**IN THE UNITED STATES DISTRICT COURT**

**FOR THE WESTERN DISTRICT OF TENNESSEE,**

**EASTERN DIVISION**

**FAYE NORED and ) Civil Action No.: 1-98-1357**

**CYNDI SHAFER, )**

**)**

**Plaintiffs, ) MEMORANDUM OF POINTS AND**

**) AUTHORITIES IN SUPPORT OF**

**v. ) THE UNITED STATES' MOTION**

**) TO INTERVENE AS OF RIGHT OR,**

**WEAKLEY COUNTY EMERGENCY ) ALTERNATIVELY, TO INTERVENE**

**COMMUNICATIONS DISTRICT, ) BY PERMISSION**

**)**

**Defendant. )**

[                              ]{.underline}

The United States files this Memorandum of Points and Authorities in
support of its Motion to Intervene as of Right, or, Alternatively, to
Intervene by Permission. The United States seeks to intervene in this
action because it has claims against the Defendant that arise from the
same facts that are at issue in this case, and because permitting both
cases to proceed together in the same forum will conserve judicial
resources and ensure the consistent application of federal law.

**BACKGROUND**

**A. Statutory and Regulatory Background**

The Americans With Disabilities Act ("ADA"), 42 U.S.C. §§ 12101,
[et]{.underline} [seq]{.underline}., prohibits employers, state and
local governmental entities and places of public accommodation from
discriminating against individuals with disabilities. An individual has
a "disability" under the ADA if she has a physical or mental impairment
that substantially limits one or more of her major life activities, if
she has a record of such an impairment, or if she is regarded as having
such an impairment. 42 U.S.C. § 12102. Title I of the ADA, 42 U.S.C. §§
12111 - 12117, prohibits all employers of more than 15 employees
(including state and local governmental entities) from discriminating
against qualified individuals with disabilities[^1] on the basis of
disability with regard to job application procedures, hiring, discharge,
and other terms, conditions, and privileges of employment. Title II of
the ADA, 42 U.S.C. §§ 12131 - 12130, prohibits state and local
government entities from discriminating against individuals with
disabilities in the provision of public services, programs and
employment, subject to the standards applicable under Title I.

A state or local government employer is subject to both Title I and
Title II of the ADA and can violate the prohibition against employment
discrimination in various ways, including, but not limited to:

\(a\) using qualification standards, employment tests, or other
selection criteria that illegally screen out, or tend to screen out,
qualified individuals with disabilities (42 U.S.C. § 12112(b)(6));

\(b\) limiting or classifying job applicants or employees in a way that
adversely affects the opportunities or status of such applicants or
employees on the basis of their disabilities (42 U.S.C. § 12112(b)(1));

\(c\) utilizing standards, criteria, or methods of administration that
have the effect of discrimination on the basis of disability (42 U.S.C.
§ 12112(b)(3));

\(d\) subjecting applicants and employees to tests and inquiries which
are not job-related or consistent with business necessity (42 U.S.C. §
12112(d)); and

\(e\) failing and/or refusing to make reasonable accommodations to the
known physical or mental limitations of otherwise qualified individuals
with disabilities, where such accommodations would not pose an undue
hardship (42 U.S.C. § 12112(b)(5)).

The U.S. Department of Justice ("the United States" or "the Department")
is the federal governmental agency charged by statute with administering
and enforcing the ADA. The United States Attorney General is authorized
to file suit to enforce the ADA whenever a pattern or practice of
discrimination or other issue of general public importance has been
identified, and may file suit under Titles I and II pursuant to 42
U.S.C. §§ 12117(a) and 12132, which incorporate the remedies provided in
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §
2000e-5, and the Rehabilitation Act of 1973, 29 U.S.C. § 794a,
respectively.

A. **Factual Background**

In 1997, plaintiffs Faye Nored and Cyndi Shafer were employed as public
safety dispatchers for Weakley County Emergency Communications District
(hereinafter "Weakley County ECD"), in Weakley County, Tennessee. They
had performed the essential functions of their positions satisfactorily
for several years and had given no one any cause for concern about their
mental capabilities. On July 1, 1997, a state statute (Tenn. Code Ann. §
7-86-201) which had been enacted three years earlier became effective,
requiring public safety dispatchers to "be free of all apparent mental
disorders as described in the most recent edition of the Diagnostic and
Statistical Manual of Mental Disorders of the American Psychiatric
Association,"[^2] and mandating that "\[a\]pplicants be certified as
meeting \[this standard\] by a qualified professional in the psychiatric
or psychological fields." Three weeks later, on July 24, 1997, Weakley
County ECD implemented the statute by requiring all public safety
dispatchers to submit to psychological evaluations in order to determine
whether they had any "mental disorders."

