By Ray Stern
By New Times
By Amy Silverman
By Stephen Lemons
By Stephen Lemons
By Monica Alonzo
By Chris Parker
By New Times
The disgusting smell jolted Darryleen Kelley last June 1 when she arrived for work at the Mesa Police Department.
"I said to someone, `They must have found bugs as big as rats in here,'" recalls Kelley, an investigative assistant who had been with the East Valley department for a decade. "It smelled like insecticide, even though it wasn't. My eyes were burning, my throat was burning. I got pretty darned sick."
So sick, she left work later that morning. But it wasn't from bug spray. Chemicals were wafting through the cop shop when Kelley got to work.
Workers from a local contracting firm were continuing their extensive remodeling of the station. That morning, they were spray painting, gluing down carpet and using tile sealant.
Darryleen Kelley wasn't the only one affected that June morning. Mesa Police Department shift supervisor Bennie Gonzales was working near Kelley on the second floor when the fumes hit her. She, too, got sick and went home early.
About a dozen other Mesa employees became ill from the acrid fumes that day, complaining of headaches, eye and throat irritations and breathing difficulties. But while the others who had gotten sick from the chemicals soon recovered, Kelley and Gonzales didn't. Arizona's workers' compensation laws kicked in at that point, and the two women continued to get paid on industrial sick leave.
When they returned to work weeks later, the department transferred the pair from the main station to Mesa substations. The idea was to accommodate them so they wouldn't breathe in the fumes generated by the construction project.
Over the next months, however, the women reported a remarkable spate of other on-the-job chemical misadventures. Gonzales and longtime Mesa police employee Tracey DeVore said in August they had gotten sick at a crime lab from inhaling ethyl ether used in fingerprint analysis. Then, Kelley became ill again after inhaling what that time really was bug spray. And Gonzales lost more time after she breathed in lacquer paint. And so on and on.
By late last year, the City of Mesa's bosses had had enough. They fired Kelley and Gonzales--both highly rated workers with no history of malingering or excessive absenteeism before the June 1989 chemical incident. They demoted DeVore from shift supervisor to records clerk, noting that her allergic reaction to paint fumes had made it impossible for her to work for long periods at the main police building.
All three women appealed their cases. Last week, Kelley lost her appeal to the city's Personnel Board by a 4-0 vote. DeVore also lost her grievance appeal and has been forced to accept a pay cut of approximately 30 percent with her demotion. Gonzales has a hearing pending later this month.
To 42-year-old Darryleen Kelley, the past nine months have been as devastating emotionally as they have been physically and financially.
"I know not everyone is a big admirer of police departments," she says, "but I was very proud of working for the Mesa Police Department. I thought I was doin' something that mattered with an outfit that mattered, but I guess I wasn't. It wasn't like we were getting our hair and nails done when this thing happened. We were at work and we got sick. Shouldn't that matter?"
The fact that the women claim they got sick at work is what does matter. Their cases are classic struggles between the rights of workers and the needs of a business to get things done.
To R. Kelly Hocker, the Tempe-based lawyer for the three women, the story line goes like this: A callous, self-insured municipality illegally fires or demotes three productive, but newly handicapped, employees to protect itself from possible long-term medical costs.
To Mesa assistant city attorney Charles Hover III, it comes down to this: The women were good employees, and the city tried in vain to accommodate them after they got sick. But their "handicaps" kept them from doing their jobs, and the city had no choice but to fire or demote them. The punishment had nothing to do with potential long-term liability insurance problems.
What makes the situation at the Mesa Police Department somewhat slippery is that the women's grievances involve the relatively new field of chemical-related illness.
In the Mesa dispute, as in untold other cases of illness induced by exposure to dangerous chemicals, doctors cannot agree on what causes a person's medical troubles, or even on what those troubles really are. And they can't say precisely why one person gets sicker from a chemical than another person.
These days, doctors are still learning what everyday chemicals do to people. It is far from an exact science, even as 500 new compounds go into commercial use each year, according to the federal government.
Another aspect that makes the Mesa cases significant is that they turn on "reasonable accommodation." Reasonable accommodation--the lengths an employer should go to accommodate handicapped workers--is a hot issue in labor law these days.
Because they are eager to absolve Mesa of blame, and hence of the responsibility of accommodating the women, the city's doctors trace the women's medical problems to everything but their exposures to chemicals. Their illnesses are chronic bronchitis caused by cigarette smoking, the city doctors say, or depression caused by personal problems. Oddly, no one from the city has even officially raised the possibility that the women's woes are more psychosomatic than physical.
THE MESA POLICE DEPARTMENT hired Darryleen Kelley as a 911 operator in 1979. The Kansas native--who had moved to the Valley the year before--handled life-and-death calls as if she were born for the job. Her personnel jacket reveals numerous commendations, and her work earned her several merit-pay increases.
