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Pacenza v. IBM Corp.

April 2, 2009


The opinion of the court was delivered by: Paul G. Gardephe, U.S.D.J.



Before the Court is Defendant IBM Corporation's motion for summary judgment and Plaintiff James C. Pacenza, Sr.'s cross-motion for partial summary judgment. For the reasons explained below, IBM's motion is GRANTED and Pacenza's motion is DENIED.

I. Procedural History

Pacenza's Complaint alleges that IBM discriminated against him because of his alleged disability -- post-traumatic stress disorder ("PTSD") -- and his age, and asserts claims under (1) the Americans with Disabilities Act of 1990 ("ADA"); (2) the Age Discrimination in Employment Act of 1967 ("ADEA"); and (3) the New York State Human Rights Law ("NYSHRL").*fn1

IBM moved for summary judgment on December 1, 2006, and Pacenza cross-moved for partial summary judgment on January 19, 2007. On February 16, 2007, IBM filed a motion to strike portions of Pacenza's motion papers, and on March 2, 2007, Pacenza filed a counter-motion requesting that the Court strike portions of IBM's papers. In an order dated July 26, 2007, the Court denied Pacenza's motion butpartially granted IBM's motion, ruling that much of Pacenza's Rule 56.1 Statement and Counter-Statement contained "impermissible argument" and "conclusory allegations." (Order dated July 26, 2007, Docket No. 35)

This action was reassigned to this Court on November 17, 2008.

II. Background

On May 29, 2003, IBM fired Pacenza -- then fifty-four years old -- after nineteen years of employment, contending that he had violated IBM policies by accessing sexually oriented chat room sites on the internet. Pacenza alleges that IBM terminated his employment because of his disability -- PTSD -- and his age. Pacenza further claims that his PTSD manifests itself through a variety of addictive behavior -- including an addiction to sexually oriented material on the internet. Despite this addiction, Pacenza maintains that he was an exemplary IBM employee, and that IBM used his improper internet usage as a pretext to justify his termination and disguise its disability and age discrimination.

IBM alleges that it warned Pacenza in January 2003 about his inappropriate internet use, and that its termination of his employment in May 2003 was provoked by his decision to access an inappropriate chat room internet site on his work computer despite this prior warning, and was entirely unrelated to his alleged disability or age. IBM further alleges that Pacenza's conduct violated several written and widely disseminated Company policies and that it has fired other employees for similar internet misuse. Finally, IBM maintains that the employees involved in the decision to fire Pacenza had no knowledge of his PTSD when they decided to terminate his employment.

A. Pacenza's Disability

Pacenza suffers from PTSD, which he alleges stems from his service in Vietnam and sexual abuse he suffered as a child. (Pacenza Decl. ¶ ¶ 6, 44)*fn2 Pacenza claims that he developed addictive tendencies as a result of his PTSD including alcoholism, food addiction, and, most recently, sex addiction. (Id., ¶ 46)

Pacenza began attending therapy for his sex addiction in 1994 or 1995, and attended Sex Anonymous, Sex and Alcoholics Anonymous, and Sex Acts Anonymous meetings during this period. (Pacenza Dep. at 62:16-19) In 1997 and 1998, he was twice hospitalized for his suicidal urges. (Pacenza Decl. ¶ ¶ 73, 74, 77, 78) He took a 55-day leave from IBM in 1997 and a 30-day leave in 1998 to receive in-patient psychiatric treatment. (Id., ¶ ¶ 73, 74, 78) Following his 1998 in-patient treatment, Pacenza lived at a halfway house for approximately a year. (Id., ¶ ¶ 78, 81) In 1999, Pacenza began psychotherapy with John DeRosalia, who continued to treat Pacenza until 2004. (Id., ¶ ¶ 82, 83) IBM's health care plan has funded all of Pacenza's in-patient treatment and psychotherapy. (Id., ¶ ¶ 76, 82) While his PTSD has allegedly led to a variety of addictive tendencies, Pacenza claims that it has never had any effect on the performance of his duties at IBM. (Id., ¶ ¶ 53, 54, 55, 63, 64, 65)

