6

Workplace Violence Cases

and Methods

CAUSE OF ACTION AND STATISTICS

Unlike the other theories and causes of actions discussed in this book, workplace violence is actually better characterized as an environmental or location-based crime. Indeed, workplace violence is not, in itself, a statutory crime. If an individual commits a violent act in the workplace, that individual would be charged with whatever crime or crimes that violent act constitutes according to state or federal statutes. For example, if an individual strikes his of her supervisor, that individual could be charged with battery. Thus, workplace violence can consist of battery, assault, rape, and even homicide—depending on the facts of the incident.

Definitions

In an attempt to accurately conceptualize workplace violence, authors have offered definitions to identify the main tenets of the act. For example, workplace violence has been defined as a “complex reaction by an individual functioning under a set of conditions influenced by community and cultural factors.”¹ In applying this definition, it is necessary to analyze the person, particularly in light of the work setting and social environment. A more strict definition was offered by Rob Kroft, who asserted that it consists of “violent acts, including physical assaults, threats of assault directed toward persons at work or on duty.”²

As evidenced by the above definitions, there are many perspectives relating to workplace violence. These include Societal/Psychological Factors and Risk Factors. The former deal directly with causal factors, while the latter deal with situational factors.

Societal and Psychological Factors

These factors tend to view workplace violence from the perspective of the motivation of the offender. This assessment considers the triggers that lead one to commit workplace violence. These factors are not presented as “causes” in the sense a social scientist might use the term. Instead, they are better described as motivating factors that may lead an individual to act out violently. In this light, the assertion by Grossman is instructive:³ “Nobody just snaps. You’ll see behavior that builds up. Then there’s a triggering event; a reprimand, a layoff, or a demotion that causes somebody to put into place their plan to act violently.”

Such “triggering” factors typically include the following:⁴

2. Loss of self-worth (from identification with employment)

3. Increased stress levels (on and off the job)

4. Availability of firearms

5. Resentment toward employer, supervisors, or coworkers

6. Personality conflicts at work

7. Personal issues unrelated to work (such as divorce, alienation of lover, death of family member or loved one, illness or disability, etc.)

Risk Factors

These factors tend to be more situational than motivational. They typically involve job characteristics such as the following:⁶

2. Exchange of money

3. Delivery of passengers, goods, or services

4. Working with unstable or volatile persons in health care, social service, or police or security professions

5. Solitary or close working conditions

6. Late-night or early-morning shifts

7. Location in high crime areas

8. Guarding valuable property or possessions

9. Working in community-based settings

Statistical Analysis and Implications

The impact of workplace violence is personally, financially, and organizationally devastating. Studies and statistics have demonstrated this assertion. Some as far back as the early 1990s began to reveal the impact of workplace violence. For example, in 1993 the National Institute of Occupational Safety and Health revealed that the leading cause of death in the workplace for women was from violent acts. In addition, the same study asserted that workplace violence was the second leading cause of overall occupational death, exceeded only by motor vehicle-related deaths. Further, the study revealed about one million people are assaulted per year.⁸

Victimization surveys demonstrate the personal impact of workplace violence. Estimates revealed about 1,751,100 days are lost per year as a result of violence, from 160,000 annual injuries. This includes a breakdown of specific crimes that occur at work. About 8 percent of all rapes occur at work, 7 percent of all robberies, and 16 percent of all assaults.⁹ Other more recent studies further elaborate the impact of workplace violence. For example, the cost of such violence to employees is about $55,000,000 annually in lost wages—which does not include sick and paid leave. In addition, the estimated annual cost of medical services was placed at $13.5 billion dollars.¹⁰ The overall costs of workplace violence has been estimated to have grown from $4.2 billion annually in 1992 to $121 billion annually in 2002.¹¹

The demographics and characteristics of workplace violence were further assessed by other studies. For example, a study of 125 workplace violence cases found that 97.5 percent of offenders were male, 81 percent used firearms, 23.8 percent committed suicide after the act, and 16.1 percent exhibited a history of mental problems or displayed warning signs before the act.¹²

Efforts to combat workplace violence have had some impact. Indeed, the annual number of deaths from workplace violence gradually declined each year starting from 1996 until 2000. Since then, the number of homicides has been generally increasing.¹³

Employers face numerous challenges in continued attempts to reduce the impact of workplace violence. Ironically, as will be illustrated in the cases below, certain laws, particularly the Americans with Disability Act (ADA) have complicated attempts to address potential violence. In addition, the Occupational Safety and Health Act (OSHA) mandates a workplace free from “recognized hazards that are causing or are likely to cause death or serious physical harm.”¹⁴ This provision is considered a “general duty” when the hazards involved:¹⁵

• Are known to the employer and are considered hazards in the employer’s business or industry, and

• Are the type of hazards that the employer can reasonably be expected to prevent.

Background

Former employee sued former employer for discrimination under Americans with Disabilities Act (ADA) and for wrongful termination under Texas law. The United States District Court for the Northern District of Texas entered summary judgment for former employer. Former employee appealed.

Holdings

The court of appeals held that:

1. Employee failed to present evidence that his posttraumatic stress disorder (PTSD) was impairment that substantially limited major life activity, and thus he failed to make threshold showing of ADA-qualified disability;

2. Employee failed to show that employer regarded or treated him as having impairment; and

3. Even assuming employee was disabled, he was not terminated because of his disability, but because he violated employer’s policy on workplace violence.

Affirmed

About four months before he was fired, Hamilton rescued a drowning woman. For a time following the rescue, he experienced a variety of mental disturbances and suffered “extreme fatigue” that limited his ability to perform manual tasks, such as mowing his lawn. He told his supervisor, Dennis Dorsey, that his pastor thought these problems were posttraumatic stress disorder (“PTSD”) symptoms.

A month later, Hamilton verbally abused and struck a coworker on the job. Dorsey referred Hamilton to BELL’s Employee Assistance Program (“EAP”), where a social worker concluded Hamilton was suffering from agitated depression and some posttraumatic symptoms. The social worker referred him to a private counselor. He was also evaluated by a psychiatrist, Babette Farkas. Both the social worker and Farkas reported PTSD. During this counseling and evaluation period, BELL received from members of Hamilton’s department an anonymous letter that accused him of being a “disgusting, dangerous and abusive man and manager.”

Hamilton, believing that his job pressures exacerbated his PTSD, sought to reduce the stress he experienced in his position in BELL’s revenue management department. He expressed concern about participating in Project X, a project that discontinued service, without the usual 10-day notice, to minority customers whose accounts were delinquent. He resisted participating in the project because he believed that if he participated he could be personally charged with committing a third degree felony. Although he claimed to have drafted memoranda protesting Project X, no copies of the correspondence exist.

After he was fired, Hamilton sued BELL. The district court granted summary judgment on Hamilton’s ADA claim, finding no genuine fact issue as to whether his medical condition substantially limited any major life activities such that his PTSD could be considered an impairment under the ADA. It also determined that Hamilton failed to adduce any evidence showing BELL fired him solely because of his disability. Hamilton now appeals.

To make out a prima facie case of discrimination under the ADA Hamilton must show that (a) he has a disability; (b) he is a qualified individual for the job in question; and (c) an adverse employment decision was made because of his disability. See 42 U.S.C. Section 12112(a). The threshold issue in a plaintiff’s prima facie case is a showing that he suffers from a disability protected by the ADA. That statute confers a special meaning to the term “disability”:

(C) being regarded as having such an impairment.

To substantially limit means:

(ii) Significantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner or duration under which the average person in the general population can perform the same major life activity.

The EAP counselor found that Hamilton presented some symptoms of PTSD and Farkas, his treating psychiatrist, diagnosed PTSD. Hamilton claims his PTSD caused him to overeat to the point of being nauseous and having to go to bed, thus impairing his ability to care for himself. He attributes his thoughts of suicide and difficulty in concentration to the mental disorder. Additionally, Hamilton described episodes of fatigue that made it difficult for him to mow his lawn.

By his own admission, however, these impairments no longer exist and the major life functions described by the EEOC regulations have not been affected. We have noted that “the EEOC regulations provide that temporary, non-chronic impairments of short duration, with little or no permanent long-term impact, are usually not disabilities.” Consequently, there was no evidence offered on which a jury could find that this impairment substantially limited a major life activity other than working.

We now examine the effect Hamilton’s PTSD had on the major life activity of working. With regard to working:

Substantially limits means significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills, and abilities. The inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working.

Hamilton presents no evidence that his disability prevents him from performing an entire class of jobs, or even a broad range of jobs. The symptoms he reported included crying when faced with stress, loss of temper, and an inability to deal with customer relation issues. By his own admission, however, Hamilton’s performance level was “still ahead of his peers.” He worked his regular hours until his termination except for the week he was given off to adjust to his medication. Although Dr. Farkas diagnosed Hamilton’s condition as PTSD, she did not identify specific activities within his work environment that would be substantially limited by PTSD. Her prognosis was that Hamilton would be able to function normally without any medication. Interestingly, despite his claim that stress in his job exacerbated his PTSD and that the mental disorder made him unable to deal with customer relations, Hamilton ran his own software distribution business for almost a year after his discharge. He then became a senior consultant with another firm.

Hamilton retains the ability to compete successfully with similarly skilled individuals and no facts indicate that he is unable to perform a class of jobs nor a broad range of jobs. We agree with the district court that any work impairment Hamilton may have suffered was merely temporary; we have previously rejected attempts to transform temporary afflictions into qualifying disabilities. We hold that he has failed to present evidence to satisfy the threshold requirement of an ADA claim—that he has an impairment that substantially limits a major life activity.

Having no ADA recognized disability, Hamilton has thus failed to provide summary judgment evidence that he has a record of such an impairment that substantially limits a major life activity.

Also, there is no evidence presented that, although his PTSD did not rise to the level of an ADA disability, BELL treated Hamilton as having a substantially limiting impairment. In sum, we find that the record is without support for Hamilton’s claim that the mental impairments imposed by his PTSD are severe enough or of sufficient duration to constitute a disability under the ADA.

Furthermore, even if Hamilton were disabled, the ADA requires that BELL’s adverse employment action be taken because of his disability. Hamilton was not terminated because of his disability but rather because he violated BELL’s policy on workplace violence.

Several weeks after the rescue, Hamilton, slamming an office door, angrily confronted a physically smaller female manager in front of witnesses after she returned to work from a shopping trip. In response to her appeal to not speak to her in such a tone, he slapped her hand down, yelling that she “get that f___ing finger out of my face.” Additional profanity followed. He stormed from the office but then returned to continue his abusive harangue, yelling “You f___ing bitch!” BELL found this behavior to be an egregious violation of its policies, suspended Hamilton at the beginning of February and discharged him at the end of that month.

