Smoke gets in his eyes
Like other organs of local government, the Dallas County Sheriff's Department adopted a strict no-smoking policy in 1988. Over the last two decades, such edicts have become routine and largely unquestioned in workplaces, exiling the nicotine-addicted to sidewalks. But Thomas Reilly, a sheriff's investigator, charges that his department holds itself to a different standard. He says officers routinely ignore the no-smoking policy by lighting up in county vehicles and offices. And he alleges in a lawsuit filed last week that his superiors retaliated when he complained about it by demoting him, even though department officials say the move was a transfer that didn't affect his base salary or working hours.
Reilly, a former fugitive investigator and 21-year sheriff's department veteran, filed suit in federal district court on March 13, alleging the department violated his right to free speech by reassigning him to work as a court bailiff. Reilly's suit asks for $75,000 in damages, but he says he will settle for getting back his old job or a similar post, plus legal expenses and back pay.
The job of bailiff, he asserts, lacks challenge and is usually reserved for new recruits or old-timers winding down their career. "To me, it's a waste of the skills the sheriff's department has spent to train me," says Reilly, who claims he has received "outstanding" evaluations during his career. "I've lost quite a bit of overtime pay, the use of a county take-home vehicle, and the prestige of being an investigator."
But sheriff's officials tell a different story. They defend the job of bailiff as an important one, and maintain the transfer was a necessary move once details of Reilly's medical conditions came to light.
"He informed me that he has a high degree of sensitivity to cigarette smoke, nail polish, and other chemicals that cause him to suffer from severe migraine headaches," David Kuykendall, the assistant chief deputy sheriff who reassigned Reilly, wrote in an October memo recounting a September meeting. "He stated these headaches, which he takes daily medication for, cause nausea, vomiting, and extreme discomfort.
"He also stated that just the smell of secondhand smoke in the air vents can bring on a migraine headache episode," he continued. "He further stated his job of transporting fugitives is dangerous work and he fears the headaches would impair his ability to safely perform his duties."
After hearing all this, Kuykendall later decided he couldn't allow Reilly to remain in the fugitive section, since, he reasoned, smoking could not be "undone" from county vehicles.
In addition, he argued that rental cars, taxi cabs, commercial airlines on inter-continental flights, hotel rooms, and law enforcement agencies without no-smoking policies still posed a threat to Reilly's health, since he couldn't control smoke danger from those sources. "I felt that I must take the appropriate action to reasonably protect his health, ensure his safety, the safety of the public, and the prisoners he transports," Kuykendall wrote.
But Reilly says Kuydendall has exaggerated his complaints since he takes medicine that alleviates the more severe symptoms of his migraines. The biggest danger, he says, is exposure to smoke in the confined space of county vehicles, which county policy supposedly bans.
And the danger of health threats on business out of Dallas County is a "false issue," he charges, as he rarely uses rental cars, most hotels offer "no smoking" rooms, and he seldom encounters the other situations.
As part of his job, Reilly spent much of his time driving county vehicles around Texas and Oklahoma alone or with other officers to pick up fugitives ranging from hot-check writers to murder suspects. Occasionally a job would entail flying to far-flung locales such as Hawaii and Alaska, which he calls "a nice perk."
But the job is more than being a "taxi driver," Reilly says, as it frequently involves investigative work "to make sure you get the right person."
Despite county no-smoking policies, previous drivers often smoked in the cars and vans, and sometimes another officer traveling with Reilly would light up. Reilly says he was irritated by the smell, which inflamed his allergies and headaches, but also worried about the dangers of secondhand smoke.
Asking officials to curb the smoking accomplished nothing, Reilly says. So he filed a grievance with his superior in the fugitive section. "Rather then enforce this policy and protect the rights and health of non-smokers, the county has turned its back and has by lack of enforcement encouraged tobacco use in county vehicles and sometimes in and around county buildings," he wrote in the August 16 complaint.
To make sure the bosses got the message, Reilly also filed a tongue-in-cheek "accident report."
Stating how the "accident" occurred, Reilly wrote "exposure to a carcinogenic substance (secondhand smoke)." What part of the body was injured? asked the form. "Entire body," he replied tersely. "What can you do in the future to avoid having a similar accident?" the form read. "Have county follow its own policy on smoking," Reilly offered.
Yet Reilly's various beefs resulted in his transfer, so now he's suing. "We tried to take this up through administrative channels," says attorney Russell Wilson, who is representing Reilly. "They've given him the run-around at every turn."
As evidence that the law is on his client's side, Wilson points to the department's policy sheet, which warns: "In all cases the right of a non-smoker to protect his or her health and comfort will take precedence over an employee's desire to smoke."
But why a First Amendment suit? Wilson argues that free-speech rights apply since Reilly's grievances were not merely personal but regarded a matter a "public concern" affecting all employees. Since he is a public employee, Wilson says, Reilly cannot be penalized for such statements.
Earlier, Reilly told his employers they were violating his rights under the Americans with Disabilities Act by transferring him based on the perception that he is disabled, rather than the reality.
Other non-smoking employees are upset about smoking in county vehicles and offices, Reilly says, but they are hesitant to come forward. It's not just employees that he's concerned about, but the people the fugitive section shuttles -- not all of whom are hardened cons undeserving of sympathy. For example, he says, fugitive investigators often transport young children involved in custody battles, as well as older children to juvenile detention facilities and "nonsmoking prisoners not convicted yet."
Attorney Wilson argues the department could solve the problem by taking a hard-line approach on smoking in recently purchased vehicles -- the department is slowly renewing its fleet -- that Reilly can drive problem-free. But there is one overarching reason that Reilly demands a crackdown on smoking at the sheriff's department.
"The biggest thing is, it stinks," he says.
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