PITTSBURGH – A Western Pennsylvania man who was awarded $15,000 by a Pittsburgh jury after he sued his former employer, a fireworks company, for allegedly failing to accommodate his condition of claustrophobia, has now been awarded more than $258,000 in attorney’s fees and costs.
Robert J. Turco of New Castle first filed suit in the U.S. District Court for the Western District of Pennsylvania on Feb. 15, 2019 versus Zambelli Fireworks, of Warrendale.
Turco sued Zambelli Fireworks for allegedly failing to accommodate his claustrophobia and for allegedly firing him because of his disability. Turco also claimed his firing was retaliation “for his reasonable accommodation” request and for his disability discrimination complaint, both of which are violations of the Americans with Disabilities Act of 1990.
Turco was seeking lost wages, compensatory and punitive damages, legal costs and attorneys’ fees.
The case was assigned to U.S. District Court for the Western District of Pennsylvania Judge Joy Flowers Conti on Feb. 21, 2019. One week later, notice was filed that the civil action had been placed in U.S. District Court’s Alternative Dispute Resolution program.
Claustrophobia is listed as an anxiety disorder under the ADA as amended in 2008. Under the prior ADA, anxiety disorders were treated as temporary ailments, which then meant claustrophobia wasn’t an ADA disability.
Litigation followed after claustrophobia received the heightened ADA designation.
In 2011, Clark County Nevada Commissioners agreed to pay $150,000 to settle the lawsuit of a former data technician. The technician had been fired for alleged poor job performance after she complained working in a cubicle cause her severe anxiety and triggered claustrophobia.
In August 2016, Regis Corp., owner of SmartStyle hair salons, paid $60,000 in damages and back pay to former stylist to settle a federal disability discrimination suit after the company allegedly failed to accommodate a stylist’s claustrophobia but, instead, fired her.
In 2017, Pittsburgh law firm Marshall Dennehey Warner Coleman & Goggin, following arbitration, settled a lawsuit filed by a former associate who claimed the firm failed to accommodate her claustrophobia.
Turco began working for Zambelli Fireworks in March 1984 and “was a dedicated and exemplary employee who received several promotions, ending with the title of senior project manager,” his lawsuit said.
Turco never mentioned his claustrophobia until the fireworks company announced in October 2017 that it would move its headquarters from South Mercer Street in New Castle in Lawrence County to the Thornhill Industrial Park in Cranberry Township, Butler County. The company’s fireworks plant near Garner Road in Edinburg remained.
Early in the move, Turco observed the new building had a limited number of windows and he became “deeply concerned” that his new office, unlike his office at the time, would not have a window, the lawsuit said.
“Turco’s claustrophobia substantially limits his ability to think and breathe, among other negative impacts on his major life activities,” the lawsuit said.
The same month the move was announced, Turco informed Zambelli Fireworks President Tom Bametzrieder that he suffers from claustrophobia, according to the lawsuit. After initially saying a window could be provided, Bametzrieder informed Turco the following December “that he was probably not going to get a window,” he lawsuit said.
The following day Bametzrieder informed Turco that about half of his accounts had been reassigned to other clients because “he was not sure if he could count on Turco and if Turco could continue with the company,” the lawsuit said.
The following month, Bametzrieder allegedly gave Turco a poor performance review, which included the note “unfavorable reaction to office relocation” and asked Turco when he intended to quit.
After the move, Turco reported great difficulty working in his new windowless office. Verbal altercations with Bametzrieder and the company’s Human Resources director allegedly followed and he was subsequently fired.
The company had claimed that it terminated Turco’s employment for “legitimate, non-discriminatory reasons having nothing to do with any alleged disability or his allegedly having engaged in protected activity.”
“Turco is not a ‘disabled person’ within the meaning of the Americans with Disabilities Act. Turco was not otherwise qualified to perform the essential functions of his job at Zambelli, with or without reasonable accommodations. Turco’s demand that he be provided an office with a window at Zambelli’s new facilities was not a reasonable requested accommodation. Zambelli engaged in the interactive process with Turco, including but not limited to attempting to assist Turco in finding a reasonable accommodation, in good faith. Zambelli offered Turco reasonable, alternate accommodations, but he rejected each of them,” the company’s answer stated, in part.
