A recent Ohio appellate court decision highlights how an employer’s response to employee threats of violence made on social media sites can impact a court’s decision when the employee challenges their termination. In Ames v. Ohio Dept. of Rehabilitation and Correction, the plaintiff was employed by ODRC as a Senior Parole Officer. In 2009, after the plaintiff returned from a medical leave of absence due to depression and anxiety, her co-workers and supervisors began noticing what they described as a pattern of interpersonal conflicts, erratic behavior, and emotional outbursts at work. Later that year, while discussing her work situation on Facebook, she wrote a post that included the following “I’ll gimp into work tomorrow. I guess I could just shoot them all.” ODRC scheduled her for an IME to assess her mental health and her ability to perform her job duties. The psychologist who conducted the examination found no evidence of depression or anxiety and concluded that she is capable of employment consistent with her skills and capacities.

Beginning in 2010, plaintiff was involved in a series of incidents with a co-worker who was then in a relationship with plaintiff’s former partner. Ultimately, plaintiff’s former partner sought an order of protection against plaintiff, which prompted ODRC to schedule a second IME to determine if the plaintiff had a propensity for violence. Because that IME was inconclusive, ODRC scheduled a third IME, which resulted in a finding that there was insufficient evidence that the plaintiff was “dangerous.” Approximately three months later, however, the plaintiff posted an apparent threat against the co-worker on Yahoo! Messenger, which included the following: “Feeling the heat yet? It’s coming. I promise. You fucked with the wrong person…, your ass is mine!”

Plaintiff denied sending the message, but also resisted ODRC’s efforts to determine if her account had been hacked. She was then terminated for violating policies against “threatening, intimidating, or coercing another employee” and “interfering with, failing to cooperate in, or lying in an official investigation or inquiry.”

Plaintiff filed suit against ODRC in the Ohio Court of Claims alleging that she was discriminated against on the basis of a perceived disability. The plaintiff contended that ODRC perceived her as having a disability based on the fact that the agency had scheduled the plaintiff for three mental health IME before ultimately terminating her employment. The court rejected this argument because the IME’s were reasonably sought to determine whether she potentially was a danger in the workplace based on evidence that reasonably suggested the potential for violence. Furthermore, none of the IME’s resulted in any conclusion suggesting that the plaintiff had a disability. Even assuming that the plaintiff could demonstrate a perceived disability, the court found that ODRC properly terminated her for the last threatening social media posting, which occurred after the final IME.

Takeaway: Ohio and federal law holds that an employer does not perceive an employee as having a disability simply by seeking an independent medical examination. But here, the employer definitely opened itself up to such a lawsuit by initially seeking an IME after the plaintiff first suggested on Facebook that she “could just shoot them all.” But for the fact that the employer had not terminated another employee who made a similar comment, a termination decision easily could have been justified after that initial comment. Either way, the employer here properly took the plaintiff’s comments seriously. One question that the employer should always consider when faced with threats of violence: Which lawsuit would you rather defend – the perceived disability discrimination lawsuit or the lawsuit alleging that you had information regarding a potentially violent employee and did nothing?