Timothy Mayo v. Pcc Structurals

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TIMOTHY JAMES MAYO, No. 13-35643
Plaintiff-Appellant,
D.C. No.
v. 3:12-cv-00145-
KI
PCC STRUCTURALS, INC., an Oregon
corporation,
Defendant-Appellee. OPINION
Appeal from the United States District Court
for the District of Oregon
Garr M. King, Senior District Judge, Presiding
Argued and Submitted
July 8, 2015—Portland, Oregon
Filed July 28, 2015
Before: N. Randy Smith and John B. Owens, Circuit
Judges, and William Q. Hayes,* District Judge.
Opinion by Judge Owens
*
The Honorable William Q. Hayes, District Judge for the U.S. District
Court for the Southern District of California, sitting by designation.
2 MAYO V. PCC STRUCTURALS
SUMMARY**
Employment Discrimination
Affirming the district court’s summary judgment on a
claim of employment discrimination in violation of Oregon
disability law, and agreeing with other circuits, the panel held
that because the plaintiff had threatened to kill certain
co-workers, he was not a “qualified individual” under the
Oregon statute.
COUNSEL
Mary Ellen Page Farr (argued), Portland, Oregon; David D.
Park, Elliott & Park, P.C., Portland, Oregon, for Plaintiff-
Appellant.
Brenda K. Baumgart (argued) and Karen L. O’Connor, Stoel
Rives LLP, Portland, Oregon, for Defendant-Appellee.
OPINION
OWENS, Circuit Judge:
Timothy Mayo appeals from the district court’s grant of
summary judgment in favor of his former employer, PCC
Structurals, Inc., on his claim of discrimination in violation of
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
MAYO V. PCC STRUCTURALS 3
Oregon disability law. The district court concluded that
because Mayo had threatened to kill certain co-workers, he
was not a “qualified individual” under the Oregon statute.
We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
I. BACKGROUND
Mayo’s career at PCC Structurals (a leader in superalloy,
aluminum and titanium casting) began in 1987. Although he
was diagnosed in 1999 with major depressive disorder,
medication and treatment enabled him to work without
significant incident for many years. However, things changed
in 2010. Mayo (who welded aircraft parts) and some co-
workers began to have issues with a supervisor who they
claimed was bullying them and making work life miserable.
In January 2011, a co-worker complained on a company
hotline, which led to a meeting among Mayo, the co-worker,
and PCC’s Human Resources Director for Oregon about the
supervisor’s behavior.
Shortly after the meeting, Mayo made threatening
comments to at least three co-workers. He told one that he
“fe[lt] like coming down [to PCC] with a shotgun an[d]
blowing off” the heads of the supervisor and another
manager. The co-worker need not worry, Mayo explained,
because she would not be working the shift when the killing
would occur. Mayo told another co-worker on several
occasions that he planned to “com[e] down [to PCC] on day
[shift] . . . to take out management.” He told a third co-
worker that he “want[ed] to bring a gun down [to PCC] and
start shooting people.” He explained that “all that [he] would
have to do to shoot [the supervisor] is show up [at PCC] at
1:30 in the afternoon” because “that’s when all the
supervisors would have their walk-through.”
4 MAYO V. PCC STRUCTURALS
Mayo’s co-workers eventually reported these threats to
management via written statements. PCC’s Senior Human
Resources Manager received these statements on February
15, 2011, and called Mayo that same day to discuss them.
When asked if he planned to carry out his threats, Mayo said
that “he couldn’t guarantee he wouldn’t do that.” The Senior
Manager immediately suspended Mayo’s employment and
barred him from company property. PCC also notified the
police.
That evening, a police officer visited Mayo at his home to
discuss the threats. Mayo admitted making the threats and
that he had two or three people in mind, including the
supervisor. He also admitted to owning several guns, though
he had not decided which gun to use. When asked if he
planned to go to PCC and start shooting people, Mayo
responded: “Not tonight.”
With Mayo’s consent, the officer took Mayo to the
hospital, where he was placed into custody because of the
danger he posed to himself and others. See Or. Rev. Stat.
§ 426.228(1). Mayo remained in custody for six days, and
then took leave under the Oregon Family Leave Act
(“OFLA”) and the Family and Medical Leave Act (“FMLA”)
for two months. Toward the end of this leave period, a
treating psychologist cleared Mayo to return to work, as he
was not a “violent person,” but recommended a new
supervisor assignment. A treating nurse practitioner sent a
similar letter. Mayo also indicated that he wanted to return to
PCC, though the parties disagree as to whether Mayo
promised that he would not repeat his threatening behavior.
On May 20, 2011, PCC terminated Mayo. The parties
dispute whether PCC decided to terminate Mayo before or
after he began his period of medical leave.
