Petition for Writ of Certiorari — Gupton v. Virginia
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931 802MAY9 1994
NO. \
& OF THE CLERK
IN THE OFFIC
Supreme Court of the United States
October Term, 1993
BETTY GUPTON,
Petitioner
Vv.
COMMONWEALTH OF VIRGINIA, et al.
Respondent
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
WILLIS J. SPAULDING
Counsel for Appellant
210 Eighth Street, N.E.
P.O. Box 1774
Charlottesville, Virginia 22902
(804) 979-9777
Brief Printing Specialist, 1001 E. Main Street, Suite 210
Richmond, Virginia 23219, (804) 644-7000
eee
i
STATEMENT OF ISSUES PRESENTED FOR REVIEW
1. Did the Court -f Appeals overlook
material facts which
established that the plaintiff was
“handicapped” as defined in 29
U.S.C. § 794?
2. Did the Court of Appeals err in its
interpretation of the definition of
“handicapped” as defined in 29
U.S.C. § 794?
3. Did the Court of Appeals err in
affirming the decision of the Court
of Appeals granting the respondent
summary judgment on petitioner’s
claim under Section 1983 of the
Civil Rights Act of 1964?
ii
PARTIES TO THIS PROCEEDING
BETTY F. GUPTON
COMMONWEALTH OF VIRGINIA
RAY D. PETHEL
WILLIAM BRYANT
Nc — EN RTC I eae
m ce ATT!
tial
iii
TABLE OF CONTENTS
Guaeweauee PREOEwEMe «6 « ts ec th et ee le ok
PARTIES TO THIS PROCEEDING. ..... ii
TABLE OF AUTHORITIES. .......2.. iv
ee nS in G4 we es 8 wt Se ee
Pe bee gd 6) aie 6 oe
STATUTORY PROVISIONS INVOLVED .... 2
ee KR Ee ae ee a ee ee
I. FACTS AND NATURE OF THE CASE . 3
II. THE PROCEEDINGS BELOW... .10
REASONS FOR GRANTING THE WRIT. ....1I1
ns +6 © 0 6. @ Sete «cc aw a
eae © + .6 6 +s 6 6 « 6 6 * & eee
iv
TABLE OF AUTHORITIES
Cases Page(s)
Carter v. Tisch, 822 F.2d 465
(4th Cir. 1987)
Se er ae at ee? Oe a ee 32,35
ey v. Koch, 892 F.2d 212
(2nd Cir. 1989)
. * .* >. . _ = . 7 . — . . + . 34
o t 7 Vv ,
497 F.Supp. 1088 (D.Hawaii 1980)
. . . o . * a . . o * 7 . . o 20
Vv wen, 794 F.2d 931
(4th Cir. 1986)
dt el oe Ue ee er ae ee a passim
Gupton v. Virginia, 14 F.3d 203
(4th Cir. 1994)
a ke ae tae a ee eee ee passim
Harris v. Adams, 873 F.2d 929
(6th Cir. 1989)
° . 7 . . . *. . . . > . . 7 . 31
Jackson v. State of California, 740 F.
2d 1534 (9th Cir. 1991)
ae te one ee ee oe ee ee 32
Magel _v. Federal Reserve Bank of
Philadephia, 776 F.Supp. 200
(E.D.Pa. 1991)
gr = ea 31
Maulding v. Sullivan, 961 F.2d 694
(8th Cir. 1992)
. * s . . . . = . . « . * ” . 33
Miller v. AT&T Network Systems, 915 F.
2d 1404 (9th Cir. 1990)
. . 7. a * . . . . ° 7 . . . . 33
Arline, 480 U.S. 273 (1987)
. We ee Oh et a we er eae es 36,37,40
oungb v. Romeo, 457 U.S. 307
(1982)
“Se op ee ee oe eae ee ee oar tae? ae ee ee ee 39,41
Mitchell v. Schweiker, 699 F.2d 185
(4th Cir. 1983)
. . . o . . . . . ° . . . . - 29
Vickers v. Veterans Administration,
549 F.Supp. 85 (W.D. Wash. 1982
¢ + * 2-2 @ © © 2 © 4 Soe Ss 28,29,40
Statutory and Constitutional Provisions
28 U.8.C. 6 100GCBS. « 2 te 2
29 U.S.C. § 794 (§ 504 of the
Rehabilitation Act). ..... 2
29 U.S.C. § 796(8) (A) (§ 505) . 20
vi
42 U.S.C. § 423(d)(2)(A) ... 18
42 U.S.C. § 1382c(a)(3)(B) .. 18
62 U.8.C. § 1963. «. « «© e @ « 2,37
Administrative Regulations and Rulings
45 C.F.R. Part 84 App. A. 346 (1989)
ae we ee ee a ee ee ee ee ee ee 20
Betty F. Gupton, unpublished, (Dep’t
Health and Human Services 1992)
Cee GE BB) s © te eo et 8 ee 25
|
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3
IN THE SUPREME COURT OF THE
UNITED STATES
OCTOBER TERM, 1994
BETTY F. GUPTON,
Petitioner
Vv.
COMMONWEALTH OF VIRGINIA
RAY D. PETHEL
WILLIAM BRYANT,
Respondent
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
Betty F. Gupton petitions this
Court for a writ of certiorari to review
a decision of the United States Court of
Appeals for the Fourth Circuit entered
on January 13, 1994.
OPINIONS BELOW
The January 13, 1994 decision of
the United States Court of Appeals for
2
the Fourth Circuit in No. 92-1319, is a
published opinion which appears at 14
F.3d 203 (4th Cir. 1994). The March 6,
1992 opinion of the United States
District Court for the Eastern District
of Virginia in Civil Action No. 91-358
is an unpublished decision. Hence, thére
is no citation reference for this
Opinion. App. at 6a.
JURISDICTION
This Court has jurisdiction
pursuant to 28 U.S.C. § 1254(1).
STATUTORY PROVISIONS INVOLVED
This case involves section 504 of
the Rehabilitation Act of 1973, 29
U.S.C. § 794 and the Civil Rights Act of
1964, 42 U.S.C. § 1983.
3
STATEMENT OF THE CASE
I.
FACTS AND NATURE OF THE SUIT BELOW
This case is about a state employee
with an unusual medical condition which
grossly impaired her functioning when
she was exposed to second-hand tobacco
smoke. Yet she was obligated by her
employer to work in a smoke-filled
office building. Her impairments were so
severe when exposed to tobacco smoke
that she eventually qualified for Social
Security benefits.
At the time of trial Betty Gupton
had been employed continuously by the
Virginia Department of Transportation
for twenty-two years. Since 1986 she
had been classified as a Highway
Utilities Specialist. In all that time
4
she never received an unsatisfactory
performance rating or disciplinary
notice.
In March of 1990 she was moved to a
new building located at 3975 Fair Ridge
Lane in Fairfax, Virginia, and assigned
to an open cubicle.
In July of 1990 she went on medical
leave without pay, which was her status
at the time of the District Court trial
in March of 1992.
Initially in the building smoking
was allowed through the work area, and
Mrs. Gupton became “desperately ill”
from the exposure to tobacco smoke. App.
at 57a. While her supervisor knew about
her problems, initially his only
restriction of smoking was to require
that employees smoke only in their
5
cubicles, which were open.
Her son testified that her
disability was so severe that he had to
prepare her meals and that she was
forced to rest most of the time while at
home. App. at 63a - 65a. Her supervisor
testified that her impairment was so
great that she would sometimes have to
be taken to the emergency room from the
office. App. at 56a.
Mrs. Gupton, as well as other
employees complained about the smoke.
App. at 62a, 65a - 66a. Finally in July
of 1990, on the advice of an Assistant
Attorney General working on her floor,
she went on medical leave without pay
and applied for disability retirement
benefits. App. at 66a - 73a. A year
later she filed this action seeking
TE a ee NE nner sure
6
damages for her suffering, back pay to
July, 1990, and reinstatement in a
smoke-free work environment.
Mrs. Gupton suffers from cancer,
hypertension, diabetes, allergic and
vasomotor rhinitis, (App. at 33a - 39a),
as well as objectively determined,
highly reactive asthma (App. 53a - 56a).
This was the testimony of a board-
certified allergist who had treated her
since 1977. App. at 46a - 48a.
Additionally she may have a
somatoform disorder. This is a mental
disorder which causes real physical
Symptoms. App. at 4la - 42a. This was
the testimony of the defendant’s medical
expert who was qualified neither as a
psychiatrist nor an allergist.
Both medical witnesses agreed that
| NTO AS mt em eae ay ei:
Chet MD. De bt
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7
her medical disorder, whether physical
or mental, caused real physical symptoms
in the presence of tobacco which
impaired her ability to perform a broad
range of work.
Both Mrs. Gupton and her physician
testified that she could return to work
if the level of tobacco smoke was
reduced. App. at 67a, 52a.
Mrs. Gupton’s past supervisor gave
expert testimony that a total
elimination of smoking in the office
would improve both productivity and
morale. App. at 58a - 62a.
Both her fellow worker, John Leddy,
and her final supervisor, William
Bryant, testified to modifications of
the workplace which were made after she
was forced to go on medical leave
without pay. A year after she left
smoking was confined by policy to closed
offices, and not cubicles, or a smoking
lounge. These changes only occurred
when John Leddy obtained a contravention
of William Bryant’s policy. App. at
80a. Mrs. Gupton, although on medical
leave without pay, was not notified of
these changes. App. at 67a - 69a.
At no time prior to her filing suit
was she offered work in a smoke-free
environment. After she filed suit, a
partial offer of compromise was made by
the defendant, which required her to
forfeit her back pay and commute to a
more distant, but temporarily smoke-free
environment. The trial court would not
permit inguiry into this compromise.
App. at 75a - 76a. Even as late as the
a ae ee
wel hot
16 ot tt
9
time of trial the state official
responsible for offering accommodation
to handicapped employees acknowledged
that he had not done so in Mrs. Gupton’s
case, although he clearly regarded her
as handicapped, simply because he had
not been aware of her handicap. App. at
76a.
The defendant’s “environmental”
expert described a number of ways in
which the smoking lounge could have been
improved, such as providing an exhaust
to the outside, rather than
recirculating its air throughout the
building. App. at 73a - 75a. There was
no evidence of the cost of these
modifications.
10
Il
THE PROCEEDINGS BELOW
The petitioner filed suit in the
United States District Court for the
Eastern District of Virginia claiming
that her employer, the respondent, had
violated Section 504 of the
Rehabilitation Act and Section 1983 of
the Civil Rights Act of 1964 by not
accommodating her handicap.
The district court granted the
respondent summary judgment on the 1983
Claim, and denying the petitioner a jury
trial, held in a bench trial that the
petitioner was not handicapped under the
Rehabilitation Act. Civil Action No. 91-
358.
