Clark v. Sarpy Cnty., 8:17CV405
| Decision Date | 10 April 2020 |
| Docket Number | 8:17CV405 |
| Parties | Onsri CLARK, Plaintiff, v. SARPY COUNTY, Defendant. |
| Court | U.S. District Court — District of Nebraska |
Jonathan V. Rehm, Rehm, Bennett Law Firm, Lincoln, NE, for Plaintiff.
Erin Ebeler Rolf, Woods, Aitken Law Firm, Lincoln, NE, Pamela J. Bourne, Patrick T. Vint, Woods, Aitken Law Firm, Omaha, NE, for Defendant.
This matter is before the Court on the defendant's motion for summary judgment pursuant to Fed. R. Civ. P. 56. Defendant's Motion for Summary Judgment, Filing No. 47. Plaintiff, Onsri Clark, brought this action alleging employment discrimination and retaliation under the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq ("ADA").
"Summary judgment is appropriate ‘if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.’ " Foster v. BNSF Ry. Co. , 866 F.3d 962, 966 (8th Cir. 2017) (quoting Fed. R. Civ. P. 56(a) ). "Summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed ‘to secure the just, speedy, and inexpensive determination of every action.’ " Celotex Corp. v. Catrett , 477 U.S. 317, 327, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (quoting Fed. R. Civ. P. 1 ).
"The movant bears the initial responsibility of informing the district court of the basis for its motion, ‘and must identify those portions of the record] ... which it believes demonstrate the absence of a genuine issue of material fact.’ " Torgerson v. City of Rochester , 643 F.3d 1031, 1042, (8th Cir. 2011) (en banc) (quoting Celotex , 477 U.S. at 323, 106 S.Ct. 2548 ). If the movant meets the initial burden, "the nonmovant must respond by submitting evidentiary materials that set out ‘specific facts showing that there is a genuine issue for trial.’ " Torgerson , 643 F.3d at 1042 (quoting Celotex , 477 U.S. at 324, 106 S.Ct. 2548 ). "The nonmovant ‘must do more than simply show that there is some metaphysical doubt as to the material facts,’ and must come forward with ‘specific facts showing that there is a genuine issue for trial.’ " Torgerson , 643 F.3d at 1042 (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) ). "The mere existence of a scintilla of evidence in support of the [nonmovant's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [nonmovant]." Barber v. C1 Truck Driver Training, LLC , 656 F.3d 782, 791-92 (8th Cir. 2011) ).
Plaintiff is a former employee of defendant Sarpy County (hereinafter Sarpy County). Sarpy County employed plaintiff at all times material herein. Plaintiff's duties included the collection, processing, and storage of evidence for law enforcement activities. At times, this involved handling hazardous materials.
On June 2, 2015, plaintiff was called to a crime scene to assist with the collection of specimens from a marijuana and mushroom grow operation. Plaintiff contends this was the first time she had been asked to participate in collection from a mushroom grow operation and had not received any training on collection of this type of evidence. When plaintiff asked for a mask, she was told there were none available on the scene. An investigator expressed concerns that the materials being collected could make plaintiff sick, and that an investigator from another law enforcement office had become ill after working on-site at a previous mushroom grow operation. Plaintiff collected multiple large containers of suspected psychedelic mushroom spores and mold.
On June 3, 2015, plaintiff assisted chemists with the collection of samples from the evidence obtained the night before. Plaintiff stated the chemists were not initially concerned with potential health hazards, as evidenced by only one individual putting on a mask while collecting specimens from the mushrooms. A green and white colored mold was uncovered during this time. One of the chemists contacted plaintiff a few hours after leaving the site and told plaintiff not to go near the containers or submit them for testing because the chemist had determined the mold or fungus was contaminated. On June 4, 2015, plaintiff was asked to prepare the evidence for two separate media viewings. Plaintiff wore gloves and a mask during these encounters with the evidence.
