I recently read an opinion in a case, Ames v. Ohio Department of Rehabilitation and Correction, 2014-Ohio-4774, that reaffirmed my belief that employers should control their workplaces. But even though the result was good, it took quite some time for the legal system to resolve the case.
This situation involves social media, which moves far faster than our legal system. Plaintiff’s first problematic Facebook post occurred in the fall of 2009, and the Ohio Court of Appeals didn’t rule until late October 2014.
The Facts: Plaintiff Diedree Ames was a Senior Parole Officer with the Ohio Department of Rehabilitation and Correction. She carried a gun as part of her job duties and supervised other parole officers. Ms. Ames had a history of interpersonal conflicts and erratic behavior. She had previously taken a leave of absence for mental health reasons.
In the fall of 2009, Ms. Ames posted during a chat session on Facebook: “I’ll gimp into work tomorrow. I guess I could just shoot them all…lol!” She continued in this vein, repeating these remarks again during the chat.
Her managers believed her statements violated the Department’s code of conduct, so she was placed on an administrative leave and ordered to undergo an independent medical evaluation (IME). She returned to work after the IME, though she did incur some discipline.
Later, plaintiff texted a coworker named Jill Brady on an employer-owned computer: “U and ur new gf r in a sh** [redaction mine] heap of trouble . . . u should know u will be tracked.”
Ms. Brady sought a protective order against plaintiff Ames, who was ordered to undergo another IME. Ms. Ames’s managers did not feel the second IME adequately addressed Ms. Ames’s propensity for violence, so they ordered a third IME. The third IME found no actual violence in plaintiff’s past, so no reason to believe Ms. Ames was dangerous.
While still on a medical leave, Ms. Ames wrote Ms. Brady again on a message board, “ . . . Feelin the heat yet? It’s coming. I promise. You f***ed [redaction mine] with the wrong person Brady, your ass is mine!”
After this third threatening post on social media, Ms. Ames was fired for violating the Department’s policy against threatening or intimidating another employee.
She then sued, alleging she had been discriminated against on the basis of a perceived disability. She claimed that because she was sent for three IMEs, the Department must have perceived her as having a mental disability.
Both parties filed motions for summary judgment. The trial court ruled in favor of the employer, but Ms. Ames appealed. On appeal, the Ohio Court of Appeals upheld the trial court, and the termination was determined to be lawful—on October 28, 2014, more than five years after Ms. Ames first sent the threatening Facebook post.
The Moral: It is still acceptable for employers to seek to maintain a peaceable workplace, free from violence by their employees. However, enforcing workplace rules against violence can be a difficult process.
In this case, the Court found that the three IMEs were not evidence that the Department perceived Ms. Ames as disabled. “The three IMEs were sought because ODRC believed that appellant had exhibited behavior that made her potentially dangerous or lethal in the workplace.”
The Court found that Ms. Ames was fired for specific conduct that took place after the third IME and could only be construed as a threat against her Ms. Brady. Moreover,
“Her termination came with a backdrop of a prior incident of posting an inappropriate message on social media, a history of ill will, charges and counter charges against Brady, and finally posting a vulgar, threatening statement toward a co-worker under her supervision.”
The question for other employers now is whether it will always take three IMEs and a lengthy history of inappropriate and threatening conduct before they can fire a wayward employee.
I would hope not.
Employers should continue to take all allegations of threats against their employees seriously. It only takes one employee attempting to make good on one threat to bring deadly violence into the workplace.
Like the Ohio Department of Rehabilitation and Corrections, all employers must insist that employees take responsibility for their words and actions, no matter how many lawsuits and appeals result. The safety of other employees may be at stake.
When have you had to deal with a workplace threat? What happened?