By JIM FITZGERALD, Associated Press Writer
A man who was fired by IBM for visiting an adult chat room at work is
suing the company for $5 million, claiming he is an Internet addict
who deserves treatment and sympathy rather than dismissal.
James Pacenza, 58, of Montgomery, says he visits chat rooms to treat
traumatic stress incurred in 1969 when he saw his best friend killed
during an Army patrol in Vietnam.
In papers filed in federal court in White Plains, Pacenza said the
stress caused him to become "a sex addict, and with the development of
the Internet, an Internet addict." He claimed protection under the
American with Disabilities Act.
His lawyer, Michael Diederich, says Pacenza never visited pornographic
sites at work, violated no written IBM rule and did not surf the
Internet any more or any differently than other employees. He also
says age discrimination contributed to IBM's actions. Pacenza, 55 at
the time, had been with the company for 19 years and says he could
have retired in a year.
International Business Machines Corp. has asked Judge Stephen Robinson
for a summary judgment, saying 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.
"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.
IBM also said sexual behavior disorders are specifically excluded from
the ADA and denied any age discrimination.
Court papers arguing the motion for summary judgment will be exchanged
next month.
If it goes to trial, the case could affect how employers regulate
Internet use that is not work-related, or how Internet overuse is
categorized medically. Stanford University issued a nationwide study
last year that found that up to 14 percent of computer users reported
neglecting work, school, families, food and sleep to use the Internet.
The study's director, Dr. Elias Aboujaoude, said then that he was most
concerned about the numbers of people who hid their nonessential
Internet use or used the Internet to escape a negative mood, much in
the same way that alcoholics might.
Until he was fired, Pacenza was making $65,000 a year operating a
machine at a plant in East Fishkill that makes computer chips.
Several times during the day, machine operators are idle for five to
10 minutes as the tool measures the thickness of silicon wafers.
It was during such down time on May 28, 2003, that Pacenza logged onto
a chat room from a computer at his work station.
Diederich says Pacenza had returned that day from visiting the Vietnam
Veterans Memorial in Washington and logged onto a site called
ChatAvenue and then to an adult chat room.
Pacenza, who has a wife and two children, said using the Internet at
work was encouraged by IBM and served as "a form of self-medication"
for post-traumatic stress disorder. He said he tried to stay away from
chat rooms at work, but that day, "I felt I needed the interactive
engagement of chat talk to divert my attention from my thoughts of
Vietnam and death."
"I was tempting myself to perhaps become involved in some titillating
conversation," he said in court papers.
Pacenza said he was called away before he got involved in any online
conversation. But he apparently did not log off, and when another
worker went to Pacenza's station, he saw some chat entries, including
a vulgar reference to a sexual act.
He reported his discovery to his boss, who fired Pacenza the next day.
Pacenza says he would have understood if IBM had disciplined him for
taking an unauthorized break, but firing him was too extreme.
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."
Copyright 2007 The Associated Press.
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Jim Fitzgerald, AP writer (ap@telecom-digest.org)