Dark v. Curry County
| Decision Date | 06 July 2006 |
| Docket Number | No. 04-36087.,04-36087. |
| Citation | 451 F.3d 1078 |
| Parties | Robert DARK, Plaintiff-Appellant, v. CURRY COUNTY; Curry County Road Department; Dan Crumley, individually and in his official capacity as Curry County Roadmaster, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Manuel C. Hernandez, Hernandez and Associates, LLC, Bandon, OR, argued the cause for the appellant and was on the briefs.
Jason M. Montgomery, Law Office of Robert E. Franz, Jr., Springfield, OR, argued the cause for the appellee and was on the brief. Robert E. Franz, Jr. was also on the brief.
Appeal from the United States District Court for the District of Oregon; Ann L. Aiken, District Judge, Presiding. D.C. No. CV-03-03041-JPC/ALA.
Before: D.W. NELSON, O'SCANNLAIN, Circuit Judges, and BURNS,* District Judge.
We are asked to review a summary judgment dismissal of a claim by an epileptic heavy-equipment operator for a county road department under the Americans with Disabilities Act.
From the age of 16, Robert Dark has suffered from epilepsy. He controls the condition with medication but still endures the occasional seizure which is usually preceded by a physical manifestation called an "aura." An aura is "akin to a nervous jerk"; it indicates "the potential for a seizure on the day of the aura," typically no sooner than one hour later. Dark says that a seizure follows an aura approximately half of the time.
Dark's employment with the Road Department of Curry County, Oregon ("the County") commenced on March 4, 1985. His position, "Maintenance and Construction Worker III," required, among other tasks, the operation of heavy equipment such as construction vehicles. Dark's employment record over approximately 16 years reflects satisfactory, at least, job performance.
On the morning of January 15, 2002, prior to his leaving for work, Dark experienced an aura. Despite this warning, Dark reported for work as scheduled and failed to inform anyone of the possibility of his suffering an epileptic seizure. Later that day, Dark suffered a seizure and fell unconscious while driving a County pickup truck. Fortunately, at the time Dark was operating the vehicle at a very slow rate of speed. His passenger, another Road Department employee, gained control of the vehicle and brought it to a safe halt.
In response to this incident, the County requested that Dark undergo a medical examination. Dr. John Melson, M.D., a neurologist, performed the examination on March 11, 2002 and concluded that "because of the presence of poorly controlled idiopathic epilepsy, [Dark] should not work in high places, he should not work around moving machinery where sudden loss of consciousness would endanger either himself or others, and this would appear to severely limit him from the duties of the job described."
Subsequent to receipt of Dr. Melson's report, the Road Department placed Dark on administrative leave. During this process, Dark's commercial driver's license was also suspended. On April 1, 2002, the Road Department held a disciplinary hearing at which Dark was represented by counsel. Dark admitted to having experienced an aura on the morning of the incident.
The Road Department terminated Dark's employment on April 17, 2002. It communicated its decision in a three-page letter signed by Daniel P. Crumley, the department's Roadmaster, which concluded that Dark could not perform the essential functions and duties of his position and that his continued employment posed a threat to the safety of others.
Dark appealed these findings to the Curry County Board of Commissioners ("the Board") and received a hearing on May 22, 2002. On June 26, 2002, the Board affirmed Crumley's decision to terminate Dark's employment. It reasoned that Dark had "acted irresponsibly, recklessly, and with a total disregard of the safety of himself, other employees, and members of the public."
On November 25, 2002, Dark filed a complaint with the Equal Employment Opportunity Commission ("EEOC"). Following an investigation, the EEOC determined that the evidence "does not establish a violation of the Americans with Disabilities Act [("ADA")]." See 42 U.S.C. § 12101 et seq. On March 11, 2003, it declined to sue the County on Dark's behalf but permitted him 90 days within which to initiate a private action.
