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North Dakota Supreme Court Opinions

Southeast Human Service Center v. Eiseman, 525 N.W.2d 664 (N.D. 1994)

[Go to Docket] Filed Dec. 20, 1994

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IN THE SUPREME COURT

STATE OF NORTH DAKOTA

Southeast Human Service Center, Department of

Human Services, Appellant

v.

Eiseman and State Personnel Board, Appellees

Civil No. 940109

Appeal from the District Court for Cass County, East Central Judicial

District, the Honorable Lawrence A. Leclerc, Judge.

REVERSED.

Opinion of the Court by Levine, Justice.

Cary R. son (argued), Special Assistant Attorney General, P.O. Box

6017, Fargo, ND 58108-6017, for appellant.

Mark G. Schneider (argued), Schneider, Schneider & Schneider, 815 Third

Avenue South, Fargo, ND 58103, for appellee Eiseman.

Maxwell (argued), Assistant Attorney General, Insurance Department,

600 East Boulevard Avenue, Bismarck, ND 58505-0320, for appellee State

Personnel Board.

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Southeast Human Service Center v. Eiseman

Civil No. 940109

LEVINE, Justice.

Southeast Human Service Center (SEHSC), a component of the North Dakota

Department of Human Services, appeals from a district court judgment

affirming a decision by the North Dakota State Personnel Board (Board)

ordering Eiseman reinstated to her job at SEHSC. SEHSC also appeals

from the court's award of attorney's fees to Eiseman under N.D.C.C.

28-32-21.1. We reverse.

On July 31, 1991, SEHSC terminated Eiseman from her nonprobationary,

classified position as a Vocational Rehabilitation Counselor I on the

grounds that she was absent from work without authorization for more than

three consecutive working days and that she had failed to comply with SEHSC

directives to return to work. Eiseman had been employed at SEHSC since

September 16, 1974, and when she was terminated, she was working in the

Vocational Rehabilitation Unit under the direction of Terrence Lien, the

SEHSC Regional Program Administrator.

Eiseman did not experience any respiratory problems at work until SEHSC

moved its office in 1982. Then, Eiseman and other SEHSC employees began

having respiratory problems associated with poor air quality at the new

office. On several occasions, the SEHSC Regional Director, Gerald Korsmo,

informed the landlord about the poor air quality at that office. Eventually,

the ventilation system was remodeled, but Eiseman continued to complain

about the poor air quality and its effect on her health.

On April 8, 1991, Eiseman asked Lien for extended medical leave because of

" illness due to the indoor pollution at the work site which makes it

impossible for {her} to return to work at this time. " Lien granted her leave

through April 17, 1991, which he deducted from her balance of six hours of

sick leave and from her annual leave. Lien also asked her to supply any

recent medical reports from her attending physician concerning her current

illness.

Eiseman submitted letters from two physicians, Dr. Stoy and Dr. L.

B. Silverman. Dr. Stoy reported that Eiseman suffered from " a persistent

respiratory problem precluding her from performing her normal work

activities, " but anticipated that she " would likely recover from this and be

able to resume her normal job duties. " Dr. Silverman diagnosed an

" environmental type of illness " with symptoms of " periodic cough, fatigue,

inability to concentrate and other difficulties which affect her ability to

function on the job. " According to Dr. Silverman, Eiseman's greatest

difficulty was a " sensitivity to formalin and the petrochemical ethanol

which is quite often present in buildings and in shopping malls. " He

suggested that she use a special face mask with activated charcoal and a

portable air cleaner, and recommended that she be assigned a work place away

from the exposure.

At Eiseman's request, Lien granted her additional leave through April 24,

1991, which he deducted from her annual leave. However, Lien noted that the

extension of leave would cause further deterioration in the quality of

Eiseman's service to her clients and asked her to return to work as soon as

possible.

On April 22, 1991, Eiseman requested a medical leave of absence due to her

" environmental illness/chemical sensitivities caused by exposures at work

{which} have resulted in respiratory problems. " Eiseman also requested a

reasonable accommodation at a chemically uncontaminated workplace for her

disabling condition. Lien granted Eiseman leave without pay from April 25,

1991, and informed her that SEHSC would test the office for the two elements

identified in Dr. Silverman's report, formalin and petrochemical ethanol.

