CASE SUMMARY
 
PROCEDURAL POSTURE: Appellee Florida Unemployment Appeals Commission (Commission) reversed a decision of the appeals referee and held that appellant employee was not entitled to unemployment benefits. The employee appealed.
 
OVERVIEW: The employee challenged the judgment entered. The appeals court concluded that the Commission ignored and modified the referee's fact findings on critical matters, which was erroneous. The appeals referee found that the employee was diagnosed with bronchitis and pneumonia as a result of the conditions surrounding her work environment. Although her employer took some steps to correct the problem, those steps were inadequate. While the employee admitted she could have continued to work in those conditions, she only did so because she needed the money and benefits. The fact that she stayed on the job did not mean the unhealthy conditions were remedied. While the employee testified her doctor said her illnesses were caused by mold and mildew in the office, poor air-conditioning, and the ventilation system, there was no evidence these were cleaned. The Commission further stated that it was not established that the employer violated the terms of the employee's employment by cutting her hours or by requiring her to wear her work uniform while on duty. However, the appeals referee made no findings on these two issues, both of which were disputed by the parties.


Reversing a decision to deny unemployment benefits, a Florida appeals court on April 16 ruled that although an employer took steps to remedy mold and other environmental problems, it did not establish that the problem was totally remedied (Penelope Kloepper v. Unemployment Appeals Commission, No. 5D03-1194, Fla. App., 5th Dist.

Penelope Kloepper was a front desk agent at the Ramada Inn, operated by Fountain Park Hospitality Inc. In October 2002, Kloepper quit her job and requested unemployment benefits.

After her unemployment request was denied, Kloepper requested a hearing, at which she testified that she left her position because she was being forced out. Kloepper noted that her work hours were being cut and that she became ill as a result of unhealthy conditions at the site. Kloepper maintained that her office was contaminated with mold, mildew and other contaminants.

An unemployment appeals referee ruled in favor of Kloepper, but the Unemployment Appeals Commission reversed that decision.
 
Findings Modified

The Fifth District Florida Court of Appeal reversed the commission's decision after finding that the commission ignored and modified the referee's fact findings.

The appeals court noted that although the commission may reach a different conclusion of law from that of the referee, it may not modify a referee's findings of fact to reach a different legal conclusion or rely on facts that were not established at the hearing conducted by the referee.

"Here, the appeals referee specifically found that Kloepper was diagnosed with bronchitis and pneumonia as a result of the work environment," the court said. "Kloepper should not have to work in an environment which causes bronchitis and pneumonia. Although Kloepper's employer did take some steps to correct the problem, the appeals referee did not find these steps actually corrected the problem."

Finding that the employer took some steps to remedy the problem but did not establish that the problem was in fact remedied, the appeals court reversed the commission's decision.
 
Florida Employee Alleges College Knowingly Exposed Her To Mold

A Florida college willfully and wantonly allowed mold contamination to remain in a public facility, according to an April 15 complaint filed by a college employee (Carolyn Hayes v. The District Board of Trustees of Brevard Community College, No. CA 18859, Fla. Cir., Brevard Co.). 
 
Carolyn Hayes sued The District Board of Trustees of Brevard Community College in the Brevard County Circuit Court. Hayes worked for the college as an associate professor.

Hayes maintains that the college has known and been placed on notice that she suffers from respiratory problems. She alleges that her respiratory problems are exacerbated by exposure to environmentally contaminated classrooms in which the college requires her to work. Mold is cited as one of the environmental contaminants.

After experiencing several respiratory attacks while working in the college, Hayes says she told the college that she could work in various areas of the college facilities but that the particular areas that she had been asked to provide services in were not acceptable because of the environmental contaminants contained in those areas.

"Other employees have developed asthma by working in the same areas as required of the Plaintiff. In fact, the Plaintiff has been told by the Defendant that even new facilities owned by the Defendant have excessive problems with book mites, mold and mildew problems," Hayes asserts.

Hayes alleges that the college has failed to provide reasonable accommodations for her and has discriminated against her based upon her disability.

Moreover, Hayes maintains that the college has the responsibility and duty to provide a safe and healthy physical environment for its employees and students. Hayes adds that the college had a duty to prevent, eliminate or properly remove dangerous substances, including mold, mildew and unsafe levels of various toxins in the facility.

