Friday, April 15, 2011
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C.A. Upholds Termination of Bipolar Court Clerk Over Threats
By KENNETH OFGANG, Staff Writer
An Orange Superior Court clerk who claimed that her hostile and threatening conduct toward co-workers was a manifestation of bipolar disorder was properly terminated, the Fourth District Court of Appeal has ruled.
While the Fair Employment and Housing Act protects an employee from being fired based on disability, Justice Richard Aronson explained Wednesday for Div. Three, it does not preclude termination based on misconduct, even if that conduct is a product of the disabling condition.
The panel affirmed a judgment in favor of the Orange Superior Court. Los Angeles Superior Court Judge Joseph Di Loreto, sitting on assignment, ruled that all of Wills’ claims were barred either for failure to exhaust administrative remedies or on the merits.
Administrator Remedy
Aronson said Wills may have exhausted her administrative remedy for disability discrimination. But reversal was not required, he explained, because the judge correctly held that Wills was terminated because of her conduct, not her disability.
The court presented evidence that it fired Wills because of several incidents in which she used inappropriate and threatening language toward people she worked with, including Anaheim Police Department employees. The court at one time had assigned Wills to work at the police lockup, where suspects were arraigned via teleconference, but had removed her after an incident in which an officer and a civilian employee claimed she angrily said she had placed them on her “Kill Bill” list.
“Kill Bill” is the name of a Quentin Tarantino film about a woman with a list of people she intends to assassinate.
Other misconduct cited by the court included the sending of bizarre and angry emails to co-workers while she was on medical leave following the Anaheim incident, and calling a co-worker with whom she had an uneasy relationship using a ringtone that grew progressively louder and culminated in a shrieking, profane message.
Manic Episodes
Wills’ doctor opined that she suffered from bipolar disorder, and that it was treatable with medication, but that her outbursts were part of manic episodes. He cleared her to return to work, but the court placed her on administrative leave pending an investigation, and ultimately notified her it intended to terminate her.
She responded by claiming that the manic episodes were triggered by harassment on the part of co-workers, and that she was being retaliated against for complaining of the harassment. The court delayed her termination pending an independent investigation of those charges.
The investigator concluded that Wills has been subjected to an inappropriate and offensive comment by a fellow employee on an elevator, but that there was no threat of credible harm. The court terminated Wills in January 2008 and she complained to the Department of Fair Employment and Housing.
Using a standard form, she claimed her employer violated the law by “denial of family/medical leave.” She asserted that the court refused to reinstate her when she sought to return from medical leave.
The court responded by saying that it had granted all of her leave requests and that she was not terminated based on disability. She later sued in superior court, alleging six causes of action for disability discrimination, harassment, retaliation, hostile work environment, and failure to engage in an interactive process and to accommodate a disability.
Summary Judgment
In granting summary judgment, Di Loreto ruled that since none of the six causes of action related to the family and medical leave issue raised in the administrative complaint, all of Wills’ claims were barred by the Fair Employment and Housing Act’s exhaustion requirement. He alternatively held that the court had a legitimate, non-discriminatory reason for terminating her employment.
Aronson, writing for the Court of Appeal, said that in order to satisfy the exhaustion requirement, a plaintiff must provide the DFEH with enough information to pursue the conciliation process. With respect to harassment, retaliation, hostile work environment, failure to seek accommodation, and failure to accommodate, there was no evidence that these issues were ever discussed during the administrative proceedings, so the claims are clearly barred, the justice said.
The plaintiff contended that since the court provided the department with a response to her allegations of disability discrimination, even though she did not express them on the form, the exhaustion requirement was satisfied as to that claim. Aronson questioned whether the requirement can be met solely on the basis of information provided by the defendant, but said that even if it could, the trial court correctly granted summary judgment on the merits.
He cited cases in several federal circuits interpreting the Americans With Disabilities Act as permitting an employer to terminate an employee who commits or threatens violence, even if the misconduct is caused by a disability.
While ADA cases are not binding on California courts when interpreting the FEHA, Aronson said, it is appropriate to consider then for their persuasive value, particularly since there is “a dearth of support for Wills’s position” in state or federal law.
“Accordingly, consistent with the federal courts’ interpretation of the ADA, we interpret FEHA as authorizing an employer to distinguish between disability-caused misconduct and the disability itself in the narrow context of threats or violence against coworkers,” the justice wrote.
He continued:
“If employers are not permitted to make this distinction, they are caught on the horns of a dilemma. They may not discriminate against an employee based on a disability but, at the same time, must provide all employees with a safe work environment free from threats and violence....We believe our interpretation of FEHA strikes the appropriate balance between protecting employees suffering from a disability and allowing employers to protect their employees and others from threats of violence and the fear that a hostile or potentially violent employee will act on those threats.”
The case is Wills v. Superior Court, 11 S.O.S. 1885.
Copyright 2011, Metropolitan News Company