Wednesday, June 27, 2018

Court upholds Postal Service's termination of employee over fear of "going postal"

What do you do when you learn that an employee may pose a risk of violence to your workplace?

Does your opinion change if you learn this information on the eve of the employee returning from a leave of absence for depression or other mental illness?

Mitchell v. U.S. Postal Service (6th Cir. 6/21/18) answers these questions.

Kedric Mitchell had a history of taking unpaid leaves of absence from his employment at the U.S. Postal Service for depression. Upon his return to work following his latest leave, Mitchell presented a note written by his psychologist, certifying that Mitchell was "able to fully return to work with no restrictions."

Around the same time, Mitchell's wife sent the USPS a letter describing his mental instability, detailing how returning to work could make it worse, advising that his doctors were unaware of these developments, and concluding that she did not think "he should be allowed back into [the USPS] facility."

Based on the wife's letter, the USPS convened a threat assessment team (including a doctor), which concluded that they needed "medical documentation to substantiate that [Mitchell] could return to work without causing harm to [him]self or others." Mitchell, however, refused to provide any further medical documentation to support his request to return to work. As a result, he was fired.

The appellate court had little difficulty affirming the dismissal of Mitchell's disability discrimination lawsuit. According to the court, the employer terminated him because of legitimate concern for workplace safety, not because of his underlying depression.

Employers faced with a legitimate and reasonable concern about a potentially dangerous employee need not wait for the powder keg to explode. Instead, employers can treat the employee as a "direct threat" and separate the individual from employment. The ADA does not protect those who pose a "direct threat" to the safety of themselves or others.

Palmer v. Circuit Court of Cook Cty. (7th Cir. 1997) explains the Hobson's choice employers face when deciding whether to retain a potentially violent employee:
The [ADA] 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….
It is true that an employer has a statutory duty to make a "reasonable accommodation" to an employee’s disability…. But we cannot believe that this duty runs in favor of employees who commit or threaten to commit violent acts…. The retention of such an employee would cause justifiable anxiety to coworkers and supervisors. It would be unreasonable to demand of the employer either that it force its employees to put up with this or that it station guards to prevent the mentally disturbed employee from getting out of hand.

A few additional practical points to consider:
  1. Prior to the termination, obtain written statements from co-workers, supervisors, and managers documenting all threatening behavior. This will help you establish a "direct threat" defense to a potential ADA claim.

  2. The severity of threat is proportional to the duration of the risk. In other words, the more real the risk the less amount of time you have to allow it in your workplace.

  3. Typically, I’m against security escorts (the "perp walk") for terminated employees. The termination of an employee who poses a direct threat for violence is the exception.

  4. Consider carrying out the termination as late in the work day, and work week, as possible. This timing will create and artificial cooling-off period and help limit the risk that the employee returns to do harm.

  5. Put the local police department on notice. Also consider a private security detail for a period of time until you are reasonably certain the employee is not going to return to cause harm.
* Photo by Sofia Sforza on Unsplash