STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF DURHAM 04 OSP 0322

______

Lois Murphy, )

Petitioner, )

) DECISION

v. ) by SUMMARY JUDGMENT

)

Durham County Public Health Department, )

Respondent. )

______

THIS MATTER came on for consideration as a result of Respondent moving to dismiss the above cited matter based upon Petitioner’s failure to show a right to relief. In this particular case, Respondent made their motion at the close of six days of evidence presented by the Petitioner. In particular, Respondent asserts Petitioner failed to present a prima facie case of discrimination and failed to set forth an actionable showing of a hostile work environment. Both sides submitted briefs regarding Respondent’s Motion. The Petitioner was represented by counsel, Keith A. Bishop and Respondent was represented by its attorney, Lucy Chavis.

STANDARD OF REVIEW

As Respondent is asserting the defense of Petitioner’s failure to state a claim upon which relief can be granted and as matters outside the pleading have been presented to the Undersigned and not excluded, the Undersigned shall treat Respondent’s motion as one for summary judgment, Petitioner having been given reasonable opportunity to present all pertinent material.

The standard of review for summary judgment is whether there is a genuine issue of material fact and whether the movant is entitled to judgment as a matter of law. See Kessing v. National Mortgage Corp., 278 N.C. 523, 534, 180 S.E.2d 823, 830 (1971). To entitle one to summary judgment, the movant must conclusively establish a legal bar to the nonmovant’s claim or complete defense to that claim. See Virginia Elec. and Power Co. v. Tillett, 80 N.C.App. 383, 385, 343 S.E.2d 188, 190-91, cert denied, 317 N.C. 715, 347 S.E.2d 457 (1986).

A party moving for summary judgment satisfies its burden of proof (1) by showing an essential element of the opposing party's claim is nonexistent or cannot be proven, or (2) by showing that the opposing party cannot (or did not) produce evidence to support an essential element of his or her claim or (3) the opposing party cannot surmount an affirmative defense which would bar the claim. See Bernick v. Jurden, 306 N.C. 435, 293 S.E.2d 405 (1982).

BASED UPON the record and matters presented at hearing, the Undersigned makes the following findings of fact:

FINDINGS OF FACT

1. On March 9, 2004, Petitioner filed a petition alleging the following: 1) hostile work environment and failure to provide reasonable accommodations for disability and 2) continued harassment and hostility forcing Petitioner to take medical leave and transfer to another unreasonable environment. Petitioner also alleged that stress exacerbated her asthma. The hearing in this matter was held before the undersigned Administrative Law Judge, Augustus B. Elkins II, on August 12-13, September 7-9 and October 25-26, 2004. At the close of Petitioner’s evidence, counsel for the Petitioner rested. Respondent made a motion to dismiss at the close of Petitioner’s case for failure to present a prima facie case for discrimination, hostile work environment and harassment under the Americans with Disability Act (ADA) and a legally actionable cause of action.

2. Several motions other than Respondent’s present motion were outstanding including one involving a Petitioner-Intervenor, and have now been ruled on.

3. On August, 25, 2000, Petitioner was hired as an Office Assistant IV for the Health Education Division in the Health Department. While working at the Health Department, Petitioner testified that she received performance appraisals at the Health Department. Petitioner testified that she received meets expectations and exceeds expectations on her performance appraisals.

4. Petitioner testified that Respondent requested that clerical staff participate in a clerical rotation in the Health Department’s Dental Clinic. Petitioner went to the Dental Clinic to train on the AS400 System. Petitioner testified that on July 18, 2003 she suffered an asthma attack in the Dental Clinic. Petitioner testified that she was in the Dental Clinic for about five minutes. Petitioner testified that everyone at work knew that she had asthma and allergies. Petitioner testified that she told the Respondent that something in the Dental Clinic caused her to have an asthma attack. Petitioner said she could not work in the Dental Clinic.

5. On July 21, 2003, Respondent gave Petitioner a letter. Respondent requested that the Petitioner obtain a physician’s note stating the extent and limitations of her health issue and the special accommodations that Petitioner’s physician believes was necessary. Petitioner testified that she went to see her primary care physician Dr. John T. Kihm.

