United States District Court, E.D. Pennsylvania
January 13, 2015
TAJ WALTON, Plaintiff,
SPHERION STAFFING LLC a/k/a SPHERION STAFFING SERVICES, and TECH DATA CORPORATION, Defendants
TAJ WALTON, Plaintiff: FAYE RIVA COHEN, LEAD ATTORNEY,
SPHERION STAFFING LLC, also known as, SPHERION STAFFING
SERVICES, Defendant: JENNIFER PLATZKERE SNYDER, LEAD
ATTORNEY, DILWORTH PAXSON LLP, PHILADELPHIA, PA; BENJAMIN D.
BRIGGS, CHRISTINA F. MEDDIN, SEYFARTH SHAW LLP, ATLANTA, GA.
TECH DATA CORPORATION, Defendant: GARY L. LIEBER, LEAD
ATTORNEY, FORD & HARRISON LLP, WASHINGTON, DC; ASHWIN R.
TREHAN, DAWN SILER-NIXON, FORD HARRISON LLP, TAMPA, FL.
Austin McHugh, United States District Judge.
case tests the outer bounds of the Americans with
Disabilities Act in the context of workplace violence. I am
confronted with two competing but equally valid public policy
interests--the need for a safe workplace, as weighed against
the need to accommodate and treat mental illness. Ruling in
favor of the Defendant employer here could discourage
employees in crisis from seeking help. On the other hand,
ruling for the affected employee could subject employers to a
daunting standard, torn between a legal requirement to
accommodate mentally ill employees and the moral imperative
of providing a safe workplace. On the specific facts of this
case, as ably pleaded by Plaintiff's counsel, I am
persuaded that this case should proceed with discovery, and
so Defendant's Motion to Dismiss will be denied.
Factual Allegations in Plaintiff's Complaint
Taj Walton commenced employment with Defendant Spherion
Staffing LLC (" Spherion" ) in 2007. Compl. at
¶ 8. Spherion is a staffing agency that places employees
in various work assignments. Id. at ¶ ¶
9-10. In October of 2011, Spherion assigned Plaintiff to the
position of Warehouse Worker at Tech Data Corporation ("
Tech Data" ). Id. at ¶ 11. On or around
November 21, 2011, Plaintiff experienced suicidal ideations
for the first time while traveling to work at Tech Data.
Id. at ¶ 13. After approximately thirty (30)
minutes, his suicidal thoughts subsided. Id. The
following day, Plaintiff's suicidal thoughts returned,
and, in a troubling progression, he experienced homicidal
ideations for the first time. Id. at ¶ 14.
" Recognizing that he needed immediate medical
attention," Plaintiff wrote a note to his supervisor,
Lizelle Parks, a Spherion staffer on site at Tech Data.
Id. at ¶ 15. Plaintiff's plea for help
Lizelle, Please Help Call [telephone number provided] Mom
[telephone number provided] Dad The police I'm scared and
angry. I don't know why but I wanna kill someone/anyone.
Please have security accompany you if you want to talk to me.
Make sure, please. I'm unstable. I'm sorry Taj."
Id. at ¶ 15. Although Parks was not present at
the time of the incident, a Tech Data security guard read the
note and called the police. Id. at ¶ 16.
Plaintiff subsequently waited outside until the police
arrived and drove him to a nearby hospital. Id. He
was not restrained while waiting for the police to arrive,
and he did not act out or converse with the security guard
during that time period. Id.
was subsequently diagnosed with depression and advised that
he required further medical attention and treatment.
Id. at ¶ 17. Based on the limited record before
me, it appears that Defendants did not have notice of
Plaintiff's disability prior to his hospital visit and
diagnosis. In an effort to follow his
physician's advice, Plaintiff attempted to contact Parks
and inform her about his diagnosis and intention to seek
additional treatment, but he was unable to reach her.
Id. at ¶ 18. After numerous failed attempts to
connect with Parks, Plaintiff spoke to two employees, "
Chris" (last name unknown) and Carlos Hernandez, who
each answered the phone at Spherion's Philadelphia
office. Id. Plaintiff informed Chris and Hernandez
that he had been diagnosed with depression and inquired about
his medical insurance coverage provided by Spherion.