Independent laboratory testing of air samples from the SEHSC office revealed

the presence of formalin and petrochemical ethanol, but within OSHA

permissible exposure limits. After receiving the test results, Korsmo

cancelled Eiseman's leave of absence on June 11, 1991, and asked her to

return to work by June 17, 1991.

Eiseman told Korsmo that the tests were of " no value " and deprived her of

her rights as a handicapped individual. She requested an additional leave of

absence until she was accommodated with an uncontaminated work site. Lien

notified Eiseman that SEHSC would not extend her leave of absence and that

he would recommend initiation of a dismissal action if she did not return to

work by June 24, 1991.

On June 21, 1991, Eiseman again requested an extension of her leave of

absence, stating:

" You obviously do not understand the chemical sensitivity diagnosis. I

developed chemical sensitivity due to PAST substantial indoor air quality

violations at work. I am not claiming that those violations still exist. In

fact, I have been informed that maintenance work may have been done by the

landlord to correct violations before these tests were even performed.

Therefore, the current test results are meaningless from this perspective

also. . . .

" My claim is that due to these past workplace exposures I have developed a

chemical sensitivity syndrome. This means that adverse symptoms and health

damage can occur at exposure levels far below the {permissible exposure

limits}. The disability that I am claiming is Multiple Chemical

Sensitivities/Environmental Illness, and you have completely failed to

address this issue.

" Your failure to address my chemical sensitivity disability is a violation

of my rights as a handicapped individual under the Rehabilitation Act of

1973 and the soon-to-be-implemented Americans with Disabilities Act. "

During this time, Lien learned of medical literature questioning the

validity of claims of environmental illnesses and criticizing the methods

employed by clinical ecologists. Korsmo suggested that, before SEHSC

proceeded with pretermination procedures, Eiseman's medical records be

reviewed and she be examined by a specialist chosen and paid for by SEHSC.

Eiseman requested that the physician be affiliated with the American Academy

of Environmental Medicine and have direct experience with multiple chemical

sensitivities. SEHSC thereafter selected Ellison, M.D., a clinical

toxicologist at St. Luke's Hospital in Fargo, to examine Eiseman.

On July 17, 1991, Eiseman responded that she had " checked on Dr. Ellison's

qualifications and find him to be unqualified per what I have found out

through trial and error are necessary qualifications for an accurate

diagnosis of my illness. " Eiseman informed Korsmo that she was scheduled to

consult with a " qualified " physician on July 31, 1991, in Seattle,

Washington:

" I request that you allow me to see this physician at your expense. If not,

I will pay for it myself. My reasoning is that I want a physician who at

least has directly diagnosed and treated someone with multiple chemical

sensitivities. There is no indication that Dr. Ellison has diagnosed and

treated anyone with multiple chemical sensitivities. Without this

experience, Dr. Ellison is simply dealing with abstract concepts. He is not

acting as a physician. My illness does not depend on whether he accepts the

scientific validity of someone else's hypothesis. I am a real person who has

a real health problem. If he has no experience in actually diagnosing and

treating people with multiple chemical sensitivities, then he is not

qualified to review my records.

" If you decide not to pay for my expenses, then I request that you extend my

leave of absence until such time as I can obtain a second opinion from a

medical specialist with both qualifications and experience in my disability

area. I will be taking all medical information to him for his review also. "

On July 18, 1991, Korsmo gave Eiseman pretermination notice of the

allegations against her with an opportunity to respond by July 25, 1991.

Korsmo noted that Eiseman had refused to see a medical doctor chosen by

SEHSC for a second medical opinion. Eiseman responded:

" {P}lease reread my letter dated July 17, 1991, in which I listed the

qualifications and experience necessary to obtain an accurate diagnosis of

multiple chemical sensitivity, and note that I am not refusing to get a

second medical opinion from a qualified physician who has experience with

diagnosing and treating people with multiple chemical sensitivity. . . . In

fact, I am so concerned about obtaining as accurate and comprehensive a

picture of my overall health as possible that I am willing to pay for the

expenses myself. I will be seeing Dr. Buscher. After I have seen Dr.