Although Hamilton argues that the incident was caused by his PTSD, we are persuaded that the ADA does not insulate emotional or violent outbursts blamed on an impairment. An employee who is fired because of outbursts at work directed at fellow employees has no ADA claim. BELL had instituted its policy against workplace violence, with provisions for suspension and dismissal for “extremely severe” offenses, before Hamilton’s misconduct. As a BELL employee, Hamilton was held accountable for violating this policy. BELL cited this conduct as its reason for firing Hamilton; we do not regard this reason as pretextual merely because BELL failed to describe the misconduct as workplace violence until the Texas Employment Commission hearing.

The cause of Hamilton’s discharge was not discrimination based on PTSD but was rather his failure to recognize the acceptable limits of behavior in a workplace environment. The nature of the incident, shown by the record, presents a clear case in which Hamilton was fired for his misconduct in the workplace. We adopt for an ADA claim the well-expressed reasoning applied in the context of a protected activity-retaliatory discharge claim: the rights afforded to the employee are a shield against employer retaliation, not a sword with which one may threaten or curse supervisors. Hamilton can not hide behind the ADA and avoid accountability for his actions.

For the reasons cited above, we affirm the grant of summary judgment.

CASE COMMENT

This case provides an excellent example of the impact of ADA requirements in relation to the threat of workplace violence. Here the employee acted in a belligerent and threatening manner. When his employer terminated the employment relationship, the plaintiff sought remedies based on the ADA. The court analyzed the definitional requirements of “disability.” It concluded that the plaintiff did not show that he was “disabled” under the meaning of the act. Because he could not show the existence of a disability, he had no protection under the ADA. In addition, the court found sufficient evidence that he was terminated because of violations of the workplace violence policy.

Notwithstanding this conclusion by the court, this case illustrates the delicate balance faced by employers. On one hand, the ADA protects individuals who can demonstrate a disability from job actions. On the other hand, the employer must be cognizant of problematic employees who may pose a threat to other employees within the workplace, or to the interests of the employer. Certain mental disabilities, however, are often manifested by inappropriate or problematic behavior, such as exhibited by the plaintiff in this case. Consequently, employers must assess behavior in light of whether it is caused by a disability. If so, the next question is whether the employer can accommodate the disability without creating an undue hardship (or risk) within the workplace. This can be a difficult, factually intensive assessment. Other cases also demonstrate this delicate balance goes beyond ADA requirements to other constitutional and discrimination based claims.

Background

Terminated employee brought action against employer alleging retaliatory discharge and related claims. Employer moved to dismiss. The Circuit Court, Cook County, granted employer’s motion. Employee appealed.

Holding

The appellate court held that the employee failed to show any cause of action.

Affirmed

The plaintiff was employed by LaSalle from 1989 until October 25, 1996. In September 1996, the plaintiff’s immediate superior, Ralph Newcomb, received a threatening message on his voicemail. Several individuals for whom the message was played believed that the voice on the message was that of the plaintiff. The matter was reported to the police. Approximately one month later, a female caller left a message on Newcomb’s voicemail threatening Newcomb’s wife.

On October 22, 1996, the plaintiff was summoned to LaSalle’s regional office and questioned regarding the threatening messages. This meeting was attended by Mike Mason, LaSalle’s Customer Fulfillment Manager, and Jack Burke, who was identified to the plaintiff as a “LaSalle troubleshooter.” The plaintiff denied leaving any threatening messages on Newcomb’s voicemail but was, nevertheless, ordered to read a transcript of the threatening message so that a recording of his voice could be made for comparison purposes. The plaintiff refused and was suspended from his job without pay.

The plaintiff next met with Mason and Burke on October 25, 1996, and was again ordered to provide a recording of his voice reading a transcript of the threatening message. When the plaintiff refused, his employment with LaSalle was terminated. The plaintiff filed a three-count complaint against LaSalle for various causes of action.

The tort of retaliatory discharge is an exception to the general rule that “at-will” employment is terminable at any time for any or no cause. In order to recover upon a claim of retaliatory discharge, a plaintiff must establish that he was discharged in retaliation for his activities and that the discharge violated a clear mandate of public policy. In this case, the plaintiff has pled both that he was discharged from his employment with LaSalle and that his discharge was as a consequence of his activities, namely, refusing to read a transcript of the threatening message left on Newcomb’s voicemail. The question is whether the facts as alleged establish that the plaintiff’s discharge was in violation of a clear mandate of public policy.

The plaintiff argues that the public policy violated by his discharge is the protection of the privilege against self-incrimination guaranteed by both the Fifth Amendment to the United States Constitution and article I, section 10 of the Illinois Constitution. LaSalle argues that a voice exemplar, such as that requested of the plaintiff, is not a testimonial statement and, as such, neither the Federal nor the state constitutional privilege against self-incrimination protects a person from being required to give one. LaSalle further asserts that the privilege against self-incrimination acts as a restraint upon the government only, not a limitation upon the activities of a private party.

As a preliminary matter, we will address the plaintiff’s contention that his complaint does not allege that he was directed to give a voice exemplar. The term “exemplar” is defined as “one that serves as a model or example.” Interpreted in their light most favorable to the plaintiff, the allegations of the complaint assert nothing more than the fact that the plaintiff was directed to “provide a tape recording of his voice reading the transcript of the message allegedly left” on Newcomb’s voicemail so that LaSalle “could compare it to the threatening message left for Mr. Newcomb ... ostensibly for the purpose of determining whether or not ... [his] denial of involvement was truthful.” The plaintiff asserts that, pursuant to voice recording standards adopted by the American Board of Recorded Evidence, a voice exemplar must be taken by trained professionals in a controlled setting in order to be valid for comparison purposes. We are not concerned with the question of whether the exemplar, if given, would have been valid. Rather, we need only consider whether the plaintiff alleged that LaSalle ordered him to give a voice exemplar for purposes of comparison. It is clear from the plaintiff’s complaint that he alleged precisely that.

LaSalle is correct in its assertion that the constitutional privilege against self-incrimination restricts only government conduct. To establish violation of defendant’s Fifth Amendment right against self-incrimination, plaintiff must demonstrate that plaintiff’s conduct constituted state action and any interrogation subject to strictures of Fifth Amendment must be at hands of government actor. As LaSalle’s conduct did not constitute state action, the trial court properly dismissed count I of the plaintiff’s complaint, in which he alleged that he had been discharged in retaliation for invoking his constitutional right against self-incrimination.

Even if the constitutional protection against self-incrimination could be said to apply to LaSalle’s conduct, the plaintiff failed to state a cause of action for retaliatory discharge. The United States Supreme Court has held that the privilege against self-incrimination guaranteed by the Fifth Amendment to the United States Constitution protects an accused only from being compelled to testify against himself or otherwise provide the state with evidence of a testimonial or communicative nature. However, the privilege offers no protection against one being compelled to speak for identification purposes. Simply put, compelled production of a voice exemplar for identification or comparison purposes does not violate the Fifth Amendment.

The fact that the plaintiff has cited his “rights against self incrimination as protected by the Illinois and United States Constitutions” as the public policy violated by his discharge does not of itself give rise to a claim for retaliatory discharge. “The test for determining if the complaint states a valid cause of action is whether the public policy clearly mandated by the cited provisions is violated by the plaintiff’s discharge.” Since being compelled to give a voice exemplar does not violate the privilege against self-incrimination guaranteed by the Fifth Amendment to the United States Constitution or article I, Section 10 of the Illinois Constitution, LaSalle’s discharge of the plaintiff for refusing to give such an exemplar does not violate the public policy embodied in either constitutional provision. As a consequence, we find that count I fails to state a cause of action for retaliatory discharge and was, therefore, properly dismissed by the trial court.

To state a claim for civil conspiracy, a plaintiff must plead that two or more persons intentionally combined for the agreed purpose of accomplishing by concerted action either an unlawful purpose or a lawful purpose by unlawful means. However, the basis of a claim of civil conspiracy that may result in tort liability is not the mere combination of two or more persons, but the wrongful act alleged to have been done pursuant to the agreement.

Liberally construed, the plaintiff’s civil conspiracy claim alleges that he was discharged both because he refused to give a voice exemplar and because of his race. As discussed above, however, the plaintiff’s discharge for failing to give a voice exemplar cannot support a claim for retaliatory discharge and does not, therefore, constitute any wrongful act which can support a claim of civil conspiracy. We are left then with the issue of whether the plaintiff’s allegation that LaSalle conspired to, and did, terminate his employment “because he was Black” can support a common law action for civil conspiracy.

The Illinois Human Rights Act (Act) is a comprehensive scheme of remedies and administrative procedures for redress of civil rights violations. Section 2-102(A) of the Act provides that it is a civil rights violation for any employer to discharge an employee on the basis of “unlawful discrimination.” The Act defines “unlawful discrimination” as discrimination against a person because of, inter alia, his race, color or national origin.

There can be no disputing the fact that the plaintiff’s assertion that LaSalle, his employer, conspired to, and did, terminate his employment “because he was Black” alleges a civil rights violation within the meaning of the Act. As a consequence, no basis independent of the Act exists for imposing liability upon LaSalle predicated upon this charge, and the circuit court lacked jurisdiction to consider the claim.

Based on the foregoing analysis, the judgment of the circuit court granting LaSalle’s motion to dismiss the plaintiff’s complaint and each of the three counts pled therein is affirmed.

CASE COMMENT

In this case, the plaintiff was suspected of leaving a threatening message to his supervisor. When he was asked to submit a voice exemplar in order to compare the voice on the message with his voice, he refused. He was subsequently terminated. Plaintiff argues that the termination violated his constitutional rights and that his employment was wrongfully terminated. The court found no constitutional protection because his employer was not a state actor. The termination was not wrongful because there was no public policy violation. In this analysis, the court properly focused on the plaintiff’s behavior and found that his allegations were insufficient to state a cause of action.

Background

Discharged employee filed suit against his former employer, alleging that he was unlawfully terminated as a result of a sensory, mental, or physical disability, as a result of migraine headaches and a depressive disorder. The Superior Court, Yakima County, entered summary judgment for employer. Employee appealed, and employer cross-appealed.

Holding

The court of appeals held that evidence was insufficient to present prima facie case of disability discrimination.

Affirmed

Dowty is a Washington corporation that manufactures component parts for commercial and government aircraft. Mr. Roeber began working for Dowty in August 1980. At the time he was terminated in 1998, he held the position of manufacturing engineering programming specialist. Throughout his employment he received regular promotions and salary increases. His annual reviews indicated that he was a competent, valued employee who generally worked well with others. On the other hand, he often needed improvement in attendance and punctuality, and it was noted that, on occasion, he came across “too strong.” According to Mr. Roeber, his work was stressful and the stress increased from 1997 on, when colleagues quit and the additional workload was placed on the remaining employees. He felt compelled to work over 50 hours per week to meet the company deadlines.

