Bosses Dodge Deadly Workplace Mold Suit

     SAN FRANCISCO (CN) — Two Clark County Health District supervisors are entitled to qualified immunity after their employee died from toxic mold exposure in their facility, a divided Ninth Circuit ruled Thursday.
      The three-judge panel found that Wendy Pauluk, the widow of Daniel Pauluk, and her daughters Jaime and Chrissy successfully demonstrated that Daniel had a 14th Amendment right to a safe workplace under the state-created danger doctrine. Reversing an order from the District Court of Nevada, the panel also determined that Pauluk’s superiors, Glenn Savage and Edward Wojcik, are entitled to qualified immunity because it was not clearly established whether Daniel’s constitutional right applied to physical workplace conditions when the violation occurred.
     U.S. Circuit Judge William Fletcher outlined the case’s history in his 20-page opinion.
     Pauluk worked as an environmental health specialist at the health district’s Shadow Lane facility, a building where roof and water leakage had caused toxic mold. Although he spent some time away in satellite offices, he was returned to Shadow Lane in 2003, despite his objections. He repeatedly requested a transfer, claiming that the mold harmed his health. Savage and Wojcik denied his requests.
     Sometime in 2003, Pauluk began experiencing health problems that doctors said were caused by mold exposure, including decreased mental capacity, headaches, cramps and vomiting. He resigned in 2005 and died in 2007 of mixed mold mycotoxicosis.
      His family sued the health district, Savage and Wojcik under the 14th Amendment’s due process clause and state law, and the district court denied Savage and Wojcik’s motion for summary judgment on all claims except for negligent supervision and training.
     Fletcher wrote that the panel was precluded from ruling on whether Shadow Lane was unsafe and whether Savage and Wojcik caused Pauluk’s death by deliberate indifference because genuine issues of material fact still existed.
     However, it can decide whether the supervisors committed a violation and whether they have qualified immunity.
     “The general rule is that a state actor is not liable for his omissions or failure to act,” Fletcher wrote. However, he added that, “The state-created danger doctrine is a recognized ‘exception’ to this general rule.”
     In addition to showing that Savage and Wojcik created or maintained an unsafe workplace, the Pauluks also had to demonstrate that the supervisors acted affirmatively and with deliberate indifference. In this case, assuming the Pauluks’ claims are true, the affirmative prong is satisfied by the fact that Daniel was transferred back to Shadow Lane once after he had been removed, even though his superiors knew about the danger the mold presented.
     But Fletcher found that Pauluk’s due process rights were not clearly established law at the time of the violation. The U.S. Supreme Court case of Collins v. City of Harker Heights presented a similar workplace-safety issue but did not address the state-law issue.
“[B]ecause the Supreme Court in Collins declined to find a due process violation in a case with very similar facts, we cannot say that Wojcik and Savage were ‘on notice’ that their conduct was unlawful under clearly established law,” he wrote.
     U.S. Circuit Judge Mary Murguia partially dissented, doubting whether the Pauluks demonstrated that Savage and Wojcik acted affirmatively and with deliberate indifference.
     “The family’s primary contention is that Wojcik and Savage failed to protect Pauluk from exposure to mold by not transferring him away from Shadow Lane. But keeping Pauluk at a facility that was infested with mold is not ‘affirmative action,'” she wrote. Daniel had worked at Shadow Lane before, and “If Pauluk’s risk of illness from mold exposure pre-dated his 2003 reassignment to Shadow Lane, then Wojcik and Savage could not have placed Pauluk in any worse of a position than if he had never been transferred.”
     Murguia also argued the supervisors did not act with deliberate indifference because they could not have reasonably been expected to know the mold would have the effect that it had on Pauluk.
     U.S. Circuit Judge John Noonan broke with the majority, arguing that the supervisors should be held accountable for transferring Daniel back to Shadow Lane despite his objections.
     “Pauluk was… willfully exposed to a mold spore infestation, and all its attendant health risks, with every breath he took,” Noonan wrote in his four-page dissent. “It would be a cruel irony to hold that a harm that strikes at the very heart of a state agency’s core competency is not sufficiently ‘particularized’ or ‘foreseeable’ to it for purposes of the state-created danger doctrine.”
     John Tofano from Las Vegas represented the Pauluks. Peter Angulo with Olson, Cannon, Gormley, Angulo & Stoberski, also in Las Vegas, argued on behalf of Savage and Wojcik.
     Tofano could not be reached by phone Thursday, and Angulo declined to comment.     

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