Opposition Brief — Yin v. California

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No. 96-929 ——

VLE RK

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1996

CECILIA YIN, Petitioners,

Vv.

STATE OF CALIFORNIA; DARYLL TSUJIHARA; LINDA

NICHOLSON; ROBERT CATALE; and TONY SUNSERI,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATE COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

DANIEL E. LUNGREN

Attorney General

ROBERT L. MUKAI

Chief Assistant Attorney General

CHARLTON G. HOLLAND, III

Senior Assistant Attorney General

STEPHANIE WALD

Supervising Deputy Attorney General

ANGELA BOTELHO

(State Bar . 121339)

Deputy Attorney General

Counsel of Record

50 Fremont St., Room 300

San Francisco, CA 94105

Telephone: (415) 356-6347

Facsimile: (415) 356-6257

Counsel for Respondents

- Nis nee

UESTIONS PRESENTED

1. Whether a prolonged history of excessive

absenteeism having a substantial and injurious impact on

job productivity and overall job performance falls within

the ambit of the business necessity exception to the

prohibition against medical examinations as set forth in

the Americans With Disabilities Act.

2. Whether the search and seizure provisions

of the Fourth Amendment to the United States

Constitution prohibit an employer-required medical

examination under the circumstances of this case.

TABLE OF CONTENTS

Page

INTRODUCTION ]

OPINION BELOW ]

STATEMENT OF JURISDICTION 2

STATUTES AND CONSTITUTIONAL PROVISIONS

INVOLVED 2

STATEMENT OF THE CASE 3

REASONS FOR DENYING THE WRIT 5

ARGUMENT 6

I. THIS CASE INVOLVES NOTHING

MORE THAN THE SIMPLE FACT-

SPECIFIC APPLICATION OF A

STANDARD BUSINESS NECESSITY

EXCEPTION TO REQUIREMENTS

AND PROHIBITIONS SET FORTH

IN THE ADA 6

ll. THE NINTH CIRCUIT OPINION

WHOLLY COMPORTS WITH A

LONG LINE OF PRIOR DECISIONS

IN THIS COURT INTERPRETING

FOURTH AMENDMENT

REQUIREMENTS IN THE CONTEXT

OF COMPELLED MEDICAL

EXAMINATIONS 10

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T. ? OF Co CONT’

The Ninth Circuit's Conclusion

That The IME Requirement Did

Not Violate Petitioner’s Fourth

Amendments Rights In No Way

Conflicts With This Court’s Prior

Decisions

1. The Court Of Appeals

Dispensation Of A

Warrant/Probable Cause

Requirement Falls Wholly

Within Guidelines Established

By This Court

2. The Ninth Circuit’s Well-

Reasoned Analysis Properly

Applied The Balancing Test

The Ninth Circuit’s Decision In

No Way Conflicts With The Tenth

Circuit Decision Cited By

Petitioner

CONCLUSION

Cases

Bell v. Wolfish

441 U.S. 520 (1979)

Griffin v. Wisconsin

483 U.S. 868 (1987)

New Jersey v. T.L.O.