On Saturday, May 16, 1998, Mr. Roeber came to the office to assist with a project that was having problems. He attempted to enter through the “tool crib,” an enclosed area with a locked steel mesh door. Because he saw no one there to let him in, he kicked the door a few times. Bruce Garner, the tool crib attendant, arrived and walked past Mr. Roeber to the tool crib window, where he talked to his son, James Garner. Feeling ignored, Mr. Roeber said something like, “Hey, Bruce, why don’t you let me in so I can take care of this problem and go home.” Bruce Garner opened the door but reportedly said, “You kick this door again, and I’m going to kick your ass.”

As Mr. Roeber stepped through the door, Bruce Garner slapped him on the face “hard enough to cause a stinging sensation.” Mr. Roeber was “instantly infuriated” and called the police to report an assault. As Mr. Roeber tried to leave the tool crib, Bruce Garner approached him. James Garner stepped between the two men and placed his hand on Mr. Roeber’s chest. In response, Mr. Roeber stated something like, “Don’t get in the middle of this or I’ll have to take your head off to get you out of the way.” Mr. Roeber later told his supervisor and the investigating police officer that he was so mad he could have killed Bruce Garner. He acknowledged stating, “If I had a gun, I would’ve killed him.” However, he claimed the statement was merely a figure of speech.

Other witnesses presented a different scenario. According to Bruce and James Garner, Mr. Roeber arrived at the tool crib angry, kicked the door, and yelled while Bruce Garner was assisting his son with a tool. Bruce Garner reportedly thought Mr. Roeber was kidding. Playing along, he mock-threatened to box Mr. Roeber’s face if he did not calm down, and tapped him on the cheek. At this point, the Garners claim, Mr. Roeber became extremely angry and James Garner stepped between the two men. James Garner asserts Mr. Roeber told him to “get out of the way or I’ll rip your head off.” Mr. Roeber’s supervisor, who arrived soon after, reports that Mr. Roeber was very angry and stated, “if I had a gun I’d kill him right now.” The investigating officer later stated he felt that Mr. Roeber was capable of carrying out his threat and warned against possible retaliation.

Mr. Roeber was suspended pending an investigation of the incident. Management asked him to submit a written statement of his version of the events. He complied with a letter dated May 26, 1998. In this letter he admitted stating “I was so mad I could have killed him,” and “I’ll have to take your head off to get you out of the way.” However, he denied making a direct threat on anyone’s life. He explained that the medication for his depression had not been working during the last couple of weeks and it scared him that he got so mad so quickly. However, he asserted that “this story has evolved way beyond the reality of what actually happened.” He also wrote, I believe that calling the police as a response to any aggravating circumstance is a sensible course of action. I was not “extremely upset” until after Bruce slapped me and I needed an arbitrator to intervene. I still believe that, given the circumstances, it was the right thing to do.

On May 27, 1998, Mr. Roeber met with Human Resources Director Cheryl Dale, Vice-President of Operations Don Johnston, and Manufacturing Engineer Manager Mike Stanley. Although he stated he was surprised and concerned about how quickly his temper flared, Mr. Roeber asserted he handled the situation correctly. He was also surprised that his threats had been taken seriously. On May 29, Ms. Dale sent Mr. Roeber a termination letter. In it she explained that the company considered it unacceptable for an employee to intimidate or fight with a coworker. She further stated that Mr. Roeber’s threats of violence had to be taken seriously due to the company’s responsibility to provide a safe workplace.

In November 1998, Mr. Roeber filed a charge of discrimination with the Equal Employment Opportunity Commission. He claimed he was discharged due to a mental condition impairing his anger control. The EEOC dismissed this charge, finding no violation of the statutes, but advised Mr. Roeber of his right to file a lawsuit in federal court. Thereafter, Mr. Roeber filed a complaint in the United States District Court—Eastern District. He claimed violations of the Americans with Disabilities Act, 42 U.S.C. Section 12101, and the Washington State law against discrimination. The district court granted Dowty’s motion for summary judgment on the ADA claim and dismissed the state law claims without prejudice. The Ninth Circuit Court of Appeals affirmed.

According to Mr. Roeber, he first consulted with a mental health counselor in 1988, when he was going through a divorce. At that time, he took an antidepressant for about ten days. He again sought counseling for depression in September 1992, when he was under substantial stress at work and a coworker recommended treatment for his mood swings. Dowty’s Human Resources Director at that time, Bette Taylor, recommended that Mr. Roeber see therapist Gary Hammer, who provided care to Dowty employees as part of an employee assistance program. Mr. Roeber participated in counseling with Mr. Hammer for dysthymia (a depressive disorder) sporadically from September 1992 through mid-February 1995. In mid-April 1994, Mr. Hammer referred Mr. Roeber to nurse-practitioner Terence Walker for antidepressants. Treatment notes by Mr. Walker indicate that the medication seemed to alleviate some of the effects of Mr. Roeber’s depression, including his inability to sleep and interact with others.

By 1997, Mr. Roeber was reportedly feeling overwhelmed at work. He asked Mr. Walker to send a letter to Dowty regarding the job stress. The letter, sent to Ms. Taylor on February 7, 1997, stated that Mr. Roeber had done “quite well” on antidepressants, but that he was now feeling extremely overwhelmed by the hours and responsibilities at work. Mr. Walker further stated that Mr. Roeber reported he had talked to his supervisors on several occasions to try to remedy the problems, but that he had not gotten any response. In conclusion, Mr. Walker wrote, “I hope you will be able to assist Don in his efforts to maintain his employment under less stressful conditions.” There is no indication in the record that Dowty responded to Mr. Walker’s letter or otherwise acted on it.

Mr. Roeber believes that one of the reasons he suffers a depressive disorder is that he is subject to migraine headaches. Since about 1991, he has suffered nearly daily migraines, although they have been controlled by medication since 1994. He claims that he failed to report to work or left work on occasion due to the headaches.

Prima Facie Case of Disability Discrimination

An employer who discharges an employee for a discriminatory reason faces a disparate treatment claim, while an employer who fails to accommodate an employee’s disability faces an accommodation claim. Mr. Roeber alleges both disparate treatment and accommodation violations.

Disparate Treatment

In a disparate treatment discrimination case, the employee bears the first burden of setting forth a prima facie case of unlawful discrimination. An employee alleging disability discrimination must establish that he or she (1) is in a protected class (disabled), (2) was discharged, (3) was doing satisfactory work, and (4) was replaced by someone not in the protected class. The employee must present specific and material facts to support each element of this prima facie case. If the employee fails to set forth a prima facie case of discrimination, the employer is entitled to prompt judgment as a matter of law.

Once the employee establishes a prima facie case, a rebuttable presumption of discrimination temporarily takes hold. At this point, the burden shifts to the employer to present sufficient evidence of a legitimate and nondiscriminatory reason for the discharge. If the employer fails to meet this burden of production, the employee is entitled to an order establishing liability as a matter of law. However, if the employer presents sufficient admissible evidence to raise a genuine issue of fact as to whether it discriminated against the employee, the presumption established by the prima facie case is rebutted. The employee must then provide evidence that the employer’s stated reason for the discharge is in fact pretext.

Considering the above, Mr. Roeber’s first task in establishing a prima facie case was to present evidence that he has a disability. Pursuant to the regulations adopted under the auspices of the Washington Human Rights Commission, a condition is a disability if it is (1) an abnormality, and (2) is a reason why the person having the condition was discharged.

Mr. Roeber established with treatment records that he suffers from migraine headaches and a depressive disorder. Arguably these conditions are abnormalities. However, as discussed below in terms of accommodation, Mr. Roeber does not show that these conditions substantially limited his ability to perform his job.

As for the other elements of a prima facie case of disability discrimination, he established that he was discharged and that he did consistently satisfactory work for Dowty. He failed to establish, however, that he was replaced by someone outside his protected class, or that his disability was a reason he was discharged. Although he claimed he trained a person just before he was discharged, he provides no evidence that the person he trained was hired to replace him or that the person was not disabled. Further, he presents no evidence that his medical condition was discussed in any performance reviews or in the investigation that led to his termination. On this record, he does not establish a prima facie case of disparate treatment discrimination.

Further, even if we assume Mr. Roeber carried his initial burden, Dowty presents compelling evidence of a nondiscriminatory explanation for firing him. Its employee handbook states that employees will be disciplined (up to and including suspension or discharge) for “fighting on Company premises, horse-play, or intimidation or coercion of fellow employees.” Following the allegations of Mr. Roeber’s threatening behavior on May 16, 1998, Dowty management suspended Mr. Roeber and conducted an investigation into the incident. The managers concluded, based on statements from witnesses, Mr. Roeber, and the investigating officer, that Mr. Roeber’s actions constituted unacceptable threats of violence against fellow employees.

Mr. Roeber fails to rebut this explanation with probative evidence of pretext. He argues first that his request for accommodation was closely followed by his discharge, raising an inference of a causal relationship. But the only pertinent evidence of a request for accommodation is the 1997 letter from Mr. Roeber’s nurse-practitioner, and discharge occurred over a year later after a favorable employment review. Mr. Roeber also contends other employees who demonstrated threatening behavior were treated more favorably. However, two of the three employees who reportedly behaved inappropriately merely yelled in anger or threw a paper tablet against the wall. Three years prior to Mr. Roeber’s discharge, an employee was referred to anger management counseling after he threatened to throw a fellow employee’s glasses against the wall. Around that time, another employee reportedly threatened to kill a coworker; however, that incident is not contained in the personnel records. Except for the latter case, none of these other incidents rise to the level of threats to kill or to do great violence, and are thus distinguishable from Mr. Roeber’s acts. The only incident regarding a threat to kill occurred before the current management was hired, and even that incident did not involve a threat to use a firearm. All together, these incidents do not establish that Dowty had a standard response to threats of extreme violence, or that it deviated from the standard in dealing with Mr. Roeber.

Ultimately, it is not unlawful for an employer to discharge an at-will employee because the employee is perceived to have misbehaved. Mr. Roeber does not raise a reasonable inference of pretext. Consequently, Dowty was entitled to judgment on the claim of disparate treatment discrimination as a matter of law.

Accommodation

To establish a prima facie case of failure to reasonably accommodate a disability, Mr. Roeber must show that (1) he had a sensory, mental, or physical abnormality that substantially limited his ability to perform the job; (2) he was qualified to perform the job; (3) he gave Dowty notice of the abnormality and its substantial limitations; and (4) upon notice, Dowty failed to affirmatively adopt measures available to it and medically necessary to accommodate the abnormality. Mr. Roeber fails to present sufficient evidence that his abnormality substantially limited his ability to perform his job, that he gave Dowty notice of his abnormality’s substantial limitations, or that Dowty failed to adopt measures that were medically necessary to accommodate the abnormality.

