Court: Safety Concerns Trump Disability Discrimination Claims

March 8, 2006
The 4th U.S. Circuit Court of Appeals has ruled in favor of a Harrisonsburg, Va., manufacturing facility that fired an employee after he allegedly threatened to use assault weapons to commit violent acts against plant employees and perhaps others.

Lake Forest, Ill.-based automotive products maker Tenneco, which owns the Harrisonburg plant, fired Richard Pence on Dec. 22, 2003, believing that Pence posed a threat to the safety of the employees at the facility.

Pence who denies making the threat sued Tenneco, asserting that the company fired him because Tenneco believed he had a mental disability, among other claims of discrimination.

Pence's lawsuit alleges that Tenneco violated the Americans With Disabilities Act for firing him and the Family Medical Leave Act for not reinstating him following his so-called medical leave, even though he never claimed to have any mental condition or impairment.

The U.S. District Court for the Western District of Virginia ruled in favor of Tenneco on all of Pence's claims, concluding that Tenneco terminated Pence solely on the basis of his perceived threat to the safety of Harrisonburg plant employees.

Judge Samuel Wilson, in the district court's ruling, points out that "[o]ther than his own conclusory statements, Pence has marshaled no evidence that his perceived disability was a determining factor in his termination."

" … [E]ven had Tenneco 'regarded him as' disabled, the uncontradicted evidence shows that Tenneco terminated Pence because it believed he had violated a workplace rule by making threats," Wilson wrote. "While the ADA prohibits employers from taking adverse action because of an employee's disability, it does not prevent employers from taking action as a result of an employee's misconduct or perceived misconduct."

The appeal court, in an unpublished March 7 opinion, agreed.

Pence Allegedly Had 'More Ammo Than Rockingham County'

Tenneco, which makes automotive emission-control and ride-control products, employed Pence as a welder at the Harrisonburg facility from Jan. 19, 1972, until Dec. 22, 2003, when it fired him. The appeals court opinion notes that Pence was regarded as a "good performer" by his bosses and that, prior to October 2003, Tenneco had no reason to fire Pence.

What allegedly precipitated Pence's dismissal was a conversation he had with plant nurse Evelyn Burner on Friday, Oct. 17, 2003.

In an e-mail the following Monday to plant Human Resources Manager Rod Little, Burner claimed that Pence told her "when he leaves here that he will be taking a bunch of people with him" and that when Burner "asked him if he meant here at [Tenneco] or at the courthouse downtown," Pence "responded by stating both places and that he has AKs and more ammo than Rockingham County."

In addition to her e-mail to Little about Pence's alleged threat, Burner over the weekend alerted the FBI to Pence's remarks. In short order, Burner and Little also contacted Tenneco's director of human resources, the company's legal department, the local police and the company's security consultant, according to the courts.

On Oct. 21, 2003, Tenneco placed Pence on paid disability leave and mandatorily referred him to the company's employee assistance program, according to the courts. The company told him not to return to work until notified.

Pence Exhibited a 'High Level of Paranoia'

Tenneco's EAP referred Pence to a psychologist, who concluded that he could not determine if Pence had a mental disability based only on Tenneco's self-reporting. Because the psychologist found no diagnosable mental illness, he did not complete any FMLA paperwork for Pence.

After Little, Tenneco's legal counsel and several EAP employees discussed Pence's situation during a Nov. 21, 2003, conference call during which an EAP employee allegedly mentioned that "'Pence demonstrates a high level of paranoia'" but does not have a treatable condition Tenneco told Pence that his leave did not quality as leave for a "serious medical condition."

According to the district court opinion, Pence then told the company that he had not requested FMLA leave and that he wanted to withdraw any such request because he was "not in need of medical leave."

Tenneco terminated Pence on Dec. 22, 2003 when the plant was mostly empty due to a holiday shutdown on the basis that his threatening remarks violated company policy regarding the treatment of co-workers.

Lawsuit: Safety Concerns Just a Pretext for Discrimination

In his lawsuit in district court, Pence contended that Tenneco used his alleged threats as a pretext for firing him when the company, in reality, believed he was disabled; forced him to undergo a psychological evaluation that was not job-related and not a business necessity; and discharged him in retaliation of a protected activity all in violation of the ADA.

Pence also alleged that when Tenneco refused to reinstate him, it was a violation of his rights under the FMLA.

The appeals court and the district court both concluded that Tenneco honestly believed that Pence was a threat to the safety of plant employees and that such a belief trumps any of Pence's claims under the ADA and FMLA.

For instance, the appeals court mentions that previous case law (Jones v. American Postal Workers Union, 4th Circuit, 1999) holds that it is not a violation of the ADA to dismiss a worker based on the worker's misconduct even if the misconduct stems from the worker's disability, and even if the perception of misconduct is mistaken.

" ... Tenneco's belief that Pence had made a death threat was a permissible nondiscriminatory reason for his termination, even if Tenneco believed that a mental condition had caused Pence to make the threat," the appeals court pointed out.

No Evidence Suggests Pence Has 'Serious Health Condition'

The appeals court agreed with the district court that it was perfectly legal under the ADA for Tenneco to require Pence to undergo a psychological evaluation, as it is "undoubtedly" job-related and a business necessity to determine if an employee poses a threat to the workplace.

The appeals court also concurred with the lower court that Pence did not qualify for medical leave, because there is no evidence to suggest that Pence has a "serious health condition" as defined by the FMLA.

"And in any event," the appeals court wrote, "Pence has repeatedly insisted that he does not suffer from any mental condition or impairment, thereby admitting that he does not have a 'serious health condition.'"

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