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Jury awards 6.65M to Panic Disorder Patient in Job Bias Suit

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George Alberigi v Sonoma County - Santa Rosa CA

George Alberigi is 52 years old and was employed by the County of Sonoma for nearly twenty-five years. In the mid-1980s, Alberigi was diagnosed with panic disorder and agoraphobia. These disabilities make it difficult for Alberigi to interact in person with strangers. The County accommodated Alberigi?s disabilities for fifteen years by allowing him to restrict his face-to-face contact with clients. Although Alberigi came to the office each day and interacted regularly with co-workers, he was allowed to conduct business with clients primarily by telephone and only rarely met face-to-face with clients.

According to evidence presented at trial, the panic attacks caused Alberigi to get tense all over, his muscles got ridged, he would grit his teeth, squeezing and ringing his hands. Sometimes he was rigid with panic, and unable to think. His heart beat fast and, he started holding his breath, squeezed his eyes shut and felt like he was going to die. As Alberigi stated, ?Sometimes I wished that I would die to get away from the panic.?

In his nearly twenty-five years with the County, Alberigi had received numerous commendations for his willingness to help others. His performance reviews stressed this positive aspect of his character:

- ?Mr. Alberigi is always supportive of co-workers. He provides a calming influence in the unit in times of stress for others.?

- ?His positive and upbeat attitude have made him well liked and respected by his co-workers.?

In 2000, he received his division?s Distinguished Employee Award:

?George always helps co-workers with their caseloads when he has extra time... He always expresses a positive attitude towards clients and co-workers and goes the extra mile to help others.?

Nevertheless, when Alberigi asked the County for help the County slammed the door in his face.

In 2001 the County transferred Alberigi from his long-term position, allegedly for the purpose of enabling him to gain more experience and be promoted. The County, however, did not give Alberigi a choice and made no effort to accommodate his known disabilities. This position did require face-to-face contact. As a result, Alberigi experienced severe anxiety and panic attacks in 2002 and went out on disability. The County sent him to doctors of their choosing for a fitness-for-duty evaluation. These doctors concluded that Alberigi indeed did suffer from panic disorder with agoraphobia and recommended that he be assigned a caseload that did not involve face-to-face contact with clients.

Despite these recommendations from their own doctors, the County refused to accommodate Alberigi, claiming for the first time that face-to-face contact with clients was an essential function of the eligibility worker position. He abandoned his request for promotion and asked to be returned to his old position. The County refused Alberigi?s request. The County also refused the offer of a co-worker, who had a caseload that did not involve face-to-face contact, to swap caseloads with Alberigi.

In early 2003 the County put Alberigi in a classic ?Catch 22" situation. The County told him that if his disability were permanent, he could not work as an eligibility worker because face-to-face contact was an ?essential function? of the position. But, the County stated, if his disability were temporary, it was not required under the law to accommodate his disability.

In March 2003, the County placed Alberigi on leave without pay for six months because he was unable to see clients face-to-face. In a letter to Alberigi, the County?s human resources manager stated ?Your restriction is only temporary. Therefore, we are not required to provide accommodation? The letter further stated that Alberigi would be placed on an unpaid leave beginning March 21, 2003. ?[Y]ou will be placed on leave without pay if you choose not to use your remaining sick leave, vacation and comp time effective March 21, 2003 unless you desire and are able to be placed in a vacant position. In any event, we look forward to your return in August when it is anticipated that you are able to start doing some face-to-face work with clients.?

Upon his return to work in September of 2003, the County initially did not require Alberigi to meet in person with clients. At first his supervisor commented positively on his job performance; however, after Alberigi filed legal claims against the County his supervisor began criticizing his performance and gave him a negative performance evaluation in December 2003, his first negative evaluation in twenty-three years.

In February 2004 the County again sent Alberigi for a fitness-for-duty evaluation by a different physician. This physician reached the same conlcusions as the others: that Alberigi suffered from panic disorder with agoraphobia and should be assigned a caseload that did not involve face-to-face contact with clients. Rather than offering Alberigi this simple accommodation, the County refused to make any effort to keep him employed as an eligibility worker. The County proceeded to scrutinize his work, criticize him unfairly, and create a highly stressful environment. The continuing anxiety caused by the County?s failure to accommodate, and insistence that he would have to meet with clients face to face in the future, caused Alberigi to suffer a nervous breakdown and become suicidal. Ultimately Alberigi was forced to take a leave of absence in July of 2004 and has not returned to work.

At trial one of Alberigi?s supervisors testified that County managers spoke about getting rid of ?dead wood? and referred to Alberigi as ?dead wood.? When asked what she thought of the County?s treatment of Alberigi, she testified:

- ?I felt it was wrong. I felt it was unkind to George. I thought it was unfair and I thought it was unlawful.?


The County alleged that face-to-face contact is an ?essential function? of an eligibility worker. This claim was contradicted at trial by the County?s own employees who testified that there was plenty of eligibility work Alberigi could have done without meeting face-to-face with clients. The credibility of that defense was also undermined by the fact the County previously allowed Alberigi to limit his face to face contact with clients for fifteen years.

The County claimed that it offered Alberigi a clerk/typist position in March of 2003 that did not require face-to-face contact. Alberigi disputed such an offer had been made. The County also alleged that in June of 2004, several months after the litigation commenced, the County informed Alberigi that it would consider him for three clerk positions (clerk typist, mail clerk, or microfilm technician.) The positions paid less salary, but the County claimed it would make up the pay differential. Alberigi?s investigation indicated that the positions required face-to-face contact and a one-year probationary.

