Cubicle case may spur more lawsuits

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.