Whillock v. Delta Air Lines, Inc.

• Decision Date: 15 August 1995
• Docket Number: Civil Action No. 1:93-CV-2712-FMH.
• Citation: 926 F. Supp. 1555
• Parties: Virginia C. WHILLOCK, Plaintiff, v. DELTA AIR LINES, INC., Defendant.
• Court: U.S. District Court — Northern District of Georgia

926 F. Supp. 1555

Virginia C. WHILLOCK, Plaintiff, v. DELTA AIR LINES, INC., Defendant.

Civil Action No. 1:93-CV-2712-FMH.

United States District Court, N.D. Georgia, Atlanta Division.

August 15, 1995.

COPYRIGHT MATERIAL OMITTED

Patricia J. Craft, Office of Patricia J. Craft, Atlanta, Georgia, for plaintiff.

William Henry Boice, Kilpatrick & Cody, Atlanta, Georgia, Thomas J. Munger, Delta Air Lines, Inc. Law Department, Atlanta, Georgia, for defendant.

ORDER

HULL, District Judge.

Plaintiff Virginia C. Whillock brings this action under the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq. (1994), against Defendant Delta Air Lines, Inc. This matter is before the Court on Defendant's Motion for Summary Judgment 25-1, and Plaintiff's Motion for Leave to File Supplement to Memorandum in Opposition to Defendant's Motion for Summary Judgment 31-1.

I. FACTS

Plaintiff has been an employee of Defendant for twenty-five years. Plaintiff was hired by Defendant as a Junior Key Punch Operator in November, 1969. During her tenure with Defendant, Plaintiff has held the positions of Clerk Typist, Flight Stewardess, Flight Attendant, Junior Cargo Accounting Clerk, Senior Air Freight Clerk, Senior Air Freight Accounting Clerk, and Accountant.

In early 1983, Plaintiff accepted a position as a Reservations Sales Agent. In 1987, when Plaintiff's husband, also an employee of Defendant, was promoted, Plaintiff transferred her employment with Defendant to the Atlanta Reservations Sales Department.

On the morning of March 13, 1992, while taking a reservation in the reservations sales office, Plaintiff experienced an acute exposure to a mixture of water and chemical isopropyl alcohol when an adjacent co-worker sprayed the chemical over the co-worker's work area to disinfect the work area.¹ Plaintiff immediately sustained a severe reaction to the fumes. Plaintiff became weak, dizzy, and had difficulty breathing. Plaintiff's throat swelled and closed, and she began jerking and gasping. Plaintiff was taken in a wheelchair to Defendant's first aid station where oxygen was administered until paramedics arrived.

After this episode, Plaintiff was seen by Dr. Mays, her family physician. In her deposition, Plaintiff testified that by the time she arrived at Dr. Mays's office, all of her episodic symptoms had passed. However, Plaintiff did not return to work until March 30, 1992. Plaintiff explains that her absence was due to her medical condition. Defendant informed Plaintiff that she needed medical documentation for her absences. On March 31, 1992, Plaintiff provided Defendant with a note from Dr. Cole, a physician who practices with Dr. Mays. Dr. Cole's note indicated that Plaintiff could return to work with no restrictions. Nonetheless, Plaintiff worked only 10 days between March 30, 1992 and April 22, 1992.

Plaintiff's acute reaction on March 13 to the exposure of alcohol fumes was followed by another severe reaction on April 22 when she was exposed to the smell of a co-worker's perfume. The exposure triggered immediate symptoms of Plaintiff's feeling very ill, weak, and causing the effects of a severe headache. As her symptoms increased, Plaintiff experienced breathing difficulty, dizziness, and an inability to stand. Plaintiff was assisted by a co-worker to Defendant's nurses' office, where a nurse administered 10 liters of oxygen for thirty minutes.

After the April 22, 1992 incident, Plaintiff visited Dr. Sams, a physician who practices with Dr. Mays and Dr. Cole. At the time of the visit, Dr. Sams noted that Plaintiff "had no signs of allergic reaction...." Def. Exhibit 29. Dr. Sams indicated that Plaintiff's lungs were "perfectly clear." Id. After the April 22, 1992 episode, Plaintiff did not return to work until May 19, 1992.

On April 24, 1992, Defendant asked Plaintiff to provide additional medical documentation of her illness and any restrictions she had. On April 29, 1992, Plaintiff submitted Dr. Cole's letter dated April 27, 1992. Dr. Cole's April 27 note indicated that he conducted a follow-up examination of Plaintiff and that her lungs were "completely clear." Def.Exhibit 32. Dr. Cole's letter also indicated that Plaintiff should be permitted to work shifts when an employee health nurse was available and again concluded that "I feel it is safe for her to return to work at this time." Id.