Even assuming Mr. Roeber had complained to his supervisors as often as he indicated in his affidavit, the record does not show that Dowty was given notice that his migraines and depressive disorder were substantial limitations. The only letter from a medical practitioner indicated that Mr. Roeber’s condition was successfully treated with medication. He was never hospitalized or otherwise substantially limited in his ability to perform his job. Although he claims he sometimes missed work or had to leave work due to his headache pain, he also admits his injections of migraine medication usually prevented the headaches from developing or soon brought relief. The record simply does not support his contention that he gave notice to Dowty that he was significantly limited in his ability to perform his job.

Generally the question of an employer’s reasonable accommodation for an employee’s disability is one for the jury. However, when the employee fails to establish either that a specific reasonable accommodation was available or that accommodation was medically necessary, the burden of production never shifts to the employer to show that the proposed solution was not feasible. In such case, the employer is entitled to judgment as a matter of law. Mr. Roeber fails to establish on the record that specific vacant positions were available at the time he gave notice of his limitations, or that accommodation was medically necessary. Consequently, the trial court correctly adjudicated his accommodation claim as a matter of law.

This court provided an excellent analysis of the facts and the law. Of significance in this case is the behavior of the plaintiff. From both the disparate treatment and the accommodation theories, the court properly used the burden shifting analysis. The initial burden is with the plaintiff, where he must show sufficient facts to establish the prima facie case. Next, the burden shifts to the employer to present facts to demonstrate non-discriminatory reasons for the job action. Finally, the burden then shifts back to the plaintiff, who must show that the reasons proffered by the employer were a pretext, that the actual reason for the job action was discriminatory. Based on this factual and legal analysis, the court found for the employer, finding sufficient evidence that the job action was based on the threatening behavior of the plaintiff.

Background

Terminated employee brought suit against employer, alleging that his termination had been based on a disability, in violation of Americans with Disabilities Act (ADA), and Arkansas Civil Rights Act. The United States District Court for the Eastern District of Arkansas granted summary judgment to employer. Employee appealed.

Holding

The court of appeals held that employee had failed to show that he was disabled or was perceived as disabled or that proffered nondiscriminatory justification for termination was pretextual.

Affirmed

Blanton failed to come forward at the summary-judgment stage with sufficient evidence to make a triable case on his claim that he was disabled or was perceived by Prestolite as being disabled. In addition, Blanton failed to provide evidence to show that Prestolite’s legitimate, nondiscriminatory reason for firing him—that Prestolite believed Blanton was a serious threat to its employees—was pretextual. The evidence shows that Blanton was fired after he (1) threatened to “take out” certain of his co-employees who had allegedly wronged him, (2) threatened to “blow away” the building housing Prestolite’s workers’ compensation carrier, (3) brandished a handgun and threatened suicide during an appointment with his workers’ compensation doctor, and (4) admitted to threatening a co-employee in a workplace dispute.

In short, Blanton failed to present any evidence from which a reasonable trier of fact could find that Prestolite’s termination of his employment was the product of unlawful discrimination. Blanton cannot avoid the consequences of his failure of proof by arguing that Prestolite somehow caused his alleged disability, and the district court did not err in its order denying Blanton’s motion for reconsideration by finding that argument to be wholly without merit.

Essentially for the reasons stated in the district court’s order granting summary judgment, the judgment of that court is AFFIRMED.

CASE COMMENT

Here again the court properly used the burden shifting approach, finding that the termination was based on the threatening behavior of the plaintiff. Further, the plaintiff failed to show any evidence to demonstrate his termination was based on discrimination. Consequently, the employer was not liable for the A.D.A. claim.

Background

Employee who was terminated after behaving in threatening manner toward coworkers sued employer, alleging it violated Americans with Disabilities Act (ADA) by terminating his employment. Employee also brought pendent state law claim alleging his discharge was in violation of public policy. The United States District Court for the District of Massachusetts granted summary judgment for employer and dismissed both federal and state claims. Employee appealed.

Holdings

The court of appeals held that:

2. Employee also was not a “qualified individual with a disability” under ADA;

3. There was no reasonable accommodation that would have enabled employee to perform the essential functions of his job; and

4. State law claim was without merit.

Affirmed

Calef worked as a Production Mechanic at Gillette from August 22, 1989, to December 13, 1996. In the early 1990s Calef had several incidents with co-employees which led his supervisors to make written reports. In 1990 he “had words” with a coworker. On April 4, 1991, Calef and a coworker each received a warning after an altercation in which Calef, in anger, had threatened the coworker with physical harm after being so threatened himself. On March 10, 1992, Calef and another employee had to be physically separated by a supervisor after an incident in which the employees angrily exchanged insults and profanity and squirted oil on each other; Calef says the other employee squirted first. Six days later Calef was involved in another argument with a group leader. That night Calef got in a heated exchange with a different group leader and questioned the group leader’s performance.

As a result of this series of confrontations with his supervisors and coworkers—on April 4, 1991, March 10, 1992, and March 16, 1992—Gillette gave Calef a written warning, which said Calef was being told that actions of this nature will not be tolerated and any such actions in the future could result in a final warning which could ultimately lead to his termination from the payroll.

On September 13, 1995, Calef was involved in another incident, which resulted in his being issued a Final Warning. On that day, Calef had a confrontation with Jeanette St. Aubin, a machine operator who worked with him on the second shift. It was Calef’s responsibility to investigate and repair the machines that St. Aubin operated when she reported trouble with them, as she did that day. After her encounter with Calef, St. Aubin, crying and shaking, went to see supervisor Frank Sciarini in his office. She said Calef had harassed her about her inability to run machinery and that whenever she had difficulties with her machine, Calef got mad at her and told her to speak English. St. Aubin further reported that Calef had come to her machine, pointed his finger in her face, raised his hand, made a fist, and stated, “Stop calling me or I’ll punch you in the face.” Calef admits raising his voice toward St. Aubin and he admits that he threatened to hit her. At the time, St. Aubin was two weeks shy of her sixtieth birthday. Calef says St. Aubin poked him in the chest and scratched his hand. He then threatened to hit her but immediately apologized and said he did not mean it. Calef admitted he “displayed irrational behavior in the incident.”

Calef’s Final Warning, dated September 15, 1995, was issued “for a display of conduct that [was] detrimental to the interest of the Company.” It explicitly warned Calef “that any single infraction of [Company] policy in the future will result in his termination from the payroll.” Calef reviewed and signed the Final Warning without objection.

Pursuant to the written Final Warning, Gillette referred Calef to the Employee Assistance Program (EAP). In lieu of EAP counseling, he started therapy with Janis M. Soma in September 1995. They first met on September 19, 1995. Dr. Soma diagnosed Calef as having attention deficit hyperactivity disorder (ADHD). At her recommendation, Calef received counseling and obtained a prescription for Ritalin. Dr. Soma’s notes indicate that Calef had conflicts with others both at work and outside of work. After the initial meeting with Dr. Soma, for example, Calef had an incident outside of work. Despite the counseling and medication, his problems with threatening others continued. Calef says he began taking Ritalin in the fall of 1995 and took it in 1996. At his deposition, Calef testified that Ritalin “really helped” the symptoms of his ADHD. Specifically he stated:

“It cleared my everyday function, I was doing things without thinking about them, about completing tasks, more focused, more—it was like walking out of a fog and clearing everything up. With ADD I have to analyze a lot of things, and it’s the turmoil of weighing things and balancing things before I actually do something typically, and with Ritalin it was clearing of—very clear and—everything was very clear.” His symptoms of ADHD disappeared or significantly diminished after he started taking Ritalin.

On the specific question of his ability to manage his anger, Calef testified that his ADHD did not cause him to become angry. Dr. Soma’s testimony agrees. She added that people with ADHD deal with anger more impulsively. Further, in highly stressful situations, people with ADHD may not focus as well as others do.

In early 1996, Calef told a nurse in Gillette’s Medical Department, Cynthia Ross, that he had ADHD. He also told Joan Pemberton, the head of the Medical Department. Both nurses say that Calef was adamant they not disclose to others the fact that he had ADHD and they did not disclose it. There is a dispute about whether Calef’s supervisors ever learned from the nurses or from another source that Calef had ADHD. We will infer in Calef’s favor that Gillette had such notice.

In March 1996, Dr. Soma gave Calef a medical certificate to support his request for leaves under the Family and Medical Leave Act (FMLA). Calef was given over 40 days of FMLA leave between May and December of that year. In this sense, Calef requested and was given a reasonable accommodation. There was, though, evidence that Sciarini, the supervisor, did not like Calef taking FMLA days off.

Calef says he had been assigned to work on updated versions of the machines that he had serviced earlier and he found the new setting stressful. On May 24, 1996, Dr. Soma addressed a note to the Gillette Medical Department saying she had advised Calef it would be in his best interests to reduce his stressors at work. In particular, she asked if there was a means to reverse his reassignment at work. The letter did not refer to either ADHD or a request for a reasonable accommodation. In Calef’s favor we will infer that this letter was adequate to request a reasonable accommodation. Gillette declined to change his assignment. Calef did not pursue the matter.

On July 3, 1996, Calef checked into Pembroke Hospital for depression. On July 17, after returning from hospitalization, Calef received medical clearance from the Hospital to work at Gillette “without restrictions.” At his request, Gillette permitted him to work half days from July 22, 1996, through August.

Clinical notes from Dr. Soma indicate that, on August 16, 1996, Calef reported “good progress at work and in family. Sleeping well, blood pressure down, no alcohol use, and no suicidal ideation.” He continued to see Dr. Soma at times, and her November 19, 1996, note indicated Calef was taking Zoloft and felt it helped him with anger management. Indeed, from his return on July 22, 1996 to December 6, 1996, Calef worked without noticeable incident or infirmity.

The incident which led to the termination of Calef’s employment occurred on Friday, December 6, 1996. The day before, as was customary, Gillette sought volunteers for Sunday shifts. Mechanics usually like that shift since they receive double pay. Due to scheduling needs, the company had to know by Friday who would work that Sunday. Calef’s group leader, Steven Pennington (who was senior to Calef and junior to Sciarini), asked for volunteers to work that Sunday and understood Calef to have volunteered. Calef’s version is that he tentatively agreed to work and said he would get back to Pennington.

On Friday, December 6, management decided to run a particular production machine, thinking there was a danger of not meeting production quotas. At approximately 5:55 p.m., shortly before a meal break was scheduled to begin, Sciarini informed Pennington that the “Good News Plus” production machines would have to be run during the meal break. Pennington had short notice to find operators and mechanics who could run the machines during the break. Pennington attempted to find Calef in order to request that he delay his meal break and stay on duty while the machines were being run. However, Pennington was unable to locate Calef, so he arranged for another mechanic, along with some machine operators, to oversee the operation of the Good News Plus machines during the break.

Calef was “disgusted” that his machines had been run during the meal break. When he returned from the break, he “went to Frank Sciarini’s office and asked why [his] machines were being run.” Pennington and Sciarini both state that Calef was upset and, despite being told why the machines had to be run during the break, Calef declared, “You know what you did to me.”

