A man who was employed by the Defendant as a painter for over 38 years began to develop asthma and suffer asthma attacks, caused by exposure to secondhand smoke.  He uses an inhaler but, according to Faircloth, it does little to alleviate his asthma attacks.  Claiming that he must be provided a smoke-free work environment, Faircloth sued the university for failure to accommodate and a hostile work environment under the Americans With Disabilities Act (ADA) and for state law claims of constructive discharge and assault and battery.   The magistrate judge recommended granting the employer’s motion to dismiss the state law claims but denying the motion to dismiss the ADA claim.  Faircloth retired early, claiming that Duke had failed to prevent co-workers from smoking in his presence.  The magistrate judge ruled that “given the variable nature of asthma, the Court cannot say that it appears beyond doubt that plaintiff can prove some set of facts that will establish that he is disabled under the ADA..”

267 F. Supp. 2d 470, 2003 U.S. Dist. LEXIS 10302 (U.S.D.C. M.D.N.C. 2003).