SAN ANTONIO — A federal judge has awarded summary judgment to defendants on tort claims filed by a woman who alleged that she suffers from sick building syndrome as a result of her exposure to mold. Burnley v. City of San Antonio, No. SA-02-CA-0489 (W.D. Texas).

Judge Nancy Stein Nowak of the U.S. District Court for the Western District of Texas ruled Jan. 6 that plaintiff Dorothy Burnley's mold-related negligence and wrongful denial of workers' compensation claims are barred by workers' comp statutes, but held that Burnley may proceed with allegations asserted under the Americans With Disabilities Act.

Burnley sued the City of San Antonio in April 2002, alleging that during her course of employment with the city, she was diagnosed with chronic rhinitis and sick building syndrome resulting from exposure to certain building-borne molds at her workplace.

Burnley contended that prior to filing her complaint, she had been instructed not to return to work until the mold and fungi had been abated. The city hired Operational Technologies Corporation to investigate and abate any mold at Burnley's workplace, which OPTEC did successfully. Following extended leave, Burnley was directed to return to work, but she maintained that the mold at her workplace had not been completely abated and that her employer failed to honor her request for reasonable, mold-free accommodation in violation of state and federal anti-disability statutes. Burnley further averred that she was denied full workers' compensation coverage on all of her work-related illnesses.

After removing the claim to federal court on the ground that the case presented questions under the Americans With Disabilities Act, the city filed a motion for summary judgment arguing that Burnley was unable to meet all the requisite requirements of her ADA claim and that she cannot similarly cannot recover on her tort-based negligence and discrimination claims.

Specifically, the city asserted that Burnley's claim for accommodation under the ADA fails because she has not established that her condition constitutes a disability as contemplated under the ADA, or that her accommodation request was reasonable and would allow her to perform essential job functions. The city further contended that the plaintiff's personal injury and wrongful denial of workers' compensation allegations are barred by Texas' workers' compensation statutes, which immunizes employers from such suits as the one filed by Burnley. The defendant also noted that Burnley cannot bring claims against her employer for improper denial of benefits because she failed to exhaust her administrative remedies for resolving such claims.

Burnley also filed a motion for summary judgment, which the court construed as a supplemental opposition to the city's motion and, therefore, denied.

However, Judge Nowak found that there existed genuine issues of material fact that precluded summary judgment on Burnley's ADA and labor claims, ruling that the extent of the plaintiff's impairment — specifically its impact on her major life activities — is a question that is inappropriate for summary adjudication.

'The evidence before me indicates that plaintiff has been diagnosed with chronic rhinitis, an ailment of the respiratory system which, necessarily affects her breathing,' Judge Nowak wrote. 'Plaintiff has submitted evidence of diminished lung capacity and missed work as a result of her illness. There is, therefore, a genuine issue of material fact as to whether plaintiff's impairment (chronic rhinitis) interferes with plaintiff's breathing (a major life activity) 'in such a way as to constitute a disability.''

The judge also held that the reasonableness and feasibility of Burnley's proposed accommodation for placement in a mold-free environment is a question of fact.

On Burnely's tort claims, Judge Nowak opined that the plaintiff has conceded that defendant City of San Antonio is her employer, and in doing so, has invoked the applicable authority, which establishes that she is precluded from asserting a claim against the defendant for personal injuries she allegedly suffered as a result of the city's negligence.

'As such, defendant's motion for summary judgment is granted as to plaintiff's negligence (personal injury) cause of action,' the judge said.

Barred, as well, are Burnley's claims for wrongful denial of workers' compensation benefits, Judge Nowak said, adding that Burnley has failed to exhaust her administrative remedies for seeking benefits under the workers' compensation statute.

Burnley is represented by W. Baily Barton and Sarah A. Scott of the Law Offices of W. Baily Barton in San Marcos, Texas.

The City of San Antonio is represented by Amy M. Eubanks of the Office of the City Attorney in San Antonio.

For more information, contact:

Alan L. Wozniak, CIAQP

800-422-7873 ext. 802