Finally, Hayes alleges that the college is aware of contamination in the facilities by airborne contaminants such as mold. However, Hayes maintains that the defendant has willfully and wantonly allowed these contaminants to remain in the public facility.

The complaint was filed by Mark S. Levine of Levine, Stivers & Myers in Tallahassee, Fla.
 
Maytag Seeks To Consolidate Class Claims That Washing Machines Caused Mold Growth
 
RALEIGH, N.C. - Facing separate but related class action suits alleging that front-load washers contain defects that cause mold and mildew to grow inside them, Maytag Corp. filed a motion to transfer and consolidate the cases before the Judicial Panel on Multidistrict Litigation (MDL) (In re: Neptune Washer Products Liability Litigation, No. 1529, JPML; Robbie Lee Bishop v. Maytag Corp., et al., No. 04-1126-13, D. S.C., Teddy Nichols v. Maytag Corp., et al., No. 04-0346, D. W.Va., Edward Raniszewski v. Maytag Corp., No. 04-2239, W.D. Tenn., Tammy R. Stys, et al. v. Maytag Corp., No. 5:04-cv-320, E.D. N.C.).
 
 
Tentative $4.25 Million Settlement Reached In Employee Mold Case

A tentative $4.25 million settlement was reached March 28 with building owners and insurers in a consolidated case in which employees alleged that exposure to mold and other toxic substances caused personal injuries, sources told Mealey Publications (Sherry Watters v. Department of Social Services, et al., Kristen Rhodes, et al. v. BG Real Estate Service Inc., et al. and Mary Johnson, et al. v. Department of Social Services, et al., Nos. 01-1775, 01-18355 and 02-14043, La. Dist., Orleans Parish).

Employees of various Louisiana state government agencies allege that they were exposed to mold and other toxic substances during their employment in the Plaza Tower Building in New Orleans. Employees allegedly complained of water leaks that led to mold growth and delamination of asbestos-containing materials.

 
New Jersey Residents File Proposed Class Action Complaint Over Defects, Mold

Homes built for the 55 and older community contained several construction defects that caused mold contamination, according to an April 19 proposed class action complaint filed in the Gloucester County, N.J., Superior Court (Nicholas H. Martino, et al. v. Holiday City at Monroe Inc., et al., No. 664-04, N.J. Super., Gloucester Co.).

Nicholas Martino and others filed the proposed class action against Holiday City at Monroe Inc. and Hovsons Inc.

Hovsons is a mass builder and developer of residential housing. Holiday City is a community of 624 homes developed by Hovsons, exclusively for residents 55 and older.
 
Water Infiltration

Martino alleges that the defendants built and sold residences that contain substantial defects, including water infiltration in the crawl spaces. Martino alleges that these defects violated the warranties and created an unreasonable threat of mold damage.

The plaintiffs seek injunctive relief establishing a program for the inspection and monitoring of 624 of the units owned by the class, an education program of maintenance and remediation to eliminate the hazardous conditions.

The proposed class is defined as "all current Holiday City owners of homes constructed by Hovsons Inc. that have water infiltration resulting in defective structural conditions."

The plaintiffs also seek to create three subclasses for plaintiffs who have mold contamination, plaintiffs who have personal injuries caused by mold and plaintiffs who have suffered property damage by inadequate water drainage in common areas.
 
Defects Cited

Among the defects cited by the plaintiffs are that the homes were set approximately 8 to 12 inches too low in the ground; that the homes have a deficient wood soil clearance; that the homes are constructed on sites with a high seasonal water table and that the crawl spaces allow water infiltration from the water table; that the perimeter grade established around the homes fails to provide proper control for runoff; and that there's standing water in or near the homes within 48 hours after a modest rainfall.

Claims asserted include violation of the Consumer Fraud Act, implied warranty of habitability, implied covenant of construction in a good workmanlike manner, negligence, strict liability and punitive damages.

The plaintiffs are represented by David Jacoby, Lawrence R. Cohan and Miriam B. Barish of Anapol, Schwartz, Weiss, Cohan, Feldman & Smalley in Philadelphia
 
 

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