469 U.S. 325 (1985)

New York v. Burger

482 U.S. 691 (1987)

O’Connor v. Ortega

480 U.S. 709 (1987)

Rutherford v. Albuquerque

77 F.3d 1258 (10th Cir. 1996)

Schmerber v. State of California

384 U.S. 757 (1966)

Skinner v. Railway Labor Executives’ Ass’n

489 U.S. 602 (1989)

Treasury Employees v. Von Raab

489 U.S. 656 (1989)

Vernonia School Dist. 47] v. Acton

115 S.Ct. 2386 (1995)

Yin v. California

95 F.3d 864 (1996)

10, 11

11, 13, 14

10-12

3, 7-10, 12, 15

TABLE OF AUTHORIT IES, CONT’D

Constitutional Provisions

IV Amendment i, 2, 4, 5, 10, 12-14

Statutes

California Government Code

§ 19253.5 15

Code of Federal Regulations

Title 29

$1630 (b) 8

§$1630.13(b) 8

$1630.14 8

§1630.14(c) 8, 9, 15

United States Code

Title 28

§ 1254(1) 2

Title 42

$12101(b) 6

§12111(5) 6

§12112 6

§12112(d)(4)(A) i te tT

§12112(d)4(B) 7

§12133 6

§12201(a) 6

TABLE OF AUTHORITIES, CONT’D

Other Authorities

Americans With Disabilities Act, 2-7, 9, 15

Title I

House Labor Report, H.R. Rep. No. 644, 101st Cong.

2d Sess. pt. 1 (1990) at 75

Rehabilitation Act of 1973

§ 504

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1996

No. 96-929

CECILIA YIN, Petitioners,

Vv.

STATE OF CALIFORNIA; DARYLL TSUJIHARA; LINDA

NICHOLSON; ROBERT CATALE; and TONY SUNSERI,

Respondents.

INTRODUCTION

Respondents State of California, Daryll

Tsujihara, Linda Nicholson, Robert Catale and Tony

Sunseri respectfully request that this Court deny the

petition for Writ of Certiorari filed by petitioner Cecilia

Yin and decline to review the subject opinion of the

United States Court of Appeals for the Ninth Circuit on

the grounds that the opinion does not present any unusual

question of federal law for this Court to resolve and

further does not conflict with any prior decision of this

Court or with any decision of any other Court of Appeal

on the same matter.

OPINION BELOW

The opinion of the United States Court of

Appeals for the Ninth Circuit is reported at 95 F.3d 864

(9th Cir. 1996) and is reproduced in Appendix A of

petitioner’s brief. The opinion and order of the District

Court is reproduced in Appendix B of petitioner’s brief.

STATEMENT OF JURISDICTION

This Court has jurisdiction to hear this petition

pursuant to 28 U.S.C. § 1254(1).

STATUTES AND CONSTITUTIONAL PROVISIONS INVOLVED

Americans With Disabilities Act, 42 U.S.C.

§12112(d)(4)(A):

"A covered entity shall not require a medical

examination and shall not make inquiries of an

employee as to whether such employee is an

individual with a disability or as to the nature or

severity of the disability, unless such examination

Or inquiry is shown to be job-related and

consistent with business necessity."

United States Constitution, Amendment IV:

"The right of the people to be secure in their

persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not be

violated, and no Warrants shall issue, but upon

probable cause, supported by Oath or

affirmation, and particularly describing the place

to be searched, and the persons or things to be

seized."

STATEMENT OF THE CASE

As aptly expressed by the Ninth Circuit, this case

presents the question of "whether a state may compel an

employee with a prolonged and egregious history of

absenteeism and a record of on-the-job illnesses to

undergo a fitness-for-duty medical examination" without

violating either the Americans With Disabilities Act

("ADA") or the Fourth Amendment to the United States

Constitution. Yin v. California, 95 F.3d 864, 866 (1996).

Petitioner at all times relevant to this action was

employed as a senior tax auditor with respondent State of

California’s Employment Development Department

("Department"). Contrary to petitioner’s representation

in her Statement of the Case, the medical examination

requirement at issue in this litigation did not arise out of

an isolated episode of on-the job illness (see Petition at 2).

Petitioner had a history of five years of increasingly

excessive absenteeism in which she compiled illness-

related absences at a rate ranging from two and a half

times that of the average employee in her job

Classification in 1989 and 1990 to five and six times that of

her co-workers in 1992 and 1993, the last two years prior

to the onset of the instant litigation. In 1993, she missed

almost four full months of work. Needless to say, her

numerous absences had a negative effect on her overall

productivity, as measured both by the number of audits

performed and tax liability found. Id. at 867-868.

