Walmart Shooter Felt Unfairly Treated

His supervisors said John Gillane was well liked and had no work issues.

However. John Gillane, 45, a nine-year veteran Walmart employee felt he was not fairly treated.

After purchasing ammunition at the Reno, NV, Walmart  store , Gillane shot and wounded three supervisors on Oct. 29, 2010.

Initial news reports indicated that employment conflict played no role in the incident. However,  the  Reno Gazete Journal newspaper has reported that court documents show that Gillane told police he  felt he was not treated fairly during his nine years of employment at the store. Gillane also was upset about a recent work evaluation by one of the three supervisors he shot, Eric Hill, and because his hours were being slashed.

Gillane  pleaded not guilty on Jan. 19, 2011 to attempted murder, battery with a deadly weapon causing substantial bodily harm and assault with a deadly weapon.

Court records show that Gillane told detectives he felt like he was “taking on Goliath” when he fired gunshots Oct. 29, 2010 at three of his supervisors at the Kietzke Lane store. Wounded in the incident were Richard Burns, Rick Sanders and Hill.

Preliminary hearing testimony revealed Gillane had many other problems, including two former wives leaving him for female lovers, a recent eviction, the fact that he didn’t see his young daughter very often and increased health insurance rates. Police were called to Gillane’s motel room two weeks prior to the shooting because Gillane was armed and suicidal.

Gillane told police that he was trying to intimidate the managers when he confronted them with a large, loaded handgun. Two managers testified they were shot when trying to flee from Gillane, while the third was shot while standing in the hallway. Gillane told police he planned to confront the managers during their morning meetings, so they could call someone higher in the Wal-Mart Stores Inc. corporation to listen to his complaints.

The victims testified Gillane was well-liked and had no work issues, and they were unaware he disliked them.

There is a long history in the United States of disgruntled employees taking up arms and shooting supervisors and co-workers.  A series of shootings by postal employees in the 1980s led to the term, “Going Postal.”

NPR v. Juan Williams

Does anyone know of a so-called independent review by a law firm that found the employer was completely un-justified in its actions (and thus potentially liable for serious monetary damages). I suspect that would be the last time said  firm was hired to do an independent investigation.  Frankly, I’m no fan of Juan Williams but  come on NPR … Adopt clear policies and processes for NPR’ employees and apply them uniformly.  PGB

NPR Senior Analyst Juan Williams, a ten-year veteran of public radio, received a telephone call last August from NPR Senior Vice President for News Ellen Weiss saying, in effect, “You’re Fired.”

True, Mr. Williams had made some incredibly stupid comments on Fox News about getting nervous on airplanes when he sees individuals dressed in Muslim garb. But is he the only NPR pundit who has made inane comments in pursuit of political punditry? No. And  don’t employees have a right to due process and to be treated civilly and with basic human dignity in the termination process?

NPR issued a report on the firing on Jan. 6, 2011 that said (based upon a supposedly independent investigation by a DC law firm paid by NCR) that Williams’ firing was warranted because he worked under a contract that gave both sides the right to terminate on 30 days notice for any reason. However, the report also states that NPR Chief Executive Officer Vivian Schiller wouldn’t be getting her bonus this year because of concern over the way Williams’ termination was handled and that Ms. Weiss was … er … resigning.

According to the report:

“— Williams’ contract was terminated in accordance with its terms. The contract gave both parties the right to terminate on 30 days’ notice for any reason. The facts gathered during the review revealed that the termination was not the result of special interest group or donor pressure. However, because of concerns regarding the speed and handling of the termination process, the Board additionally recommended that certain actions be taken with regard to management involved in Williams’ contract termination.

“In light of the review and feedback provided to them, the Board has adopted recommendations and remedial measures designed to address issues that surfaced with the review. The recommendations and remedial measures range from new internal procedures concerning personnel and on air-talent decisions to taking appropriate disciplinary action with respect to certain management employees involved in the termination… ”

NPR Ombudsman David Folkenflik later stated the law firm that NPR hired to conduct the review: “found that the termination of Williams’ contract was entirely legal. But the board said the report called for a full review of the company’s policies on ethics and outside appearances and for them to be applied consistently to all personnel.”

