No Duty to Reinstate Disabled Employee Discharged for Misconduct

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By: Karen L. Piper

 

An employer lawfully terminated an employee for misconduct, even though the employee claimed the misconduct was caused by a disability.  Even after the employer learned the employee had a psychiatric condition which accounted for the misconduct, the employer had no duty to accommodate the employee by converting his termination to a leave of absence. Yarberry v Gregg Appliances (unpublished) (6th Cir 9/03/2015).

The employee worked for an appliance store chain.  He was assigned to a new store after he was promoted to a sales manager position.  On his first day at the new location, the employee had conflicts with two other employees and summoned the Regional Manager.  The employee told the Manager that he had “not been sleeping and was ‘starting to freak out.’”  The Manager told the employee to return to work the following morning.

The employee left work at 9 p.m. that evening, but returned to the store around 2:15 a.m.  Overnight, the employee went into the store safe, wandered around the store and played on the store’s computers.  After several hours, the employee left the store, locked it, but did not set the alarm.  He sent several “increasingly odd text messages and emails” to the Regional Manager.  In these messages, the employee said that he was ‘“barely surviving’ and not coming in that day, and that his fiancée was trying to get him to a doctor.”  The Manager replied that the employee should go to the emergency room or call an ambulance, if needed.  The employee then sent “incoherent” emails to five senior corporate executives.  Human Resources was notified.  The store’s Asset Protection Manager initiated an investigation and the employee was suspended pending investigation.

Later that day, the employee’s fiancée called the Regional Manager and reported that she was taking the employee to a hospital.  She agreed to have the employee drug-tested as the Manager had requested.  (The employee testified negative for drugs.)  The employee was taken to the hospital later that afternoon and admitted to a psychiatric hospital the next day.  The employee was diagnosed with bipolar disorder.  This diagnosis was communicated to the employer a week later.

The same afternoon following the employee’s overnight activities in the store, the HR manager consulted with legal counsel and decided to discharge the employee.  She directed the Regional Manager to notify the employee.  The Manager sent a termination letter to the employee’s home the following day – after the HR Manager learned of the employee’s involuntary commitment.

The employee sued for disability discrimination and failure to accommodate.  The court ruled that the employer had “constructive notice of a serious mental illness” at the time it discharged the employee based on its knowledge of the employee’s involuntary commitment to a mental hospital, combined with the employee’s sudden onset of his extreme symptoms.  Despite this knowledge, the employer’s termination of the employee for violation of “company policies, regarding safety and security as well as general behavior standards for management” were legitimate, nondiscriminatory reasons warranting his termination.

The employee also argued that the employer failed to accommodate him by granting him a leave of absence.  The court noted that the “timing of a request [for accommodation] is crucial, as ‘an employer does not have to rescind discipline (including termination) warranted by misconduct.’”  The employee had already engaged in the misconduct cited as the reason for his termination before requesting accommodation.  As a result, the employer was not obligated to rescind the employee’s termination or engage in further discussion of his requests for accommodation.  The court observed that had the employee “not already engaged in misconduct meriting termination, it is possible that his requests for time off due to his hospitalization might have been timely and [the employer] would have been obliged to try to accommodate him.”

This case highlights the importance of documentation and consultation with experienced employment counsel, such as the author.  Mental disabilities are challenging.  The court characterized this as a “close” case.  The employer was charged with notice of the employee’s disability when it learned that he had been committed to a psychiatric hospital.  However, the employer prevailed because it had carefully documented the sequence of events, including the time it made the decision to terminate.

This article was written by Karen L. Piper, who is Secretary of the Board of Detroit SHRM, a member of its Legal Affairs Committee, and a Member of the law firm of Bodman PLC, located in its Troy MI office. She can be reached at (248) 743-6025 or kpiper@bodmanlaw.com.

Detroit SHRM encourages members to share these articles with others, inside and outside their organization, as long as its name and logo, and the author’s information, is included in the re-post of the article. September 2015.