As a result of these evaluations, the psychological examiner hired by
their employer submitted written reports about the plaintiffs stating,
respectively, that Nored was subject to "emotional instability" and that
Shafer was "overly reactive" and at risk of "impulse control
difficulties." On the sole basis of these reports, which concluded that
the plaintiffs were not "free of all apparent mental disorders" as
required by the statute, Weakley County ECD immediately terminated their
employment. Nored and Shafer deny that they have any "mental disorders"
or any other physical or mental impairments which substantially limit a
major life activity. However, both women are qualified individuals with
disabilities under the ADA because they were misclassified as having
such an impairment and because their employer regarded them as so
impaired. 42 U.S.C. § 12102. By terminating their employment on this
basis, Weakley County ECD discriminated against them on the basis of
disability in direct violation of the ADA.

After they were discharged, plaintiffs filed this action against Weakley
County ECD, challenging the validity of the state statute under the ADA
and seeking reinstatement in their positions as well as compensatory and
punitive damages. While not a valid defense under the ADA, Weakley
County ECD has defended against the charge by arguing that it was simply
complying with the mandatory terms of the state statute. On the basis of
these facts alone, the Department has a sufficient interest in enforcing
the ADA and in remedying the harms to these individual plaintiffs to
file its own complaint, pursuant to its statutory authority, against
Weakley County ECD, Weakley County and the State of Tennessee. In
addition, as described below, its claims against each of these entities
are broader than, and inclusive of, the specific claims of the
plaintiffs in this case.

B. **Challenged Statutory Provisions**

The state statute which Weakley County ECD relied upon to subject the
plaintiffs to psychological examination and then to terminate their
employment is only one of five different state statutes, all relating to
mandatory qualifications for law enforcement positions, which the state
of Tennessee has enacted and implemented containing the identical
exclusionary standard. Each of these statutes broadly excludes from
certain kinds of public employment any person with an "apparent mental
disorder" which is listed in the DSM-IV. [See]{.underline} Tenn. Code
Ann. § 7-86-201 (applying to public safety dispatchers)[^3]; Tenn. Code
Ann. § 38-8-106 (applying to police officers)[^4]; Tenn. Code Ann. §
8-8-102 (applying to sheriffs)[^5]; Tenn. Code Ann. § 37-5-117 (applying
to youth service officers)[^6]; and Tenn. Code Ann. § 41-1-116 (applying
to correction officers)[^7]. In addition, all five of these statutes
require applicants and employees to be "certified" as meeting this
standard "by a qualified professional in the psychiatric or
psychological fields." Only one of them provides for any exception to
its requirements, but this exception fails to bring the statute into
compliance with the requirements of the ADA.[^8]

All of these statutes violate the ADA on their face by establishing an
employment qualification standard which broadly discriminates against
all individuals with "apparent mental disorders" \-- including mental
impairments which rise to the level of a disability \-- without
providing for an individualized assessment of the nature or severity of
an individual's particular impairment or her present ability to safely
perform the essential functions of the job, without considering the
effect of any treatments that control or limit the effects of her
impairment, and without even considering, much less providing for,
reasonable accommodation. In addition, as occurred in this case, the
statutes illegally require applicants and employees to submit to
psychological tests that are neither job-related nor dictated by
business necessity and that are thus prohibited by the ADA. 42 U.S.C. §
12112(d)(4).

Unlike the plaintiffs in this case, the Department has standing to
challenge all five of these state statutes directly and in one forum,
simultaneously acting on behalf of a class of potential claimants and
eliminating the duplication of effort and waste of judicial resources
that would necessarily attend a case-by-case challenge to each statute.
In addition, while these plaintiffs are limited to the facts of their
case, in which they allege that they do not in fact have any mental
impairment, the Department's challenge to these five statutes
encompasses not only protected individuals like the plaintiffs who are
regarded as disabled, or who have been misclassified as having a
disability, but those who actually are substantially limited in a major
life activity or who have a record of being so limited.

