Judge Dismisses Case Of Threats by Cognitively Impaired Man

A federal judge in New Hampshire recently addressed a Solomon-like case involving the right of a town to protect its workplace from threats and intimidation by a severely cognitively impaired man.

The 20-year-old man, N.P., who has the cognitive ability of a six-year-0ld, was attending a municipal summer camp in 2019 in Meredith, NH, when he threatened to kill the camp director and two attendees.

Even though N.P. apparently lacked the ability to understand and carry out such threats, the camp director reported the threats to police and the next day N.P. was suspended.

N.P. originally was suspended indefinitely but town officials later limited the suspension to 60-days.

Americans With Disabilities Act

U.S. District Judge Steven J. McAuliffe recently dismissed a lawsuit filed by N.P.’s guardian after finding there was insufficient evidence to show the town violated N.P.’s rights under the Americans with Disabilities Act (ADA).

The Next Time You See A Red Library Cart, Think of Mary Inman

Mary Inman, 56, served as a librarian in the children’s program at Lemont Library in the Chicago area for more than 30 years.

Then she required a knee replacement.

Thereafter, Inman was subjected to what many would consider to be shocking treatment by the library director, Sandra Pointon, who fired Inman on August 6, 2018.

And now a federal judge has dismissed Inman’s lawsuit alleging a hostile work environment in violation of the American with Disabilities Act and a violation of the Age Discrimination in Employment Act. U.S. District Judge Charles P. Kocoras, 82, who is a senior or semi-retired judge, cited insufficiencies in the drafting of the complaint and then refused to allow Inman to file an amended complaint.

According Judge Kocoras’ ruling, here’s what Inman alleges she endured:

Lemont Library Director Pointon acted “annoyed and impatient” when she learned in 2017 that Inman would need left and right knee replacement surgeries.
Inman tried to accommodate her condition by using a red library book cart, upon which she placed books, to get around the library. Pointon initially suggested Inman, who also used a cane, “get a scooter” and then directed a maintenance worker to move the red cart from the library altogether.
Pointon told Inman “not to seek help” from her co-workers and sent an email to library staff telling them not to move Inman’s car in the parking lot, bring Inman coffee and tea and to “observe her and record” Inman’s actions. She said she didn’t invite Inman to a conference because “I didn’t think that you would be able to get around.”
In April 2018, Pointon gave Inman a “written disciplinary action” for not keeping track of her time. Though Inman was a manager, she required Inman to use a punch time clock. She also told Inman to meet with her on a weekly basis to review her work performance.
Pointon then installed a surveillance security camera near the Children’s Activity Center, where Inman worked, and refused to replace Inman’s broken desk chair.
Pointon hired a younger person and assigned her some of Inman’s work responsibilities even though Inman was still working.
Without consulting Inman, Pointon submitted a temporary disability application on Inman’s behalf. Inman had intended to use vacation and sick days to account for her absences from work.
After her first knee surgery, Inman returned to work and told Pointon she needed an accommodation for another surgery on her other knee. Pointon responded: “We’ll see.”
Pointon “would yell criticisms of Inman across the library which caused library patrons to privately express concern to Inman.”
After Inman was fired, she was replaced by a significantly younger person.

How could the above account fail to be the basis of a legal claim strong enough to proceed past the initial filing stage?

Technically, a complaint must only be a “short and plain statement … showing that the pleader is entitled to relief.”
Federal Rules of Civil Procedure.

Attorneys for Lemont Library argued that Inman did not show she suffered harassme that was “severe or pervasive enough to alter the conditions of her employment and create a hostile or abusive working environment.” Judge Kocaras agreed.

EEOC Loses Case Involving Dismissal of Long-time Staffer Who Suffered a Breakdown

The U.S. Equal Employment Opportunity Commission (EEOC) has lost a claim in federal court involving its dismissal of a long-time EEOC staffer who suffered an apparent mental breakdown.

Ironically (and sadly), the EEOC is the federal agency charged with enforcing the Americans with Disabilities Act.

In 2017, the EEOC terminated an EEOC mediator who, during the course of a mediation, “suddenly began to act erratically. Witnesses later testified that [the mediator] began using racial epithets and engaging in physical violence toward the parties in the mediation, mistreated his co-workers, and refused to follow orders from management officials.”

The EEOC Failed to Consider the Worker’s “Obvious” Medical Condition

The staffer’s union, American Federation of Government Employee (AFGE), Local 3599, filed a grievance and the case went to private arbitration.