Approximately two hours before the end of Calef’s shift on that same Friday night, December 6, Calef approached Pennington and informed him that he would not work the shift on the following Sunday, December 8. Pennington had already scheduled Calef to work it. Calef says Pennington became angry and yelled at him that he had to work on Sunday. Calef then walked away from Pennington, who was asking for an explanation of why Calef would not work the Sunday shift. Calef says Pennington was angry and yelling at him, “That’s it for you. We are going to get rid of you.” Pennington says Calef angrily told him “you know what you did to me,” which Pennington interpreted to be a reference to the decision to run the Good News Plus machines during Calef’s meal break. Pennington continued to ask for an explanation, but Calef would not explain himself. Instead, he repeated, “You guys know what you did to me,” and walked away. To Pennington, Calef seemed irrational and increasingly erratic. Because of Calef’s actions, Pennington feared for his own safety.

The two men separated. Pennington left Calef and reported the incident to Sciarini, his supervisor. Pennington told Sciarini what had happened and reported that he was afraid of Calef, that Calef was acting erratically and that Pennington could not work with him. Sciarini’s notes of the incident, which he drafted the following day, state: “On Fri. Dec. 6, 1996, at 9:30 p.m., Steve Pennington my Group Leader came to my office telling me that he cannot work with Fred Calef. I am afraid of him, he is acting crazy.”

Sciarini asked Calef to report to him, which Calef did. The two then went to a nearby office, where Sciarini asked Calef for an explanation of what happened on the production floor and what he had said to Pennington. Sciarini says he asked Calef if he was still receiving counseling and taking medication and that Calef replied that, while he was still in counseling, the only medication he was taking was blood pressure pills. Calef says he was asked what drugs he was on and replied that he was taking only his blood pressure medication.

Calef says Sciarini was screaming at him, lunging over his desk at him, and telling him he was going to work on Sunday. Sciarini, for his part, observed that Calef was “barely coherent.” When Sciarini tried to tell him that it was wrong to walk away from a group leader, Calef repeatedly interrupted him, raised his voice, and talked nonsensically. Calef was making statements such as “you never tell me anything,” and was talking about how his wife was mad at him. Sciarini was very uncomfortable with Calef’s behavior and he, too, began to fear for his safety. In his summary of the incident, Sciarini wrote that Calef’s “behavior was out of control” at this point.

Sciarini believed that Calef’s behavior might be explained by his being under the influence of illegal drugs. He requested Calef accompany him to the Medical Department, which Calef did. When Calef and Sciarini arrived, Ross, the nurse who was friendly with Calef, was on duty. Sciarini took Ross aside, explained what had happened, and requested a drug test. Calef repeatedly insisted that the problem was not with him, but with his supervisors—Sciarini and Pennington–and that they, not he, should be required to take drug tests. Calef admits this and that he was speaking loudly.

A few minutes later Kristin Flanagan, a registered nurse scheduled to work the shift after Ross, arrived for duty. Flanagan is a veteran of the U.S. Air Force and served on active duty in the Persian Gulf during the Persian Gulf War. Even so, Ross did not feel comfortable leaving Flanagan as the only nurse on duty while Calef was in his agitated state.

Ross called for a security guard to come to the medical department and Gillette security member Tom Lonergan came to the area. Flanagan called the Manager of Gillette’s Health Services, Joan Pemberton, at her home, explained the situation, and requested Pemberton’s approval for a drug test. Pemberton specifically recalls Flanagan saying that Calef scared her. Ross, who knew Calef, also feared for her safety at the time, and she was frightened by Calef’s agitated and threatening manner. Calef appeared to her to be extremely irrational, belligerent, and sarcastic. Ross also said that Calef was extremely uncooperative, provocative, hostile, and threatening.

Sciarini, Ross, and Flanagan explained to Calef that, pursuant to company policy, he was required to take the drug test. Calef eventually agreed to do so, but only after altering his consent form to read: “Requested Group Leader Steve Pennington to take same test.” Flanagan administered the test, which later proved to be negative for illegal drugs.

Sciarini informed Calef that, because of his behavior, he was not to report to work over the weekend, and that he was to call Pemberton after 6:00 a.m. on the following Monday. Pursuant to Gillette policy, the medical staff could not let Calef drive himself home after taking the drug test. Flanagan and Ross wrote a contemporaneous report of the incident, which reflects that: [Calef] was requested to call his wife or friend to drive him home per policy. Calef said “the package store is closing soon and all I want to do is drive home and stop at a bar for a drink.” Calef eventually called his wife, who picked him up.

Also on Monday, Sciarini reported the events to manager Joseph Donovan. Donovan also received reports from Pemberton and the supervisors involved. Consistent with Gillette’s regular business practice, Donovan then drafted an Employee Contact Report dated December 19, 1996. The report summarized the basis for his decision to terminate the plaintiff’s employment, which was then reviewed and approved by his supervisor, Division Head John Farren. It is undisputed that Donovan made the decision to discharge Calef and that his stated reason for discharging the plaintiff is set forth in the Contact Report. That report refers to Calef’s disciplinary history, and describes the December 6 incident. The report says Calef’s employment was being terminated because his behavior on that night was unacceptable; that it included insubordination and lack of cooperation with his supervisors when he refused a scheduled shift; and that Calef engaged in irrational behavior.

Calef says that he was disoriented, unfocused, and indecisive during these events of December 6. He says he was not screaming but did speak up “a little more than calmly, with a slightly raised voice.” He admits he offended the nurses and that he was “real upset” and angry. He attributes all of this to his ADHD. He says under stress his ADHD symptoms of loss of coherent speech and thinking increased. Calef’s basic position on the December 6 incident is that his behavior was caused by ADHD and that the reactions the Gillette employees had to him were unreasonable and motivated by biases against people with disabilities.

After the incident he spoke to medical department personnel to apologize and asked them to speak to Donovan about his ADHD. A nurse later reported that she had done so, but Donovan’s mind was made up. Calef also called Sciarini to apologize.

In his post-Gillette employment, Calef went to work as a mechanic with the Coca-Cola Company in a job he described as being similar to the one he had held at Gillette. He did not ever inform Coca-Cola that he had ADHD. Indeed, Calef held a series of positions (many of which did not work out for reasons other than ADHD) which required him to learn particular job skills. On one job evaluation Calef was said to be “willing to learn and capable of doing so.” He has been employed at Sears since April 2001, has never asked for an accommodation because of his ADHD, and testified that he learned needed skills for the job through a three-week, on-the-job training program.

Taking all inferences in his favor, Calef has failed to meet his burden of creating a triable issue that he was disabled under the terms of the ADA. A disability is an “impairment that substantially limits one or more of the major life activities.” 42 U.S.C. Section 12102(2). Calef has not shown such an impairment. Nor has he shown, as he must, that he was qualified to perform the essential functions of his job, either with or without reasonable accommodation.

A. Substantially Limited in a Major Life Activity

Calef’s argument that he was substantially limited in a major life activity rests, at its core, on evidence from Dr. Soma, his treating psychologist. Dr. Soma’s affidavit correctly recognized that the relevant disability determination turns not on the symptoms of untreated ADHD, but on Calef’s ADHD when he received medication and counseling. As to that, she opined, “At the time I treated him [in the mid-1990s], Calef was still substantially limited in the major life activities of learning and speaking (the latter more severe under high stress) notwithstanding his use of Ritalin.” Nonetheless, the Supreme Court has recently required more analysis than a doctor’s conclusory opinion:

It is insufficient for individuals attempting to prove disability status under this test to merely submit evidence of a medical diagnosis of an impairment. Instead, the ADA requires [that claimants offer] evidence that the extent of the limitation caused by their impairment in terms of their own experience is substantial.

Calef relies on the fact that he scored “significantly below average” in a test designed to measure his resistance to distraction as tasks become increasingly more complex; he scored “significantly below the mean” on a test designed to measure his memory of complex visual organization and planning; he scored below the 25th percentile when asked to recall “a spatial task involving complex visual organization and planning”; he scored in the 16th percentile in “awareness of visual detail in the environment and visual sequencing ability”; he scored in the 2nd percentile “on a psychomotor task involving the rapid copying of figures associated with numbers”; and he scored in the 9th percentile “on a subtest requiring the solving of oral arithmetic problems.” These factors were taken into account in the conclusion that, overall, Calef’s learning ability was in the average range. Further, a neurologist he consulted in 2000 reported that Calef said that Ritalin was “very effective in terms of his ability to concentrate, read, etc.” but that Calef had stopped taking it because he thought it made him depressed.

More importantly, his life experience shows no substantial limitation on learning as required by Toyota. Calef has a high school GED, has taken other courses, and has received on-the-job training where he learned new job skills. His history both before and after Gillette shows no limitation in his learning ability. These facts doom the claim.

Calef’s other asserted substantial limitation, in his speaking, fares no better. Both the medical assessment evidence and the evidence of his life experience render this claim meritless. A medical assessment conducted at the behest of Calef’s own physicians reported that Calef “is attentive in conversation.... Language is normal.” Indeed, a comprehensive neurological assessment conducted by Peter Rosenberger, M.D., the Director of the Learning Disorders Unit at Massachusetts General Hospital, concluded that Calef’s verbal abilities were within average range, including his verbal productivity, articulation, fluency, grammar and syntax, and vocabulary. Psychometric testing performed by Dr. Rosenberger’s clinic further concluded:

Statistical analysis indicates that [Calef’s] verbal comprehension abilities fall within the average range (53rd le Index Score = 101).... Vocabulary development and general fund of information fall at the mean (50th le).

At most, Calef’s evidence was that, despite taking Ritalin, he still had some difficulty in concentrating at work and would blurt out or interrupt people in conversation. There is no evidence at all that he was substantially limited in speaking outside of work. This is not enough to show a speaking disability under the ADA.

In the end, Calef’s argument devolves into a claim that ADHD makes it more difficult for him to respond to stressful situations, that when he becomes angry, he sometimes loses control and can neither speak nor think well, and that this constituted a substantial limitation on a major life activity. It is clear, though, as Dr. Soma’s affidavit indicates, that the ADHD does not cause him to become angry. The issue is how he handles his resulting stress during the episodes in which he becomes angry. This claim would not, under Toyota, qualify as a substantial limitation on a major life activity. Very few people find handling stress to be easy. Many people do not think well in stressful situations and find it harder to speak well. There was no evidence in this record that plaintiff could not perform some usual activity compared with the general population, or that he had a continuing inability to handle stress at all times, rather than only episodically. Under our case law, these shortcomings in the evidence are fatal.

On different facts, ADHD might disable an individual such that the ADA applies. Calef, however, has not made the individualized showing about his particular limitations that Toyota requires. Merely pointing to a diagnosis of ADHD is inadequate.