B. Pacenza's Employment History at IBM

Pacenza began work at IBM's Fishkill, New York facility on January 22, 1984. (IBM R. 56.1 Statement, ¶ 1) Throughout his employment at IBM, Pacenza received positive evaluations from his supervisors. (Pacenza Decl. ¶ 55)

In 1996, IBM transferred Pacenza to its Advanced Semiconductor Technology Center, where he was involved in the manufacture of computer chips. Pacenza worked a twelve hour alternate work schedule.*fn3 (IBM R. 56.1 Statement, ¶ 1; Pacenza Decl., ¶ 79) Pacenza operated an Opal Questar Machine ("Tool") which he used to measure the thickness of silicon wafers. (IBM R. 56.1 Statement, ¶ 2) The Tool identified flawed wafers and halted the manufacturing process to correct problems. (Id.) The Tool measured wafers for five to ten minutes; during this time, Pacenza had no direct role in the process. (Id.) Pacenza used an IBM computer with internet access to operate the Tool. (Id.)

Pacenza alleges that he accessed the internet during the Tool's downtime to avoid negative thoughts (Pacenza Decl., ¶ 91), and because it helped him "to perform repetitive, assembly-line type computer chip inspection work proficiently and efficiently, on a daily basis." (Id., ¶ 67) Pacenza maintains that he never viewed "sexually graphic pictures" over the internet at work. (Id., ¶ ¶ 97, 98)

C. IBM's Internet Use Policies

IBM has several policies which regulate its employees' use of the internet at work and general conduct in the workplace. The "Use of IBM Assets" policy authorizes IBM employees to "use IBM systems for direct business purposes as well as for general information of personal interest." (Affidavit of Kevin G. Lauri dated Dec. 7, 2006, Ex. E) ("Lauri Aff.") This policy also states, however, that "such personal use must not interfere with employee productivity." (Id.) "Of particular concern is the use of IBM assets to access sites others are likely to find offensive such as Web sites with sexually explicit content. . . ." (Id.)

IBM's harassment policy states that "IBM is committed to provide a work environment free from sexual harassment or any other harassment. . . ." (id., Ex. F), and that "[a]nyone can, by subjecting someone else to a hostile work environment, engage in harassment." (Id.) "A hostile work environment can be created by such things as jokes, offensive materials. . . .." (Id.) "What must be understood is that IBM prohibits in its work environment not only harassment but also inappropriate conduct, even if the person to whom it is directed welcomes it." (Id.) The policy also explains that "[v]erbal comments or physical actions of a sexual nature -- including . . . the display of sexually explicit or suggestive material -- may or may not constitute sexual harassment when unwelcome, but are unacceptable in a work-related environment whether welcome or unwelcome." (Id.) In addition, the policy states that "[v]ulgar language . . . as well as photographs, pictures, or printed material which others might find offensive or degrading" are unacceptable. (Id.) The policy further states that IBM "has a zero tolerance level for such conduct in the work environment." (Id.)

Portions of IBM's Business Conduct Guidelines ("BCGs") also discuss appropriate behavior at work. Section 3.2, entitled "Personal Conduct," explains that "[i]f IBM management finds that your conduct on or off the job adversely affects your performance, that of other employees, or IBM's legitimate business interests, you will be subject to disciplinary measures, including dismissal." (Id., Ex. G) Section 3.3., entitled "Work Environment," explains that "IBM will not tolerate sexual advances, actions or comments or racial or religious slurs, jokes or any other comments or conduct in the workplace that creates, encourages or permits an offensive, intimidating or inappropriate work environment." (Id.)

Pacenza attended sexual harassment training at IBM on July 21, 2002, and reviewed the BCGs in January 2003. (Id., Exs. H, I)

D. IBM Warns Pacenza About His Internet Use

In either late 2002 or early 2003,*fn4 Joseph Mihans, Pacenza's direct supervisor, warned Pacenza about his improper internet use. Steve Notollo, one of Pacenza's co-workers, had observed Pacenza visiting inappropriate internet sites while operating the Tool. (IBM R. 56.1 Statements, ¶ 11) Notollo described the internet material as "graphic" and "pornographic in nature," and expressed concern that other employees might be offended by what Pacenza was looking at or discussing online. (Id.)

