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Date: 03-17-2006

Case Style: George Alberigi v. Sonoma County

Case Number: SCV 233788

Judge: Elaine Rushing

Court: Superior County, Sonoma County, California

Plaintiff's Attorney:

Stephen Murphy,San Francisco, California and Kenneth Valinoti of Valinoti & Dito, San Francisco, California

Defendant's Attorney:

Bonnie Freeman and Marshall Bluestone of Senneff, Freeman & Bluestone, LLP, Santa Barbara, California

Description:

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."

DEFENDANTS' ALLEGATIONS:

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."

DAMAGES:

Plaintiff claimed damages for past and future lost income and benefits in excess of $1.5 million; and emotional distress in unspecified amounts. Plaintiff suffered serious emotional distress and an exacerbation of his mental disabilities as a result of the County's failure to accommodate and retaliation. Alberigi has also suffered from depression, panic attacks, anxiety, fainting spells, dizziness, shaking, confusion, trauma, embarrassment, and loss of self-esteem as a result of the County's actions.

Outcome: On March 14, 2006 the jury returned a verdict in favor of plaintiff against defendant County of Sonoma for disability discrimination under Government Code Section 12940 and Retaliation Under Government Code Section 12940(h).

Plaintiff's Experts: HUMAN RESOURCES PROFESSIONAL: Rhoma Young Oakland, CA

ECONOMIST: Phillip H. Allman, Ph.D. San Francisco, CA

THERAPIST: Karen True-Samson, LCSW Santa Rosa, CA

FAMILY PRACTICE: Gregory P. Rosa, M.D. Sebastopol, CA

PSYCHIATRIST: David M. Isenman, M.D. San Mateo, CA

Defendant's Experts: For Defendant: PSYCHIATRIST: Michael R. Mandel, M.D. Mill Valley, CA PSYCHOLOGIST: Kathleen O’Meara, Ph.D. Sacramento, CA

Comments: A mediation was held over two days in May of 2004 before David King, Esq. of Petaluma. No settlement was reached. Defendant’s highest offer was approximately $12,000. Plaintiff demanded $249,000, raised to $600,000 at the mandatory settlement conference.

12-0 on disability discrimination; 12-0 on retaliation; 12-0 on economic damages; 10-2 on non-economic damages



 
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