6. Dr. Kihm testified that according to the Petitioner there seemed to be factors at work that were making Petitioner’s breathing worse. (T. Kihm pg. 21). Dr. Kihm wrote a doctor’s note on July 22, 2003. Dr. Kihm testified that at the time he wrote the note he was unaware as to what those adverse factors were that was affecting Petitioner’s breathing. (T. Kihm pg. 20- 21). Dr. Kihm testified that he provided a general statement to try to protect Petitioner from those unknown adverse factors. Dr. Kihm’s note read that

“Mrs. Lois Murphy has severe asthma, affected by heat, allergens and exertion. Exposure to adverse factors &/or poor air quality flows has the effect of flaring her asthma. I recommend a work environment with adequate ventilation for her condition.”

7. Petitioner gave Respondent the note on July 22, 2003. In response to the doctor’s note, Respondent conducted an air quality study. The Indoor Air Quality Evaluation study was completed on July 28, 2004. The study compared the air quality of the Dental Clinic, the Health Education Department’s basement, the Community Health’s basement and the outside air of the Health Department. The report concluded that both the air quality in the Health Education Office and the Dental Clinic were normal for the office. The study showed that there was some mold spores in all areas tested. The number of mold spores found was minute.

8. Petitioner testified that on August 11, 2003, Respondent gave Petitioner a letter regarding temporary assignment to the Dental Clinic along with a copy of the study. Based on the study, Respondent requested that Petitioner participate in the Dental Clinic rotation. Petitioner testified that on August 12, 2003, she gave Respondent a letter acknowledging receiving the study, but disagreeing with the results. Petitioner’s letter did not mention being allergic to mold. Petitioner requested Family Medical Leave (FML) effective August 12, 2003. FML was granted. Petitioner took medical leave with an anticipated return date of December 3, 2003. A doctor’s note was submitted on a prescription fax form consisting of two short sentences to support the request. On December 2, 2003, Petitioner requested that her medical leave be extended to January 9, 2004. No documentation was received by Respondent to support Petitioner’s request, but the extension was nonetheless granted. On January 6, 2004, Petitioner requested that her medical leave be extended to February 6, 2004. A doctor’s note consisting of one sentence was submitted. Respondent granted an extension of medical leave until February 9, 2004.

9. While out on FML, Petitioner testified that Dr. Kihm sent her to see Dr. Robert A. Taylor. Dr. Taylor practices otorhinolaryngology. Dr. Taylor saw Petitioner on December 8, 2003. Dr. Taylor testified that his consult was to rule out paradoxical vocal cord dysfunction. Dr. Taylor testified that he diagnosed Petitioner with allergic rhinitis and a working diagnosis of reactive air way disease. Dr. Taylor could not testify conclusively as to whether Petitioner has asthma and/or allergies. Although, Petitioner testified that she was allergic to mold, neither Dr. Taylor nor Dr. Kihm testified conclusively that she was allergic to mold.

10. Petitioner testified to writing Dr. Kihm several letters on September 25, 2003, November 7, 2003 and February 5, 2004. Petitioner testified that these letters were written in reference to her disability claim with Unum Provident Insurance Company (Unum). In the letters, Petitioner outlined what she believed were the restrictions and limitations that Dr. Kihm should report to Unum. During this time period, Dr. Kihm wrote Petitioner several doctors notes for submission to her employer dated December 2, 2003, January 5, 2004, February 2, 2004 and April 23, 2004.

