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11th Circuit Finds Employee Conduct May Lead to Termination Even Where the Conduct is the Result of Mental Illness | Littler



On May 27, 2021, a unanimous three-person jury from the U.S. Court of Appeals for the Eleventh District in the Todd v. Fayette County confirms a school district’s decision to end a mentally ill teacher. The school district’s reasonable assumption that the teacher threatened to kill herself and her son (a student at the school) and harm other school staff, and consumed excessive Xanax while at work, was a legitimate reason to quit, even though they could be mentally ill contributed to their actions.


The applicant, an art teacher, suffered from suicidal thoughts after her father’s suicide and was eventually diagnosed with major depressive disorder and anxiety. The school district was aware of the plaintiff’s mental health problems as she had confided to the school principal, who had encouraged the plaintiff to seek professional help and a formal diagnosis. In fact, the headmistress herself arranged the plaintiff’s first appointment with the specialist who ultimately diagnosed the plaintiff.

In 2017, Teacher’s depression worsened. At least two colleagues reported that the teacher had threatened to kill herself and her son and even pointed out several ways to implement her plan, including numbing her son with Xanax. The teacher was also reported to have consumed Xanax excessively while working in the presence of another teacher.

As a result of these reports, the teacher was involuntarily admitted to a mental health facility and her son was temporarily cared for by her friend, a fellow teacher at the school. Although the plaintiff’s psychiatric doctor gave the teacher a work permit stating that the plaintiff was not posing a threat to himself or anyone else, the school continued its own investigations into the plaintiff’s reports even after the Department of Family Affairs and Security had cleared the plaintiff When she returned to Children’s Services, her child was in her care. The plaintiff filed an objection claiming that it believed it was covered by the Americans with Disabilities Act (ADA). Two days later, the plaintiff’s human resources department announced that the school district would likely end her employment if she did not resign. The plaintiff refused to resign and also requested leave under the Family Medical Leave Act (FMLA), which was granted.

While the plaintiff was on leave, another employee informed the school district that the plaintiff had made further threatening statements – this time to the school management. Shortly thereafter, the plaintiff’s employment contract was not renewed.

Following her termination, plaintiff filed a lawsuit alleging that her termination constituted unlawful discrimination in violation of the ADA and Rehabilitation Act and prejudice to her rights under the FMLA. Plaintiff also alleged retaliation in violation of all three laws. Although the plaintiff denied the threats reports the school district relied on in order to establish a legitimate business reason for its termination decision, the court of first instance ruled in favor of the school district on all counts and the plaintiff appealed.

Opinion of the court

On appeal, the Eleventh District was faced with the question of whether the school district was entitled to a summary judgment, although the plaintiff’s alleged threats against herself, her son and others that led to her dismissal were due to her severe depressive disorder .

In concluding on the grounds of discrimination, the Eleventh Court assumed that the plaintiff could establish a prima facie case of discrimination (i.e. that it could produce direct evidence of discrimination or, alternatively, produce circumstantial evidence to prove that it did qualified a person with a disability who was treated less favorably because of their disability). Nonetheless, the court found that the school district was able to honor its obligation to provide a legitimate, non-discriminatory reason for the termination of the plaintiff’s employment, and that the plaintiff was unable to demonstrate that the ground was merely a pretext for discrimination. In making this conclusion, the Eleventh Circle emphasized that:

  • While the plaintiff’s behavior was likely due to her major depressive disorder, the dismissal was not motivated by the major depressive disorder itself, but rather by the plaintiff’s behavior that the school district suspected – threats to herself and others, including her own son who was a student of the district.
  • Whatever the cause of the conduct, the school district was entitled to have the conduct removed from the school, particularly considering that the plaintiff’s work “required her to be responsible for the well-being of her students. . . [because] ADA does not require employers to accept dangerous misconduct, even if that misconduct is the result of a disability. ”
  • The veracity of colleagues’ reports of the plaintiff’s behavior and threats was irrelevant in determining whether the grounds for dismissal given by the school district were an excuse for discrimination, as the pretext investigation focused on the employer’s beliefs (as opposed to beliefs worker) and the teacher had provided no evidence that the final decision maker did not honestly believe the plaintiff made threatening statements and consumed excessive Xanax while on the job.
  • Even the medical clearance to return to work did not turn the reasons given by the school district into a mere pretext for discrimination, since the plaintiff was accused of additional threatening behavior after the clearance to return to work and during the FMLA leave.