Buscher and when I have received his report I will then, if you wish, also

see Dr. Ellison. . . .

" I find it confusing that you will probably be giving me written notice of

termination 'on or before July 31, 1991,' the very day I am presently

scheduled to see Dr. Buscher for a second medical opinion/analysis at my

expense. It seems the Department does not want a second medical opinion.

Perhaps you want to terminate me before you get it so that my only recourse

from that point would need to be legal action. "

SEHSC terminated Eiseman effective July 31, 1991, on the grounds that she

was absent from work without authorization for more than three consecutive

working days and that she had failed to comply with SEHSC directives to

return to work. The Department of Human Services upheld Eiseman's

termination, noting that she had been unwilling to submit to a medical

evaluation and that her claim for reasonable accommodation could not be

fully addressed because of that refusal.

Eiseman appealed to the Board, which assigned a hearing officer to conduct

an administrative hearing. The hearing officer recommended upholding

Eiseman's termination. The Board initially rejected the hearing officer's

recommendation and ordered Eiseman reinstated. SEHSC appealed, and the

district court remanded for reconsideration, concluding that the Board had

improperly considered evidence which had not been presented at the

administrative hearing. On remand, the Board concluded that Eiseman was

terminated without cause and ordered her reinstated, with back pay and

benefits.

SEHSC again appealed the Board's decision. The district court then upheld

the Board's order reinstating Eiseman. The court also concluded that SEHSC's

second appeal was without substantial justification and awarded Eiseman

attorney's fees under N.D.C.C. 28-32-21.1. SEHSC appealed.1

I

Relying on Berger v. State Personnel Board, 502 N.W.2d 539, 541, n.4 (N.D.

1993), Eiseman contends that the Board's order reinstating her is " final "

under N.D.C.C. 54-44.3-07(3) and, therefore, is not appealable under

N.D.C.C. 28-32-15(1). SEHSC responds that N.D.C.C. 54-44.3-07(3), does not

declare Board orders unappealable and any contrary implication from Berger

is dictum.

In Hammond v. North Dakota State Personnel Bd., 332 N.W.2d 244 (N.D. 1983),

this court held that the Board was an " administrative agency " as defined by

N.D.C.C. 28-32-01 and that N.D.C.C. 28-32-15(1) authorized appeals from

final decisions of the Board. Since Hammond, decisions of the Board have

been appealable under N.D.C.C. 28-32-15(1), which says that " {a}ny party to

any proceeding heard by an administrative agency, except in cases where the

order of the administrative agency is declared final by any other statute,

may appeal from the order. " See, e.g., Berdahl v. North Dakota State

Personnel Bd., 447 N.W.2d 300 (N.D. 1989).

In 1991, the Legislature enacted N.D.C.C. 54-44.3-07(3), which authorizes

the Board to " {h}ear, consider, and determine appeals by nonprobationary

employees in the classified service from agency grievance procedures . . .

related to . . . dismissal " and says " {t}he board's decision on appeal shall

resolve the issues presented between the employer and employee. " 1991 N.D.

Sess. Laws, ch. 607, 2. In Berger, supra, 502 N.W.2d at 541, n.4, this court

said:

" In Hammond v. North Dakota State Personnel Board, 332 N.W.2d 244 (N.D.

1983), we ruled that the State Personnel Board was an administrative agency

and its final orders appealable under N.D.C.C. ch. 28-32. Since Hammond was

decided, the legislature amended N.D.C.C. 54-44.3-07(3), providing that the

'board's decision on an appeal shall resolve the issues presented between

the employer and employee.' Administrative Agency orders 'declared final' by

statute are not appealable under the terms of N.D.C.C. 28-32-15. Berger,

however, is not an employee of the state. "

At issue in Berger was the Board's authority to award Berger, an

unsuccessful applicant for a job with the State Soil Conservation Committee,

attorney's fees under N.D.C.C. 54-44.3-07(3). A majority of this court

affirmed the Board's denial of attorney's fees, holding that N.D.C.C.

