Home / Opinion Digests / Labor & Employment / Labor & Employment – ADA – Termination – Legitimate Reason – Loaded Firearm, Unlocked Vehicle – Disparate Discipline – Hostile Environment – Opioid Addiction

Labor & Employment – ADA – Termination – Legitimate Reason – Loaded Firearm, Unlocked Vehicle – Disparate Discipline – Hostile Environment – Opioid Addiction

Even though plaintiff’s co-worker was merely given a warning when he violated the defendant-employer’s policy against leaving loaded weapons in plain view in a personal vehicle, since the co-worker’s vehicle was locked while plaintiff’s vehicle was left unlocked, plaintiff has not shown that he was subjected to disparate discipline when he was fired for his violation of the policy.

Defendant’s motion for summary judgment as to plaintiff’s claims under the Americans with Disabilities Act is granted in part and denied in part.

Disparate Discipline

After treatment for his opioid addiction, plaintiff returned to work on Aug. 23, 2013. On that day, he met with some of his superiors to discuss his doctor’s assessment and recommendations. Minutes later, he met with other superiors and his union representative. Supervisor Kissam assured plaintiff that this meeting had nothing to do with the previous meeting.

At the second meeting, plaintiff was disciplined because his truck had “become so trashed and cluttered that it became unsafe to drive.” Plaintiff was informed that he would no longer have access to a company vehicle and would be transferred to the warehouse as a result of this corrective action.

A reasonable jury could find that defendant took an adverse employment action when it banned plaintiff from using a company vehicle and reassigned him to the warehouse because these sanctions were restrictions that could affect his future opportunities for promotions or professional development. Although defendant argues that the relevant decision-makers were not aware of plaintiff’s opioid addiction, Kissam’s statement that the disciplinary meeting had nothing to do with the return-to-work meeting creates a genuine dispute of material fact about whether those imposing the discipline, including Kissam, had knowledge of plaintiff’s disability. Therefore, plaintiff has pled facts sufficient to create a genuine dispute of material fact about whether defendant regarded him as disabled.

Plaintiff has also alleged facts sufficient to show that the conduct he engaged in was comparable to the conduct of employees outside the protected class – in this case, plaintiff himself prior to his treatment for opioid addiction – and that he was disciplined more severely following his employer’s discovery of his disability. Plaintiff alleged that the condition of his truck had always been relatively cluttered and messy but he was disciplined for this conduct only – and immediately – upon his return to work after treatment. Plaintiff’s allegation is bolstered by the statement of supervisor Hudson that typically, if a problem with a vehicle was identified, the employee would first be consulted and advised to resolve the problem.

As a legitimate, nondiscriminatory explanation for the disciplinary action, defendant asserts that management’s discovery that plaintiff’s truck was in poor condition just happened to coincide with plaintiff’s return to work. A reasonable jury could conclude that this explanation is not legitimate in light of the timing of the discovery and the severity of the sanction imposed.

Kissam stated in his deposition that he believed it might take “anywhere from a year to two years” for him to restore plaintiff to his truck privileges due to plaintiffs violation of Life Rule X (a concern that an object could become lodged under the brake pedal, endangering plaintiff and others).  The severity of the discipline imposed indicates that defendant took Life Rule X very seriously.

However, plaintiff’s statement that his truck has always been in relatively poor condition and Hudson’s statement that an employee would typically be consulted and advised to remedy such an issue in the first instance suggests that defendant may have decided to take Life Rule X more seriously when plaintiff returned from treatment for an opioid addiction and that the adverse employment action was a pretext for disparate discipline. For this reason, defendant’s motion for summary judgment is denied with respect to plaintiff’s disparate discipline claim.


On Dec. 9, 2014, plaintiff parked his personal vehicle on company property and left it unlocked with a loaded AR-15 rifle in plain view on the passenger seat. Upon questioning by his supervisors, plaintiff said he also had a loaded handgun in the vehicle. Plaintiff was sent home and later fired because of this incident.

Another employee, Everett Smith, received only a verbal warning when he violated the same company policy, which allows employees to store firearms in their personal vehicles on company property and requires the firearms be “concealed in the vehicle” and that vehicles containing firearms remain locked if unattended. Although Smith left a firearm in his vehicle on company property, his vehicle was locked. Consequently, Smith’s violation did not create the same safety risk as plaintiff’s.

Even if the distinction between a locked and unlocked vehicle did not establish that plaintiff’s violation was more serious than Smith’s, plaintiff’s phone call to his direct supervisor that evening compounded the seriousness of the initial offense. Plaintiff asked his supervisor to identify the individual who had reported his firearm violation and indicated that he would “blame Robin for it anyway.” Considering all the facts and circumstances of plaintiff’s violation, including the phone call that evening in which he made a thinly veiled threat about a co-worker, the conduct plaintiff engaged in was not comparable in seriousness to Smith’s policy violation. Plaintiff has therefore failed to make a prima facie case of disparate discipline based on his termination.

Hostile Environment

Plaintiff has asked the court to consider the following allegations in support of his hostile work environment claim: (1) he was denied permission to drive a company vehicle, (2) he was transferred to the warehouse, (3) he was not allowed to move desks, (4) he was forced to work under people junior to him, (5) he was disciplined for personal computer use, (6) he received a negative mid-year evaluation, (7) statements by management that he “got himself into this mess” and “created the issue,” (8) that he was reprimanded for failing to use his paid time off responsibly, (9) pictures of plaintiff’s truck were shown at a safety meeting in a demeaning manner, (10) defendant allowed rumors of plaintiff’s drug use and violence to “swirl” around plaintiff, and (11) plaintiff was belittled by management when he was told that they “needed to keep an eye on him.”

Most of these allegations amount to trivial workplace adversities or statements of annoyance or frustration from management. Nonetheless, a reasonable juror considering plaintiff’s allegations collectively could find that he was subjected to unwelcome conduct, often in the form of disciplinary actions or reprimands from managers, that was based on his disability and that this conduct both altered the conditions of his employment and interfered with his work performance because it permeated his workplace environment. For these reasons, defendant’s motion for summary judgment is denied as to plaintiff’s hostile work environment claim.

Motion granted in part and denied in part.

Farr v. South Carolina Electric & Gas Co. (Lawyers Weekly No. 002-073-18, 19 pp.) (Richard Mark Gergel, J.) 3:16-cv-02668; Bryn Colette Sarvis for plaintiff; Charles Speth II, Christopher Ray Thomas and D. Michael Henthorne for defendant. D.S.C.


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