CHICAGO— A federal judge has given a former service manager for an Illinois electrical contractor permission to sue the company and a supervisor for wrongful termination under federal disability law and ongoing harassment about his illness.
In an April lawsuit filed in U.S. District Court in Chicago, Michael O'Connell alleges that he informed his former employer, Continental Electric Construction Co. in Skokie, Ill., in 2007 that he had undergone surgery on his neck and testicles to treat testicular cancer.
When he returned to work, Mr. O'Connell alleged that one of his supervisors, John Kuta, repeatedly referred to him as “uni-ball” and “cut-throat” in front of his fellow staff members. Mr. O'Connell also accused Mr. Kuta of hiding his prescription anti-depressant medication.
The suit alleges that neither the company's owner nor a second supervisor ever acted on any of Mr. O'Connell's several complaints. According to court documents, Mr. O'Connell was fired in April 2009 on grounds of substandard performance despite a history of positive performance reviews, one month after submitting a discrimination claim to the Equal Employment Opportunity Commission.
Mr. O'Connell's accused the company of violating the Americans with Disabilities Act, retaliatory and wrongful termination, and inflicting emotional distress. The company moved to have the suit thrown out on grounds that Mr. O'Connell's illness did not meet the standards of ADA protection and that Mr. Kuta's actions did not rise to the level of “extreme and outrageous.”
Judge dismisses some allegations
In an Oct. 17 ruling, U.S. District Court Judge Gary Feinerman granted Mr. O'Connell permission to sue the company and Mr. Kuta for allegedly inflicting emotional distress and retaliating against him for filing an ADA discrimination complaint. However, Judge Feinerman dismissed the allegations of ADA discrimination and retaliatory discharge, citing the ADA and Illinois “at-will” employment laws.
“It is true that much of Kuta's conduct consisted of unactionable insults and indignities,” Judge Feinerman wrote of Mr. O'Connell's claims of emotional distress. “However, Kuta's removal of O'Connell's anti-anxiety medication from his desk drawer may properly be deemed ‘extreme and outrageous' conduct, particularly given Kuta's position of authority over O'Connell and Kuta's knowledge of O'Connell's fragile mental state.”
Judge Feinerman also cited language in the ADA law that forbids any retaliatory action for filing a complaint, regardless of whether the complaint itself is valid.
“Suspicious timing can create a triable issue of fact for causation,” Judge Feinerman wrote, citing previous case law. “The fact that (Mr. O'Connell) is not disabled under the ADA, while dooming his discrimination claim, is not fatal to his retaliation claim.”
#Source: Crain Business by Matt Dunning
http://www.businessinsurance.com/article/20111027/NEWS05/111029918?tags=%7C75%7C305#
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