><
>This is not a case where an employee made an impulsive or ill-considered decision not to perform her job. To the contrary, Ms. Scott set out in writing to the employer why she was concerned and highlighted the Minntech letter, the lack of studies, and co-workers? problems.[93] Again, in her November 25, 1996 memo Ms. Scott advised Miller-Dwan why she felt the response of Dr. Downs was inadequate to meet her concerns. She carefully researched the effect of Renalin and evaluated the information provided by her employer. Her response, given all of the evidence available, was a rational one.<
><
>The Respondent also argues that it is protected from the finding of discrimination in this case by the decision in Armstrong v. Flowers Hospital, Inc. a Title VII civil rights case.[94] In that case the Court held that a pregnant nurse was not entitled to alternative duties where her job duties included working with AIDS patients. The Respondent suggests Ms. Scott is asking not to be protected from discrimination but to be granted preferential treatment over other similarly situated employees. The Respondent believes she should not be granted the right to refuse individual case assignments.<
><
>Armstrong was a disparate impact pregnancy discrimination case
ought under Title VII of the Federal Civil Rights Act. The plaintiff in that case had the burden of proof to show that the adverse impact of termination fell disproportionately on pregnant employees, but could not do so. However, this case is not a Title VII discrimination case, but is based on a specific Minnesota Occupational Safety and Health statute that affords an employee the right to refuse work under certain limited conditions. It grants rights to the employee different from and more specific than Title VII of the Federal Civil Rights Act of 1964.<
><
>Accommodation<
><
>Finally, Miller-Dwan asserts that there is no requirement in Minnesota OSHA law that an employer provide a reasonable accommodation to an employee through an altering of job duties. Again, however, the Respondent relies upon Title VII case law dealing with pregnancy discrimination. Although the OSHA discrimination law is silent on the issue of accommodation, it is quite clear that an employer may not discriminate in this situation. It should be noted that Miller-Dwan initially accommodated Ms. Scott?s request for a reassignment of certain job duties, then later directed Ms. Scott to resume all of the job tasks and then placed her on an unpaid leave of absence when she refused to do so. The statute requires an employer to allow an employee to not perform job tasks that the employee reasonably believes presents an imminent danger of serious physical harm and to otherwise continue her employment. Exactly how the employer is to arrange its workforce is not specified in the statute. However, that does not negate the prohibition against discrimination.<
><
>Damages<
><
> The parties have stipulated that Ms. Scott would have earned wages, sick leave, vacation leave, health insurance benefits and pension benefits worth $3,150.40 had she not been placed on an involuntary leave of absence. Precedent for back pay awards exists.[95] Since liability has been found, those damages are awarded. The Complainant also seeks an award of compensatory damages for Ms. Scott for her mental anguish and suffering.[96] The record indicates that Ms. Scott, an employee with good performance reviews, was put in the difficult position of having to choose between her livelihood and her health and the health of her unborn child. The gap created by the loss of income caused some bills to go unpaid resulting in harassment by creditors and stress in her relationship with her partner. There were insufficient resources for a Christmas holiday in 1997. Additionally, Ms. Scott was surprised and hurt that her employer would fail to make a relatively modest adjustment of her work schedule in light of a possible hazard to her unborn child. In light of all these circumstances an award of $2,000.00 for mental anguish and suffering is appropriate.<
><
> The OSH discrimination statute specifically allows for payment of costs, disbursements, witness fees and attorney fees to the Complainant or the employee.[97] Should the Complainant wish to do so, she may file a petition for costs and attorney fees within 20 days of the date of this order. The Respondent may respond to the petition within 15 days of receipt.<