54-44.3-07(3) was limited to appeals " 'by nonprobationary employees,' " and

was not applicable to Berger's claim because she was not, and had never

been, a state employee. Berger, supra, 502 N.W.2d at 542. We concluded that

the Board did not have authority to hear Berger's appeal, because its

authority was limited to appeals involving " 'nonprobationary employees' " and

to issues between " 'employer and employee.' " Id. Berger thus held that

N.D.C.C. 54-44.3-07(3) does not authorize an unsuccessful applicant for a

state position to appeal to the Board from an unfavorable hiring decision.

Berger did not hold that nonprobationary, classified employees are precluded

from appealing Board decisions.

When the Legislature has intended to make agency decisions unappealable, it

has said so clearly with language denoting the finality of an agency

decision. N.D.C.C. 65-05-04 ( " There is no appeal from a {workers

compensation} bureau decision not to reopen a claim after the bureau's order

on the claim has become final. " ) and 61-16.1-23 ( " The state engineer . . .

shall only determine if there is any benefit to the landowner or political

subdivision, and the determination of the state engineer upon such question

is final. " ). See Lass v. North Dakota Workmen's Compensation Bureau, 415

N.W.2d 796 (N.D. 1987); Investment Rarities, Inc. v. Bottineau County Water

Resource District, 396 N.W.2d 746 (N.D. 1986).

Words in a statute are given their plain, ordinary, and commonly understood

meaning. E.g., Kim-Go v. J.P. Furlong Enterprises, Inc., 460 N.W.2d 694

(N.D. 1990). There is no reference in N.D.C.C. 54-44.3-07(3) to the finality

or unappealability of an order by the Board. Instead, the statute says that

the Board is to " resolve the issues presented between the employer and

employee. " The plain meaning of the Board's duty to " resolve " issues is that

the Board must decide disputes between the employer and employee. In setting

out the Board's authority, the statute does not address the right to appeal,

which Hammond held was authorized by N.D.C.C. 28-32-15(1).2 We hold that

N.D.C.C. 54-44.3-07(3) authorizes the Board to determine disputed issues

between employer and employee; it does not make a Board order final.

Construing the two statutes together, as we must, Westman v. North Dakota

Workers Compensation Bureau, 459 N.W.2d 540 (N.D. 1990), we conclude that

they authorize nonprobationary, classified state employees and their

employers to appeal from orders by the Board.

II

SEHSC contends that the Board's decision is not in accordance with the law

because there was cause to terminate Eiseman. The Board and Eiseman respond

that SEHSC did not have cause to terminate Eiseman and acted unreasonably in

refusing to meet with her and objectively discuss her concerns and possible

solutions.

Sections 28-32-21 and 28-32-19, N.D.C.C., outline this court's standard for

reviewing an appeal from an administrative agency decision. Berger, supra;

Berdahl, supra. Under those provisions, our review involves a three-step

process to determine whether the agency's findings of fact are supported by

a preponderance of the evidence, its conclusions of law are supported by its

findings of fact, and its decision is in accordance with the law. Bohac v.

Graham, 424 N.W.2d 144 (N.D. 1988). In reviewing an administrative agency's

findings of fact, we do not make independent findings or substitute our

judgment for that of the agency; instead, we determine whether a reasoning

mind could have reasonably determined that the agency's factual conclusions

were supported by the weight of the evidence. Berdahl, supra.

Section 59.5-03-03-05, N.D.A.C., authorizes dismissal of a classified,

nonprobationary state employee for " cause. " Seealso N.D.A.C. 4-07-19-03

( " employee may be disciplined only for cause " ). When Eiseman was terminated,

N.D.A.C. 59.5-03-03-02(1) defined " cause " to " include{} conduct related to

the employee's job duties, job performance, or working relationships which

is detrimental to the discipline and efficiency of the service in which the

employee is or was engaged. " 3 See alsoN.D.A.C. 4-07-19-02(1). Section

315-01-04-01 of the personnel policies for the Department of Human Services

said that unauthorized absences for more than three consecutive working days

constituted just cause for dismissal.4

In determining that SEHSC terminated Eiseman without cause, the Board framed

the issue as " the relationship between the employer and employee and the

employer's duty to protect the health of the state classified employee

before dismissal when the evidence shows the work site to be detrimental to

the health of the employee. " The Board recognized a duty on SEHSC to provide

a safe and healthy workplace for its employees and found that the evidence

showed Eiseman's extraordinary sensitivity to the air quality at her work

site was adversely affecting her health. The Board concluded that SEHSC was

required to " at least try an off-site or alternate work location for Eiseman

before dismissing her, " and that her dismissal " before efforts were made to

relocate her due to her individual reaction to the work environment was not

for cause. "

