A Vietnam veteran with post-traumatic stress disorder posed a threat to others and was properly terminated by the U.S. Postal Service, but USPS failed to explain why he was denied pay, leave, and disability retirement, the U.S. Court of Appeals for the Tenth Circuit ruled Aug. 30, remanding the case on those issues (Jarvis v. Potter, 10th Cir., No. 06-4090, 8/30/07).

On two occasions, Lanny Bart Jarvis struck and kicked a co-worker when she startled him, and he later struck another co-worker who shoved him in passing. He was able to restrain himself from striking his manager when she startled him.
Jarvis told the supervisor he had PTSD and asked that co-workers be told to announce themselves before approaching him.

When Jarvis was terminated after an investigation, he sued under the Rehabilitation Act in the U.S. District Court for the District of Utah, which ruled for USPS. That court found that the risk of violence could not be eliminated by a reasonable accommodation because the accommodation Jarvis sought—that co-workers announce themselves—would not eliminate the possibility that he might be startled accidentally. His request was not reasonable, the district court said, because it attempted to shift to co-workers the burden of preventing him from engaging in violence.

Qualification at Issue
“The postal service does not dispute on appeal that Mr. Jarvis is an individual with a disability,” the Tenth Circuit said. “The issue before us is whether he is ‘otherwise qualified,’ ” it said.

The Americans with Disabilities Act, which provides guidance in Rehabilitation Act cases, defines “qualified individual with a disability” as one who “with or without a reasonable accommodation, can perform the essential functions of the employment position,” the court said. “In other words, one who cannot perform the essential functions of the job, even with a reasonable accommodation, is not an ‘otherwise qualified’ individual,” the court said.

An Equal Employment Opportunity Commission regulation defines “direct threat” as a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation,” the court said. The rule states that the factors at issue include the duration of the risk, the nature and severity of the potential harm, the likelihood that the potential harm will occur, and the imminence of the potential harm, it said.

“In our view, the record compels the conclusion that the postal service’s determination that Mr. Jarvis was a direct threat was an objectively reasonable decision,” the court found.

In addition to Jarvis’s three assaults on co-workers, evidence included a letter from Jarvis’s health-care provider stating that his PTSD was unlikely to dissipate and that he was a threat in the workplace. USPS also relied on Jarvis’s own statements that his PTSD was getting worse, that he could no longer stop at the first blow, and that, if he hit someone in the right place, the blow could be fatal, the court said.

“Based on this evidence, three of the four factors in the EEOC regulations—duration, imminence, and likelihood—were clearly met,” the court said. Jarvis’s “symptoms would last indefinitely, he could erupt at any moment if startled, and it was highly likely that someone would startle him, even if inadvertently.”

“The postal service was not required to ignore the risk of inadvertent startling,” the court said, affirming the district court’s dismissal of Jarvis’s discrimination claim.

However, with regard to Jarvis’s retaliation claims, the appeals court said USPS “has not explained why Mr. Jarvis was denied the opportunity to retire rather than be terminated or why he was denied pay and access to accrued vacation and sick leave while he was on administrative leave.” As a result, the court said, it was necessary to reverse the dismissal of those claims and send them back to the trial court for further proceedings.

Case #2 - Working With People - Off-Duty Conduct

In the electronic age, off-duty conduct is a growing concern for employers, with employees running controversial blogs and Web sites. While employers may be embarrassed by some off-duty behavior, attempts to curb it can be seen as an invasion of privacy.

Employee Terminated for Sex Web Site Featuring His Wife

“You can’t fire me for running that Web site,” Officer Daniel Savante insisted. “This is a free country and I can do what I like when I’m not on duty.”

“Oh no you can’t! Not when you damage our department’s reputation and make us a laughingstock in the whole community,” responded Chief Martin Dunning.

Was sex site a firing offense?

Facts: The employee, a police officer, began running a Web site in 2000 featuring sexually explicit photographs and videos of his wife. The Web site portrayed his wife in various sexual poses and activities.

In addition to running the Web site, the couple created CD-ROMs of their exploits and even held “barmeets” where fans of their Web site could meet them in person and have pictures taken with the couple. On the Web site, the employee’s face is rarely seen, although the site includes pictures of his face in photos taken at the barmeets.
Despite the notoriety of his Web site, the employee never informed the police department that he was running a sex business, although other members of the force knew about it, including another officer whom the employee had convinced to start his own online sex enterprise.

In 2001, news of the Web site reached department officials, who ordered the employee to cease all related activity. News of the Web site and the police department’s investigation also was reported by the press. The press coverage caused a strong reaction within the police force, and officers later testified that civilians taunted them with comments about the Web site. Officers also reported that as a result, morale was low.

The employee was ultimately dismissed, and a review board supported that decision. The employee sued, but the U.S. District Court for the District of Arizona sided with the employer.

Award: The employee failed to show that his First Amendment rights were violated, a divided U.S. Court of Appeals for the Ninth Circuit ruled Sept. 5 (Dible v. Chandler, 9th Cir., No. 05-16577, 9/5/07).

Discussion: In affirming the trial court, the Ninth Circuit relied on City of San Diego v. Roe, 543 U.S. 77 (2004)—which also involved a police officer and a sex business—in which the U.S. Supreme Court said that the speech may not be protected if it is detrimental to the employer even if the speech itself is unconnected to the employee’s work.

Describing the employee’s speech as “sleazy,” “vulgar,” and “indecent,” the Ninth Circuit said the police officer could not “help but undermine” respect for the police force by running a sex business and that nothing in the speech was an issue of public concern or value. The court added that the employee admitted his sole interest was not in conveying a message but instead in making money.

The Ninth Circuit (one of the most liberal and employee friendly) also dismissed the employee’s privacy and free association claims, suggesting that someone who displays and promotes his wife’s sex acts—while also sometimes participating—was on shaky ground when it came to making a privacy claim.

However, Judge William C. Canby Jr., in a concurrence agreeing only with the employee’s firing, said that although the employee’s behavior may be unpopular, it was not disruptive to the level necessary to justify violating his free speech rights.

“To apply [a] restriction to off-duty expression by a public employee, unrelated to his employment, is to reject the established principle that public employees may not be required to surrender their constitutional right of free speech as a condition of their employment,” Canby asserted.

Pointers: Employers should tread carefully when threatening action against employees for off-duty conduct—such as Web sites, blogs, romantic relationships, and criminal activity—even if there are not statutory protections for the workers, according to attorneys.

Employers generally have few statutory restrictions preventing them from taking action against employees for off-duty behavior. However, focusing on such behavior creates privacy concerns, lawyers assert.

The common law idea of employment at-will still dominates, and therefore employers can sanction employees for off-duty behavior, especially when the behavior damages the reputation of the employer.

Still, some employees have successfully challenged such actions by arguing invasion of privacy, wrongful discharge, or breach of contract.

Randall Barker is the VP of Human Resources for A Plus Benefits, Inc.

Read Randall’s previous HR update.