Ninth Circuit: Employee Who Threatens to Kill Co-Workers Not "Qualified Individual with Disability"

Timothy Mayo was a welder. He made some specific threats to kill certain supervisors at his employer, PCC Structurals, Inc.  Co-workers complained.  The company sent him home.  The police visited him and he checked into a hospital.  The company terminated his employment.

Mayo sued under Oregon's version of the ADA, which is modeled under the federal statute. The 9th circuit reviewed the employer's successful motion for summary judgment.

The court decided that a person who makes violent threats against co-workers cannot claim protection under disability discrimination laws:

Even if Mayo were disabled (which we assume for this appeal), he cannot show that he was qualified at the time of his discharge. An essential function of almost every job is the ability to appropriately handle stress and interact with others. See Williams v. Motorola, Inc., 303 F.3d 1284, 1290 (11th Cir. 2002). And while an employee can be qualified despite adverse reactions to stress, he is not qualified when that stress leads him to threaten to kill his co-workers in chilling detail and on multiple occasions (here, at least five times). This vastly disproportionate reaction demonstrated that Mayo could not perform an “essential function” of his job, and was not a “qualified individual.” This is true regardless of whether Mayo’s threats stemmed from his major depressive disorder. Cf. Newland v. Dalton, 81 F.3d 904, 906 (9th Cir. 1996) (“Attempting to fire a weapon at individuals is the kind of egregious and criminal conduct which employees are responsible for regardless of any disability.”).

The court was careful to limit its holding to serious threats of violence or harm, in a footnote:

We emphasize that we only address the extreme facts before us in this case: an employee who makes serious and credible threats of violence toward his co-workers. We do not suggest that off-handed expressions of frustration or inappropriate jokes necessarily render an employee not qualified. Nor do we imply that employees who are simply rude, gruff, or unpleasant fall in the same category as Mayo. See U.S. Equal Emp. Opportunity Comm’n, supra, at *15 (advising that an “anti-social” employee with a “psychiatric disability” can be a “qualified individual,” even if he is “abrupt and rude”).

The court also distinguished its line of cases in which it has excused "conduct resulting from a disability":

This ruling is consistent with our cases holding that “conduct resulting from a disability is considered to be part of the disability, rather than a separate basis for termination.” Humphrey v. Mem’l Hosps. Ass’n, 239 F.3d 1128, 1139–40 (9th Cir. 2001); see also Gambini v. Total Renal Care, Inc., 486 F.3d 1087, 1094–95 (9th Cir. 2007); Dark v. Curry County, 451 F.3d 1078, 1084 (9th Cir. 2006). Unlike in Humphrey, Gambini, and Dark, we do not need to consider whether PCC has offered a legitimate, nondiscriminatory reason for terminating Mayo, as he has failed to establish a prima facie case at step one of the McDonnell Douglas framework.

Only Gambini involved hostile action by the employee.  And the court pointed out that the employer in that case did not argue that Gambini was not a "qualified individual" on appeal.

Summing up, after recognizing the serious problems of mental illness in society, the court remarked:

we disagree with Mayo that employers must simply cross their fingers and hope that violent threats ring hollow. All too often Americans suffer the tragic consequences of disgruntled employees targeting and killing their co-workers. While the ADA and Oregon disability law protect important individual rights, they do not require employers to play dice with the lives of their workforce. We thus conclude that PCC’s actions in this case were lawful.

This case is Mayo v. PCC Structurals, Inc. and the opinion is here. 

Court of Appeal: Employer's Fitness for Duty Examination Was Justified to Evaluate Workplace Threat

Professor John Kao engaged in a series of confrontations with other academics at University of San Francisco over time.  His co-workers became afraid of him.   He angrily responded to innocuous questions, and became enraged at colleagues over seemingly benign interactions.

So, the University began investigating.  It retained some specialists in workplace violence and threat assessment.  The experts recommended that Professor Kao be examined by a professional, who would render a "fitness for duty" opinion.  The University explained to Kao that he had to submit to the fitness for duty, or be placed on a leave of absence and excluded from the premises.  The University explained in detail the requirements of the FFD exam, including strict limitations on the expert evaluator's dissemination of information about Kao's condition.