"Darryleen has been doing a fine job," her supervisor noted in a mid-1980s evaluation. "She seems to enjoy her work and shows a genuine concern for doing a good job." By 1987, that job called for Kelley to investigate obscene or threatening phone calls, and other nonfelonious crimes.
"I wasn't a sworn officer, and I didn't have the same degree of responsibility, thank God," she says. "I was investigating misdemeanors, and I got to be pretty good at it. They must have thought I was doing a good job because I never heard otherwise."
Late in 1987, however, Kelley suffered a personal tragedy when her mother died in a house fire. (Her father had also died in a fire when she was a youngster.) "I had a hard time after my mom died, and I did take time off," she says. "But it really was work and my friends that helped me get through it in one piece."
Kelley got married in February 1989, and her life seemed to be on the upswing, despite the nagging depression over her mother's death. Her yearly performance evaluation last May was a keeper. "She works hard to promote relationships of trust and respect," Kelley's sergeant wrote in part.
A week after her rave review, the chemical fumes overcame Kelley at the Mesa Police Department.
"I wasn't looking to get sick," she says. "But over that weekend, I started to feel extreme fatigue like I've never felt before. And as time went on, there's just no way to explain how bad it got. I couldn't walk from one end of my house to the other without practically collapsing."
Soon, she went to her family doctor, who couldn't pinpoint the exact cause of her illness, but advised her to stay out of work until she felt better. Kelley was convinced the culprit was the chemicals, and at first, no one argued with her.
Among the chemicals in use that day--a list was eventually supplied by the construction company--were more than a dozen that were potentially dangerous. Among them were potent cleaning solvents that can cause a susceptible person to become ill when inhaling them or upon contact.
Still, the city never tested Kelley for the chemicals.
Weeks later, Kelley returned to work part-time with the permission of her private physician. The department transferred her to the Falcon Field substation, where she continued her work as a police investigator.
Kelley still was feeling poorly, however, and she had to stay home from work almost as often as not. By now, Gates-McDonald--the firm that administers workers' compensation claims made by City of Mesa employees--was fighting her. On August 23, a claims representative informed Kelley that she'd suffered "no permanent disability" as a result of the June chemical stew. That was the same as telling her they didn't want her to continue on workers' compensation.
In early September, Kelley was ordered to undergo a physical by doctors under contract to Gates- McDonald. Not surprisingly, those insurance doctors denied that exposures to chemicals had caused the woman to get sick. But Kelley says they told her they couldn't test her for specific dangerous chemicals in her system, a claim confirmed by a copy of their diagnoses.
Dr. Walter O'Hayre concluded that Kelley's medical problems "are in no way related to the exposure in early June to the fumes of hydrocarbons being used around her workplace. None of these compounds was used in her workplace."
O'Hayre and another hired hand, Dr. Thomas Hartley, blamed Kelley's woes on smoking cigarettes and on depression caused by her mother's violent 1987 death. It was around this time that Kelley says she bumped into Bennie Gonzales and Tracey DeVore at a doctor's office.
"We hadn't really kept in touch," Kelley recalls, "though we all could have used the emotional support. We compared notes, and one of them had contacted a lawyer to look into bringing charges against the construction company. I thought that was a good idea, because it was their chemicals that got us sick. Those doctors never even tested me for anything--they were so sure I wasn't sick from chemicals."
In Bennie Gonzales' case, Dr. Hartley wrote that "the contractor's employees who were working day in and day out with the products in question here, using no protective equipment or clothing and no respiratory protection devices, were without apparent ill effects."
A few weeks after her physical, Darryleen Kelley had another setback when she breathed in insecticide the city was spraying at Falcon Field--her new work site. By now, the city was docking Kelley when she called in sick, which was often.
After the September bug-spray incident--which was documented by the city--the department ordered Kelley to return to work at the main police station. Her private physician by then had recommended a specialist in Denver who could test her body for bad chemicals and might get her on the road to recovery.
Dr. Kendall Gerdes of Environmental Medicine Associates examined Kelley last October 5 for the first time. She complained of chronic fatigue, a sore throat, depression and other maladies. Doctors generally are loath to cite a specific exposure to a dangerous chemical as the sole reason for someone's illness. But Gerdes was as sympathetic toward Kelley as the city doctors had been unsympathetic. "Many of these symptoms seemed to be intensified or perhaps even initiated by exposures to a variety of inhalant chemical materials," Gerdes wrote last month. "If she was in an area which was essentially free of this type of exposure, there is an excellent chance that she could have functioned well."
