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Legal Report April 2010


WORKPLACE VIOLENCE. A federal district court has ruled that a company’s fear of workplace violence was a legitimate, nondiscriminatory reason for firing an employee who had been diagnosed with bipolar disorder.

Robert Calandriello was hired by Tennessee Processing Center (TPC) in Nashville, Tennessee, as a data center technician in 1997. TPC is responsible for processing business data for the U.S. government.

In 2007, one of Calandriello’s coworkers filed a report with a TPC manager, Donald Enfinger, alleging that Calandriello frequently viewed Internet sites selling assault weapons. The coworker also noted that Calandriello had an offensive poster in his cubicle. Though he claimed to be unafraid of Calandriello, the co-worker asked that Enfinger keep the report confidential.

Enfinger visited Calandriello’s cubicle to view the poster. Calandriello had taken a motivational poster of a TPC employee and replaced the employee’s face with that of Charles Manson. Calandriello had reduced the size of the poster from the original and altered it using TPC’s computers. Calandriello took the poster down at Enfinger’s request.

Enfinger, disturbed by Calandriello’s poster and his Internet use, reported the incident to TPC’s human resources manager. Upon review, human resources decided to issue Calandriello a warning over his behavior. The company’s security director also launched an investigation.

On September 27, Calandriello was given a warning about his behavior. Calandriello apologized and admitted that he used poor judgment in creating and displaying the poster. On October 1, Calandriello notified human resources that he suffered from bipolar disorder, which led to his inappropriate behavior. This was the first time Calandriello had mentioned his illness to anyone in the company. Calandriello’s requested accommodation for his disorder was that the disciplinary action be removed from his employment file.

Meanwhile, the security department’s investigation revealed that, while at work, Calandriello frequented Internet Web sites containing violent images, weapons, and serial killers. Security also found photos of a rifle and an assault weapon with a silencer and a bayonet. These photographs had been taken at Calandriello’s home.

The company’s director of security felt that Calandriello’s continued employment posed a high risk to workplace safety. After consultation with security, human resources, and corporate counsel, TPC management decided to terminate Calandriello’s employment.

After the termination, TPC increased the security presence at the facility. In addition to a guarded front gate, retina scan access control, and x-ray machines, the company added armed security guards. Enfinger and another manager involved in the firing were given personal protection at their homes for four weeks.

Calandriello filed a lawsuit claiming that TPC failed to accommodate his disability and retaliated against him by firing him after he requested an accommodation. TPC requested summary judgment in the case, arguing that it concerned workplace violence. Companies may take adverse employment action against an employee, even if that worker is protected by federal disability laws, if they fear potential violence.

Because TPC offered a legitimate, nondiscriminatory reason for terminating Calandriello, the plaintiff had to show that the stated reason was a pretext. Calandriello argued that other workers displayed “humorous” posters and that he was given permission to search the Internet during downtime. The U.S. District Court for the Middle District of Tennessee granted the summary judgment, ruling that Calandriello’s evidence did not pass muster.

The court found that Calandriello offered no evidence to prove that his poster was in any way similar to those that other workers posted. Moreover, the court said that Calandriello’s argument that he was given permission to search the Internet did not suggest that management knew what sites he was visiting or that the company approved of such activity. (Calandriello v. Tennessee Processing Center, U.S. District Court for the Middle District of Tennessee, No. 3:08-1099, 2009)

ELECTRONIC DISCOVERY. A Michigan court has dismissed a sexual harassment lawsuit as a sanction for a plaintiff’s misconduct. The court ruled that the plaintiff may not pursue his case because he deleted his personal e-mail after being told to preserve it as evidence.

Paul Gillett sued his employer, the Michigan Farm Bureau, for sexual harassment. The company sent a letter to Gillett’s attorney, reminding him that Gillett should preserve all of his personal e-mail as possible evidence in the case. Gillett’s attorney responded that his client would turn over all personal emails and the hard drive from his laptop.

However, a forensic analysis of Gillett’s laptop hard drive indicated that huge numbers of e-mails had been deleted shortly before being handed over to the defendant’s attorneys. Computer forensic experts determined that the files could not be recovered. Further, the experts found that Gillett’s contention that the files were erased accidentally because of a software glitch was false.

After hearing of Gillett’s interference with the evidence, a trial court dismissed the lawsuit. Though other sanctions were available, the court determined that the number of deleted files—hundreds of thousands of e-mails were erased over a period of three months—was suspicious and indicated that Gillett was not making a good faith effort to preserve evidence. Gillett appealed the decision.

