Pence v. Tenneco Automotive Operating Co. , 169 F. App'x 808 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-1582
RICHARD B. PENCE,
Plaintiff - Appellant,
versus
TENNECO AUTOMOTIVE OPERATING COMPANY,
INCORPORATED, a Delaware Corporation, t/a
Walker Manufacturing Company, t/a Tenneco
Automotive,
Defendant - Appellee.
Appeal from the United States District Court for the Western
District of Virginia, at Harrisonburg. Samuel G. Wilson, District
Judge. (CA-04-75-5)
Argued: February 2, 2006 Decided: March 7, 2006
Before WIDENER, LUTTIG, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Timothy Earl Cupp, CUPP & CUPP, P.C., Harrisonburg,
Virginia, for Appellant. Thomas J. Brunner, BAKER & DANIELS, South
Bend, Indiana, for Appellee. ON BRIEF: Alison G. Fox, BAKER &
DANIELS, L.L.P., South Bend, Indiana; Thomas E. Ullrich, WHARTON,
ALDHIZER & WEAVER, P.C., Harrisonburg, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Richard Pence appeals the district court’s grant of summary
judgment for Tenneco on Pence’s claims under the Americans With
Disabilities Act, 42 U.S.C. § 12101 et seq., and the Family and
Medical Leave Act, 29 U.S.C. § 2611 et seq. For the reasons that
follow, the judgment of the district court is affirmed.
I.
Richard Pence had worked for Tenneco for over 30 years before
his termination in 2003. J.A. 552. Despite having somewhat
“eccentric” views about federal taxation and Tenneco’s treatment of
him, see J.A. 436, 555, 561-67, 626, Pence was considered by his
bosses to be a “good performer,” J.A. 434-35, and prior to October
2003, it is undisputed that Tenneco had no reason to terminate
Pence, J.A. 512.
However, on Friday, October 17, 2003, Pence had a
conversation with Nurse Evelyn Burner. J.A. 163. Burner e-mailed
Human Resources Manager Rod Little the following Monday, October
20, 2003, claiming that during the course of this conversation
Pence had made threatening remarks. Specifically, her e-mail
stated that Pence said that “when he leaves here that he will be
taking a bunch of people with him” and that when she “asked him if
he meant here at [Tenneco] or at the court house downtown,” he
“responded by stating both places and that he has AK’s and more
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ammo than Rockingham County.” J.A. 163. In addition to e-mailing
Little on Monday, Burner had alerted the FBI to Pence’s statements
over the weekend. J.A. 119, 132.
After talking to Burner, Little immediately contacted a
superior, as well as the legal department. J.A. 101, 105, 115. In
addition, Tenneco contacted the local police, J.A. 137-40, as well
as its security consultant, J.A. 102, 105, 116. The next day,
October 21, 2003, Pence was removed from work, ordered not to
return until notified, put on paid disability leave, and
mandatorily referred to Tenneco’s Employee Assistance Program, J.A.
105-07. Tenneco’s EAP referred Pence to a psychologist who, on
November 3, 2003, concluded that, based only on Pence’s self-
reporting, he was “unable to provide an opinion one way or another”
on whether Pence had a mental condition. J.A. 224. On November
21, 2003, a conference call was held in which several EAP
employees, Tenneco’s legal counsel, and Little participated. J.A.
383. Little’s notes from the call state that an EAP employee told
him that “[e]veryone should be cautious of safety not only at the
immediate time but in the future,” that “Pence demonstrates a high
level of paranoia,” that Pence “does not have a condition that
would be responsive to counseling,” and that “[i]t is not a
treatable condition with continued counseling.” J.A. 519.
Tenneco thereafter had its security consultant conduct a
safety evaluation of Pence’s plant, made improvements to the plant
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on the basis of this evaluation, and then terminated Pence on
December 22, 2003, when the plant was largely empty due to a
holiday shut-down. J.A. 108-09. Pence was terminated on the
formal ground that his threatening statements violated workplace
rule 29, J.A. 72, which in substance “[p]rohibits threatening,
intimidating, coercing, or harassing co-workers,” J.A. 66, 72.
II.
We first address Pence’s argument that the district court
improperly granted summary judgment to Tenneco on his claim of
wrongful termination under the ADA. We conclude that summary
judgment was proper because, even assuming that Pence established
his prima facie case, Pence failed to demonstrate that Tenneco’s
asserted non-discriminatory justification for his termination was
pretextual and that a rational factfinder could conclude that his
termination was the result of disability discrimination. See Rowe
v. Marley Co., 233 F.3d 825, 829 (4th Cir. 2000).
