Ready, aim, fire!

Acme's quick-draw management shoots down profits

While the main plant was running full bore and being expanded, operations at the other three on the outskirts of the City of Papy Aye were being turned down. However, even with the turn down in throughput, there was still more than enough work in the plants to keep Denny Grait's maintenance staff working heavy overtime. Denny was Acme Broadside's Maintenance
Superintendent and was quick to point out to everyone just how important he was to Acme. Generally, he was so abrasive that the operations staff long since ceased to advise him of problems with the production equipment.

Grait's behavior was sufficiently aggravating to most of the maintenance staff that the Human Resource Director, Nick Elandeimer, had to tell him to tone down his lectures to his staff and other employees. Several operators and mechanics complained that they appreciated the fact that Grait was a reformed alcoholic but his pep talks were positively abrasive toward anyone who even so much as looked at a drink. Denny defended his actions by telling Elandeimer that he only offered constructive criticism to those who chose to seek his counsel.

Mick Gannigal was a senior mechanic and section chief who worked under Denny Grait in the predictive maintenance section. Lew Sipper, a senior electrician, usually worked with Mick. Since coming to Acme, both men became multiskilled technicians. Further, they understood the equipment in the plants better than anyone. Their work required that they drive a company pickup truck from the maintenance shed at the main plant to the other plants to analyze equipment and gather test samples of oils and hydraulic fluids. Mick usually did the driving. Their conversation often evolved around their boss and his endless criticisms.

Mick was an outgoing personality who often found himself trying to cheer up Lew. At a company outing, Lew had had one too many beers before the baseball game and struck out at the plate. Grait was on his case for two weeks about the problems of drinking and how it affected job performance. Then it took Mick a month to get Lew out of the dumps after those Grait pep talks.

It was the first of the week and the Predictive Maintenance crew was on the go. They'd finished up at the main plant and were on their way to Plant # 3. Mick noticed that his partner seemed completely detached from everything as the pickup bounced along a secondary road. When the truck rolled through the plant entrance, Mick asked Lew if he wanted to go through town and pick up some lunch for them. Mick said he'd probably need at least a half hour to get their monitoring equipment setup. Lew shrugged and held out his hands for the pickup keys.

Mick pulled a couple of cases of test equipment from the back of the pickup. Then Lew got in the truck and drove toward town and the Vat, a preferred
watering hole for the folks from the plant. A few minutes later Lew pulled into the Vat's parking lot. The Vat was a good bar and had great food. Once inside, he stared up at the wall-mounted menus trying to decide what to order for lunch. Someone said "Beer?"

And, without thinking, Lew said "Sure, why not." As he ordered chili dogs and fries for Mick and himself, he noticed the beer in front of him. He shrugged, picked it up and began drinking. A few minutes later he had a bag of food in his hand and set an empty beer glass on the counter.

As he walked back to the pickup, he thought about his wife. It occurred to him that he should stop by her office on his way back to the plant. He knew it would only take a second to stop and see her and he could go through town on his way back to the plant. Besides, Mick never minded about a couple of minutes one way or the other.

Grait's behavior was sufficiently aggravating to most of the maintenance staff that the Human Resource Director, Nick Elandeimer, had to tell him to tone down his lectures to his staff and other employees.

The next morning when Lew got back to the main plant, Denny Grait confronted him on the shop floor about his drinking. After giving Sipper an intense lecture on the evils of drinking and the inexcusable weaknesses of alcoholics like him, Grait told him to report to Nick Elandeimer who would process his termination papers.

When Lew got to the Human Resources office he told Elendiemer he was not an alcoholic and that something just happened to the truck. He wasn't sure what. Nick looked up from his papers and told Lew that the negligent destruction of company property was sufficient cause for termination.

As a result of the accident, the woman, Anne Tigony, incurred severe leg damage and filed a negligent retention suit against Acme. Through her attorney, Ava Rishess, Anne claimed Acme should have known that the driver of its company vehicle had an alcohol problem. During a pretrial discovery, Ava Rishess discovered that Acme failed to check Lew Sipper's driving background. An investigation revealed that Lew Sipper had a suspended license in another state. Acme opted to settle the suit out of court for $16,000,000.

However, as it turned out, Lew Sipper was not an alcoholic, but suffered from severe depression. And, he had been seeing a doctor and counselor about his problems. Lew's wife sued Acme Broadside for $100,000 in punitive damages when it was verified that he was not an alcoholic. Sipper's wife claimed her husband was covered by the Americans with Disabilities Act. 

