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Legal Report May 2008


ADA. A federal appeals court has ruled that a hospital is not required to accommodate the restrictions on a nurse’s working environment brought about by her drug dependency.

In July 2004, Jeanne Dovenmuehler applied to work as a registered nurse at St. Cloud Hospital in Minnesota. She listed her previous experience on her application but failed to mention that she had been fired from her prior job for stealing and selling narcotics. During the same month, Dovenmuehler sought help from Minnesota’s Health Professional Services Program (HPSP), a state agency specializing in helping medical professionals, for her chemical dependence.

St. Cloud hired Dovenmuehler in August to work in its children’s center. Dovenmuehler’s duties would include administering narcotics. St. Cloud’s offer was contingent upon a medical placement evaluation, designed to ensure that Dovenmuehler was placed in a job appropriate to her skills. During the evaluation, Dovenmuehler disclosed that she had carpel tunnel syndrome, leg soreness, an existing back condition, and hepatitis C. She did not notify St. Cloud of her chemical dependency.

Six weeks after being hired, Dovenmuehler told St. Cloud that she had sought help from HPSP for her drug problem. She also told St. Cloud that HPSP had devised a plan that she had to follow to continue nursing. St. Cloud called Dovenmuehler’s previous employer and confirmed that she had been fired for stealing narcotics.

Dovenmuehler met with St. Cloud’s human resources department. They discussed the HPSP plan, which required that Dovenmuehler not have access to narcotics and be accompanied at all times by a nurse. St. Cloud examined every available position at the hospital, the essential functions of these jobs, the staffing of each unit, and the budget for each unit.

In October 2004, St. Cloud fired Dovenmuehler because it could not find a position that she could perform because of her HPSP restrictions. Dovenmuehler subsequently found a job at another hospital that could accommodate her needs.

Dovenmuehler sued St. Cloud for discrimination under the Americans with Disabilities Act (ADA), claiming that her drug dependency was a disability under the law. A district court found in favor of St. Cloud, ruling that Dovenmuehler had not proven that she was disabled under the ADA because her drug use did not substantially limit a major life activity. She appealed the decision.

The U.S. Court of Appeals for the Eighth Circuit upheld the lower court’s decision. The appeals court agreed that Dovenmuehler did not have a disability under the ADA. However, the court also went a step further in addressing St. Cloud’s inability to accommodate Dovenmuehler’s drug use. In the written opinion of the case, the court noted that “Dovenmuehler’s case is unique because her claimed disability has a peculiar feature. Certain behavior, while consistent with her claimed disability, also happens to be illegal. Such conduct is not protected by the ADA.” (Dovenmuehler v. St. Cloud Hospital, U.S. Court of Appeals for the Eighth Circuit, No. 07-1096, 2007)

RETALIATION. A Florida appellate court has ruled that an organization’s policy of halting internal investigations once a federal discrimination claim has been filed can constitute retaliation of the employee who made the complaint.

Richard Donovan was employed as a bus driver in Broward County, Florida, when he was passed over for promotion. The promotion was given to an African-American employee rather than to Donovan, who is white.

Donovan filed a discrimination complaint with the Equal Employment Opportunity Commission (EEOC). Simultaneously, Donovan filed an internal complaint with the county. The county began an investigation.

However, when the county learned that Donovan had filed an EEOC complaint, it terminated its internal investigation. This decision was in accordance with county policy and was based on the concept that a county investigation would be in conflict with any action taken by the EEOC.

Donovan filed a retaliation lawsuit arguing that the county cancelled its internal investigation to punish him for the EEOC claim. The trial court found in favor of the county, ruling that the lack of an internal investigation did not affect Donovan’s job, working conditions, or compensation. Donovan appealed the decision.

The Florida District Court of Appeal for the Fourth District overturned the lower court’s decision, ruling that Donovan could pursue his retaliation claim against the county. The court found that the policy of discontinuing internal investigations places employees in the position of choosing which rights to pursue. In the written opinion of the decision, the court noted that employees must “choose between filing a charge and losing access to internal dispute resolution mechanisms or continuing their pursuit of an internal remedy and risk losing the right to bring a formal charge if those efforts fail.” (Donovan v. Broward County Board of Commissioners, Florida District Court of Appeal, No. 4D07-52, 2008)


NATIONAL SECURITY. The Senate Judiciary Committee recently held a hearing on the Bush administration’s use of the state secrets privilege. Under the privilege, the government can keep information from becoming public if it believes that the data will harm national security. Witnesses at the hearing discussed the concept of privilege as well as a bill (S. 2533) introduced by Sen. Ted Kennedy (DMA) that would require that the executive branch obtain court approval from a federal court each time it invokes the state secrets privilege in a civil action to prevent information from being released. Under the measure, the executive branch would also be required to provide a report to Congress on each item within 30 days of invoking the privilege.