“Turco did not suffer an adverse employment decision as a result of any discrimination by Zambelli. Turco did not engage in protected employee activity. Zambelli did not retaliate against Turco in any regard, including but not limited to on the basis of his alleged disability or his allegedly having engaged in protected activity. Turco’s claims are barred, in whole or in part, because he has not suffered any damages caused by or attributable to the conduct of Zambelli. To the extent that Turco is able to demonstrate any damages, which is expressly denied, some or all of his damages are barred, in whole or in part, because of his failure to mitigate his damages.”
At trial, Turco prevailed and won a jury verdict of $15,000 on Oct. 1. Though a jury felt that the company failed to reasonably accommodate Turco’s claustrophobia, it also ruled that the plaintiff did not prove his disability was a determinative factor in his termination and did not retaliate against his request for a reasonable accommodation by terminating him.
Plaintiff counsel filed a brief on Turco’s behalf on Oct. 29, requesting an additional award of more than $283,000 in attorney’s costs and fees. Plaintiff counsel provided their hourly rates and affidavits which attested to the accuracy thereof.
“Given that Mr. Turco did not prevail on his claims regarding his termination by defendant, his counsel have reduced their invoices in three significant respects: (1) They have removed charges for any work associated solely with the termination-based claims; (2) They have removed charges for work that did not meaningfully contribute to the success of this case, such as administrative tasks for all attorneys, and duplicative tasks involving associate attorneys earlier in the case; and (3) After removing the foregoing two categories, they further have applied an across-the-board reduction of 25 percent to all remaining trial and pre-trial work performed in the case. This results in a total reduction of approximately 29 percent,” according to the brief.
“Plaintiff respectfully requests that this Court award in favor of plaintiff and against defendant in the amount of $270,887.05 in attorneys’ fees, and $12,461.05 in costs and expenses (for a total of $283,348.10).”
On Nov. 22, Zambelli requested that the Court “significantly reduce the award of attorneys’ fees to reflect a reasonable number of non-duplicative hours expended on litigating a case of this nature, and to further reduce the attorneys’ fees in light of the limited success achieved by the plaintiff at trial,” – to the tune of an 80 percent reduction.
UPDATE
U.S. District Court for the Western District of Pennsylvania Judge Christy Criswell Wiegand ruled on Feb. 9 that Turco would not receive the requested pre-judgment interest, but would receive automatic post-judgment interest, attorneys’ fees, costs and expenses totaling $258,799.98.
“Here, the jury found in Turco’s favor on his failure to accommodate claim, and awarded him compensatory damages. On the other hand, the jury concluded that Zambelli did not retaliate against Turco for requesting an accommodation or discriminate against him on the basis of disability when it terminated his employment. As such, Turco was awarded only non-economic damages. Other courts in this Circuit have declined to award pre-judgment interest, or make an adjustment for negative tax consequences, in similar cases,” Wiegand said.
“Accordingly, because Mr. Turco did not suffer any lost wages as a result of Zambelli’s actions – and, therefore, ‘the ‘make whole’ remedial purpose’ of the ADA would not be served by either an award of pre-judgment interest or an adjustment for negative tax consequences – Turco’s motion will be denied to the extent he seeks pre-judgment interest.”
Wiegand found that “in general, it appears to the Court that Turco’s counsel did not bill for time that was excessive, duplicative or unreasonable.”
“The Court finds that, in light of Turco’s limited success, but in consideration of the ‘common core’ of facts connecting his successful and unsuccessful claims, a reduction of 30 percent from the lodestar, as proposed by Turco, is warranted in this case. (The District Court did not abuse discretion by reducing lodestar by 25 percent where plaintiff succeeded on only two of ten claims). As such, the Court will award attorney’s fees as follows,” Wiegand said.
“The Court will award Mr. Turco $207,691.05 for Minto Law Group, LLC and $38,647.88 for Elzer Law Firm, LLC. Additionally, and because Zambelli does not challenge the expenses and costs sought by Turco, the Court will award $12,461.05 for Minto Law Group, LLC for litigation expenses and costs.”
The costs totaled $258,799.98.
The plaintiff was represented by David B. Spear of Minto Law Group and Christine T. Elzer of Elzer Law Firm, both in Pittsburgh.
The defendant was represented by Alison R. Viola and Manning J. O’Connor II of Metz Lewis Brodman Must O’Keefe, also in Pittsburgh.
U.S. District Court for the Western District of Pennsylvania case 2:19-cv-00174
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com