Id. at ¶ ¶ 18-19. Chris and Hernandez
directed Plaintiff to discuss his issues with Parks directly.
Id. at ¶ 19. However, after Plaintiff's
efforts to reach Parks continued to be futile, Chris and
Hernandez advised him to contact Spherion's headquarters.
Id. at ¶ 20. On November 23, 2011, Plaintiff
called headquarters and notified a human resources ("
HR" ) representative of his disability and need for
medical care. Id. The HR representative advised
Plaintiff to contact Parks and file for workers'
compensation benefits, which did not address his ongoing
medical issues. Id. at ¶ 21.
continued to attempt to contact Parks, who finally responded
to him on or about December 11, 2011 via text message.
Id. at ¶ 22. Parks informed Plaintiff that she
was on " intermittent medical leave" and would be
in touch upon her return. Id. Almost three weeks had
now passed since Plaintiff's episode. Plaintiff called
Parks once again the next day, at which time she answered the
phone and immediately terminated his employment from both
Spherion and Tech Data. Id. at ¶ 23. Parks
informed Plaintiff that his health insurance policy was
canceled and he was prohibited from working at any of
Spherion's locations. Id. at ¶ 24. These
actions allegedly prevented Plaintiff from receiving the
medical care and treatment he needed. Id.
claims that Defendants terminated his employment because of
his disability, and failed to make any efforts to accommodate
his depression, in violation of the Americans with
Disabilities Act (" ADA" ), 42 U.S.C. § 12101
et seq,, and the New Jersey Law Against
Discrimination (" NJLAD" ), N.J.S.A. 10:5-1, et
seq. . Id. at ¶ ¶ 25-33. Defendant
Spherion (" Defendant" ) has moved for judgment on
the pleadings pursuant to Fed.R.Civ.P. 12(c), on the ground
that the threat of violence took Plaintiff outside the
protection of the statutes.
Rule 12(c) Motion Standard
12(c) motion for judgment on the pleadings " is analyzed
under the same standards that apply to a Rule 12(b)(6)
motion." Revell v. Port Auth. Of N.Y. & N.J.,
598 F.3d 128, 134 (3d Cir. 2010). The standard is
well-established: I must view the pleadings in the light most
favorable to the non-moving party, including drawing all
inferences in favor of the pleader. Leamer v.
Fauver, 288 F.3d 532, 535 (3d Cir. 2002). " A Rule
12(c) motion should not be granted unless the moving party
has established that there is no material issue of fact to
resolve, and that it is entitled to judgment in its favor as
a matter of law." D.E. v. Cent. Dauphin Sch.
Dist., 765 F.3d 260, 271 (3d Cir. 2014) (internal
quotations and citations omitted).
superficial review of the record could lead one to jump to
the conclusion that Spherion was compelled to act as it did.
But such an analysis would be too facile. Although
Spherion's Motion paints a compelling picture of an
employer faced with no choice but to terminate a potentially
dangerous employee for misconduct, Plaintiff's account of
the same facts stands in stark contrast to that ominous
portrayal. Drawing all reasonable inferences in
Plaintiff's favor, a jury could reasonably conclude that
Walton did not engage in " wrongdoing" as that term
is commonly conceptualized, but rather acted appropriately
when facing a mental health episode that left him in an
argues that proclivities towards violence plainly disqualify
a disabled person from protection under the ADA and
NJLAD. Its brief emphasizes the practical
impact on employers confronted with threats of violence,
reasoning that it comes as no surprise that "
[p]roclivities towards violence and threats toward coworkers
are not protected under the ADA" given the horrific
incidents of workplace violence that make media headlines far
too frequently. Hamrick v. West Clermont Local
School District, No. 1:05-CV-00509, (S.D. Ohio June 9,
2006) ( citing Hamilton v. Southwestern Bell
Telephone Co., 136 F.3d 1047 (5th Cir. 1998)). From
Spherion's standpoint, therefore, the decision to
terminate Plaintiff based on his threats was " not only
lawful under the ADA and NJLAD (and overwhelming authority
interpreting those Acts), but when viewed through the eyes of
Plaintiff's potential victims, it was likely
required." Defendant's Motion for Judgment on the
Pleadings at 10. In fact, many employers have issued
zero tolerance policies regarding workplace violence as
recommended by the Occupational Safety and Health
Administration (" OSHA" ).
