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Erratic employee veering toward violence? Request fitness-for-duty exam, fire if he refuses

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in Discrimination and Harassment,Human Resources

Sometimes, it becomes clear to a supervisor that an employee is acting strangely. The employee may be cranky, argumentative and unpleasant to co-workers and supervisors. He may register repeated complaints about discrimination or other ill treatment. And he may make threatening comments.

If that happens, play it smart. Require the employee to undergo a fitness-for-duty medical examination based on those perceived threats.

One of three things could happen. He could submit to the examination and be declared fit for duty. Or he may be deemed unfit, opening up the possibility that he will request medical leave or perhaps some form of accommodation.

But it is also possible that he won’t cooperate at all. That’s grounds for termination—as long as that is how you normally treat all employees who refuse to take a fitness exam.

Recent case: Alvin, who is black, worked as a transportation planner for Cumberland County. He filed an 80-page internal complaint alleging that he had been denied opportunities on account of his race and that he had been assigned menial tasks like fetching coffee while co-workers got choice planning assignments. He filed the same complaint with the EEOC.

Before the EEOC resolved the matter, Alvin sent another much shorter letter to his supervisor. The letter demanded immediate action on Alvin’s complaints lest a “tidal wave” wash over the employer. Alvin added that he would “deal” with the matter himself. The supervisor became concerned that Alvin was growing so frustrated that he might erupt in an incident of workplace violence.

The county then asked Alvin to undergo a fitness-for-duty examination; otherwise, he faced termination. He initially agreed but then abruptly canceled the scheduled exam. His supervisor warned him that he would be fired if he didn’t comply immediately. Alvin ignored the request and refused to return phone calls. That’s when the county fired him.

Alvin sued, alleging retaliation for his complaints. He argued that his second letter wasn’t threatening.

The court said that didn’t ­matter. As long as the county honestly believed his second letter was threatening, it was free to order the examination and fire him for refusing to cooperate. (Bess v. County of Cum­­ber­­land, No. 5:10-CV-453, ED NC, 2012)

Final note: Alvin didn’t fare any better with his underlying discrimination claims. He had alleged that he was cut out of important planning activities. However, the county said that wasn’t entirely true. Instead, it explained that Alvin’s work often had to be rewritten by co-workers and was generally not the best produced by the staff, even if he did receive satisfactory performance reviews.

The county also argued that even if Alvin’s allegations were true, that wasn’t enough to support a discrimination lawsuit. Alvin never lost pay or benefits during the period when he was allegedly pushed aside.

The court concluded that temporarily losing out on projects or being told to perform tasks deemed be­­neath an employee’s position isn’t usually an adverse employment action. That’s especially true when the employee wasn’t otherwise dis­advantaged by the assignments he didn’t get. Those are merely the un­­fortunate sorts of things all employees sometimes ­experience.

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