Southeast Human Service Center, Dept. of Human Services v. Eiseman

• Decision Date: 20 December 1994
• Docket Number: No. 940109,940109
• Citation: 525 N.W.2d 664
• Parties: 3 A.D. Cases 1740, 6 NDLR P 45 SOUTHEAST HUMAN SERVICE CENTER, DEPARTMENT OF HUMAN SERVICES, Appellant, v. Sandra EISEMAN and State Personnel Board, Appellees. Civ.
• Court: North Dakota Supreme Court

Page 664

525 N.W.2d 664

3 A.D. Cases 1740, 6 NDLR P 45

SOUTHEAST HUMAN SERVICE CENTER, DEPARTMENT OF HUMAN

SERVICES, Appellant, v. Sandra EISEMAN and State Personnel Board, Appellees.

Civ. No. 940109.

Supreme Court of North Dakota.

Dec. 20, 1994.

Cary R. Stephenson (argued), Sp. Asst. Atty. Gen., Fargo, for appellant.

Mark G. Schneider (argued), Schneider, Schneider & Schneider, Fargo, for appellee Sandra Eiseman.

William Maxwell (argued), Asst. Atty. Gen., Ins. Dept., Bismarck, for appellee State Personnel Bd.

LEVINE, Justice.

Southeast Human Service Center (SEHSC), a component of the North Dakota Department of Human Services, appeals from a district court judgment affirming a decision by the North Dakota State Personnel Board (Board) ordering Sandra Eiseman reinstated to her job at SEHSC. SEHSC also appeals from the court's award of attorney's fees to Eiseman under N.D.C.C. Sec. 28-32-21.1. We reverse.

On July 31, 1991, SEHSC terminated Eiseman from her nonprobationary, classified position as a Vocational Rehabilitation Counselor I on the grounds that she was absent from work without authorization for more than three consecutive working days and that she had failed to comply with SEHSC directives to return to work. Eiseman had been employed at SEHSC since September 16, 1974, and when she was terminated, she was working in the Vocational Rehabilitation Unit under the direction of Terrence Lien, the SEHSC Regional Program Administrator.

Eiseman did not experience any respiratory problems at work until SEHSC moved its office in 1982. Then, Eiseman and other SEHSC employees began having respiratory problems associated with poor air quality at the new office. On several occasions, the SEHSC Regional Director, Gerald Korsmo, informed the landlord about the poor air quality at that office. Eventually, the ventilation system was remodeled, but Eiseman continued to complain about the poor air quality and its effect on her health.

On April 8, 1991, Eiseman asked Lien for extended medical leave because of "illness due to the indoor pollution at the work site which makes it impossible for [her] to return to work at this time." Lien granted her leave through April 17, 1991, which he deducted from her balance of six hours of sick leave and from her annual leave. Lien also asked her to supply any recent medical reports from her attending physician concerning her current illness.

Eiseman submitted letters from two physicians, Dr. Patrick Stoy and Dr. L.B. Silverman. Dr. Stoy reported that Eiseman suffered from "a persistent respiratory problem precluding her from performing her normal work activities," but anticipated that she "would likely recover from this and be able to resume her normal job duties." Dr. Silverman diagnosed an "environmental type of illness" with symptoms of "periodic cough, fatigue, inability to concentrate and other difficulties which affect her ability to function on the job." According to Dr. Silverman, Eiseman's greatest difficulty was a "sensitivity to formalin and the petrochemical ethanol which is quite often present in buildings and in shopping malls." He suggested that she use a special face mask with activated charcoal and a portable air cleaner, and recommended that she be assigned a work place away from the exposure.

At Eiseman's request, Lien granted her additional leave through April 24, 1991, which he deducted from her annual leave. However, Lien noted that the extension of leave would cause further deterioration in the quality of Eiseman's service to her clients and asked her to return to work as soon as possible.

On April 22, 1991, Eiseman requested a medical leave of absence due to her "environmental illness/chemical sensitivities caused by exposures at work [which] have resulted in respiratory problems." Eiseman also requested a reasonable accommodation at a chemically uncontaminated workplace for her disabling condition. Lien granted Eiseman leave without pay from April 25, 1991, and informed her that SEHSC would test the office for the two elements identified in Dr. Silverman's report, formalin and petrochemical ethanol. Independent laboratory testing of air samples from the SEHSC office revealed the presence of formalin and petrochemical ethanol, but within OSHA permissible exposure limits. After receiving the test results, Korsmo cancelled Eiseman's leave of absence on June 11, 1991, and asked her to return to work by June 17, 1991.