Within this context, and after repeated episodes

of on the job illness, including one episode in April, 1993

where petitioner had to be rushed to the hospital in an

ambulance from work (/d. at 872), petitioner’s supervisors

requested access to her medical records for the purpose

of evaluating her ability to perform the full range of her

1. Other named respondents are Department supervisorial and

management personnel.

job responsibilities. Petitioner refused, all the while

continuing to use significant amounts of sick leave. The

Department then asked her to submit to an Independent

Medical Examination ("IME"), authorized by state statute

and by the union contract governing Yin’s terms and

conditions of employment. /d. at 867, 871. Petitioner

again refused and twice failed to show up at scheduled

IME appointments. The Department later withdrew its

IME request after petitioner’s condition apparently

stabilized. However, petitioner again began to miss

significant amounts of work due to illness in the late fall

and early winter months of 1993, including at one point a

stretch of almost 30 continuous days. Petitioner continued

to refuse to release requested medical information to her

employer. An IME requirement was reimposed 1994

following yet another episode of on-the-job illness in early

January, 1994.2’ Id. at 867. Thereafter, petitioner filed

an action in federal court for injunctive relief and

damages, alleging that the Department’s actions both in

requesting a medical release and in requiring an IME

examination violated both the ADA and her right to

privacy under the United States Constitution.

The District Court granted respondents’ motion

for summary judgment on the grounds that the disputed

IME plainly fell within the statutory business necessity

exception to the ADA’s prohibition against required

medical examinations and that the medical examination in

question did not violate petitioner’s Fourth Amendment

rights. The Ninth Circuit affirmed, holding that when

health problems have a substantial and injurious impact

on an employee’s job performance, the employer can

require the employee to undergo a physical examination

designed to determine his or her ability to work, even if

2. Petitioner has never produced any evidence that her illness on

that day was related to her menstrual cycle despite a specific

invitation at oral argument to do so.

the examination might disclose whether the employee is

disabled or the extent of any disability. In so holding, the

Ninth Circuit cited to the business necessity exception to

section 12112(d)(4)(A) of the ADA. /d. at 868-869. The

Court of Appeals’ opinion also squarely rejected

petitioner’s contention that under this Court’s precedent

decisions the Department’s IME requirement constituted

a violation of the Fourth Amendment’s prohibition against

unreasonable searches and seizures or that the Fourth

Amendment’s warrant requirement applied. Jd. at 869.

This petition followed.

REASONS FOR DENYING THE WRIT

This case does not present an important federal

question for this Court to resolve. Rather, as a matter of

statutory interpretation it involves nothing more than a

relatively simple, wholly fact-specific application of a well-

delineated business necessity exception to certain statutory

requirements and prohibitions set forth in the ADA.

Moreover, contrary to petitioner’s contentions, this case in

no way conflicts with any prior Fourth Amendment

decisions of this Court. Instead it falls well within

guidelines enunciated in a long line of cases defining

privacy issues in the context of compelled medical

examinations. Nor is there any conflict with the recent

Tenth Circuit case cited by petitioner in her effort to

obtain review. Respondents respectfully submit that the

writ should be denied.

ARGUMENT

THIS CASE INVOLVES NOTHING MORE

THAN THE SIMPLE FACT-SPECIFIC

APPLICATION OF A_ STANDARD

BUSINESS NECESSITY EXCEPTION TO

REQUIREMENTS AND PROHIBITIONS

SET FORTH IN THE ADA

The ADA was enacted in 1992 with the general

purpose of eliminating discrimination against individuals

with disabilities. 42 U.S.C. §12101(b).2’ It incorporates

by reference applicable standards and legal precedents

governing its predecessor act, the Rehabilitation Act of

1973.4 §§12133, 12201(a). Provisions governing

employment are set forth in Title I of the ADA. Title I

bars discrimination in employment against disabled

individuals in entities having 15 or more employees.

