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Supreme Court to rule on eyesight standards
Twin sisters who work as commuter airline pilots and a blind-in-one-eye truck driver have convinced the U.S. Supreme Court to consider their claims that prospective employers violated the Americans with Disabilities Act (ADA) when they were refused jobs. The cases, along with that of a mechanic with high blood pressure, will afford the justices the opportunity to clarify the scope of ADA coverage. Public safety agencies have been particularly affected by varying interpretations of the ADA regarding the validity of uncorrected eyesight standards as well as criteria barring medically controllable conditions such as diabetes and high blood pressure. 

The ADA prohibits public and private sector employers from discrimination against an otherwise qualified individual with a disability. A disability is defined as a condition that affects a major life activity, such as seeing. A point of contention since the law's enactment in 1990 has been the level of vision deficiency required before an individual is considered disabled and thereby protected under the ADA. 

Prior cases have created a circumstance wherein a public safety agency might lawfully enforce a 20/50 uncorrected vision requirement against an applicant with 20/80 vision but would be required to justify the standard if the applicant were 20/200. The former would not be considered sufficiently handicapped to fit within the ADA

 definition. Complicating the issue is the question of whether protection under the ADA is to be determined with or without the use of remedial aids such as eyeglasses or medication. The federal courts have split on this question.

Karen Sutton and sister Kimberly Hinton unsuccessfully applied for pilot jobs with United Airlines. Each sister has 20/200 vision in her right eye and 20/400 in her left. Glasses or contact lens fully correct their vision. United requires pilots to possess 20/100 uncorrected vision. Lower federal courts ruled against the women in their efforts to assert ADA protection.

Truck driver Hallie Kirkingburg was unable to return to his job with a grocery chain following a non-driving injury because a doctor refused to certify that he met the company's vision standard. Kirkingburg is virtually blind in one eye but has twice been certified as in compliance with Department of Transportation vision standards.

Joining the other appellants is Vaughn Murphy, a former mechanic for United Parcel Service, who was fired because of high blood pressure. Murphy wants the court to evaluate his condition under the ADA without taking into account the fact he successfully controls his blood pressure with medication. 

A decision is expected by the end of the court's term in July. Revision of selection standards will likely be necessary regardless of the outcome.

Paid and volunteer fire fighters in conflict on both coasts
The Teamsters union has sued the Orange County, California, Fire Authority on behalf of part-time "paid-call" fire fighters seeking to halt plans to cut their pay and designate them "reserve" fire fighters. Meanwhile, career fire fighters in Annapolis, Maryland, have accused the community's volunteers of being a phantom force that provides little service and is unworthy of
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government funds.

In California, Local 952 of the Teamsters filed a suit claiming that the "paid-call" fire fighters are employees, not volunteers, and have a right to union representation. The union accused the fire authority of taking steps to deny the fire fighters "their right to organize." An injunction is sought to halt the fire authority's decision to cut pay and overhaul its volunteer system, which has supplemented the full-time, professional department. 

The fire authority board voted late last year to reduce part-time fire fighter's pay from $60 per 8-hour tour to $8 per hour for each response, up to a maximum of $40 a day. A spokesman for the Orange County Fire Authority said the changes were necessary to bring the agency into compliance with the Fair Labor Standards Act, which effectively prevents payments to civic volunteers. Some critics, however, claim the change is being prompted by the authority's career fire fighters who earn about $41 an hour in overtime when their work shift is extended. Much of what would be overtime was previously covered by the paid-call fire fighters at a

 lower pay rate.

Meanwhile, in Maryland's capital, the city fire agency is officially a "combined department," but Dan Grimes, president of Local 1926 of the International Association of Fire Fighters, AFL-CIO, this month charged that the designation existed only on paper as few of the volunteers in the area actually responded to calls. Union officials apparently object to the volunteer companies' solicitation of donations as well as receipt of government funding in exchange for what is perceived as little service in return. Each of the three area volunteer companies receives annually $6,000 from city coffers and $6,200 from the state. Volunteers counter that the union is simply interested in the city hiring more career fire fighters and, hence, more union members.

Competition for municipal funds apparently has caused the long-time feud between the career and the volunteer fire fighters to re-ignite. Until the early 1970s, volunteers handled the majority calls in Annapolis. Since that time volunteer responses have declined while the city fire department's responsibilities have increased. Union officials argue that the fire department is understaffed. 

