Who's on First: Allegations of Harassment, Discrimination and/or Wrongful Termination
Allegations of Workplace Harassment, Discrimination or Wrongful Termination are serious and have serious consequences. He said/She said usually produces a mixed understanding of what occurred. Evidence and expert testimony assist the jury in understanding the mental health of the "players" and emotional tenor driving the litigation.
Since I was a kid, the Abbott and Costello routine of “Who’s on First” has always cracked me up. The humor of the confusion, chaos, frustration and the angry impotence of miscommunication is something most people understand and relate to. Chaos, confusion, accusation and confrontations at the workplace are not funny, though.
At the workplace, an employee may develop a belief a co-worker, supervisor, or all of management, is “out to get me” because the employee sees events or understands meanings of communication differently than do co-workers or supervisors. But sometimes persecutory beliefs are justified and conspiracies do exist, and sometimes co-workers or supervisors are out to get someone. Those are liability issues to be decided by a “trier of fact,” be it a judge, jury or employer. In a Fitness for Duty exam, the examiner should weigh the available evidence about dysfunction at work in order to assess the reasonableness of the employee’s perceptions.
For example, if after an employee accuses co-workers of fraud, the employer investigates it and finds no fraud, I would expect the employee to drop the allegation. If, instead, the employee then escalates his allegations and disrupts the workplace, a reasonable suspicion of mental disease exists which justifies a psychiatric Fitness for Duty exam.
In the course of evaluating an employee for an employer, or a plaintiff in a wrongful termination case for harassment or discrimination, it is essential for me to determine whether or not the person suffers from a paranoid disorder. (To be paranoid means to have a pattern of pervasive distrust and suspiciousness of others such that their motives are interpreted as malevolent. Paranoid beliefs can’t be changed or called into question by countervailing information). This means I, as the evaluator, must examine the “facts” of liability from both sides in order to determine the presence of paranoid thinking on the part of the plaintiff.
Of course, even paranoid people have enemies. Just as true is that a paranoid person provokes the people he/she is paranoid about to act in a way which “proves” to the paranoid person he/she is being discriminated against or harassed, or other wrongdoing exists.
I recall one case where a woman filed more than 25 EEO cases, which were dismissed, in a five year period, alleging types of workplace discrimination or harassment. All the while, the employee was acting in a confrontatory manner at work, causing her employer great inefficiency due to his need to document every interaction with her, anticipating the need to defend the next lawsuit. Along the way she alienated everyone she worked for.
Insofar as filing an EEO complaint is a protected activity, her employer couldn’t use the multiple baseless complaints as a reason to admonish her, but the employer questioned whether or not she was a safety risk at work or fit for duty because her fixed belief of discrimination and/or harassment interfered with her ability to carry out the essential functions of her job.
Since I know a person who has made many allegations of discrimination or harassment at the workplace may be a litigious paranoid, persecutory type, before I agreed to examine her I also had to protect myself from an unfounded lawsuit by her. My standard retention agreement includes a clause to hold me harmless, defend, indemnify and pay me for time needed to defend myself. I also required a signed consent form from the employee to conduct the exam and submit my report to the employer. Once these were in hand, I reviewed all personnel records, witness statements, prior complaints and outcomes, and medical and psychiatric records. I conducted a thorough psychiatric examination of the employee and sent my report to the requesting party. Ultimately I determined she was not at risk for violence but suffered from a Paranoid Personality Disorder, was disabled from it, and could not be accommodated. She filed suit with the EEO and FEHA, named me in the suit, went to arbitration, and her employer was ordered to reinstate her with back wages. The arbitrator found I had done my evaluation properly and had no liability, but ruled that the employer only asked me to evaluate her for dangerousness, not fitness for duty, and that she would have to be returned to work before a fitness for duty exam could be ordered, even though my consent form was for fitness for duty and dangerousness. The employer and employee then entered into a financial settlement so that she would not return to work and drop the three subsequent lawsuits she filed during the EEO-FEHA case.
After a discrimination, harassment and/or wrongful termination action is initiated, or when an employer questions an employee’s complaint(s) of harassment or discrimination, I as the evaluator must investigate any emotional damages to the plaintiff (in the litigated matter) and whether a psychiatric disorder exists which significantly influences the plaintiff’s/employee’s perceptions or beliefs. As a psychiatric expert, I am not expected or allowed to opine about whether or not the plaintiff is telling the truth (but I can diagnose malingering since this is a psychiatric diagnosis: DSM IV-TR V65.2), but I may diagnose and discuss the presence of psychopathology, which alters the plaintiff’s perception of reality. In the litigated situation, the trier of fact then decides if the perceptions plus other facts prevent the plaintiff from proving liability. Conversely, if the plaintiff is not suffering from such a disorder, this benefits the plaintiff, employee or the inquiring employer.
By Stephen M. Raffle, M.D. & AssociatesABOUT THE AUTHOR: Stephen M. Raffle, M.D.
Expert Website: https://psychiatristexpertwitness.com
Call (415) 461-4845
Expert Website: https://psychiatristexpertwitness.com
Call (415) 461-4845
Dr. Raffle has been conducting Fitness for Duty, Threat Assessments and Independent Medical Examinations in Employment matters many hundreds of times. He conducts such examinations for employers, insurers and, of course, attorneys. From time to time, workplace allegations lead to some sort of Fitness for Duty examination and, if the employer terminates the employee, litigation may follow. When they are linked, it is useful to retain an Expert Witness who is familiar with all of these examinations as well as jurisdictions such as the EEOC and administrative hearings, as well as judicial jurisdcitions. Dr. Raffle has all of this experience accumulated over 40 years as a practicing Forensic Psychiatrist, and Board-Certified by the American Board of Psychiatry and Neurology.
Copyright Stephen M. Raffle, M.D. & Associates
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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer.For specific technical or legal advice on the information provided and related topics, please contact the author.