Under the Americans with Disabilities Act and parallel state statutes, an employer cannot take an adverse action against an employee because of that person’s disability or perceived disability. However, an employer is justified in taking such action if the action is based upon a legitimate business reason, and if that reason is not simply a pretext for discrimination. A Tennessee district court has held that firing an employee because of fear of potential violence by that individual is a “legitimate non-discriminatory reason” for an employee’s termination, in spite of the fact that the employee had been diagnosed with bi-polar disorder. Calandriello v. Tennessee Processing Ctr., M.D. Tenn., No. 3:08-1099, Dec. 15, 2009.
Robert Calandriello sued his former employer, Tennessee Processing Center (TPC) for disability discrimination under the state’s anti-discrimination statute. The company filed a motion for summary judgment, which was granted by the district court. The court’s decision was premised on the third step of the shifting burden analysis, which requires an employee to disprove the company’s “legitimate business reason” for an adverse employment action.
Beginning in 2005, Calandriello worked at TPC’s Nashville location, which processed business data on which U.S. government stock and wire transfers were based. Because of the nature of the business conducted, TPC operated under certain security protections including FBI record checks for employees, a gated facility, and retinal scans for employee access.
In September 2007, TPC issued a “final warning” to Calandriello after learning that Calandriello had used company equipment to modify a company poster by adding a photo of Charles Manson. During the disciplinary process, Calandriello acknowledged that he made a poor choice in displaying the poster, but informed TPC (for the first time) that he suffered from bi-polar disorder which, he said caused that lapse in judgment. Calandriello also argued that because he had not destroyed company property, threatened anyone, or caused financial loss to the company, he should be exempt from disciplinary action, because he was entitled to “accommodation” under the ADA.
In spite of that, Calandriello was fired after further investigation showed that he had viewed online images of violence, assault weapons, and serial killers on his company computer. TPC’s action was based on a “loss of confidence” in Calandriello, and a concern that Calandriell’s continued employment posed a risk of workplace violence. Calandriello admitted to viewing sites about assault weapons and serial killers, but argued that guns were a “constant conversation topic” in the workplace at TPC.
Nonetheless, the court found in favor of TPC, holding that “fear of potential violence is a legitimate non-discriminatory reason for an adverse employment action,” including termination, and quoted a federal appellate court opinion that the ADA “does not require an employer to retain a potentially violent employee.” It further found that Calandriello was unable to provide evidence that the reason given by TPC for the termination was simply a pretext for discrimination. TPC was able to substantiate its position by citing a written company policy that specifically prohibited employees from visiting internet sites that are “known to contain or are suspected of containing objectionable matter” including “profane or otherwise inflammatory material.”
This case should not be viewed as a blank check for the discipline or termination of employees with bi-polar disorder. The deciding factors here included the high security workplace and the written company policies related to company computers. Further, the fact that the company was unaware of Calandriello’s impairment until after its initial disciplinary action supports its argument that the termination was based on “legitimate non-discriminatory” reasons. Employers should view issues related to medical and psychological impairments on a case-by-case basis to assure compliance with both state and federal laws.