Carl J. Nichols, deputy assistant attorney general at the Department of Justice, argued that the privilege is provided as a tool of the executive branch in the Constitution and should not be subject to judicial review.

Other witnesses disagreed. For example, Louis Fisher, specialist in constitutional law for the Library of Congress, argued that all assertion of privilege should be subject to independent judicial review. In his testimony, Fisher said that courts should “be directed to treat executive claims about state secrets initially as an assertion, subject to independent judicial analysis. This definition protects the integrity of the courtroom and gives private parties the hope of fair treatment.”

Another witness, Michael A. Vatis, partner at Steptoe & Johnson in Washington, D.C., suggested that the bill should be extended to cover claims of executive privilege in addition to state secrets privilege. The bill, argued Vatis, should be written to include what jurisdiction courts have over executive privilege. “If the bill remains silent on this crucial issue, courts will likely struggle for years over the appropriate level of deference to accord executive determinations,” said Vatis.

S. 2533 has two cosponsors and has been referred to the Senate Judiciary Committee.

COURTHOUSE SECURITY. A bill (H.R. 660) that would increase courthouse security has been signed into law (P.L. 110-218).

The law requires that the U.S. Marshals Service offer ongoing security advice to the judiciary. It authorizes additional funding to hire marshals to protect courthouses. In addition, the law makes it illegal to publicly disclose restricted personal information about a federal officer, witness, or juror with the intent to harm such individual. The law also makes it illegal to bring into the courtroom any item that could be used as a dangerous weapon.

The law increases criminal penalties for tampering with or retaliating against a witness, victim, or informant. It authorizes grant programs to create and expand witness and victim protection programs.

BORDER SECURITY. A bill (H.R. 3916) introduced by Rep. Ralph Hall (R-TX) that would encourage the development of new border security technology has been approved by the House Homeland Security Committee’s Subcommittee on Technology and Innovation.

Under the bill, the Department of Homeland Security (DHS) would be required to spell out the requirements, expected use, and operational concept of any new border or maritime security technology.

The measure would also require that the National Research Council conduct an assessment of the basic needs in border and maritime security. The bill would stress the development of unmanned aerial vehicles, technology to detect tunnels, and an anticounterfeiting program.

BACKGROUND CHECKS. An amendment, introduced by Sen. Carl Levin (DMI) that would improve oversight of the FBI National Name Check Program has been included in the appropriation bill for the Department of Homeland Security, which has been signed into law (P.L. 110-161).

The program, under which the government conducts background checks on its employees and on anyone applying for immigration benefits, has a backlog of 31,000 cases, according to Levin’s office. The new law requires that the FBI improve the program and issue annual reports to Congress on its progress.

DISCRIMINATION. A bill (H.R. 3685) introduced by Rep. Barney Frank (D-MA) that would make it illegal for employers to discriminate against employees on the basis of sexual orientation has been approved by the House of Representatives. The Senate has agreed to consider the measure.

The bill would apply to employers, employment agencies, and labor organizations and would prohibit discrimination based on the actual or perceived sexual orientation of the individual or of his or her associates.

WHISTLEBLOWERS. A bill (S. 274) introduced by Sen. Daniel Akaka (D-HI) that would expand protections for government whistleblowers has been approved by the Senate. The House of Representatives has not indicated whether it will consider the bill.

The bill would grant protection to federal employees who disclose evidence of violations of law, waste, abuse, or gross mismanagement. The bill closes various loopholes that have arisen in government whistleblowing through case law. The bill would require that whistleblower information be considered without restrictions based on motive, context, or prior disclosure.

Specifically, the bill would allow federal employees to disclose criminal behavior, fraud, and abuse that pertains to critical infrastructure information.


New Mexico

CYBERSTALKING. A bill (H.B. 9) currently pending in the New Mexico Legislature would establish a task force to study the use of technology by stalkers. The findings would be used to develop new laws to combat the crime.


IDENTITY THEFT. A bill (S.B. 1357) introduced in the Idaho Senate would amend existing identity theft laws to add a new crime. Under the bill, enhanced penalties would be assessed if a person used false pretenses or misrepresentations to facilitate identity theft.

This column should not be construed as legal or legislative advice.