The Department has contacted the State of Tennessee, which has
preliminarily indicated that it does not intend to defend these five
statutes and is willing to engage in settlement negotiations to attempt
to resolve this matter. Weakley County and Weakley County ECD continue
to assert that they were simply following state law and have thus far
indicated no interest in resolving the Department's claims without
litigation. Therefore, to protect the Department's interests in its
claims against the defendant in this case as well as its interests in
its claims against Weakley County and the State of Tennessee which arise
out of the same facts, the United States hereby moves to intervene in
this case. Judicial and party resources will be conserved and the risk
of inconsistent judicial determinations will be minimized by
consolidating the plaintiffs' and the Department's claims in one action,
and examining all five of the state statutes containing the identical
discriminatory standard in one judicial forum.

**ARGUMENT**

A. The Department Is Entitled to Intervene as of Right

Intervention as of right is governed by Fed. R. Civ. P. 24(a)(2).[^9]
The U.S. Court of Appeals for the Sixth Circuit has set out a four-part
test for determining whether a party shall be permitted to intervene as
of right pursuant to this rule:

> \(1\) timeliness of the application to intervene, (2) the applicant's
> substantial legal interest in the case, (3) impairment of the
> applicant's ability to protect that interest in the absence of
> intervention, \[and\](4) inadequate representation of that interest by
> parties already before the court.

[Michigan State AFL-CIO v. Miller]{.underline}, 103 F.3d 1240, 1245
(6^th^ Cir. 1997); [Cuyahoga Valley Ry. Co. v. Tracy]{.underline}, 6
F.3d 389, 395-96 (6^th^ Cir. 1993); [Grubbs v. Norris]{.underline}, 870
F.2d 343, 345 (6^th^ Cir. 1989). In this case, the Department meets all
four requirements for intervention as of right.

> **1. The Department's Motion to Intervene Is Timely**

Although intervention is most commonly granted when it is sought in the
early stages of a proceeding, the stage of the proceedings during which
intervention is sought is not dispositive. [NAACP v. New
York]{.underline}, 413 U.S. 345, 365-366 (1973). The determination as to
whether a motion to intervene is timely "should be evaluated in the
context of all relevant circumstances." [Jansen v. City of
Cincinnatti]{.underline}, 904 F.2d 336, 340 (6^th^ Cir. 1990),
[citing]{.underline} [Bradley v. Milliken]{.underline}, 828 F.2d 1186,
1191 (6^th^ Cir. 1987). In particular, the Sixth Circuit has held that
the following factors should be considered:

> \(1\) 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]{.underline}, 904 F.2d at 340, [citing]{.underline}
[Grubbs]{.underline}, 870 F.2d at 345. As a general matter, "\[t\]he
purpose of the timeliness inquiry is to prevent 'a tardy intervenor from
derailing a lawsuit within sight of the terminal.'" [United States v.
BASF-Inmont Corporation]{.underline}, 52 F.3d 326, 1995 WL 234648 at
\*\*2 (6^th^ Cir. 1995) (finding application for intervention untimely
because it came at the final stage of litigation, as the parties awaited
the court's approval of a consent decree), [quoting]{.underline} [United
States v. South Bend Community Sch. Corp.]{.underline}, 710 F.2d 394,
396 (7^th^ Cir. 1983), [cert.]{.underline} [denied]{.underline}
[sub]{.underline} [nom.]{.underline} [Brookins v. South Bend Community
Sch. Corp.]{.underline}, 466 U.S. 926 (1984). Here, the litigation is
not even close to termination, and far from derailing the case, the
Department's intervention would bring focus to the legal issues involved
and enable an efficient and comprehensive resolution.

The plaintiffs filed their complaint against Weakley County ECD on
December 28, 1998 and it was served on the defendant on February 13,
1999. This litigation is still in its initial stages and the period of
time originally granted for discovery has not yet elapsed. So far,
discovery has not been extensive, and the defendant has yet to answer
the discovery propounded by the plaintiffs. Although the United States
is requesting a three-month continuance to permit it to conduct
discovery as well, participation by the United States is not likely to
unduly delay the resolution of the case. In addition, the brief
extension of the discovery deadline would give the parties a fair
opportunity for discovery from the federal agency responsible for
interpreting and enforcing the law.

