Kelley v. Wash. Cnty.

Decision Date18 March 2020
Docket NumberA166979
Citation303 Or.App. 20,463 P.3d 36
Parties Timothy KELLEY, an individual, Plaintiff-Appellant, v. WASHINGTON COUNTY, a domestic municipality, and Washington County Community Corrections Center, a subsidiary of a domestic municipality, Defendants-Respondents.
CourtOregon Court of Appeals

Micah D. Fargey argued the cause for appellant. Also on the brief were Rebecca Cambreleng and Cambreleng Law LLC.

Christopher A. Gilmore argued the cause for respondents.

Before DeHoog, Presiding Judge, and DeVore, Judge, and Aoyagi, Judge.*


Plaintiff was a community corrections specialist (specialist) for Washington County Community Corrections Center and Washington County. He brought this discrimination action, asserting that he was terminated because of his disability, obesity

. Defendants responded that they discharged plaintiff for a nondiscriminatory reason. They asserted that he was unable to perform essential functions of the position, particularly running in response to emergencies. Plaintiff appeals a judgment dismissing his claim, arguing that the trial court erred in granting defendantsmotion for directed verdict. He contends that the court erred in concluding (1) that running in response to emergencies was an essential function of the job and (2) that plaintiff failed to offer any evidence that he was able to perform that function.1 We disagree with plaintiff as to the first assignment but agree with plaintiff as to the second assignment of error. We reverse and remand.


A decision to grant a motion for directed verdict is reviewed for legal error, and it is appropriate only when a defendant is entitled to judgment as a matter of law. Miller v. Columbia County , 282 Or. App. 348, 349, 385 P.3d 1214 (2016), rev. den. , 361 Or. 238, 391 P.3d 797 (2017). For a discrimination claim, such as this, the inquiry is whether a jury could have reasonably found that defendant discriminated against plaintiff. Herbert v. Altimeter, Inc. , 230 Or. App. 715, 717, 218 P.3d 542 (2009). Our task is not to weigh the evidence or to assess witness credibility. Coy v. Starling , 53 Or. App. 76, 80, 630 P.2d 1323, rev. den. , 291 Or. 662, 639 P.2d 1280 (1981). Rather, we view the evidence in the light most favorable to plaintiff, as the nonmoving party, affording him every reasonable inference that can be drawn from it. Wheeler v. LaViolette , 129 Or. App. 57, 60, 877 P.2d 665 (1994). We must "deem plaintiff's testimony to be true." Crawford v. Cobbs & Mitchell Co. , 121 Or. 628, 643, 257 P. 16 (1927). A directed verdict should be entered "only in the exceptional case," where "reasonable persons could draw one inference and that inference being that defendant was not [liable]." Hall v. State , 43 Or. App. 325, 328, 602 P.2d 1104 (1979), aff'd , 290 Or. 19, 619 P.2d 256 (1980) (brackets omitted). "[I]f more than one conclusion can be drawn from the facts, the case is for the jury." Crawford , 121 Or. at 643, 257 P. 16. A defendant's motion for directed verdict "must be denied if there is any evidence from which the jury could find all of the facts necessary to establish the elements of the plaintiff's cause of action." Miller , 282 Or. App. at 349, 385 P.3d 1214 (emphasis added).


Plaintiff worked as a specialist at a correctional center that is a "24-hour residential, minimum security treatment and work-release facility," housing up to 215 offenders who are finishing jail or prison sentences or receiving treatment. He served as a specialist for more than twenty years. Plaintiff is six feet three inches tall. He gained 300 pounds over his tenure, weighing approximately 600 pounds at the time of his termination from employment. Plaintiff experiences knee issues that cause significant pain and affect his mobility. He has difficulty accelerating up and down stairs and running.

According to its job description, the specialist's purpose is to "maintain security, coordinate the activities of residents and make certain they follow the facility regulations or procedures, and interact with residents by providing information and assistance." Although the majority of the "essential job duties" listed in the job description emphasize supervision, conflict resolution, communication, and administrative work, they also include following "protocol and procedures to handle emergency situations such as acting as the first responder." The "physical requirements" of the job entail, among other things, being "able to negotiate over short distances, which would include rapid acceleration up and down stairs, and running down the hall."