How would you have avoided this situation?

An attorney's comments:
Alas, poor Acme--caught in the twin scourges of defending a suit for negligent retention and disability discrimination. This is one of those situations in which an employer is hard pressed to win.

Acme should have checked the driving record of Lew Sipper and of every other employee whose job involved driving as part of his or her duties. Any employee with a blemished driving record should not be permitted to drive on the job. If Lew was not
authorized to drive company vehicles, Mick should not have handed him the keys with instructions to fetch lunch.

However, Acme was perfectly correct in discharging Lew. As Nick explained, negligent destruction of company property was one valid reason. In addition, Acme must have had a rule barring employees from drinking on the job or being under the influence of alcohol at work. Acme's failure to discharge Lew could have led to increasing legal problems if Lew's antics caused harm to anyone else in the future.

Lew's wife has no standing to sue Acme under the Americans with Disabilities Act. Lew himself would have a hard time recovering in an ADA claim. Given the fact that Lew is not an alcoholic, he cannot prevail against Acme on the theory that the company discriminated against him on the basis of alcoholism as a disability. However, the ADA also protects employees who are "perceived" by the employer to have a disability. But there is nothing in the facts suggests that Acme "perceived" Lew to be an alcoholic. If every employee who had too much beer at a company outing were protected as a "perceived" alcoholic, the backlog of litigation in our courts would increase dramatically.

If Lew were to pursue his ADA claim on the theory that Acme discriminated against him because of a mental disability, depression, he would have an equally uphill battle. Apart from the reference that Lew "seemed completely detached" on the way to Plant 3, there is no indication that Acme had any clue Lew suffered from severe depression. An employer cannot discriminate against an employee on the basis of a condition that the employer did not know about. Acme should fight this suit tooth and nail.

Julie Badel, Partner
McDermott, Will & Emery
Chicago, Illinois
jbadel@mwe.com

A plant engineer's comments:
Most important, is an apparent complete lack of a policy and a practice for the investigation of company accidents. Denny Grait, the Maintenance Superintendent, flew off the handle in accusing Lew Sipper of being an alcoholic and succeeded in having him fired because of alcohol-related negligence of company property. And, not-too-bright, Nick Elandeimer, the Human Resource Director, went along with the termination.

The very first thing that Denny Grait should have done following the accident was to interview witnesses to the accident and Lew Sipper to hear his version and then to thoroughly investigate Lew's comment that "...something just happened to the truck." The truck was used extensively to drive between the plants and apparently took a beating as noted in the case when the "...truck bounced along a secondary road."

My first question would be to ask if the truck was being properly maintained and serviced? A check of the work order history for the vehicle would be a priority followed by an in-depth investigation of the truck itself to see if Lew's comment regarding the truck's performance had merit. I find it difficult to believe that one beer caused Lew Sipper to lose complete control of the truck but still have the presence of mind to aim for a tree to intentionally stop the truck. A proper investigation might have revealed mechanical problems with the truck that contributed to or caused the accident.

Additionally, it doesn't appear that Acme Broadside has many written policies; especially regarding drinking alcohol during the workday or at company functions. Never did Denny Grait or Nick Elandeimer mention a company policy regarding alcohol. Furthermore, alcohol was served at a company function: the baseball game at the company outing.

Acme should have a policy in place regarding the consumption of alcohol while on the job, on company premises, and at company functions. If Denny Grait was so adamant about not drinking alcohol, why didn't he pursue a policy with the Human Resource Director for Acme, rather than conducting pep talks with anyone who drank? Acme Broadside had plenty of opportunity to develop a policy but ignored it.

Also, we don't see any company policy regarding the use of company vehicles for non-work related matters, such as Lew Sipper stopping to see his wife while en route from one plant to the next. Acme is seriously lacking in company policies as to how employees are expected to act or perform on company time.

In addition to the lack of company policies, downsizing operations and consolidating plants have a major impact on employees: Worry about one's job, employees having additional work to do, some work tends to fall through the cracks, and so forth. Lew Sipper, the senior electrician, already suffered from severe depression and was seeing a doctor and a counselor about his problems (Is Acme aware of this condition?). The consolidation within Acme, coupled with an abrasive and aggravating Maintenance Superintendent, certainly didn't help Lew to concentrate on his job full time. I would question, however, if Lew were covered under Americans with Disabilities Act, as his wife claims, unless Acme knew of his condition and the treatment he was receiving. How can any company make allowances for an employee's health condition if it is not made aware of those disabilities so as to try to accommodate them?

