Ninth Circuit Gives Employers a Dark Day

Robert Dark, a truck driver for Curry County, Oregon, typically would receive a physical warning from his body (an "Aura") in advance of having an epileptic seizure. One day, Dark ignored his body's pre-seizure warning. He had a seizure at work, and passed out behind the wheel of a pickup truck. Curry County discharged him for misconduct. Dark sued under the Americans with Disabilities Act of 1990, claiming not only that the County failed to accommodate him, but also that the County fired him for discriminatory reasons. The Oregon district court granted summary judgment. The U.S. Court of Appeals for the Ninth Circuit reversed and sent the case back to court for trial.

Apparently, the employer did not litigate whether Dark had a disability under the ADA standard, which is tough on employees. The opinion is silent on this point. The court moved on to the County's legitimate business reason for termination, holding it was insufficient for summary judgment. Dark's supervisor stated Dark was fired because he could not safely perform his essential job functions and was a direct threat to himself or others. But when Dark appealed to the Curry County Board of Commissioners, the Board found that Dark engaged in misconduct by reporting to work despite the Aura and not telling his co-workers of the possibility of a seizure. On appeal, the County insisted on the latter explanation (probably because there were no efforts to reasonably accommodate Dark, putting the county into a difficult legal position).

The Court held the County was not permitted to argue Dark's falling unconscious behind the wheel is "misconduct," because it arose from the disability itself. The Court distinguished cases (e.g., Collings v. Longview Fibre), in which an employee was fired after engaging in misconduct arising from drug or alcohol use, and where the employee engaged in egregious criminal conduct (e.g., Newland v. Dalton). The Court also noted Dark provided evidence of six employees' accidents where the employees escaped discipline. Apparently, even Dark himself previously had been involved in accidents but was not disciplined at all.

The other significant issue addressed is the employer's obligation to accommodate. The County made no effort to engage Dark in an "interactive process" and offered him no accommodation in light of the misconduct conclusion. The Ninth Circuit reiterated that employers have an affirmative duty to engage in the interactive process to determine whether accommodation is possible. In this case, temporary reassignment to a non-hazardous was a possible accommodation. The court held that the employer must consider reassignment to a vacant position that is either vacant now OR is likely to become vacant in the reasonably near future. This is a mushy standard will create much uncertainty for employers seeking a workable standard for evaluating temporary transfer as a form of accommodation.