survey of federal case law supports Defendant's argument
that a disabled person can be lawfully terminated for
disability related misconduct--so long as the employer's
explanation is not a pretext for discrimination. See,
e.g., Sever v. Henderson, 220 Fed.Appx. 159,
161 (3d Cir. 2007) (" Though an employer is prohibited
from discharging an employee based on his disability, the
employer is not prohibited from discharging an employee for
misconduct, even if that misconduct is related to his
disability" ). Accord Fullman v.
Henderson, 146 F.Supp.2d 688, 699 (E.D. Pa. 2001)
aff'd, 29 Fed.Appx. 100 (3d Cir. 2002);
Calef v. Gillette Co., 322 F.3d 75, 87 (1st Cir.
2003); Jones v. Am. Postal Workers Union, 192 F.3d
417, 429 (4th Cir. 1999); Ward v. Procter & Gamble Paper
Products Co., 111 F.3d 558, 560 (8th Cir. 1997);
Collings v. Longview Fibre Co., 63 F.3d 828, 832
(9th Cir. 1995); Den Hartog v. Wasatch Acad., 909
F.Supp. 1393, 1402 (D. Utah 1995) aff'd, 129
F.3d 1076 (10th Cir. 1997) (" The EEOC has also taken
the position that the ADA does not protect disability-caused
misconduct." ); see also Salley v.
Circuit City Stores, Inc., 160 F.3d 977, 981 (3d Cir.
1998) (" No reasonable jury could conclude on the record
before us that Salley was fired for his addiction, as opposed
to the misconduct Circuit City investigated." ).
Motion asserts that I should focus my analysis on the term
" qualified individual" under the ADA and
NJLAD. A " qualified individual" is
defined as an individual who, with or without reasonable
accommodation, can perform the essential functions of the
employment position that s/he holds or desires. See
Gaul v. Lucent Techs., Inc., 134 F.3d 576, 580 (3d
Cir. 1998). Spherion places great emphasis on case law
establishing that " [a]n employee who is a direct threat
to the safety of himself or others is not a qualified
individual with a disability." Coleman v. Penn.
State Police, No. 11-1457, at *41 (W.D. Pa. July 17,
2013) (internal citations and quotations omitted); see
also Sullivan v. River Valley Sch. Dist., 197
F.3d 804, 813 (6th Cir. 1999); Palmer, 117 F.3d at
351-52 (affirming summary judgment in favor of the employer
and holding that " [t]he [ADA] protects only qualified
employees . . . and threatening other employees disqualifies
one." ). Defendant contends that the " face
value" of Plaintiff's threats alone are enough to
disqualify him from ADA protection, regardless of his
subjective intent. Rose, 110 Fed.Appx. at 137-38
(" [D]efendant cannot be faulted for taking this threat
at face value." ); Chapa v. Adams, 168 F.3d
1036, 1039 (7th Cir. 1999) (" [P]eople who threaten to
kill their supervisors are not 'qualified' . . . even
if their threats are hollow." ).
counters that viewing all facts in the light most favorable
to him, his actions did not constitute a threat of workplace
violence. Walton distinguishes the case law on which
Defendant relies, maintaining that he did not actually
threaten anyone, but apologized for his compromised mental
state and expressed a clear desire not to engage in
any threatening conduct. Plaintiff's note, literally
beginning, " Please Help," was rooted in fear
(" I'm scared" ) and intended to protect
(" Please have security accompany you" ), rather
than threaten, his colleagues. Walton avows that his "
depression caused him extreme internal turmoil, and he
attempted to promote the safest possible atmosphere under the
unavoidable circumstances." Plaintiff's Opposition
Brief at 8. Taking a literal, etymological approach,
precisely what is the actual " conduct" in which
Plaintiff engaged that Defendants perceived as "
mis" -conduct? As pleaded, the Complaint alleges that in
the moment of crisis, Plaintiff neither committed nor
threatened violent acts, but rather sought assistance. Viewed
from one perspective, Plaintiff's actions might well
exemplify a commendable response to a psychiatric emergency;
if all persons overcome with unfamiliar homicidal ideations
were able to act as sensitively as Walton, potentially there
might be less violence.
