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MacLean v. State8/2/1999
AFFIRMED IN PART; REVERSED AND REMANDED IN PART
Plaintiff/appellant Diane MacLean worked for the Arizona Department of Education (the Department) from December 1994 to January 1996. After resigning from her job, she sued the state, alleging that she had a "disability" covered by the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. §§ 12101-12213, and that the Department had violated the ADA by failing to provide her with reasonable accommodation and by retaliating against her for engaging in a protected activity, resulting in a constructive discharge.
The trial court granted the state's motion for summary judgment and later denied MacLean's motion for reconsideration, both rulings without comment or explanation. This appeal followed. We affirm the summary judgment in favor of the state as to that aspect of MacLean's disability claim based on 42 U.S.C. § 12102(2)(C). Finding genuine issues of material fact relating to her other claims, we reverse and remand as to those.
BACKGROUND
We view all facts and reasonable inferences therefrom in the light most favorable to MacLean. Bothell v. Two Point Acres, Inc., 192 Ariz. 313, 965 P.2d 47 (App. 1998). The following facts are set forth in MacLean's affidavit, filed in response to the state's motion for summary judgment. In her affidavit, MacLean stated, inter alia:
"I have been on prescribed medication since 1972 for allergies, asthma, allergic rhinitis, and/or reactive airway disease. For most of my life, I have been unable to swim, walk or hike more than 1/2 mile, or climb hills, or bikeride because of my asthmatic condition. I suffer great shortness of breath when attempting any of those activities, even though I am on medication for asthma. . . . I am unable to carry groceries to my car or from my car to my home. I cannot run. I cannot ride a bicycle. I cannot mountain climb. I cannot snow ski or waterski . I cannot hike. While trying to swim four laps I collapsed. In my youth, I collapsed trying to run a mile. Recently, when new carpet was laid in my house, I could not breathe. I cannot breathe in a room that has smoke in it. I cannot breath outside on air pollution advisory days. I cannot breathe outside on bad pollen days. I cannot breathe in nursing homes or at hospitals that use deodorizers or have other chemical pollution. I cannot breathe in an office or building that has chemicals from a xerox machine. I cannot work in old buildings which have dust and mold as well as other pollutants. I cannot be in fabric stores because of the lint, dust and other pollutants. I can't be around air fresheners. I am allergic to many plants and foods, as well as having an extreme sensitivity to certain chemicals such as formaldehyde. I cannot walk my dog. I cannot walk in the cold. . . . I have been diagnosed with having airway disease (asthma), which was responsible for the shortness of breath. . . ."
Within a few weeks after she began working at the Department in December 1994, MacLean started experiencing difficulty in breathing and an exacerbation of her asthma. She suspected that the air quality in the Education building was causing those conditions. At a managerial meeting in January 1995, MacLean mentioned that the building's poor air quality was causing her respiratory problems. In March, MacLean experienced chest tightness, an asthma attack, and bronchitis while traveling from Flagstaff to Phoenix. In April, she experienced shortness of breath, headache, burning eyes, nausea, and pain in her lungs, all of which she attributed to her respiratory condition and a major sewer gas exposure in the building.
Later that month, a co-employee, Della Hoffa, rec
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