On appeal the Court of Appeals for
the Fourth Circuit affirmed the decision
of the district court, deciding that the
11
petitioner was not handicapped under the
Rehabilitation Act, and deciding without
ee ee eS ee
any discussion that the district court
had properly granted summary judgment on
the 1983 claim. No. 92-1319, 14 F.3d 203
(4th Cir. 1994).
REASONS FOR GRANTING THE WRIT
The Court should grant this
| Petition for a Writ of Certiorari
because the Court of Appeals (1)
disregarded material facts establishing
that the plaintiff was handicapped,
finding her to not be handicapped
despite the finding of the Social
Security Administration to the contrary;
(2) interpreted a provision of federal
/ law, unconsidered by this Court, ina
way that contradicts Congress’ stated
12
intent; (3) rendered a decision in
conflict with decisions of this and
other Courts of Appeal on the same
matter; and (4) decided a federal
question in a way that conflicts with
applicable decisions of this Court. Rule
10.
1. The Court of Appeals disregarded
material facts establishing that the
plaintiff was handicapped and found that
she was not handicapped under the
Rehabilitation Act, even though the
Social Security Administration found her
to be disabled under the Social Security
Act.
The Court of Appeals wrongly believed
that an attempt to accommodate Mrs.
13 !
Gupton had been made by the employer in
the form of an offer to send her to a
smoke-free environment. No such offer
was made. The defendant has never
Claimed that one was made. The record
does not support the claim that one was
made. The Court of Appeals can only be
referring to an offer of compromise made
after the suit was filed which the trial
court prohibited inquiry into. App. at
75a. The official involved acknowledged
that no offer of accommodation had been
made, not because Mrs. Gupton was not
handicapped, but because the state
official was just then at the time of
trial learning of her need to be
accommodated. App. at 76a. The panel’s
erroneous belief that Mrs. Gupton had
been offered a smoke-free environment
‘
14
seems related to a general disregard for
facts showing that she suffered a global
impairment, not one isolated to peculiar
form of employment as in Forrisi v.
Bowen, 794 F.2d 931 (4th Cir. 1986).
Dr. Smith, Mrs. Gupton’s allergist
testified that he determined through a
methacholine challenge that Mrs. Gupton
had an usually reactive form of asthma.
App. at 46a - 5la. He also testified
that while there was not a true allergy
to tobacco smoke, there was “no question
that there are patients who are
sensitive.” App. at 53a. In particular
reactive asthmatics, like Mrs. Gupton,
have a medical disorder, an involuntary
»
reaction to odors such as tobacco that
trigger an attack. App. at 54a - 55a.
oe ot ella
15
The medical expert for the defense,
Dr. Witorsch, did not perform a
methacholine challenge, or any other
test, on Mrs. Gupton, and was therefore
not in position to say whether she was
truly an asthmatic. Dr. Witorsch did,
however, say that asthmatics do have an
irritant reaction to environmental
tobacco smoke. App. at 42a - 44a. In Dr.
Witorsch’s opinion, Mrs. Gupton’s
hypersensitivity to cigarette smoke
resulted from a mental disorder, a
genuine medical disorder, which caused
real, disabling, physical symptoms in
the presence of tobacco smoke. App. at
30a.
Only Dr. Smith was in a position to
know whether Mrs. Gupton was an
asthmatic, and he said that she was, by
16
objective testing. Even Dr. Witorsch’s
point of view would have to admit that
she could have had a reaction to tobacco
smoke because of her asthma.
Witorsch and Smith agree, then,
that the employee had a medical disorder
that caused physical symptoms in the
presence of tobacco smoke, and that as a
general principle asthmatics will have
an irritant reaction to environmental
tobacco smoke. They differ in that Dr.
Smith says she has a highly reactive
form of asthma and Dr. Witorsch says she
has a medical, somatoform disorder that
causes real, physical symptoms.
Both lay and medical witnesses
testified to the existence of an
extraordinarily severe respiratory
condition that massively impaired Mrs.
17
Gupton’s functioning across a wide range
of office tasks and activities of daily
living. To conclude that a woman who
needed someone to prepare her meals at
times because of her impairment, was
confined to her house at times because
of her impairment, and was rushed from
an ordinary white collar job to the
emergency room because of her
impairment, is not “handicapped” for the
purposes of Section 504, is nothing
short of an open defiance of the clear
intention of Congress in passing that
law. Just how much proof of “handicap”
is necessary, before the central issues
of what accommodation is due can be
reached?
SO apparent was the severity of
Mrs. Gupton’s impairment that the Social
18
Security Administration determined that
as of the time that Mrs. Gupton had to
leave active employment, or about May 1,
1991, she was disabled as that term is
defined by the Social Security Act.
Under the act, an individual
shall be determined to be
handicapped if his physical or
mental impairment or impairments
are of such severity that he is not
only unable to do his previous work
but he cannot, considering his age,
education, and work experience,
engage in any other kind of
substantial gainful work which
exists in the national economy...
42 U.S.C. §§ 423(d)(2)(A) and
1382c(a) (3) (B).
This determination was made on the
basis of medical reports in the
Appendix. While the defendant took
issue with the claim that this
impairment was worsened by exposure to
second-hand smoke, nobody doubted that
19
she was severely impaired, or otherwise
challenged the veracity of those
reports.
The decision of the Court of
Appeals therefore makes the definition
of “handicap” more difficult to meet
than the definition of “disability”
under the Social Security Act, when it
should be easier to meet since it is
intended to be applied to working
individuals.
2. The Court of Appeals has rendered an
interpretation of federal law, not
considered by this Court, which
contradicts Congress's stated intent.
Section 505 of the Rehabilitation
20
Act, 29 U.S.C. § 796(8) (A), defines the
term “handicapped” used in § 504. The
handicap can consist of either a mental
or physical impairment that
“substantially limits one or more of
such person’s major life activities.”
Regulatory analysis makes it clear that
the term handicapped is not restricted
to just those persons who have “severe,
permanent or progressive conditions that
are most commonly regarded as
handicaps.” 45 C.F.R. Part 84 App. A.
346 (1989).
In E.E. Black, Ltd. v. Marshall,
497 F.Supp 1088 (D. Hawaii, 1980), the
court held that “impairment” means: “any
condition which weakens, diminishes,
restricts or otherwise damages an
individual’s health or physical or
21
mental activity.” Id. at 1093. A person
is “substantially limited if he or she
is likely to experience difficulty in
securing, retaining or advancing an
employment because of a handicap.” Id.
at 1091.
The legislative history of the
Americans with Disabilities Act of 1990
reveals that Congress intended that a
person be considered handicapped under
that legislation if she meets the
criteria for handicap under the
Rehabilitation Act of 1973. The act of
1990 defined a disability with language
identical to that of a handicap in the
act of 1973. The House Committee Report
for the act of 1990 proves that the
language was meant to include a severe
allergy. The report concludes that a
22
severe allergy, such as one that causes
skin rashes or seizures, is a
disability. (A40-41, 4 U.S. Cong. News
‘90 Bd. Vol. Legislative History at 451-
52; H. Rep. No. 101-485 (II) at 28-29.)
This Court has yet to rule on
whether a severe allergy may constitute
a handicap under either the Americans
with Disability Act or the
Rehabilitation Act. However, by
improperly relying on a previous case in
the Fourth Circuit, the Court of Appeals
has rendered a decision against the
letter and spirit of the Rehabilitation
Act.
The Court of Appeals looked to
Forrisi v. Bowen, supra, for guidance on
the question of who is “handicapped” for
the purposes of § 504. Forrisi found an
23
employee who had a pathological fear of
heights and whose job required Climbing
to heights, not to be “handicapped.”
Underlying this decision was the belief
that § 504 confers positive benefits
upon certain people in the same manner
that the Social Security disability
program does, and that plaintiffs must
first qualify for these benefits.
Reasonable accommodation, seen from this
perspective, is a transfer of wealth
from the employer to the handicapped
employee, or a transfer of opportunity
from all potential job applicants to the
handicapped applicant. The greater the
magnitude of this benefit is thought to
be by a court, the more carefully it
will guard access to it. By contrast,
the more closely a court analogizes §
24
504 to the Equal Protection Clause, not
requiring so much affirmative action as
simple cost-effective rationality, the
lower it will set the threshold
qualification of proving that the
plaintiff is handicapped.
As interpreted by the Court of
Appeals in this case, Forrisi sets the
threshold requirement of being
“handicapped” so high that anyone who
meets it will run the risk of being
found unable to work even with
accommodation. After all, Mrs. Gupton
was determined to be eligible for Social
Security disability benefits. Congress
could not have intended that for a
person with a disability to work, in a
setting free from irrational barriers,
she first demonstrate that her
25
impairment is greater than what is
required to receive benefits for not
working at all.
The district court noted that Mrs.
Gupton was denied “disability
retirement” under the State of
Virginia’s laws. No. 14, App. at 12a.
Shortly after the trial, however, the
Social Security Administration, without
the necessity of a hearing before an
administrative law judge, ruled that
Mrs. Gupton was disabled. Betty c.
Gupton, unpublished, (Dep’t Health and
Human Services 1992), App. at la-Sa.
Neither decision is dispositive of the
question of whether Mrs. Gupton was
“handicapped” for the purposes of § 504,
but the fact that someone can be found
“disabled” for the purposes of Social
26
Security and not “handicapped” under
Forrisi on the same evidence suggests
that Forrisi is susceptible to
misapplication, and should not be a
general guide in § 504 cases.
Forrisi involved an employee ae
had 1) an uncommon or “singular” work
environment, which included scaling
heights and 2) a common impairment, fear
of heights. Mrs. Gupton had a 1)
common work environment, a modern
enclosed office building, and an 2)
uncommon impairment. Her physician, Dr.
Smith, who had been treating her for
fifteen years (App. at 46a) concluded,
after performing the methacholine
challenge test, an objective test (App.
at 48a): that
she really exists as a subset
of patients that is highly
CC
27
likely to be very reactive to
a variety of both allergic and
non-specific irritational
stimuli.
While Dr. Smith noted that fifteen
to twenty percent of the population have
some form of asthma, he emphasized that
as proven by the methacholine challenge
test, Mrs. Gupton belongs to a small
subset of asthmatic persons that are
very reactive.
The practical and doctrinal
difficulties of requiring employers to
accommodate widely distributed traits
such as fear of heights, near-
sightedness, or even asthma do not exist
in this case. Nor is the impact of this
rare disorder confined to the “singular
demands of a particular job.” Forrisi,
Supra, at 934. Mrs. Gupton has an
unusual combination of impairments which
28
include an extraordinarily severe form
of asthma, which bars her from working
in all office settings in the presence
of environmental tobacco smoke just as
surely as a set of steps would prevent a
wheel-chair bound employee from working
there.