With regard to the plaintiff’s claims for retaliation, the Eleventh Circuit found that the temporal proximity between the plaintiff’s statement that she falls under the ADA, her application for leave of absence under the FMLA and her eventual dismissal was insufficient to refute a summary judgment, in the absence of evidence that the school district’s reason for dismissal – the plaintiff’s threats and wrongdoing – provided an excuse for retaliation. This was particularly true when you consider that the school district was already considering terminating the plaintiff’s employment relationship when asserting its ADA and FMLA rights, as the plaintiff’s school had not allowed the plaintiff to return to work until the investigation was completed.

Finally, with regard to the plaintiff’s FMLA disruption action, the Eleventh Circuit found that the action had failed because the plaintiff had to prove that it had been denied a right to which it was entitled, in this case the right to reinstatement. However, the right to be reinstated is not unconditional, and if an employer can demonstrate legitimate reasons for terminating the employment relationship, there is no obligation to reinstate an employee who could otherwise be terminated. Here, the decision-maker’s reasonable assumption that the plaintiff had threatened the school and consumed excessive Xanax made a dismissal reasonable.

Notably, the Eleventh Circle made it clear in their parting words that the fact that she was a teacher may have played a role in his decision. The Eleventh Circle emphasized that the school districts are obliged to protect students and employees from violence, even if the behavior of the employees can be traced back to mental illness.

The Impact of the Todd Decision on Employers

Todd affirms the principle that misconduct by employees can lead to termination, even if the misconduct can be caused by an impairment that is a disability within the meaning of the ADA. The ADA and Rehabilitation Act puts qualified people with disabilities on an equal footing with all other employees with equal status. While disabled workers cannot be treated worse than non-disabled workers because of their disability, the employer has the right to remove an employee who shows misconduct from the workplace in the same way as if the worker were not disabled.

Todd also points out that the mere temporal proximity between an employee making a legal claim and a negative hiring decision is insufficient to warrant retaliation. Applicants are required to provide some evidence of discriminatory animus, and without such an animus, dismissal after a protected activity is not contestable.

While Todd’s opinion is favorable to employers, employers must keep in mind that each case relates to its specific facts. In order to minimize risks, employers should therefore consult their employment advisor on the risks associated with adverse employment measures in relation to an employee who belongs to a protected category or has performed a protected job.

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Fry Construction Selected for a Major Medical Imaging and Radiotherapy Addition by The Center for Cancer and Blood Disorders, Arlington, TX



CARROLLTON, Texas, September 22, 2021 / PRNewswire / – Fry Construction, a specialist in the precision design and construction of cancer treatments, medical imaging facilities, and surgical centers, has announced the award of one of its most demanding multi-modal medical construction projects.

Fry Construction, Inc. logo

TrueBeam variant

TrueBeam variant

The center will include a Varian TrueBeam LINAC and a GE CT on the first floor of a multi-story building with little clearance for pillar drilling, with all shaping and casting of the vault required after hours. A further complicating factor is that the ER access is located directly outside the investigation area and is housed in such a way that constant access is guaranteed.

“We are used to delivering the most demanding construction projects in the shortest possible time and we are proud that Fry Construction is repeatedly selected to overcome these obstacles to completion. Our 38 years of experience specializing in this highly focused sector of medical construction has taught us how to get our jobs done on time, on budget, and to build to the manufacturer’s strict specifications to meet device warranties. The criteria required by the CCBD are no exception, “said Ben Fry, President of Fry Construction.

