Employment Law Daily Employee fired for violating workplace violence policy, not for PTSD
Wednesday, February 21, 2018

Employee fired for violating workplace violence policy, not for PTSD

By Kathleen Kapusta, J.D.

An army vet fired shortly before he was scheduled to return from an extended medical leave, which he had been on since purportedly threatening his supervisor, failed to show he was discharged because of his PTSD, a federal district court in Louisiana ruled, finding no evidence of pretext in his employer’s stated reason for the adverse action—he violated the company’s workplace violence policy. The court also granted summary judgment against his ADA and state-law claims for hostile work environment and retaliation (Johnson v. JP Morgan Chase Bank, NA, February 14, 2018. James, R.).

The operations specialist at a bank’s document storage facility, who had served in the Gulf War in 2003, alleged he suffered from PTSD. He claimed that in October 2014, his supervisor began harassing him. Although he complained to HR in December that she had improperly coached and counseled him, he did not report any harassment based on disability. Shortly after that, he was transferred, at his request, to another facility.

Threats. The following month, the employee, crying, depressed, and tired, purportedly told a mailroom supervisor “he was mad enough to kill” his supervisor. A few minutes later, he asked his manager “What is she trying to do; make me hurt her or something?… I didn’t go in the army, spend 22 years to come out and hurt no civilians.” When asked if “there would be a tipping point as to when” he might hurt her, he allegedly responded that he did not know “in that state.” A third coworker he spoke to that morning testified that he said he would pay the supervisor a visit before leaving town if he was discharged.

Medical leave. Sent home after that incident, the employee went to his doctor and then went on a medical leave of absence, which was extended multiple times. Shortly before he was scheduled to return in April, he told the company’s VP of security he could not remember making any threatening statements. Although his leave was extended through May 31, he was terminated on May 28 for violating the company’s workplace violence policy.

Hostile work environment. In his subsequent lawsuit, the employee first alleged that his employer violated the ADA and state law by allowing “an intolerable and hostile working environment to exist.” Although he alleged numerous actions by his supervisor over a three month period, only one—informing others that he had PTSD and was a trained killer—was based on his disability. But the employee did not hear her tell anyone he had PTSD, did know when she made the comments, did not know when he learned she made the comments, and did not know whom she told. Nor did she say anything directly to him about his disability. Thus, while the supervisor’s conduct may have been subjectively offensive, it was not sufficiently extreme, said the court, granting his employer judgment as a matter of law on this claim.

Retaliation. As to the employee’s claim he was discharged in retaliation for complaining about the harassment, the court pointed out that in his only complaint to HR, he did not mention that the supervisor had told others about his PTSD or that she harassed him based on his disability. Nor did he tell his manager about her alleged disability-related comments. Finding no evidence that he notified the company of any discrimination or harassment based on disability, the court found he failed to show he participated in an activity protected under the ADA and thus this claim failed as well.

Disability discrimination. Turning to his claim he was fired because of his PTSD, the court, assuming without deciding that he established a prima facie case of discrimination, found the employer produced a legitimate, nondiscriminatory reason for discharging him: He violated the workplace violence policy. The employee argued, however, that some of the evidence upon which the company relied was inadmissible hearsay. He pointed first to an averment by the Employee Relations VP, who stated that based on her review of the records, the investigation revealed he made the threatening statements.

Not hearsay. The employee contended that his alleged statement to the mailroom supervisor, which was then repeated by that supervisor to the VP of security, was hearsay within hearsay. But his statement, explained the court, wasn’t hearsay because it wasn’t offered to prove he was actually mad enough to kill the supervisor but rather to show the company discharged him because it perceived, in good faith, that he was a danger to her. Nor was the mailroom supervisor’s statement hearsay as it was not offered to show the employee uttered those words but that he reported the alleged threat.

The security VP’s email recounting the mailroom supervisor’s report was also admissible as a record of a regularly conducted activity. The Employee Relations VP averred she had access to HR files relating to employees and that the exhibit was made by a person with personal knowledge of the events, was made as a regular practice, and was kept in the course of the company’s regularly conducted business activity. Thus, the court found the company’s proffered evidence was admissible.

Pretext. As to pretext, the employee first argued that the timing of his discharge, shortly after the company learned he would return from medical leave, was suspicious. However, said the court, while this might be evidence of a prima facie case of discrimination, it was not evidence of pretext. And while he claimed that he did not say what his coworkers claimed he said, and thus that he did not violate the workplace violence policy, the court explained that even assuming the company mistakenly believed his coworkers, he failed to show it did not, in good faith, perceive their accounts to be true, or that its perception of his actions was not the real reason for discharge. Accordingly, the bank was entitled to judgment as a matter of law on this claim.

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