Frisino v. Seattle Sch. Dist. No. 1
| Decision Date | 21 March 2011 |
| Docket Number | No. 63994–3–I.,63994–3–I. |
| Court | Washington Court of Appeals |
| Parties | Denise FRISINO, an individual, Appellant,v.SEATTLE SCHOOL DISTRICT NO. 1, a municipal corporation, Respondent. |
OPINION TEXT STARTS HERE
Philip Albert Talmadge, Sidney Charlotte Tribe, Tukwila, WA, John C. Montoya, Law Office of John C. Montoya PLLC, Patrick Brian Reddy, Emery Reddy PLLC, Seattle, WA, for Appellant.Patricia Kay Buchanan, Daniel Paul Crowner, Seattle, WA, for Respondent.APPELWICK, J.
[160 Wash.App. 770] ¶ 1 Frisino, a teacher, exhibited sensitivity to environmental factors in her workplace, constituting a disability under the Washington Law Against Discrimination, chapter 49.60 RCW. She appeals the trial court's grant of summary judgment disposing of her claims of employment discrimination against her employer school district based on failure to accommodate her disability and retaliatory discharge. Questions of material fact remain as to whether the District accommodated Frisino's disability and, if not, whether Frisino communicated that to the District. We reverse.
¶ 2 Denise Frisino alleges that she acquired a respiratory illness in response to chemical toxins in the school environment when she worked at Hamilton International Middle School, making her sensitive to airborne toxins, dust, mold, and other irritants. Frisino first began to experience respiratory symptoms in the 1999–2000 school year. Between that time and 2004, Seattle School District No. 1 (District) attempted several accommodations, including providing an air filter, ordering Hamilton custodians to mop her classroom floor twice a week, and moving her to a different classroom. In April 2004, Frisino's primary care physician, Dr. Fernando Vega, diagnosed Frisino with respiratory sensitivity to molds, chemicals, and other environmental toxins. Frisino went on medical leave. In May 2004, Vega informed the District that Frisino needed to be placed in a “clean environment next year.” In August 2004, Frisino agreed to be transferred to Nathan Hale High School (Hale). Frisino alleges that she only accepted the transfer to escape Hamilton, that she did not visit her new classroom before accepting the transfer, and that when she entered her new classroom before school began she immediately noted visible mold as well as blackened and missing ceiling tiles. 1
¶ 3 In September 2004, Frisino discussed her health problem with Hale Principal Lisa Hechtman. Hechtman alleges that she recommended that Frisino move to a portable classroom and Frisino declined. Also, in September and October both a private firm, Clayton Group Services, and the Seattle/King County Department of Health investigated Hale and reported no active mold growth in the building. Clayton Group also conducted air sampling tests and reported that the total fungal structure concentrations inside the Hale building were lower than those found outdoors. The District performed additional air testing, determining that areas in Frisino's classroom and adjacent classrooms were dry and would not support mold growth. But, the District decided to re-encapsulate areas where there was visible mold, including the northeast stairwell, Frisino's classroom, and other rooms.
¶ 4 Meanwhile, Frisino requested an accommodation in the form of a move to another classroom, but declined the two options offered by the District. On November 21, Frisino left work complaining of respiratory distress and went to the emergency room. Frisino did not return to work. On November 30, Vega sent a note supporting Frisino's request for “time off work until remediation of environmental conditions at Nathan Hale.”
¶ 5 About the same time, the District hired GlobalTox, an industrial hygiene and toxicology consultant. GlobalTox and the District scheduled a walkthrough of the building with certain members of the public on November 30 to evaluate the condition of the Hale environment. GlobalTox issued a report on December 3 declaring that the situation at Hale was not an emergency, generally safe for most students, and only a danger to those with “the most severe forms of immunocompromise.” In accordance with the recommendations of GlobalTox, the District pursued partial remediation in December, over winter break, to remove visible mold. It completed the project over the summer by removing ceiling tiles to search for additional mold, removing any revealed mold, and replacing stained ceiling tiles. In December, the District hired Superior Coit, who it alleges removed the small amounts of visible mold from classroom 216 and other areas. Superior Coit alleges it removed less than five square feet of mold from Hale.2
¶ 6 After the completion of the December phase of the remediation project, the District notified Frisino that her classroom had been remediated and that she should return to work on January 3, 2005. She refused.