Plaintiff began to notice changes in her health, including headaches, muscle pain, and respiratory issues. Plaintiff first saw a physician related to her health concerns on June 8, 2015. Dr. Brett Kettelhut diagnosed plaintiff with acute exposure to mold/fungi and recommended protective gear to prevent further allergen exposure. On June 9, 2015, plaintiff was treated for muscle pain in the emergency room. The next day, plaintiff emailed her supervisor and stated she had been to the emergency room, was not doing well, and would not be in to work that day. Sarpy County officially granted plaintiff's leave as Family and Medical Leave Act ("FMLA") on July 16, 2015. Sarpy County indicated plaintiff's return would be dependent on verification of restrictions preventing her from returning to work, or a designation that she was fit to return to duty.
On July 8, 2015, Sarpy County employed an environmental company to test for and remove any mold found in the plaintiff's various work locations. Those locations included her main office space, a connected evidence room, and off-site evidence garages. Plaintiff began to see a second physician, Dr. Patrick Meyers, on July 13, 2015. Dr. Meyers submitted a report to Sarpy County and recommended all work environments needed to be clear of mold, spores, and mushrooms, and that plaintiff should be restricted from working in environments with those allergens for a time period of at least one month to a potentially indefinite amount of time. On July 15, 2015, Sarpy County received notice from Dr. Kettelhut that plaintiff could immediately return to work in the jail's main medical office. Dr. Meyers also submitted a physical capacity report on July 24, 2019, which stated plaintiff could return to work if the environment was free of mold spores and mushrooms for a period of one month or more. Sarpy County informed plaintiff on July 30, 2015 that the contradictory information from plaintiff's physicians prevented a decision on whether plaintiff could return to work. Sarpy County asked plaintiff to submit documentation from her physicians on an acceptable range of fungi and whether plaintiff would be fit to return to work under those conditions.
Sarpy County notified plaintiff on August 21, 2015 that it had received suggested mold count recommendations from Dr. Meyers and Dr. Kettelhut. Dr. Meyers's August 20, 2015 report stated plaintiff's return would require a mold count of less than 250/m3. Dr. Kettelhut's August 17, 2015 report indicated plaintiff could return to work if the total mold count of Alternaria and Cladosporium was 500 or less. Sarpy County determined they could not guarantee either mold spore levels would be met in any of the evidence technician work locations. Plaintiff was reassigned to jail reception on August 24, 2015 while waiting for accommodation recommendations from Dr. Kettelhut and Dr. Meyers. Sarpy County specifically requested plaintiff's physicians provide information as to whether plaintiff would be able to perform the essential functions of her role with accommodations, and if so, what accommodations would be required and for how long.
Dr. Kettelhut's initial request for accommodation form, dated August 25, 2015, only stated plaintiff could work in an environment where the mold count was less than 501. On September 4, 2015, Dr. Meyers completed a Request for Accommodation form stating plaintiff could work in an environment with a mold count lower than 500, but would need an N-95 mask, gloves, and safety goggles if working in an environment with a mold count over 500. Sarpy County notified plaintiff on September 11, 2015 that they would be unable to provide a reasonable accommodation because they could not guarantee mold spore counts in any of plaintiff's work environments.
On September 21, 2015 Dr. Kettelhut added his belief that plaintiff would be able to tolerate mold exposure with an N5 mask with a P100 filter, safety goggles, gloves, and disposable overalls. Sarpy County followed up with Dr. Kettelhut for clarification on the levels of mold that would require the accommodations recommended. On October 20, 2015, Dr. Kettelhut stated the questions asked were beyond his ability answer, and recommended Sarpy County refer their questions to an industrial hygienist or an occupational medicine specialist.
Sarpy County contracted with B2 Environmental, an industrial hygienist, in order to determine what potential accommodations would be necessary. B2 Environmental submitted their recommendations to Sarpy County on November 11, 2015. The two individuals responsible for authoring the report held certifications for Industrial Hygiene, Hazardous Materials, and Indoor Environmental Consulting. The report documented a discussion between the Hygienists and Sarpy County managers. The report detailed the personal protective equipment ("PPE") recommended by plaintiff's physician, Dr. Kettelhut, but not the less inclusive PPE recommended by plaintiff's physician, Dr. Meyers. Without outlining its environmental test results B2 Environmental indicated the level of mold spores in a given environment would fluctuate at any given time and there would be no way for Sarpy County to guarantee plaintiff's workspaces would be below the threshold required by her treating physicians. As a result of this uncertainty, B2...
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