The Board relied upon the general rule that an employer has a duty to

provide a safe workplace for its employees. See Yuha v. Minneapolis, St. P.

& S.S.M. Ry. Co., 42 N.D. 179, 171 N.W. 851 (1919). See, e.g., International

Brotherhood of Electrical Workers v. Hechler, 481 U.S. 851, 107 S.Ct. 2161,

95 L.Ed.2d 791 (1987); Heilweil v. Mount Sinai Hospital, 32 F.3d 718 (2nd

Cir. 1994). See generally, Prosser and Keeton on Torts, 80 (5th ed. 1984).

However, the Board ignored the legal effect of SEHSC's request that Eiseman

submit to a medical examination by a doctor chosen by SEHSC.

An employee is generally obligated to comply with an employer's reasonable

requests. See N.D.C.C. 34-02-08;McGregor v. Harm, 19 N.D. 599, 125 N.W. 885

(1910) (employee's refusal to comply with employer's request to work one

additional hour was unreasonable and, as a matter of law, justified

discharge). See also Restatement (2nd) of the Law, Agency 385(1) (1958)

( " {u}nless otherwise agreed, an agent is subject to a duty to obey all

reasonable directions in regard to the manner of performing a service that

he has contracted to perform. " ).

Professors Corbin and Williston each instruct that an employee's

disobedience of an employer's reasonable request is a ground for discharge.

9 Jaeger, Williston on Contracts 1013B (3rd ed. 1967); 3A Corbin, Corbin on

Contracts 679 (1960). Seealso 53 Am.Jur.2d Master and Servant 54 (1970). In

the context of dismissals for absenteeism, courts have sustained

terminations in cases where employees have not provided employers with

appropriate medical documentation for the absences. Maulding v. Sullivan,

961 F.2d 694 (8th Cir. 1992), cert. denied, ___ U.S. ___, 113 S.Ct. 1255,

122 L.Ed.2d 653 (1993); Fong v. United States Department of Treasury, 705

F.Supp. 41 (D.D.C. 1989); v. Fulton County, 200 Ga.App. 568, 408

S.E.2d 816 (1991); Burks v. Phyfer, 487 So.2d 903 (Ala.Civ.App.), reversed

on other grounds, 487 So.2d 905 (Ala. 1985). See Southern Tours, Inc. v.

National Labor Relations Board, 401 F.2d 629 (5th Cir. 1968) (second medical

opinion ordered by National Labor Relations Board was reasonable and

necessary to determine if an employee had been discharged because of a

physical disability); Bodnar v. New York State Thruway Authority, 52 A.D.2d

345, 383 N.Y.S.2d 923 (1976) (employer cannot unilaterally decide that a

second medical examination of employee would be fruitless). Cf. Bozarth v.

Atlantic Richfield Oil Co., Inc., 833 P.2d 2 (Alaska 1992) (employee's

failure to comply with a reasonable order to participate in a private

employer's drug testing program constituted cause for discharge). The lesson

derived from those authorities is that an employer can reasonably request an

employee to provide appropriate medical documentation, including a second

medical opinion, where the employee claims that absences from work are due

to illness.

In this case, Eiseman voiced concerns about air quality at the SEHSC office.

She had not reported to work since March 28, 1991, and SEHSC was concerned

about the effect of her absences on the delivery of services to clients. In

response to a request by SEHSC, she submitted information about her

condition from Dr. Stoy and Dr. Silverman. Dr. Stoy noted that Eiseman

suffered from a " persistent respiratory problem precluding her from

performing her normal work activities, " but anticipated that she " would

likely recover from this and be able to resume her normal job duties. " Dr.

