Echazabal v. Chevron USA

• Decision Date: 03 November 1999
• Docket Number: No. 98-55551,98-55551
• Citation: 226 F.3d 1063
• Parties: (9th Cir. 2000) MARIO ECHAZABAL, Plaintiff-Appellant, v. CHEVRON USA, INC.; IRWIN INDUSTRIES, INC., Defendant-Appellee. Office of the Circuit Executive
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1063

226 F.3d 1063 (9th Cir. 2000)

MARIO ECHAZABAL, Plaintiff-Appellant, v. CHEVRON USA, INC.; IRWIN INDUSTRIES, INC., Defendant-Appellee.

No. 98-55551

Office of the Circuit Executive

U.S. Court of Appeals for the Ninth Circuit

Argued and Submitted November 3, 1999--Pasadena, California

Submission Vacated November 15, 1999

Resubmitted January 25, 2000

Filed May 23, 2000

Amended September 26, 2000

Larry Minsky, Sievers & Minsky, Long Beach, California, for the plaintiff-appellant.

Jon P. Kardassakis, Hawkins, Schnabel, Lindahl & Beck, Los Angeles, California, for the defendant-appellee.

Appeal from the United States District Court for the Central District of California; Lourdes G. Baird, District Judge, Presiding. D.C. No. CV-97-03498-LGB

Before: Myron H. Bright,^* Stephen Reinhardt, and Stephen S. Trott, Circuit Judges.

Opinion by Judge REINHARDT; Dissent by Judge TROTT.

ORDER

The Opinion filed on May 23, 2000 is amended to include the attached dissent by Judge Trott.

OPINION

REINHARDT, Circuit Judge:

On this appeal, the principal question we consider is whether the "direct threat" defense available to employers under the Americans with Disabilities Act applies to employees, or prospective employees, who pose a direct threat to their own health or safety, but not to the health or safety of other persons in the workplace. We conclude that it does not.

I.

Mario Echazabal first began working at Chevron's oil refinery in El Segundo, California in 1972. Employed by various maintenance contractors, he worked at the refinery, primarily in the coker unit, nearly continuously until 1996, when the events that gave rise to this litigation occurred.

In 1992, Echazabal applied to work directly for Chevron at the same coker unit location. After determining that he was qualified for the job, Chevron extended him an offer contingent on his passing a physical examination. A preemployment physical examination conducted by Chevron's regional physician revealed that Echazabal's liver was releasing certain enzymes at a higher than normal level. Based on these results, Chevron concluded that Echazabal's liver might be damaged by exposure to the solvents and chemicals present in the coker unit. For that reason, Chevron rescinded its job offer. Nevertheless, Echazabal continued to work for Irwin, a maintenance contractor, throughout the refinery -including at the coker unit. Chevron made no effort to have him removed from his assignment.

After learning of the enzyme test results, Echazabal consulted with several doctors and eventually was diagnosed with asymptomatic, chronic active hepatitis C. Throughout his treatment, Echazabal told each physician who treated him about the type of work that he did. In addition, at least one of his physicians was provided with a document that detailed the specific environmental hazards present in the vicinity of the coker unit at the refinery. None of these physicians advised Echazabal that he should stop working at the refinery because of his medical condition.

In 1995, Echazabal again applied to Chevron for a position at the coker unit. As it had done before, Chevron made Echazabal a job offer that was contingent upon his passing a physical examination. Once again, Chevron eventually rescinded its job offer on the ground that there was a risk that Echazabal's liver would be damaged if he worked at the coker unit. Unlike in 1992, however, Chevron did not simply allow Echazabal to continue working for Irwin at the refinery. Instead, Chevron wrote Irwin and asked that it "immediately remove Mr. Echazabal from [the] refinery or place him in a position that eliminates his exposure to solvents/chemicals." As a result, Echazabal was no longer permitted to work at the Chevron refinery.

Immediately after losing his position at the refinery, Echazabal filed a complaint with the Equal Employment Opportunity Commission. He subsequently filed a complaint in state court that alleged, among other things, that both Chevron and the maintenance contractor had discriminated against him on the basis of a disability, in violation of the Americans with Disabilities Act (ADA). After Chevron removed the action to federal court, the district court granted Chevron's motion for summary judgment on all of Echazabal's claims. The court then stayed the proceedings between Echazabal and the maintenance contractor (it had denied the contractor's summary judgment motion) and certified for appeal its grant of summary judgment in favor of Chevron.¹

II.

