No Disability Harassment or Discrimination for Doctor with Hepatitis C

Dr. Gowesky was accidentally infected with hepatitis c while an employee at the hospital. When she sought to return after treatment, she was met with concerns and negative comments, although she was ultimately placed on the schedule. She never actually returned to work, and later sued the hospital claiming both disability harassment and discrimination. Noting that both required a finding that she was 'disabled' under the ADA, the Court refused to make such a finding even under the 'perceived as' prong of the ADA definition. The Court found that she was not disqualified from working as that term is used in the ADA, nor did her employer think so, as evidenced by putting her back on the schedule. Gowesky v. Singing River Hospital System (5th Cir. 2/6/03) [pdf].


Although perhaps of little consolation to Dr. Gowesky, and certainly not her counsel, Judge Edith Jones does note the 'unfairness' suffered by Dr. Gowesky to have contracted the disease under such selfless circumstances, to have suffered through not only chemotherapy but surgery, and then to be met with unwillingness by her supervisors to take advantage of her talents. But as Judge Jones notes,

Gowesky must recognize, nonetheless, that not all suffering — no matter how great, no matter how unmerited — gives rise to a compensable legal action. To obtain the right to present his case to a jury, a plaintiff must, at minimum, adduce evidence upon which a rational jury could, as a matter of law, find in his favor. As much as this court admires Gowesky’s work and pities her suffering, she has, alas, failed to present such evidence.

It is recognition of that hard fact, and acting on it, that is necessary to ensure that the legal system remains a dispenser of justice rather than of sympathy, paid for with others' money.

No Damages for Covenant Not To Compete, No Attorneys' Fees

After being told by the Supreme Court to review whether an employer who prevailed in enforcing a covenant not to compete, but did not recover damages, was entitled to attorneys fees under the Civil Practice and Remedies Code, the San Antonio Court of Appeals, hold no. Perez v. Texas Disposal System, Inc. (Ct. App. - San Antonio, 2/5/03). The Court also reaffirmed its earlier ruling that the employer doesn't recover them under 15.51 of the Texas Business & Commerce Code either.

Arguing Intentional Infliction of Emotional Distress in the Texas Supreme Court

The Texas Supreme Court heard arguments yesterday in Hoffman-LaRoche v. Zeltwanger. The Corpus Christi Court of Appeals decision can be found here.. It involves a matter of no small significance to the defendant employer, since Zeltwanger recovered a judgment in excess of $10,000,000. Zeltwanger sued for both sexual harassment and intentional infliction of emotional distress. The largest part of the award was attributable to the intentional infliction of emotional distress award.


The court's decision could substantially impact the employment law jurisprudence in Texas if it accepts the employer's argument that the tort of intentional infliction of emotional distress is not available where there is another legal remedy (in this case, a TCHRA claim for sexual harassment) for emotional stress damages. I filed an amicus brief on that point on behalf of the Texas Association of Business.
My brief, and the contention of the company, is that intentional infliction of emotional distress is a 'gap-filler' tort, created to provide a remedy only in those cases where there was outrageous conduct and no other remedy.


The Court seemed to understand that the argument being made by the defendant was not pre-emption of intentional infliction of emotional distress by the TCHRA, but rather a defining of the common law claim that only became available in Texas when the Supreme Court adopted it. The Court did seem concerned about how to craft a workable rule if it were to accept the employer's argument. Chief Justice Phillips raised an interesting question about whether the decision might be almost 'theoretical' since even if the employer escaped direct liability, it might be vicariously liable for the act of its supervisor who was also found guilty of intentional infliction of emotional distress.

As with many cases that come before the Court, there are many options available. The case could be a vehicle for a wide ranging decision that could effectively limit the tort of intentional infliction of emotional distress in employment cases, the Court could use it to try to set a more defined standard for what constitutes intentional infliction of emotional distress, or the Court might look for a more narrow path and leave those questions for another day.

Covenants Not To Compete - At the Highest Level

BellSouth took to the offensive to block Vice Chair Gary Forsee's move back to Sprint. See the story here. Although not clear, sounds like an ex parte TRO by a Georgia state court judge. Maybe a little home court advantage? Will be interesting to see how long it sticks, if it does.

Pay Cuts v. Layoffs - What Some Are Doing

CFO.com has the story on what it calls The Kindest Cut of All, although no doubt it still hurts.

Can You Put A Price Tag on Failed Romance? What About $1.3 Million?

At least that is what the Village of Bloomingdale, Illinois has been told. See the report in the Daily Herald: Suburban Chicago's Information Source. A former city secretary who had a romantic relationship with her boss, evidently decided that it ended at a different time than he did. He got a promotion, she got a lawyer. The end result after a 3 day trial, is a jury award of $1.3 million dollars on her sexual harassment claim. Something every manager who thinks he or she can date a subordinate without inviting trouble should think about.

70 to 80% of Jurors Significantly Distrust Big Corporations - Ouch!

Amidst a long law.com article on tobacco litigation in 2002, is tucked this quote:

I think 2002 is the beginning of a pendulum swing back toward jurors favoring plaintiffs in these cases, says Art Patterson, senior vice president at Bowne DecisionQuest, the jury consultants. "There was a period where it was swinging more toward individual responsibility," but Enron and the other corporate scandals have influenced juror attitudes, says Patterson, whose firm consults for tobacco companies. "While in the past a majority of jurors held attitudes of distrust of big corporations," he says, "we are now finding 70 percent and 80 percent of jurors endorsing attitudes of significant distrust."

Employers and their counsel facing a jury panel in the near future, take heed.