U.S. Civil Rights Laws & Workplace Bullying at Schools

The Office for Civil Rights of the  U.S. Department of Education issued a guidance on Oct. 26, 2010 reminding schools that federal civil rights laws also may protect students who are bullied.  Although the DOE does not address this in the guidance, federal civil rights laws also apply to workers at educational institutions receiving federal funds (this may also include libraries, training programs, etc.). Therefore, this guidance is relevant to victims of workplace bullying at educational institutions. PGB

Here is a short excerpt from the Office of Civil Rights guidance:

… In recent years, many state departments of education and local school districts have taken steps to reduce bullying in schools. The U.S. Department of Education (Department) fully supports these efforts. Bullying fosters a climate of fear and disrespect that can seriously impair the physical and psychological health of its victims and create conditions that negatively affect learning, thereby undermining the ability of students to achieve their full potential.

The movement to adopt anti-bullying policies reflects schools’ appreciation of their important responsibility to maintain a safe learning environment for all students. I am writing to remind you, however, that some student misconduct that falls under a school’s anti-bullying policy also may trigger responsibilities under one or more of the federal antidiscrimination laws enforced by the Department’s Office for Civil Rights (OCR).

… by limiting its response to a specific application of its anti-bullying disciplinary policy, a school may fail to properly consider whether the student misconduct also results in discriminatory harassment. The statutes that OCR enforces include Title VII of the Civil Rights Act of 1964 (Title VII), which prohibits discrimination on the basis of race, color, or national origin; Title IX of the Education Amendments of 1972 (Title IX), which prohibits discrimination on the basis of sex; Section 504 of the Rehabilitation Act of 1973 (Section 504); and Title II of the Americans with Disabilities Act of 1990 (Title II). Section 504 and Title II prohibit discrimination on the basis of disability.

School districts may violate these civil rights statutes and the Department’s implementing regulations when peer harassment based on race, color, national origin, sex, or disability is sufficiently serious that it creates a hostile environment and such harassment is encouraged, tolerated, not adequately addressed, or ignored by school employees. School personnel who understand their legal obligations to address harassment under these laws are in the best position to prevent it from occurring and to respond appropriately when it does.

Although this letter focuses on the elementary and secondary school context, the legal principles also apply to postsecondary institutions covered by the laws and regulations enforced by OCR …

… The statutes that OCR enforces include Title VI of the Civil Rights Act of 1964 (Title VI), which prohibits discrimination on the basis of race, color, or national origin; Title IX of the Education Amendments of 1972 (Title IX), which prohibits discrimination on the basis of sex; Section 504 of the Rehabilitation Act of 1973 (Section 504); and Title II of the Americans with Disabilities Act of 1990 (Title II). Section 504 and Title II prohibit discrimination on the basis of disability. School districts may violate these civil rights statutes and the Department’s implementing regulations when peer harassment based on race, color, national origin, sex, or disability is sufficiently serious that it creates a hostile environment and such harassment is encouraged, tolerated, not adequately addressed, or ignored by school employees.

Note:  A complaint of discrimination can be filed by anyone who believes that a school that receives Federal financial assistance has discriminated against someone on the basis of race, color, national origin, sex, disability, or age. The person or organization filing the complaint need not be a victim of the alleged discrimination, but may complain on behalf of another person or group. Information about how to file a complaint with OCR is at http://www2.ed.gov/about/offices/list/ocr/complaintintro.html or by contacting OCR’s Customer Service Team at 1‐800‐421‐3481.

The Healthy Workplace Bill is Anemic

The proposed Healthy Workplace Bill (HWB) is touted as model legislation to combat workplace bullying in the United States but is it as healthy as it should be for American workers?

No, says an international expert writing in a special issue of Comparative Labor Law & Policy Journal entitled, The Law of Workplace Bullying: An International Overview, Volume 32, Number 1, Fall 2010.

“It is of note that efforts to have legislation adopted in the Unites States seem to raise the bar far higher than would be acceptable in any of the other countries studied here,” says Professor Katherine Lippel, the editor of the issue and Canada Research Chair in Occupational Health and Safety Law, University of Ottawa, Canada,

The HWB was drafted by Professor David Yamada of Suffolk University, Boston, MA,  founder of the New Workplace Institute, and is supported by the Workplace Bullying Institute founded by Gary and Ruth Namie.

Ms. Lippel said the HWB contains restrictive requirements not found in other such laws around the world. Specifically, she cites its requirement that the Plaintiff show malicious intent to bully and provide evidence that he or she suffered tangible psychological or physical harm.

