IBM Sued for Firing Alleged Internet Addict

globring sent us a link to a CNN article covering a trial with a unique defense. James Pacenza, a 58 year old Alabama man, has been fired from his position at IBM for visiting adult sites during working hours. The man is now suing the company for $5 Million, alleging that he is an internet addict. The plaintiff claims he visits these sites as a way of dealing with traumatic stress incurred in the Vietnam War. He claims that while he is addicted to sex and the internet, he never visited adult sites at work. Age-related issues, he says, are the cause of his filing. IBM, on its part, says that Pacenza was warned during a similar incident several months ago. Pacenza denies this as well.

Pulease

[Oligonicella]

He says he's "an Internet addict who deserves treatment and sympathy rather than dismissal".

Sounds like he indeed visited during work hours or he wouldn't have had a reason at all to say this. It's IBM's system and rules. Tuff if you can't keep your hands (mental or physical) out of your pants at the job.

Re:Someone's lying here...

[Phu5ion]

Well, the servers definitely don't lie... unless he was in a position where he had access to the logs.

Re:Someone's lying here...

[karinneandressa]

I find that Internet in the work must only serve for work, if the person has access something that does not have, puts its job in question. http://blog.fenon.com.br/ [fenon.com.br]

Internet Addict?

[nate nice]

Sounds like he's a sex addict! Just because he's using the Internet to fuel his obvious sex addiction doesn't make him an Internet addict. It's like saying someone who uses magazines to get their porn is a magazine addict.

You're not addicted to the medium, you're addicted to the content.

Is addiction a valid safety-net anyhow?

[phorm]

I think that there seems to be confusion between addiction and disability. While you might not fire somebody for a recognised disability (and some addictions tend to fall along those categories), I've never heard of having to hold on to somebody because they're addicted.

If that were the case, it would mean that when Bobby and Johnny get caused smoking pot in the back during work hours, or when Sally gets caught with a needle in her veins in the washroom, they could claim that the company could not fire them because they were addicts. I think not.

What about visiting Bible sites or /.?

[EmbeddedJanitor]

Why should compamies feel that they should be the moral guardians of their employees?

Surely the test should be whether you use company resources for personal reasons. So long as the usage is actuually legal, surely it should not matter what sites you visit. Bible quote website, /., dilbert, tits & ass... what gives any company the right to discriminate?

Bullshit

[jjohnson]

This sounds like a bullshit complaint that's about a bitter loser denying reality. Remember, anyone can file a complaint; whether it goes anywhere is what matters, and I doubt this one will. Big companies like IBM have checklists for firing people, and if they're saying they warned him months ago, they've almost certainly got it in writing. They've probably also got logs showing his workstation accessing porn. And as for Internet Addiction, even established addictions don't prevent you from getting fired--being addicted to heroin, for example, won't save your job just because you're legitimately, medically addicted to something everyone agrees is uncontrollable.

Might have a Case with the punishment differential

[dave1g]

Pacenza: Couple who had sex on desk merely transferred

He argues that other workers with worse offenses were disciplined less severely -- including a couple who had sex on a desk and were transferred.

Fred McNeese, a spokesman for Armonk-based IBM, would not comment.

Pacenza claims the company decided on dismissal only after improperly viewing his medical records, including psychiatric treatment, following the incident.

"In IBM management's eyes, plaintiff has an undesirable and self-professed record of psychological disability related to his Vietnam War combat experience," his papers claim.

Diederich says IBM workers who have drug or alcohol problems are placed in programs to help them, and Pacenza should have been offered the same. Instead, he says, Pacenza was told there were no programs for sex addiction or other psychological illnesses. He said Pacenza was also denied an appeal.

Diederich, who said he spent a year in Iraq as an Army lawyer, also argued that "A military combat veteran, if anyone, should be afforded a second chance, the benefit of doubt and afforded reasonable accommodation for combat-related disability."

Re:What about visiting Bible sites or /.?

