Echazabal v. Chevron Usa, Inc.

• Decision Date: 23 July 2003
• Docket Number: No. 98-55551.,98-55551.
• Citation: 336 F.3d 1023
• Parties: Mario ECHAZABAL, Plaintiff-Appellant, v. CHEVRON USA, INC.; Irwin Industries, Inc., Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

336 F.3d 1023

Mario ECHAZABAL, Plaintiff-Appellant, v. CHEVRON USA, INC.; Irwin Industries, Inc., Defendant-Appellee.

No. 98-55551.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted September 19, 2002.

Filed July 23, 2003.

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Larry Minsky, Cerritos, CA, for the plaintiff-appellant.

Jon Kardassakis, Hawkins, Schnabel, Lindahl & Beck, Los Angeles, CA, for defendant-appellee Chevron USA Inc.

Dori K. Bernstein, Washington, DC, for amicus curiae United States Equal Employment Opportunity Commission, urging reversal.

Craig E. Stewart, Pillsbury Winthrop, San Francisco, CA, for amici curiae American College of Occupational and Environmental Medicine, Western Occupational and Environmental Medical Association, and California Society of Industrial Medicine and Surgery, urging affirmance.

On Remand from the United States Supreme Court.

Before REINHARDT, TROTT, and TASHIMA,^* Circuit Judges.

Opinion by Judge TASHIMA; Dissent by Judge TROTT.

OPINION

TASHIMA, Circuit Judge:

In this action under the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq. ("ADA"), we held in an earlier opinion that the "direct threat" defense provided by 42 U.S.C. § 12113 in an ADA discrimination action does not include threats to the employee's own health. Echazabal v. Chevron U.S.A., Inc., 226 F.3d 1063, 1070 (9th Cir.2000). In Chevron U.S.A. Inc. v. Echazabal, 536 U.S. 73, 122 S.Ct. 2045, 153 L.Ed.2d 82 (2002) ("Echazabal"), the Supreme Court reversed and remanded, holding that the direct threat defense includes threats to an employee's own health. It also held the EEOC's direct threat regulation, 29 C.F.R. § 1630.15(b)(2) (defining the defense to include threats to the employee), to be valid. Id.

In light of Echazabal, the only remaining issue on remand is whether Chevron has met the requirements for assertion of the direct threat defense. Specifically, we must decide whether Chevron based its decision upon "`a reasonable medical judgment that relies on the most current medical knowledge and/or the best available objective evidence,' and upon an expressly `individualized assessment of the individual's present ability to safely perform the essential functions of the job,' reached after considering, among other things, the imminence of the risk and the severity of the harm portended." Echazabal, 122 S.Ct. at 2053 (quoting 29 C.F.R. § 1630.2(r) (2001)). We conclude that, on summary judgment, material issues of fact remain; therefore, the district court erred in granting summary judgment to Chevron. We reverse and remand for further proceedings.

FACTUAL BACKGROUND

Between 1972 and 1996, Mario Echazabal worked for a variety of maintenance contractors at Chevron's oil refinery in El Segundo, California, primarily within the coker unit. In 1992, Echazabal applied to work directly for Chevron in the same coker unit. Chevron extended to him an offer of employment, contingent on his passing a physical examination. An examination by Chevron's physician revealed that Echazabal's liver was releasing higher than normal levels of enzymes. Chevron concluded that Echazabal's health might be at risk from exposure to chemicals present in the coker unit and rescinded its offer. Echazabal continued to work at the refinery as an employee of Irwin Industries, Inc., a maintenance contractor for Chevron.

After learning of these test results, Echazabal consulted with his own doctors and was eventually diagnosed with asymptomatic, chronic active hepatitis C. Throughout his treatment, Echazabal informed his personal physicians about the work he continued to perform at the refinery. None of the physicians advised him to cease working there.

In 1995, Chevron again offered Echazabal a job, contingent on passing a physical examination. Echazabal had the physical examination Chevron requested in January 1996. Shortly thereafter, he received a letter, dated February 6, 1996, informing him that Chevron was withdrawing the job offer based on its determination that Echazabal's liver would be damaged and his health at risk if he worked at the coker unit. Prior to the receipt of this letter, Echazabal had not received any indication that the offer might be withdrawn, nor had he been given any opportunity to demonstrate that he could safely perform the job.¹ Unlike the previous time that Chevron withdrew its job offer, this time Chevron also asked Irwin to remove Echazabal from the refinery or place him in a position that would eliminate his exposure to solvents or chemicals. As a result, Echazabal lost his position with Irwin at the El Segundo refinery, which also caused him to lose his medical insurance coverage. Consequently, he was no longer able to pay for medical services and was unable to continue with the medical group he had been seeing for his liver condition.