B. Qualified Individual

Even if Calef were arguably disabled, he is not otherwise a “qualified” employee because, with or without accommodation, he could not perform an essential function of the job. Plaintiff bears the burden of showing he is qualified.

An employer may base a decision that the employee cannot perform an essential function on an employee’s actual limitations, even when those limitations result from a disability. The statute requires that consideration “be given to the employer’s judgment as to what functions of a job are essential.” 42 U.S.C. Section 12111(8). It is an essential function of a job that a production manager be able to handle stressful situations (here, requests for overtime work and routine disagreements) without making others in the workplace feel threatened for their own safety. This function is both job-related and consistent with business necessity.

Gillette has consistently disciplined employees who engage in such behavior and who are unable to handle this essential function. Before Calef knew he suffered from ADHD, Gillette applied those standards to him. In 1992 he was warned about his confrontations with coworkers. In 1995 he was warned his employment would be terminated the next time he threatened an employee. Gillette has also terminated the employment of others who display similar behavior.

Put simply, the ADA does not require that an employee whose unacceptable behavior threatens the safety of others be retained, even if the behavior stems from a mental disability. Such an employee is not qualified. That was the point of our decision in EEOC v. Amego, Inc. It is also the view of every other circuit case which has addressed a similar situation under the ADA or the Rehabilitation Act. “One who is unable to refrain from doing physical violence to the person of a supervisor, no matter how unfair he believes the supervision to be or how provocative its manner, is simply not otherwise qualified for employment.” The ADA is not a license for insubordination in the workplace.”

Even if reasonable accommodations were pertinent, there was no reasonable accommodation which would have enabled him to perform the essential functions of his job. His uncontrollable anger was episodic and unpredictable. As the district court held, “These short leaves [are] not going to alleviate the threatening and abusive behavior because the stress arises out of the job.” Gillette had tried to accommodate Calef—it had given him time off and reduced his work schedule when requested. That did not prevent his behavior on December 6.

We affirm the entry of summary judgment for Gillette dismissing all claims. Costs are awarded to Gillette.

This case illustrates the factually driven nature of ADA and workplace violence claims. The court in this case, analyzed the facts in a comprehensive manner. In doing so, the court found that the plaintiff was not disabled under the requirements of the act. Further, the plaintiff was not considered “qualified” under the act because the employer sought to accommodate him despite the fact that he was not disabled. Indeed, the attempts to accommodate the plaintiff did not prevent his threatening behavior from occurring. Consequently, the plaintiff’s claim must fail.

Background

Former employee sued former employer for discrimination under Americans with Disabilities Act (ADA) and retaliation under Family and Medical Leave Act (FMLA). The United States District Court for the Eastern District of Wisconsin entered summary judgment in favor of former employer. Former employee appealed.

Holdings

The court of appeals held that:

1. District court did not abuse its discretion in refusing to consider summary judgment affidavit as evidence that co-employees offered incorrect version of altercation and that employee did not threaten another co-employee;

2. Alleged temporal proximity between employee’s announcement that he had AIDS and his suspension and termination did not establish violation of ADA; and

3. Employer’s proffered nondiscriminatory reasons for suspending and terminating employee were not pretextual.

Affirmed

From November 28, 1997, through December 1, 1999, Buie worked in the finishing department at Quad/Graphics, which produces printed materials. Buie’s supervisors warned him about frequent absenteeism three times between March 1998 and September 9, 1999. When providing the latest warning to Buie, his supervisor, Scott Connell, wrote that “if Anthony continues to have attendance problems he may be termed [sic] from Quad Graphics.” Buie was nonetheless absent without excuse and without notice again on September 24 and October 10, 1999.

On October 15, 1999, Buie called Connell on the telephone—after his shift had already begun—and told him that he was sick and would not work that day. Connell responded by saying that Buie’s job was in jeopardy. Buie then said that he had AIDS and that his absenteeism was because of the syndrome. This was the first time Quad/Graphics knew of Buie’s condition. After Connell learned that Buie had AIDS, he told Buie (either on October 15 or October 17; Buie’s affidavit provides both dates) not to return to work.

On October 21, 1999, at the instruction of Steve Kirk, the finishing department manager, Buie met with Caroline Vrabel, Quad/Graphics’ corporate employee services manager. Vrabel told Buie that he could apply for FMLA leave for some of the absences when he had called in sick. She further told him not to report to work until he had completed the FMLA application and his attendance issue was resolved. Buie complied with Vrabel’s directions. Only after Buie returned to work, however, did Frank Arndorfer, vice president of finishing operations, decide that his leave would be considered a disciplinary suspension for excessive absenteeism. Buie was unaware of that designation when he first left work.

Buie met with Vrabel and Arndorfer on November 10, 1999. Vrabel told Buie that she had excused many of his absences and requested that short-term disability benefits be paid to him for those absences. But Vrabel also stated that she had calculated that he still had accumulated 14 absences during the preceding 11 months that could not be excused, including six no-call, no-show absences. On November 16, 1999, Buie met again with Vrabel and Arndorfer. Arndorfer presented him with a last chance agreement and offered him the choice between signing the agreement or being fired immediately. The agreement, which Buie signed, stated that Buie could be fired for any violation of the employee services manual or the agreement itself. Buie then returned to work, but the peace was short lived.

On November 29, 1999, Buie had a confrontation with a superior, Harold Bridges, while the two were working on a conveyor belt. According to Bridges (who is black), after he upbraided Buie for falling behind in his work, Buie treated Bridges to an outburst about how Buie would work on the conveyor belt when he pleased and how Bridges and other black employees did not know how to “get over on these white mother _____ s.” Bridges admitted that he replied by saying that “niggas [sic] always want something for nothing” and stated that Buie reacted to this remark by pushing bundles of publications off of the conveyor belt and refusing Bridges’ order to return to work.

Connell soon learned of, and investigated, the incident. Several employees confirmed Bridges’ version of events. Connell also asked for Buie’s side of the story. Buie denied telling Bridges that he would work when he pleased, pushing publications off of the conveyor belt, and making the racist statement that Bridges attributed to him. Buie further explained he would not return to work under Bridges because of Bridges’ own use of a racial slur. After considering the evidence, Connell issued a written warning to Buie.

Buie, for his part, did not let matters rest there. He knew that one of the employees who had corroborated Bridges’ account was Diane Grignon and, on December 1, 1999, he confronted her. As Grignon soon told Connell, Buie pointed his finger at her and said, at a range where Grignon could feel Buie’s spittle on her face, “I’ll get you, bitch.” As Grignon recounted, when she asked him whether that was a threat, Buie replied that it was and asked where her witnesses were. The confrontation ended with Grignon pushing Buie’s finger from her face as Connell approached.

Later that day, Connell learned that the house mother of the halfway house in which Grignon resided had received a call from a man identifying himself as “Anthony.” The caller said that if “something happens to [Grignon] on the bus tonight, it’s her own fault.” At that point, Connell, Kirk, and Arndorfer decided to fire Buie, whom they discharged the next day (December 2) through a letter signed by Arndorfer. Grignon was disciplined for her part in the incident, but not fired.

Buie’s work-related troubles did not end with his discharge. He later was found guilty in the State of Wisconsin Circuit Court of Waukesha County for disorderly conduct as a result of his confrontation with Grignon. The state court found that the prosecution met its burden of proof establishing that this defendant was profane and otherwise disorderly. I would point to him getting within six inches of Ms. Grignon, putting his finger in her face so close and speaking in such a way and so close that the spitle [sic] would go across to her and making threatening remarks. This is all under circumstances tending to cause or provoke an immediate disturbance of public order.

The ADA forbids certain employers from “discriminating against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.” 42 U.S.C. Section 12112(a) (2000). It is undisputed that Quad/Graphics is an employer covered by the ADA and that Buie is an “individual with a disability” for purposes of the statute. To prove that he suffered disability discrimination under the ADA, Buie may proceed under the direct or indirect methods. There are two types of permissible evidence under the direct method: direct evidence and circumstantial evidence. The former “essentially requires an admission by the decision maker that his actions were based upon the prohibited animus.” The latter is evidence that “allows a jury to infer intentional discrimination by the decision-maker.”

Buie may also proceed under the indirect method, which first requires him to establish a prima facie case of discrimination. To do so, Buie must show that (1) he is disabled under the ADA; (2) he is qualified to perform the essential functions of his job with or without reasonable accommodation; and (3) he has suffered from an adverse employment decision because of the disability. Were Buie to put forth a prima facie case, the burden would then shift to Quad/Graphics to articulate a nondiscriminatory reason for each adverse employment action. If Quad/Graphics were to meet its burden, Buie would then have to prove by a preponderance of the evidence that Quad/Graphics’ proffered reasons were a pretext for intentional discrimination.

A. ADA Discrimination

Buie’s theory of discrimination under the ADA is that, although he was a qualified employee, Quad/Graphics suspended him without pay, imposed a last chance agreement on him, and then fired him, because of what it regarded as his disability, AIDS.

1. Direct Method

We turn first to the direct method. As to the theories that Quad/ Graphics violated the ADA by first suspending him without pay, and then discharging him, because he had AIDS, Buie put forth no direct evidence in support of either proposition. He did, however, present circumstantial evidence, namely the short time period between his suspension and the decision to fire him (they occurred on October 15 or 17 and December 1, respectively) and his announcement on October 15 that he had AIDS. In Buie’s view, the timing of these events was suspicious and would allow a jury to conclude that Quad/Graphics acted as it did because of Buie’s disability.

Suspicious timing is a type of circumstantial evidence under the direct method. However, a “temporal sequence analysis is not a magical formula which results in a finding of a discriminatory cause.” By itself, temporal proximity would not normally create an issue of material fact as to causation, although it could suffice where the adverse action followed on the heels of the employer’s discovery of the employee’s disability.

Here, temporal proximity is all that Buie relies on under the direct method, and it does not create an issue of fact. Even when the record is viewed in Buie’s favor, the undisputed evidence shows that he was on the brink of discharge before anybody at Quad/Graphics knew that he had AIDS. Connell warned Buie on September 9, 1999, that, if he continued “to have attendance problems” he could be fired. On September 24, October 10, and October 15, Buie nonetheless chose to miss work without excuse and without warning. It was only then, when Buie had every reason to believe that he was on the edge of termination, that he told Connell that he had AIDS. Quad/ Graphics had already experienced serious difficulties with Buie’s continued problems with attendance.

