Editor’s Note – Mark Lies, II, is a partner in the Chicago, IL, law firm of Seyfarth, Shaw, Fairweather and Geraldson, who specializes in labor and employment law as well as occupational safety and health. Legal topics provide general information, not specific legal advice. Individual circumstances may limit or modify this information.
Unfortunately, incidents of workplace violence are becoming commonplace, as newspaper accounts of spectacular shootings seem widespread. According to statistics, many more incidents of workplace violence (typically threats, assaults, fighting) occur, numbering in the millions.
It now appears that the courts are becoming concerned about this behavior and are much more inclined to uphold the employer when it imposes discipline. The following decisions illustrate this shift in judicial attitude.
I Didn’t Mean It
Recently, the Seventh Circuit Court of Appeals in Chicago upheld the termination of an employee by the Illinois State Toll Highway Authority for engaging in threatening behavior.
The plaintiff had been employed as an auditor for the Authority and, earlier in his employment, had filed a discrimination charge claiming that a supervisor had slapped him. His charge was settled with an agreement to give him a new job and to establish a four step progressive discipline program for him (i.e., first offense, oral reprimand; second offense, written reprimand; third offense, suspension without pay; and fourth offense, termination).
After working in his new job for some time, the plaintiff claimed that his new supervisor was unkind to him, yelled at him, and humiliated him. After six months, the plaintiff “blew his stack” when his supervisor criticized him for a mistake. He became furious and, according to co-employee witnesses, his face turned red, his eyes bulged, and he stood up in a rage, screaming, “If you don’t do something about Sharon [his supervisor], I will.”
This incident terrified the co-employees who immediately reported it to management. The supervisor began crying and feared for her safety. After conducting an immediate investigation, the plaintiff was terminated the next day for gross insubordination, disrespectful conduct, and threatening behavior.
The plaintiff filed suit, claiming, incredibly, that the Authority breached the agreement with him that he would be disciplined in a progressive manner, entitling him to an oral reprimand for his behavior rather than his termination. Second, he claimed that he “hadn’t meant to threaten anybody” and thus he should not have been disciplined. The court summarily disposed of his contentions. First, the court said that whether the plaintiff intended to threaten co-employees was irrelevant; rather, the court found it was sufficient that he had “put a fright into them.”
Strikingly, the court also found that the company was not required to follow progressive discipline, stating, “They [the company] would be insane if they did, for it would mean that if [plaintiff] had killed [his supervisor] he could have received only an oral reprimand, and then if he had killed [the department head] as well, only a written one.”
The court described the plaintiff’s contention as an absurdity.
He Hit Me First!
In another recent decision, the same court upheld Northeastern Illinois University when it suspended an employee for fighting. In this case, the employee, an African American building service worker, claimed that his supervisor, a Caucasian male, had given him a poor performance evaluation, used foul language toward him, and was intoxicated when discussing his performance evaluation. The plaintiff then filed a race discrimination complaint.
The supervisor asked the plaintiff to have a private meeting to discuss performance issues. During the meeting, the supervisor allegedly grabbed the plaintiff’s arm as the plaintiff began to leave the meeting while the supervisor was still talking. The plaintiff then hit the supervisor in the face with a closed fist and started shouting threats. As a result of this incident, the plaintiff was suspended and his supervisor received a written warning for grabbing the plaintiff’s arm.
In upholding the lower court’s dismissal of the plaintiff’s discrimination charge, the court focused on the fact that the plaintiff admitted he had engaged in fighting in violation of University rules. More importantly, the plaintiff had not been discriminated against when compared to his supervisor because their conduct was “quantitatively different; the supervisor grabbed the plaintiff’s arm while the plaintiff struck the supervisor.”
Conclusion
It is apparent that courts are becoming more sympathetic to employer’s actions in trying to eliminate workplace violence incidents and that this interest can prevail our employment discrimination claims. Many employers are reluctant to impose discipline because of a fear of discrimination of charges. These cases should give employers support for imposing such discipline.
In order to prevail, the employer should:
• Have a written policy against workplace violence;
• Train employees in the policy and require reporting of incidents;
• Conduct a competent and timely investigation of all reported incidents;
• Impose discipline on the violators, appropriate to their level of misconduct; and
• Document and preserve the underlying bases for such actions.
Labor and the Law - April 2002 Render