Silverman diagnosed Eiseman as suffering from an " environmental type of

illness " with a " sensitivity to formalin and the petrochemical ethanol which

is quite often present in buildings and in shopping malls. " Thereafter,

SEHSC had the air quality at the work site tested, and the results of those

tests indicated that the substances analyzed were within OSHA permissible

exposure limits.

Meanwhile, SEHSC became aware of medical literature questioning the validity

of claims of environmental illness and criticizing the methods employed by

clinical ecologists. In a letter to Eiseman, Dr. Stoy explained that he did

not agree with Dr. Silverman's approach and did not find validity in many of

the types of tests he performed. Dr. Stoy noted that clinical ecologists

have not " proven to the medical profession that their methodologies have any

validity " and stated that he did " not feel that their methodology should be

utilized until such studies prove its effectiveness. "

Those factors raised a legitimate question about the specific nature of

Eiseman's condition and its relationship to the air quality at her work

site. It was in that context that SEHSC asked Eiseman to submit to a medical

examination by a doctor of its choice. Eiseman's claim that the doctor

chosen by SEHSC was " unqualified, " did not legally justify her rejection of

her employer's request. While she may have had grounds to contest the

qualifications of the proposed doctor, after his examination of her and his

report to SEHSC, she could not refuse unilaterally to comply with the

request that she see him.

Because of the legitimate concerns about the nature of Eiseman's condition

and its relationship to the air quality at the SEHSC work site, a reasoning

mind could not reasonably conclude that SEHSC's request for Eiseman to

submit to a medical examination by a doctor of its choice was unreasonable.

We hold that SEHSC's request that Eiseman submit to an examination by the

doctor chosen by SEHSC was, as a matter of law, reasonable. We decline to

speculate on the course of events if Eiseman had complied with SEHSC's

reasonable request. We hold that the Board's failure to recognize the legal

effect of Eiseman's refusal to submit to an examination by a doctor chosen

by SEHSC was not in accordance with the law. Because Eiseman failed to honor

a reasonable request by her employer and was thereafter absent from the

workplace without authorization for more than three consecutive working

days, we hold that SEHSC had cause to terminate her employment.

Because SEHSC had cause to terminate Eiseman's employment, we also hold that

the district court abused its discretion in determining that SEHSC's appeal

was without substantial justification under N.D.C.C. 28-32-21.1. See Shark

v. Northern States Power Co., 477 N.W.2d 251 (N.D. 1991); Aggie Investments

GP v. Public Service Commission, 470 N.W.2d 805 (N.D. 1991).

We reverse the judgment and remand to the district court with instructions

to remand to the Board for entry of an order affirming SEHSC's dismissal of

Eiseman.

Beryl J. Levine

A. Neumann

Dale V. Sandstrom

Herbert L. Meschke

Gerald W. VandeWalle, C.J.

_________________________________

FOOTNOTES:

1 SEHSC and the Board are state entities and both are represented by the

attorney general. Section 54-12-01(3), N.D.C.C., outlines the procedure for

appointment of counsel for one of the parties in cases like this.

2 Nothing in the available legislative history for 1993 N.D. Sess. Laws, ch.

607, indicates that the Legislature intended to change the result of Hammond

v. North Dakota State Personnel Board, 332 N.W.2d 244 (N.D. 1983). Instead,

the legislative history indicates that the amendment was intended to confirm

that the Board has authority to hear appeals by state employees. January 18,

1991 Minutes of State and Federal Government Committee of Senate regarding

Senate Bill 2101.

3 Effective May 1, 1994, the definition of " cause " was changed from

" includes " to " means. " For a discussion of the difference between " includes "

and " means " in definitions of terms, see Americana Healthcare v. North

Dakota Dept. of Human Services, 510 N.W.2d 592, 594-95, n.2 (N.D. 1994)

{ " 'An exhaustive definition uses the word means, while a partial definition

uses the word includes.' " }

4 Effective March 1994, that provision is found in Section 315-01-21(1) of

the Department's personnel policies.