Sections 12111(5), 12112. Section 12112 provides that

"[nJo covered entity shall discriminate against a qualified

individual with a disability because of the disability of such

individual....". Section 12112(d)(4)(A) includes a specific

prohibition against medical inquiries and compelled

medical examinations in this context. It provides in

pertinent part that an employer "shall not require a

medical examination and shall not make inquiries of an

employee as to whether such employee is an individual

with a disability or as to the nature of the disability, unless

3. Henceforth, all section references are to Title 42 of the United

States Code unless otherwise specified.

4. Section 504 of the Rehabilitation Act barred discrimination in

employment against handicapped individuals in federally funded

programs and activities.

such examination or inquiry is shown to be job-related and

consistent with business necessity" (emphasis added).

Both the District Court and the Court of Appeals

below assumed for purposes of analysis that the

challenged medical examination was subject to section

12112(d)(4)(A) because they viewed the Department’s

inquiry as one to ultimately determine whether petitioner

was capable of performing the full range of her job

responsibilities. Yin, supra, 95 F.3d at 867-868. Both

Courts then concluded, based on a review of the

undisputed record, that the proposed medical examination

was both job-related and consistent with business necessity

because petitioner’s excessive absenteeism had a

pronounced negative effect on her own productivity and

job performance and that of her office as a whole. /d.,

see n. 6. The Ninth Circuit therefore held that when

health problems have had a substantial and injurious

impact on an employee’s job performance, an employer

can require that employee to undergo a_ physical

examination to determine his or her ability to work, even

if such examination might disclose the presence of or

extent of a disability, assuming that the ADA applies. Jd.

at 868-869.

Petitioner contends that this interpretation of the

ADA’s business necessity exception would "swallow the

rule". Petition at 4-5. In her view, the business necessity

exception must be limited to technical physical

requirements for specific safety sensitive occupations. /d.

Petitioner is wrong. Section 12112(d)4(B) specifically

sanctions employer inquiries as to "the ability of an

employee to perform job-related functions." The

5. Petitioner’s argument as to the amount of leave time provided

by the state (Petition at 5, n. 3) is therefore irrelevant; moreover, the

undisputed record below indicates that she routinely exhausted all of

her sick leave as well as vacation leave in lieu of sick leave and in

addition was routinely docked for her use of yet more sick leave.

interpretive gloss provided by regulation clearly and

specifically permits medical examinations and inquiries of

current employees so long as they are job-related and

consistent with business necessity and are not conducted

for any prohibited purpose. Thus, as the legislative

history makes clear, what is prohibited is an inquiry or

examination that is not job-related but merely serves to

stigmatize. House Labor Report, H.R. Rep. No. 644,

101st Cong.2d Sess. pt. 1 (1990) at 75. See discussion in

Yin, supra, 95 F.3d at 868, n. 7. There is no such

suggestion of stigma here. As noted, by the Ninth Circuit,

"[t]here is nothing in the record to suggest that her

supervisors were simply trying to discover whether she

suffered from a particular disability or that they harbored

either a special bias against individuals with a given

disability or a general bias against all persons with

disabilities." Jd. at 863. Further, and contrary to

6. See 29 C.F.R. $1630 (b) ["Except as permitted by $1630.14, it

is unlawful for a covered entity to require a medical examination of

an employee or to make inquiries as to whether an employee is an

individual with a disability or as to the nature or severity of such

disability."]; 29 C.F.R. Pt.1630 App. §1630.13(b) ["The purpose of

this provision is to prevent the administration to employees of

medical tests or inquiries that do not serve a legitimate business

purpose. For example, if an employee suddenly starts to use

increased amounts of sick leave or starts to appear sickly, an

employer could not require that employee to be tested for AIDS,

HIV infection, or cancer unless the employer can demonstrate that

such testing is job-related and consistent with business necessity."];

29 C.F.R. §1630.14(c) ["A covered entity may require a medical

examination (and/or inquiry) of an employee that is job-related and

consistent with business necessity. A covered entity may make

inquiries into the ability of an employee to perform job-related

functions."]; 29 C.F.R. Pt.1630 App. §1630.14(c) ["This provision

permits employers to make inquiries or require medical examinations

(fitness for duty exams) when there is a need to determine whether

an employee is still able to perform the essential functions of his or

her job."}.

