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Newspapers continue to be filled with reports of disgruntled employees threatening, and sometimes acting upon, violence in the workplace following adverse employment actions. Many of these stories report that the employee suffers from some level of mental illness. A recent decision by the 10th U.S. Circuit Court of Appeals discussed this scenario and an employer’s obligations under the Americans with Disabilities Act. In Borgialli v. Thunder Basin Coal Co., Dennis Borgialli worked as a “blaster” at the Black Thunder Mine in Gillette, Wyo. In this job, Borgialli was responsible for the placement and detonation of large amounts of explosives used in the mining operation. The trouble began when Borgialli’s former subordinate became his supervisor in 1996. A few months later, Borgialli was given a negative performance evaluation by his supervisor. That night, he telephoned his former supervisor and expressed his thoughts of suicide. There were no overt threats against his supervisor. The company subsequently learned of this call and required Borgialli to undergo a psychiatric examination prior to returning to work. The examining psychiatrist concluded that Borgialli could not safely perform his job based upon several psychiatric and physical disorders. The employer’s medical director reviewed the psychiatrist’s report and concluded that Borgialli could not return to his job as a “blaster,” as he presented “a direct safety threat to himself and to the other workers.” Although the employer considered other positions for Borgialli, none were suitable, and he remained on medical leave. Six months later, Borgialli sought an evaluation from a second psychiatrist, who concluded that he was “[not] currently impaired in his capacity to perform the cognitive or physical tasks involved in his job as a mine blaster.” Borgialli presented the report along with his request to return to his employment. The mine determined that Borgialli would need to be seen by a third psychiatrist in order to “break the tie” between the conflicting psychiatric opinions. Borgialli refused and was terminated. Borgialli argued that he was “perceived as disabled” and discriminated against for this reason. The district court found that Borgialli “posed a direct threat to others and thus was not a qualified person for employment as a blaster.” The court blurs the distinction between possible defenses. The 10th Circuit initially noted that the ADA defines the term “direct threat” as: “a significant risk to the health or the safety of others that cannot be eliminated by reasonable accommodation.” The regulations to the ADA require that a determination of a “direct threat” be an individualized inquiry based upon factors which include: “(1) the duration of the risk; (2) the nature and severity of the potential harm; (3) the likelihood that the potential harm will occur; and (4) the imminence of the potential harm.” See 29 C.F.R. Section 1630.2(r). The appellate court affirmed the district court’s granting of summary judgment to the employer based upon its finding that the mine was “confronted with a situation in which its employee, who worked with explosives and who harbored a grudge against his supervisor, threatened suicide and perhaps injury to others.” The court continued: “the ADA does not require employers to take unnecessary risks when dealing with a mentally or physically impaired employee in an inherently dangerous job. Plaintiff was not a ‘qualified person’ to work in a position as a blaster because the defendants rightly considered that he was a direct threat to others in the workplace.” While the Borgialli decision placed great emphasis upon the requirement of his job that he work with explosives, other decisions, involving employees in less inherently dangerous jobs, have similarly held that threats of workplace violence, regardless of its cause, need not be tolerated by an employer. The Borgialli court blurred the distinction between the “direct threat” defense and the employee’s burden to prove his prima facie case that he is “otherwise qualified” to perform the essential functions of his job. Other courts have maintained this distinction in addressing issues of workplace violence. PALMER v. COOK COUNTY In Palmer v. Circuit Court of Cook County, 117 F.3d 351 (7th Cir. 1997), Marquitta Palmer was a social-service caseworker whose employment was unremarkable until Clara Johnson became her supervisor. Shortly thereafter, Palmer harassed and threatened a co-worker, whom she believed was becoming friendly with the disliked supervisor, Johnson. This harassment lead to two suspensions and a transfer from Johnson’s immediate workplace. Subsequently, Palmer sought psychiatric help and was diagnosed as having major depression and paranoid disorder. She was ultimately terminated after making a series of threatening telephone calls to (and about) Johnson. The district court granted Cook County’s motion for summary judgment on the grounds that Palmer’s depression and paranoia were not disabling but were simply a “personality conflict” with her supervisor and co-worker, “although one which caused her to suffer anxiety and depression to an apparently significant degree.” The 7th U.S. Circuit Court of Appeals disagreed with this specific finding on the grounds that “if a personality conflict triggers a serious mental illness that is in turn disabling, the fact that the trigger was not itself a disabling illness is no defense.” Nevertheless, the court affirmed summary judgment in favor of the employer on the grounds that “if an employer fires an employee because of the employee’s