Although the Department first heard of plaintiffs' action in early 1999,
it was required by Department policy to conduct an independent
investigation in order to determine if it had an interest in this case
and to obtain approval within the Department to move to intervene. The
Department's investigation revealed that its interests are implicated
here and also uncovered other provisions of state law which include the
same qualification standard as the statute plaintiffs challenge. Any
delay which may have occasioned the Department's application for
intervention has not and will not cause any prejudice to any of the
existing parties. Special circumstances in this case also militate in
favor of allowing the Department to intervene. In the present action,
only Weakley County ECD is a defendant, and its chief defense to the
plaintiffs' claims is that by terminating the plaintiffs' employment, it
was simply complying with state law. While this is not a proper defense
to a claim of employment discrimination under the ADA, it points to the
fact that the State of Tennessee should be joined as a defendant in this
action, and that its several laws implementing this disability-based
standard are best considered together in one judicial forum.

Finally, far from being prejudiced, the parties in this case can only
benefit from the Department's participation, since the Department has
special expertise in interpreting and applying Titles I and II of the
ADA. In addition, if the Department is not permitted to intervene in
this action, any judgment issued here cannot bind the Department, nor
will it resolve the Department's claims against the defendant. Because
only the Attorney General has the authority to file lawsuits in the
public interest to enforce Titles I and II of the ADA against state and
local government entities, the Department's intervention and assertion
of its claims in this case would ensure that the defendant will not be
forced to defend duplicative suits by the United States. Thus, the
defendant will benefit even more than the other parties from the
Department's intervention.

> **2. The Department Has A Substantial Legal Interest\
> In this Action**

The Sixth Circuit has "opted for a rather expansive notion of the
interest sufficient to invoke intervention as of right," and has
recognized that an applicant for intervention "need not have the same
standing" that would be necessary to initiate the lawsuit. [Michigan St.
AFL-CIO]{.underline}, 103 F.3d at 1245, [citing]{.underline} [Purnell v.
City of Akron]{.underline}, 925 F.2d 941, 948 (6^th^ Cir. 1991) (where
the court held that intervention as of right did not require "a specific
or equitable interest") and [Bradley]{.underline}, 828 F.2d at 1192.

The Department has at least two substantial legal interests at stake in
this action. First, as described above, under 42 U.S.C. §§ 12117 and
12132, the Department has its own claims against the defendant, Weakley
County and the State of Tennessee for violations of Titles I and II of
the ADA. These claims are broader than, and inclusive of, the ADA-based
claims of the plaintiffs in this case. Secondly, the Department has an
interest in ensuring that the Court has the relevant facts and legal
arguments before it regarding the proper interpretation and application
of Titles I and II of the ADA. The ADA is a relatively new statute and
there are, as yet, few decisions reviewing disability-based job
qualification standards explicitly defined in the text of state statutes
such as those challenged in this case. The Sixth Circuit is the only
court of appeals that has addressed the issue directly, and its opinion
in that case speaks to the issue only in a very preliminary way.
[See]{.underline} [Andrews v. State of Ohio]{.underline}, 104 F.3d 803,
807 (6^th^ Cir. 1996) (holding that the determination of whether an
employment qualification standard is job-related and consistent with
business necessity requires analysis of the specific facts of each
case).

Equally important, this case will remind state and local officials that
the laws they enact or implement are subject to the requirements of the
ADA. As the federal agency charged with administering the ADA, and
promulgating the implementing regulations, and enforcing its
requirements against state and local government entities, the Department
has unique expertise in interpreting and applying these particular
requirements. As the Supreme Court recently made clear, the Department's
views on these issues are entitled to deference. [Bragdon v.
Abbott]{.underline}, 524 U.S. 624 (1998) ("As the agency directed by
Congress to issue implementing regulations, to render technical
assistance explaining the responsibilities of covered individuals and
institutions, and to enforce \[the ADA\] in Court, the Department's
views are entitled to deference."), [citing]{.underline} [Chevron
U.S.A., Inc. v. Natural Resources Defense Council, Inc.]{.underline},
467 U.S. 837, 844 (1984). The Department cannot effectively advocate its
views on the implementation and application of Titles I and II unless it
is permitted to intervene in this action.