As a specialist, plaintiff's job was divided into several posts through which he rotated from shift to shift. About once per week, plaintiff was assigned to meal duty, which partially entailed driving a van a couple of blocks from one facility to another to load, transport, and deliver meal carts and related items. For about 18 years, the center used a particular van that plaintiff was able to operate "perfectly." In July 2016, a new van replaced the older one. When plaintiff attempted to drive it for the first time, he discovered that it had insufficient legroom for him to operate the gas and brake pedals. Plaintiff notified his supervisor and the center's manager that he could not operate the van safely. The manager spoke with the human resources department, and plaintiff was placed on administrative leave.

In September 2016, plaintiff was asked to undergo a physical competency test (PCT) to determine whether he could perform the job's essential functions. An occupational therapist had designed the PCT after conducting a job task analysis, assessing the position's physical demands by observing and interacting with specialists at the center. The occupational therapist concluded that the position involved "[r]are running to emergent situations down hallways," for a maximum of 30 seconds at a time. He determined that, "if [running] happens, it would be a very rare occurrence." In light of that analysis, the PCT included a running requirement. The PCT was first implemented in 2015, and it was used exclusively to screen new applicants for employment.

Plaintiff cooperated with taking the PCT, although he was the only existing specialist required to undergo it. When plaintiff attempted to take the PCT, he was given the wrong one, a PCT tailored to the work of probation and parole officers. That PCT had more rigorous requirements than the one designed for specialists, including for running. During that testing, plaintiff was asked to run on a treadmill and, while doing so, his pants slipped down, and he fell. The test administrators asked whether plaintiff wanted to continue, but he declined because he had injured his forehead

, elbows, and knees, and he felt humiliated.

Plaintiff received a notice of medical layoff in November 2016, telling him that he would be laid off due to health conditions that prevented him from performing the full range of essential duties of the specialist position.

That same month, at the suggestion of human resources, plaintiff applied for long term disability insurance benefits. Although plaintiff never considered himself to be disabled, and although he believed that he could still perform the job duties of a specialist, he responded to the disability benefits application about why he was no longer permitted to work in the position. He indicated that he was unable to work at his occupation because of obesity

and knee issues, and that his symptoms were severe knee pain and "not being able to walk or run." A physician completed a section of the application and recommended that plaintiff stop working due to "pain in knees" making him "unable to do his work." The physician described plaintiff as having "[d]ifficulty walking distances or standing for prolonged periods" and stated that plaintiff would be impaired by those limitations "until [weight] loss and knee replacement."

Thereafter, plaintiff filed this action, asserting that defendants discriminated against him on the basis of his disability, obesity

.2 He alleged that defendants failed to engage in an interactive process to identify and provide a reasonable accommodation that would have enabled him to perform the position's essential functions. He alleged that, instead, defendants took an adverse employment action against him by terminating his employment. Defendants filed an answer alleging that they had legitimate and nondiscriminatory bases for plaintiff's termination. They asserted that plaintiff was unqualified for the position due to his physical inability to perform it.

At trial, the parties disagreed whether plaintiff was qualified for the specialist position such that he would be entitled to reasonable accommodation under Oregon law. Specifically, they disputed whether running was an essential function of the job, and, if so, whether plaintiff was capable of running as required. Plaintiff argued that running was not an essential job function. He stressed that the job description did not include running or navigating stairs among its "essential job duties" or "minimum qualifications." Plaintiff presented testimony that, in practice, specialists rarely had to run, and when they did, it was only for very brief intervals. He also argued that, even if running was an essential job function, it was one that he was capable of performing. As support, he offered evidence of positive performance reviews spanning several years, including reviews from 2015 and 2016, testimony from himself and other witnesses, and a physical capacity assessment from 2013 indicating that he had been adequately performing the responsibilities and meeting the expectations of the job. Plaintiff also introduced evidence challenging the validity of the running test that he failed.

At the conclusion of plaintiff's case, defendants moved for a directed verdict. They argued that running was an essential function of the...

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