Tenneco asserted that Pence was fired because it believed that
he had made threatening remarks in violation of a workplace rule.
Unrefuted evidence demonstrates that Tenneco believed that Pence
had threatened the lives of other employees: Burner sent an e-mail
to Little alleging that Pence had said “when he leaves here that he
will be taking a bunch of people with him” and that “he has AK’s
and more ammo than Rockingham County,” J.A. 163, and Little and
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Burner, rightly or wrongly, construed those statements as death
threats, calling the FBI, the local police, and Tenneco’s security
consultant within days of learning of the statements, J.A. 105,
119, 132, 137-40.1
Pence puts forth three reasons why Tenneco’s reliance upon its
belief that he had made threatening remarks in violation of a
workplace rule is merely a pretext for disability discrimination.
None of the reasons is sufficient to meet his burden under Rowe.
First, Pence repeatedly insists that he did not make any
threat and that Burner misconstrued what he said. This is entirely
immaterial. Just as “[t]he law is well settled that the ADA is not
violated when an employer discharges an individual based upon the
employee’s misconduct, even if the misconduct is related to a
disability,” Jones v. American Postal Workers Union, 192 F.3d 417,
429 (4th Cir. 1999), it also follows that the ADA is not violated
when an employer discharges an employee because of a mistaken
perception of misconduct, even if the misconduct would have been
related to a disability. As the district court correctly
recognized, J.A. 714-15, it makes no difference if the employee was
in fact guilty of misconduct; as long as the employer discharged
1
Although Pence was never asked about the threatening
statements, J.A. 453, this fact at most demonstrates that Tenneco
jumped to conclusions by inadequately investigating Burner’s
allegations. But even thus construed in the light most favorable
to Pence, this fact alone is insufficient to demonstrate that
Tenneco did not actually believe that Pence had threatened the
lives of other employees.
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the employee because it honestly believed that the employee had
engaged in misconduct, then the employer has not discriminated on
the basis of disability.
Second, Pence attempts to demonstrate pretext by proffering
evidence showing that similarly situated employees were not fired.
However, none of his evidence demonstrates that Tenneco ever failed
to fire an employee who it believed had threatened to kill other
employees. In other words, none of the employees whom Pence relies
upon are actually similarly situated. See King v. Rumsfeld, 328
F.3d 145, 151-52 (4th Cir. 2002) (rejecting an attempt to
demonstrate pretext based upon the defendant’s conduct toward an
employee who was not similarly situated to the plaintiff). Two of
the employees Pence cites are not alleged to have threatened to
kill anyone, see J.A. 630-32 (David Cathell); J.A. 643, 646 (Dwight
Hensley), and nothing in the record refutes Little’s testimony that
he had not found any evidence that supported an anonymous
allegation that a third employee, Vernon Parker, had threatened to
kill other employees, see J.A. 504-07, 547-49, 643-44.2
Third, Pence argues that summary judgment was improper by
relying upon Little’s notes from the conference call, which,
2
Moreover, Tenneco affirmatively tendered evidence that it had
terminated employees who it believed had made death threats, J.A.
109, and Pence’s argument that those employees were allowed to give
their side of the story, J.A. 73-75, once again proves at most only
that Tenneco reached a rash decision in his case, not that Tenneco
did not actually base his termination on its belief that he had
made a death threat.
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construed in the light most favorable to Pence, could raise the
inference that Tenneco believed that Pence suffered from an
untreatable mental condition of paranoia. See J.A. 519. However,
even given that inference, no reasonable factfinder could conclude
that Tenneco’s asserted reason for Pence’s termination was a
pretext. Cf. Rowe, 233 F.3d at 830 (recognizing that even when a
plaintiff demonstrates a prima facie case and pretext, summary
judgment for the defendant is required when no rational factfinder
could conclude that the challenged action was discriminatory).3
Based on the record, no rational factfinder could conclude that
this passing reference to a belief that Pence was paranoid was the
reason for his termination, as opposed to evidence that Tenneco
thought the death threat was caused by paranoia. And to repeat,
because of Jones, Tenneco’s belief that Pence had made a death
threat was a permissible nondiscriminatory reason for his
termination, even if Tenneco believed that a mental condition had
caused Pence to make the threat.
Because Pence cannot demonstrate that Tenneco’s non-
discriminatory reason for his termination was pretextual and that
his termination was the result of unlawful disability
3
Alternatively, Little’s notes could be viewed as direct
evidence of disability discrimination. But even so viewed, summary
judgment would still be appropriate for the same reason discussed
above.
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discrimination, summary judgment was properly granted on Pence’s
claim of wrongful termination under the ADA.4
III.