Mihans then spoke with Pacenza about Notollo's allegations. Pacenza described their conversation as follows:

. . . he said to me well, somebody saw you on the Internet, and you went somewhere you shouldn't have been, and I just want to let you know you got to watch yourself because people are seeing you. So be careful, and I said -- that is when I told him, well, Joe[,] I have a problem with the Internet. I have had a problem for a long time, and I am getting help. I go to a therapist, and I go to meetings. Don't worry. I won't do it again, and that was about all that was said. He didn't say anything about talking to Carla [Meigel, Mihans' supervisor] or next time you are going to get fired or anything. It was nothing like that, and it scared the hell out of me. (Pacenza Dep. at 56:2-20)

Pacenza testified that during this conversation he told Mihans he had a "long-standing Internet sexual addiction." (Pacenza Decl., ¶ 160) Although Pacenza states that he did not tell Mihans what websites he had been visiting, Pacenza admits that he had visited internet chat rooms at work prior to Mihans's warning. (Pacenza Dep. at 56:25-57:3)

Mihans testified that he told Pacenza that "we do not look at anything that could be considered offensive on the internet." (Mihans Dep. at 15:19-21) Mihans testified that Pacenza "was very emotional because he knew that his job was on the line" (id. at 16:24-25), and "was swearing up and down that it would never happen again, that he will never do it again." (Id. at 17:4-6) Moreover, Mihans testified that Pacenza told him that he had a problem with the internet:

[I]t was one point during this time he broke down and told me that he has got problems with pornography and that he was afraid to go home because if he went home and his wife knew that he was in potential trouble because of something like this he was afraid that his wife would leave him. And I offered help through IBM and that's when he told me he is getting help and that he is okay with what -- he is good with what he has. (Id. at 18:18-19:2)

E. IBM's Treatment of Other Employees Who Violated Its Internet Policy

Both Pacenza and Mihans testified that they were aware that IBM had fired other employees for viewing pornography at work (Pacenza Dep. at 131:14-20; Mihans Dep. at 27:22-25), and IBM has offered undisputed evidence that it "has consistently disciplined its employees at the Fishkill site where Plaintiff was employed for using its systems for viewing or sending improper sexually themed material." (IBM R. 56.1 Statement, ¶ 54) IBM offered evidence that four employees had been fired for such conduct, which included sending sexually explicit messages over the internet. (Lauri Aff., Exs. Z, AA; IBM R. 56.1 Statement, ¶¶ 56-57) While Pacenza alleges that IBM did not immediately terminate an employee who used his IBM computer to view child pornography (Pacenza Br. at 2), the record indicates that IBM worked with the local police for several months to gather information that eventually led to the employee's arrest. (Pacenza Ex. 18) After his arrest, IBM fired the employee. (Id.)

F. Termination of Pacenza's Employment

1. Pacenza Accesses a Sexually Oriented Chat Room

On May 28, 2003, while operating the Tool, Pacenza visited an internet chat room. (Pacenza Decl. ¶ ¶ 113, 114, 115, 116, 117) Pacenza explained that he "entered a chat room through, and [he] sought to engage in 'adult conversation' and perhaps even find someone willing to engage [him] in talk about human relations." (Id., ¶ 116) Pacenza was "tempting himself to perhaps become involved in some titillating conversation." (Id.)

Pacenza testified:

[A]t the same time I was -- I was on the chat room, and I had just -- just begun a chat, and I was called away from the tool to go to another tool on the next aisle to let somebody go to lunch, and normally I would just log off the Internet, but I knew I was going to be coming right back, so I left it. I toggled over, so that the Opal screen was there. So I went to the other tool and when I came back and toggled the Internet was gone. So I just assumed somebody just logged it off. (Pacenza Dep. at 64:24-65:12)

When Pacenza left to operate another Tool, Pacenza's team leader, Steve Questal, assumed Pacenza's place at his Tool. (IBM 56.1 Statement, ¶ 17) After Questal toggled the computer screen, he saw the chat room, which discussed giving "blow jobs" and "performing other sexual acts." (Id., ¶ 18) Questal described the chat room as "pornographic" and "sexual in nature." (Id.) Questal showed the chat room to one of Pacenza's co-workers, Robert Sturrock. (Id., ¶ 19) Sturrock testified that the chat room contained "some ...

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