Vickers v. Veterans Administration,
249 F.Supp 85 (W.D. Wash. 1982) the only
decision that reached the merits of a §
504 claim based on ultrasensitivity to
tobacco smoke, readily found, without
requiring any medical proof, that the
plaintiff was “handicapped,” because
working in an office that is not smoke
free is a major life activity. Id. at
87. This decision still stands with
respect to its definition of what a
major life activity is. The proof in
29
this case went beyond that in Vickers to
establish an impairment that sometimes
interfered with Mrs. Gupton’s ability to
perform such activities of daily living
as cooking for herself.
Mrs. Gupton’s position is that
Forrisi does not provide the appropriate
guide for determining who is
“handicappped” for the purposes of §
504, where either the work environment
is ordinary, or the impairment is
extraordinary, both of which are the
case here. The general rule should be
to rely on the testimony of a treating
physician, as would be the case in all
Social Security disability
determinations in this Circuit.
Mitchell] v. Schweiker, 699 F.2d 185 (4th
Cir. 1983). The focus of a § 504 action
———-
30
then shifts to the question of
accommodation where it belongs.
By interpreting its own holding in
Forrisi to deny Ms. Gupton recovery, the
Court of Appeals has applied the
Rehabilitation Act in a way never
intended by Congress. This Court should
review the decision of the Court of
Appeals to determine whether federal law
has been misapplied.
3. The decision of the Court of Appeals
conflicts with the logic and holdings of
this and other Courts of Appeal on the
same question.
Federal courts have held that
conditions which radically affect the
respiratory system constitute a handicap
within the meaning of the Rehabilitation
31
Act. In Vv Vv fe)
Philadelphia, 776 F.Supp. 200 (E.D.Pa.
1991), a federal district court in the
Third Circuit held without any
discussion that the plaintiff’s asthma
was a handicap under the Rehabilitation
Act and caused her to be absent from
work. In Harris v. Adams, 873 F.2d 929
(6th Cir. 1989), the Sixth Circuit Court
of Appeals denied the plaintiff recovery
under the Rehabilitation Act because he
had not alleged that his asthma
substantially limited a major life
activity. The court did not say that
asthma could never constitute a handicap
under the Rehabilitation Act; the test
is not whether or not plaintiff has
asthma, the test is whether this
condition substantially limits a major
32
life activity. The Fourth Circuit has
even held in the case of Carter v,
Tisch, 822 F.2d 465 (4th Cir. 1987) that
a plaintiff was handicapped by asthma,
though his employer did not have to
accommodate his handicap.
Additionally, the Ninth Circuit has
held that “closed building syndrome,” an
endocrinological disorder causing
lethargy, difficulty concentrating and
fatigue, is a disability under § 5064 of
the Rehabilitation Act in Jackson v.
State of California, 940 F. 2d 1534 (9th
Cir 1991).
Under the logic of these cases, Ms.
Gupton is handicapped as her respiratory
condition does significantly impair a
major life function. Even cases in other
circuits denying handicapped status
33
offer no language or logic supporting
the proposition that Mrs. Gupton’s
disorder is not a handicap.
As the Court of Appeals cited,
there are cases in other circuits which
hold that a person is not handicapped
where her impairment only affects her
ability to perform a task specific to
the unique job in question. In Maulding
v. Sullivan, 961 F.2d 694 (8th Cir.
1992), the defendant was allergic to the
chemicals used in the laboratory where
she was a laboratory assistant. In
Miller v. AT&T Network Systems, 915 F.2d
1404 (9th Cir. 1990), the defendant was
employed as a traveling repairman for
AT&T, but was unable to live or work in
temperatures above 90 degrees and was
dismissed from his job when he was
34
unable to live in Phoenix as required by
his job. In Daley v. Koch, 892 F.2d 212
(2nd Cir. 1989), the Court of Appeals
held that a plaintiff was not considered
to be handicapped by his potential
employer where the New York Police
Department considered him to have bad
judgment.
These cases deny recovery to the
plaintiff only where her ailment limits
her ability to perform a specific
requirement of the job in question, but
leaves her perfectly able to perform
other jobs. Asthma, where it
substantially limits a major life
function, has been held to be a handicap
in the above cited circuits; no case
attempts to limit the import of those
holdings. While all circuits have not
35
expressly stated that a respiratory
disorder significantly impairing a major
life activity is a handicap, no circuit
contests this notion. Given the
precedents in each circuit, Mrs. Gupton
would, almost certainly, have been
considered handicapped in every Circuit
except the Fourth. And even the decision
of the Fourth Circuit in this case
contradicts the seeming meaning of its
decision in Carter v. Tisch, supra.
The petitioner therefore prays this
court review the anomaly between the
holding in this case and the weight of
authority indicating that such a person
is handicapped.
4. The decision of the Court of Appeals
36
is in conflict with the applicable
decisions of this Court.
This Court held in School Board of
Nassau County v. Arline, 480 U.S. 273,
279 (1987), that “major life activities”
as intended by the statute include
“functions such as caring for one’s
self, performing manual tasks, walking,
seeing, hearing, speaking, breathing,
learning and working.” The plaintiff
suffered from tuberculosis “in an acute
form in such a degree that it affected
her respiratory system” and she was
hospitalized for this condition. The
fact that she had been hospitalized for
this impairment was more than sufficient
to establish a record of impairment. Id.
at 281.
The petitioner’s record of
37
impairment is no less compelling. She
has been unable to care for herself, her
ability to breathe has been impaired,
and she has been rendered unable to work
as a result of her severe allergy to
cigarette smoke. The import of Arline
requires a decision contrary to the
holding of the Court of Appeals.
The Fourth Circuit, also contrary
to the decisions of this Court, affirmed
the decision of the district court to
grant summary judgment on petitioner’s
Claims under Section 1983 of the Civil
Rights Act of 1964. 42 U.S.C. § 1983.
Affidavits presented by the petitioner
showed that the failure to ban smoking
altogether from her workplace was a
; deliberate, irrational act by her
supervisors, Bryant and Pethel,
38
unrelated to any legitimate government
purpose. Apart from vague, conclusory
Claims in the defendants’ affidavits
that permitting smoking among employees
is good for morale or productivity,
Claims totally unsupported by any
evidence, and rebutted by petitioner’s
affidavits, and the testimony of William
Curtis, a retired supervisor (App. at
58a - 61a), no rationale for refusing to
ban smoking was offered.
There is no question in this case
that the respondents knew or should
have known that there were a few
unhealthy employees such as Betty Gupton
in the workforce who would be hurt By
anything less than a total ban on
smoking, both physically and, because
they would be forced to leave
39
employment, economically.
In the absence of any evidence
justifying respondent’s exposure to harm
and loss of employment from a failure to
ban smoking, the respondents are liable
for damages to the petitioner under
Section 1983 of the Civil Rights Act of
1964.
The supervisors’ deliberate
infliction of harm on Mrs. Gupton
violates the Due Process Clause no less
than if it had been done in one of the
state’s prisons in violation of the
Eighth Amendment. Youngberg v. Romeo,
457 U.S. 307, 315 (1982). ("The right to
personal security constitutes a
‘historic liberty interest’ protected
substantively by the Due Proecess
Clause.”)
40
No defendant, after Vickers and
Youngberg were decided, and the Surgeon
General’s Report on involuntary smoking
was made public can legitimately claim a
qualified immunity for harming an ill
and vulnerable state employee through a
totally irrational, and in the case of
respondent Bryant, a chronic smoker,
self-serving, action.
The petitioner therefore prays this
Court review the decision of the Court
of Appeals to determine whether the
Court failed to correctly apply the
decision in Arline and whether the Court
incorrectly ruled that the respondents
actions did not violate the Due Process
Clause of the Fourteenth Amendment.
CONCLUSION
41
For the above reasons, the Court
should issue a writ of certiorari to
hear this case and to reverse the
decision of the Fourth Circuit finding
that the petitioner was not handicapped
within the meaning of the Rehabilitation
Act. No federal case offers support for
the decision of the Court of Appeals and
decisions of this Court and federal
courts in many circuits require a
contrary holding. Further, the action of
the Fourth Circuit violates the
substantive due process right of an
individual to not be deliberately harmed
by the state under Youngberg v. Romeo,
Supra.
Respectfully submitted,
42
Willis J. Spaulding
210 Eighth Street, N.E.
P.O. Box 1774
Charlottesville, VA 22902
(804) 979-9777
43
No. 94 -
IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 1994
BETTY GUPTON,
Petitioner
Vv.
ee
COMMONWEALTH OF VIRGINIA, et al.
Respondent
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
APPENDIX TO PETITION FOR WRIT OF CERTIORARI
WILLIS J. SPAULDING
Counsel for Appellant
210 Eighth Street, N.E.
P.O. Box 1774
Charlottesville, Virginia
22902
(804) 979-9777
eee ee ae ie
Social Security Notice
From: Department of Health and Human Services
Social Security Administration
Betty C Gupton
210 8th Street NE
Charlottesville, Virginia 22902
Date: Apr 26, 1992
Claim Number(s): 230-50-7534
You must meet certain medical and
nonmedical requirements to be entitled to
disability benefits.
We have found that you meet the medical
requirements for disability benefits. An
explanation of our finding is attached.
Please read it carefully.
2a
We have not yet made a decision about
whether you meet the nonmedical
requirements, but we will make that
decision soon. Then we will serd you a
second notice explaining our decision.
After you receive this second notice you
will have 60 days to appeal _ the
determination we made about your claim
for disability benefits.
If you have any questions about your
disability claim or wish to appeal our
findings, please do not get in touch with
the Social Security office until you have
the second notice. The people at the
Social Security office will be better
able to answer your questions when they
have the information from both notices.
After you have received your second
notice, you can call or write any Social
3a
Security office to appeal our
determination or to get answers to your
questions. Most questions can be handled
by telephone or mail. If you go to the
Social Security office in person, please
take both notices with you.
f
4a
} DEPARTMENT OF HEALTH AND HUMAN SERVICES
‘
Bocie! Becurtiy Administration
. ”>
EXPLANATION OF DETERMINATION
(,
ner C. GUPTON a So mm S«-230-50-753
The following evidence was considered in
evaluating your claim in addition to the
medical reports already in file.
F. Pepper, M.D. - report of 3/18/91; P.
Neilson, M.D. - report received 2/25/92;
Culpepper Memorial Hospital - records
received 2/3/92; P. Smith, M.D. - report
of 6/5/91.
You said that you are unable to work
because of asthma, emphysema and breast
cancer. The medical evidence shows you
underwent a left mastectomy in 1977, for
cancer with no recurrence of the disease.
You have a long history of asthma and
5a
allergies. Special breathing tests
performed 8/7/91, show your respiratory
condition is disabling. We can
therefore, assume you were disabled
several months prior to the testing. We
are therefore, finding you became
disabled on 5/1/91.