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petitioner’s contention, Petition at 5, the cited regulations

do not limit the application of the business necessity

exception to safety sensitive occupations.”

Indeed, the plain language of the ADA and its

regulations invites inquiries as to job-relatedness, business

necessity, and, where applicable, the existence or non-

existence of a prohibited discriminatory purpose. Each of

these inquiries is fact-specific. As noted, in this instance

the undisputed record clearly established as a factual

matter all three factors which would permit a medical

examination in this instance. Thus, the Ninth Circuit

found, as a matter of fact, that petitioner’s absenteeism in

and of itself, irrespective of its cause, "had taken a serious

and deleterious toll on her productivity and overall job

performance." Yin, supra, 95 F.3d at 863. In addition, as

noted immediately above, the Ninth Circuit found

absolutely no indication of a prohibited purpose. To the

contrary, "there is no doubt that Yin’s supervisors’

ultimate purpose was only to try to determine whether

Yin was capable of doing her job." Jd.

Thus, contrary to petitioner’s contention that the

Ninth Circuit opinion would "gut" the protections provided

by the ADA, this case simply reaffirms the uncontroversial

proposition that the absence of business necessity and/or

the existence of a prohibited discriminatory purpose must

be established as a factual matter. In this case, petitioner

utterly failed to do either, as two courts below, after fully

reviewing the record, have already established. There is

no important federal question for this Court to decide.

7. A part of App. §1630.14(c) does refer to federal safety

regulations and standards governing bus and truck drivers as well as

pilots and other air transportation personnel, but such standards are

not at issue in this lawsuit.

Il.

THE NINTH CIRCUIT OPINION WHOLLY

COMPORTS WITH A LONG LINE OF

PRIOR DECISIONS IN THIS COURT

INTERPRETING FOURTH AMENDMENT

REQUIREMENTS IN THE CONTEXT OF

COMPELLED MEDICAL EXAMINATIONS

A. The Ninth Circuit’s Conc usion That The IME

Requirement Did Not Violate Petitioner’s Fourth

endments Rights In No Wa Conflicts With

This Court’s Prior Decisions

Contrary to petitioner’s contentions, the Ninth

Circuit’s decision falls squarely within the ambit of well-

established precedent applying a balancing test in place of

a warrant requirement to compelled medical examinations

to determine whether the Fourth Amendment proliibition

against unreasonable searches and seizures has been

violated. Yin, supra, 95 F.3d at 869.

l. The Court Of A Is Dispensation Of A

Warran bable Cause Requiremen Ils

Wholly Within Guidelines Established By

This Court

As noted by the Ninth Circuit, courts have long

since dispensed with the warrant and probable cause

requirements when "special needs, beyond the normal

need for law enforcement, make the warrant and

probable-cause requirement impracticable." /d., citing

Griffin v. Wisconsin, 483 USS. 868, 873 (1987). See

discussion in Vernonia School Dist. 47] v. Acton, 115 S.Ct.

2386, 2390-91 (1995) [ultimate measure of constitutionality

of given search is reasonableness; if search is undertaken

by law enforcement officials to discover evidence of

de Ceeiieties a

criminal wrongdoing, reasonableness generally requires

search warrant supported by probable cause; otherwise

reasonableness is judged by balancing intrusion on Fourth

Amendment interests against promotion of legitimate

government interests, citing Skinner v. Railway Labor

Executives’ Ass'n, 489 U.S. 602, 619 (1989)].