declining to dismiss Plaintiff's claim, I am mindful of
the fact that as a medical condition, mental illness is
frequently misunderstood. Predictable, and in some instances
understandable, fear of the mentally-ill can skew an
objective evaluation of risk. There is no indication
here that Walton had a history of any violent conduct
whatsoever, and as set forth above, his individual instinct
in the moment of crisis was to seek help, and to be
protective of others. More importantly, from the standpoint
of workplace violence, termination of an employee is hardly a
guarantee of safety. To the contrary, recent history is
replete with incidents in which a disgruntled, former
employee returned to the worksite, with tragic
results. According to the United States
Department of Justice, there are approximately 1,000
workplace homicides each year. The United States
Department of Labor Workplace Violence Program was designed
to reduce the incidents of such tragedies. It is
noteworthy, however, that in identifying the threat, the
Department focuses on " acts perpetrated by disgruntled
co-workers or former co-workers . . . " without
distinguishing between them in any meaningful
way. In 2012, the United States Merit
Systems Protection Board was charged with responsibility for
studying violence in federal workplaces, and in its
statistical analysis, it did not distinguish between
employees and ex-employees. From a policy
standpoint, in weighing the equally valid interests presented
by this case, a credible argument can be made that
failing to provide treatment to someone such as the
Plaintiff, who has to some degree identified his need for
treatment and sought help, would create a greater risk of
violence, including violence directed to the employer who
proffered by Plaintiff, if " a disabled employee who
asks for help should be automatically terminated, the purpose
for enacting the ADA and NJLAD laws is defeated."
Plaintiff's Opposition Brief at 10.
Is it plausible that Defendants unlawfully discharged Walton
as a result of his disability?
ultimate question before me is whether the most favorable
reading of the Complaint supports the conclusion that
Plaintiff was fired because of his disability (i.e.,
depression). If the only plausible interpretation of the
pleadings is that Plaintiff was terminated for
misconduct--and not for his disability--then Defendant's
Motion should be granted.
face, Defendant's portrayal of this case presents a
superficially convincing theory that Plaintiff was indeed
fired for misconduct, especially when taking into account the
fact that Defendants were not on notice about Plaintiff's
disability until after the incident in question.
Consequently, had Defendants terminated Plaintiff's
employment immediately on the day of his perceived crisis, it
would seem farfetched that Plaintiff was discharged because
of his disability.
facts presented are not that simple. Approximately three
weeks passed between the incident in question and
Plaintiff's termination, during which Plaintiff
repeatedly contacted his employer to give notice of his
disability and resultant need for medical treatment. He even
specifically inquired about his insurance coverage, and he
was persistent in his efforts to reach his supervisor. Under
the Complaint as pleaded, if a genuine threat existed, it had
passed, and Plaintiff was actively pursuing treatment that
had the potential to control the newly discovered symptoms of
his mental illness at the time of his termination. Thus, in
viewing all facts and inferences drawn therefrom in the light
most favorable to Plaintiff, there is a plausible reading of
the Complaint where Plaintiff was discharged as a result of
his disability and need for urgent, and presumably expensive,
medical attention, rather than as a result of any workplace
threat. The considerable lapse in time
between Plaintiff's " misconduct" and
Defendant's adverse action is critical to my analysis, as
it gives life to a viable factual dispute. I am not unmindful
of Defendant's contention that they have an obligation to
the entire workplace, but on the record before me, a blanket
conclusion that the decision to discharge Walton was
motivated by his misconduct must be tested by discovery.
on the foregoing, I deny Defendant's Motion for Judgment
on the Pleadings without prejudice to Defendant Spherion to
reassert its arguments on a more fully developed record at
summary judgment. An appropriate order follows.
13th day of January, 2015, upon consideration of
Defendant's Motion for Judgment on the Pleadings,
Plaintiff's Response thereto, and the parties'
respective Reply Briefs, Defendant's Motion for Judgment
on the Pleadings is DENIED based on the reasoning set forth
in the foregoing memorandum.