unacceptable behavior, the fact that that behavior was precipitated by a mental illness does not present an issue under the [ADA].” Interestingly, the court did not engage in a “direct threat” analysis. Rather, the court found that Palmer was not a “qualified employee” under the ADA due to her threats to her supervisor and co-worker. “The act does not require an employer to retain a potentially violent employee. Such a requirement would place the employer on a razor’s edge — in jeopardy of violating the Act if it fired such an employee, yet in jeopardy of being deemed negligent if it retained him and he hurt someone.” The Palmer court also rejected the possibility of a reasonable accommodation for Palmer after she made the threats leading to her discharge. “[W]e cannot believe that this duty [of accommodation] runs in favor of employees who commit or threaten to commit violent acts. The retention of such an employee would cause justifiable anxiety to co-workers and supervisors. [S]o clear is this that we do not think a remand is necessary to explore the possibilities of accommodation.” VALENTINE v. STANDARD & POOR’S Similarly, in Valentine v. Standard & Poor’s, 50 F.Supp. 2d 262 (S.D. N.Y 1999), the United States District Court for the Southern District of New York granted summary judgment in favor of the employer where the employee had left a harassing and vaguely threatening voice-mail for a department co-worker. The court held that the voice-mail rendered Valentine “not otherwise qualified” to perform his job: “[W]hether Valentine’s misconduct was a manifestation of his disability is immaterial because the ADA does not immunize disabled employees from discipline or discharge for incidents of misconduct in the workplace.” The court cited a number of similar decisions, including Hamilton v. Southwestern Bell Tel. Co., 136 F.3d 1047 (5th Cir. 1998) (affirming summary judgment for employer where plaintiff was terminated for violation of policy on workplace violence), and Crawford v. Runyon, 78 F.3d 743 (8th Cir. 1996) (affirming judgment against employee who threatened to hurt or kill his supervisor). HALL v. MASTERLOCK While the overwhelming majority of cases addressing workplace violence find that it is intolerable without exception, a recent decision by the U.S. District Court for the Middle District of Alabama denied summary judgment on facts similar to those addressed by the cases cited above. In Hall v. Masterlock Co., Inc., 1999 WESTLAW 1458673 (M.D. Ala. 1999), the court found that Hall was allegedly “regarded as” disabled on the basis of Masterlock’s offer to him that he could be terminated or could take six-months of short-term disability leave if he agreed to undergo psychological counseling (at the end of which he would be terminated). The court then found that the dispute as to the nature of Hall’s alleged threats against his supervisor raised a genuine issue of material fact as to whether he was “qualified” under the ADA. Similarly, the court found that Masterlock’s explanation that Hall had been terminated because he threatened “newsworthy violence on one day and showed up at defendant’s facility with a gun the next” to possibly be pretextual, on the basis of Masterlock’s rejection of its chosen psychiatrist recommendation that Hall be returned to work “with stipulations.” That is, because Masterlock directed Hall to psychological and psychiatric care and then rejected the psychiatrist’s recommendation of reinstatement, the court held out the possibility of pretext. POFF v. PRUDENTIAL INSURANCE CO. It should be noted that the only decision by a court in the Eastern District of Pennsylvania addressing workplace violence under the ADA is Poff v. Prudential Insurance Co., 911 F.Supp. 856 (E.D. Pa. 1996). In that case, Poff was terminated after slamming his hand into a pillar which caused the employer’s sprinkler system to discharge. As the result of this, the workplace was evacuated. Poff had previously been warned after apparently purposefully breaking a window in the workplace. This case provides limited guidance, as Poff’s alleged disability was physical, rather than mental. Further, the case was one of alleged disparate treatment, rather than where the alleged violence rendered Poff “not qualified” for his employment. ANALYSIS It was recognized in the Palmer decision that “application of the ADA to persons suffering from mental illness presents difficult issues.” For employers, however, working with an employee who has threatened violence against the company or its individuals, will almost certainly be intolerable. In the Hall v. Masterlock case, summary judgment was denied, at least in part, on the basis of Masterlock’s desire to show “limited” compassion by offering Hall six months of disability leave for his termination. Had Masterlock simply treated Hall’s threats as a policy violation or as inappropriate workplace conduct, it may have avoided raising issues under the ADA. For counsel, these decisions touch on the potential difficulty of establishing the “direct threat of harm” defense, rather than arguing that the employee is “not otherwise qualified” for his or her position. Under the former theory, as addressed by the Borgialli court, the employer will likely need to demonstrate the “imminent risk of substantial harm.” This may be difficult, depending on the specificity of the threat and the objective possibility of it being carried. Alternatively, in accordance with Palmer, an employer can more easily argue that an employee’s threats of violence render him or her “not qualified” to continued employment.

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