> **3. Without Intervention, the Disposition of this Action\
> May Impair the Department's Ability to Protect its Interests**

In order to establish the third element of the four-part test for
intervention as of right, an applicant for intervention need only show
that impairment of its ability to protect its interests "is possible."
[Michigan St. AFL-CIO]{.underline}, 103 F.3d at 1247. Impairment is
construed in "practical terms rather than legal terms," and is allowed
if a party might be "practically disadvantaged by the disposition of the
action." [Horrigan v. Thompson]{.underline}, 1998 WL 246008 at \*3
(6^th^ Cir. 1998) (per curiam), [citing]{.underline} 7C Charles A.
Wright, Arthur R. Miller, Mary K. Kane, Federal Practice and Procedure §
1908 at p. 310 (2d ed. 1986). In addition, the Sixth Circuit has joined
other circuits in holding that "the possibility of adverse
[stare]{.underline} [decisis]{.underline} effects provides intervenors
with sufficient interest to join in an action." [Jansen]{.underline},
904 F.2d at 342, citing [United States v. State of Oregon]{.underline},
839 F.2d 635, 638 (9th Cir. 1988); [Neusse v. Camp]{.underline}, 385
F.2d 694, 702 (D.C. Cir. 1967); and [Atlantis Dev. Corp. v. United
States]{.underline}, 379 F.2d 818, 829 (5th Cir. 1967).

As a practical matter, without intervention, the Department's interests
in its claims against the defendant, Weakley County, and the State of
Tennessee, and in its interpretation and application of Titles I and II
of the ADA, may be impaired because of the [stare]{.underline}
[decisis]{.underline} effect of a ruling in this case. If final judgment
in this case were to absolve the defendant of liability for its
implementation of this disability-based employment qualification
standard, which the Department believes to be in clear violation of the
ADA, and the Department were required to pursue its claims in a separate
action, the Department would plainly face an uphill battle in attempting
to convince the Court to find an ADA violation where it had not found
one before, even if the Department presented facts, expert testimony,
and legal arguments that differed from those presented to the Court in
this case. Moreover, if the Court were to interpret and apply the
requirements of Titles I and II of the ADA in a way that conflicted with
the Department's views, the Department could also expect to have
difficulty overcoming the [stare]{.underline} [decisis]{.underline}
effect of such a ruling in any other action the Department litigated
involving disability-based employment qualification standards.

> **4. Plaintiffs Cannot Adequately Represent the Department's Interests
> In This Action**

To establish the final element, an applicant for intervention need
merely establish that the existing parties "may not adequately represent
their interests." [Grutter v. Bollinger]{.underline}, 188 F.3d 394, 400
(6^th^ Cir. 1999). The burden for this showing is "minimal."
[Horrigan]{.underline}, 1998 WL 246008 at \*3, [quoting]{.underline}
[Trbovich v. United Mine Workers of America]{.underline}, 404 U.S. 528,
538 n. 10 (1972). It is not necessary for an applicant to show that the
representation "will in fact be inadequate." [Michigan St.
AFL-CIO]{.underline}, 103 F.3d at 1247. "It may be enough to show that
the existing party who purports to seek the same outcome will not make
all of the prospective intervenor's arguments." [Id.]{.underline}
Perhaps most importantly in this case, "\[a\]n interest that is not
represented at all is surely not 'adequately represented,' and
intervention in that case must be allowed." [Grubbs]{.underline}, 870
F.2d at 347, [citing]{.underline} 7C Charles A. Wright, Arthur R.
Miller, Mary K. Kane, Federal Practice and Procedure § 1909 at p. 319
(2d ed. 1986).

It goes without saying that the United States' interests cannot be
adequately protected by private parties. The claims against Weakley
County ECD have been instituted by two private plaintiffs with limited
resources. Unlike the Department, the private plaintiffs do not
represent the public interest, but must instead represent their own
individual interests. Even if plaintiffs had the expertise and knowledge
required to advocate the Department's interpretation of Titles I and II
of the ADA, which they do not, they would not be free to do so. More
importantly, as discussed above, the Department has several claims
against the defendant, Weakley County and the State of Tennessee which
go beyond the plaintiffs' claims \-- namely, to challenge all five of
the state statutes containing the discriminatory qualification standard,
and to protect the interests of all current and prospective public
employees with mental impairments which satisfy the definition of
disability under the ADA. Only the Department will introduce evidence
and make the legal arguments necessary to protect the broader public
interests in this case. Absent intervention, the Department's interests
and the public interest would be unprotected, and future efforts to
enforce Titles I and II with respect to employment qualification
standards would be impaired.