Thereafter, on May 5, 2003, Dark filed this lawsuit in the District of Oregon. He sued Curry County, the Road Department, and Crumley under the ADA and Oregon's state-law equivalent. See OR. REV. STAT. § 659A.100 et seq.1 Dark's first claim for relief alleged that the County violated the ADA by discharging him while refusing reasonably to accommodate his disability; his second claim alleged a similar violation of the Oregon statute. Dark seeks recovery of lost wages, future wages, humiliation, and loss of reputation, as well as punitive damages, reinstatement, and attorneys' fees.
The County filed a motion for summary judgment on August 16, 2004. The magistrate judge charged with making a recommendation did not receive a response from Dark because of an alleged postal error. On September 9, 2004, the magistrate judge recommended granting the County's motion. The district court considered the magistrate's recommendation and Dark's subsequently filed Memorandum in Opposition to Defendants' Motion for Summary Judgment and supporting affidavits. On November 2, 2004, the court adopted the magistrate's recommendation and granted the County's motion for summary judgment and dismissed Dark's lawsuit. Dark timely appealed.
Dark urges that summary judgment was improperly granted because there are at least three genuine issues of material fact which entitle him to a jury trial, specifically, with respect to (1) the reason given for his termination, (2) his qualifications, and (3) whether he is a "direct threat" to his fellow employees.2
Dark first contends that there is a genuine issue of material fact as to whether the County demonstrated a legitimate, nondiscriminatory reason for his termination. The County responds that "[t]here is no dispute that the plaintiff did engage in misconduct by driving with knowledge of the risk he posed, and without warning any coworkers of the danger he presented." Thus, the County argues that Dark's termination resulted from misconduct or a failure to meet legitimate job expectations.
The County alleged in its motion for summary judgement that there are no disputed facts with respect to the reason for Dark's termination. But we find some difficulty with this assertion because the record includes two divergent explanations.
The first explanation for Dark's termination is the letter of April 17, 2002, in which Crumley explained his decision in terms of Dark's alleged lack of fitness to perform the duties of the position. In relevant part, the letter stated:
The allegation that you cannot perform the essential functions and duties of the job of Maintenance and Construction Worker III as described is substantiated....
....
Following your on the job seizure on 1/15/02, the County had sufficient concerns regarding your medical condition to request an independent Neurologist to evaluate you....
....
... I accept Dr. Melson's findings that because of the presence of poorly controlled idiopathic epilepsy, you should not work around moving machinery.... That would prevent you from performing the basic work functions outlined in your job description.
....
... I believe a "seizure free" condition is critical for workers in your occupation.... [Y]our condition in my opinion prevents you from performing your duties.... It is also my conclusion that allowing you to work in your present job for Curry County would impose a threat to the safety and lives of your coworkers and the public.
(Emphases added.) True, the letter also details aspects of the January 15, 2002, incident. But nowhere does Crumley state that Dark's driving the pickup truck despite the aura was an independent reason for the termination.
The second explanation, "misconduct," is contained in the Board's order of June 26, 2002. After reciting the relevant facts, the Board reasoned:
By operating the truck and heavy equipment on January 15, 2002, Mr. Dark knowingly put the safety of himself, co-workers and the general public in jeopardy.
Now, therefore, it is hereby ordered that Dan Crumley's decision to terminate the employment of Robert Dark is hereby affirmed for the reason that on January 15, 2002, Robert Dark acted irresponsibly, recklessly, and with a total disregard of the safety of himself, other employees, and members of the public....
The County, in effect, asserts that the Board's rationale was the only legally relevant reason for Dark's termination.
The County, however, provides no explanation as to why we should accept such contention. To the contrary, we think that the role of the Board was simply to entertain the appeal of an already-completed termination. As noted in the Board's order affirming the termination, "[p]ursuant to the Curry County Personnel rules, the Board's mandate was to `deliberate and reach a decision to affirm, modify or deny the disciplinary action.'" The termination letter also considered Dark's firing to have been a completed act. Regarding Dark's appeal to the Board, the letter stated, (Emphases added.) And at oral argument, counsel for the County conceded that the effective date of Dark's termination was April 17, 2002, the date of Crumley's termination letter. Thus, the legally relevant action had already been accomplished before the Board took cognizance of Dark's appeal.
Of course, even were we to treat the Board's decision as the legally operative one, the reason given for Dark's termination must...
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