The determination on your claim was made
by an agency of the State. It was not
made by your own doctor or by other
people or agencies writing report about
you. Doctors and other people in the
State agency, who are trained in
disability evaluation, reviewed the
evidence and made the determination
according to Social Security law and
regulations.
6a
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
RICHMOND DIVISION
BETTY GUPTON,
Plaintiff,
Vv. C.A. No.3:91CV00358
COMMONWEALTH OF VIRGINIA, et al,
Defendants.
NGS O CT CONCLUSIONS OF LAW
A. Findings of Fact
1. Defendant is the Virginia
Department of Transportation (“the
Department”), an agency of the
Commonwealth of Virginia and recipient of
federal funds within the meaning of 29
U.S.C. §794.
2. Plaintiff Betty Gupton has been
employed by the Virginia Department of
Transportation since 1969. She started
oe | ee ee
ek oe en ee
7a
out as a Clerk Typist and worked her way
up to Highway Utilities Specialist, a
position she held for approximately three
and one-half (3 1/2) years until her
departure from active employment with the
Department in April of 1990. Plaintiff
is currently on a leave without pay
status.
3. Plaintiff’s last assignment with
the Department was in the Northern
District Office which is currently
located in a leased building at 3975 Fair
Ridge Drive, Fairfax, Virginia. Over 300
Virginia Department of Transportation
employees work in this building.
4. On March 9, 1990 plaintiff was
assigned to work on the second floor of
the Fair Ridge building in the Right-of-
Way Section. Prior to moving to the Fair
8a
Ridge building, management of Virginia
Department of Transportation distributed
a questionnaire about smoking seeking
employee input into the development of a
policy. Plaintiff via the questionnaire
requested assignment to a no_ smoking
area. (Plaintiff had complained about
smoke at two previous locations -
Culpeper and Kelly Square).
5. Plaintiff’s supervisor (William
Bryant) designated a wing of the Right-
of-Way Section as a no smoking area.
Plaintiff was assigned to the no smoking
wing. This area was at least 60 feet
away from a permissible smoking area.
The plaintiff’s office was not completely
enclosed and she continued to complain
about environmental tobacco smoke.
6. Bryant attempted to enforce the
waaay
2 a OT Es iS ria
ee
OP eats es
9a
smoking policy. In spite of Bryant’s
efforts there were occasional violations
of the smoking policy. In January 1991
the smoking policy in the Right of Way
Section changed again. This time the
entire area was declared a non-smoking
section. Smoking is only allowed in a
"smoking lounge.” This is the current
smoking policy in effect in the Right-of-
Way Section, Virginia Department of
Transportation.
UP From the beginnine of
plaintiff’s assignment to the Fair Ridge
building she complained, not only about
tobacco smoke, but also about paint
fumes, carpet odors and formaldehyde in
furniture. Plaintiff also told Cleophus
Sullivan (Human Resources Officer) that
she could not drive a State car because
10a
of her sensitivity to automobile fumes.
8. As part of her job, plaintiff
must frequently drive a State assigned
car to various locations outside of her
office.
9. One month after entering the
Fair Ridge building plaintiff informed
Cleo Sullivan that she was going to apply
for disability (P. Ex. 13). Plaintiff
cited “recycled air, smoke fumes, etc.,
which have settled in carpet (sic)
floors, cloth cubicles...” as the reasons
why she was unable to function in her
job.
10. From April 13 through July 9,
1990, plaintiff was out on sick or annual
leave. From July 9 until the present
plaintiff has been on medical leave
without pay status. Plaintiff can return
ee
ree Swe hee
lla
to work at the same job and salary if she
wants to.
11. Plaintiff did indeed apply for
disability retirement with the Virginia
Supplemental Retirement System by
application dated May 4, 1990. Plaintiff
described her disabling condition as
allergies, uneven blood pressure,
inability to make spot decisions,
intermittent memory loss and impaired
speech.
12. In support of her disability
application, plaintiff declared that she
was “chemically sensitive” to a wide
variety of substances, all of which made
her too sick to work. On her list of
substances which triggered allergic
reactions were auto exhaust fumes,
perfumes, marking pens, correction fluid,
12a
freshly printed newspapers, fresh paint
and new car interiors. Plaintiff also
indicated that she was allergic to all
products that contain Formaldehyde.
13. Plaintiff was examined by Dr.
Jay Pepper, a psychiatrist in connection
with her application for retirement
disability. She was also examined by Dr.
Robert D. Williams. Both doctors
submitted reports (Def. Exhibits 4 and 5)
which found no medical basis for a
finding of permanent disability. Not
every medical ailment is a disability.
Not every sporadically or occasionally
disabling medical problem is a handicap.
14. In the latter part of May, 1990
plaintiff was denied disability
retirement.
15. Plaintiff now alleges that she
13a
is particularly allergic to tobacco smoke
and that said allergy qualified her as a
handicapped person within the meaning of
29 U.S.C. §§ 794 and 706(8) (A). She
further alleges that the failure of
defendants to ban smoking from her work
environment entitles her to court ordered
remedies.
16. Plaintiff relies heavily upon
the opinion of her allergist, Dr. Peter
Smith, in support of her assertion that
She is handicapped because of her
allergies to cigarette smoke. opr. Smith
has treated plaintiff for a variety of
allergies and hypertension since 1977.
She was tested for allergies in 1977 and
1991 by Dr. Smith, who documented
positive allergic reactions to a variety
of substances, including tobacco, in
14a
1977. There is no known correlation
between allergies to tobacco and reaction
to tobacco smoke, nor has plaintiff been
tested for allergies to tobacco smoke.
Plaintiff is a former smoker. Her 1991
tests revealed that her allergies had not
substantially changed from the earlier
test. Dr. Smith concluded that she is
suffering from a “sick building” syndrome
Gue to poor ventilation in her work
environment and exposure to significant
amounts of tobacco smoke, which affects
her by enhancing respiratory symptoms
associated with her allergic disease.
Dr. Smith’s suggestion that plaintiff’s
work environment was not adequately
ventilated was based solely upon
plaintiff’s descriptio of her work area.
76 While plaintiff originally
a alli cb ete th AA Ad
15a
alleged that she left her work with the
defendant due to allergies triggered by
her exposure to and irritation from a
wide variety of substances in her work
environment, she now asserts. she is
allergic only to tobacco smoke. She
maintains that exposure to tobacco smoke
lowers her resistance to other materials
and causes symptoms, including dizziness,
headaches, loss of memory and nasal
congestion.
18. The Fair Ridge Drive building
was tested in October of 1991 for indoor
air quality by Health Buildings,
International (”HBI”), a firm which
specializes in such inspections. A
description of that inspection, its
methodology and results appears as
defendant’s Exhibit 12. That report
16a
concludes that the building was equipped
with adequate outside air ventilation (on
the days tested); that no build-up of
environmental tobacco smoke was
occurring, and that there was 09no
concentration of gases (such as carbon
monoxide or carbon dioxide) over
recommended national standards. The
report did suggest that there could be an
increase in indoor pollutants when the
outdoor temperature fell below 20-25
degrees Fahrenheit due to the lack of a
preheating coil for outside air.
19. There is no evidence to suggest
that the Fair Ridge Drive building is a
“sick building” in light of the HBI
report and the absence of a pattern of
employee complaints about illness in the
work environment.
17a
20. Plaintiff was examined on
December 5, 1991, by Dr. Philip Witorsch,
a specialist in internal and pulmonary
medicine and Director of the Section of
Environmental Medicine and Toxicology
within the Division of Pulmonary Diseases
and Allergy of the George Washington
University Hospital. Dr. Witorsch
reviewed plaintiff’s medical history and
records. While his report of her
physical examination (defendant’s Exhibit
14) was unremarkable, he diagnosed her as
suffering from hypertension and atopic
allergic diathesis based upon her medical
history and records. Having examined her
and reviewed the HBI report, Dr. Witorsch
opined that plaintiff “does not appear to
suffer from any building related illness”
and that there was “no objective evidence
18a
to support a role for exposure to
environmental tobacco smoke in either the
causation or exacerbation of any of Mr.
Gupton’s conditions....” He concluded
that plaintiff suffered from a
“somatoform disorder that is complicated
by a belief system”, and that there is
“no physical or physiological condition
which would prevent her from working in
her former workplace” (Defendant;s
Exhibit 14 at p. 11).
21. The Court finds Dr. Witorsch’s
evaluation of plaintiff’s condition to be
persuasive. It is more consistent with
the facts of her work environment, work
history, prior history of long term
cigarette use and common sense. While
the Court does not doubt that plaintiff
does have severe allergies, those
19a
allergies can and have been controlled in
the past. Plaintiff suffers from a
Sporadic and occasionally disabling
medical condition that fails to rise to
the level of “handicap.”
B. Conclusions of Law
Plaintiff seeks injunctive and
equitable relief (including back pay and
attorney’s fees) for defendant’ alleged
violation of her rights under the Federal
Rehabilitation Act, 29 U.S.c. § 794 ("the
Act”). To succeed in her Clain,
plaintiff must establish that (1) she is
a “handicapped person” within the meaning
of the Act, (2) she is an “otherwise
qualified” handicapped person (meaning
that with or without reasonable
accommodation, she can perform the
essential function of her job) and (3)
20a
defendant has failed to make reasonable
accommodation for plaintiff’s handicap to
permit her to perform the essential
functions of her job. See Fields vy.
Lyng, 705 F. Supp. 1134 (D. Md. 1988),
aff’d 888 F.2nd 1385 (4th Cir. 1989).
Plaintiff’s claim fails under. these
tests.
1. Plaintiff is Not “Handicapped”
de he
Plaintiff’s complaint is premised
upon the assertion that she is
particularly allergic “to Cigarette
smoke” (Paragraph 6 of her original
complaint). Plaintiff has never been
tested for allergies to tobacco smoke,
nor is there any medically accepted
testing tor any such alleged allergy.
She formerly smoked herself and did not
2l1la
experience any allergies to her own
Cigarette smoke. While her allergist
opined that exposure to excessive tobacco
smoke in a poorly ventilated building
could exacerbate her respiratory
Symptoms, the evidence does not support
the existence of either condition.
Specifically, plaintiff was placed in a
no smoking work area and (except in
extreme temperatures) the ventilation in
the Fair Ridge Drive building was
adequate, furnishing sufficient air
exchange to prevent any appreciable
build-up of substances found in
environmental tobacco smoke. Moreover,
there is no evidence that plaintiff
suffers from any mental illness or
delusions which would render her mentally
disabled. The determination of whether
22a
an individual is handicapped under the
Act must be made on a case-by-case basis.