Gerdes also made a discovery. Four months after Kelley's initial exposure to the chemicals, he detected in her body residues of Tolulene--a cleaning solvent for paint and coatings. He also found three other highly dangerous chemicals in her system, all of which can cause exactly the types of problems she was complaining about--exhaustion, sore throat, headaches, depression. According to OSHA Safety Data sheets, those chemicals may cause an exposed person to become highly sensitized to other poisonous compounds. That could explain why she got sick from the bug spray.
On October 24, Kelley asked the Mesa Police Department for a sixty- to ninety-day leave of absence for health reasons. She noted that her doctor had advised her not to work in the main police building for a year after the remodeling was completed--which it wasn't.
Kelley hired attorney Kelly Hocker, a former Washington, D.C., cop and a noted labor-law specialist, in early November.
"When a guy puts his life on the line for you, you just don't deny him anything," says Hocker, who has been doing workers' compensation cases for about three decades. "Then why do you toss someone out who has become handicapped by something that was the city's fault? They were in the line of duty in their way. That's what workers' compensation is all about. You don't throw away workers when they get hurt or sick."
Kelley's bosses responded December 1 to her request for a leave of absence. They fired her. She appealed, and at a grievance hearing that month she asked Police Chief Guy Meeks why she'd been canned.
"I have personally no knowledge of complaints about your work," Meeks replied. "My personal knowledge pertains about the attendance and the operational needs that we have.|.|.The only thing I can say to you is that we're not terminating you because of your work. It's because of your physical inability to be here and do that work."
"DOING A GOOD JOB will only carry you so far at the Mesa Police Department," says former Mesa detective Bill Richardson, who retired last year because of physical problems. "At some point, it's gonna depend on how much ass you kiss. None of the three girls--Darryleen, Tracey, or Bennie--are ass-kissers."
Richardson says the Mesa department, like many organizations, is riddled with what he calls "buds"--short for buddies.
"Buds are the ones who kiss up to the bosses and get away with anything," he says. "The unbuds are the ones on the outside. Those girls are unbuds. That's why this has happened to them."
But Kelly Hocker, the lawyer for the three women, says that Richardson--who refers to himself as an "unbud"--wasn't treated as badly by the Mesa department as his clients. Hocker wrote in a legal memo that Richardson and three other Mesa police employees, including former chief Len Kotsur, used more sick leave than Darryleen Kelley without being punished.
Former Mesa police lieutenant Richard "Catfish" Moore agrees with Bill Richardson about the "unbud" theory, and goes a step further.
"We've worked so hard in the City of Mesa at being efficient, that we're not able to operate worth a damn, if that makes any sense," says Moore, who retired two months ago after nearly two decades with the department. "In my opinion, those women were injured every bit in the line of duty as Sam Austin, our sergeant who got shot in the face a long time ago. They created a job for Sam, and they should have. And they should be able to adapt to the problems that these women have. But someone in the city got stubborn--I think that's what happened. And I think it stinks."
That's what attorney Kelly Hocker wants to hear.
"The City of Mesa retaliated against these ladies for using their workers' compensation rights," Hocker says. "I don't think the city was out to get anybody. I think it's a failure to understand the right of employees under the law. In this instance, efficiency prevailed over humanity."
Both Hocker and assistant Mesa city attorney Charlie Hover agree that what constitutes "reasonable accommodation" is central to the three women's cases.
"`Reasonable accommodation' is a tough issue because it's so emotional," Hover says. "You are dealing with good people that you have to take action against because it's the law. It becomes an us-against-them thing, with no happy solution. It's a balancing act that our managers and supervisors don't take lightly. But the bottom line is you've got to be able `reasonably' to do your job."
The three women have filed separate complaints against the City of Mesa with the Arizona Civil Rights Commission. Lawsuits, everyone agrees, are likely.
"These are difficult cases, with plenty of room for debate," Charlie Hover says. "The provisions for handicapped people and `reasonable accommodation' have only been law for less than twenty years, and there's already a tremendous body of case law. It wouldn't surprise me to see lawsuits out of these cases."
Darryleen Kelley says she's feeling better physically these days. She says she's looking for a new job because she and her husband are hurting financially. "I don't know everything I was exposed to over there," she says. "How come no one knows anything? I'm never gonna know down the road if I get sick, that the building didn't cause it. I was considered a loyal employee. How would they have treated me if I wasn't loyal? I gave that place ten years of my life, and I'm left with nothing."
"It wasn't like we were getting our hair and nails done when this thing happened," Kelley says. "We were at work and we got sick."
Because they are eager to absolve the city of blame, the doctors trace the women's medical problems to everything but their exposure to chemicals.
"She works hard to promote relationships of trust and respect," Kelley's evaluation read. A week later, chemical fumes overcame her.
"Doing a good job will only carry you so far at the Mesa Police Department," says a former Mesa detective.