[Martin Blank]

Allowing employees to visit adult sites may create a hostile work environment and sets you up for a lawsuit from other employees who might see it and be offended. You may be able to get away with it when it's you and a couple of buddies starting up, but when your profits are in the billions, you're a giant stack of cash waiting for the first person to claim sexual harassment.

Re:Fails the straight face test

[StarvingSE]

Companies fire people all the time for addiction. Why else would they make you take drug tests pre-employment and sometimes during employment? If you are addicted to drugs and show up to work high, you're gonna get fired. Why should it be different if you're addicted to porn and look at it at work, on the company's computer?

Looks simple enough

[rueger]

His lawyer ... says Pacenza never visited pornographic sites at work, violated no written IBM rule ...

International Business Machines Corp. ... (says) ... its policy against surfing sexual Web sites is clear. It also claims Pacenza was told he could lose his job after an incident four months earlier, which Pacenza denies.

Seems pretty obvious. If IBM can produce those written policies, and has kept a written record of the previous warnings, Pacenza doesn't have a leg to stand on.

References to his past history in the military don't really seem all that relevant. Yes, many vets of Viet Name and other action carry the scars with them but that does not give them a right to totally ignore their employer's direction.

Re:My Rights Online?

[shmlco]

Usually when you focus on some self-gratifiying behavior to the detriment of everything else (job, spouse, family, friends, etc.) they'll slap the "addiction" label on it. Such destructive behaviors can be sex, gambling, video games, and yes, the internet.

Re:Someone's lying here...

[skoaldipper]

Like you inferred, I believe it mainly is age discrimination here. His lawyer even cites two people making snu-snu on a desk at IBM and they were just transferred. Also, I think you're right about them trolling his station, for the simple reason that before stomping off to a manager, common decency says you (the co-worker) turn off the monitor for him and have a talk with him personally. And, as this plaintiff cites, after 19 years of service to IBM, you would think his superiors would make every effort possible to salvage this man's reputation with a paid vacation for clinical counseling. This does smack of age discrimination. It really is in IBM's interest to settle this case. I wish the Vet well.

Re:WTF?

[nebaz]

illegal to discriminate against someone solely on the basis of a disability
IANAL, But I can't imagine it would be against the law to discriminate against someone solely on the basis of a disability if it could be proven that it is detrimental to the job performance. Chauffers must be able to see, for example.

Absurd

[JPMaximilian]

Why would you sue a company (and expect to win) when you were fired for violating a companies (reasonable) policies. The lawyer probably knows his client doesn't have a chance, but it milking this chap for legal fees.

Consistent standard needs to be applied

[Giro d'Italia]

If indeed IBM simply transferred two other workers who had actual sex on a desk (one assumes this occurred when someone could witness it, rather than in a private office late one night), it's going to be hard for them to justify firing this guy for engaging in otherwise legal activity even though it was using company resources. That's not to say this is age discrimination or some other malfeasance on the part of IBM, but the lack of consistency is troubling.

Re:Consistent standard needs to be applied

[JPMaximilian]

If indeed IBM simply transferred two other workers who had actual sex on a desk (one assumes this occurred when someone could witness it, rather than in a private office late one night), it's going to be hard for them to justify firing this guy for engaging in otherwise legal activity even though it was using company resources. That's not to say this is age discrimination or some other malfeasance on the part of IBM, but the lack of consistency is troubling.

Even if it was a private office, that sort of conduct on company property is inappropriate. Context is very important in these situations. The fact that looking at porn is "legal" is very dependent on context. Going an taking a shower at my house is legal, doing so without permission at someone else residence is not.

Re:What about visiting Bible sites or /.?

[nwbvt]

"what gives any company the right to discriminate?"

The federal government gives them the obligation to discriminate. If the manager hadn't taken action, the employee who had caught him could have sued for sexual harassment, arguing that the sexual content on the computer made for a hostile work environment.

Cry me a river...

[mark-t]

Why the hell can't people just assume responsibility for their actions?