See Defendant's Motion for Judgment on
the Pleadings at 4 n.1 (" Because Plaintiff had not yet
been diagnosed with depression [at the time of the November
22, 2011 incident], it follows that Plaintiff had not put
anyone with Spherion on notice of his alleged disability
prior to expressing his desire to kill someone."
The NJLAD is analyzed pursuant to the same
analytical framework as the ADA. McNemar v. Disney
Store, 91 F.3d 610, 618 (3d Cir. 1996).
 See, e.g., United States
Department of Labor, Bureau of Labor Statistics, Census
of Fatal Occupation Injuries Summary, 2013 (Economic
News Release, September 11, 2014),
Overall, violence accounted for 1 out of every 6 fatal work
injuries in 2013. . . . including 397 homicides and 270
suicides. . . . Shootings were the most frequent manner of
death in both homicides (80 percent) and suicides (47
percent). Of the 302 fatal work injuries involving female
workers, 22 percent involved homicides, compared to 8 percent
for men." ); Greg Botelho, Workplace Violence: Know
the Numbers, Risk Factors and Possible Warning Signs,
CNN (September 28, 2014),
(" In 2013, 397 fatal workplace injuries in the United
States were classified as homicides, which works out to 9% of
all workplace deaths." ).
Defendant emphasizes a frequently cited
Seventh Circuit decision opining that an ADA ruling in favor
of a potentially dangerous employee " would place the
employer on a razor's edge--in jeopardy of violating the
[ADA] if it fired such an employee, yet in jeopardy of being
deemed negligent if it retained him and he hurt
someone." Palmer v. Circuit Court of Cook County
Ill., 117 F.3d 351, 351-52. Palmer 's
emphasis on employers' liability risk is surprising and
hard to comprehend, in that in the overwhelming
majority of jurisdictions, employers would be immune from
tort liability in an action brought by an employee, subject
only to the far more modest remedy of workers'
compensation benefits. E.g., Larson, Arthur and Lex
K. Larson, Larson's Workers Compensation Law,
Vol. 6 at § § 100 & 103.06 (LexisNexis 2014)
(explaining that workers' compensation is generally an
exclusive remedy for employees if the injury falls within the
coverage of the act, and " a majority of modern cases
bar a damage suit against the employer" when an employee
assaults a coworker) and at Digest § 103.06D.1 (listing
sample citations by jurisdiction).
U.S. Department of Labor Occupational
Safety and Health Administration, Workplace Violence OSHA
(" The best protection employers can offer is to
establish a zero-tolerance policy toward workplace violence
against or by their employees." ); U.S. Department of
Labor Occupational Safety and Health Administration,
Guidelines for Preventing Workplace Violence for Health
Care & Social Service Workers,
(recommending that violence prevention programs include a
" clear policy of zero tolerance for workplace violence,
verbal and nonverbal threats and related actions."
Although Sever deals with claims
brought pursuant to the Rehabilitation Act of 1973, claims
" of employment discrimination in violation of the
Rehabilitation Act are governed by the standards of the
Americans with Disabilities Act." 220 Fed.Appx. at
In 1995, the EEOC responded directly to a
specific district court case which held that
disability-caused misconduct is protected,
It appears that the court's analysis in this
case is flawed under the ADA. Specifically, the EEOC
has consistently maintained that an employer may hold all
employees (i.e., those with and without disabilities) to
the same conduct standards. . . . Although an employer may
be required to provide reasonable accommodation (when
requested in advance) so that an individual can meet
conduct standards, an employer would not be required to
rescind discipline for misconduct.
Den Hartog, 909 F.Supp. at 1402 (citing
Letter from Claire Gonzales, Director of Communications and
Legislative Affairs, EEOC, to Honorable John B. Breaux,
United States Senate (Jan. 4, 1995)); EEOC Enforcement
Guidance on the Americans with Disabilities Act and
Psychiatric Disabilities, 1997 WL 34622315 (March 25, 1997);
see also Wolski v. City of Erie, 773
F.Supp.2d 577, 591 (W.D. Pa. 2011) (" [I]n a recent
publication dealing more specifically with performance and
conduct related standards, the EEOC has reiterated that Title
I of the ADA 'generally do[es] not impinge on the right
of employers to define jobs and to evaluate their employees
according to consistently applied standards governing
performance and conduct.'" ) (discussing U.S. Equal
Employment Opportunity Commission, The Americans with
Disabilities Act: Applying Performance and Conduct Standards
to Employees with Disabilities ).