¶ 7 As a result of Frisino's industrial insurance claim, she participated in an independent medical examination (IME) with Dr. Dorsett Smith. 3 On January 18, 2005, Smith issued a report and diagnosed Frisino with “multiple chemical sensitivity syndrome,” defined as a mental illness that causes a fixation on dust, chemical exposure, or any fumes or odors in the workplace. Smith recommended a work space with good ventilation, no evidence of odors or strong chemical smells including cigarette smoke, perfume, cleaning agents, animal dander, or dust. Smith also recommended that Frisino return to work and continue to meet with a psychiatrist or psychologist. Smith concluded that “[n]one of the diagnoses listed above are related to any work-related conditions.” 4 The District received the results of this IME and relied on it prior to termination.5
¶ 8 The District and Frisino continued to communicate over a period of several months. On January 19, 2005, Frisino e-mailed the District and asked for an update on the remediation. Richard Staudt, the District's manager of risk and loss, replied that day:
I believe the work done over the break fully addressed the issues Dr. Vega identified in his letter of 11/30 and I have not seen anything new from him that would require you to be out of the building since January 3.
On January 20, Staudt again told Frisino in an e-mail:
The Nathan Hale environment was modified to address the irritant over the winter break, so I would believe it was appropriate for you to return to work there as of 1/3/05.
[160 Wash.App. 774] ¶ 9 On February 1, Frisino wrote Rick Takeuchi, the District's equal employment opportunity manager, explaining:
On 12/21/04, Dr. Cary signed the attached letter stating that I could return to work, but not to the old environment. I need to avoid respiratory irritations and temperature extremes.
Room 216, my classroom, was not completely remediated. There are still water stained tiles that the District painted over. Painting is not acceptable as remediation by any health organization. In the area where work was done, the ceiling tiles have been removed, a compound was applied to an area about one foot-square and there is a hole covered with plastic and blue duct tape. The plastic moves up and down, indicating air movement from within the crawl space. This creates potential for spores to move through my classroom.
....
For now, a high school environment that is newer, good ventilation, free of fragrances, clean with no heat extremes would be best.
On February 7, the District again demanded that Frisino return to work or submit an accommodation request. On February 10, Frisino submitted a revised accommodation request:
I am requesting to be placed in a different Building until Nathan Hale is completely remediated. There is stachybotrys mold (and others) in the school and my classroom. These are high concentrations and I have a severe reaction to them. I will need a room with good ventilation—no perfumes, gas, etc. and not extreme temperature changes. A window to outside.
Vega's health care provider statement supported her request:
[Frisino is s]ensitive to her environment at work.
....
The accommodation recommendation is to have Ms. Frisino transferred to a site that is mold free.
On February 11, Frisino e-mailed Staudt:
This is my second e[-]mail requesting a simple answer. Is it Okay for me to go back to work in room 216 at Hale?
Staudt replied that day:
Repeatedly since January 4, I have told you that it is okay for you to return to your classroom. I am not sure how to make it any more clear.
¶ 10 On March 3, Frisino wrote to Margo Holland, manager of Seattle Public Schools Employment Services, requesting placement:
It is important for me to work. In fact, since January 3, 2005, I have kept in contact with my Principal, prepared lesson plans, corrected papers, wrote letters to each of my students, met with students after school and on weekends, and contacted several parents.
On March 11, Vega wrote the District:
Ms. Frisino has ongoing issues with environmental irritants, presumably mold related, that are present in her work environment. She is advised to remain away from her current workplace or be transferred to a more accommodating environment.
On April 4, Takeuchi responded to Vega, explaining that the District's expert reports showed that mold spores enter from outdoor air and that testing showed that the indoor spores of mold were not above normal. He then asked Vega:
Since the District is unable to provide a mold-free environment, the District would like to have your medical opinion as to what type of modifications can be made that would allow Ms. Frisino to work in her current worksite. At this point in time neither Ms. Frisino nor her health care providers have recommended any type of modifications that can be made in her worksite that would accommodate her disability, other than to say that she needs a mold-free environment, which the District is not able to provide as documented by the...
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