Case: Attempted murder, FMLA, and ADA


You can’t make this stuff up

Late one night, Wade, who had several felony convictions in his past, was driving home with his girlfriend when he saw a childhood friend walking down the sidewalk. The friend flagged Wade down, and Wade stopped to talk to his friend. The two talked for about ten minutes when an individual suddenly approached them and fired several shots in their direction, five of which struck Wade.

When Wade’s employer learned that he was in the hospital, it sent out FMLA paperwork. While the employer wanted to provide 12 weeks of FMLA leave, Wade wanted only six, indicating that he could return to work on a reduced schedule and light duty.

Six weeks into his leave Wade met with the employer about returning to work. The employer indicated that it had serious safety concerns surrounding Wade returning to work given that the shooter had yet to be caught. The shooter, it said, could show up to the workplace to “finish what he started” with Wade and endanger other employees. Wade was terminated while still on leave, and he sued under both the FMLA and the ADA.


In court, Wade argued that the employer interfered with his FMLA rights by not restoring him to his position after six weeks or 12 weeks. The employer argued that that the termination reason was safety concerns — a legitimate, nondiscriminatory reason. It based its argument on Wade’s prior felony convictions for robbery, drug abuse, and drug trafficking; and fears that the shooter would return to the workplace, as the shooter was still at large.

A subsequent investigation indicated that Wade was a random victim rather than the target of the shooting.


Under the ADA, Wade argued that the employer failed to accommodate him when it did not allow him to return to work after six weeks.

The employer argued that Wade was not otherwise qualified for the job because he could not lift more than 50 pounds. Wade, however, pointed out that, despite the job description including this requirement, the job actually involved lifting only five or six pounds, and he was never required to lift objects weighing more.

Given the outstanding questions, the court allowed the FMLA and the ADA claims to proceed to a jury.

Takeaway: Just because someone might be gunning for one of your employees does not necessarily mean you may terminate the employee without concern. Despite this employer’s honest safety concerns, it didn’t have enough to outweigh the employee’s arguments, in part because the investigation report contained some information that arguably belied a justified belief in safety concerns.

Wells v. Nesbit, Inc., Southern District of Ohio, No. 1:19-cv-786, April 28, 2022

Key to remember:  Not all situations involving violence are enough to beat an FMLA and ADA claim.

This article was written by Darlene M. Clabault, SHRM-CP, PHR, CLMS, of J. J. Keller & Associates, Inc. The content of these news items, in whole or in part, MAY NOT be copied into any other uses without consulting the originator of the content.  


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