Although the primary arguments advanced by
Plaintiff and Defendant Spherion propose different legal
frameworks under the ADA to resolve the instant Motion, it is
unnecessary for me to apply one framework over the other, as
case law is consistent in its treatment of disability
caused misconduct regardless of " whether plaintiff is
viewed as having the burden of showing he posed no threat to
safety in order to establish he was otherwise qualified for
the job, see, e.g., id. at 87 n. 10;
EEOC v. Amego, Inc., 110 F.3d 135, 142-44 (1st Cir.
1997), or whether defendant is viewed as having the burden of
establishing a 'direct threat' as an affirmative
defense under 42 U.S.C. § § 12111(3), 12113(b) and
29 C.F.R. § § 1630.2(r), 1630.15(b)(2), see,
e.g., Hutton v. Elf Atochem North America,
Inc., 273 F.3d 884, 893 & n. 5 (9th Cir. 2001)."
Rose v. Laskey, 110 Fed.Appx. 136, 138 (1st Cir.
Defendant argues that Plaintiff's
conduct was not ideal, in that he could have abandoned his
route to work and gone directly to the hospital or a police
station in order to more effectively protect his coworkers
and avoid being seen as a workplace threat. However, given
Plaintiff's mental state, expecting him to take
preventative actions greater than he did would be demanding a
The degree to which a diagnosis of mental
illness is related to an increased risk of violent behavior
has been the subject of much debate in the psychiatric
community. Much of that research has been summarized in an
article, Ann Hubbard, The ADA, the Workplace, and the
Myth of the " Dangerously Mentally Ill,"
34 U.C. Davis, L.Rev. 849 (2001). One of the largest
and most frequently cited studies is the MacArthur Violence
Risk Assessment Study, conducted between 1992 and 1995, and
published to some acclaim in 1998. H.J. Steadman, E.P.
Mulvey, J. Monahan, Violence by People Discharged from
Acute Psychiatric Inpatient Facilities and By Others in the
Same Neighborhoods, Archives of General Psychiatry,
55:393-401 (1998). The MacArthur Study was generally
interpreted to support the proposition that individuals with
mental health issues, when properly treated, have no greater
propensity to commit violent acts as compared to non-mentally
ill individuals. The research has continued to be
updated, and there remains a debate as to the degree of risk
from someone suffering from a mental disorder. See
E. Fuller Torrey, Jonathan Stanley, and John Monahan, The
MacArthur Violence Risk Assessment Study Revisited: Two Views
Ten Years After Its Initial Publication, Psychiatric
Services, Vol. 59, 147 (February 2008). An objective
assessment of the available evidence supports a conclusion
that although there can be a statistically increased risk of
violent behavior associated with specific severe psychiatric
disorders, the individual circumstances and characteristics
of each patient, and in particular whether they also engage
in substance abuse, play significant roles in any individual
 E.g., Russell Contreras and
Seth Robbins, FBI Says Shooter at Texas VA Clinic Was
(" An Army veteran who fatally shot a psychologist at a
West Texas veterans' hospital before killing himself was
a former clerk at the clinic and had threatened the doctor in
2013 . . . " ); Meghan Keneally, Fired Oklahoma Food
Plant Employee Beheads Woman, Attacks Another, ABC NEWS
(September 26, 2014),
(discharged employee " 'became angry' after
being fired" and drove directly to another work
facility where he " beheaded one woman and stabbed
another" ); Nina Golgowski and Sasha Goldstein,
Three Dead After Uninformed UPS Employee Opens Fire at
Alabama Warehouse One Day After He's Fired, New York
Daily News (September 23, 2014),
(where a recently fired UPS worker killed two higher-ranked
UPS employees before taking his own life and noting that it
appeared " that the shooter knew exactly who he wanted
to target at the time" ); Desiree Stennett and Orlando
Sentinel, 2 Killed, Gunman Dead After North Florida
Shooting Spree, Orlando Sentinel (August 24, 2013),
(" Three people are dead and two others were critically
injured after a disgruntled former employee of a trucking
company went on a shooting spree Saturday in a rural North
Florida county . . . " ); Pei-Sze Cheng, Jonathan Dienst
and Shimon Prokupecz, Two Dead, Nine Hurt in Empire State
Building Shooting, NBC 4 N.Y. (November 14, 2012),
(" A disgruntled former employee shot and killed an
ex-coworker outside the Empire State Building before being
shot dead by cops" ).