ANALYSIS

An employer can defend against a disability discrimination claim under the ADA by relying on a qualification standard that "is shown to be job-related for the position in question and is consistent with business necessity." 42 U.S.C. § 12112(b)(6). Such a qualification standard "may include 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. § 12113(b). The statute further provides 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. § 12111(3). Because it is an affirmative defense, the burden of establishing a direct threat lies with the employer. Hutton v. Elf Atochem N. Am. Inc., 273 F.3d 884, 893 (9th Cir.2001); Nunes v. Wal-Mart Stores, Inc., 164 F.3d 1243, 1247 (9th Cir.1999).

Before excluding an individual from employment as a direct threat, an employer must demonstrate that it has made an "individualized assessment" of the employee's ability to perform the essential functions of the job, "based on a reasonable medical judgment that relies on the most current medical knowledge and/or on the best available objective evidence." 29 C.F.R. § 1630.2(r). The factors to be considered include: "(1) The duration of the risk; (2) The nature and severity of the potential harm; (3) The likelihood that the potential harm will occur; and (4) The imminence of the potential harm."² Id. The Supreme Court emphasized the requirement of a "particularized enquiry into the harms the employee would probably face." Echazabal, 122 S.Ct. at 2053.

A. The "individualized assessment" requirement

Chevron defends its assessment disqualifying Echazabal from employment with three arguments: (1) It satisfied the individualized assessment requirement by relying on the "facially proper" opinions of "competent physicians." (2) There were no genuine issues of material fact with regard to the four Arline factors. (3) The opinions of Echazabal's medical experts cannot be considered in evaluating its employment decision because they were made "long after the fact."

1. The standard for evaluating medical judgments

Chevron argues that its reliance on the advice of its own doctors, and allegedly upon that of Echazabal's doctors, constitutes a "facially reasonable" and thus a legally sufficient "individualized assessment" of Echazabal. This is an erroneous interpretation of the governing standard.³ The regulation presents a much more specific matrix against which to measure the reasonableness of the employer's action:

Direct Threat means a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation. The determination that an individual poses a "direct threat" shall be based on an individualized assessment of the individual's present ability to safely perform the essential functions of the job. This assessment shall be based on a reasonable medical judgment that relies on the most current medical knowledge and/or on the best available objective evidence. In determining whether an individual would pose a direct threat, the factors to be considered include:

(1) The duration of the risk;

(2) The nature and severity of the potential harm;

(3) The likelihood that the potential harm will occur; and

(4) The imminence of the potential harm.

29 C.F.R. § 1630.2(r).

In Bragdon v. Abbott, 524 U.S. 624, 118 S.Ct. 2196, 141 L.Ed.2d 540 (1998), the Supreme Court considered a direct threat defense presented by a dentist concerned about treating an HIV-infected patient. The Court stated that the health care provider had a duty to assess the risk based on "the objective, scientific information available to him and others in his profession." Id. at 649, 118 S.Ct. 2196. A subjective belief in the existence of a risk, even one made in good faith, will not shield the decisionmaker from liability. Id. This Circuit has held that an employer must gather "substantial information" about an employee's work history and medical status. Nunes, 164 F.3d at 1248. The decision must be based upon "particularized facts using the best available objective evidence as required by the regulations." Lowe v. Ala. Power Co., 244 F.3d 1305, 1309 (11th Cir.2001); cf. McGregor v. Nat'l R.R. Passenger Corp., 187 F.3d 1113, 1116 (9th Cir.1999) (holding that policies requiring employees to be "100% healed" before returning to work violate the ADA because they preclude individualized assessment of whether employee can perform the essential functions of the job with or without accommodation).

Echazabal has raised a material issue of fact as to whether Chevron's decision was "based on a reasonable medical judgment that relies on the most current medical knowledge and/or the best available objective evidence." 29 C.F.R. § 1630.2(r). As part of the physical examinations ordered by Chevron, Dr. Baily, and later Dr. McGill, administered and relied upon tests that measure the levels of three enzymes in the bloodstream. Based on...