Cancer Survivor Mocked as ‘Uni-Ball’ Can Sue

(CN) - A testicular cancer survivor, whose co-workers allegedly called him "uni-ball," may sue the former employer he says let the harassment continue and then fired him without cause, a federal judge ruled.

Michael O'Connell says he informed his company, Continental Electrical Construction, that he had cancer in 2007 and that had undergone surgery to remove a testicle and a tumor from his neck, leaving a scar on his throat.

When he returned to work, one of O'Connell's supervisors, John Kuta, began calling him "uni-ball" and "cut throat" in front of staff, according to the complaint. Some jokes Cuta made allegedly included asking O'Connell if he had "an Italian neck tie" or was giving customers a "cut throat" price.

O'Connelll says Kuta's comments aggravated his anxiety, a pre-existing condition for which he was prescribed medication, and that Kuta would remove the anti-anxiety drugs O'Connell kept in his desk drawer.

Neither the company's owner or another supervisor took any action on the alleged harassment, which O'Connell reported several times, according to the complaint. In May 2009, the company fired O'Connell for alleged performance deficiencies, even though his April performance evaluation was good.

O'Connell sued Kuta and Continental Electrical Construction two years later, alleging violations of the Americans with Disabilities Act (ADA), retaliatory discharge and infliction of emotional distress.

Last week, U.S. District Judge Gary Feinerman refused to dismiss the emotional distress claim and ADA retaliation claim, but threw out the allegations of ADA discrimination and retaliatory discharge.

Kuta and Continental Electrical Construction denied that Kuta's behavior was "extreme and outrageous" enough to warrant a claim for emotional distress.

Feinerman acknowledged that "much of Kuta's conduct consisted of unactionable insults and indignities." But "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," the judge wrote.

Feinerman also held that the company may be liable for emotional distress. Although the Illinois Worker's Compensation Act typically does not allow an employer to be sued for an employee's intentional torts, there is an exception "when the employer has 'committed, commanded, or expressly authorized' the other employee's tortious conduct," the judge explained. Because Continental did not take "action immediately upon learning of the supervisor's misconduct," it may be held liable for Kuta's actions.

On O'Connell's ADA claims, Feinerman held that his cancer did not constitute a "disability" within the meaning of the ADA. The judge agreed with the defendants' argument that the "complaint does not plausibly allege that O'Connell's cancer limited any major life activities."

O'Connell's good performance evaluation in April 2009, immediately prior to his complaints about Kuta's harassment and his termination in May, may constitute "suspicious timing," according to the 23-page decision.

"Kuta's misconduct was personal to O'Connell, reflecting merely a private concern between him and Continental that did not implicate any larger public concerns," Feinerman wrote.

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