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>[1] Minn. Stat. ? 182.654, subd. 11<
><
>[2] Minn. Stat. ? 182.654, subd. 9<
><
>[3] Minn. Stat. ? 182.669<
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>[4] T. 273-74<
><
>[5] T. 275<
><
>[6] T. 276<
><
>[7] Respondent?s Ex. 20<
><
>[8] Respondent?s Ex. 21<
><
>[9] T. 21, 277<
><
>[1 T. 17<
><
>[11] T. 33-34<
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>[12] T. 21-22<
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>[13] T.285-286<
><
>[14] Respondent?s Ex. 5, p. 1.<
><
>[15] Complainant?s Ex. 36, 38<
><
>[16] Complainant?s Ex. 36<
><
>[17] Complainant?s Ex. 35, p. 3<
><
>[18] Respondent?s Ex. 33, pp. 1-11.<
><
>[19] Respondent?s Ex. 33, pp. 12-41.<
><
>[2 T. 294<
><
>[21] Respondent?s Ex. 36.<
><
>[22] T. 301<
><
>[23] Respondent?s Ex. 28.<
><
>[24] Respondent?s Exs. 39-43<
><
>[25] T. 27-28<
><
>[26] T. 28-29<
><
>[27] T. 51-52, 63-64; Respondent?s Ex. 20.<
><
>[28] T. 53-54, 59-60<
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>[29] T. 54-58, Complainants Ex. 38<
><
>[3 T. 65-69 <
><
>[31] T. 72<
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>[32] Respondent?s Ex. 26, p. 2; T. 378<
><
>[33] T. 476<
><
>[34] Complainant?s Ex. 43<
><
>[35] T. 477<
><
>[36] Respondent?s Ex. 26, T. 198, 247, 380, 398<
><
>[37] Respondent?s Ex. 10<
><
>[38] Respondent?s Ex. 10, p. 3<
><
>[39] Respondent?s Ex. 27<
><
>[4 Respondent?s Ex. 26<
><
>[41] Respondent?s Ex. 28<
><
>[42] Respondent?s Ex. 46<
><
>[43] T. 203-204<
><
>[44] T. 85, Complainant?s Ex. 43, p. 2<
><
>[45] T. 76<
><
>[46] Respondent?s Ex. 26<
><
>[47] T. 105-106<
><
>[48] T. 76<
><
>[49]T. 106-109, Complainant?s Ex. 51<
><
>[5 Complainants Ex. 51, p. 2<
><
>[51] Complainant?s Ex. 51, pp. 3-4<
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>[52] T. 112-113; Complainant?s Exs. 15, 54<
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>[53] T. 114-115, 214<
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>[54] T. 116-119<
><
>[55] Complainant?s Ex. 44, p. 2<
><
>[56] T. 126-128, 249-250, 260-261<
><
>[57] T. 127-128<
><
>[58] Ex. 52<
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>[59] T. 124-125<
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>[6 Ex. 50, page 1-2<
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>[61] Ex. 50, page 3<
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>[62] T. 131<
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>[63] Respondent?s Ex. 31; T. 329<
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>[64] T. 411-413<
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>[65] T. 413-414, 133-134<
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>[66] T. 414-415; 424<
><
>[67] Respondent?s Ex. 29<
><
>[68] T. 513-523<
><
>[69] T. 137; Complainant?s Ex. 47<
><
>[7 T. 178; Complainant?s Ex. 46<
><
>[71] T. 179<
><
>[72] T. 181-182<
><
>[73] T. 182<
><
>[74] T. 181<
><
>[75] Stipulation of the Parties<
><
>[76] Minn. Stat. ? 182.654, subd. 9; see Conclusion of Law No. 4<
><
>[77] Section 182.654, subd. 11; see Conclusion of Law No. 5<
><
>[78] Gonzales v. West End Iron and Metal, 915 F. Supp 1031 (D. Minn 1996)<
><
>[79] Yellow Freight Systems, Inc. v. Reich 38, F. 3d 76, 84, n. 11(2d Cir. 1994)<
><
>[8 Black?s Law Dictionary 693 (6th Ed. 1990)<
><
>[81] Commissioner v. International Bildrite, OAH Docket No. 69-1901-8180-2 at p. 12 (Jan 4, 1994)<
><
>[82] Minn Rule pt. 5206.0400, subp. 5<
><
>[83] Minn Rule pt. 5206.0400 , subp. 2(I)<
><
>[84] Yellow Freight Systems, Inc. v. Reich, 38 F. 3d 76 (2d Cir. 1994)<
><
>[85] 38 F 3d at 82.<
><
>[86] 38 F 3d at 85.<
><
>[87] Ferguson v. Department of Employment Services, 247 N.W.2d 895 (Minn. 1976)<
><
>[88] Whirlpool Corp. v. Marshall, 445 US 1, 3-4 (1980); Dole v. HMS Direct Mail Service, Inc., 752 F.Supp. 573, 576 (W.D. N. Y. 1990)<
><
/>>[89] Firestone Tire and Rubber Company, (CCH) ?24,566 (OSHA Rev. Comm. 1980)<
><
>[9 T. 138<
><
>[91] Finding of Fact No.25<
><
>[92] T. 158-59<
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>[93] Finding of Fact No. 31<
><
>[94] 33 F. 3d 1308 (11th Cir. 1994) <
><
>[95] Whirlpool Corp., supra., f.n. 88.<
><
>[96] See Gillson v. State Dept. of Natural Resources, 492 N.W. 2d 835, 842(Minn. Ct App. 1992)<
><
>[97] Conclusion of Law No. 9<
>
