Friday, April 3, 1998 | 10:18 a.m.
A federal judge has refused to dismiss a lawsuit filed by a teacher who claims that asbestos problems at Eldorado High School in 1991 caused her to develop asthma.
The Clark County School District filed a motion to toss out the case filed by Margaret Russell, who first became a teacher in 1968, claiming she didn't qualify as a disabled person under the Americans with Disabilities Act.
But U.S. District Judge David W. Hagen rejected the move and said a jury should decide if Russell deserves compensation from the school district for the condition that requires her to take medication daily.
School district attorneys had argued that the asthma problem didn't impair Russell's "major life activities" to the point where it legally qualified as a disability.
Hagen noted, however, that there is "uncontradicted evidence" that despite the daily medication, Russell has had to visit emergency rooms twice because of bronchial spasms and has restricted her physical activities.
"Given this evidence, a reasonable jury could conclude that with or without medication, Russell's impairment substantially limits the major life activity of breathing," the judge concluded.
Russell's problems allegedly began after the summer of 1991, when asbestos removal and renovation work was done on the main building at Eldorado High School, on Linn Lane near Nellis Boulevard.
After she resumed teaching in the fall, she complained of wheezing, coughing, shortness of breath and fatigue because of the asthma when she was teaching in the main building.
A switch to temporary classrooms solved most of the problems during the next three years, although court documents indicate Russell still had to take medication and "carry breathing machines."
In 1994, she was assigned as a "roving" teacher in the main building after the school principal "told her there was nothing wrong with her, that she did not have asthma and that she would not be assigned to a portable classroom," Hagen's order stated.
While attending a staff meeting in the main building on the first day of school, she suffered an asthma attack, documents indicate. Russell took off the entire school year on medical leave.
In 1995, she transferred to Rancho High School, where she was able to teach, although she still had to use inhalers.
The school district's court motion had been heard by U.S. Magistrate Judge Robert Johnson, who had recommended to Hagen that he dismiss the case because the asthma did not impair Russell's ability to work and could be controlled with medication.
Hagen rejected the recommendation, ruling that Johnson should have considered "major life activities" other than the ability to work.
In his order, Hagen noted that "an individual is disabled under the ADA if she has a physical or mental impairment that substantially limits one or more major life activities, such as breathing, walking or working."
Hagen stated that under Equal Employment Opportunity guidelines, Johnson should not have considered the issue of medication.
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