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Cubicle case may spur more lawsuits
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LAS VEGAS REVIEW-JOURNAL
Updated: Jul. 19, 2011 | 8:26 a.m.
Clark County's $150,000 settlement with a claustrophobic woman who said working in a cubicle caused her severe anxiety could signal a growing tide of similar lawsuits involving psychological ailments, according to an attorney who specializes in employment law.
County commissioners agreed to settle with Jayne Feshold, a former data technician at University Medical Center, two weeks ago after the county's attorney hinted that they might lose worse in court.
Claustrophobia is among the anxiety disorders covered under the Americans with Disabilities Act, a 21-year-old law to help the disabled have normal lives by reducing impediments at public venues and in the workplace.
Anxiety disorders have been listed under the law for years. But workers suffering from these disorders seldom won their cases because the maladies typically were viewed as temporary and the law covered only conditions deemed permanent, said attorney Robert Spretnak, who specializes in employment law.
In 2008, the law was changed so that it no longer made a distinction between permanent and temporary disabilities, Spretnak said. The change gives people who have psychological impairments more leverage to sue.
"You're going to see an upswing" in litigation, Spretnak said. "The question is going to be whether it's going to be a tremendous upswing or merely a very large upswing."
The volume of lawsuits will build over time rather than come in a deluge, Spretnak predicted, noting that whenever past civil rights laws were enacted, it took years for the litigation to fully materialize.
ADA GRIEVANCES RISING
The number of ADA complaints involving anxiety disorders has risen substantially since the law changed, according to data compiled by the equal employment commission.
In 2007, the agency received 488 such complaints, compared with 1,335 complaints in 2010.
That accounted for 5.3 percent of the complaints filed against employers for failing to accommodate workers, according to the Equal Employment Opportunity Commission, the federal agency that enforces ADA.
In the past decade, the agency received 6,821 complaints involving anxiety disorders. By law, workers must take ADA grievances to the agency before they can sue employers.
Spretnak called Feshold's lawsuit a good test case for anxiety cases.
Feshold couldn't be reached by phone, and her attorney, Michael Baliban, didn't return calls seeking comment.
County officials said the settlement prohibits both sides from discussing the case.
The larger issue of workers suing employers who don't accommodate psychological disorders appears to be a touchy subject.
Neither the Southern Nevada Human Resources Association nor the group's national counterpart, the Society for Human Resource Management, would comment.
According to Feshold's lawsuit, she worked at UMC for almost eight years before being moved in 2007 to a cubicle, which made her claustrophobia flare up and interfere with her job.
Although two doctors backed up her claim of debilitating claustrophobia, her supervisors wouldn't take the steps needed to accommodate her, such as moving her to a more open area.
Feshold transferred to a security job but again found herself in a confined space. Hospital managers fired her in 2008, saying she was unable to do her job.
The timing was good for Feshold because the ADA changed in her favor the same year she was fired, Spretnak said.
"Before 2008, they (her managers) would've gotten away with it," he said.
At a July 5 commission meeting, county counsel Mary-Anne Miller recommended that the county pay Feshold a $150,000 settlement.
Feshold had documentation to back up her claim and could argue that the hospital didn't take the steps needed to remedy her problem, Miller said, adding that a jury might side with her.
Commissioner Steve Sisolak voted to settle, but not before expressing strong misgivings.
"This seems ridiculous on the surface," Sisolak told Miller. "I don't want to open the floodgates. I can't imagine there are any merits in this."
Miller said the county learned important lessons in this case and wouldn't repeat the mistakes.
FOLLOWING THE LAW
County officials wouldn't say exactly how they aim to avoid such lawsuits in the future, again citing the settlement's gag order. They also wouldn't let a reporter view Feshold's former work areas at the hospital.
They would only issue a brief written statement: "We endeavor to follow all applicable federal laws and regulations and ... continuously work to improve our policies and procedures."
Jeff Fontaine, executive director for the Nevada Association of Counties, said it wasn't clear whether the case would set a precedent for government agencies getting flooded with anxiety-disorder lawsuits.