Internet continues as source of fire fighter woes
Last year a Florida fire fighter was suspended for using a department computer to view pornographic images on the Internet. Now comes a report of an Idaho fire captain who claims he was terminated for reporting the same behavior by his subordinates. In a federal lawsuit filed last month, Brad Hufford contends that the North Ada County, Idaho, Fire and Rescue Company terminated him after he blew the whistle on fellow fire fighters who used work time to surf the Internet for pornography. He charges that several members of the local fire fighters' union subjected him to retaliatory action, which ultimately resulted in his dismissal. He also accuses Local 2311 of the International Association of Fire Fighters, AFL-CIO, of breaching its duty of fair representation in handling his dismissal grievance.  According to the suit, Hufford, named fire captain in 1992, forbade fire fighters from using the department's newly acquired Internet link to look at pornography. Subsequently, however, staff on all three shifts had reportedly used 250 hours of Internet time to create porn files. Hufford reported the matter but the fire chief ultimately suspended Hufford, accusing him of intimidating subordinate employees. The suspension later turned into a dismissal. 

Union officials defended their efforts for Hufford and accused Hufford of damaging district property after the union declined to take his grievance to an arbitrator. According to the IAFF lawyer, Alan Herzfield, the former fire captain refused to accept a settlement that would have earned him his job back. 
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Necktie leads to demise of fire marshal
In the Old West, the hanging of a criminal was known as a "necktie party." Last month, the Fire Department of New York (FDNY) instituted a modern version of the necktie party as it terminated a fire marshal for not wearing his tie. John O'Brien, a 16-year veteran fire marshal, was dismissed after he attended a fire marshals' meeting without his tie properly knotted. A hearing examiner had initially recommended O'Brien be reprimanded, but Fire Commissioner Thomas Van Essen ordered him dismissed from the department. Officials at the Uniformed Firefighters' Association (UFA) characterized the action as "incredible."

Department policy requires that "a neat clean personal appearance be maintained at all times, a suit or sport coat and slacks shall be worn with a collared shirt and tie." Testimony before the hearing

 officer indicated that O'Brien's loosened necktie was concealed by his coat. O'Brien claimed he had loosened the tie while moving some equipment prior to the meeting.

Both the UFA and the department initially recommended that O'Brien settle the issue with command discipline _ a verbal reprimand and letter in his file. O'Brien refused and the union pursued his grievance. The department then offered the loss of one day's pay or two vacation days. He refused. When the hearing officer's recommendation was reviewed by the Fire Commissioner, he terminated O'Brien.

Personnel in the department and the UFA suggested that the termination was the result of a long-standing conflict between Van Essen and O'Brien. The UFA is appealing the decision. 
Litigation

Cases of interest

Handicap discrimination
HELD: To prevail on his ADA claim, Denson must show that he has a disability within the meaning of the ADA, he is qualified to perform the essential functions of the job, with or without reasonable accommodations, and that the village subjected him to an adverse employment decision. A disability is defined as a physical or mental impairment that substantially limits one or more of the major life activities. Included in this list of major life activities is seeing and working. The village argues that Denson does not suffer from a disability because Denson's visual impairment does not substantially limit his ability to see or work when he wears corrective lenses. The question presented is whether Denson's disability status should be determined with or without his corrective lenses. Prior case law holds that the determination of whether an individual's visual impairment is
Denson applied for a position as a fire fighter. After going through the screening process, he learned he would be the next fire fighter to be hired, conditioned upon his passing a routine medical examination. After a subsequent examination, however, Denson was informed that his name was being stricken from the list of eligible fire fighter candidates. The village refused to hire Denson because his uncorrected vision did not meet their minimum standard for entry level fire fighters. The minimum standard was 20/60 uncorrected, correctable to 20/25 vision. Denson possessed 20/400 uncorrected vision in both eyes that was corrected to 20/20 with contact lenses. Denson filed suit claiming that the village unlawfully discriminated against him in violation of the Americans with Disabilities Act (ADA). Both parties move for summary judgment.
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impaired under the ADA must be made without regard to corrective eyewear. Thus, Denson's 20/400 vision constitutes a physical impairment. The next question is whether it substantially limits his major life activities of seeing and working. Denson testified that without the corrective lenses he cannot drive, read, discern street signs or building numbers, distinguish people's faces, watch television, or work on a computer. His 20/400 vision is a permanent condition that completely prevents him from effectively performing any of those functions. He sees significantly worse than the average person does. His visual impairment would preclude him from working in a broad category of jobs that individuals with average eyesight could perform. The evidence thus establishes that Denson is an individual with a physical impairment affecting a major life activity and qualifies as disabled under the ADA. This holding does not preclude the village, however, from raising other defenses appropriate under the ADA. Summary judgment granted for prospective fire fighter. [Denson v. Village of Bridgeview, Illinois, 19 F. Supp.2d 829 (N.D. Ill. 1998)] arrived. The paramedics refused to take Palmer to the hospital. Thereafter, the wife called a taxi and transported her husband to the medical center. Approximately one year later Palmer died. His wife filed suit against the ambulance company and the city asserting a violation of the Americans with Disabilities Act (ADA) by refusing to provide her late husband with ambulance service. City moves for summary judgment.