MAYO V. PCC STRUCTURALS 5
In August 2011, Mayo sued PCC in state court, alleging
that his termination violated section 659A.112 of the Oregon
Revised Statutes, Oregon’s counterpart to the Americans with
Disabilities Act (“ADA”).1 He argued that his “disturbing
statements and comments . . . were the symptoms of and
caused by his disability,” thus making his termination
discriminatory. PCC removed the case to federal court in
January 2012.
In July 2013, the district court granted PCC’s motion for
summary judgment. Following the decisions of numerous
other circuits, it reasoned that Mayo was no longer a
“qualified individual” once he made his “violent threats.”
And “[b]ecause Mayo [wa]s not a qualified individual,” he
was not “entitled to protection under the ADA and Oregon’s
disability discrimination statute.”
II. STANDARD OF REVIEW
“The district court’s grant of a motion for summary
judgment is reviewed de novo. The reviewing court applies
the same standard used by the district court under Federal
Rule of Civil Procedure 56(c). Therefore, this court must
determine, viewing the evidence in the light most favorable
to the nonmoving party, whether any genuine issues of
1
“The Oregon disability discrimination statute is modeled after the
ADA. Accordingly, we interpret [the statute] consistently with the ADA.”
Hutton v. Elf Atochem N. Am., Inc., 273 F.3d 884, 891 n.1 (9th Cir. 2001)
(citation omitted); see Or. Rev. Stat. § 659A.139(1) (“659A.103 to
659A.144 shall be construed to the extent possible in a manner that is
consistent with any similar provisions of the [ADA].”).
Mayo also alleged violations of the OFLA and the FMLA. He later
withdrew those claims, so they are not before us.
6 MAYO V. PCC STRUCTURALS
material fact exist and whether the district court correctly
applied the relevant substantive law.” Hutton, 273 F.3d at
891 (citations omitted).
III. ANALYSIS
We apply the familiar burden-shifting framework outlined
in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–04
(1973), to claims under Oregon disability law. See Snead v.
Metro. Prop. & Cas. Ins. Co., 237 F.3d 1080, 1092–93 (9th
Cir. 2001). “Under that framework, an employee challenging
an adverse employment action has the initial burden of
establishing a prima facie case of discrimination (or
retaliation). The burden then shifts to the employer to
provide a legitimate, nondiscriminatory (or nonretaliatory)
reason for the adverse employment action. If the employer
does so, then the burden shifts back to the employee to prove
that the reason given by the employer was pretextual.”
Curley v. City of North Las Vegas, 772 F.3d 629, 632 (9th
Cir. 2014).
Our analysis begins and ends with Mayo’s prima facie
case, as he fails to make one. “To prevail on an ADA claim
of unlawful discharge, the plaintiff must establish a prima
facie case by showing that: (1) he is a disabled person within
the meaning of the statute; (2) he is a qualified individual
with a disability; and (3) he suffered an adverse employment
action because of his disability.” Hutton, 273 F.3d at 891.
Under Oregon disability law, like the ADA, “an individual is
qualified for a position if the individual, with or without
reasonable accommodation, can perform the essential
functions of the position.” Or. Rev. Stat. § 659A.115; see
42 U.S.C. § 12111(8) (ADA analogue).
MAYO V. PCC STRUCTURALS 7
Even if Mayo were disabled (which we assume for this
appeal), he cannot show that he was qualified at the time of
his discharge. An essential function of almost every job is the
ability to appropriately handle stress and interact with others.
See Williams v. Motorola, Inc., 303 F.3d 1284, 1290 (11th
Cir. 2002). And while an employee can be qualified despite
adverse reactions to stress, he is not qualified when that stress
leads him to threaten to kill his co-workers in chilling detail
and on multiple occasions (here, at least five times). This
vastly disproportionate reaction demonstrated that Mayo
could not perform an “essential function” of his job, and was
not a “qualified individual.” This is true regardless of
whether Mayo’s threats stemmed from his major depressive
disorder. Cf. Newland v. Dalton, 81 F.3d 904, 906 (9th Cir.
1996) (“Attempting to fire a weapon at individuals is the kind
of egregious and criminal conduct which employees are
responsible for regardless of any disability.”).
A contrary rule would place employers in an impossible
position. See Weaving v. City of Hillsboro, 763 F.3d 1106,
1114 (9th Cir. 2014) (rejecting a holding that would force
employers to choose between ADA liability and “a hostile
workplace environment”). As the Seventh Circuit explained
in a similar case of employee threats caused by major
depression:
The Act does not require an employer to
retain a potentially violent employee. Such a
requirement would place the employer on a
razor’s edge—in jeopardy of violating the Act
if it fired such an employee, yet in jeopardy of
being deemed negligent if it retained him and
he hurt someone. The Act protects only
“qualified” employees, that is, employees
8 MAYO V. PCC STRUCTURALS
qualified to do the job for which they were
hired; and threatening other employees
disqualifies one.