Plaintiff did not return to work until May 19, 1992 and worked for only two days. On May 21, 1992, she called in sick and did not return to work thereafter. Defendant's management made repeated requests upon Plaintiff for medical information about her condition and her "environmental" needs. Plaintiff alleges that when she provided Defendant her medical records in connection with attempts at reasonable accommodation, Defendant made no attempt to accommodate her condition. Defendant counters that Plaintiff never complied with its requests for medical documentation. Further, Defendant alleges that Plaintiff did not answer phone calls or respond to messages left on her answering machine by her supervisors when she was not at work. As a result, on June 12, 1992, Plaintiff was removed from the payroll due to job abandonment, pending receipt of medical documentation on her absences.

On June 12, 1992, Plaintiff visited Dr. Stephen Edelson, a "clinical ecologist." Dr. Edelson sent Ms. Glenda Stock, the Manager of Reservation Sales, a letter dated June 19, 1992 regarding Plaintiff's June 12, 1992 visit. Dr. Edelson stated that based on Plaintiff's description of her medical history, he reached a preliminary diagnosis that she suffered from "chemical sensitivity syndrome." Def.Exhibit H, at Exh. 2. Dr. Edelson performed no testing or examination of Plaintiff and admitted that he did not know what chemicals would trigger a reaction in Plaintiff. Dr. Edelson stated that he would need three or four months to evaluate Plaintiff, but suggested that Plaintiff not return to work because her work area was not chemical free.

According to Dr. Edelson, the exposure to the chemical irritant, on March 13, 1992, which resulted in debilitating symptoms affecting Plaintiff's neurological, respiratory and immune systems, was the induction or first stage of a two staged phenomenon known as Multiple Chemical Sensitivity Syndrome. Dr. Edelson opines that the relatively high level chemical exposure Plaintiff experienced on March 13, 1992 affected Plaintiff's susceptibility to subsequent low level exposures. As a result, Plaintiff now experiences symptoms such as respiratory difficulty, dizziness, rashes, chronic exhaustion, and severe headaches, which are triggered by low levels of chemicals, such as those found in perfume, paint, smoke, and car exhaust. This, according to Dr. Edelson, explains why Plaintiff had a reaction to the smell of a co-worker's perfume on April 22, 1992.

While Dr. Edelson's diagnosis was contrary to the diagnoses of Dr. Cole (who released Plaintiff to return to work) and other physicians who had examined Plaintiff, Defendant returned Plaintiff to the payroll, even though Plaintiff did not return to work. Assistant Reservations Sales Manager Norm Andrews requested Plaintiff to release her medical records since the March 13, 1992 episode so that Defendant could determine if Plaintiff had a reason to refuse to return to work. Plaintiff subsequently released those records.

On September 24, 1992, after exhausting her paid sick leave, Plaintiff applied for short-term disability benefits through the Delta Family Care and Disability Survivorship Plan ("the Plan"). Under the terms of the Plan, an employee seeking disability benefits may be required to submit to an independent medical examination ("IME") to verify the claim of a disability. Because the opinion of Plaintiff's examining physician, Dr. Cole, conflicted with that of Dr. Edelson, Plaintiff was required to undergo an IME.

Plaintiff's IME was to be conducted by Dr. Elsie Morris on October 19, 1992. Although Plaintiff appeared for the examination, the examination was not conducted. According to Plaintiff, Dr. Morris was rude and wanted to subject Plaintiff to tests Plaintiff feared would endanger her health. According to Defendant, the examination was not conducted because Plaintiff refused to cooperate with Dr. Morris. At any rate, notwithstanding the fact that Plaintiff never underwent an IME, her short-term disability benefits continued until they expired on October 31, 1992.

On November 5, 1992, Plaintiff applied for long-term benefits under the Plan. Pursuant to the Plan, an employee is entitled to long-term benefits only if that employee is unable to perform any job, including part-time work. Plaintiff contended that she was totally prevented from performing any job. On November 28, 1992, the Plan denied Plaintiff's application for long-term benefits, because the medical documentation she submitted from Dr. Edelson stated that Plaintiff was able to perform some work.

Pursuant to Defendant's normal practice, it allowed Plaintiff to appeal the denial of her claim before requiring her to return to work. Plaintiff appealed to the Administrative Subcommittee the Plan's denial of her application for long term benefits. On January 28, 1993, the Administrative Subcommittee denied her appeal. Plaintiff did not appeal to the Administrative Committee. Thus, Defendant attempted to return Plaintiff to work.

On March 4, 1993, Plaintiff was notified that, pursuant to Defendant's policy, she was to contact her manager to arrange for her return to work. At this point, Defendant learned that Plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") on March 1, 1993. Plaintiff's charge alleges that she was denied both long-term disability benefits and a reasonable accommodation in violation of the ADA.

At the time Plaintiff filed this charge, Plaintiff was still contending (via the long-term disability process) that she was...