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The 9th U.S. Circuit Court of Appeals held that a hearing-impaired employee allegedly terminated for threatening co-workers and conducting personal business during work hours lacked an Americans with Disabilities Act (ADA) claim because he could not show that the employer’s asserted reasons for the discharge were a pretext for disability bias.
Michael Curley, a pretreatment inspector with the City of North Las Vegas–whose primary duties entailed cleaning sewers and preventing sewer blockages–received numerous reprimands between 1996 and 2009 for verbal altercations with and threats of violence against co-workers and for damaging city property.
In December 2008, Curley filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC), alleging that the city denied his request for accommodation of a hearing impairment and retaliated against him for complaining of discrimination.
In January 2009, Curley made a second accommodation request to be relieved from all duties requiring him to be near the trucks he operated because they were “causing his hearing to deteriorate.” Because operation of the trucks was essential to his position, the city denied his request and instead recommended that he use hearing protection.
Shortly after his second accommodation request, Curley was involved in another incident with a co-worker. The co-worker asked Curley to remove his hearing protection so that the two of them could communicate about a work-related task. In response, Curley began swearing. The incident prompted the city to place Curley on administrative leave and to launch an investigation into his behavior.
As part of the investigation, the HR department interviewed city employees and uncovered that Curley had repeatedly threatened his co-workers and their families–including threatening to put a bomb under a car, insinuating that he had Mafia connections, and talking about giving a “blanket party” (throwing a blanket over a person’s head and beating him). One co-worker reported that Curley threatened to kick his teeth out if the co-worker did not join a union. On another occasion, Curley threatened to shoot his supervisor’s children in the kneecaps.
The interviews also revealed that Curley was operating an ADA-consulting business and regularly conducted personal business while at work, sometimes spending up to three hours on his cellphone.
The city then scheduled Curley for a fit-for-duty evaluation, in which the doctor would assess only whether Curley could return to work and whether he was a danger to himself or others. The physician determined that Curley was “fit for duty” and was not a danger to himself or others. Ultimately, however, after conducting a hearing to determine how to discipline Curley, and in light of his nonperformance of work duties and multiple threats to co-workers, the city decided to fire him.
After his termination, Curley filed suit. The district court granted the city’s motion for summary judgment, and Curley appealed.
On appeal, Curley acknowledged that the city presented legitimate, nondiscriminatory reasons for terminating him, but argued that these reasons were pretextual, especially in light of the fit-for-duty evaluation. The 9th Circuit disagreed. First, the city fired Curley because of the threats he had made in the past, not the danger of future violence. Second, the city put forward other reasons for terminating him: nonperformance of assigned duties, conducting personal business at work, and making disparaging remarks about his supervisors and the city, which Curley did not refute. Third, because the city did not uncover the full severity and scope of Curley’s misconduct until after he filed an EEOC claim and made an accommodation request, the two-month proximity between his protected activity and his termination did not refute the city’s legitimate explanations for the adverse employment action.
Curley v. City of N. Las Vegas, 9th Cir., No. 12-16228 (Dec. 2, 2014).
Professional Pointer: Employers should take care to document employee performance and misconduct, in case they are required to defend any adverse employment actions.
Berna Rhodes-Ford and Kathryn Branson are attorneys in the Las Vegas office of Ogletree Deakins, a labor and employment law firm representing management.
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