Also, after his disciplinary suspension, he had his aggressive encounter with, and made a threat toward, Grignon. All of these troubles occurred after Connell had already warned him that his job was in jeopardy. It is also worth noting that, after Buie’s AIDS announcement, Vrabel made a concerted effort to qualify Buie for pay under the FMLA for some of his absences where he had called in sick. And although Buie belatedly complains about a last chance agreement, it did give him another chance to perform satisfactorily despite his attitude and excessive absences. His response to that opportunity, in short order, was his confrontation with Grignon. (We put Buie’s confrontation with Bridges aside because Quad/Graphics does not cite that incident as a reason for firing Buie.) Under these circumstances, we conclude that no reasonable jury could infer simply from the temporal proximity among Buie’s announcement that he had AIDS (on October 15) and his subsequent suspension (on October 15 or 17) and the decision to fire him (on December 1) that Buie was suspended or fired because of his disability. An eleventh-hour declaration of disability does not insulate an unruly employee from the consequences of his misdeeds. We conclude that, under the direct method, Buie has not created an issue of material fact as to his ADA claim.

2. Indirect Method

The indirect method, as we discussed above, first requires Buie to establish a prima facie case, at which point Quad/Graphics must put forth a nondiscriminatory reason for its action, which then requires Buie to show by a preponderance of the evidence that Quad/Graphics’ stated reason was a pretext for discrimination. The district court entered summary judgment for Quad/Graphics because Buie had not established prong two of the prima facie case and, in any event, Buie failed to rebut Quad/Graphics’ nondiscriminatory reasons for suspending and then firing Buie. We affirm on the latter ground and need not reach the former.

Before the district court, Quad/Graphics justified the decision to impose a suspension on Buie on the ground that it was disciplinary action appropriate to his absenteeism. It explained the decision of Connell, Kirk, and Arndorfer to fire Buie on two grounds: that he was chronically absent without excuse or warning, and that he threatened Grignon. These reasons are nondiscriminatory, and thus, to avoid summary judgment, Buie had to put forth evidence that they were actually lies designed to camouflage that Quad/Graphics really acted against Buie because he had AIDS. The district court concluded that Buie had failed to produce such evidence.

On appeal, Buie maintains that he met his burden, pointing to evidence that several employees who did not have AIDS, out of the 11,000 or so employed by Quad/Graphics, had problems with attendance and threats but were not fired or suspended. Specifically, Buie claims that “since Sherita Rideout, Chris Studzinski, Bruce Iwanski, and Diane Grignon, all had attendance problems and they all engaged in violence or threats of violence in the workplace, it would have been reasonable for the District Court to infer that Quad/Graphics tolerated attendance problems in conjunction with violence and threats of violence in the workplace.” According to Buie, a jury could infer from this disparity that Quad/ Graphics’ professed reasons for suspending and firing him actually were lies designed to conceal its real, invidious reasons for those actions.

The disparate treatment of similarly situated employees who were involved in misconduct of comparable seriousness, but did not have a similar disability, could establish pretext. As to Rideout, Studzinski, and Iwanski, however, Buie puts forth no evidence that they were disciplined by any of the same people who disciplined him, which means that the discipline that they may (or may not) have received sheds no light on the decisions to suspend or terminate Buie. Consider Timms v. Frank, where the court reasoned that “it is difficult to say that the difference was more likely than not the result of intentional discrimination when two different decision makers are involved.”

That leaves the ostensible evidence of pretext arising from Quad/ Graphics’ treatment of Grignon’s problems with attendance and threats. Grignon, like Buie, was supervised by Connell and may have been supervised by Kirk and Arndorfer as well. However, Buie does not show that Grignon was treated differently for comparable misconduct. As to absenteeism, Buie maintains that “Grignon was absent fourteen times between 7/21/99 and 4/26/2000 (nine months), and she was disciplined for it on April 26, 2000.” If true, this assertion would tend to show that Grignon was treated similarly for similar misconduct (although Buie’s lack of specificity as to how Grignon was disciplined creates some ambiguity). Like Buie, Grignon was disciplined, but not fired, after Quad/Graphics concluded that she accumulated fourteen absences. Later, of course, Buie was fired—but not before he committed an act of disorderly conduct at work. Buie brazenly argues that he and Grignon were treated disparately because she was not also fired after engaging in a violent episode. However, the inflammatory incident for which Buie argues that Quad/Graphics should have fired Grignon is the very one that, as the Circuit Court of Waukesha County found, Buie provoked by getting within six inches of Grignon, pointing in her face, and making threatening remarks. An employer’s decision to punish the instigator of a violent, or nearly violent, episode more severely than it treats his victim is evidence of rationality, not pretext. Buie has not rebutted Quad/Graphics’ nondiscriminatory reasons for first suspending and later discharging him.

We affirm summary judgment as to Buie’s claim under the ADA because he fails to create an issue of material fact under either the direct or indirect methods.

B. FMLA Retaliation

As discussed above, Buie may prove FMLA retaliation under the direct or indirect methods. Unfortunately, his brief as to this claim is difficult to decipher.

We begin with the direct method. Buie presents no direct evidence in support of this claim. The only circumstantial evidence to which he points is suspicious timing. Buie contends, as best we can discern, that the proximity between his announcement that he had AIDS (and, implicitly, Quad/Graphics’ realization that Buie would request FMLA leave) and Buie’s suspension and firing would allow a jury to infer retaliation. His suspicious timing argument regarding FMLA retaliation fails for the same reason it failed to prove ADA discrimination: given Buie’s myriad problems at work, a reasonable jury could not conclude from timing alone that Quad/Graphics suspended or fired Buie because of his announcement that he had AIDS and, implicitly, because he would thus be requesting benefits under the FMLA.

Regarding the indirect method, for the same reasons discussed above in relation to the ADA claim, Buie fails to rebut the nondiscriminatory justifications that Quad/Graphics offered for his suspension and discharge. We conclude that summary judgment was proper as to Buie’s claim for FMLA retaliation.

Even in light of that [self-serving affidavit—discussion omitted] evidence, we conclude that the record would not allow a reasonable jury to return a verdict in Buie’s favor either as to his claim for ADA discrimination or his claim for FMLA retaliation.

CASE COMMENT

In this case, the court focused on facts in light of the appropriate legal analysis. The court distinguished the types of proof proffered by the plaintiff. In this analysis, the court looked at both the direct and indirect methods. Viewed from both perspectives, the court found there was insufficient evidence to sustain the ADA discrimination or the FMLA retaliation claim. In this analysis, the factual basis of the plaintiff’s behavior was weighed against the allegations of his claims, resulting in the dismissal of both claims.

Background

Employee brought negligence action against her employer after being shot at work by her estranged husband. The Circuit Court, Lamar County, dismissed case. Employee appealed.

Holding

The supreme court held that employee’s injury was not caused by employer’s negligence; and husband’s acts were intervening, superseding cause.

Affirmed

On October 14, 1997, Kay L. Newell was at her place of employment, a grocery store, Sack and Save, which is owned and operated by Southern Jitney Jungle Stores of America. Newell’s estranged husband, William Roderick, entered Sack and Save and shot Newell four times with a .44 caliber handgun.

Several times before the shooting incident, Roderick appeared at the Sack and Save stalking, harassing, and threatening Newell in front of managers and other employees. The day before the shooting Roderick caused a disturbance at Sack and Save. Newell’s supervisor helped her file charges against Roderick.

After the shooting, Newell filed this action claiming Sack and Save was negligent in failing to furnish her with a safe place to work and in failing to provide security for her. The motion to dismiss by the employers was granted. Newell appealed.

Discussion

Newell’s complaint claims Sack and Save owed her a duty to provide a safe place to work and a duty to provide her security. Although not an insurer of an invitee’s safety, a premises owner owes a duty to exercise reasonable care to protect the invitee from reasonably foreseeable injuries at the hands of another. Newell’s claim, as an invitee as this court characterizes her, is brought under the theory of premises liability where Sack and Save’s duty is properly stated as one of reasonable care.

We have stated two ways a plaintiff can prove proximate causation in premises liability cases: (1) that the defendant had actual or constructive knowledge of the assailant’s violent nature, or (2) actual or constructive knowledge an atmosphere of violence existed on the premises. Newell’s complaint alleges facts which indicate that it is under this first option she is attempting to proceed. However, the complaint also states that Newell’s employer assisted her during this unfortunate ordeal to the point of helping her file charges against her husband the day before the shooting occurred. At the time of the attack, Newell was in a separately enclosed office behind a door that her husband had to “force” his way through. This indicates the door was either locked, or there was warning in advance of her husband’s presence provided by coworkers such that countermeasures were taken.

In this case, the Sack and Save did nothing wrong; to the contrary, it attempted to help and had placed Newell in a secure location under lock and key. Kay Newell did nothing wrong, either. However, Sack and Save is not and should not become the guarantor of its employees’ safety at all times.

The better method of examining this issue is under the traditional concepts of intervening and superseding causes. For such intervening and superseding cause to extinguish the liability of the original actor, the cause must be unforeseeable. Furthermore, “negligence which merely furnishes the condition or occasion upon which injuries are received, but does not put in motion the agency by or through which the injuries are inflicted, is not the proximate cause thereof.”

We hold that Sack and Save’s actions did not impel the assault by Newell’s husband. Clearly the intentional acts of Newell’s estranged husband in entering the Sack and Save armed with a gun, forcing entry into Newell’s office, and shooting her are acts by a third party which are sufficient to terminate any liability Sack and Save might otherwise have. If not, this court would impose a duty approaching strict liability on landowners of the type we specifically denounced in Crain v. Cleveland Lodge 1532, Order of Moose, Inc., “we refuse to place upon a business a burden approaching strict liability for all injuries occurring on its premises as a result of criminal acts by third parties.”

There is no allegation of any intentional act or acts by Sack and Save. The complaint alleges that Sack and Save, knowing of Newell’s estranged husband’s potential dangerousness, failed to take sufficient precautions to protect her. There are no allegations that Sack and Save willfully caused Newell’s injury.

Conclusion

The liability of landowners must end somewhere. We find the complaint insufficient in its averments of duty, breach of duty, and foreseeability to withstand a motion to dismiss for failure to state a claim. The judgment of the circuit court is affirmed.

CASE COMMENT

This case takes a different twist as the plaintiff seeks a tort-based remedy as opposed to a statutory or constitutional claim. In this analysis, the court found no negligence on the part of the employer. Indeed, since the plaintiff did not even allege willful or intentional acts on the part of the employer, the court found no trouble in dismissing the lawsuit. Further, the court found the employer could not prevent the violence of the husband. The language of the court was instructive, making this rhetorical assertion: “liability of landowners must end somewhere.” In this case, the landowner (or employer) did not have liability.

DISCUSSION QUESTIONS

What issues and implications must an employer assess when faced with problematic or threatening behavior of an employee? What counsel would you suggest relative to this question? Assuming an employee is “disabled” under the ADA, does this status mean that an employer cannot institute a job action against the disabled employee? If your answer is no, what are the applicable standards or principles that control this assessment? From a tort-based theory, when would an employer be liable for an act of workplace violence?

