall had offered evidence from 
which a reasonable person could find that Paralyzed Veterans 
had any notice, actual or constructive, regarding his disability.  
See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986);  
Anderson v. Liberty Lobby, 477 U.S. 242, 257 (1986).  In our 
only prior ruling on the form of the notice the plaintiff must 
give the defendant, we rejected the proposition that there 
must be "precise notice."  See Blackwell v. U.S. Dep't of the 
Treasury, 830 F.2d 1183 (D.C. Cir. 1987).  Here, too, no great 
refinement of the concept of notice is needed, beyond the 
bedrock requirement of an adequate, prior alert to the defen-
dant of the plaintiff's disabled status.

     Insofar as Crandall claims that his rude behavior itself was 
so extreme as to afford notice, we reject his claim.  A layman 
cannot reasonably be expected to infer a psychiatric disorder 
merely from rudeness, given the prevalence of rudeness 
without psychiatric disorder.  Alternatively, Crandall tries to 
satisfy the notice requirement by pointing to conversations 
with Nelson (occurring first at Verner, Liipfert and later at 
Paralyzed Veterans) arising out of his 1990 application to 
Verner, Liipfert's insurer, UNUM, for total disability bene-
fits.  The insurer denied the claim and Crandall executed a 
release in exchange for a small settlement.  In the course of 
this he discussed with Nelson the possibility of an administra-
tive appeal of UNUM's decision.  But Crandall did not say in 
his deposition that he told Nelson of even having claimed a 
psychiatric disability.  At oral argument Crandall's counsel 
repeatedly mentioned the 1991 diagnosis's reference to psy-
chiatric disability, and Nelson's testimony that he did not 
recall ever seeing the diagnosis.  Despite Crandall's efforts to 



make Nelson's non-recollection look fishy, he offered no rea-
son to suppose that Nelson would have seen the diagnosis in the ordinary 
course of his work at Paralyzed Veterans (it was issued four 
years after Nelson left Verner, Liipfert).  Thus Crandall can 
extract nothing useful from Nelson's testimony on the point.

     Finally, Crandall points to Nelson's efforts to excuse Cran-
dall's rudeness by reference to his longtime exposure to work 
in big law firms.  Whatever the merits of this as an explana-
tion of rudeness, we fail to see how Nelson's effort to help his 
former colleague hold his job is evidence that Nelson (or 
anyone else at Paralyzed Veterans) was aware of Crandall's 
disability.

     We express no opinion whether, had he shown statutory 
coverage and notice, Crandall's claim could otherwise have 
survived summary judgment.

 

                                  *   *   *


     The judgment of the district court is

                                                                                               Affirmed.
                   