And before anybody accuses me of being insensitive here, I have a psychological disability myself But I recognize that it's *MY* problem, not other people's, and that it's up to me to make choices at work that do not put me in situations where my disability would reflect anything less than the most professional behaviour of which I am otherwise capable.

Re:Someone's lying here...

[penguinbrat]

The argument with the couple snu-snu'ing isn't a good one since you are stopping the 'issue' by separating them, on this guy you can't solve the issue so easily because he is getting his snu-snu from the same tools he is expected to use for work. Although, at 19 years of employment and months away from retirement (don't you retire at 20yrs?) I do agree with the notion that the manager should have been more proactive, at least making it VERY clear what the out come will be if he doesn't snu-snu at his own home.

Re:Someone's lying here...

[adisakp]

Even if he never visited adult sites at work, if it affected his ability to work, he should be terminated. If you have an alcoholic who is so affected by his drinking that he becomes unproductive, you should fire them. If they come in with a hangover every day and have zero productivity, that's wrong even if they've never had a drink at work.

What sort of pension arrangement is at IBM

[vakuona]

I work in the insurance industry and while I am not in the USA, I can't see how someone can lose their pension. He might lose his next six months income, and that may have a minor impact on his pension, but he can surely retire early or something. In any case, if he wants to retire, then IBM has nothing to gain (or should not be able to gain) from his being fired. The law should normally prevent that.

I think IBM should just allow him to retire early, and save themselves 6 months wages at the same time, or just give the guy his 6 months salary, damn, he has been working there for like only 19 years. It is not worth it to fight this guy.

Re:Someone's lying here...

[Lord Kano]

The CNN article states that this wasn't his first warning: ""Plaintiff was discharged by IBM because he visited an Internet chat room for a sexual experience during work after he had been previously warned," the company said."

Perhaps they considered a meeting from 8 years ago about the zero-tolerance policy to be a previous warning.

LK

Re:Looks simple enough

[rueger]

Exactly. I don't think an event 37 years ago, traumatic though it may have been, is a reasonable excuse for not following the rules. Imagine, if you will, that his chosen method of coping with PTSD was drinking two pints of cheap gin a day. If, after showing up to work drunk and being warned this was not OK, he continued to do so, would not IBM be justified in canning him then?

Just to be clear, I do have friends who suffer from PTSD and even 40 years later (they were in Viet Nam early on) it has a daily impact on their lives.

I'm sure that if the guy could demonstrate a legitimate medical issue IBM would have had the resources to find a way to deal with it.

I would never discount the problems associated with PTSD, or the years and decades that they remain a problem, but I think that this guy is less than a good example.

The twinkie defense [wikipedia.org] would have been a better choice...

Re:Someone's lying here...

[v1]

While it's quite possible his age had something to do with this, it's also very likely he is guilty as charged. It would be a sensible thing for an employer to put a close eye on someone approaching retirement with pension, in the hopes that they screw up enough to justify termination, this saves the company money. This is not necessarily a bad thing, and sorry but PTSD does not justify surfing porn at work any more than forgiving turrets at mcdonalds. Crackheads are not allowed to smoke up at work just because they are crackheads. If you have a behavioral disorder you need to keep it in check while you're at work, or you need to find a different job that is known to be tolerant of your behavioral problems. I suppose another parallel we could draw is someone spending an hour a day at work on an online casino, and claiming its OK because they are a gambling addict.

Bottom line, if you are 6 mos from retiring with pension you should know to be on your best behavior. If you walk out the door with a company stapler, i don't care if you are a recovering klepto, out you go. (I consider deliberately wasting company time to be theft)

I hope this fellow loses his case and gets to pay IBM's attorneys.

Re:WTF?

[Lehk228]

so is alcoholism but if i go to work drunk i would be fired.
you can't be fired for being addicted to porno

you can be fired for looking at porno on the job

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Re:Someone's lying here...

