).  An asthmatic employee of the New York State Department of Correctional Services sued his employer for discrimination under the Americans With Disabilities Act (ADA).  While serving as a correctional officer, Muller became seriously ill after being exposed to ETS.  Although his treating physician recommended that he work in a smoke-free environment, the defendants provide him with a protective mask which, according to Muller, made him even more ill.  Additionally, wearing the mask subjected him to widespread ridicule, putting him in even greater personal danger due to the breakdown in the respect that the inmates had for him.  Since then, he has been forced to work in smoke-filled areas.  On April 16, 1996, the judge barred the Plaintiff’s negligence and civil rights claims but allowed the ADA claim to proceed.  Ruling that whether a particular accommodation is “reasonable” involves a fact-specific, case-by-case determination, the judge said that the determination must include the effectiveness of the modification in light of Muller’s disability.  Saying that he could not conclude that the accommodations were reasonable or unreasonable on their face, the judge denied the Defendants’ motion to dismiss the ADA claim.  See “Tobacco Smoke Suit LandsN.Y. Jail in Court,” Indoor Environment Review, October 1996, 2.

In October 1997, a jury awarded Muller $420,300 after finding that the state Department of Corrections had unlawfully discriminated against him.  See O’Brien, J., and O’Hara, J., “Ex-guard Wins Smoking Lawsuit,” Syracuse Herald-Journal, October 18, 1997, A3; “Fired Prison Guard Wins Smoking Suit Against State,” Register Star (Hudson, NY), October 19, 1997, A9; “Fired Prison Guard Awarded $420,300,” Buffalo News, October 19, 1997, A-12; “Fired Officer Wins Smoking in the Workplace Lawsuit, Corrections Digest, October 24, 1997, 7; and Mendelson, L., “Asthma Is Disability Under ADA,” California Employment Law Monitor, November 24, 1997.

Addressing post-trial motions, the court (Scullin, J.), at 997 F. Supp. 299, 1998 U.S. Dist. LEXIS 3469, denied the Defendant’s motions for judgment as a matter of law or, in the alternative, for a new trial because “the Court finds that there was ample evidence to support a finding that Plaintiff’s disability affected his ability to perform any job that might come in contact with smoke or other asthma inducing chemicals.”  The court did allow the Defendant’s motion to cap compensatory damages at $300,000 because of the specific language of 42 U.S.C. sec. 1981a(b)(3).  The court also rejected the Defendant’s motion to vacate or reduce the verdict as excessive, ruling that “Plaintiff submitted evidence of discrimination that had taken place over a period of years during which time he was forced to endure mental suffering, embarrassment, economic hardship, actual termination and physical injury.  In view of this evidence, the Court finds that the jury award of $300,000 is not excessive and does not shock the conscience as a matter of law.”  The Defendant’s contention that the ADA does not apply to state prisons was also rejected.  The court also allowed the Plaintiff’s motion to be reinstated to Midstate Correctional Facility in a smoke-free post.

On August 11, 1999, the U.S. Court of Appeals for the Second Circuit, at 187 F.3d 298, 1999 U.S. App. LEXIS 18651, 9 AD Cases 1064, affirmed the judgment to the extent supported by the retaliation claim.  The Court of Appeals rejected the argument that the district court was without jurisdiction to consider Muller’s claims because the Eleventh Amendment rendered the state defendants immune from suit under the ADA.  The Court of Appeals also ruled that “there was insufficient evidence before the jury for it to have concluded that Muller was substantially limited in his major life activity of working” and that “Muller’s proof of his breathing impairment was deficient.”  Nonetheless, the jury’s full award, as well as the district court’s equitable awards of reinstatement and back pay, stands because Muller had brought in good faith a claim that he had been discriminated against and the jury found that the defendant had retaliated against him.  See Hamblett, M., “Another Circuit Rejects Disabilities Act Challenge,” FultonCounty Daily Report, August 13, 1999.

5 AD Cases 779, 1996 U.S. Dist. LEXIS 5239, No. 94-CV-842 (N.D., NY 1996).