The Kansas City Star, Mo., Dan Margolies Column: Fired Aquila Employee Seeks a Second Chance

By Dan Margolies, The Kansas City Star, Mo.

Jun. 13–After Aquila Inc. fired meter reader Michael Combs for harassing a customer on company time, Combs’ union challenged the company’s action.

Although Combs admitted lying to police about what he did, an arbitrator ordered him reinstated, reasoning that Aquila had failed to consider whether his bipolar disorder contributed to his misconduct.

Now Aquila has asked a federal court to throw out the arbitrator’s ruling, calling it a “manifest disregard of the applicable law” and a violation of public policy.

The facts of the case were undisputed. On May 10, 2005, Combs made several harassing calls to a female customer, a casual acquaintance, and rang her doorbell a short time later. The customer called police, who arrived while he was still in the customer’s yard and arrested him.

Combs eventually pleaded guilty to a misdemeanor and received a 90-day suspended sentence. He was also ordered to perform 80 hours of community service, which he completed.

Following his suspension by Aquila a day after the incident, Combs admitted that his conduct had violated company policy. He explained, however, that he had been diagnosed with bipolar disorder and was being treated. He also said he was sorry for the hurt he had caused.

On May 25, the company fired him. The International Brotherhood of Electrical Workers Local 695 promptly filed a grievance seeking his reinstatement.

The union argued that Combs suffered from a disability as defined by the Americans with Disabilities Act and that his misconduct was related to that disability. With counseling and medication, it said, Combs’ condition was subject to reasonable accommodation.

Aquila, for its part, said it had an affirmative legal obligation to protect its employees and customers from harassment and other risks that might place it in legal, moral and financial jeopardy. It rejected the idea that the ADA applied, pointing to court decisions holding that an employer was not required to forgo discipline because an employee’s conduct resulted from an illness.

The arbitrator rejected that argument and found that Aquila had failed to show that Combs could not be rehabilitated or that “the nature of his disability prevents him from adequately performing his work, puts the safety of the public or his co-workers at risk by the continued performance of the job or significantly harms the image of the company.”

“Consequently,” the arbitrator ruled, “it cannot be concluded that the Company had just cause to terminate the Grievant’s employment since it erred in treating the discharge solely as a disciplinary matter rather than a disability question.”

The arbitrator conditioned Combs’ reinstatement on medical documentation that he is continuing to take his medication and capable of returning to work. She also said that Aquila could terminate him for nondisciplinary reasons if he failed to take his medication.

That didn’t mollify Aquila. In its motion seeking to vacate the arbitration order, it said that “public policy cannot tolerate a second chance for Combs.”

“Indeed,” it said, “considering the world in which we find ourselves, it flies against notions of common sense to reinstate an employee who criminally harassed a customer on Company time, in Company clothing, using a Company vehicle where there is — and cannot be — no guarantee such conduct will not recur.”

The union’s attorney, Tom Marshall of Blake & Uhlig, said that the arbitrator did consider public policy in reaching her decision, which he said was based “on all of the evidence in the case.”

He said he was confident the award would be upheld and enforced.

To reach Dan Margolies, call (816) 234-4481 or send e-mail to dmargolies@kcstar.com.

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Copyright (c) 2006, The Kansas City Star, Mo.

Distributed by Knight Ridder/Tribune Business News.

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