[Manchot]

This is not necessarily a bad thing

How can that not be a bad thing? If a company is more critical of an employee months away from retirement, that is by definition age discrimination. Sorry, but saving a few bucks is not justification for prejudice in the workplace.

Re:Someone's lying here...

[digitig]

It's not necessarily a matter of the server logs. It's whether a formal record was kept of the warning.

Re:What about visiting Bible sites or /.?

[Tim C]

By your logic, the company could also legitimately discriminate on the basis of politics, colour or religion. After all, it's their computer, right?

No, because there are laws against discriminating against people on those bases. There is no law preventing you from discriminating against someone based on whether or not they visit porn sites, however, especially if they do it with your resources.

But if they start applying these unevenly, allowing employees to waste time all day on personal e-mails, irrelevant websites and tabloid newspapers, and then only jump on the employee visiting a site or reading a paper they don't like, then that's illegitimate control.

Not if they're up front about it. If they're going to be "uneven" about things, then as long as they declare an exhaustive list of categories of activity that will get you fired, I don't see how you can have a problem with it. If the computer use policy says "no porn" but doesn't say "no personal emails" (and I'd be amazed if it doesn't say something about it, possibly allowing "reasonable use" or similar) then personal email are fine and porn isn't and that's that. There's no guessing, there's no unfairness - everyone knows where they stand. It's not uneven when the rules apply equally to everyone.

Re:The flip side to that argument.

[jrockway]

Porn is probably more offensive than religion because someone from a distance can easily discern porn on your screen. It's mostly visual, after all. A religious website is just text, like your spreadsheets, emacs buffers, etc. It looks like work. People fucking on your screen is clearly not work.

Also, people are conditioned to think that "sex is bad OMG something must be done", so that's playing against you too.

I think it's generally understood that looking at porn at work is going to get you in trouble. If you don't understand why, it's probably good that you got fired.

Glad they fired him

[Sloppy]

Firing addicts when they screw up their jobs due to their addiction, is good thing, not a bad thing. Make their self-medication have consequences. Make them hit bottom and want to recover.

Re:What about visiting Bible sites or /.?

[ChameleonDave]

No, because there are laws against discriminating against people on those bases.

That is no argument at all. It's as though I said people shouldn't skin creatures alive in China [youtube.com] and you said it was OK because it's not illegal over there.

If the computer use policy says "no porn" but doesn't say "no personal emails" (and I'd be amazed if it doesn't say something about it, possibly allowing "reasonable use" or similar) then personal email are fine and porn isn't and that's that.

[Makes stiff-arm salute] Yes, sir! We must obey all company rules, sir!

As already explained, that line of reasoning also justifies firing people on ideological grounds. Furthermore, it permits the sort of abuse that I described as happening at Coca-Cola.

-------

If a worker was wasting my time and money by spending paid company time stirring shit about his politic instead of actually doing his job, I'd fire him for that too.

[Whoosh!] the entire discussion went over your head there, didn't it? Just for you, I'll repeat that it is fine to demand that a worker work. It is also fine to punish the misuse of a computer as a tool to sexually harass colleagues. But if you are going to allow a little freedom to surf the net, read e-mails and suchlike, you have no moral right to fire them for discreetly looking at something you disagree with, be it political, religious, personal, sexual, or anything else.

Re:Someone's lying here...

[Brickwall]

If you have an alcoholic who is so affected by his drinking that he becomes unproductive, you should fire them.

Right. And if someone has cancer, and is exhausted and nauseous after receiving their chemotherapy, you should fire him too?

Most medical professionals consider alcoholism a disease. I would expect a firm to assist the employee with treatment and support for some period of time. If the employee continues to abuse drink, it's not that difficult to set up a testing program. Long term drinkers can appear normal with very high levels of alcohol in their blood. Sooner or later, he'll arrive at work with enough alcohol in him to fail a test, and then you have a legal right to terminate him. But at least you've given him a chance to clean up.

These are things I've learned as the son of an alcoholic.