United States Department of Labor,
DOL Workplace Violence Program,
A Report to the President and the
Congress of the United States by the U.S. Merits
Systems Protections Board, Employee Perceptions of
Federal Workplace Violence (September, 2012) at 18.
See also Washington State Department of Labor
& Industries, Division of Occupational Safety and Health,
Workplace Violence Awareness and Prevention for Employers
http://www.lni.wa.gov/IPUB/417-140-000.pdf (defining violence
by co-workers as " violence by an assailant who has some
employment related involvement with the workplace, for
example, a current or former employee, supervisor or
manager. . . . In committing a threat or assault, the
individual may be seeking revenge for what is
perceived as unfair treatment." ) (emphasis
Social science research and educational
resources from mental health focused non-profit organizations
provide support for this hypothesis. See, e.g.,
" Are People with Serious Mental Illness Who are Not
Being Treated Dangerous?" (updated March 2014),
Treatment Advocacy Center Backgrounder, Treatment
(reviewing a variety of psychological studies and concluding
that most acts of violence committed by individuals with
serious mental illness are carried out when they are not
receiving treatment, many of whom are also abusing alcohol
or drugs) (citing Witt, K., Van Dorn, R., and Fazel,
S., Risk factors for violence in psychosis: Systematic
review and meta-regression analysis of 110 studies. Plos
ONE (2013), 8:e55942, and Elbogen, EB, Van Dorn, RA, Swanson,
JW, et al., Treatment engagement and violence risk in
mental disorders, British Journal of Psychiatry (2006),
189:354-360, as well as many other studies with comparable
findings); " The Criminalization of People with Mental
Illness," NAMI Where We Stand, The Nation's
Voice on Mental Illness,
ContentID=76792 (" NAMI [The National Alliance on Mental
Illness] believes that, in the overwhelming majority of
cases, dangerous or violent acts committed by persons with
brain disorders are the result of neglect or inappropriate or
inadequate treatment of their illnesses." ); "
National Disgrace: Millions of Americans with Serious Brain
Disorders Go Untreated," Homelessness,
Incarceration, Episodes of Violence: Way of Life for Almost
Half of Americans With Untreated Severe Mental Illness,
Mental Illness Policy Org.,
(explaining that " [v]iolent episodes by individuals
with untreated schizophrenia and manic-depressive illness
have risen dramatically, now accounting for at least 1,000
homicides out of 20,000 total murders committed
annually in the United States" and listing "
serious brain disorder combined with a failure to take
medication" as one of three primary predictors of
violence; the other two primary predictors listed are: (1)
history of violence and (2) drug/alcohol abuse, both of which
apply to the general population regardless of mental health
For a similar analysis and conclusion,
see Wolski, 773 F.Supp.2d at 592:
For purposes of the " qualification
standards" defense, it appears that the critical
factor in determining whether future accommodation and/or
an individualized assessment is required is whether the
termination was premised upon past misconduct that violated
a workplace standard or, rather, upon perceived safety or
performance concerns going forward. Here, the City insists
that the " individualized assessment" regulations
pertaining to employees who pose a " direct
threat" are inapplicable because Wolski was terminated
solely on the basis of her past misconduct. However, this
assertion merely begs the question whether in fact a jury
would be required to find, as a matter of law, that
Wolski's termination was premised solely on her
own past misconduct or whether, on the contrary, a jury
would be justified in finding that her termination was at
least partly motivated by the City's generalized
concerns relative to her perceived psychiatric disability.
On this record at least, we cannot say that the record is
so one-sided that a reasonable fact-finder would be
precluded from finding that Wolski's perceived
disability was a motivating factor in the City's
decision to discharge her. Accordingly, the City's
motion for summary judgment as to the ADA claim will be