Palmer v. Circuit Court, 117 F.3d 351, 352 (7th Cir. 1997).
Or as the First Circuit has explained: “Put simply, the ADA
does not require that an employee whose unacceptable
behavior threatens the safety of others be retained, even if the
behavior stems from a mental disability. Such an employee
is not qualified.” Calef v. Gillette Co., 322 F.3d 75, 87 (1st
Cir. 2003).
We agree with our sister circuits.2 An employee whose
stress leads to serious and credible threats to kill his co-
workers is not qualified to work for the employer, regardless
of why he makes those threats. We have not located any
2
See also Sullivan v. River Valley Sch. Dist., 197 F.3d 804, 809, 813
(6th Cir. 1999) (following Palmer and holding plaintiff not qualified
because he told school board members “You’ll be sorry for this” and “You
will regret this”); Williams, 303 F.3d at 1290; Valentine v. Standard &
Poor’s, 50 F. Supp. 2d 262, 287–89 (S.D.N.Y. 1999) (Sotomayor, J.),
aff’d, 205 F.3d 1327 (2d Cir. 2000) (unpublished table decision); Adams
v. Alderson, 723 F. Supp. 1531, 1532 (D.D.C. 1989), aff’d sub nom.
Adams v. GSA, No. 89-5265, 1990 WL 45737 (D.C. Cir. Apr. 10, 1990)
(per curiam); Mammone v. President & Fellows of Harvard Coll.,
847 N.E.2d 276, 286–92 (Mass. 2006); Collins v. Blue Cross Blue Shield
of Mich., 579 N.W.2d 435, 441 (Mich. Ct. App. 1998) (per curiam).
The EEOC has reached the same conclusion. See U.S. Equal Emp.
Opportunity Comm’n, EEOC Enforcement Guidance on the Americans
with Disabilities Act and Psychiatric Disabilities (Mar. 25, 1997), 1997
WL 34622315, at *16 (advising that an employee who “has a hostile
altercation with his supervisor and threatens the supervisor with physical
harm” is “no longer a qualified individual”); Ferrell v. West, EEOC
Petition No. 03960032, 1997 WL 177246, at *9 (Apr. 9, 1997) (following
Palmer).
MAYO V. PCC STRUCTURALS 9
cases, regulations, or guidance that disagree with this
common sense principle.
Despite this lack of authority, Mayo argues that more is
required before an employee who makes violent threats can
be found not qualified. In particular, he asserts that an
individualized assessment under the rubric of the “direct
threat” defense is needed. See Or. Admin. R. 839-006-
0244(1) (“[A]n employer may refuse to employ an individual
with a disability posing a direct threat to the health or safety
of others.”); see also 42 U.S.C. § 12113(b) (ADA analogue);
Echazabal v. Chevron USA, Inc., 336 F.3d 1023, 1027 (9th
Cir. 2003) (describing “direct threat” defense). But as we
explained in Curley, the “direct threat” defense focuses on a
prospective threat of violence; it allows an employer to
terminate an employee who “pose[s] a danger to other
employees” or has demonstrated a “potential of future
violence.” 772 F.3d at 633 (emphases added); see also
Bodenstab v. County of Cook, 569 F.3d 651, 658–59 (7th Cir.
2009). In this case, we do not conclude that Mayo’s
termination was permissible because his threats demonstrated
that he posed a “potential of future violence.” Instead, as
explained above, we conclude that his termination was
permissible because his stress led to death threats. Mayo was
unable to appropriately handle stress and interact with others
—an “essential function” of his job.3 Neither our precedent
3
This same reasoning answers the objection that our holding effectively
creates a new judicial exception unsupported by the text of the ADA or
Oregon disability law. We do not hold that employees who make violent
threats, like illegal drug users, are simply not entitled to the protection of
disability discrimination law as a matter of policy, regardless of whether
they can perform their jobs or not. See Or. Rev. Stat. § 659A.124;
42 U.S.C. § 12114(a). We hold that such employees have demonstrated
they are not “qualified individual[s].” Or. Rev. Stat. §§ 659A.112, .115;
10 MAYO V. PCC STRUCTURALS
nor ADA regulations require an individualized assessment of
future risk in this context.
We also reject Mayo’s arguments that he was still a
“qualified individual” under the terms of the rule that we join
our sister circuits in adopting. Though he argues that the
cases cited above are distinguishable because they involved
more extreme facts (which is highly debatable), Mayo’s
credible, detailed, and unwavering plan to kill his supervisors
more than adequately demonstrated that he lacked the ability
to appropriately handle stress and interact with others.4 Mayo
is also wrong to suggest that he just needed a “reasonable
accommodation,” namely different supervisors. See Or. Rev.