The Center for Cancer & Blood Disorders was recently recognized through national certification through the Quality Oncology Practice Initiative (QOPI®) certification program, a member of the American Society of Clinical Oncology (ASCO). This expertise was acquired through adhering to strict cancer treatment standards – matched by only 23 oncology practices in the country. The CCBD requires the same level of experience and professionalism from its medical contractor.

Alex Carr, Varian’s Radiation Oncology Medical Device Planner, said, “By selecting Fry Construction, a Varian Preferred Contractor, to complete this complex project, CCBD has reassured Varian that the site is also preparing to the highest quality standards is deemed to be compliance with Varian’s Site Readiness Specifications as required by Varian’s infrastructure planning processes. Fry Construction has an excellent history of working not only with Varian but also with our shared customer base of cancer control specialists. I look forward to continuing this complicated and challenging project with this great team. ”

About Fry Construction Company, Inc.

Fry Construction is a leader in precision engineering of radiation therapy and imaging facilities throughout the Southwest. Fry pioneered the practice of precision medical engineering at the 1984 University of Texas Health Science Center and has since completed over 1,500 specialized facilities in nearly four decades. All have been signed with the major radiotherapy and imaging manufacturers in the United States while retaining their Preferred Contractor status.

Media contact:
Bruce Fry
[email protected]

SOURCE Fry Construction, Inc.

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Here’s how to report your USA food problem directly to USDA or FDA



Food Safety Month

Whenever you think you are seriously ill, see a doctor. And if you believe food caused your illness, make sure it is reported. Most foodborne illnesses are “reportable,” which means your doctor informs the local health department.

For example, if you had an outbreak in multiple states, you could become a “confirmed case”. Your confirmed test result will be reported to the health department, your name will be kept secret.

However, if you don’t want to take medical action, you can report your bad food experiences directly to federal regulators. Both the USDA’s Food Safety and Inspection Service and the US Food and Drug Administration welcome consumer reports of contaminated or adulterated food.

But how?
Both FSIS and FDA explain how on their websites. With Food Safety Month coming to an end in September, Food safety news forwards this information along with some explanations to help consumers find the right agency. The FSIS and the FDA are responsible for protecting various segments of the food supply. If you have a problem with a food, be sure to contact the relevant health authority.

To reach them by phone:

  • Food and Drug Administration (FDA) call 888-723-3366 (10 a.m. to 4 p.m. EDT. Closed on Thursdays 12:30 p.m. – 1:30 p.m. EDT.

Before calling FSIS or FDA, it is important that you understand how the responsibilities of federal agencies are divided among the various agencies. The FDA, which has the most authority in these areas, provides an overview of their breakdown.

In general, the FDA regulates foods and other products as follows:

  • Food supplements
  • bottled water
  • Food additives
  • Baby food
  • other foods (although the U.S. Department of Agriculture plays a leading role in regulating some meat, poultry, and egg products)

The FDA also regulates medications, including:

  • prescription drugs (both branded and generic)
  • non-prescription (over-the-counter) drugs

Biologics, including:

  • Vaccines for humans
  • Blood and blood products
  • Cell and gene therapy products
  • Tissue and tissue products
  • allergenic

Medical devices including:

  • simple items like tongue depressors and bed pans
  • complex technologies such as pacemakers
  • dental equipment
  • surgical implants and prosthetics

Electronic products that emit radiation, including:

  • Microwaves
  • X-ray machines
  • Laser products
  • Ultrasound therapy equipment
  • Mercury vapor lamps
  • sun lamps

Cosmetics, including:

  • Color additives in make-up and other personal care products
  • Moisturizers and cleansers for the skin
  • Nail polish and perfume

Veterinary products including:

  • fodder
  • Pet food
  • Veterinary medicines and devices

Tobacco Products Including:

  • Cigarettes
  • Cigarette tobacco
  • Roll tobacco yourself
  • smokeless tobacco

By subject and subject, the FDA also has “functions” that relate to these federal agencies:

