Professional Documents
Culture Documents
the Defendant that arise from the same facts that are at issue in
in the same forum will conserve judicial resources and ensure the
BACKGROUND
1
she is regarded as having such an impairment. 42 U.S.C. § 12102.
Title I and Title II of the ADA and can violate the prohibition
1
A “qualified individual with a disability” is a person with
a disability who, with or without reasonable accommodation, can
perform the essential functions of the position they hold or seek
to hold.
2
(c) utilizing standards, criteria, or methods of
respectively.
A. Factual Background
3
ECD”), in Weakley County, Tennessee. They had performed the
years and had given no one any cause for concern about their
Code Ann. § 7-86-201) which had been enacted three years earlier
2
The current edition of the Diagnostic and Statistical
Manual of Mental Disorders is the Fourth Edition [hereinafter the
“DSM-IV,” or “DSM-III” if the Third Edition]. The DSM-IV is a
compendium describing and categorizing various medical conditions
which psychiatrists generally consider to be “mental disorders.”
DSM-IV at xxvii. Many of the conditions listed in the DSM-IV are
capable of substantially limiting one or more of an individual’s
major life activities (qualifying them as “disabilities” under
the ADA), but do not necessarily impact the ability of a given
individual to perform the essential functions of her position,
with or without an accommodation.
4
at risk of “impulse control difficulties.” On the sole basis of
these reports, which concluded that the plaintiffs were not “free
Nored and Shafer deny that they have any “mental disorders” or
not a valid defense under the ADA, Weakley County ECD has
5
claims against each of these entities are broader than, and
3
Section 7-86-201 states, in pertinent part: “(b) Except as
provided in subsection (d)...all [public safety dispatchers]
shall: ... (9) be free of all apparent mental disorders as
described in the most recent edition of the [DSM-IV].”
4
Section 38-8-106 states, in pertinent part: “... [A]ny
person employed as a [police officer] ... shall: ... (9) Be free
of all apparent mental disorders as described in the [DSM-III].”
5
Section 8-8-102 states, in pertinent part: “(a) To qualify
for election or appointment to the office of sheriff, a person
shall: ... (7)... be free of all apparent mental disorders as
described in the [DSM-III], or its successor.”
6
Section 37-5-117 states, in pertinent part: “[A]ny person
employed as a youth service officer by the department of
children’s services shall: ... (6) Be free from all apparent
mental disorders.”
6
(applying to correction officers)7. In addition, all five of
ADA.8
7
Section 41-1-116 states, in pertinent part: “Any person
employed as a correctional officer by the department of
correction shall: ... (7) Be free from all apparent mental
disorders.”
8
Section 7-86-201(d) states: “Notwithstanding any other
provision of law to the contrary, the law in effect prior to May
1, 1994, relative to public safety dispatchers shall apply to any
person who is more than fifty (50) years of age, has more than
five (5) years of continuous employment as a public safety
dispatcher on May 20, 1998, and has a congenital defect or a
disability which would qualify under the Americans with
Disabilities Act of 1990, 42 U.S.C. § 12101, et seq.” At a
minimum, the statute on its face still violates the ADA’s
prohibition against medical inquiries and examinations -- which
apply to all individuals, regardless of disability -- because
such tests (and the inquiries, or assumptions, that would be
necessary under this scheme to classify individuals as exempt)
are neither job-related nor consistent with business necessity.
42 U.S.C. § 12112(d).
particular impairment or her present ability to safely perform
allege that they do not in fact have any mental impairment, the
against Weakley County and the State of Tennessee which arise out
judicial forum.
ARGUMENT
24(a)(2).9 The U.S. Court of Appeals for the Sixth Circuit has
9
Fed. R. Civ. P. 24(a) provides, in pertinent part: “Upon
timely application anyone shall be permitted to intervene in an
action: ...(2) when the applicant claims an interest relating to
the property or transaction which is the subject of the action
and the applicant is so situated that the disposition of the
action may as a practical matter impair or impede any applicant’s
ability to protect that interest, unless the applicant’s interest
is adequately represented by existing parties.”
inadequate representation of that interest by parties
already before the court.
