MacLean v. State Dept. of Educ.

• Decision Date: 29 July 1999
• Docket Number: No. 2 CA-CV 99-0102.,2 CA-CV 99-0102.
• Citation: 195 Ariz. 235,986 P.2d 903
• Parties: Diane MacLEAN, Plaintiff/Appellant, v. STATE of Arizona (DEPARTMENT OF EDUCATION), Defendant/Appellee.
• Court: Arizona Court of Appeals

986 P.2d 903

195 Ariz. 235

Diane MacLEAN, Plaintiff/Appellant, v. STATE of Arizona (DEPARTMENT OF EDUCATION), Defendant/Appellee.

No. -0102.

Court of Appeals of Arizona, Division 2, Department A.

July 29, 1999.

As Corrected August 27, 1999.

Guy David Knoller, P.C. By Guy David Knoller, Phoenix, Attorney for Plaintiff/Appellant.

Janet Napolitano, Arizona Attorney General By Lisa K. Hudson, Phoenix, Attorneys for Defendant/Appellee.

OPINION

PELANDER, Presiding Judge.

¶ 1 Plaintiff/appellant Diane MacLean worked for the Arizona Department of Education (the Department) from December 1994 to January 1996. After resigning from her job, she sued the state, alleging that she had a "disability" covered by the Americans with Disabilities Act of 1990(ADA), 42 U.S.C. §§ 12101-12213, and that the Department had violated the ADA by failing to provide her with reasonable accommodation and by retaliating against her for engaging in a protected activity, resulting in a constructive discharge.

¶ 2 The trial court granted the state's motion for summary judgment and later denied MacLean's motion for reconsideration, both rulings without comment or explanation. This appeal followed. We affirm the summary judgment in favor of the state as to that aspect of MacLean's disability claim based on 42 U.S.C. § 12102(2)(C). Finding genuine issues of material fact relating to her other claims, we reverse and remand as to those.

BACKGROUND

¶ 3 We view all facts and reasonable inferences therefrom in the light most favorable to MacLean. Bothell v. Two Point Acres, Inc., 192 Ariz. 313, 965 P.2d 47 (App. 1998). The following facts are set forth in MacLean's affidavit, filed in response to the state's motion for summary judgment. In her affidavit, MacLean stated, inter alia:

I have been on prescribed medication since 1972 for allergies, asthma, allergic rhinitis, and/or reactive airway disease. For most of my life, I have been unable to swim, walk or hike more than ½ mile, or climb hills, or bikeride [sic] because of my asthmatic condition. I suffer great shortness of breath when attempting any of those activities, even though I am on medication for asthma.... I am unable to carry groceries to my car or from my car to my home. I cannot run. I cannot ride a bicycle. I cannot mountain climb. I cannot snow ski or waterski [sic]. I cannot hike. While trying to swim four laps I collapsed. In my youth, I collapsed trying to run a mile. Recently, when new carpet was laid in my house, I could not breathe. I cannot breathe in a room that has smoke in it. I cannot breath outside on air pollution advisory days. I cannot breathe outside on bad pollen days. I cannot breathe in nursing homes or at hospitals that use deodorizers or have other chemical pollution. I cannot breathe in an office or building that has chemicals from a xerox machine. I cannot work in old buildings which have dust and mold as well as other pollutants. I cannot be in fabric stores because of the lint, dust and other pollutants. I can't be around air fresheners. I am allergic to many plants and foods, as well as having an extreme sensitivity to certain chemicals such as formaldehyde. I cannot walk my dog. I cannot walk in the cold.... I have been diagnosed with having airway disease (asthma), which was responsible for the shortness of breath....

¶ 4 Within a few weeks after she began working at the Department in December 1994, MacLean started experiencing difficulty in breathing and an exacerbation of her asthma. She suspected that the air quality in the Education building was causing those conditions. At a managerial meeting in January 1995, MacLean mentioned that the building's poor air quality was causing her respiratory problems. In March, MacLean experienced chest tightness, an asthma attack, and bronchitis while traveling from Flagstaff to Phoenix. In April, she experienced shortness of breath, headache, burning eyes, nausea, and pain in her lungs, all of which she attributed to her respiratory condition and a major sewer gas exposure in the building.

