Employment Law Daily Supervisors immune from suit claiming deliberate indifference to known danger of workplace toxic mold
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Monday, September 12, 2016

Supervisors immune from suit claiming deliberate indifference to known danger of workplace toxic mold

By Lorene D. Park, J.D. Although the widow of a health district employee who died due to workplace exposure to toxic mold had shown a violation of a due process right to be free from state-created danger, a divided panel of the Ninth Circuit nonetheless reversed an order denying qualified immunity to two of the employee’s superiors because it was not clearly established, at the time of their allegedly unconstitutional actions, that the state-created danger doctrine applied to claims based on workplace conditions. Judge Noonan dissented and Judge Murguia dissented in part (Pauluk v. Savage, September 8, 2016, Fletcher, W.). Toxic mold at work. The employee worked for the Clark County Health District (CCHD) as an environmental health specialist from 1998 until illness forced him to take leave in 2005. During his tenure, he transferred a number of times. In early 2003, he transferred to a satellite office with chronic roof and water leakage problems resulting in the proliferation of mold. He complained repeatedly about the mold and "spores" near his desk, requesting that the ceiling above his desk be tested. He also asked to be transferred out of that office because mold exposure was adversely affecting his health. While the parties disputed the manner of responses by the individual defendants—who were the employee’s superiors—it was undisputed his requests were denied. Illness and death. Meanwhile, the employee suffered from headaches, confusion, diarrhea, breathing problems, chills, kidney cysts, and other symptoms. Several doctors corroborated that his illness was caused by mold. In October 2005, he went on FMLA leave; his certification stated that he was suffering from toxic mold exposure with airflow obstruction. In 2007, he died. His amended death certificate stated the cause of death was "mixed mold mycotoxicosis." Section 1983 suit. Filing suit under Section 1983 against the CCHD and the employee’s two superiors, the employee’s widow and daughters claimed their role in exposing him to a mold-infested work environment caused his death. They brought claims under the Due Process Clause of the Fourteenth Amendment and state law. After years of litigation, the individual defendants moved for summary judgment, which was granted as to the negligent supervision and training claim but otherwise denied. Filing this interlocutory appeal, the individual defendants sought review of the district court’s order denying qualified immunity. Standard for qualified immunity. First, the Ninth Circuit concluded that, under Supreme Court precedent, it had jurisdiction over the "purely legal" question of whether the facts alleged by the employee’s survivors demonstrated a violation of clearly established law so that the defendants were not entitled to immunity. It had to initially determine if the facts adduced at summary judgment showed the superiors’ conduct violated a constitutional right. If so, the question was whether, at the time of the violation, that right was "clearly established." No general due process right to safe workplace, but . . . Here, the widow relied on a line of cases holding that exposure by a state actor to a state-created danger violates due process, and the defendants relied on the Supreme Court’s decision in Collins v. City of Harker Heights, which declined to find a general due process right to a safe workplace. Discussing each line of authority, the appeals court described the general rule that a state actor is not liable for omissions under the Due Process Clause, as well as the "state-created danger" exception for when the state actor affirmatively placed the plaintiff in danger by acting with "deliberate indifference" to a "known and obvious danger." The state-created danger doctrine holds state actors liable for "exposing individuals to danger they otherwise would not have faced." State-created danger exception applied. Here, the defendants argued that Collins precluded application of the state-created danger doctrine because the danger was a physical condition in a government employee’s workplace. Disagreeing, the appellate court explained that, in Collins, the Court did not address the state-created danger doctrine. Indeed, its reasoning suggested the decision might have been different had the plaintiff alleged such a claim. Furthermore, the state-created danger doctrine is a recognized "exception" to the general rule that a state actor is not liable for his acts or omissions and, in the appellate court’s view, it followed that the exception should apply to workplace safety cases such as this one. Superiors acted with deliberate indifference to known danger. Applying the state-created danger doctrine here, the appeals court found that the survivors’ evidence, if true, showed affirmative conduct by the county and the employee’s superiors (transferring the employee to the location and refusing to let him leave); the harm he suffered was foreseeable (he previously worked at the location and opposed the transfer because he feared toxic mold exposure); and the superiors acted with deliberate indifference to a known and obvious danger because they knew the long history of mold problems and tried to conceal the extent of danger. But the right was not "clearly established," so defendants were immune. Despite the superiors’ deliberate indifference to a known danger from the mold, they were still entitled to qualified immunity because the employee’s due process right under the state-created danger doctrine was not "clearly established" at the time of the constitutional violations. Consequently, the appeals court reversed the denial of qualified immunity. Partial dissent finds no deliberate indifference. Judge Murguia agreed with the analysis as to the court’s jurisdiction and with the conclusion that the lower court erred in denying qualified immunity to the individual defendants, but she dissented from the conclusion that the widow presented a cognizable claim that the defendants affirmatively acted with deliberate indifference to the employee’s due process rights. Specifically, "affirmative conduct" means actions placing the employee in a "worse position than that in which he would have been" had the defendants not acted at all, but the record showed the state had exposed the employee to mold at least twice before his transfer to this location, so he could not have been in a "worse" position. Judge Murguia also found that the demanding standard for "deliberate indifference" was not met here. Dissent finds clearly established right. Dissenting, Judge Noonan stated that the law governing the state-created danger doctrine was clearly established at the time and that any reasonable official in the defendants’ shoes would have understood that they were violating it. Judge Noonan explained that the contours of the doctrine have been "clearly established" by at least nine published opinions of the Ninth Circuit over the course of two decades and could not be made "unclear" based on a single case, Collins, which addressed an unrelated legal theory.

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