On appeal, Chevron argues that it may defend its decision not to hire Echazabal on the ground that it reasonably concluded that Echazabal would pose a direct threat to his own health if he worked at the refinery. It acknowledges that, with respect to "otherwise qualified" individuals, the ADA prohibits employers from "using qualification standards . . . that screen out or tend to screen out an individual with a disability or a class of individuals with disabilities. " 42 U.S.C. S 12112(b)(6) (1994); see also 42 U.S.C. S 12113(a). Chevron contends, however, that its refusal to hire Echazabal falls under an affirmative defense that the ADA provides to this charge of discrimination. In the "defenses" section of the Act, the statute provides that an employer may impose, as a "qualification standard," "a requirement that an individual shall not pose a direct threat to the health or safety of other individuals in the workplace." 42 U.S.C. S 12113 (emphasis added).²

The question before us is whether the "direct threat" defense includes threats to one's own health or safety. That is, we must decide whether the provision permits employers to refuse to hire an applicant on the ground that the individual, while posing no threat to the health or safety of other individuals in the workplace, poses a direct threat to his own health or safety. As we noted recently in Nunes v. Wal-Mart Stores, Inc., 164 F.3d 1243 (9th Cir. 1999), "[w]e have not yet ruled on whether the direct threat defense includes threats to one's self."³ Id. at 1247 n.1. In addition to being a question of first impression in this Circuit, the issue has received almost no treatment in other Circuits. While several cases do state, in passing dicta, that the direct threat defense includes threats to oneself, see LaChance v. Duffy's Draft House, Inc., 146 F.3d 832 (11th Cir. 1998); EEOC v. Amego, Inc., 110 F.3d 135 (1st Cir. 1997); Daugherty v. City of El Paso, 56 F.3d 695 (5th Cir. 1995), only the Eleventh Circuit appears to have held that the defense encompasses such threats. See Moses v. America Nonwovens, Inc., 97 F.3d 446, 447 (11th Cir. 1996). The Moses court provides us with no guidance, however, because it gives no explanation for its holding. Instead, it simply asserts, without analysis, that the ADA's direct threat defense applies to threats to the disabled individual himself.⁴

In order to resolve the scope of the direct threat defense, we turn first to the language of provision itself. Here, that language is dispositive. The direct threat defense permits employers to impose a "requirement that an individual shall not pose a direct threat to the health or safety of other individuals in the workplace." On its face, the provision does not include direct threats to the health or safety of the disabled individual himself. Moreover, by specifying only threats to "other individuals in the workplace," the statute makes it clear that threats to other persons -including the disabled individual himself -are not included within the scope of the defense.⁵ Expressio unius est exclusio alterius. Finally, the obvious reading of the direct threat defense as not including threats to oneself is supported by the definitional section of Title I, which states that "[t]he term `direct threat' means a significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation." 42 U.S.C.S 12111(3) (emphasis added). The fact that the statute consistently defines the direct threat defense to include only threats to others eliminates any possibility that Congress committed a drafting error when it omitted from the defense threats to the disabled individual himself. Cf. United States Trustee v. Garvey, Schubert & Barer (In re Century Cleaning Servs., Inc.), 195 F.3d 1053, 1057-58 (9th Cir. 1999). For these reasons, we conclude that the language of the direct threat defense plainly does not include threats to the disabled individual himself.

Although we need not rely on it, the legislative history of the ADA also supports the conclusion that the direct threat provision does not include threats to oneself. The term "direct threat" is used hundreds of times throughout the ADA's legislative history -in the final conference report, the various committee reports and hearings, and the floor debate. See, e.g., H.R. Conf. Rep. No. 101-596, at 57, 60, 77, 84 (1990), reprinted in 1990 U.S.C.C.A.N. 565, 566, 569, 586, 593. In nearly every instance in which the term appears, it is accompanied by a reference to the threat to "others " or to "other individuals in the workplace." Not once is the term accompanied by a reference to threats to the disabled person himself. In addition, both the Report of the House Judiciary in the Report of the Committee on Education and Labor explain that the direct threat provision is intended to codify the Supreme Court's holding in School Bd. of Nassau County v. Arline, 480 U.S. 273 (1987) -a case that defines "[t]he term `direct threat' [to] mean[ ] a significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation." H.R. Rep. No. 101-485, pt. 3, at 34, 45-46 (1990) (emphasis added) (citing Arline), reprinted in 1990 U.S.C.C.A.N. 445, 457; see also H.R. Rep. No. 101-485, pt. 2, at 76, reprinted in 1990 U.S.C.C.A.N. 303, 359. While the House Judiciary Report notes that the ADA extends the Arline standard "to all individuals...