Petitioner would limit the "special needs"

exception to the warrant/probable cause requirement to

the narrow range of circumstances prescribed by Skinner

[safety sensitive drug and alcohol testing of railroad

employees] or Vernonia, supra, {random drug testing of

high school athletes]. Petition at 6. Her analysis belies

the reasoning of the Skinner court itself, which referenced

a wide range of non-drug related searches in which this

Court applied a balancing test to its Fourth Amendment

analysis of the search at hand. Skinner, supra, 489 U.S. at

619-620, citing Griffin, supra, 483 U.S. at 873 (search of

probationer’s home); New York v. Burger, 482 U.S. 691,

699-703 (1987) (search of highly regulated businesses);

O’Connor v. Ortega, 480 U.S. 709, 721-725 (1987)(work-

related search of employee office and desk); New Jersey

v. T.L.O., 469 U.S. 325, 337-342 (1985) (search of student

property by school officials); Bell v. Wolfish, 441 U.S. 520,

558-560 (1979) (search of prison inmate body cavities).

Petitioner’s contentions notwithstanding, the medical

examination at issue here falls well within the perimeters

delineated in these and subsequent cases. Indeed, as

indicated below, the search in this case is based on a

particularized suspicion and therefore is exempt from

some of the constitutional implications of the random,

suspicionless drug searches authorized in both Skinner and

Vernonia.

2. Ninth Circuit's Well-Reasoned Analysis

Properly Applied The Balancing Test

contentions, neither a least restrictive means nor a

compelling state interest standard applies. Id; see also

Vernonia, supra, 115 S. Ct at 2394-2396. Here, the Ninth

by petitioner’s union contract which essentially

incorporated the terms of the statute and by petitioner’s

history of excessive absenteeism. Yin, supra, 95 F.3d at

stable and productive workforce, which it termed

"substantial and weighty", id. at 873, against petitioner’s

diminished expectation of Privacy and her "egregious"

attendance record and its effect on Office productivity and

morale, which it termed “serious and deleterious", Jd. at

868. Weighing these factors, the Ninth Circuit found the

IME requirement to be reasonable and therefore

constitutional. Jd at 873. Despite _petitioner’s

protestations, this analysis unquestionably falls entirely

within perimeters established by this Court in numerous

prior cases.

Petitioner also argues that the medica]

examination at issue was not sufficiently "narrowly

tailored" to further the State’s "purported" interest and

therefore could not pass constitutional muster. Petition

at 9. As this Court has noted, the purpose of a warrant

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requirement is to assure citizens that the search js

authorized by law and narrowly limited in its objectives

and scope and to protect citizens from random and

arbitrary searches. Skinner, supra, 489 U.S. at 622. Here

these purposes are wholly met. As set forth at length

above, this search is sanctioned by state and federal

statute as well as by this Court’s interpretation of the

reach of the Fourth Amendment. As to objectives and

scope, as the Court of Appeals noted, the record is clear

that generalized attendance requirements and sick leave

policies had obviously failed to deal with the worksite

problems arising from petitioner’s "egregious" attendance

record and on-the-job episodes of illness and their effect

on her productivity and job performance. Accordingly, a

particularized review of her current health status and

medical history was ordered to determine if she was fully

capable of performing her job responsibilities at an

appropriate level. This search was nothing if not

“narrowly tailored." And while petitioner contends that

the contemplated examination was “highly intrusive",

Petition at 7, it is well-established that a commonplace

test8/ performed reasonably and according to standard

medical practices does not constitute any undue invasion

of privacy. Schmerber v. State of California, 384 U.S. 757,

767-768 (1966).

In short, petitioner’s arguments notwithstanding,

the Ninth Circuit’s opinion in this matter wholly comports

with this Court’s prior decisions in determining the reach

of Fourth Amendment protections in the context of

compelled medical examinations.

8. The record is clear that the examination at issue consisted of

a standard physical examination based on a pre-established format.

B. The Nin ircuit’s isio n No Wa

Conflicts With The Tenth Circuit Decision Cited

By Petitioner

Petitioner contends (without page citation) that

the "Ninth Circuit’s approach is in direct conflict with that

of the Tenth Circuit", citing Rutherford v. Albuquerque, 77

F.3d 1258 (10th Cir. 1996). Petition at 7.

