DECISIONPOINT THE SITUATION (continued from page 1)
Following an investigation, the Army dismissed the plaintiff based upon its ―zero tolerance‖ work place violence policy that it had in place at the time of the incident. The Plaintiff filed suit claiming that his dismissal should be overturned because he had reacted in anger after the co-worker had called his house and ―tried to cause trouble in his marriage‖, the confrontation was brief, the co-worker did
not react as if she had been physically threatened, he had apologized following the incident, he had otherwise had a satisfactory work history with no prior incidents and that the agency‘s table of penalties called for suspension under these circumstances, not termination.
THE DECISION
The Plaintiff sought review of his termination before the United States Court of Appeals for the Federal Circuit. The Plaintiff asserted that the agency had overlooked factual and evidentiary issues and that his termination should have been overturned. The agency responded that Plaintiff‘s termination was supported by the facts in the record and that termination was consistent with their ―zero tolerance‖ policy for workplace violence.
In upholding the decision to dismiss the Plaintiff, the Court reiterated that the agency retains the discretion and flexibility to apply the penalty it believes appropriate, even if that penalty exceeds the penalty table in place at the time of the incident, and that the Court will give the agency deference in this regard:
[T]he court will not disturb a penalty unless it exceeds the range of permissible punishment or is ―so harsh and unconscionably disproportionate to the offence that it amounts to an abuse of discretion.‖ Penalty decisions are judgment calls best left to the discretion of the employing agency. The presumption is that government officials have acted in good faith.
In reviewing the facts of the case, the Court noted that Plaintiff‘s position as a security guard made the behavior all the more troubling, that the confrontation was unprovoked and that the Plaintiff was the aggressor. Under the circumstances, the Court found that the agency‘s action in exceeding the table of recommended penalties was not improper, and upheld the Plaintiff‘s dismissal.
LEARNING AND KEY CONSIDERATIONS
It is very common for employers to have ―zero tolerance‖ policies for workplace violence. These policies recognize that workplace violence falls into a different category from other workplace policies, and that violation of these policies will not be tolerated under any circumstances. The court in this case reaffirmed the basic legal principle that a government agency will be given wide latitude in applying a ―zero tolerance‖ workplace violence policy in order to achieve the goal of a safe workplace for all. However, employers, in both the public and private sectors, are to be cautioned that it is important to apply their ―zero tolerance‖ policies consistently and objectively to protect against claims that the ―zero tolerance‖ policy is being used selectively in the workplace to punish certain employees and not others.
Cliff W. Cosen v. Department of the Army, U.S. Court of Appeals for the Fed. Circuit, 2007.
James L. Curtis
jcurtis@seyfarth.com 312.460.5815
Meagan Newman
mnewman@seyfarth.com 312.460.5968
Happy New Year from The Staff of The Workplace Violence Prevention eReport!
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