Supervisors Immune From Liability for Deceased Worker

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By Kevin McGowan

Sept. 8 — Two Nevada county supervisors who denied the transfer requests of an employee who ultimately died because of workplace mold exposure can’t be held liable to the deceased worker’s family, a divided U.S. Court of Appeals for the Ninth Circuit ruled ( Pauluk v. Savage , 2016 BL 292898, 9th Cir., No. 14-15027, 9/8/16 ).

The decision is significant because it limits the breadth of a 1992 U.S. Supreme Court ruling that the federal Constitution’s due process clause doesn’t place a general duty on public employers to provide safe workplaces to their employees.

Due Process Claim Stated

Instead, the Ninth Circuit said public employees or their survivors may have 14th Amendment substantive due process claims if a public employer took deliberate steps that created unsafe working conditions.

The family of deceased Clark County employee Daniel Pauluk stated a due process claim under that “state-created danger” doctrine, the court said in a 2-1 decision.

But that constitutional right wasn’t “clearly established” when supervisors Glenn Savage and Edward Wojcik denied Pauluk’s requests for transfer from his mold-infested workplace, the court said.

The supervisors therefore have qualified immunity from Pauluk’s family’s constitutional claims under the Civil Rights Act of 1871 (42 U.S.C. § 1983), Judge William A. Fletcher wrote Sept. 8.

In dissent, Judge John T. Noonan would allow the claims to proceed because “any reasonable official” would have realized they were violating the public employee’s rights by denying him transfer from a known unsafe workplace.

Court Split on Rationale

In a separate opinion, Judge Mary H. Murguia concurred that Savage and Wocjik are entitled to qualified immunity. But Murguia also would find the family failed to state a constitutional claim.

The state-created danger doctrine requires an employee to show a state official “affirmatively created” an unsafe working environment and acted with “deliberate indifference” in subjecting the employee to that workspace, she wrote.

A court majority said Savage and Wocjik took the requisite “affirmative” action by reassigning Pauluk in 2003 to the workplace containing toxic mold levels that caused the pulmonary disease that led to his death.

But Murguia said the Pauluk family alleged the deceased worker, a veteran county employee, previously had encountered dangerous mold in other public workplaces.

So it’s not clear the 2003 reassignment or the supervisors’ subsequent refusal of Pauluk’s transfer requests actually created the danger that caused his death, she said.

Nor does the evidence support a finding those supervisors acted with “deliberate indifference” to Pauluk’s stated health concerns, Murguia wrote.

The Pauluk family’s separate Section 1983 claims against the Clark County Health District, Pauluk’s former employer, remain pending.

John J. Tofano in Las Vegas represented the Pauluk family. Olson Cannon Gormley Angulo & Stoberski represented Savage and Wojcik.

To contact the reporter on this story: Kevin McGowan in Washington at

To contact the editor responsible for this story: Susan J. McGolrick at

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