One of the relevant inquiries in making
this determination is the number and
types of jobs for which the individuals
is disqualified, the individual’s
training and expectation, and the
geographical area to which the individual
has reasonable access. Forrisi v. Bowan,
794 F.2d 931, 933 (4th Cir. 1986).
Plaintiff has presented no evidence of
any attempt to transfer to another
location within the Department, although
Defendant has a smaller office in
Leesburg where there is little, if any,
smoking by employees.
2. If Handicapped, Plaintiff is Not
“Otherwise Qualified to Perform
ta) ;
23a
Position
Upon leaving active employment with
the Department, plaintiff applied for
disability retirement. In that
application (Defendant’s Exhibit 2), she
asserted she could not perform her duties
because of allergies. In Support of her
application, she listed sensitivities to
a wide spectrum of substances, including
auto exhaust, fresh paint, new car
interiors, etc. (defendant’s Exhibits 3
and 5). According to her letter to the
Virginia Supplemental Retirement System
dated April 23, 1991, she is “not able to
perform my job...” nor could she work “in
other locations: due, in part, to her
intolerance of driving her assigned
vehicle (defendant’s Exhibit 6). Her job
requires her to drive extensively.
24a
In light of these assertions, it was
reasonable for defendant to assume that
plaintiff was not “otherwise qualified”
to perform her job because one of the
essential functions of her job was to
operate a motor vehicle. As the Court in
Fields v. Lyng held:
If (plaintiff) is thus incapable of
performing his essential duties
because he cannot travel safely...,
then he is not an_ otherwise
qualified handicapped person in
spite of his handicap.
Fields at 705 F. Supp. 1137. Plaintiff
has made no attempt to adjust to her
working conditions other than to insist
upon a complete ban on smoking in the
Fair Ridge Drive building.
3. Defendant Has Made Reasonable
Accommodations for Plaintiff’s
Alleged Handicapped
Even if the Court were to accept
“~~
25a
plaintiff’s assertions that she is
handicapped by an allergy to tobacco
smoke, the evidence shows that defendant
did reasonably accommodate plaintiff’s
aversion to tobacco smoke by assigning
her to a no-smoking area on the second
floor; that assignment was made
immediately upon the Department’s move
into the new building. After plaintiff
had left active employment, defendant
further restricted smoking in the
building, in part, to comply with the
Virginia Indoor Clean Air Act
(defendant’s Exhibits 7-10).
Nevertheless, plaintiff stated under
oath in a pre-trial deposition that she
would not return to work unless all
smoking were banned in the building. The
Act does not require such a drastic
26a
policy change to accommodate one
individual. See Vicikers v. Veterans
Administration, 549 F. Supp. 85 (W.D.
Wash. 1982). Moreover, defendant could
not enforce such a ban; there are other
tenants in the Fair Ridge building not
under defendant’s control. Accordingly,
plaintiff has not carried her burden of
proving that defendant has not reasonably
accommodated her sensitivity to tobacco
smoke.
Judgment shall enter for the
Defendants.
/s/ James R. Spencer
UNITED STATES DISTRICT JUDGE
Date: March 1992
27a
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
=a
Betry Gurton,
Plaintiff-Appellant,
ss , No. 92-1319
COMMONWEALTH OF Virainia; Ray D.
PetHet; Wittiam Bryant,
Defendants-Appellees.
J
Appeal from the United States District Court
for the Eastem District of Virginia, at Richmond.
James R. Spencer, District Judge.
(CA-9i-358)
Argued: February 1, 1993
Decided: January 13, 1994
Before RUSSELL, NIEMEYER, and WILLIAMS, Circuit Judges.
Affirmed by published opinion. Judge Russcll wrote the opinion, in
which Judge Niemeycr and Judge Williams joincd.
COUNSEL
ARGUED: Willis James Spaulding, Charlottesville, Virginia, for
Appellant. Guy Winston Horsley, Jr., Senior Assistant Attomcy Gen-
cral, OFFICE OF THE ATTORNEY GENERAL, Richmond, Vir-
ginia, for Appellees. ON BRIEF: William H. Scheil, Jr., Rockville,
Virginia, for Appellant. Mary Sue Terry, Attorney General of Vir-
ginia, Gail Starling Marshall, Deputy Attomcy Gencral, Neil A.G.
28a
GupTon v. Viroinia
McPhie, Senior Assistant Attomey Gencral, OFFICE OF THE
ATTORNEY GENERAL, Richmond, Virginia, for Appellees.
OPINION
RUSSELL, Circuit Judge:
Betty Gupton, an employee of the Virginia Department of Trans-
portation (VDOT), appcals the district court's grant of summary judg-
ment against her on her claim that VDOT’s failure to provide her with
a smoke-free workplace violated 42 U.S.C. § 1983. She also appcals
the district court's rejection, after a bench trial, of her claim that this
failure also violated section 504 of the Rehr bilitation Act of 1973, 29
U.S.C. § 794. We find no crror in the district court's orders and
affirm.
Gupton was cmployed, beginning in March, 1990, as a highway
utilities specialist at the VDOT's Fair Ridge office in Fairfax, Vir-
ginia. Gupton, who claims that she is allergic to or irritated by
tobacco smoke, requested that the VDOT assign her to a cubicle in
a non-smoking area of the office. Gupton’s supervisor complicd with
her request, designating a wing of the office as a non-smoking arca
and assigning her to a cubicle in thai wing that was locatcd at least
sixty feet from the nearest permissible smoking area. Gupton main-
tained, however, that she was still affected by the tobacco smoke in
this new office arrangement. As a result, approximaicly one month
after she had begun at the office, she took unpaid leave and has not
returned to work there.
of her rights to due process and cqual protection, as well as section
504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794. The district
court granted summary judgment against Gupton on her section 1983
claim and, after a bench trial, rejected her section 794 claim as well.
29a
GupTon v. ViRGINIA
The most significant issue raised by Gupton's appeal is whether the
district court erred in rejecting her section 794 claim.' We find that
it did not.
To prevail on her section 794 claim, Gupton had to establish that
she was an "individual with handicaps" under that provision.? 29
U.S.C. § 794(a); Forrisi v. Bowen, 794 F.2d 931, 933 (4th Cir. 1986).
An "individual with handicaps" is defined, in pertinent part, as "any
person who ... has a physical or mental impairment which substan-
tially limits one or more of such person's major life activitics." 29
U.S.C. § 706(8)(B). In its regulations, the Equal Employment Oppor-
tunity Commission has statcd that the term "major life activitics"
means "functions . . . such as caring for one’s sclf, performing manual
tasks, walking, seeing, hearing, speaking, breathing, Icarning, and
working." 29 C.F.R. § 1613.702(c). Gupton contends that she quali-
fies as a handicapped individual within the meaning of section 794
because she showed that her allergy to tobacco smoke was a physical
impairment which substantially limited onc of her major life activi-
tics, that activity being working.
To establish that her tobacco smoke allergy substantially limited
her ability to work, Gupton had to show not merely that her allergy
madc her “incapable of satisfying the singular demands of a particular
job," Forrisi, 794 F.2d at 934, but that it “foreclose|d] generally [her
opportunity to obtain] the type of employment involved," id. at 935.
In Forrisi, for example, a utility systems repairer, whose job required
him to climb stairways and ladders, claimed that his acrophobia, or
fear of heights, substantially limited his ability to work because it pre-
‘Gupton also argues that the district court erred in granting summary
judgment against her on her section 1983 claim, which alleged that
VDOT's failure to provide her with a smoke-free workplace violated her
rights to due process and equal protection. We find that this argument is
completely without merit, and reject it without further discussion.
*in an amendment to section 794 enacted after the trial, the term “indi-
vidual with handicaps" was replaced with the term "individual with a dis-
ability.” The two terms, however, are defined identically. See 29 U.S.C.
§ 706(8)(B).
30a
GupTton v. VIRGINIA
vented him from performing his particular job. We rejected this claim,
finding that while the repairer was, as a result of his acrophobia, "“un-
suited for one position in one plant," id., he had shown “no difficulty
in obtaining other jobs in his ficld," id.”
Gupton failed entirely to make this showing. While she did intro-
duce evidence that her allergy to tobacco smoke made her unable to
continue in her current position working as a highway utilitics spe-
cialist in the VDOT’s Fair Ridge office, she presented no evidence
that her allergy foreclosed her generally from obtaining jobs in her
fickd. To the contrary, in fact, after Gupton had Ieft its Fair Ridge
office, the VDOT offered her a position in her ficld at its nearby Lecs-
burg office, which was smoke-frec. She never responded to this offer.
Gupton, therefore, did not establish that her allergy to tobacco
*The other courts of appeals that have addressed the issuc have almost
unanimously agreed with our holding in Forrisi that, in order for a plain-
tiff to establish that he has an impairment that substantially limits his
ability to work, he must show more than merely that the impairment
barred him from one particular job. Cook v. Rhode Island, Dep't of Men-
tal Health, Retardation, & Hosps., No. 93-1093, 1993 U.S. App. LEXIS
30060, at *23-*24 (ist Cir. Nov. 22, 1993); Chandler v. City of Dallas,
2 F.3d 1385, 1392-93 (Sth Cir. 1993); Byrne v. Board of Educ., 979 F.2d
560, 565-66 (7th Cir. 1992); Welsh v. City of Tulsa, 977 F.2d 1415, 1419
(10th Cir. 1992); Maulding v. Sullivan, 961 F.2d 694, 698 (8th Cir.
1992), cert. denied, 113 S. Ct. 1255 (1993); Miller v. AT & T Network
Sys., 915 F.2d 1404, 1404 (9th Cir. 1990) (adopting district court opinion
at 722 F. Supp. 633 (D. Or. 1989)); Daley v. Koch, 892 F.2d 212, 215
(2d Cir. 1989); Jasany v. United States Postal Service, 755 F.2d 1244,
1250 (6th Cir. 1985).
Only the Eleventh Circuit has reached a different conclusion, in
Fitzpatrick v. City of Atlanta, 2 F.3d 1112 (11th Cir. 1993). There plain-
tiffs were barred from serving as firefighters for the city because they
had a skin condition that prevented them from shaving, and the fire
department, for safety reasons, had a no-beard rule. The court, without
making any further analysis or examining any caselaw, stated that the
“firefighters woukl seem to qualify as handicapped individuals" under
section 794 because their skin condition "substantially limitjed) [their]
ability to . .. work on account of the no-beard rule.” Jd. at 1126 (quota-
tiane amitted)
3la
GupTon v. VIRGINIA
smoke substantially limited her ability to work, and she did not assert
that it limited any other of her "major life activities." As a result, she
failed to show that, on account of her tobacco smokc allergy, she was
an "individual with handicaps" for the purposcs of section 794,‘ and,
thus, she was not entitled to recover under that provision.’
“We nize that the court in Vickers v. Veterans Admin., 549 F.