Kao's lawyer got involved, and objected to the FFD.  As a result, the University placed Kao on a leave.   There were further meetings and exchanges with Kao's counsel, the faculty's union representative, and the University, to no avail.  The University then agreed to arbitration - under which the University would be bound, but Kao would not (!).  But Kao objected and would not agree to any ADR and would not submit to the exam.  Kao's attorney wanted to have a "clear the air meeting," at which Kao would assure the University he meant no harm.   The University ultimately terminated Kao's employment, about a year after all the problems started.

Kao sued for disability discrimination and defamation, among other things. A jury rejected Kao's claims and he appealed.

Kao argued at trial that the FFD was a medical examination.  Under the Fair Employment and Housing Act, a medical examination of an employee is permissible if "job-related and consistent with business necessity."  And Kao argued that the FFD could not be job-related or necessary without the University's first engaging in the "interactive process" that is part of the "reasonable accommodation" process.

The Court of Appeal rejected that argument. First, the court noted that the FFD is not an accommodation, and the interactive process relates to the accommodation process.   Second, the court noted that Kao was required to initiate the interactive process, not the University:

Unless a disability is obvious, it is the employee’s burden to initiate the interactive process. (Gelfo v. Lockheed Martin Corp (2006) 140 Cal.App.4th 34, 62, fn. 22; 2 Wilcox, Cal. Employment Law (2013) § 41.51[3][b], p. 41-278.) Kao cannot plausibly claim it should have been obvious to USF that he was disabled because he never admitted any disability in the workplace. When a disability is not obvious, the employee must submit “reasonable medical documentation confirm[ing] [its] existence.” (Cal. Code Regs., tit. 2, § 11069, subd. (d)(2).) Kao did nothing of the sort. He provided no information to USF after learning of the university’s concerns other than documents at the October 2008 meeting with Philpott, which were aimed at showing that those concerns were illusory.

The court concluded that no interactive process was necessary.  For those of you wondering what "job-related and consistent with business necessity means," the court quoted from the jury instruction:

The jury was instructed in accordance with Government Code section 12940, subdivision (f): “ ‘John Kao claims that the university wrongfully required a medical and psychological examination (fitness-for-duty or FFD). [¶] . . . The University of San Francisco asserts that the medical or psychological examination (fitness-for-duty or FFD) request was lawful because it was necessary to the university’s business. To succeed, the university must prove both of the following: 1, that the purpose of the FFD was to operate its business safely and efficiently; and 2, that the FFD would substantially accomplish this business purpose. [¶] . . . If the university proves that the FFD is necessary to the university’s business, then the FFD is lawful unless John Kao proves both of the following: 1, that there was an alternative to the FFD that would have accomplished the university’s business purpose equally well; and 2, that the alternative would have had less adverse impact on John Kao.’ ”

The Court also rejected Kao's claim that the University fired him for not releasing his medical records in violation of California's Confidentiality of Medical Information Act.  The Court approved of the instruction to the jury that the University avoided liability if the jury found that the University fired Kao for refusing a lawful fitness for duty exam.

The Court upheld the trial court's granting of "non-suit" on Kao's defamation claim.  The claim was based on HR's sharing of a letter detailing Kao's conduct in connection with the FFD examination request.  The Court agreed that the "common interest" privilege applied and there was not evidence of the "malice" required to defeat the privilege.

Finally, the Court ruled that the University was entitled to put on evidence of available employment to Kao, even outside the context of a tenured University professor job.  That is important to the argument regarding mitigation of damages.   The Court of Appeal said it was up to the jury to decide if the comparable replacement employment was sufficiently similar.

This case is Kao v. University of San Francisco and the opinion is here.

Staffing Agency Not Liable for Employee Who Poisoned Co-Worker

Yes, you read that right.