  • Advertising – The Federal Trade Commission is a federal agency that regulates many types of advertising. The FTC protects consumers by stopping unfair, fraudulent, or fraudulent practices in the market. Consumers can write to FTC at 6th St. and Pennsylvania Ave., NW, Washington, DC 20580; Telephone 202-326-2222.
  • Alcohol – The Department of the Treasury’s Alcohol and Tobacco Tax and Trade Bureau (TTB) regulates aspects of alcohol production, import, wholesale distribution, labeling and advertising. Consumers can write to TTB, 1310 G St. NW, Box 12, Washington, DC 20005; Phone 202-453-2000 or visit the TTB contact page.
  • Consumer products The Consumer Product Safety Commission (CPSC) works to ensure the safety of consumer products such as toys, cribs, power tools, lighters, household chemicals, and other products that pose a fire, electrical, chemical, or mechanical hazard. Consumers can direct written inquiries to CPSC, Washington, DC 20207. CPSC operates a toll-free hotline at 800-638-2772 or TTY at 800-638-8270 to enable consumers to report unsafe products or receive product information and recalls.
  • Drugs of Abuse – The Department of Justice’s Drug Enforcement Administration (DEA) is committed to enforcing United States controlled substance laws and regulations, including the manufacture, distribution, and dispensing of legally manufactured controlled substances. Inquiries about DEA activities can be directed to the Drug Enforcement Administration, Office of Diversion Control 8701 Morrissette Drive Springfield, VA 22152; Telephone 202-307-1000.
  • Pesticides – The Environmental Protection Agency (EPA) regulates many aspects of pesticides. The EPA sets limits on how much of a pesticide can be used on food during cultivation and processing, and how much can be left on the food you buy. Public inquiries regarding EPA should be directed to the US Environmental Protection Agency, Office of Pesticide Programs Public Docket (7506C), 3404, 401M St., Washington, DC 20460; Telephone 202-260-2080.
  • Vaccines against animal diseases The Department of Agriculture’s Animal and Plant Health Inspection Service (APHIS), Center for Veterinary Biologics, regulates aspects of veterinary vaccines and other types of veterinary biologics. Public inquiries regarding APHIS’s Center for Veterinary Biologics should be mailed to Center for Veterinary Biologics, 1920 Dayton Ave, PO Box 844, Ames, Iowa, 50010; Phone 515-337-6100 or visit the APHIS contact page.
  • water The Environmental Protection Agency (EPA) regulates certain aspects of drinking water. EPA develops national standards for drinking water from municipal water supplies (tap water) to limit the level of contaminants.

The USDA’s Food Safety and Inspection Service regulates this the following:

FSIS regulates aspects of the safety and labeling of traditional (non-wild) meat, poultry, certain egg products and catfish. For a USDA investigation into an issue with these products, please provide:

  • The original container or packaging
  • Any foreign objects that you may have discovered in the product
  • Any part of the meal not eaten (chilling or freezing)

Here is the information the FSIS Hotline needs from you:

  1. Name, address and telephone number;
  2. Brand name, product name and manufacturer of the product
  3. The size and type of packaging
  4. Can or package codes (not UPC barcodes) and dates
  5. Establishment number (EST), usually found in a circle or sign next to the phrase “USDA passed and tested”;
  6. The name and location of the store and the date you purchased the product.
  7. You can complain to the store or the manufacturer of the product if you don’t file a formal complaint with the USDA.
  8. If an injury or illness is alleged to result from the use of a meat or poultry product, you must also inform the hotline staff about the nature, symptoms, time of occurrence and the name of the treating doctor (if applicable).

The FDA Center for Food Safety and Applied Nutrition, known as CFSAN, provides services to consumers, domestic and foreign industries, and other outside groups regarding field programs; Administrative tasks of the agency; scientific analysis and support; and policy, planning, and dealing with critical issues related to food, nutritional supplements, and cosmetics.