In Rutherford, a city employee fired after a

positive drug test challenged the validity of the test on

Fourth Amendment grounds (among others). The Tenth

Circuit Court of Appeals, applying the same well-

established balancing test set forth in Skinner and its

progeny, narrowly upheld the employee’s Fourth

Amendment challenge based on the specific circumstances

surrounding the testing and declined to reach the broader

question of the validity of the suspicionless drug test itself.

Rutherford, supra, 77 F.3d at 1261. Based on findings that

the drug testing policy was initiated during a time that the

employee was on medical leave and further that the policy

was improperly applied as to him, the Court of Appeals

concluded that the test was unacceptably intrusive to the

_employee’s reasonable expectation of privacy. Not only

did he receive no advance warning of the test itself, the

authorizing enactment on its face did not even apply to

him. Jd. at 1259, 1261. This lack of notice was dispositive

to the Tenth Circuit’s finding that the test was

unacceptably intrusive to appellant’s reasonable

expectation of privacy. Jd. at 1262 (citing this Court’s

identification of advance notice as a factor that minimized

the testing program’s intrusion on privacy in Treasury

Employees v. Von Raab, 489 U.S. 656, 672, n.2 (1989).).

Here, in stark contrast, petitioner had ample

notice of the disputed examination, not only by way of

particularized notice by defendant and respondent Daryll

Tsujihara, the Department’s Personnel Director, but also

by way of the generalized policy permitting such fitness for

duty determinations as set forth in both a State statute and

in petitioner’s collective bargaining agreement. Moreover,

as an examination of the Ninth Circuit decision_plainly

reveals, the reach of the Statutory and union contract

enactments closely parallels that of the ADA provision

authorizing such medical examination2/ Finally, of

course, petitioner herself repeatedly put her health status

at issue by her well-documented excessive use of sick

leave, her repeated on-the-job episodes of illness and her

declining productivity, areas of legitimate concern to her

employers. Id. at 872. In other words, the facts in this

case clearly support the Ninth Circuit’s conclusion

upholding the search.

Contrary to petitioner’s contention, the Ninth

Circuit’s approach is identical with that of the Tenth

Circuit?” Both Courts applied the balancing test

9. Compare Cal. Govt. Code §19253.5, cited in Yin, supra, 95

F.3d at 871, n. 14 ["..appointing power may require ...a medical

examination...to evaluate the capacity of the employee to perform the

work of his or her position"]; applicable provisions of the collective

bargaining agreement, see id. at 87 » M. 17 [ "a. Whenever the State

believes that an employee, due to illness or injury, is unable to

perform his/her normal work duties, the State may require the

employee to submit to an independent medical examination..... b.

The purpose of such independent medical evaluation is not to

determine the degree of disability the employee has Suffered, but

rather as to whether illness or injuries sustained restrict the employee

from performing the full range of his/her normal work assignment."};

29 C.F.R. Pt. 1630 App. §$1630.14(c) (interpreting the business

necessity exception) ["This provision permits employers to make

inquiries or require medical examinations (fitness for duty exams)

when there is a need to determine whether an employee is still able

to perform the essential function of his or her job."]

10. Respondents also fail to find any textual support whatsoever

in Rutherford for petitioner’s contention that the Tenth Circuit

“expressly acknowledges the applicability of the warrant requirement

to medical testing of government employees." Petition at 7. To the

contrary, the Tenth Circuit analysis relies on an application of the

authorized by this Court in numerous prior decisions to

the facts of the case at bar and, unexceptionably, reached

different conclusions. Petitioner mistakes these differing

conclusions for differing analyses. Her contentions

notwithstanding, this fact-specific application of a standard

balancing test simply does not rise to the level of a conflict

between circuits.

balancing test, not a warrant requirement.

CONCLUSION

In summary, respondents contend that this action fails

to meet this Court’s criteria for granting review. The case

Dated: January 8, 1997,

Respectfully submitted,