Nursefinders is a placement company.  It provides nurses and other employees to hospitals and other health care facilities.  Nursefinders assigned Theresa Drummond to work at a Kaiser facility as a medical assistant.  Drummond had a few work related disagreements with another medical assistant at Kaiser, whose name is Montague.  Montague did not consider these squabbles to be important.  

Drummond, though, apparently took the disputes more seriously.*  Because one day, when Montague left a water bottle lying around, Drummond spiked it with carbolic acid, a rather dangerous substance to drink with water.  Montague became quite ill.

* Perhaps Drummond's fictional ancestors were Capulets.  

Montague and her husband sued Drummond and Nursefinders for intentional infliction of emotional distress.  But the trial court granted summary judgment to Nursefinders, finding that Drummond was Kaiser's special employee, and that Drummond's actions were beyond the course and scope of her employment. Therefore, Nursefinders could not be held vicariously liable for Montague's injuries (or her husband's loss of consortium).  The court also dismissed Montague's claim for negligent retention, supervision and hiring, holding there was a lack of causation between Nursefinder's hiring and Drummond's decision to spike Montague's water.

With respect to the IIED / vicarious liability claim, the court rejected Nursefinders' liability for two reasons.  First, the court of appeal held that there was no evidence the poisoning arose out of a work-related dispute, as opposed to personal animosity that Drummond developed for Montague.  Second, the Court held that Nursefinders, a staffing placement agency, could not be liable for an incident between two employees who were working at Kaiser. 

Montague's attempt to establish respondeat superior liability for Nursefinders simply because she and Drummond worked together at Kaiser is misguided. "The nexus required for respondeat superior liability—that the tort be engendered by or arise from the work—is to be distinguished from 'but for' causation. That the employment brought tortfeasor and victim together in time and place is not enough." (Lisa M., supra, 12 Cal.4th at p. 298, fn. omitted.) The facts, construed most favorably for Montague, do not support liability against Nursefinders because Drummond's poisoning of Montague was highly unusual and startling.

The Court also rejected the negligent training claim.  The plaintiff argued that Nursefinders had a duty to train Drummond not to handle workplace disputes by poisoning her co-worker?  Really?  

Well, the Court did not reject that argument. Rather it simply assumed, without deciding, that there is such a duty:

Montague alleged that Nursefinders had a duty to train Drummond regarding the proper handling of work-related disputes and that its negligence in this regard caused her harm. As a preliminary matter, we will assume without deciding, that Nursefinders had a duty to train its employees regarding the avoidance of workplace violence. (Phillips v. TLC Plumbing, Inc. (2009) 172 Cal.App.4th 1133, 1140 [Liability for negligent hiring, training, and supervision " 'is limited by basic principles of tort law, including requirements of causation and duty.' "].)

What about suing Drummond's kindergarten, parents, college, etc.?  "It's nice to share."  "Wash your hands." "Don't poison people you don't agree with."

Anyway, having assumed such a duty exists, without deciding, the court held that Montague did not establish that Nursefinders failed to conduct workplace violence training:

Drummond and the Nursefinders's branch director signed a document verifying that Drummond participated in Nursefinders's orientation which explained certain topics including "Workplace Violence." Nursefinders also admitted it trained Drummond on Kaiser's policies and procedures regarding "Violence in the Workplace" and "Management of Threats and Aggressive Behavior." Montague cites to Drummond's deposition testimony and her response to an interrogatory to show Drummond did not receive the specified training. Review of this evidence does not support her contention.

After rejecting Montague's argument that Drummond was not trained, she tried a different argument, which the Court also rejected.

Montague's argument appears to be that because Nursefinders trained Drummond on avoiding workplace violence and the incident occurred, this evidence supports an inference that Nursefinders must have breached its duty to train Drummond in avoiding workplace violence and this breach caused her injuries. We reject this contention as the suggested inferences are based on speculation and not reasonably deducible from the evidence. Montague "cannot survive summary judgment simply because it is possible"

So, the takeaway is that employers should conduct workplace violence training to avoid the argument that lack of training could result in an employee's not knowing it's wrong to poison a co-worker's water.   Good news for management trainers like us.

This case is Montague v. AMN Healthcare and the opinion is here.