Eiseman told Korsmo that the tests were of "no value" and deprived her of her rights as a handicapped individual. She requested an additional leave of absence until she was accommodated with an uncontaminated work site. Lien notified Eiseman that SEHSC would not extend her leave of absence and that he would recommend initiation of a dismissal action if she did not return to work by June 24, 1991.

On June 21, 1991, Eiseman again requested an extension of her leave of absence, stating:

"You obviously do not understand the chemical sensitivity diagnosis. I developed chemical sensitivity due to PAST substantial indoor air quality violations at work. I am not claiming that those violations still exist. In fact, I have been informed that maintenance work may have been done by the landlord to correct violations before these tests were even performed. Therefore, the current test results are meaningless from this perspective also....

"My claim is that due to these past workplace exposures I have developed a chemical sensitivity syndrome. This means that adverse symptoms and health damage can occur at exposure levels far below the [permissible exposure limits]. The disability that I am claiming is Multiple Chemical Sensitivities/Environmental Illness, and you have completely failed to address this issue.

"Your failure to address my chemical sensitivity disability is a violation of my rights as a handicapped individual under the Rehabilitation Act of 1973 and the soon-to-be-implemented Americans with Disabilities Act."

During this time, Lien learned of medical literature questioning the validity of claims of environmental illnesses and criticizing the methods employed by clinical ecologists. Korsmo suggested that, before SEHSC proceeded with pretermination procedures, Eiseman's medical records be reviewed and she be examined by a specialist chosen and paid for by SEHSC. Eiseman requested that the physician be affiliated with the American Academy of Environmental Medicine and have direct experience with multiple chemical sensitivities. SEHSC thereafter selected David Ellison, M.D., a clinical toxicologist at St. Luke's Hospital in Fargo, to examine Eiseman.

On July 17, 1991, Eiseman responded that she had "checked on Dr. Ellison's qualifications and find him to be unqualified per what I have found out through trial and error are necessary qualifications for an accurate diagnosis of my illness." Eiseman informed Korsmo that she was scheduled to consult with a "qualified" physician on July 31, 1991, in Seattle, Washington:

"I request that you allow me to see this physician at your expense. If not, I will pay for it myself. My reasoning is that I want a physician who at least has directly diagnosed and treated someone with multiple chemical sensitivities. There is no indication that Dr. Ellison has diagnosed and treated anyone with multiple chemical sensitivities. Without this experience, Dr. Ellison is simply dealing with abstract concepts. He is not acting as a physician. My illness does not depend on whether he accepts the scientific validity of someone else's hypothesis. I am a real person who has a real health problem. If he has no experience in actually diagnosing and treating people with multiple chemical sensitivities, then he is not qualified to review my records.

"If you decide not to pay for my expenses, then I request that you extend my leave of absence until such time as I can obtain a second opinion from a medical specialist with both qualifications and experience in my disability area. I will be taking all medical information to him for his review also."

On July 18, 1991, Korsmo gave Eiseman pretermination notice of the allegations against her with an opportunity to respond by July 25, 1991. Korsmo noted that Eiseman had refused to see a medical doctor chosen by SEHSC for a second medical opinion. Eiseman responded:

"[P]lease reread my letter dated July 17, 1991, in which I listed the qualifications and experience necessary to obtain an accurate diagnosis of multiple chemical sensitivity, and note that I am not refusing to get a second medical opinion from a qualified physician who has experience with diagnosing and treating people with multiple chemical sensitivity.... In fact, I am so concerned about obtaining as accurate and comprehensive a picture of my overall health as possible that I am willing to pay for the expenses myself. I will be seeing Dr. David Buscher. After I have seen Dr. Buscher and when I have received his report I will then, if you wish, also see Dr. Ellison....

"I find it confusing that you will probably be giving me written notice of termination 'on or before July 31, 1991,' the very day I am presently scheduled to see Dr. Buscher for a second medical opinion/analysis at my expense. It seems the Department does not want a second medical opinion. Perhaps you want to terminate me before you get it so that my only recourse from that point would need to be legal action."

SEHSC terminated Eiseman effective July 31, 1991, on the grounds that she was absent from work without authorization for more than three consecutive working days and that she had failed to comply with SEHSC directives to return to work. The Department of Human Services upheld Eiseman's termination, noting that she had been unwilling to submit to a medical evaluation and that her claim for reasonable accommodation could not be fully addressed because of that refusal.

Eiseman appealed to the Board, which assigned a hearing officer to conduct...