¶ 5 Later that month, a co-employee, Della Hoffa, received an accommodation for respiratory difficulties by being relocated to a room in a court building across the street. A few days later, MacLean specifically informed Jerry Bowman, her immediate supervisor, about her respiratory problems and the symptoms she had experienced during the sewer gas leak earlier that month. When MacLean requested the same accommodation that Bowman had given Della Hoffa, he told MacLean that calling attention to herself could result in the elimination of her position.

¶ 6 In May 1995, MacLean consulted with her doctor because of her chronic asthma, severe shortness of breath, and pain in her lungs. In late June, she informed Bowman that she had received a letter from her allergist that outlined her problems with the Education building's air quality, and again requested an accommodation. Bowman again responded that it would be unwise to call attention to herself in that way, and stated, "`This is a sick building. We all suffer here. What's so special about you?'" In late July, MacLean once again discussed her respiratory problems with Bowman, who took no action.

¶ 7 In mid-October 1995, MacLean provided another Department supervisor with a letter from her doctor dated June 22, 1995, which stated in part:

Diane MacClean [sic] is a patient of mine and has been treated for allergic rhinitis and recently has had some problems with reactive airway disease causing her pulmonary function studies to reveal bronchodilation following a small volume nebulizer treatment where a pulmonary function study was repeated showing good response.

....

She has had a Maxair inhaler which has been used from time to time and, [on] a visit to our clinic in May of 1995, pulmonary function studies did reveal reactive airway disease (asthma) brought on by her work environment. She appears to do very well at home on the weekends, and when she is out travelling visiting various schools in the work place; however, when she returns to her main office, there has been a problem with irritation of her lungs, cough, sore throat, fatigue and respiratory complaints.

....

In view of the fact that the patient is worsened by exposure to that building, it may be in fact, she suffers from the so-called sick building syndrome, in which any number of different chemicals, odors, etc., can trigger patients that have reactive airway disease and [sic] to have significant problems.

Accordingly, I would like to request at this time that the patient be allowed to work in a building across the street where she does not suffer any ill effects and could still perform her same job in the work place.

¶ 8 The Department's Human Resources Manager, Debra Jackson, requested additional information from MacLean, who responded in a memorandum dated October 30, 1995:

The medical diagnosis is in the fourth paragraph of Dr. Hellmers' letter of June 22, "sick building syndrome." If I am housed in a building with a ventillation [sic] system that works properly to take in fresh air, filter it, and circulate it throughout the building, I am symptom free. For example, when I am at Metrotech or the Courts Building for several hours, I am fine. When I have been in this building for several hours, I exhibit the symptoms of an allergic person with asthma—burning eyes, headache, fatigue, coughing, sniffling, sneezing, and wheezing.

....

To date, I have been assigned to three different offices in the building. All three cause the same set of symptoms.

I compensate for the reduced efficiency caused by long stretches of time in the office by working in my home office, outside of regular working hours. I purchased a new computer with Word for Windows 6.0. Since my job performance has been excellent, I don't believe "sick building syndrome" causes limitations in my ability to perform my job tasks. It sure would be nice, though, to be able to get my work done in the office.

¶ 9 According to MacLean's affidavit, within a week after submitting her physician's June 22 letter in mid-October, Bowman "began a reign of terror harassing and humiliating [her]." Bowman's harassment, she stated, continued daily throughout November and December and included his refusing to allow her to telecommute; "chastising [her] for having complained about [her] asthma and the sick building syndrome"; giving her a markedly worse performance evaluation in November compared to one he had prepared on her in May; ordering her into the office on December 5, when she had been sick and confined to home pursuant to doctor's orders, and threatening to fire her; imposing new, unreasonable procedural rules on her; and regularly writing her up for various alleged infractions during December.

¶ 10 On December 5, 1995, MacLean was informed that she would get a temporary cubicle space in the court building across the street until the Department's administration decided what to do with her. The next day MacLean submitted another memorandum requesting accommodation. On December 11, MacLean filed a charge of discrimination and harassment against the Department with the United States Equal Employment Opportunity Commission (EEOC), based on her claims of retaliation and violations of the ADA. On December 19, MacLean personally delivered to Bowman an employee grievance, the face of which referred to the charge she had filed with the EEOC.

¶ 11 Although MacLean was relocated to the court building, she was not given any furniture, equipment, or books with which to work. In addition, Bowman constantly called her back to the Education building. MacLean tendered her resignation in late December because she was "losing sleep," her "nerves were shot," and she "could take it no longer."

¶ 12 According to MacLean, her lung/respiratory condition has been diagnosed for over twenty years as asthma and has become progressively worse. She has been off work because of...