How to Report a Food Problem to the FDA

  • Please contact USDA for any questions or issues related to meat and poultry.
  • As a consumer, health professional or in the food industry, if you would like to voluntarily report a complaint or adverse event (illness or severe allergic reaction) related to a food, you have three options:
  • If you are a member of the food industry who is required to file a Reportable Food Register report when there is a reasonable likelihood that an article on food will cause serious health effects or death to people or animals, please visit the Reportable Food Register page.

How to Report Seafood Related Toxins and Sccombrotoxin Fish Poisoning Diseases

To help the FDA conduct effective investigations, remove unsafe seafood products from the market, and develop new prevention strategies, the FDA relies on disease reports from public health officials and health care providers. While most foodborne outbreaks are tracked through the FDA’s Coordinated Outbreak Response and Evaluation (CORE) network, seafood-related diseases caused by natural toxins have a unique reporting mechanism.

To contact the FDA by email:
US Food and Drug Administration
Center for Food Safety and Applied Nutrition
Mediation and information center
5001 campus drive, HFS-009
College Park, MD 20740-3835

The FDA requests that products not be sent to this address.

(To sign up for a free subscription to Food Safety News, click here.)

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Unvaccinated pregnant women at high risk of serious COVID-19 illness: Henry



A number of unvaccinated pregnant women have become seriously ill with COVID-19 in intensive care units in British Columbia, said Dr. Bonnie Henry on Tuesday when she urged women who are pregnant or thinking of having a baby to be vaccinated.

Over the course of the pandemic, 40 pregnant women with COVID-19 have been admitted to hospital intensive care units, including just under half a dozen in recent months, the provincial health officer said in her weekly update with Health Minister Adrian Dix.

There isn’t an increased risk of complications for the mother or baby from the vaccination, Henry said, but there is an increased risk of serious illness requiring hospitalization or intensive care for those who get COVID-19 while pregnant.

“It is highly recommended that pregnant women get their vaccines as soon as possible, preferably if you are planning a pregnancy, to get the vaccine beforehand,” said Henry. “But it is safe in every phase of pregnancy and an important protection for you and your baby.”

Henry said the BC Center for Disease Control’s website has specific information about the vaccines and pregnancy.

Clinical trials of vaccines did not involve pregnant people, but tens of thousands of pregnant and breastfeeding mothers have been vaccinated since last year, she said, adding that this is supported by the Society of Obstetrics and Gynecology, Canadian Gynecologists, and the National Advisory Committee on Immunization Recommended, and other similar groups around the world.

All vaccines approved in Canada are not only safe, but are recommended for pregnant, pregnant and breastfeeding women, Henry said.

Canadian research, due to be published shortly, has shown that there is no increased risk of complications including miscarriage, premature birth, stillbirth, or birth defects after vaccination, Henry said. She said this is supported by international data showing that more than 90,000 pregnant women in the United States were vaccinated against COVID-19.

Canadian and international data show that someone who gets COVID-19 while pregnant is more likely to develop a significantly worse serious illness, particularly with the Delta variant, Henry said. Because of this, pregnant people have been favored for early access to vaccines across Canada, she said.

Henry said she’s trying to counteract misinformation about vaccines, including the baseless notion that they can cause infertility: “There’s no way they can.”

The provincial health officer also advised people with COVID infection that they still need to be vaccinated.

Data from across Canada from around the world shows that antibody levels can vary after infection, she said, and some people don’t develop long-term immunity. At the same time, the virus continues to evolve and can evade your immune response, Henry said.

The vaccine offers broader long-term protection against different strains, even if they change or mutate.

Henry also noted that studies of Pfizer BioNTech vaccines for children ages six to 11 are ongoing and the province is preparing to offer them if Health Canada approves them for use.

The province will provide information to help parents decide whether their children should be vaccinated, Henry said. “That will be very important, especially since we are back in the school year.”

All Canada-approved emergency COVID-19 vaccines – Pfizer, Moderna, and AstraZeneca – are now fully licensed and approved in Canada for ages 12 and over.

© Copyright Times Colonist

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