Supp. 85 (W.D. Wash. 1982), addressed a factual situation similar to the
one ted here and reached the opposite conclusion. In Vickers, an
employee who was hypersensitive to tobacco smoke brought a section
794 claim against his employcr, the Veterans Administration, for failing
to provide for him a smoke-free workplace. The court concluded, without
further discussion, that the employce qualified as handicapped because
his hypersensitivity "limitjed} at least one of his major life activities, that
is, his capacity to work in an environment which is not completely
smoke free." Id. at 87.
It appears that Vickers is no longer good law because its reasonin
conflicts directly with the Ninth Circuit's later opinion in Miller v. AT
T Network Sys., 915 F.2d 1404 (9th Cir. 1990). Miller expressly adopted
the district court's opinion, Miller v. AT & T Network Sys., 722 F. Supp
633 (D. Or. 1989). Miller, 915 F.2d at 1404. The district court's opinion
states that, in order for a plaintiff to establish that he has an impairment
that substantially limits his ability to work, he must show that it "substan-
tially limit|s} [his] employability gencrally," Miller, 722 F. Supp. at 639.
Because Vickers slowed the plaintiff to establish that he was handi-
c merely by showing that his h nsitivity to smoking substan-
tially limited his ability to obtain a job in a non-smoke-free workplace,
and did not require that he establish that it substantially limited his
employability generally, Miller seems to have effectively overruled it
Moreover, even if Vickers was still good law, it also conflicts directly
with Forrisi, where we stated that, for an impairment to substantially
limit a plaintiff's ability to work, it must “foreclose gencrally [his oppor-
tunity to obtain] the type of ee involved," Forrisi, 794 F.2d at
935, i.e., foreclose him gencrally from obtaining jobs doing the type of
work plaintiff has chosen as his field. As a result, we must reject the
analysis and holding of the Vickers court.
Gupten step contends Gat the dlatsici cous ened in net sowing her
4 trial on her section 794 claim, which she requested. We not
this contention. Had the district court allowed Gu to try her
section 794 claim before a jury, the district court y would have
— judgment as a mutter of law against her, . R. Civ. P. SO(a),
cause, as we stated, her evidence did not even approach making the
showing necessary to establish that she was a handic indiv . As
a@ result, her claim would not have been decided by the jury, and, thus,
any error in refusing her a jury trial was neccssar ¥ harmless, Fed. R.
Civ. P. 61. See Sailor v. Hubbell, Inc., 4 F.3d 323, 327 (4th Cir. 1993).
32a
GupTon Vv. VIRGINIA
For the reasons stated, we affirm the district court's orders granting
summary judgment against Gupton on her section 1983 claim and
rejecting, after a bench trial, her section 794 claim.
AFFIRMED
33a
ASSOCIATES OF FREDERICKSBURG, INC
a AND ADULT ALLERGY AND INTERNAL MEDICINE
PETER R SMITH, M.D
416 GMOGEWATER STREET
FREDERICKSBURG VINGIA 2240!
1703) 371.8660
fer reeate akegner an Breen
onan a OF MAP AY 8 EOL OG
OF merenna, nerner
May 4, 1990
Virginia Department of Transportation
P.O. Box 671
Culpeper, Virginia 2201
RE: Ms. Betty F. Gupton
Dear Sir:
This is to advise regarding the on-going
ill health of my patient, Ms. Betty
Gupton. Ms. Gupton has a long history of
allergic and vasomotor rhinitis and
Sinusitis and has continued to experience
Symptoms of chronic headache, malaise,
diffuse arthralgias and fatigue which she
relates to poor ventilation in her
present work spot. Complicating this
34a
picture is the fact that she has very
Significant hypertension requiring daily
medications for control as well as the
recent onset diabetes mellitus.
I ask that every consideration be given
to providing an optimum work environment
for this patient.
Peter R. Smith, M.D.
35a
ALLERGY ASSOCIATES OF FREDERICKSBURG. INC
PEINATINT ANU ADULT ALLERGY AND INTERNAL MEDICINE
PETER &. SMITH, M.D.
416 BMOGEWATER SINEEr
FREDERICKSBURG VINGIMIA 2240)
1703) 371 .$660
OP MAsall AM mer am @COAaN Perr creeare alkeg ner an ernare
OF wale mney Ree Mer wee OF LAY & mM OG?
June 5, 1991
TO WHOM IT MAY CONCERN:
Re: Betty Gupton
Mrs. Betty F. Gupton has been followed
through my office since 1977 at which
time she presented with symptoms of
allergic rhinitis and asthma. She was
evaluated for allergic disease and found
to be skin reactive to a variety of
inhalant allergens. Additional medical
problems include cancer of the breast,
which required a radical mastectomy, and
hypertension.
36a
In the last 14 years Mrs. Gupton has been
managed primarily through the use of
allergy medication and allergen
avoidance. Her symptoms have consisted
mainly of intermittent sinus congestion
pain, headache, occasional migraine and
psychomotor symptoms including
intermittent memory loss, anxiety and
depression. A tension fatigue state
often associated with allergic disease
has also been a significant complaint.
Mrs. Gupton’s upper respiratory symptoms
had been reasonably well controlled until
an environmental work change occurring in
March of 1990. The particular work
environment was one having very poor
ventilation with no windows or doors to
the outside and no fresh ventilation with
no windows or doors to the outside and no
37a
fresh air intake. Smoking was allowed in
much of the building increasing the
likelihood of passive smoke inhalation.
I am unaware of any air sampling testing
done in this particular environment
looking for concentrations of carbon
monoxide, formaldehyde, particulate
matter or volatile organic components but
this environment as described above is
the typical “sick building” syndrome
environment causing problems with many
patients. In addition Mrs. Gupton has
noted a marked increase in her sinus
congestion symptoms during her work
activity which involved automobile
travel, especially when exposed to
considerable automobile exhaust.
Despite attempts to control her symptoms
while working in the above mentioned work
38a
environment the patient continued to have
symptoms of incapacitating headache,
nasal and sinus congestion and fatigue
which in turn has aggravated her
hypertension. Mrs. Gupton had to
terminate her work in the above mentioned
environment because of the persistent of
symptoms mentioned above and cannot
return unless optimum ventilation of the
work place is achieved including removal
of all second hand tobacco smoke as well
as of the documented particulates and
volatile organic compounds.
There is no question that Mrs. Gupton is
significantly disabled from her
sensitivity to numerous gases and
particulates, especially when they are
present in higher than normal
concentrations. A well ventilated work
39a
place would very likely be associated
with a significant reduction in symptoms.
At this time Mrs. Gupton continues to
remain symptomatic albeit improved since
terminating her employment. She
continues to take anti-hypertensive
medication on a regular basis as well as
anti-histamine decongestant medication.
Should you have any further questions
regarding this report please do not
hesitate to get in touch with this
office.
Peter R. Smith, M.D.
PRS/vrd
40a
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
RICHMOND DIVISION
BETTY GUPTON Case No.
Vv. 3:91CV00358
COMMONWEALTH OF VIRGINIA, et al.
January 13, 1991
Fairfax, Virginia
The de bene deposition of PHILIP
WITORSCH, M.D., taken at the instance of
the defendant, before Sherall W.
Dementri, a Notary Public for the State
of Virginia at Large, beginning at 2:00
p.m. at the Northern Virginia District
Office of the Virginia Department of
Transportation, 3975 Fair Ridge Lane,
4la |
Fairfax, Virginia, said deposition taken
pursuant to the Federal Rules of Civil
Procedure.
x * &
Q Well, you agree she does
experience real physical symptoms as a
result of exposure to tobacco or to
tobacco smoke?
PN Yes, I think she probably does.
Q And do you agree that these
Symptoms that she experiences impair her
ability to work, based on your review?
A I think those symptoms may
impair her ability to work again, not on
a physical basis, but on a psychological
or psychogenic basis.
Q May impair or did, in fact,
impair?
A Well, I can’t tell for certain.
42a
They may have impaired. I can’t say they
did impair, because I have no* seen her
at the time she was having those
symptoms, and I would have to see her to
say if they did impair her.
Historically, they would have appeared to
have impaired her. . .
Q And it’s your general opinion
that even if you took an asthmatic such
as Mr. Gupton [sic] and placed her in a
room which was intensely filled with
tobacco smoke that that would not induce
any change in her pulmonary function; is
that your general opinon?
4 No, that’s not my opinion. If
there’s sufficient levels of tobacco
smoke, an asthmatic may react on an
irritant basis. I don’t think it’s an
43a
allergic reaction. And there’s studies
in the literature where asthmatics have
been put into exposure changes, and some
studies show a reaction, and some don’t.
The best, most recent studies show a
certain segment of the subject patients
develop decreased air flow, but that
doesn’t correlate with other evidence of
allergy to tobacco antigens. So that in
some of these cases it’s an irritant
reaction. And clearly if you have poor
ventilation and high levels of tobacco
smoke, it will act as a nonspecific
irritant. I’1ll (sic) not sure that is
unique to tobacco. It’s one of many
Substances that can have an irritant in
high enough concentratiens.
I believe particularly an
asthmatic will react. But I don’t have
a
44a
the sense Mrs. Gupton was having asthma
reaction in most of her symptoms. The
symptoms that are in the record and that
she was relating to me were symtoms other
than asthma.
45a
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
RICHMOND DIVISION
BETTY GUPTON,
Plaintiff,
Vv.
COMMONWEALTH OF VIRGINIA and
RAY D. PETHEL and WILLIAM
BRYANT,
Defendants
February 5, 1992
Richmond, Virginia
ss 9:30 a.m.
BEFORE: HONORABLE JAMES R. SPENCER
United States District Judge
APPEARANCES:
WILLIS J. SPAULDING, ESQ.
WILLIAM B. SCHEIL, JR., ESQ.
210 Eighth Street N.E.
P.O. Box 1774
Charlottesville, VA 22902
Counsel for Plaintiff
GUY W. HORSLEY, JR., ESQ.
Office of the Attorney General
101 North Eighth Street
Richmond, VA 23219
Counsel for Defendant
46a
Testimony of Peter R. Smith
By: Mr. Spaulding
A Betty Gupton was first referred to
me by a Culpeper physician in February of
1977, and it was at that time she
presented to my office with a _ chief
complaint of bronchial asthma. Her
symptoms then were primarily that of
shortness of breath, cough, wheezing,
with associated nasal symptoms that I
felt was related to accompanying
sinusitis.
She was’ referred primarily to
evaluate whether or not there were any
allergic symptoms or disease that might
be present that would be aggravating, and
for the management of reactive airway
disease. I’m referring to asthma, which
is what that condition is. It is a
47a
condition where the bronchial tubes are
hyperreactive to a variety of stimuli,
both allergic stimuli as well as a
variety of other stimuli: cold air, dry
air, whatever. So she was evaluated at
that time and that was in February of
1977. And she had pulmonary function
studies done, which are studies to
determine to what’ extent she is
obstructed as far as her air flow is
concerned, and to what extent how
reversible this process is.