In sum, the Department has shown that its motion to intervene is timely
and will not prejudice the existing parties; that it has a substantial
legal interest in this action; that without intervention, its interests
may be impaired; and that its interests along with the public interest
are not and cannot be adequately represented by any of the private
parties in this action. Accordingly, the Department should be granted
leave to intervene as of right pursuant to Fed. R. Civ. P. 24(a)(2).

**B. Alternatively, the Department Should Be Granted Permissive
Intervention**

Permissive intervention is governed by Fed. R. Civ. P. 24(b).[^10] It is
committed to the discretion of the court, and the rule provides that "in
exercising its discretion, the court shall consider whether the
intervention will unduly delay or prejudice the adjudication of the
rights of the original parties." [Id.]{.underline} Thus, by its terms,
Rule 24(b)(2) requires only that the applicant make a timely application
which does not unduly delay the case or prejudice the existing parties,
and that its claim and the main action have a question of law or fact in
common. As discussed above, the Department satisfies both of these
requirements.

However, Rule 24(b)(1) also provides a separate ground for permissive
intervention when a statute of the United States confers a conditional
right to intervene. In this case, Titles I and II of the ADA incorporate
by reference the remedies of Title VII of the Civil Rights Act and the
Rehabilitation Act of 1973, which confer such a conditional right of
intervention. [See]{.underline} 42 U.S.C. §§ 12117(a) and 12132,
incorporating 42 U.S.C. § 2000e-5 and 29 U.S.C. § 794a, respectively.
Rule 24(b) makes special provision for permissive intervention by a
federal agency when the statute that the agency enforces is at issue in
a case. It provides, in pertinent part:

> When a party to an action relies for ground of claim or defense upon
> any statute or executive order administered by a
> federal\...governmental officer or agency or upon any regulation,
> order, requirement, or agreement issued or made pursuant to the
> statute or executive order, the officer or agency upon timely
> application may be permitted to intervene in the action.

As the governmental entity which enforces the ADA, the Department has a
"sufficient interest in the maintenance of its statutory authority and
the performance of its public duties to entitle it \[to intervene\]."
[SEC v. United States Realty & Imp. Co.]{.underline}, 310 U.S. 434, 460
(1940).

Thus, if the Court should rule that the Department has not made the
requisite showing for intervention as of right, the Court should
nonetheless grant the Department permissive intervention in this suit.

**CONCLUSION**

For the foregoing reasons, the Department respectfully requests that the
Court grant the Department leave to intervene in this case, either by
right or by permission.

Respectfully submitted,

BILL LANN LEE

Acting Assistant Attorney General

Civil Rights Division

JOHN L. WODATCH, Chief

RENEE M. WOHLENHAUS, Deputy Chief

Disability Rights Section

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)

> Dated: November [     ]{.underline}, 1999

**CERTIFICATE OF SERVICE**

Pursuant to Local Rule 7.2, undersigned counsel hereby affirms that
copies of the accompanying Motion to Intervene, Memorandum of Points and
Authorities in Support of Motion to Intervene, and Proposed Order have
been served on all parties to this action on this, the \_\_\_\_\_ of
November, 1999.

Respectfully Submitted,

BILL LANN LEE

Acting Assistant Attorney General

Civil Rights Division

By: [                             ]{.underline}

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

Copies served on: Courtesy copies mailed to:

Justin S. Gilbert, Esq. Kevin Steiling

The Gilbert Firm Deputy Attorney General

300 E. Main Street, Suite 200 Office of Attorney General

P.O. Box 2384 State of Tennessee

Jackson, TN 38302-2384 425 Fifth Avenue North

Cordell Hull Bldg., 2^nd^ Floor

Nashville, TN 37243-0490

James I. Pentecost Andrew V. Sellers

Attorney at Law Attorney at Law

Waldrop & Hall Waldrop & Hall

106 S. Liberty St. 106 S. Liberty St.

P.O. Box 726 P.O. Box 726

Jackson, TN 38302-0726 Jackson, TN 38302-0726

[^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]: 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.

[^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."

[^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]{.underline} [seq.]{.underline}" At a minimum, the
    statute on its face still violates the ADA's prohibition against
    medical inquiries and examinations \-- which apply to
    [all]{.underline} 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).

[^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."

[^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."