Swiech v. Gottlieb Memorial Hospital

Age Discrimination Case

Eugene K. Hollander and Betsey Madden, both of The Law Offices of Eugene K. Hollander, obtained a $1.45 million jury verdict in the United States District Court for the Northern District of Illinois, before the Honorable Joan Gottschall, Swiech v. Gottlieb Memorial Hospital, 98 C 5749. Trial was had from February 20 – February 26, 2001.

Plaintiff Shirley Sweich filed suit under the Age Discrimination and Employment Act, (“ADEA”), and the Americans with Disabilities Act, (“ADA”), alleging that her former employer discriminated against her on the basis of age and disability, causing her to become constructively discharged on October 2, 1996.

Plaintiff was originally hired by Gottlieb in February, 1974. In 1989, she was promoted to the position of payroll supervisor. In 1990, Swiech, then age 45, got a new supervisor, Ellen Chin, then age 26. Plaintiff claimed that after Chin began supervising her, Chin began associating with the younger female employees in the department, and going out to lunch with them and excluding her. Plaintiff also claimed that Chin undermined her authority – when she wanted to write a subordinate up, she was told by Chin that “if you write her up, I will write you up.” Swiech complained to a manager in Human Resources, who in turn, told Chin. Chin subsequently reprimanded Swiech never to go above her head again.

In 1993, Swiech began to see a psychiatrist for depression. In 1993 or 1994, she was diagnosed with lupus.

In early, 1994, Swiech requested an accommodation for her carpal tunnel syndrome, some ergonomic equipment. Chin denied the request. Later that year, due to fatigue from her depression and lupus, Swiech told Chin that she was fatigued, and requested a modification of her work hours. Chin responded, “Yeah, right.”

On January 1, 1995, Swiech was demoted to a payroll clerk position, and had her salary frozen. Chin conceded at trial that Swiech’s salary could have remained frozen for the rest of her natural working life. Her friend in the department, Sherri Kosch-Carbone was promoted above her. Kosch-Carbone repeatedly told Swiech that she should retire, and that Chin was looking to eliminate personnel from the department.

In 1995 and 1996, Swiech did not receive a performance appraisal, in contravention of Gottlieb policy, pursuant to the employee handbook. Swiech had previously received 20 years of excellent written performance reviews. Chin, who was responsible for the reviews from 1990 forward, testified that the failure to review Swiech in 1995 was “an error in judgment,” and that in 1996, it was an oversight. All other employees in the department received reviews, got raises, and were praised.

On October 2, 1996, Swiech was called into a meeting by Chin, and were later joined by Kosch-Carbone, and Brett Wakefield, Vice-President of Human Resources. By all accounts, it was a tense atmosphere. Swiech was accused of making illegal changes to her retirement account, and of subpar performance. Swiech testified that she had received previous clearance from Human Resources to make changes in her retirement plan, and also cleared it with her own CPA. Swiech also requested documentation regarding her alleged subpar performance, and her supervisors could give her none. Swiech requested to have an attorney present, and Wakefield denied the request. Chin apologized to Swiech that there was no documentation and promised to do so in the future. Swiech left the meeting to see her psychiatrist. She did not return to work afterwards. It was stipulated by the parties that as of October 2, 1996, Swiech was unable to work.

On October 22, 1996, Plaintiff returned to Gottlieb to complete various leave papers. Wakefield presented her with a highly accusatory memo, despite Chin’s earlier apology, again alleging that she illegally changed her retirement plan, and stating that there were problems with her performance during the past two years.

At trial, Plaintiff had her treating psychiatrist, Dr. Shoba Sinha, and rheumatologist, Dr. Lynn Meisles, testify on her behalf. Dr. Sinha testified as the permanency of her depression. Evidence showed that Dr. Meisles, a physician with admitting privileges at Gottlieb, dropped the Plaintiff as a patient 30 days before trial, though Swiech had been seeing her for the past 9 years. Both doctors testified that the hostile work environment may or could have exacerbated the depression and lupus, thereby causing her to become disabled. The defense retained Dr. Alan Hirsch, a neurologist and psychiatrist to refute causation, but declined to have him testify at trial.

At trial, the defense contended that the Plaintiff was the cause of intra-departmental friction. Gottlieb, however, could not provide any documentation to substantiate the claim. Gottlieb also flew in Kosch-Carbone, a former employee from Arizona, to testify. While Kosch-Carbone testified that she, too, left Gottlieb in October, 1996, because she “could no longer work with Shirley,” her testimony established that she recently remarried, and that she and her third husband moved to Arizona in 1996. Kosch-Carbone testified that she had not worked since October, 1996, and had only looked for 5 or 6 jobs in the last 4 ½ years. Plaintiff testified that shortly before Kosch-Carbone left, she had her bags packed and confided in the Plaintiff that “she had found a rich old man and would never have to work again.”

The jury found against the Plaintiff on her ADEA claim, but found in her favor as follows on her ADA claims: hostile work environment: $600,000 compensatory damages, $250,000 punitive damages; unlawful failure to reasonably accommodate: $200,000 compensatory damages, $250,000 punitive damages; unlawful constructive discharge based upon a disability: $75,000 compensatory damages, $75,000 punitive damages. The issues of back pay, front pay, and attorney’s fees are reserved for ruling by the Court. The defense has indicated that it will file a post-trial motion.

According to the Cook County Jury Verdict Reporter, the jury’s verdict for compensatory damages was the highest for an ADA case in the Northern District of Illinois, and the third overall highest verdict for an ADA case in Chicago.

The defense was represented by David Ritter and Marlene Igel of Altheimer & Gray in Chicago.