She had pulmonary function studies
done then showing, documenting in as
objective a way as possible, obstruction
which was consistent with obstructive
airway disease, and also, the fact it was
reversible. She would be given a dilator
by inhalation and it would reverse. That
48a
was the first time she was evaluated,
skin-tested, and shown to be reactive to
a variety of inhalant allergies, and was
started on medication to treat the
condition.
*® ¢< @
Secondly, the second primary
diagnosis is that of bronchial asthma.
She recently underwent what we term a
methacholine challenge. Methacholine
challenge is where we stimulate asthma.
If I take a normal patient without any
history of airway hyperactivity, and give
them by inhalation, in a very
standardized fashion, they will not drop
down their pulmonary function. Meaning
you just don’t become obstructed. You
may cough a little bit with it, be
irritated by it, but you will not
49a
decrease the air flow. Ms. Gupton was
given the methacholine challenge in my
office, and after receiving approximately
12 milligrams accumulated dose, she had
dropped her pulmonary function by 20
percent, which is the point at which we
stop. And then she had to get a
breathing treatment in order to reverse
that effect.
This is a type of test we use to
objectively diagnose asthma. She really
has had that diagnosis made on the basis
of being found obstructed and then given
a bronchodilator and opening back up
again and returning to near normal. That
is really a very reasonable way of making
a diagnosis. But what the methacholine
challenge does is it really objectifies
things to the extent that we know that
50a
even right now, she has hyperreactive
airways, and we know that people with
hyperreactive airways, or asthma, even
though there may be times where she is
asymptomatic, that when they are exposed
to a variety of stimuli -- not just
allergic stimuli, but whether it be
environmental tobacco smoke, and it can
be very low concentrations, and it is not
the carbon monoxide in tobacco smoke, not
the particulant matter which we ere
measuring in these buildings, but it is
something else that causes this
irritation -- that when this occurs, she
will very likely have a noticeable fall
in pulmonary function.
So the two primary diagnoses are
that of allergic rhinitic and its
associated problems, bronchial asthma and
ax————oOoOee
5la
all the associated problems there. So
she really exists as a subset of patients
that is highly likely to be very reactive
to a variety of both allergic and non-
specific irritational stimuli.
Q Dr. Smith, based on this diagnosis
and your experience with Ms. Gupton, do
you have an opinion whether or not these
disorders substantially impair major life
activities for her?
A They need not as long as she is able
to avoid a lot of the irritational
stimuli that can cause problems.
Now you know’ asthma, allergic
disease, exists in 20 percent of the
people, 15 to 20 percent of the people in
the United States. Asthma is also a very
common illness. It is the most common
illness that causes absenteeism in
52a
schoolchildren, the most common chronic
illness. So it is a very common
condition. And people certainly live
with that. But there are patients who
are much more _ sensitive than other
patients. And yes, she can live, she can
work, as long as the environment is such
that she is not exposed to the amount and
here, i don’t know what the amount of
exposure she can tolerate is, and only
she can determine that. But I think
there is no question she can work very
actively in a work environment where
there is a minimum amount of indoor
pollution, which may or may not be
related to ventilation.
x « &
CROSS EXAMINATION
By: Mr. Horsley
53a
Q In your specialty, there is no
generally-accepted medical test for
allergies to tobacco smoke; is that
correct?
A That’s right. We don’t recognize a
true allergy to smoke. a)
sensitivity. There is no question that
there are patients who are sensitive.
xk tk
RE-DIRECT EXAMINATION
By: Mr. Spaulding
Q I gather it is your testimony that
Ms. Gupton is a true asthmatic?
rN She is, without any question.
Q And is that based strictly on
subjective patient reports?
A wt is net. It is based on a
methacholine challenge; it is based on
following her for the last 17 years, or
54a
rather 13 years; and her response to
bronchodilator medication on pulmonary
function testing.
Q But if she were were [sic] not, if
she were among the group of _ the
asthmatics you described who reacted to
salt water that was suggested to have
something in it offensive, would that be
medical phenomenon or is that malingering
or what?
A No, that’s a medical phenomenon.
She has hyperreactive airways that can
respond to a variety of stimuli, even
including emotional stimuli.
Q Is there a voluntary element in
these people who react to it?
A No, there is not a- voluntary
element. This is primarily mediated
through the central nervous system, the
55a
vagus nerve network, the cholinergic
nerve network. It is the same nerve
network that if she inhales cold air, it
going to precipitate asthma.
Q In these group of people, in your
discussion with Mr. Horsley regarding
people who react to odors possibly before
or independent of the underlying irritant
or allergen, are these people
experiencing a medical disorder?
A They are experiencing a medical
disorder. The most recent materials have
shown that the only patients, virtually
the only patients that respond to odors
are the methacholine-positive patients,
that have methacholine sensitivity, which
are the true asthmatic.
Q And their reaction, is it a medical
reaction or simply a preference to be
56a
away from the odor?
A It is a medical reaction. Their air
resistance goes up. These studies were
done by body plethysmographs, measuring
total lung resistance, which is the most
sensitive way of measuring resistance.
x *&
Testimony of William R. Curtis
By: Mr. Spaulding
At times she would get so sick that
either myself or a co-worker together,
one would take her home and the other
would pick her up, things like that. She
had to be rushed home. We have taken her
to the emergency ward at the hospital on
several occasions. We have taken her to
her daughter’s, where she was cared for.
There have been many cases like that, but
it happened starting right in that area.
Q Earlier in your testimony you
described incidents when she had to be
taken home by you or other employees. To
your knowledge, why did she need to be
taken home?
A Well, she was so desperately ill,
and of course we all rode together, all
three of us, up from Culpeper in a pool.
She had to be taken home because at times
I thought she was either going to pass
Out and die -- [I mean, it scared me to
death. Of course she had to get to the
doctor somewhere, either emergency or go
home, and her daughter was so familiar,
that’s where she wanted to go is she was
going to die on the way, and that’s why
we took her. Because she was absolutely
unable to function. She was practically
58a
off of her feet.
Q On this occasion, was she able to
answer the phone and do the other duties
of her job?
A Absolutely not. When she became
completely saturated, she was not even
able to perform the very simplest job
that you could give her, ana at times she
couldn’t even tell you the time of day or
tell you what her name was.
x * *
Testimony of William R. Curtis
By: Mr. Spaulding
Q In your experience as a manager in
the Department of Transportation, have
you had an opportunity to observe the
effect of smoking policies on employee
morale?
A Absolutely.
59a
Q And what if any effect does the
restriction of smoking have on employee
morale?
MR. HORSLEY: Objection. I
don’t think he is competent to answer the
question.
THE COURT: No, he can answer
it.
THE WITNESS: I think really
what happens in the course of general
discussion, that you feel that you are
fighting a lost battle. Because people
get so sick of it, it interferes with
their operation. It confuses them. And
if you are working in an organization
where you have, say, probably five people
smoking out of 20-some, nothing
appreciably seems to be done. I stand to
be corrected, maybe it was being tried,
60a
but not to my knowledge. Morale has to
be on the downgrade because you think no
one whatsoever is looking out for you.
You are thinking of your health. And you
can come into that office, say if you
come in there feeling like one million
dollars, and you get saturated with all
that heavy stuff that hits you in the
face, it won’t be long before you are
wondering if you are going to be able to
take it.
Q That’s the effect of smoking on the
non-smokers. Is there an effect on the
productivity of the smokers by obliging
them to use a smoking lounge or something
else, in your experience?
A It could affect both because if you
are going to be smoking, based on my
observation over the many years that I
61a
have been associated with the department
before my retirement, that you are going
to find people that will take that extra
cigarette and say if they are going to go
to a lounge they are going to go to that
lounge or they are going somewhere and
get that cigarette. And if you allow it
in your office and they are smoking, they
are going to disturb somebody else with a
little casual conversation, and when you
disturb a number of people over a period
of days you have lost a lot of man hours.
It is certainly going to be detrimental
to productivity. And I believe this with
all my heart. Because there is so many
things that cigarettes are -- to take
them out of the pack, take the matches
out and light them if you are a chronic
smoker, that don’t take much time. But
62a
the time involved that you have of always
trying to think of ways that I can get
that cigarette and smoke it, I can go to
the restroom, I can get that extra cup of
coffee, all that adds up. I think it is
very degrading to productivity.
x* * &
Testimony of John T. Leddy, III
By: Mr. Spaulding
Q Were you aware of any complaints
about smoking that Ms. Gupton had made
before her leaving?
A Very aware. Betty, I had heard her
complain when she worked, prior to moving
to the Northern Virginia District, I was
aware that she was extremely allergic to
cigarette smoke. And in the Northern
Virginia District the initial location
for our office, the word “stench” is not
63a
strong enough to convey what one sensed
when they walked into our office. It was
absolutely filthy with cigarette smoke.
And Betty complained of it constantly, as
did quite a few other people. . .
x *& &
Testimony of Lee Charles Gupton
By: Mr. Spaulding
A At times she needed help with meals
being prepared. My sister would help
with that upon occasion. She needed
assistance driving to and from town. I
had helped her occasionally, but not as
often as my sister.
Q And did this situation improve or
worsen after she stopped going to work in
Fairfax?
A It took a few months before it
improved, but she did improve somewhat.
64a
Q Can you describe for the Court, give
the Court some idea of the frequency with
which she needed assistance in the
preparation of meals?
A Do you mean when she first quit
work?
Q Well, before she quit work.
A To be honest, I can’t answer that
truthfully as to how often she needed
help. Because like I said, my sister
helped her more often than I did.
Q And when you helped her, what kinds
of things would you do?
A I would prepare meals for her. I
would remove the trash from the house and
take it to the dump for her.
Occasionally take her to town.
Q What condition was she in? I know
you are not a doctor, but can you
a anteais EE Oe Ra eR Seta
65a
describe what she was doing while you
were preparing the meal during this
period of time?
A Well, she would rest most of the
time. She would sit back in a chair and
take it easy. If she ever attempted to
do anything that was really physical,
like cleaning the house, she would get
exhausted very quickly. She would also
have coughing spells and spitting up some
kind of a phlegm or something.
x* *& &
Testimony of Betty F. Gupton
By: Mr. Spaulding
Q Did you tell your supervisor about
the problem your were having?
A Yes, sir. He was very much aware of
it and he told me anything I could do to
get away from the situation in the
66a
office, to do so. He even made special
assignments where I could go ahead and
work outside of the office.
Q What was it that you complained
about to your supervisor?
A Mainly, tobacco smoke. I felt like
if this was eliminated, and if they had a
smoking lounge and it would have been in
effect, I feel like I may have been able
to function. And I’m not a doctor, and I
know I have a lot of allergy problems and
I don’t completely understand all of my
health situations. And I learned quite a
bit from Dr. Smith this morning.