After a two-day hearing and testimony by 11 witnesses, an arbitrator appointed by the Federal Mediation and Conciliation Service found the worker had experienced “a major physical and/or mental breakdown.” Otherwise, the arbitrator noted, the worker had “an unblemished 19-year record as a Federal employee.”

The arbitrator said the EEOC failed to consider the worker’s “obvious medical condition” when it dismissed him and lacked just cause for the dismissal. The arbitrator ordered the EEOC to reinstate the worker with back pay and benefits.

However, the arbitrator refused to require the EEOC to pay the union’s attorney fees, prompting the union to file a petition for review in the U.S. Court of Appeals for the Federal Circuit.

The EEOC initially argued the attorney fees were not warranted for two reasons: (1) “in the interest of justice” and (2) because the parties’ collective bargaining agreement provided the Arbitrator’s fees and expenses related be borne equally by both parties.

The three-judge panel said the EEOC “disclaimed” the second argument, which was “plainly invalid,” during the appeal. The court noted the referenced contract provision “does not provide for each party to be responsible for its own attorney fees.”

The Court said the arbitrator failed to articulate a reason for denying the union’s request for attorney fees leaving the court “with no assurance that the arbitrator rejected that [invalid] argument. Because the EEOC invited the arbitrator to deny fees on that ground, the agency is not well situated to argue that the arbitrator must have denied fees on a valid ground, rather than on the invalid ground that the agency itself proposed.”

The court vacated the arbitrator’s award as to the attorney fee issue and remanded back to the arbitrator “to reconsider the issue of fees and to include a statement of reasons for whatever decision the arbitrator reaches on that issue.”

EEOC: Do As I Say, Not as I do?

As the EEOC notes on its own web site, the Americans with Disabilities Act prohibits discrimination against workers who have a physical or mental impairment that substantially limits one or more major life activities.

The case is AFGE Local 3599, Petitioner v. Equal Employment Opportunity Commission, Respondent, No. 2018-1888 (March 29, 2019).

Mocking Comments of Tourette’s Syndrome May Cost Costco

A federal appeals court in New York has shed light on when simple teasing crosses the line and gives rise to a “hostile” work environment under the law.

A three judge panel for the U.S. District Court of Appeals for the Second Circuit this week overturned the dismissal of a hostile workplace claim filed by a veteran Costco employee with Tourette’s Syndrome and Obsessive-Compulsive Disorder.

It was a case of first impression for the 2nd Circuit, which joined several other federal circuits in finding that hostile work environment claims are cognizable under the Americans with Disability Act (ADA).

The plaintiff, Christopher Fox, a 21-year veteran employee at a Costco store in Holbrook, NY, said he began experiencing higher levels of stress after a management change in 2013. He was reprimanded for making inappropriate comments to two female customers and reassigned from a Greeter position to an Assistant Cashier position, where he had less contact with patrons.

In his new position, Fox said, Costco employees began mocking him and made “hut-hut-hike” remarks to mimic Fox’s strategy for avoiding verbal and physical tics. He claimed the abuse was audible to managers, who did nothing.

Fox’s verbal and physical tics mocked with reference to football play

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No Reasonable Accommodation After Threats to Kill Boss, Coworkers

The Alaska Supreme Court has upheld the dismissal of a public works employee who made statements that other employees in his workplace interpreted as threats.

Plaintiff Tom D. Nicolos claimed his statements did not constitute threats or misconduct under the personnel rules of the North Slope Borough Department of Public Works but were a cry for help due to a mental health crisis.

Nicolos allegedly told his boss he was “not in a good place” and was having homicidal thoughts. He then allegedly told a counselor that he had a “premeditated plan to use firearms to harm or kill people at his workplace.” The counselor notified Nicolos’ boss.

Nicolos said his discharge violated the Americans with Disabilities Act (ADA).

The Alaska Supreme Court recently upheld Nicolos’ dismissal, ruling that a threat need not be intentional to constitute violence in the workplace. Alaska’s high court said an employee can be punished for threatening statements or behavior “so long as it could be interpreted by a reasonable person as conveying intent to cause physical harm” Moreover, the Court said the ADA’s protection does not extend to an employee who is terminated because he cannot “perform the essential functions[his] position … (with or without reasonable accommodations.” The Court said it is an essential function of a job to refrain from making others in the workplace feel threatened for their own safety.

WOULD A REASONABLE PERSON PERCEIVE THE COMMENT AS THREATENING?

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