History Of Threats To Coworkers, Other Misconduct Defeat ADA Claims

Affirming summary judgment on the ADA discrimination and retaliation claims of a hearing-impaired city employee, the Ninth Circuit U.S. Court of Appeals explained that, even though a doctor found that he was fit for duty and no threat to himself or others, his history of threatening coworkers with violence, conducting personal business at work, making excessive phone calls, and disparaging his employer established four independent and sufficient bases for his termination. Neither the doctor’s conclusion that he was not a “future” threat nor the temporal proximity to his protected activity was enough to raise an issue of fact on pretext. The case is Curley v. City of North Las Vegas (No. 12-16228).

Hired in 1996, the city employee had a significant disciplinary record that reflected numerous verbal altercations with coworkers, insensitive remarks, and several threats of violence against coworkers. His record also included statements by coworkers regarding his constant complaints and negative remarks about his managers and the City.

Accommodation requests. At some point, the employee requested an accommodation of his hearing impairment and was denied. In December 2008, he filed an EEOC charge alleging that the city denied his accommodation and that it was retaliating against him for a prior charge of discrimination. In January 2009, he made a second accommodation request, complaining that noise from one of the trucks he operated was causing his hearing to deteriorate. He asked to be relieved from duties requiring that he be near that type of truck. Because those duties were essential to his job as sewer inspector, the city rejected his request and recommended that he use dual hearing protection.

Investigation and termination. Soon after his correspondence with the city regarding his second request, the employee was involved in an altercation with a coworker. The coworker asked him to remove his hearing protection so the two could communicate about a work-related task, and the employee responded by swearing and asking the coworker whether he thought he was a doctor. The incident prompted the city to put the employee on administrative leave and to launch an investigation into his behavior.

As part of the investigation, HR interviewed other city workers and learned that the employee repeatedly threatened coworkers and their families. For example, he threatened to put a bomb under a car, insinuated that he had mafia connections, threatened to kick a coworker’s teeth out if he did not join a union, and threatened to shoot his supervisor’s children in the kneecaps. The investigation also revealed that the employee regularly conducted personal business at work, sometimes spending up to three hours on his cell phone. Many of the calls were about his side ADA consulting business, and coworkers saw him approaching disabled individuals to discuss potential lawsuits.

The city scheduled the employee for a fit-for-duty evaluation, and the examining doctor concluded that he was fit for duty and was not a danger to himself or others. Nonetheless, at the conclusion of the investigation and after a hearing, the city fired him. Soon thereafter, the employee filed suit under the ADA alleging discrimination and retaliation. The district court granted summary judgment for the city and the employee appealed.

No discrimination. Affirming, the Ninth Circuit held that, even assuming the employee made out a prima facie case, he failed to raise an issue of fact as to whether the city’s reasons for firing him were pretext for disability discrimination. The city terminated him based on nonperformance of duties due to excessive phone calls, intimidation of coworkers by threats of violence, conducting and soliciting personal business on work time, and making disparaging remarks about his supervisors and the city.

While the employee tried to show pretext by pointing to the results of his fit-for-duty evaluation, his argument failed for two reasons. First, the city fired him for threats he made in the past, not due to danger of future violence. Nothing in the fit-for-duty evaluation addressed the employee’s history of threats, and his “threats were an independent and sufficient basis for dismissal, regardless of whether he posed an actual danger,” stated the appeals court.

Second, even if the fit-for-duty exam undermined the city’s credibility on its concern about the threats, the city had other reasons for the termination, including nonperformance of duties, conducting personal business at work, and disparaging remarks about supervisors and the city. The employee did not even try to refute those reasons, and disputing only one of several well-supported reasons was not enough to defeat summary judgment.

No retaliation. Again assuming, without deciding, that the employee made out a prima facie case of retaliation, the Ninth Circuit concluded that his claim failed because he could not show pretext. He argued that because the city tolerated his bad behavior for years until he engaged in a protected activity, his termination must be retaliatory. However, that argument wrongly assumed that the city was aware of the severity and scope of his misconduct during the years in which it refrained from firing him. Moreover, he instigated yet another altercation after his protected activity, prompting an investigation that revealed the full extent of his misconduct, including several additional, independently sufficient (and uncontested) bases for firing him. Consequently, the city’s failure to fire him earlier did not constitute evidence of pretext.

Furthermore, while close temporal proximity between a protected activity and an adverse employment action may establish a causal link between the two, the new information revealed by the city’s investigation defeated any causal inference that might otherwise follow from temporal proximity here. For these reasons, summary judgment was also affirmed on the employee’s ADA retaliation claim.

Visit our News Library to read more news stories.