In the case of Wills v. The Superior Court of Orange County, published on April 13, 2011, the Fourth Appellate District, Division Three found that an employee's termination was non-discriminatory when it was predicated on the employee's threatening behavior, even though that conduct was indisputably caused by her mental disability.
In the Wills case, the plaintiff told a coworker that she added him and another coworker to her "'Kill Bill' list" after she was left out in the heat due to the coworkers' delay. The coworkers understood the 'Kill Bill' list comment to refer to a movie in which the main character made a list of people she intended to kill. A few days later, Wills' doctor placed her on leave due to her bi-polar disorder. While on leave, Wills forwarded a cell phone ringtone to a coworker with whom she had an uneasy relationship. The ringtone said "I'm going to blow this b--- up if you don't check your messages right now! . . . F--- you!" and the coworker took it as a threat. In addition, Wills sent a series of emails to coworkers at their company email addresses. One coworker reported the e-mails to the employer, complaining that Wills' angry and irrational tone, and Wills' references to violence, alarmed her.
Several weeks later, when Wills' doctor released her to work, she was placed on administrative leave while an investigation was conducted, and was eventually terminated. The Court held that Wills' misconduct provided a legitimate, nondiscriminatory reason for her termination, because an employer may reasonably distinguish between disability caused misconduct and the disability itself when the misconduct includes threats or violence against coworkers.
Employers need to be cautious, however, because the Ninth Circuit has reached a contrary result, most recently in Gambini v. Total Renal Care, Inc. (9th Cir. 2007) 486 F.3d 1087, 1093. In that case, a bi-polar woman threw her performance improvement plan back at her supervisor and explained her feelings about it with numerous profanities. The Ninth Circuit reversed, holding that the jury should have been instructed that conduct caused by a disability is part of the disability and not a separate basis for termination. (Id. at pp. 1093-1095.)
For employers looking to protect their workplace from a potentially violent employee, there are no easy options. The employee, if terminated, can simply file in federal court to avail him or herself of the more favorable Ninth Circuit authority. Meanwhile failing to remove the employee can put the employer at risk if violence does result. The Wills Court, however, has offered the Ninth Circuit a way to reconcile Gambini and Wills if it so desires, by focusing on whether an actual threat was made or violence occurred. Employers would be well served, when terminating employees under these circumstances, to focus on documenting the employee's behavior as threatening or violent, and not merely as frightening or unpleasant to coworkers.
