The 9th U.S. Circuit Court of Appeals has determined that an employee’s reaction to stress that included threats to kill co-workers – made in “chilling detail and on multiple occasions” – meant that the individual could not perform an essential function of his job and, therefore, was not a “qualified individual” for protection under disability discrimination law. Mayo v. PCC Structurals, Inc., 9th Cir., No. 13-35643, July 28, 2015.
Timothy Mayo began working at PCC Structurals in 1987. In 1999, he was diagnosed with major depressive disorder but, with medication and treatment, continued to work without significant incident until 2010. At that point, Mayo and certain co-workers made claims that a supervisor was “bullying them and making work life miserable.”
In January 2011, Mayo and a co-worker met with a company HR director about the situation. After that meeting, Mayo made threatening comments to others, including that he felt like “blowing off” the heads of the supervisor and another manager with a shotgun; that he wanted to “take out” management; and that he wanted to “start shooting people.”
When those threats were reported to management, PCC’s Senior Human Resources Manager called Mayo to ask about the threats. In response, Mayo said that he “couldn’t guarantee” that he wouldn’t follow through. Mayo’s employment then was suspended and Mayo was barred from company property.
That evening, a police officer visited Mayo to discuss the threats. Because Mayo admitted the threats, and explained that he had “two or three” specific people in mind, though he had not decided which of his multiple guns to use, the officer took Mayo to the hospital, with Mayo’s consent.
Mayo then took three months of leave under the FMLA and Oregon’s equivalent state law. At the end of that time, a treating psychologist cleared Mayo to return to work, but recommended a new supervisor assignment. Instead, PCC terminated Mayo’s employment.
Mayo sued, alleging that the termination violated Oregon’s state-law counterpart to the Americans with Disabilities Act (ADA). The district court granted PCC’s motion for summary judgment, and Mayo appealed that decision to the Ninth Circuit.
The Ninth Circuit upheld the dismissal on the premise that Mayo was not “qualified” for his position and, therefore, was not protected by the disability discrimination laws. According to the Ninth Circuit, an essential function of almost every job is the ability to “appropriately handle stress and interact with others.” Calling it a common sense principle, the court’s basis for its decision is that “[a]n employee whose stress leads to serious and credible threats to kill his co-workers is not qualified to work for the employer, regardless of why he makes those threats.”
While this holding may be based on “common sense,” it also illustrates the difficulties faced by both employers and employees when dealing with psychological disorders. Had Mayo’s threats been less dramatic and more benign (a threat to “take it outside,” perhaps, or “I’ll deal with you later”), would the employer instead have had to make an individualized assessment of the actual future risk of harm before firing him? Would there have been a requirement to engage in an interactive process to determine whether an additional medical leave could reasonably accommodate a depressive episode?
In fact, a footnote references the “extreme facts” before the court, and points out that the court does “not suggest that off-handed expressions of frustration or inappropriate jokes necessarily render an employee not qualified [under disability discrimination laws].” While court direction always is welcomed, the extremes of behavior addressed by the court (repeated violent threats versus “off-handed expressions of frustration”) leave a large grey area of employee behavior with which employers must grapple without instruction.
Employers should seek out available resources to assist in dealing with mental illness and psychological disabilities among employees to assure legal compliance in the most effective and productive manner for both the employer and its employees. The Society for Human Resource Management (SHRM) has posted articles that offer advice and direction to employers, and several other countries, including Canada and Australia have government-sponsored initiatives to assist managers in dealing with these issues. The EEOC’s guidance on psychiatric disabilities has not been updated since 1997, in spite of the 2008 amendments to the ADA.