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Employee terminated after violating employer?s policy barring accessing sexual materials via the Internet while at work

Employee terminated after violating employer?s policy barring accessing sexual materials via the Internet while at work
Pacenza v. IBM Corp., 09-2025-cv (2nd Cir. 2-2-2010)[This case is not listed for publication.] James C. Pacenza, Sr., commenced this action under The Americans with Disability Act of 1990 ("ADA"), the Age Discrimination in Employment Act of 1967 ("ADEA"), and the New York State Human Rights Law ("NYSHRL").

Essentially Pacenza alleged that IBM terminated him because of his age and his disability. Essentially IBM contended that it dismissed Pacenza because he violated certain IBM policies by accessing sexual materials on the Internet while at work.

Pacenza claimed that he had been dismissed because of his disability, Post Traumatic Stress Disorder ("PTSD") and that his disability manifested itself in a variety of ways, including ?a compulsion to access sexually-oriented material on the Internet and that IBM used this ?compulsion? as a pretext for its real reason for terminating him.

Addressing the merits of Pacenza?s claim, the Circuit Court said that he failed to produce evidence that his supervisor had knowledge of his disability and that he failed to make a prima facie showing of discrimination under the ADA.

Further, said the court, even had Pacenza established a prima facie case, he nonetheless failed to satisfy his burden of persuasion to overcome summary judgment by producing evidence "that would tend to show that the proffered reason [for termination] was merely a pretext for discrimination."

The Circuit Court found that Pacenza?s conduct was a clear violation of IBM's policies and that there was no basis to conclude that Pacenza was singled out or treated more harshly than similarly situated non-disabled employees who violated those policies.

Finally, the court ruled that Pacenza was terminated on account of his age, rather than because he used his work computer to access a sexually oriented chat room. ?The mere fact that [Pacenza?s] work duties were partially assumed by younger individuals following his termination was insufficient to so demonstrate.

Full post as published by New York Public Personnel Law on February 05, 2010 (boomark / email).