Klinedinst - Employer Fails to Consider Epileptic Employee’s Ability to Perform Essential Functions of Job and Reasonable Accommodations

Employer Fails to Consider Epileptic Employee’s Ability to Perform Essential Functions of Job and Reasonable Accommodations

In the recent June Employment Law Update, we extensively detailed the case of Williams v. Genentech, Inc., a California appellate case in which the employer’s good communication with the employee defeated the employee’s lawsuits of disability discrimination, failure to accommodate, and failure to engage in the interactive process. This month we have a case from the Ninth Circuit Court of Appeals (Dark v. Curry County, etc., Ninth Circuit Court of Appeals, Case No. 04-36087) in which an employee was allowed to proceed to a jury trial with his ADA claims because the evidence established the possibility that the employer’s real reason for terminating the employee was due to its belief that the employee’s epilepsy made him unable to perform the essential functions of his job.

Robert Dark (the “Employee”) was a maintenance and construction worker for the road department of a county in Oregon (the “Employer”). The Employee suffers from epilepsy. Despite taking medication to control the condition, the Employee occasionally has a seizure, which is preceded by an “aura.” An aura is similar to a nervous jerk, and it sometimes means that he will have a seizure later in the day. The Employee would suffer a seizure on approximately half of the occasions on which he experienced an aura.

One morning, before leaving for work, the employee experienced an aura. Nevertheless, he reported for work and did not inform anyone of the possibility that he could suffer an epileptic seizure later in the day. He in fact suffered such a seizure while driving a pickup truck that day. He was driving slowly at the time, and his passenger, a co-worker, was able to get control of the vehicle and bring it to a safe stop. The Employer sent the Employee for a medical examination by a neurologist, who concluded that Employee should not work in high places, or around moving machinery where sudden loss of consciousness would endanger himself or others. After receiving the doctor’s report, the county placed the Employee on administrative leave. At a disciplinary hearing, the Employee admitted that he experienced an aura on the morning of the incident. The county then terminated the Employee’s employment, providing a termination letter in which the leader of the road department concluded that the Employee could not perform the essential functions and duties of his position, and that his continued employment posed a threat to the safety of others.

After the termination decision was upheld in an appeal to the County Board of Commissioners, and after the Employee exhausted his administrative remedies with the EEOC, he sued the county in federal court under the ADA.1 After the Employer obtained summary judgment, the Employee appealed. The Ninth Circuit Court of Appeals reversed the district court’s grant of summary judgment on several grounds. The court concluded that there was a genuine issue about whether the county established a legitimate, nondiscriminatory reason for the termination. The termination letter was replete with language that reflected the Employee’s disability as a factor in its decision to discharge him. The letter from the head of the road department indicated that the Employee could not perform the essential functions and duties of his job; that after the seizure incident the county had sufficient concerns about his medical condition to request an independent medical examination; and that the Employee’s condition prevented him from performing his duties and imposed a threat to the safety of co-workers and the public. The county attempted to rely on statements in the decision of the Board of Commissioners – indicating that the Employee’s termination was justified because of his misconduct by acting irresponsibly and recklessly in driving heavy machinery with knowledge that he could have a seizure while doing so – to support its argument that its reason for the adverse employment action was legitimate and nondiscriminatory. However, the appellate court concluded that the Employee’s disability was a motivating factor in the termination decision, and that is enough to support the claim of discrimination.

The court of appeals also concluded that there was a triable issue of fact regarding whether the Employee was qualified to do his job with or without reasonable accommodation. The Employee requested accommodation in three ways (1) a temporary change in his duties; (2) reassignment to a new position; or (3) the use of accumulated sick leave or medical leave without pay. The court rejected the request for job restructuring, noting that the ADA did not require an employer to exempt an employee from performing essential functions or to reallocate essential functions to another employee. On the possibility of job reassignment, the county pointed out that there were no other available positions for which the Employee was qualified at the time of termination. However, after reviewing cases in another federal circuit, the Ninth Circuit Court of Appeals adopted the rule that, in considering reassignment as a reasonable accommodation, an employer must consider not only positions that are available at the time of termination, but also those that will become available within a reasonable period of time.

On the question of using unpaid medical leave, the court observed that the county should have considered that option as a possible reasonable accommodation.

In responding to the seizure incident, the Employer was not wrong in attempting to learn more about the Employee’s condition. However, the Employer failed to initiate an interactive process for the purpose of determining possible reasonable accommodations. In this case, it seemed as though the Employer wanted to create a record on which to base a decision to discharge the Employee based on his medical condition, without regard to how that condition actually affected his ability to do his job. Surprisingly, the county’s termination letter was brutally candid about why the Employee was being discharged. Having made that decision without really exploring the possibility of reasonable accommodation, the Employer doomed its ability to defeat the ADA claims before trial.

1 Though ADA claims in California courts occur less frequently than claims involving violations of California’s Fair Employment & Housing Act, the principles discussed in this decision are still quite helpful in understanding the proper handling of a claim of disability discrimination. Therefore, we believe the case is still very instructive.