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Threatening to shoot employees not ADA qualified

August 14, 2015

By Anthony Kaylin, courtesy of SBAM Approved Partner ASE

Everybody has good and bad days at work.  And on those down days, having bad thoughts about the annoying boss or coworker, inappropriate as they may be, may be therapeutic as long as you do not act upon them. And the great majority of people do not act on them; however, expressing those thoughts publicly is never a good idea.

Timothy Mayo worked at PCC Structurals, a manufacturing company in Oregon, starting in 1987.  Mayo welded airplane parts. Although he was diagnosed in 1999 with major depressive disorder, medication and treatment enabled Mayo to work for many years with no significant incidents. 

But in 2010 problems arose.  Mayo and some coworkers complained about a supervisor who he felt was bullying him. In January 2011, a coworker complained on a company hotline. This led to a meeting among Mayo, the co-worker, and PCC’s Human Resources Director for Oregon about the supervisor’s behavior. After the meeting, Mayo began to loudly verbalize his frustrations.

Mayo made threatening comments to at least three coworkers.  He told one that he “felt like coming down [to PCC] with a shotgun and] blowing off” the heads of the supervisor and another manager. The co-worker need not worry, Mayo explained, because she would not be working the shift when the killing would occur.  Mayo told another co-worker on several occasions that he planned to “come down to PCC on day shift . . . to take out management.” He told a third coworker that he “wanted to bring a gun down to PCC and start shooting people.” He then explained that “all that [he] would have to do to shoot the supervisor is show up at 1:30 in the afternoon” because “that’s when all the supervisors would have their walk-through.”

As might be expected, Mayo’s coworkers reported the statements to HR on February 15, 2011. Mayo was called into the HR office to explain his statements.  When asked if he planned to carry out his threats, Mayo said that “he couldn’t guarantee he wouldn’t do that.” He was immediately suspended and barred from the company property, and the police were notified. 

That night the police came to Mayo’s home.  Mayo admitted making the threats and that he had two or three people in mind, including the supervisor. He also admitted to owning several guns, though he had not decided which gun to use. When asked if he planned to go to PCC and start shooting people, Mayo responded, “Not tonight.”

With his consent, the police took Mayo to the hospital.  He was placed under custody for six days as a threat to himself.  He then took leave under the Oregon Family Leave Act (“OFLA”) and the Family and Medical Leave Act (“FMLA”) for two months.  When he came back from FMLA leave, Mayo was terminated.

Mayo then sued under Oregon’s equivalent to the ADA.  At the trial court level, the court held that Mayo was no longer a “qualified individual” once he made his “violent threats.”  As such, he was not entitled to protection under the law.

The 9th Circuit Court of Appeals affirmed the trial court decision.  Although Mayo showed that he had a disability, the 9th Circuit still concluded that he was not qualified under the law.  The Court stated that “[a]n essential function of almost every job is the ability to appropriately handle stress and interact with others. And while an employee can be qualified despite adverse reactions to stress, he is not qualified when that stress leads him to threaten to kill his co-workers in chilling detail and on multiple occasions.”  The 9th Circuit quoted a 7th Circuit Court of Appeals case that stated that “[t]he [ADA}] Act does not require an employer to retain a potentially violent employee.” The 9th Circuit also pointed out that once the threat was made, the reason for the threat did not matter.  An employee suing under the ADA or its equivalent would not enjoy the protection of the law.

Although Depression and mental illness are serious problems that affect millions of Americans, it does not mean that threatening the lives of others because of the illness automatically is protected; in fact, under this ruling the opposite is true. A safe workplace free of harm or threat is a fundamental right.  An employee who does makes threats would not be qualified under the ADA or similar law, and HR needs to take immediate action to protect other workers from the alleged threats of employees. To not act risks great liability.

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