The Michigan Court of Appeals upheld the lower court’s ruling. The appellate court found that the trial court did not abuse its discretion when it dismissed Gillett’s case. The appeals court noted that there was no way to tell what sort of information Gillett erased and what bearing it might have had on the case. The court went on to say that even if the e-mails had nothing to do with the case, Gillett had no authority to determine what was or was not relevant. (Gillett v. Michigan Farm Bureau, Michigan Court of Appeals, No. 286076, 2009)


CRIME. A bill (H.R. 1727) requiring that local law enforcement collect information on convicted arsonists and bombers similar to that currently collected on sex offenders has been approved by the House of Representatives. It has been referred to the Senate Judiciary Committee.

Under the bill, a convicted arsonist or bomber would have to register in each jurisdiction in which he or she lives, is employed, or is a student. The registry would be available on the Internet. Grants would be established to localities to mitigate the costs of setting up the registry.

BIOTERRORISM. A bill (S. 1649) that would seek to prevent terrorist attacks in part by strengthening security at laboratories that handle dangerous pathogens has been approved by the Senate Homeland Security and Governmental Affairs Committee. The measure must now be considered by the full Senate.

The bill would require that the Department of Homeland Security (DHS) designate which pathogens have the potential to be used most successfully in a biological attack. DHS would then be required to establish new security standards for laboratories that handle these types of pathogens. The security standards would include risk assessments, employee screening, and training.

CHEMICAL FACILITIES. A bill (H.R. 2868) intended to increase security at chemical facilities has been approved by the House of Representatives. It has been referred to the Senate Homeland Security and Governmental Affairs Committee.

According to statements made by lawmakers who introduced the bill, H.R. 2868 would make the Chemical Facility Anti-Terrorism Standards Act of 2006 (known as CFATS) permanent. (The law will expire in October.) H.R. 2868 would extend existing law, and maintain current Department of Homeland Security (DHS) regulations on the subject, by establishing standards and procedures for security vulnerability assessments and site security plans.

H.R. 2868 differs from existing law in urging facility owners to adopt inherently safer technologies. The measure would not allow DHS to mandate the use of such technologies, however. Instead, before DHS could require such changes, it would first have to notify Congress of the ramifications of making the switch. Such changes would be prohibited in cases where using inherently safer technologies (IST) would require the facility to cut production or fire employees. Sens. Susan M. Collins (R-Me.), Mary L. Landrieu (D-La.), Mark L. Pryor (D-Ark.), and George V. Voinovich (R-Ohio) have introduced a competing bill, S. 2996, which would extend CFATS without the controversial IST provisions.

DATA SECURITY. A bill (H.R. 2221) that would set out requirements for data security has been approved by the House of Representatives. It has been referred to the Senate Commerce, Science, and Transportation Committee.

The bill would require that the Federal Trade Commission (FTC) issue regulations on data security policies and procedures for companies that conduct interstate commerce using personal information of individuals.

Companies would be required to notify the FTC and affected individuals when information security breaches occurred. Additional requirements would be established for breaches by contractors who maintained or processed electronic data containing personal information, breaches involving telecommunications and computer services, and breaches of health information.

The bill would make it illegal for information brokers to conduct any type of pretexting—obtaining or disclosing personal information by false pretenses. If enacted, the law would preempt all state information security laws. (Currently, federal law makes pretexting illegal when it is used to obtain financial records. State laws on the matter vary.)

Under the bill, information brokers would be required to submit their security policies to the FTC after a security breach or upon request by the FTC. The measure also requires that the FTC conduct an audit of security practices after an information broker experiences a data breach.

The measure would require that information brokers establish procedures for verifying the accuracy of information that identifies individuals and provide individuals with a means of reviewing their information and having mistakes corrected.



COPPER THEFT. A new Georgia law (formerly S.B. 82) regulates the secondary sale of metals such as copper and provides penalties for the theft of such metals. Under the new law, anyone purchasing the materials must obtain a photocopy of the seller’s driver’s license. If the metal being purchased is a motor vehicle, the seller must provide the title or a certificate from the state designating that the car can be sold as scrap. Under the new law, selling stolen metal valued at more than $500 is punishable by a fine of up to $5,000 and up to five years in prison.


FIREARMS. A new bill (S.B. 25) pending in the Indiana General Assembly would make it illegal for a company to prohibit employees from keeping firearms locked in their cars on company property. The bill would also apply to contract employees. Exemptions are provided for schools, penal institutions, and domestic violence shelters.

Companies that violate the law could face liability in a civil court. However, the bill stipulates that, if employers comply with the law, they cannot be held liable for injuries or damage resulting from the policy.