HELD: Palmer contends that the city improperly refused to provide emergency medical care to her husband and is vicariously liable for the actions of the ambulance company. The general rule is that a party who retains an independent contractor is not liable for the independent contractor's negligence. Thus, the city's liability hinges in part on whether the ambulance company is an employee or an independent contractor. Under New York law, this distinction is based on the fact that the former undertakes to achieve an agreed result and accept the directions of the employer and the latter agrees to achieve a certain result but is not subject to the employer's control over the means used. A crucial determinate in this case is the right to control. A review of the agreement under which the ambulance company operates reveals that it requires the ambulance company to maintain certain standards, file certain reports, and conduct its business in a certain manner. However, these contractual provisions are not control mechanisms as they are not directed to the actual manner in which the ambulance company is to perform its service but simply intended to ensure compliance with applicable government regulations. While the contract imposes certain obligations on the ambulance company, that is not sufficient to establish that the city actually manages the manner in which the ambulance services are delivered. Consequently, the ambulance company is an independent contractor and the city is not vicariously liable for its alleged omissions. Palmer also contends that the city is liable because the fire department did not transport her husband as requested. The city contends that under state and

Civil liability
Palmer, who suffered from Acquired Immune Deficiency Syndrome (AIDS), was found by his wife on the kitchen floor in his diarrhea feces, conscious but with a fever. The wife called her husband's hospice and was told they would arrange transportation to a hospital. When the transportation did not arrive after 30 minutes, she called 911. The wife told the operator that her husband had AIDS, had fallen, and that she needed help. Approximately 15 minutes later a fire department engine arrived at the address. The fire department participated in a first responder program that provided on the scene basic first aid. The fire department did not operate ambulances. Palmer asked the fire fighters to take her husband to the hospital. They responded that paramedics and an ambulance would be arriving shortly. In the interim, they administered oxygen to Palmer and then departed. A couple of minutes later paramedics from a private ambulance company
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federal law a fire department is prohibited from transporting individuals except by ambulance. Federal regulations define when a vehicle is considered an "ambulance." The vehicle must be specially designed for transporting the sick or injured, contain a stretcher, linens, first aid supplies, oxygen equipment and other life saving equipment, and a staff of personnel trained to provide first aid treatment. State law also provides for minimum headroom in the patient compartment and specifies the type of supplies that must be carried. The city's fire engines simply do not meet the definition of an "ambulance" under state and federal law. Consequently, the city cannot be faulted for failing to use fire engines as ambulances. Since trained medical professionals were at Palmer's home at virtually the same time as the fire fighters, they cannot be faulted for acting as fire fighters instead of ambulance drivers. Summary judgment for city dismissing case. [Palmer v. City of Yonkers, New York, 22 F. Supp.2d 283 (S.D.N.Y. 1998)] report, Greer issued his own "news release" to the local media. In the news release he criticized the fire chief's conclusions regarding the Holtz incident accusing her of being unduly influenced by a personal relationship with Holtz. Greer charged that both the chief and Holtz were homosexual women. He further criticized the fire chief's handling of discipline of certain male fire fighters. At the time of the news release, Greer was himself under investigation for an incident in which he had distributed anti-gay literature. The local newspaper carried a story quoting Greer and noting that he was insinuating a lesbian conspiracy within the fire department. Following the issuance of the news release, Amesqua initiated an investigation of Greer to determine whether he had violated department rules. As a result of the investigation she asked for Greer's resignation. He refused, and the fire chief implemented termination proceedings. Greer was subsequently discharged by the police and fire commission. He then filed suit claiming that his dismissal was in violation of his First Amendment free speech rights.

