Davis v. Utah State Tax Com'n

• Decision Date: 08 May 2000
• Docket Number: No. 2:98CV224K.,2:98CV224K.
• Citation: 96 F.Supp.2d 1271
• Parties: Glenda A. DAVIS, Plaintiff, v. UTAH STATE TAX COMMISSION, Defendant.
• Court: U.S. District Court — District of Utah

Page 1271

96 F.Supp.2d 1271

Glenda A. DAVIS, Plaintiff, v. UTAH STATE TAX COMMISSION, Defendant.

No. 2:98CV224K.

United States District Court, D. Utah, Central Division.

May 8, 2000.

Kathryn Collard, Law Firm of Kathryn Collard LC, Salt Lake City, UT, for Glenda A. Davis, plaintiff.

Robert C. Morton, Dunn & Dunn, Grant M. Sumsion, Utah Attorney General's Office, Litigation Unit, Salt Lake City, UT, for Utah State Tax Commission, defendant.

MEMORANDUM DECISION AND ORDER

KIMBALL, District Judge.

This matter is before the court on Defendant Utah State Tax Commission's (the "Commission") Motion for Summary Judgment. A hearing on that motion was held on April 11, 2000. At the hearing, Plaintiff Glenda A. Davis ("Davis") was represented by Kathryn Collard, and The Commission was represented by Grant M. Sumsion. Before the hearing, the court considered carefully the memoranda and other materials submitted by the parties. Since taking the matter under advisement, the court has further considered the law and facts relating to this motion. Now being fully advised, the court renders the following Memorandum Decision and Order.

I. BACKGROUND

This case involves two employment-related claims brought by Davis, a woman who allegedly suffers from multiple chemical sensitivity ("MCS"). One claim is brought under the Americans with Disabilities Act (the "ADA"), and the other claim is brought pursuant to 42 U.S.C. § 1983 ("Section 1983"), based on alleged violations of Davis' Fourteenth Amendment rights to due process and equal protection.

Davis worked for the Commission from 1986 through August of 1996. Sometime around June 1990, Davis became sensitive to strong fragrances worn by her coworkers.¹ When she smells strong fragrances (e.g., perfume, cologne, scented hand lotion), Davis experiences symptoms including headaches, nausea, mental confusion, numbness, a fast heart-rate, watery eyes, and she feels like her breath is "going away" or like her throat is closing. During the first few years, her sensitivity was not a significant problem at work because her supervisors accommodated her by asking her co-workers to not wear their perfumes or to reduce the amounts, and her co-workers cooperated. However, in 1994, her division was moved to a new building, and Davis was seated in a booth next to a woman named Lee Roberts ("Roberts"). Roberts wore very strong perfume, which bothered Davis. Davis spoke to her supervisor, Louise Hird ("Hird"), and Hird asked Roberts to stop wearing her perfume. The next day, Roberts stated in a note to Davis that she would not stop wearing her perfume. Davis gave the note to her supervisor and also spoke with Jan Herbert ("Herbert"), the Commission's ADA coordinator. Davis requested to be moved away from Roberts. Herbert told Davis that she would not move her without a note from a doctor regarding her alleged problem with fragrances.

On October 4, 1994, Davis saw Dr. Duane J. Harris, a board certified allergist. Dr. Harris subsequently provided Davis with a letter stating that Davis had complaints of chronic nasal symptoms after exposure to certain irritants at work. He stated in the letter that he had found that Davis had moderate to severe rhinitis and that "I have no doubt that she is, indeed, sensitive to a number of non-specific irritants including perfumes, hair spray, tobacco smoke, etc." In the letter, he also stated that Davis had been started on medications and that he suspected that she would be much less symptomatic after several weeks of treatment. In addition, he stated in the letter that "in the interim, if it is at all possible to limit her exposure to these previously-mentioned irritants, I am certain that it would aid in the healing process." Dr. Harris told Davis that he could not test her for specific allergies related to fragrances because the fragrances all had different chemicals in them, making it impossible to conduct allergy tests for perfumes, colognes, etc.

After receipt of Dr. Harris' letter, Hird moved Davis away from Roberts. For the next year or so, Davis did not have any significant problems. She admits that she was no longer "substantially impaired in her ability to breathe by Roberts' strong perfume and could perform the duties of her employment." On a few occasions, the perfume of temporary employees bothered her, but she was able to tolerate it by running a fan that she had brought from home.