Stat. § 659A.115 (employee is qualified if he can perform
“essential functions” of position with “reasonable
accommodation”); 42 U.S.C. § 12111(8) (same). Even now,
he does not dispute that another disturbing incident might
have occurred if he had returned to PCC and faced similarly
stressful conditions. Giving Mayo a different supervisor,
therefore, would not have changed his inappropriate response
to stress—it would have just removed one potential stressor
42 U.S.C. §§ 12111(8), 12112.
4
We emphasize that we only address the extreme facts before us in this
case: an employee who makes serious and credible threats of violence
toward his co-workers. We do not suggest that off-handed expressions of
frustration or inappropriate jokes necessarily render an employee not
qualified. Nor do we imply that employees who are simply rude, gruff, or
unpleasant fall in the same category as Mayo. See U.S. Equal Emp.
Opportunity Comm’n, supra, at *15 (advising that an “anti-social”
employee with a “psychiatric disability” can be a “qualified individual,”
even if he is “abrupt and rude”).
MAYO V. PCC STRUCTURALS 11
and possibly added another name to the hit list.5 Mayo’s
objection that compliance with conduct standards prohibiting
violent threats is “not fundamental to the work of a welder”
is similarly unavailing. The logic of our holding is that
compliance with such fundamental standards is an “essential
function” of almost every job. Although it is possible to think
of isolated jobs that involve little interaction with others,
Mayo’s position as a welder—in which he had many co-
workers and was under the supervision of a number of
individuals—is not one of these rare exceptions.
This ruling is consistent with our cases holding that
“conduct resulting from a disability is considered to be part
of the disability, rather than a separate basis for termination.”
Humphrey v. Mem’l Hosps. Ass’n, 239 F.3d 1128, 1139–40
(9th Cir. 2001); see also Gambini v. Total Renal Care, Inc.,
486 F.3d 1087, 1094–95 (9th Cir. 2007); Dark v. Curry
County, 451 F.3d 1078, 1084 (9th Cir. 2006). Unlike in
Humphrey, Gambini, and Dark, we do not need to consider
whether PCC has offered a legitimate, nondiscriminatory
reason for terminating Mayo, as he has failed to establish a
prima facie case at step one of the McDonnell Douglas
framework. Our holding is also consistent with the facts and
arguments made in those cases.
In Humphrey, the employer hospital argued that a medical
transcriptionist was not a “qualified individual” because her
obsessive compulsive disorder prevented her from regularly
and predictably showing up for her job. 239 F.3d at 1135.
5
This is borne out by the fact that Mayo arguably did receive this
accommodation prior to making his violent threats. Although Mayo was
not transferred to a different plant as he now proposes, PCC did honor his
request for a transfer to a different shift in late 2010.
12 MAYO V. PCC STRUCTURALS
But as this court held, the employee was still a “qualified
individual” because the hospital could have allowed her to do
her job from home or take a leave of absence. See id. In
Dark, the employee, a maintenance and construction worker,
caused an accident when he ignored signs that he was likely
to have a seizure and fell unconscious while driving a pickup
truck. 451 F.3d at 1081. Nevertheless, his employer, a
county road department, never argued that his failure to be
more forthcoming rendered him unqualified—only that his
“uncontrolled epilepsy” rendered him incapable of operating
the heavy machinery that his job entailed. This court
disagreed, noting that the road department might have been
able to accommodate the employee through reassignment or
a period of leave. See id. at 1087–90. And in Gambini, the
employee, a contracts clerk, effectively had a temper tantrum
after she received a negative performance review from her
supervisors. 486 F.3d at 1091–92. Though this court held
that her “violent outburst” was protected as “part and parcel
of her disability” if it stemmed from her bipolar disorder, we
specifically noted in response to a petition for rehearing that
her employer, a dialysis provider, was free to argue that she
was not a “qualified individual.” See id. at 1094–95.
None of these cases featured an employer that
persuasively argued that the employee was not a “qualified
individual” because of his or her disability. PCC has done so
here. We thus conclude that the facts in this case compel a
different result, and we join several other courts in holding
that an employee whose stress leads to violent threats is not
a “qualified individual.”
MAYO V. PCC STRUCTURALS 13
IV. CONCLUSION
Depression and mental illness are serious problems that
affect millions of Americans, including many lawyers and
judges. We do not minimize the struggles of those who suffer
from these ailments or suggest that all such individuals are
incapable of working. But we disagree with Mayo that
employers must simply cross their fingers and hope that
violent threats ring hollow. All too often Americans suffer
the tragic consequences of disgruntled employees targeting
and killing their co-workers. While the ADA and Oregon
disability law protect important individual rights, they do not
require employers to play dice with the lives of their
workforce. We thus conclude that PCC’s actions in this case
were lawful.
AFFIRMED.