HELD: The Supreme Court has established a principle that a public employee is entitled to First Amendment protection for speech that is a matter of public concern, provided that the employee's interest in expressing a view on the subject outweighs the harm to a public employer that can result when an employee speaks his or her mind. Not every work-related utterance of a public employee is protected by the First Amendment, however. In such cases the court must employ the so called Pickering balancing test to determine whether the employee's free speech interest in voicing his views outweighs the government's interest in providing efficient service. In this case, the comments of Greer clearly touch upon a matter of public concern. The news release must be viewed as a legitimate attempt to disclose possible wrongdoing by the chief. However, a line fire fighter's public criticism of command may disrupt the working relationships among fire fighters. Courts have held that fire fighting forces cannot be

Dismissal grounds
In 1981, Greer was hired as a fire fighter for the Madison, Wisconsin, Fire Department. While serving as a fire fighter he also served as a minister of a conservative religious denomination. In 1996, Amesqua was hired as the new fire chief. Shortly after her appointment, she promoted Holtz, another female fire fighter, to chief of training. A few months later a local television station broadcast a tape of a fire training session as part of a story about fire fighter training. In the video Holtz is seen shoving, hitting, and yelling at a male fire cadet. The president of the local fire fighters union asked Amesqua to order an independent investigation because he believed Holtz' conduct on the video had violated several department rules. Such an investigation was ordered. Subsequently, the fire chief released her findings on the investigation and reported that while she was uncomfortable with Holtz' behavior, she found the actions not unreasonable. She did order leadership training for Holtz. Three weeks after Amesqua released the
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staffed by persons who have lingering resentment towards leadership, and the presence of someone perceived as a troublemaker may impair the effective functioning of the force. No one can question seriously the fire department's need to remove from its ranks a fire fighter who sends a news release to local media that challenges his chief's decisionmaking on an internal personnel matter and speculates about her sexual orientation and that of another command officer. Greer's discussion of the chief and Holtz' alleged sexual orientation was not done in a neutral tone, but instead as part of a radical agenda. If the fire department failed to take action against a fire fighter who makes such statements, its inaction could convey to gays and lesbians in the ranks of the department and in the community that the department is not concerned about their well-being. The fire department must be able to take a stand against statements that could be perceived as bigotry, not only to preserve good working relationships in the ranks, but also to assure the entire community that it does not discriminate in the delivery of services. The fact that the statements might prove to be true or that there was actually no disruption of the department operations as a result is not determinative. A public employer is not required to show actual disruption. Rather, where an employee's speech carries the potential for disruption, the public employer must have the ability to move quickly. Motion for preliminary injunction against city denied. [Greer v. Amesqua, 22 F. Supp.2d 916 (W.D. Wis.1998)] chief, Otero, had covered the shortfall with his personal credit card. The individual paid the contribution solicited by Chavez. Shortly thereafter the individual called Chavez to request his assistance in getting a discount on tires for his personal vehicle through one of Chavez' vendor contacts. Chavez arranged for the individual to pick up some tires, which he did without paying. The tire company called the fire department to inquire about the transaction, and Chavez, who apparently intended to pay for the tires out of his own pocket, sent a subordinate to retrieve the invoice. The subordinate witnessed Chavez write a department vehicle identification number on the invoice, thereby making it eligible for payment by the city. When an investigation revealed that the city vehicle identified on the invoice did not have new tires, Chavez was charged with violating various department rules. A pre-disciplinary hearing was conducted before Otero. Chavez was represented by a lawyer, but Otero did not allow the attorney to make a record through questioning of his client. Similarly, Otero did not allow the attorney to address him except for a few closing remarks. At the hearing Chavez and his wife requested mitigation of the discipline based on various personal problems ranging from recovery from a heart attack to suicide attempts on the part of their teenage daughters. Following the hearing Otero recommended that Chavez be terminated. A post-termination hearing was held at which Chavez was required to carry the burden of proof and present his evidence first. The hearing officer subsequently concluded that Chavez failed to carry the burden of proof that there were adequate mitigating circumstances to lessen his discipline. The hearing officer recommended to the city personnel board that Chavez be terminated. A companion report to the personnel board did not contain the specifics of the alleged mitigating evidence. The personnel board voted to uphold the termination. Chavez sued and the trial court remanded the matter holding that the hearing officer had improperly placed the burden of proof on Chavez by requiring him to present his evidence first. City appealed that decision, but in

Dismissal procedures
Chavez worked in the fleet maintenance division of the fire department. His primary responsibility was to ensure that the department had a ready fleet of vehicles. Among his duties was procurement of replacement parts, including tires, for department vehicles. In early 1992, Chavez solicited a $250 donation from an employee of a company that did business with the department. The donation was to help cover a shortfall in the budget for the fire department's Christmas party. A deputy