Acme Broadside, through Denny Grait, overreacted, and incorrectly so, to the accident, and stupid Elandeimer followed suit. To top all this off, where did they find their legal counsel? Acme settled the suit out of court for $16,000,000 with little, if any, investigation into the accident. However, the accident might have been mitigated to some extent, and the subsequent suit brought by Lew's wife against Acme for $100,000 very likely could have been prevented with written and clearly communicated company policies regarding:

• Acme's compliance with the Americans with Disabilities Act,
• drinking alcohol during working hours,
• the personal use of company vehicles on company time, and
• the investigation of accidents.

Robert L. Steibly, C.P.E.
Angles Unlimited
Rutland, Vermont
rsteibly@aol.com

A corporate advisor's comments:
At least four opportunities to have avoided this case exist. First, ACME's policy manual, assuming one existed at all, should state clearly that company vehicles are to be driven only in the pursuit of company business. Visiting one's spouse would clearly not be included.

Second, this same policy manual should have a section on hiring practices, mandating that driving records be checked for anyone whose job would require the operation of a company vehicle. Of course, having this clause in the policy manual isn't enough; as Director of Human Resources, Nick himself would have to comply with it! Had he done so, Lew wouldn't have been driving in the first place.

Third, Nick should have subordinated punishment of Lew to the careful stewarding of ACME's corporate image and resources. Things that seem open and shut rarely are. Lew's protests that that he was not an alcoholic should have been enough to alert Nick that the case for terminating Lew needed to be air tight. Summary termination in this case was unwise. A medical evaluation of Lew, a mechanic's assessment of the vehicle, and copies of any interviews with witnesses of the accident would have differentiated fact from assumption. Lew could have been suspended pending the outcome of the investigation.

Fourth, driving under the influence, or even driving while intoxicated, is not synonymous with alcoholism. Although this distinction does nothing to help Anne Tigony, the fact that Grait publicly--on the shop floor--linked the accident to alcoholism paved the way for Mrs. Sipper's suit. Those with termination authority need to have a comprehensive list of do's and don'ts to reduce non-compliance with the legalities of personnel actions. Quarterly workshops that foster application of learnings from recently litigated cases nationwide would be a great way to keep fresh the importance of compliance refreshed.

Although there is a breath of a hint that perhaps Mick should have known that Lew was depressed or that he needed help, I don't believe it's reasonable to have expected Mick to know the signs. Such an expectation would, by logical extension, suggest that supervisors and managers would have to be paramedics.

Francie Dalton, President
Dalton Alliances
Pasadena, Maryland
fmdalton@primenet.com

An editor's comments:
Acme Broadside's problems lie in its apparent lack of common sense. There doesn't appear to be any policies or procedures in place from the hiring to the firing of employees. Further there seems to be no evidence of background checks for job candidates.

The result of this lack of policies and procedures has left Acme open to fallout from capricious behavior by both managers and subordinates. Acme should have done a complete reference check on Lew Sipper to include investigating his driving record--past and present. That investigation would have given them sufficient information to determine if he should be allowed to drive a vehicle as part of company business. Further, Acme should have a description of his--predictive maintenance crew member in this case--job responsibilities that either include or exclude driving. This would avoid putting a supervisor in a position of making a wrong or questionable decision. Additionally, Acme needed a policy statement regarding drinking on company business or time.

As far as Acme supervision is concerned, there doesn't seem to be any. The Human Resource Director appears as if he doesn't know he works in the Twentieth Century. Denny Grait, on the other hand, isn't aware of the affects he is having on his staff and productivity. Berating one's staff is not a practical way to improve productivity especially, if the workload is high.

The most practical thing Acme could have done to avoid this expensive situation would have been to conduct a complete background check that included investigating employees' driving records at the time of hiring, have a standard policy in effect for the investigation of any accident and consult an attorney before pulling the trigger on an employee. Also, supervisors and managers should have undergone some type of qualification testing or assessment to verify that they are suitable for the position. Abrasive behavior only wears down the staff.

Charles M. Boyles, C.P.E.
Editor-in-Chief
cmboyles@xsite.net