The jury indicated after the verdict that they did not consider these positions to be good faith ?job offers.?


Employer Had Duty to Prohibit Employee's Porn Surfing

Doe v. XYC Corp., 2005 WL 3527015 (N.J.Super.A.D. 2005)

In this case, an employee secretly videotaped and photographed his 10-year old daughter in the nude and transmitted the pictures over the Internet through a workplace computer. The employer's network administrator learned that the employee had been accessing what the supervisor believed were pornographic websites. However, he was instructed to discontinue monitoring the employee's internet usage because the employer had a policy prohibiting such monitoring. Upon learning of the publication of the pictures on the internet, the employee's daughter, through her mother, filed  suit against her father's employer, claiming that it failed to take appropriate action when it learned that her father was accessing internet pornography at work. The trial court granted the employer's motion for a summary judgment on the basis that the employee was not under the employer's control at the time the pictures were taken, and the employer had no duty to monitor the private communications of employees at work. The New Jersey Appellate Court reversed on the basis that the employer had the ability and right to monitor the employee's internet activities. It ruled that the employer  is liable because it knew or should have known that the employee was using the office computer to access child pornography.

Employee Who Suffered Work-Related Injuries In Florida May Bring Claims In Illinois Under The IWCA

Mahoney v. Industrial Comm’n, 2006 Ill. LEXIS 13 (2006)

 The Illinois Supreme Court held that in order to determine whether the Illinois Workers’ Compensation Commission (“IWCC”) has jurisdiction to hear claims that arise out of accidents outside of Illinois, the sole factor is where was the contract for employment entered into.  The employee in this case was hired in Chicago, Illinois by United Airlines in 1969.  The employee worked in Illinois until 1993 when he requested and was granted a transfer to the employer’s Orlando, Florida facility.  There was no lapse of time from the employee’s last day of work at the Chicago facility and the first day of work at the Orlando facility. 

 The employee purchased a home in Florida and continues to work in that state.  Additionally, he pays Florida state income taxes and possesses a Florida drivers license.  The employee paid no taxes in Illinois and rarely returned to Illinois. The employee suffered two work-related accidents in Florida in 1999 and 2001. He received medical treatment in Florida and also received temporary total disability payments under the Florida Workers’ Compensation Act.  The Court ruled that the employee may pursue his claims in Illinois given that he was originally hired in Illinois. 

 The Illinois Supreme Court distinguished the facts in this case from the facts in  Youngstown Sheet & Tube Co. v. Industrial Comm’n, 79 Ill. 2d 425 (1980).  In Youngstown, the employee was not allowed to bring his claims in Illinois despite being originally hired in Illinois.  The employee in Youngstown was hired, laid-off, and rehired at an out-of-state facility by the same employer.  The Court reasoned that the lay-off broke the chain of employment.  Thus, a new contract for employment came into existence when the employee was hired out-of-state at a facility outside of Illinois and the no jurisdiction existed in Illinois courts. 


The Analogy Of The Macaw Bird: Employer Liable For Harassment By Independent Contractor

Dunn v. Washington County Hospital, 2005 U.S.App. LEXIS 24660 (7th Cir. 2005)

 The employee, a nurse, alleged that the chief surgeon made conditions miserable for her and other women on the staff.  The lower court assumed that women were subjected to worse conditions than men but dismissed the case since the perpetrator was not employed by the hospital.  On appeal, the Seventh Circuit ruled that an employer could be liable for sex discrimination of its employees by an independent contractor.  It went on to state that the ability to control actor, whether it is an employee, an independent contractor, or a customer,  plays no part in the analysis of Title VII claims due to liability being direct rather than derivative. 

 The Court then uses an analogy between the independent contractor and a macaw bird to demonstrate why the hospital is liable.  The analogy is as follows: A patient keeps a macaw in the room which attacks women but not men.  The hospital was aware of the situation but failed to correct the situation.  The hospital would be responsible for failing to take corrective action, regardless that macaw was not an employee nor could it control the macaw’s actions, since the hospital allowed the women to be subjected to inferior terms and conditions of employment.

 The case was remanded to the lower court for further proceedings to determine if the employees allegations of sex discrimination are actionable under Title VII. 

Employee Who Is "A Heart Attack Waiting To Happen" May Recover Under IWCA

Dunlap v. Nestle U.S.A., Inc., 2005 U.S.App. LEXIS 27070 (7th Cir. 2005)
The Seventh Circuit recently held that an employer may be liable under the Illinois Workers? Compensation Act to an employee who had a heart attack at work and no medical attention was sought for eight hours.  The Court stated that even if the employee was a ?heart attack waiting to happen,? he would be able to recover if the ?causative factor? that lead to his heart attack happening sooner, rather than later, was work.  The Court also held that the employee in this particular case would be able to recover damages even if his job duties were not the ?causative factor? to the heart attack.  Its reasoning behind this is that the employee?s injuries were aggravated when the employer failed to respond to the situation. 
The Seventh Circuit also stated that its ruling was binding on the Illinois Workers? Compensation Commission (?IWCC?).  It is important to note that federal courts rarely ever hear cases involving state workers? compensation statutes.  The employee in this case filed a claim with the IWCC and also filed a state tort claim against the employer.  The state tort claim was ultimately removed to federal court due to diversity of the parties.  The Court remanded the case to the IWCC for further proceedings in accordance with its ruling. 


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