Here’s what Ms. Lippel has to say about the proposed requirement of proof of malicious intent:

“The requirement of malicious intention is of particular concern, and is not a requirement in the other legislation studied in this issue … Most legislation does not require evidence of the intention of the perpetrator of harassment (see for instance the interpretation and application of the legislation in France and Québec, and the Code of practice in Spain), and while malicious intent may lead to an increased award in Germany, evidence of intent is not required in the application of remedies provided for either in contract or tort liability contexts.”

It should also be noted that proof of malice is not a requirement for “hostile workplace” claims under Title VII of the Civil Rights Act, which protects victims who are discriminated on the basis of race, sex, national original, etc.  They need prove malice only if they are seeking the additional remedy of punitive damages.

Here’s what Ms. Lippel has to say about the proposed requirement of proof of tangible harm:

“Similarly, the proposed Healthy Worker Bill imposes an evidentiary requirement that has been critiqued as being “an over-high standard of severity,”…  requiring evidence of tangible harm to the plaintiff … It is understandable that the difficult context applicable in the United States with regard to rights of workers may favor a more restrictive legislative approach for purposes of political expediency, yet even some authors from the United States have expressed concern with the restrictive conditions proposed in the Healthy Workplace Bill.”

It should also be noted here that proving tangible  psychological or physical harm is not required by federal discrimination laws for other victims of a hostile workplace environment.  In fact, the requirement was expressly rejected by the U.S. Supreme Court in a 1993 sexual harassment case.  In Harris v. Forklift Systems., the U. S. Supreme Court said the protection of federal law comes into play before the harassing conduct leads to a nervous breakdown.  (See Harris v. Forklift Sys., 510 U.S. 17 (1993))

The Supreme Court also said:  “Certainly Title VII bars conduct that would seriously affect a reasonable person’s psychological well-being, but the statute is not limited to such conduct. So long as the environment would reasonably be perceived, and is perceived, as hostile or abusive … there is no need for it also to be psychologically injurious.”

Furthermore, the requirement to prove psychological harm would be a burden for targets who don’t have health care coverage,  the funds to see a therapist or the cultural disposition to seek psychiatric care. According to the Office of Minority Health, U.S. Dept. of Health and Human Services, 19.5 percent of African-Americans in comparison to 10.4 percent of non-Hispanic whites were uninsured in 2007.

Overwhelming research shows that bullying causes  stress that may contribute to physical harm that only becomes apparent many years later – such as heart disease.  Shouldn’t this be taken into account?

Ms. Lippel prefaces her remarks with the admonition that, “The actual content of the legislation on workplace bullying, if there is to be legislation, requires reflection.”

There is one other striking problem with the HWB that is not discussed in the special issue.  The HWB places a seemingly arbitrary cap on damages for targets of bullying who did not experience an adverse employment action, such as demotion or dismissal. The cap on emotional distress damages is $25,000 and targets are prohibited from seeking punitive damages. This cap is so low that it is unlikely that the HWB would serve as a deterrent to employers.  And, in a worst case scenario, the family of target driven to suicide by bullying would be able recover barely enough to pay for a decent funeral – all because the target was not demoted or fired. In short, the only damages available to a target of workplace bullying in this situation would be compensatory, i.e. the payment of medical bills.

Namie and Yamada have expressed concern about burdening the court system with cases that rest on “hurt feelings” rather than true bullying. But they fail to explain why this concern wouldn’t apply equally to any other lawsuit involving a hostile work claim, including sexual harassment or race discrimination lawsuits.  Why should targets of workplace bullying be singled out?

The U.S. Supreme Court repeatedly has said that Title VII doesn’t prohibit simple teasing, offhand comments, or isolated incidents that are not very serious.  Unwelcome conduct becomes illegal when it is so severe and pervasive that it interferes with the target’s work performance or creates a work atmosphere that is offensive or abusive. (Meritor Sav. Bank v. Vinson, 477 U.S. 57 (1986)).

The Journal is a publication of the University of Illinois College of Law and The International Society for Labor Law and Social Security. The special issue may be available for perusal at your local law library. It can be found online at Lexis/Nexis, Westlaw, and HeinOnline. It is available for purchase ($10) at the journal’s web site: http://www.law.uiuc.edu/publications/cll&pj/contact.html

– by Patricia Barnes

*** Note: This article was updated on 2/7/12

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