Q Was there ever a time that your
supervisor of\r Mr. Bryant or somebody
else connected with the Virginia
Department of Transportation offered to
assist you in some respect with the
a - 7 A a
ee ee Se ON ed eee Se
7 T=
4 m eS > —
ee ey *
67a
health problems that you complained
about?
A Well, I did talk to Paul Stahl on
numerous occasions before John Leddy was
moved into my office. And I would be
coughing in there, and he would hear me
and I would complain about smoking. I
was wishing that something could be done.
But as far as any assistance being done,
no, from anyone.
x* * &
Q Do you believe that you would be
able to work in the Fair Ridge Drive
office if smoking were reduced or
eliminated?
A Yes, I believe I could function.
x* * &
Q Has there been a time subsequent to
your going on medical leave without pay
68a
that there was an offer to fix up the
Fair Ridge office for you so that you
could come back?
A Mr. Hull said that they were trying
to get something done; that hopefully, in
the future, they would have a smoking
lounge.
Q When was it that you learned that
there was a smoking lounge?
A I did not learn anything about the
smoking situation or the additional
things that took place until in June, May
or June of the summer of 1991.
Q To the best of your_ present
knowledge, are you entitled to return to
work right now at the VDOT office on Fair
Ridge Drive?
A Not that I know of. They say that
my job is still there, but I’ve seen
—
.
‘
}
t
F
:
SOOM ET Serpe tm. SLE leh cad a a
69a
nothing in writing. ..
x* kek
Q Was there a time when you sought
advice from Mr. Stahl? [the Assistant
Attorney General on your floor}
A I spoke to him on numerous occasions
because his office was beside mine before
Mr. John Leddy was moved in that office,
and he would sympathize with me. He had
a lot of problems towards smoking; it
bothered him. And he was developing a
cough.
MR. HORSLEY: Objection to
anything that he told her as hearsay.
THE COURT: Sustained.
MR. SPAULDING: Your Honor, if
I may be heard on this point --
THE COURT: No. It is not a
major deal. You have brought out on
70a
several occasions this advice, supposedly
sought of Stahl. Stahl has said they had
conversations about it, that he didn’t
like smoke, that she didn’t like smoke.
You asked her questions about it. She
said, "Yes, he sympathized with me.”
Same thing. She didn’t like it, he
didn’t like it.
THE WITNESS: Your Honor --
MR. SPAULDING: Just a minute.
Your Honor, this line of questioning goes
toward -- first of all, it is not hearsay
because I’m attempting to explain why it
is the plaintiff pursued a disability
retirement application, and intend to
show that it was on the basis of the
conversation with Mr. Stahl. It doesn’t
go to the truth of what Mr. Stahl said.
THE COURT: Ask her straight
4
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t
71la
up. Did Mr. Stahl advise you to do it?
You don’t have to beat around the bush.
BY MR. SPAULDING
Q Did Mr. Stahl assist you in your
disability retirement application in some
respect?
A Yes.
Q How?
A he gave me the name of an attorney
in Alexandria and he said he wished me
luck on it.
Q Was this after you had laid before
him your medical problems and confided in
him?
A Yes, sir.
Q Did he advise you that you had any
rights as a handicapped individual?
MR. HORSLEY: Objection, Your
Honor. This goes beyond any relevance.
72a
THE COURT: She can go ahead
and answer the question.
THE WITNESS: Would you please
repeat it?
BY MR. SPAULDING:
Q Did Mr. Stahl advise you at any time
that you had rights as a handicapped
individual under federal law?
a I believe he did. But I can’t say a
date or a time.
Q Was it in this conversation when he
referred you to the disability or
workers’ comp lawyer?
A Yes.
Q And did he ask you to keep the
conversation secret?
a Yes.
Q Why was it that you applied for
disability benefits?
73a
A Simply because I didn’t know of any
other alternative that would bring about
action. And at the time, I was so sick
and I had all these other problems that
had been brought on, that I just felt
that was the way to go...
x ke
Testimony of Simon Turner
By: Mr. Spaulding
Q What can be done to improve the
smoking lounge?
A The smoking lounge could be improved
by installing an exhaust, which would be
tied into the toilet exhaust, probably.
And you would then use what is called
transfer air from another part of the
‘bailéine to ventilate that smoking
lounge. And you would probably want to
ventilate it to ASHRAE standards for
bee
*
74a
designated smoking areas of 60 cubic feet
per minute per person.
Q What are some other measures that
could be taken regarding the ventilation?
A Well, we noticed in the wintertine
that this building was not equipped with
heating coils on the outside air intake,
and it is possible under extreme load
temperatures that you would not be able
to bring outside air into the building
during the winter period, and only during
the winter period, because you would
basically be running it through to the
diffusers without any heat in the
perimeter areas of the building. Well,
throughout the AV system, actually. And
therefore, one way to improve ventilation
throughout the year would be to install
some kind of heating system in the
RE ta a a a laa aaa
75a
outside air intake so you could guarantee
that you could bring outside air into the
building even in very cold conditions.
* & &
Testimony of Charles sullivan
By: Mr. Spaulding
Q Are you aware that the state has
conditioned Ms. Gupton’s placement in the
Leesburg office on her waiving any claim
to back pay?
MR. HORSLEY: Objection.
That’s not appropriate evidence before
the Court.
THE COURT: Sustained.
BY MR. SPAULDING:
Q Have you ever offered to place Ms.
Gupton in a smoke-free environment; have
you talked to her and offered that?
A No, I have not talked to Ms. Gupton
76a
in -- well, I talked to her a few minutes
ago when I saw her in the anteroom. . .
*x* *& *
Q What possibilities did you discuss
with her other than her going home
without a paycheck in April of 1990?
A I did not discuss any possibilities
with Ms. Gupton in April of 1990 because
smoking was never an issue. The smoking
just became an issue based upon what I
have read in the last couple of months.
Q You were unaware in April of 1990
that she had a problem with smoking?
A That is correct.
Q Those complaints never reached you?
A Never reached me.
x «x &
Testimony of William R. Bryant
By: Mr. Spaulding
77a
Q Mr. Bryant, is it your testimony
here today that Ms. Gupton is faking her
symptoms?
a I didn’t say that. I said I do not
believe the severity with which the
Symptoms have been stated.
Q Do you think that she does not have
all the illnesses Dr. Smith says that she
has?
A I’m sure that Betty suffers from a
variety of different things, including
allergies and irritants. What I said was
that there were other people on my staff
with similar supposed reactions to the
Same products, and they have not been
affected in the same way.
Q Do these other individuals have
asthma, allergies, diabetes,
hypertension, and cancer?
78a
A I can’t say if they do or they
don’t.
Q Do you know any of them that do have
even one of those disorders?
A The girl that testified earlier
today has a documented case of extreme
sensitivity to tobacco smoke, which is
the essence of this case.
Q You have described to the Court how
the restrictions contained in Exhibit 10,
I believe it is in the exhibit book in
front of you, those are the restrictions
of May 31st, 1991.
As I understand your testimony,
these restrictions came about by Mr.
Leddy going over your head to Mr. Garber;
is that correct?
A That’s a correct chain of events.
Q They could have also come about if
Big aria atte ag erent Senn RS RO IR ee ep S78
79a
you had conveyed to Mr. Garber Mr.
Leddy’s complaints, could they not?
A That’s not the intent of the policy.
That’s not the intent of the policy the
way it has been explained to the section
heads within the district office.
Q Help me with your understanding of
how Mr. Leddy is supposed to obtain
relief under this policy?
A Exactly the way he did, by going to
the district administrator.
Q There is not role for his
complaining to you?
MB He had already complained to me. I
had already give my answer. I had made
the changes that I could make to try my
answer. I had made the changes that I
could make to try to satisfy Mr. leddy,
as well as the rest of the staff, and
80a
that was the limit of my authority. If
he was to receive any assistance or
relief under this. policy, it was
necessary for him to go to the district
administrator.
Q Your authority did not extend to
going to Mr. Garber and asking for the
change to accommodate _
be I advised Mr. Garber, I advised Mr.
Ogle, that there were certain people on
my staff that had a problem with smoking
in the open cubicles.
Q Yet that would not result in a
change of smoking practices until the
employee went directly to Mr. Garber.
A That’s correct.
Q Did you advise Mr. Garber of Ms.
Gupton’s aversion to tobacco smoke?
A I can’t recall that I did.
Te ee On ee es Bs ‘
8la
Q Did you advise Mr. Sullivan, who has
just testified here, of Ms. Gupton’s
aversion to tobacco smoke?
A No, sir.
Q Who did you inform of Ms. Gupton’s
complaints regarding.
Q The original smoking policy
prohibited smoking in open areas where
occupants of the building objected; is
that correct?
A An open area is where the occupants
of the building objected? I’m not
certain it is correct. Smoking was
allowed in cubicles --
Q Well, I’m referring now to the
letter of August 31st, 1990. Actually, I
can work from any one of these. You
might look at Exhibit 8. The third from
last paragraph in this letter from Mr.
82a
Garber: “Within open work areas,
employees may be allowed to smoke in
their immediate work areas provided the
employees in that area agree to allow
smoking. However, if one or more
employees complain of passive tobacco
smoke, and accommodation efforts fail,
the areas shall be declared non-smoking.”
That’s your understanding of the policy?
A ”“...shall be declared non-smoking by
the district administrator.”
Q Right. And can you tell me why it
was that the open area in which Ms.
Gupton worked, and in which she
complained of exposure to tobacco smoke,
and in which Mr. Leddy worked and
complained of exposure to tobacco smoke,
and in which Mr. Stahl worked, why it was
that smoking continued in that area after
-
COO REN NTROLEE ANY IE NIT A eNO RN. Ae 2 eR he NEI y= =
AT Ae yg RITE oN ey Oe
. 6
a ae DE
83a
complaints of smoking?
A There was no smoking in that area.
Q Is that area -- is there a barrier
of walls or doors between that area and
the area in which smoking was permitted. ?
A No, sir, there isn’t.
Q Why did smoking continue in that
area?
A It did not continue in that area.
The smoking stopped at Sandy Rapier’s
office, which is outside that area.
According to the HBI report there is no
carry-over, due to the ventilation system
in that office, of tobacco smoke. And
there was no smoking of lighted cigarette
or pipe products in the area in question.
MR. SPAULDING =: No further
questions?
THE COURT: All right. You may
84a
stand down.
(Witness stood aside.)
MR. HORSLEY: Your Honor, the only
thing I have left is the de bene esse
deposition of Dr. Witorsch taken on
January 13th, which has been filed with
the Court. Dr. Witorsch is out of the
country, and his deposition was taken
under the understanding it would be a de
bene esse deposition by notice. So I
would move for that to be admitted into
evidence at this time.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.