Next, we turn to Pence’s claim that he was forced to undergo
a mental examination in violation of the ADA. We conclude that the
district court did not err in granting summary judgment to Tenneco
on this claim because the psychological examination was permitted
under the ADA, as it was “job-related and consistent with business
necessity.” 42 U.S.C. § 12112(d)(4)(A).5
As a threshold matter, we note that whether a mental
examination was “job-related and consistent with business
necessity” is an objective inquiry. See Tice v. Centre Area
Transportation Authority, 247 F.3d 506, 518 (3d Cir. 2001). We
therefore do not resolve any dispute about what Tenneco’s
subjective motivations were for having Pence examined by the EAP.
Rather, we need only decide whether Tenneco’s decision to have
Pence examined, after it was alleged that he had made death threats
4
For the same reason, the district court’s grant of summary
judgment to Tenneco on Pence’s ADA retaliation claim is also
affirmed. See J.A. 716-17.
5
We therefore have no need to decide whether, as the parties
appear to have assumed, an individual who is not disabled under the
ADA can nevertheless bring a claim under section 12112(d). See
Armstrong v. Turner Indus., Inc., 141 F.3d 554, 558 (5th Cir. 1998)
(recognizing the difficulty of the statutory interpretation
question).
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against other employees, was “job-related and consistent with
business necessity.”
Analyzing the issue thus framed, we conclude that the ADA does
not prevent an employer from psychologically evaluating an employee
who has been alleged to have made death threats against other
employees. It is undoubtedly “job-related and consistent with
business necessity” to ascertain whether such an employee poses a
danger to the workplace, to investigate how best to deal with any
security risk that exists, and to determine whether the termination
of the problem employee could potentially trigger the threatened
actions or instigate a violent reprisal against the employee who
informed the employer that the threatening statements were made.
Pence argues that such an examination is not “consistent with
business necessity” because an examination is unnecessary until the
employer verifies that a threat was actually made. He therefore
argues that his examination was unnecessary because he did not
actually make any threats and if Tenneco had simply asked him for
his side of the story, it would have realized this as well. We
reject this argument because it implies that employers must either
alert a potentially dangerous employee that his colleagues have
reported him and take the risk that retaliation will occur or forgo
a psychological examination and take the risk that the security
threat will not be resolved in the safest way possible. The phrase
“business necessity” need not, and should not, be interpreted to
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require such a result. Instead, we believe that the ADA is
satisfied provided the employer has a good faith belief that an
employee has made death threats, which Tenneco did.6
IV.
Finally, we turn to Pence’s claims under the Family and
Medical Leave Act. We conclude that the district court correctly
granted summary judgment because Pence does not have a “serious
health condition,” which is a threshold requirement for entitlement
to FMLA leave for Pence. See 29 U.S.C. § 2612(a)(1)(D); see also
J.A. 718. As relevant to this case, the FMLA defines a “serious
health condition” as an “illness, injury, impairment, or physical
or mental condition that involves . . . continuing treatment by a
health care provider.” 29 U.S.C. § 2611(11)(B). There is no
6
Pence, relying only upon an EEOC guidance document, also
argues that in order for an examination to be “job-related and
consistent with business necessity,” the employer must have had a
reasonable belief that the employee was impaired by a medical
condition. This argument is flawed for two reasons. First, the
fact that the EEOC advises that an examination will “generally” be
permissible when there is “objective evidence” that “an employee’s
ability to perform essential job functions will be impaired by a
medical condition” does not require the negative inference that an
examination is necessarily prohibited when the employer is
uncertain whether the employee is impaired by a medical condition.
Second, and more fundamentally, such an interpretation would be
absurd in this context since, in the face of perceived death
threats, employers need to determine whether there is a substantial
security risk and how most safely to deal with such a risk if it
exists, questions that a psychological examination helps answer
regardless of whether the threatening employee actually suffers
from a mental condition or is “merely” dangerous and violent.
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evidence that Pence has a mental condition or impairment, J.A. 224,
and in any event, Pence has repeatedly insisted that he does not
suffer from any mental condition or impairment, thereby admitting
that he does not have a “serious health condition.” Pence tries to
evade this concession by relying upon 29 C.F.R. § 825.114(b), which
states that “treatment” includes “examinations to determine if a
serious health condition exists.” But Pence fails to recognize
that under section 2611(11)(B), “treatment,” however defined, must
be for a mental condition or impairment, and so his concession that
he does not have one is fatal.
CONCLUSION
For the reasons stated herein, the judgment of the district
court is affirmed.
AFFIRMED
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