Michigan State AFL-CIO v. Miller, 103 F.3d 1240, 1245 (6th Cir.
1997); Cuyahoga Valley Ry. Co. v. Tracy, 6 F.3d 389, 395-96 (6th
Cir. 1993); Grubbs v. Norris, 870 F.2d 343, 345 (6th Cir. 1989).
intervention as of right.
(6th Cir. 1990), citing Bradley v. Milliken, 828 F.2d 1186, 1191
(6th Cir. 1987). In particular, the Sixth Circuit has held that
(1) the point to which the suit has progressed; (2) the
purpose for which intervention is sought; (3) the
length of time preceding the application during which
the proposed intervenors knew or should have known of
their interest in the case; (4) the prejudice to the
original parties due to the proposed intervenors'
failure to promptly intervene after they knew or
reasonably should have known of their interest in the
case; and (5) the existence of unusual circumstances
militating against or in favor of intervention.
Jansen, 904 F.2d at 340, citing Grubbs, 870 F.2d at 345. As a
Bend Community Sch. Corp., 710 F.2d 394, 396 (7th Cir. 1983),
Corp., 466 U.S. 926 (1984). Here, the litigation is not even
close to termination, and far from derailing the case, the
has not yet elapsed. So far, discovery has not been extensive,
intervention has not and will not cause any prejudice to any of
the existing parties. Special circumstances in this case also
judicial forum.
United States. Thus, the defendant will benefit even more than
v. City of Akron, 925 F.2d 941, 948 (6th Cir. 1991) (where the
U.S.C. §§ 12117 and 12132, the Department has its own claims
interest in ensuring that the Court has the relevant facts and
this case. The Sixth Circuit is the only court of appeals that
has addressed the issue directly, and its opinion in that case
v. State of Ohio, 104 F.3d 803, 807 (6th Cir. 1996) (holding that
of Oregon, 839 F.2d 635, 638 (9th Cir. 1988); Neusse v. Camp, 385
F.2d 694, 702 (D.C. Cir. 1967); and Atlantis Dev. Corp. v. United
qualification standards.
188 F.3d 394, 400 (6th Cir. 1999). The burden for this showing is
CIO, 103 F.3d at 1247. “It may be enough to show that the
existing party who purports to seek the same outcome will not
under the ADA. Only the Department will introduce evidence and
interests along with the public interest are not and cannot be
adequately represented by any of the private parties in this
rule provides that “in exercising its discretion, the court shall
the case or prejudice the existing parties, and that its claim
10
Fed. R. Civ. P. 24(b) provides: “(b) Permissive
intervention. Upon timely application anyone may be permitted to
intervene in an action: (1) when a statute of the United States
confers a conditional right to intervene, or (2) when the
applicant’s claim or defense and the main action have a question
of law or fact in common.”
discussed above, the Department satisfies both of these
requirements.
VII of the Civil Rights Act and the Rehabilitation Act of 1973,
[to intervene].” SEC v. United States Realty & Imp. Co., 310
Thus, if the Court should rule that the Department has not
CONCLUSION
Respectfully submitted,
BILL LANN LEE
Acting Assistant Attorney General
Civil Rights Division
___________________________
M. CHRISTINE FOTOPULOS
JEANINE M. WORDEN
Attorneys
Disability Rights Section
Civil Rights Division
U.S. Department of Justice
1425 New York Avenue, N.W.
Room 4073
Post Office Box 66738
Washington, D.C. 20035-6738
(202) 307-6556 (telephone)
(202) 307-1198 (facsimile)
Respectfully Submitted,
By:
JOHN L. WODATCH
RENEE M. WOHLENHAUS
JEANINE WORDEN
M. CHRISTINE FOTOPULOS
Attorneys
Disability Rights Section
Civil Rights Division
U.S. Department of Justice
P.O. Box 66738
Washington, D.C. 20035-6738
(202) 307-6556
(202) 305-7475