In April 1996, Davis' unit moved to the other side of the building, and Irene Clark ("Clark") became Hird's supervisor. Hird sat Davis next to Bobbie Gavros ("Gavros") because she was a co-worker whose use of fragrances had never before bothered Davis. Soon thereafter, however, Gavros began to use a strongly scented hand lotion for her dry skin. The scent irritated Davis, and she informed Hird that she could not breathe because of the strong scent. Davis claims that she had to leave work almost every day because of her reaction to the lotion. Hird spoke with Gavros and explained that the scent of the lotion bothered Davis and asked her not to use it. However, Gavros refused to stop using the lotion. Davis claims that her fan was ineffective to prevent her from smelling the lotion. She claims that her ability to breathe was so impaired that her throat felt like it was closing, she had migraine headaches that lasted one to two days, and frequently had to leave work to go home. She claims that this constant exposure made her "sicker and sicker."

Davis spoke with Ms. Bird ("Bird"), a woman from the Commission's Human Resources department, about wanting a place where she could do her job without being sick all of the time, and asked why she could not be moved to a different area. Bird allegedly responded, "Well, I suppose that we could put you in a room with glass all around, but then everyone would laugh at you." Bird did not do anything to help. After being sick for a week or two and missing work, Davis again spoke with Hird about her headaches and difficulty breathing due to Gavros' hand lotion, despite using her fan. Davis asked to be moved, but Hird stated that she would have to speak with Clark about it.

Davis called Dr. Harris again to see if he could do anything to help her, but he stated that there was nothing more that he could do for her, and he recommended that she see Dr. Aldous, an ear, nose, and throat specialist. Davis saw Dr. Aldous, and he subsequently sent a letter to Clark stating that she "has a problem with chemical irritation from a number of sources. The one that is bothering her more in her current situation is a reaction to perfumes that causes her to have a feeling of numbness in her lips, her throat feels like she is choking, she gets hoarse, and her heart beats rapidly." In the letter, Dr. Aldous recommended that Davis be moved away from the scent, stating that "the real treatment here is avoidance, and it would be my recommendation that she be placed in a position where she won't be exposed to these particular irritants." He also stated that it was his understanding that further allergy testing could not be done. Finally, he stated that "I expect Mrs. Davis is a good worker and deserves a transfer to a place where she won't be irritated by the perfumes that are now making it difficult for her to work efficiently."

Davis spoke with Hird again, and stated that Clark should have received the letter from Dr. Aldous. Davis again requested that she be moved away from Gavros. Hird—who Davis believes tried to help until she was "shut down" by Clark—stated that she could not do anything until Clark returned from her vacation. Davis called the Commission's Human Resources department again to explain that she was very ill from breathing the perfume and wanted to know if anyone could help her. She was referred to Dennis Payne ("Payne"), the Commission's ADA coordinator. Payne explained that he would have to speak with Davis' supervisor and manager. That afternoon, Clark then allegedly scolded Davis for going to the ADA coordinator and stated that she would handle the matter herself. Clark also allegedly responded that Davis was just "hyperventilating." At that point or soon thereafter, Hird and Clark told Davis that they would not move her, and instead, they gave Davis a bigger fan to ventilate her work area. In her deposition, Davis testified that when she ran the fan on the high setting, she was able to keep the fragrances out of her work area. However in a subsequent affidavit, she states that she could still smell the perfume. In any event, she claims that she could not continuously run the fan on high because her co-workers got mad at her because of the noise. Additionally, she claims that it was difficult to use the fan because it blew her papers around and made her very cold.

At some point, Clark and/or Hird asked Davis how the fan was working, and Davis stated that it was working fine. Clark understood Davis' response to mean that the fan was effective at keeping the fragrances away. Davis, however, claims that she meant that the fan was working fine. She claims that she started to explain that it was not effective at keeping strong fragrances away, but that Clark simply turned her back on her.² In any event, Clark did not move Davis away from Gavros.

Davis finally quit in August 1996 because she allegedly could not tolerate Gavros' lotion any longer. She claims that she was constructively discharged.

II. STANDARD OF REVIEW

A motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure is appropriate when the pleadings, depositions, and affidavits on file show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The movant bears an initial burden to demonstrate an absence of evidence to support an essential element of the non-movant's case. If the movant carries this initial burden, the burden then shifts to the non-movant to make a showing...