Labor & Employment Law Daily County’s prompt responses to accountant’s concerns about construction debris dooms allergy-based accommodation claim
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Tuesday, December 15, 2020

County’s prompt responses to accountant’s concerns about construction debris dooms allergy-based accommodation claim

By Kathleen Kapusta, J.D.

The employee alleged that exposure to construction debris from a neighboring building caused her to suffer allergy symptoms of an “undetermined etiology.”

Dismissing on summary judgment a county employee’s ADA failure-to-accommodate claim—she was fired when she failed to return to work after an extended leave due to an alleged allergy to construction debris—the Third Circuit, in an unpublished opinion, pointed to her employer’s consistent good faith efforts to respond to her requests regarding the safety of her workplace given her claimed medical conditions. Nor could she advance her Title VII retaliation claim as the six months between her filing of a safety complaint and the initiation of termination proceedings was not unusually suggestive of a retaliatory motive (Petti v. Ocean County Board of Health, December 9, 2020, per curiam, unpublished).

Construction debris. The employee, an accountant for the county health department, worked in one of two buildings at the department’s office campus. Although the windows in her building were taped due to construction at the neighboring building, she emailed a county administrator, asking whether the construction debris, which she claimed was getting into the building, contained asbestos as she was concerned it could aggravate an unspecified medical condition. Several days later, she emailed the administrator and a county heath coordinator, told them there was debris on her windowsill and notebooks, and asked if the construction work was being safety performed.

In response, the administrator assured the employee that an asbestos sampling survey found no asbestos-containing material at the construction site and that her building’s ventilation system was not connected to any demolition involving the other building. The employee, nonetheless, brought her concerns about construction debris to her direct supervisor.

Complaint. The following month, the employee was temporarily transferred to a different building. At the end of the month, before being transferred back, she received a report indicating that the construction site was free of external debris or other hazards. Not long after, she filed an occupational safety complaint with the state’s Public Employees Occupational Safety and Health Program (PEOSH) regarding her concerns about air quality and debris at her workplace.

Pulmonary dysfunction. On her second day back in her office, she left early. Upon her return, she submitted a doctor’s note stating that she should avoid exposure to dust, chemicals, construction materials, and respiratory irritants, due to “pulmonary dysfunction.” Although she was again assured by the administrator that the building was safe, the employee claimed to have had an allergic reaction and asked to be moved to a different building. She also submitted another doctor’s note requesting that she be excused from work due to allergy symptoms of an “undetermined etiology.”

Dry skin. Because she also requested workers’ compensation—she claimed her whole body was itchy and her eyes were swollen—she underwent a physical exam after which the doctor noted that she refused to consent to pulmonary function tests or allow him to speak with her other doctors. The doctor determined that her itchiness was likely due to dry skin.

Leave request. The employee then requested leave, submitting a doctor’s note stating she was experiencing “shortness of breath after exposure to construction dust.” While she was on leave, the county tested her work area for mold and found nothing out of the ordinary range. PEOSH also conducted an unannounced inspection and found no health violations. Although the employee subsequently requested a leave extension, she was directed to return to work. She was informed that her work area had been moved away from the windows, she would be provided with a respirator or particulate dust mask, and an air scrubber would be installed. When she failed to return to work, she was terminated.

Lower court proceedings. The employee sued, asserting an ADA failure-to-accommodate claim, retaliation in violation of Title VII, and wrongful discharge. The district court granted summary judgment against all claims.

Failure to accommodate. Affirming as to her ADA claim, the Third Circuit pointed to evidence showing the county consistently and in good faith responded to the employee’s workplace safety requests given the medical conditions she asserted. Not only did the county, in response to her initial requests about asbestos, provide her with information about prior safety testing that had been conducted on the site and information about her building’s separate ventilation system, it moved her to another location while it investigated the safety of her work space.

Not until after an external consultant examined the site and determined that the construction work was free of external debris or other hazards was she asked to return to her usual work location. And when she subsequently reported having an allergic reaction at work, it again told her it would review her concerns. The next month, it approved her request for FMLA leave, hired another external consultant to conduct mold testing, and complied with an unannounced PEOSH inspection.

After mold testing came back in the normal range and the PEOSH inspection came back without any violations, the county denied her request for a further leave but offered to install an air scrubber, provide her with a respirator or a particulate dust mask, and moved her work location away from windows. And while she insisted that she be moved to another building outside of her department, she did not explain how her concerns could be accommodated elsewhere when the health department’s other buildings were also undergoing construction.

Title VII retaliation. As to her Title VII retaliation claim, she argued that her filing of a confidential complaint with PEOSH constituted protected activity and that she was fired in retaliation for filing that complaint. But even assuming the county knew she had filed the complaint, it did not initiate termination proceedings until six months later, which was not “unusually suggestive of retaliatory motive” such that timing alone could establish that her complaint was the likely reason for her termination.

Wrongful discharge. Finally, turning to her wrongful discharge claim, the court noted that it was based on the same facts as her discrimination and retaliation claims. Because it would not protect any additional interest beyond the protections of the ADA and Title VII, summary judgment was properly granted for against this claim as well.

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