Delaware Stress Claim: The Sun'll Come Out Tomorrow--Not for this Andrea McCardle
LexisNexis Workers' Compensation Law Community
By Cassandra Roberts, Young Conaway Stargatt & Taylor
Okay, you are probably wondering about the title. Andrea McArdle, a different one, with a slightly different spelling (McArdle), was a child actress from Philadelphia (a little bit of local color) pulled from the chorus of the Broadway musical Annie, to take the lead when the headliner became ill. At the age of 14 she was the youngest actress ever to be nominated for a Tony Award for Best Leading Actress in a musical. She achieved much notoriety....but she didn't win. Sort of what we have here. And with this title, I am surely dating myself. But it works for me.....:>)
Turning to our case du jour, Andrea McCardle v. State of Delaware, IAB #1344094 (6/14/10), we have a stress claim defended masterfully by Natalie Palladino, former Hearing Officer of the Industrial Accident Board and now with the law firm of Tybout Redfearn and Pell. The claimant was represented by that soul of compassion, Don Marston of Doroshow, Pasquale, Krawitz & Bhaya, who capably gave her her day in court. The salient facts:
Claimant was a 4 feet, 11 inch tall female and her supervisor was a 6 foot tall male
Claimant was reportedly soft-spoken and her supervisor was often boisterous and loud
It was suggested that the claimant, a toll collector for the State of Delaware, was given to questioning her lane assignments; there was no indication that there was any unfairness or impropriety on how the assignments were handled by the supervisor
On the single occasion in question that gave rise to the stress claim being filed, the claimant questioned her lane assignment, was met with her supervisor bending down in her face and possibly poking her chest with a document which was the lane assignment, and making the comment: "Every night you will get one of these papers. If you don't get a paper you can come in and bust my b-lls!"
Supposedly on this evening, the comment "you're busting my b-lls" was made four times. Dr. John Dettwyler, psychologist, testified for the claimant. Dr. Neil Kaye, psychiatrist, concluded that the claimant's experience did not meet the criteria for PTSD, and further, that claimant's reaction to the event in question was "grossly out of proportion" to what one might expect from being treated harshly by a supervisor. The encounter reportedly lasted perhaps 15 minutes; the claimant was not disabled following this event, having worked for a period of time thereafter. The claimant's supervisor apologized, accepted a reprimand that included a 5-day suspension, and embraced attendance at sensitivity training classes (11 of them) so that a similar event would not occur again. There was no question that the language used by the supervisor was unacceptable; however efforts by the State immediately following this event to promote communication between the parties and redress the conduct of the supervisor were initially rebuffed by the claimant. As the Board recognized in its decision disallowing benefits:
"The evidence was that he tried to apologize been during the incident, and he later sent a letter of apology to her. Claimant as aware that he was reprimanded; yet she held onto the unrealistic belief that her supervisor was out to get her. After the initial confrontation, however, all of DiIenno's [the supervisor] efforts appear to seek resolution of the matter. Claimant acknowledged to Ms. Hettel-Minner [the assistant manager for toll operations] that DiIenno's lane assignment was appropriate, but she would not let go of the emotional trappings."
This case is worth reading, not only by attorneys but also by those in HR and risk management. A tutorial for managers and supervisors on how not to behave in the workplace for sure. A reminder, from this practitioner's vanatge point, that the Board does not like stress claims, especially when they do not involve profound and shocking circumstances. Or at least objectively quantifiable evidence that would lead one to conclude that the mental or emotional mettle of the worker would be subject to collapse no matter how the circumstances are viewed.
Certainly we should all know by now that the case involving the employee/supervisor dispute, the "my boss is out to get me", the "I have not been treated fairly", usually fails miserably at the Board. Add to that some non-workplace stressors (and this case had a few of those) and the claimant 's cause is postured for failure.
Props to the State of Delaware for its efforts in remediating the situation. It would appear that the discipline to the supervisor was handled promptly and was well-documented. Additionally, the supervisor, who testifed at the Hearing and was newly tenured with the State, appeared sincere in both his apology and his acceptance of discipline. I suspect these circumstances more than made up for his crossing the line in telling a female employee that she was "busting his b-lls." That said, lesson learned as to inappropriate office commentary.
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