Because it involved a public agency, the settlement took place in a public forum and received media attention, Fontaine said.
Private businesses would settle similar cases behind closed doors, he said.
"The same employment laws apply to the private sector as the public sector," Fontaine said.
SIGN OF CHANGES IN LEGAL CLIMATE
Spretnak said the Feshold settlement isn't so much a catalyst for litigation as a sign of how the legal climate is changing. He predicts that among the psychological disorders covered under ADA, acute depression will become the biggest source of lawsuits.
More people than ever have been diagnosed with depression, Spretnak said.
Employers will have to talk with mental health professionals about how to allay employees' depression in the workplace, Spretnak said.
That might include putting them near a window or supplying them with full-spectrum lamps or allowing them a more flexible schedule to see a therapist, he said.
Employers must make a reasonable effort, though they aren't necessarily obliged to do everything a psychologist suggests, especially if it's too expensive, Spretnak said.
"But they have to listen," he said. "They can no longer say that if you don't like it, you can leave. That's clearly not the law anymore."
Contact reporter Scott Wyland at swyland@ reviewjournal.com or 702-455-4519.
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What if you were asked to make a PowerPoint presentation to a group of co-workers when you are totally paranoid about doing it? Can they make you? I am not a public speaker and do not wish to be. What would you do?
There is little reason for anyone to start a business or to remain in business. It's simply not worth the BS. From the Employee Free Choice Act ( that's sure to come), to OSHA putting a mandatory quota on violations written. Now... Were paying a settlement as ridiculous as this, with more to come. Simply NUTS !!!!
# "County officials wouldn't say exactly how they aim to avoid such lawsuits in the future, again citing the settlement's gag order. They also wouldn't let a reporter view Feshold's former work areas at the hospital."
They appear to have a lot to hide, starting with the truth.
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Just don't hire anyone and you won't have to worry about lawsuits. Then everybody can sue the government because you suffer from fear of starving to death syndrome.
Shame on Commissioner Steve Sisolak for being illiterate and insulting about disabling illnesses, let alone the content of the Americans With Disabilities Act, its Regulations, and the new Americans With Disabilities Act Amendments. When an elected official insults one person who is legally disabled, he insults all who are legally disabled, the blind, the paralyzed, the deaf and yes Steve those with emotional disabilities.
As to Sisolak's comment "This seems ridiculous on the surface," "I don't want to open the floodgates. I can't imagine there are any merits in this" I feel compelled to remind the public and the voters that Sisolak is a multi-millionaire because he pursued a takings/condemnation claim for a property near the airport which flew in the face of clearly established U.S. Supreme Court case law as well as clearly established case law from other states' Supreme Courts that the adoption of building and zoning regulations to protect the public is NOT a taking of property without compensation. Of course, Sisolak having the "right lawyer" and Nevada's screwy Supreme Court ruled in Sisolak's favor and made him a millionaire many times over using taxpayers' money.
Yes Steve, you opened the floodgates...for a massive outflow of Nevada taxpayer dollars on phony takings cases which wouldn't past muster in the U.S. Supreme Court or in the Supreme Courts of sophisticated states who have considered YOUR issues.
Shame on you Steve Sisolak, insulting disabled people who want the County to follow Federal law while you personally have profited from a legal theory which is "ridiculous on the surface".
I use to dance for a living. When my knees deteriorated due to a childhood accident, I found something else to do. I did not ask the producer and choreographer to make the steps more comfortable for my physical limitations. This is nuts.
You have to empower those who would choose not to work at the expense of those who would choose to work. Just another lazy POC playing the legal lottery.
That woman's claim of claustrophobia is outrageous and the County should never have agreed to this ridiculous pay out! What a crock! In these difficult economic times it is a tremendous BENEFIT to have a job. The attorneys who handled this frivolous lawsuit for the woman should be ashamed of themselves because the woman's claim alone is despicable and deplorable.
The County learned that their HR folks have no clue. They will get sued again cause the employees have figured out that nobody in management knows anything. Let the taxpayer dollars flow.
This Country needs an Enema......