SECURITY METHODS

One of the key defenses available to employers relates to the policies and procedures used within the company. Indeed, a critical component in avoiding liability, or at least minimizing it, is through proper internal security methods based on sound and prudent policies. Some suggested policies and procedures are summarized below.

Policy Considerations

It is critical to establish a system of documenting violent or harassing incidents, to articulate specific preventive strategies for such, and to demonstrate the commitment of the employer to effectively deal with any such incidents that do occur. Many security experts recommend instituting a zero tolerance policy for dealing with violent or harassing incidents¹⁶ to clearly convey that violence and harassment of any kind—including threats and intimidation—will not be tolerated.¹⁷ In order to ensure its directives can be carried out, the policy should include certain subsections.

The policy should articulate early warning signs of potential violence. These include aggressive and hostile behavior, racial or cultural epithets, harassing or intimidating statements, stalking, and physical assaults or threats of such.¹⁸ In addition to listing these factors, the policy should encourage employees to report their observations or concerns. Beyond this encouragement, it may be appropriate to require employees to cooperate with any workplace violence investigation. At the least, the policy should require any supervisory employee to immediately report any suspected or unusual behavior. An investigation should be conducted as soon as possible following said report. Finally, the policy should specify that all information obtained would be considered confidential, and that no retaliation against anyone who comes forward with information of suspected or potential workplace violence will be tolerated.¹⁹

Pre-employment Screening Methods

As many cases have illustrated, it is necessary to conduct some type of background screening. The extent and scope of such is usually dependent on the following factors:²⁰

2. Assess to sensitive information

3. Potential liability associated with the job

4. Level, frequency, and manner of contact with the public

5. Type of client or public whom contact is made

2. How long ago the crime was committed

3. Nature of the business and the job sought

Before an employment interview, the interviewer should carefully review the application and supporting materials, noting in particular any gaps in employment. During the interview, the candidate should be asked to explain any such gaps and to rate his or her ability to perform specific tasks included in the job description. The goal is to evaluate how well the skills and aptitudes of the candidate match the job requirements. The candidate should also be asked to describe his or her perception of the job. In addition, the skills and aptitudes identified for the position should be compared to the candidate’s previous employment. Again, the goal is to seek evidence of favorable characteristics, such as team orientation, positive self-worth, or multi-tasking ability. It is important to note that the EEOC has determined that personality traits such as poor judgment, quick temper, or irresponsible behavior are not deemed a disability unless they are deemed symptoms of a mental or psychological disorder.²⁴ Based on the cases reviewed in this book, it is clear that this must be based on objective, professional assessment (see below for further discussion).

Incident Documentation Issues

Obtaining and documenting incidents in a systematic manner is critical for both effective internal decision making and for justifying decisions in an external forum, such as a court proceeding. The reporting and documentation procedures should specify who is responsible for the reporting, when the reporting is required, the purpose the reporting is designed to achieve, where the reporting channels flow, and what information should be collected and disseminated. In essence, the goal is to promote an “open door” policy coupled with assurances of confidentiality to the reporter. In addition to these reporting requirements, the policy statement should stress that no reprisals or retaliation will result from any reported incident. Indeed, it may be appropriate to sanction employees who fail to report an incident.

In addition to these reporting requirements, it is important to train employees to recognize early warning signs of problematic behavior and indicators of criminal (or even terrorist) activity. Indicators of stress-related or problematic behaviors are many and varied. These include injuries (such as cuts and bruises) to the employee, increased tardiness or absenteeism, performance or personality changes (such as withdrawal or temper outbursts), frequent or emotional phone calls, frequent medical or doctor visits, increased accidents, changes in personal appearance, and the like.²⁵ The goal of these measures is to recognize and deal with early warning signs of stress, thereby establishing a calmer, more productive work environment that in turn helps diminish the threat of employee violence.

Psychological and Drug Testing Methods

The same logic as with background screening also holds true in regard to these types of tests. The goal, of course, is to screen out problematic employees, either before or after they are hired. There are a number of ways to achieve this goal. First, by asserting a clear and unequivocal policy statement against drug usage or harassing, intimidating, or violent behavior, many problematic employees will self-opt out of the selection process. In other words, prospective employees with a history of problematic behavior or a current drug problem may decide that the screening procedures and policy goals do not suit their personality and that the job may not be worth the potential scrutiny of procedures and policies. Such policy statements should include the following:

2. Company philosophy and culture that supports that commitment

3. Program methodology for implementing the company philosophy

If it is concluded that a direct threat exists that cannot be effectively resolved by reasonable accommodation, then the employer could assert that the risk of harm to employees is too great and the hardship to employer too great to allow the problematic employee to maintain his or her job. If this conclusion is reached, the employer must be able to articulate the following factors:²⁹

2. Nature and severity of the potential harm

3. Likelihood or probability that the harm will occur

4. Imminence of the harm

In the pre-incident phase, the goal is to articulate the workplace violence policy and train to the policy. In addition, it is necessary to fully evaluate the potential threat. This evaluation can involve a number of steps, including but not limited to the following: (a) assessing the employee’s personal situation and personnel file (including criminal history, family situation, emotional state, and financial circumstances); (b) interviewing coworkers and supervisors about specific conduct and indicators; (c) considering whether to obtain an order of protection (if applicable); (d) determining whether to provide EAP support or mental and medical health tests and assessments; (e) and interviewing the problematic employee. These measures could be supplemented by assessments of the physical security within the workplace, including access controls, key controls, emergency exit procedures, emergency communication procedures (including who calls the police), security posts, and patrols and procedures. Consideration may also be given to moving targeted employees—if this is considered necessary for security purposes.³² Finally, the floor plan should be evaluated from the perspective of security and the availability of weapons, including potential weapons such as kitchen knives and letter openers.

During the incident phase, if the problematic employee is to be terminated, additional measures should be implemented. It is advisable to include personnel from various disciplines in this planning, such as legal, HR, security, and operations personnel. A script designed for use in the termination should be developed. The employer should map out the planned sequence of events, and consider securing and transferring personal property, and recovery of company property such as keys, access cards, documents, and the like. In addition, it is often advisable to provide outplacement services and severance benefits to the terminated employee. The key is to preserve the dignity, while simultaneously maintaining control over that individual, to the point that he or she is prevented from injuring others or himself or herself.³³

In the post-incident phase, there should be a debriefing session, the facility should be secured, data and intelligence methods for follow-up, including possible monitoring of the problematic employee, should be assessed, and ongoing security protocols and procedures revised in light of this data and information flow. Overall, the objective is to establish ongoing procedures for assessing the subsequent level of risk.

Finally, one useful way to assess the potential for workplace violence is through the HARM Model Continuum. HARM is an acronym for Harassment, Aggression, Rage, and Mayhem. The logic of the model is that workplace violence usually occurs along a continuum of gradual problematic behaviors culminating in the violent incident. This model was summarized by Rudewicz as follows:³⁴

Harassment represents the first level of behavior on the violence continuum. The behavior at this stage is not criminal conduct. Instead, it is usually considered inappropriate conduct. This includes slamming doors, glaring at coworkers, telling false stories about coworkers, and the like.

In the aggression stage, the behavior becomes more hostile. Here the behavior is designed to cause harm or discomfort. It may be directed at an individual employee or at the company in general. Such behavior includes slamming a door in the face of an employee, spreading damaging rumors about the company or coworkers, damaging an employee’s personal property, sabotaging the company’s property or products, and the like.

In the rage stage, the behavior is manifested by intense conduct. This conduct often causes fear and results in physical and emotional harm, or substantial property damage to business or personal property. Such behavior includes physically pushing coworkers, supervisors, and customers and conveying threats and hate messages.

The mayhem stage is characterized by physical violence, including guns and other weapons. Obviously, the goal is to intercede before the incident occurs. In order to have a safe and secure workplace, the employer must be proactive in the assessment of threats. It is important to emphasize that the employer has a legitimate right to maintain order and to establish a “civil and decent workplace.”³⁵ Achieving this goal requires determining the proper application of security methods through legally appropriate means and analysis.

NOTES

1. Johnson, Dennis J., Joseph A. Kinney, and John A. Kiehlbauch (1994). Breaking the Cycle of Violence. Security Management, at 26.

2. Kroft, Rob (1994). Security Concepts.

3. Grossman, Robert J. (2002). Bullet Proof Practices. HR Magazine, November.

4. Ibid.

5. Viollis, Paul and Doug Kane (2005). At Risk Terminations: Protecting Employees, Preventing Disaster, taken from www.rmmag.com on 5-26-2005.

6. Taken from www.cdc.gov/noish/violrisk.html, on 9-16-2002.

7. Ibid.

8. Taken from www.bls.gov, on 8-14-2002.

9. Bachman, Ronet (1994). Violence & Theft in the Workplace: National Crime Victimization Survey. Office of Justice Programs, Bureau of Justice Statistics, July.

10. Grossman op cit. at 37.

11. Viollis and Kane op cit. at 1.

12. Johnson, Joseph A., and Dennis J. Kelly (1993). Breaking Point: The Workplace Violence Epidemic and What to do About It. National Safe Workplace Institute.

13. See U.S. Department of Labor at www.bls.gov.

14. Taken from the Workplace Violence Fact Sheet complied by The National Institute for the Prevention of Workplace Violence.

15. Ibid.

16. See The National Institute for the Prevention of Workplace Violence op cit.; and Rudewicz, Frank E. (2004). The Road to Rage. Security Management, February.

17. Rudewicz op cit. at 46.

18. Ibid at 46.

19. Ibid at 49.

20. Nixon, William B. (2002). What You Don’t Know Can Hurt You. Security Management, April.

21. Barber, James S. (1995). Workplace Violence: An Overview of Evolving Employer Liability. Illinois Bar Journal, Vol. 83, September.

22. Nixon op cit. at 96; and Title VII and Section 1981: A Guide for Appointed Attorneys in the Northern District of Illinois, op cit. at 14.

23. Nixon op cit. at 98; and Title VII and Section 1981: A Guide for Appointed Attorneys in the Northern District of Illinois, op cit. at 2.

24. Barber op cit. at 466.

25. Grossman op cit. at 42; and Rudewicz op cit. at 41.

26. Barber op cit. at 465.

27. Title VII and Section 1981: A Guide for Appointed Attorneys in the Northern District of Illinois, op cit. at 12.

28. See, for example, Sullivan v. River Valley School District, 197 N.E. 2d 804 (1999).

29. Karr, Karen (2005). Will Rage Turn to Rampage? Security Management, October, pp: 67–73.

30. Ibid at 68.

31. Grossman op cit. at 37–39.

32. See Chapter 1 for further discussion on specific Security Methods.

33. See Viollis and Kane op cit. at 2–3; and Grossman op cit. at 39 for further suggestions.

34. Rudewicz op cit. at 42.

35. Bloom, Howard M. and Margaret R. Bryant (2005). Labor Law’s Changing Tides. Security Management, August.