11. Dr. Kihm testified that he was unsure when he received the air quality study. (Kihm T.p. 57). However, Dr. Kihm testified that, if he had the study on July 22, 2003, he was not sure that he would have changed his note. (Kihm T.p. 93). Absent from the doctor’s notes were restrictions and limitations as listed in the Unum letters, anything regarding triggers for asthma, reference to mold, or any other specific allergen. In fact, when Dr. Kihm was asked whether he performed any medical evaluation of the Petitioner regarding the restrictions and limitations listed in the September 25, 2003 letter, Dr. Kihm testified that he was

“...not sure where these restrictions came from. But frankly this document did not bear any weight as far as my evaluation or treatment of Mrs. Murphy. There is too much information here. What I do with a letter like this is, I scan it. This is an example of a letter that I would scan and put in the chart for the next office visit. There is just too much information here. It’s jumbled. It doesn’t fit well together. It just needs to be put into the chart in order to put with the patient. In other words, this has to be taken in the context of seeing the patient.” (T. Kihm 48).

12. Dr. Kihm testified that his “restrictions are not that specific.” (Kihm T.p. 50). Dr. Kihm testified that the note he wrote simply stated that Petitioner “not be exposed to environments that may exacerbate her breathing condition.” Id. Dr. Kihm testified that he “never issued specific-anything more specific than this letter (referring to the note) for work restrictions.” (Kihm T.p. 52). Dr. Kihm testified that he was not sure where the limitations and restrictions of collating, assembling materials, checking supplies, inventory, providing back up coverage for the Dental Division, including participating in meetings that are in confined, congested, and stuffy areas as well as tasks which include walking, bending, stretching, and lifting came from. (Kihm T.p. 52). Dr. Kihm testified that he could not recall imposing the restrictions and limitations listed in the Petitioner’s November 7, 2003 letter, such as confinement to her apartment, being allergic to food, smoke and gas from a car. (Kihm T.p. 65).

13. Dr. Kihm testified that he has never seen the Petitioner’s work plan, received or knew what Petitioner’s duties were as an Office Assistant IV for the Health Department. (Kihm T.p. 46). Petitioner testified that Dr. Kihm never identified and/or gave her a list of restrictions and limitations.

14. Dr. Kihm testified that, on August 27, 2003, he filled out Petitioner’s disability claim form for Unum. In the area regarding patient’s ability to work where the form requests that one “fully describe restrictions and limitations,” Dr. Kihm testified that in that section under restrictions, he wrote that Petitioner was “disabled.” (Kihm T.p. 81). Dr. Kihm testified that he indicated on the form that he had not released the Petitioner on August 27, 2003 to return to any occupation. (Kihm T.p. 86). During the hearing, Dr. Kihm testified that if Petitioner has an asthma flare her rescue medicine should help her recover relatively quickly. (Kihm T.pp. 43-44). Dr. Kihm testified that Petitioner was stable and could return to work. (Kihm T.p. 42). Dr. Kihm stated that he believed if Petitioner came in contact with an aggravating smell, he thought she would have temporary discomfort but that inhaling on the Albuterol once or twice and getting away from that temporary exposure would solve the problem. Dr. Kihm stated that some of the problems Petitioner might encounter would have to do with the intensity and duration of the exposure. He believed that normal working places don’t contain significant amounts of things Petitioner may have concern with regarding dog hair, dog feces, grass, smoke, perfume, deodorant, spores in the room and a dusty room.

15. Petitioner testified that Respondent could accommodate her by placing her in a work area that was not detrimental to her health, no perfume, smoke, with an escape route if she came into contact with any allergens. Petitioner testified that the Respondent could accommodate her by allowing her to arrive late on days when one of multiple allergens triggered an asthma and/or allergy attack. Petitioner testified that Dr. Kihm never agreed with her stated restrictions and limitations. (T. Petitioner 10/25/04 Hearing). Petitioner testified she did not know all of her limitations and/or restrictions.

16. Petitioner stated in a September 23, 2003 letter to Dr. Kihm that she was restricted from working around perfumes and scents from machinery that included laminating machines. Petitioner also indicated that she was restricted from working or participating in meetings in confined, congested and stuffy areas as well as areas of heat including heat from a copier. Petitioner indicated that she was limited in collating, assembling materials and providing back-up coverage in the Dental Division. Petitioner indicated she may have a problem dealing with the public, in that if someone came into the Public Health Department and had the smell of cigarette smoke on them, or if someone came in with a perfume smell, she could not be near that person.