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Conservative judge issues seriously pro-employee decision
July 08, 2006 by Ross Runkel at LawMemo
When a conservative judge issues a seriously pro-employee decision, I take notice.
The judge: Diarmuid O'Scannlain, 9th Circuit.
The case: Dark v. Curry County (9th Cir 07/06/2006).
Robert Dark, an epileptic, drove heavy equipment for the County. After having a seizure while driving, the County fired him.
Dark sued under the Americans with Disabilities Act (ADA) and the Oregon counterpart. The trial court threw it out, and the 9th Circuit reversed, writing a roadmap for lawyers dealing with disability discrimination.
Bottom line: There were genuine issues of material fact that need to be decided by a jury.
Fact One: Did the County demonstrate a legitimate, non-discriminatory reason for discharging Dark?
The employer gave two reasons for the discharge. The initial letter of discharge said that his "condition ... prevents you from performing your duties." Later, the County Board issued an order saying that Dark acted irresponsibly and recklessly. Even the second reason would not fly because "conduct resulting from a disability is considered to be part of the disability." Plus, Dark filed an affidavit saying that six other employees were not disciplined when they had accidents.
Fact Two: Pretext. Was "misconduct" just a pretext?
The record was "replete with evidence suggesting 'misconduct' was a pretext" for disability discrimination. Instead of being fired immediately, he was sent for a medical exam. Documentation showed the County was more worried about Dark's general condition than the single incident, and worried about his future ability to perform. Other workers were not disciplined for similar accidents.
Fact Three: Was Dark qualified?
The County did not engage in an interactive process to see whether any of the following accommodations were reasonable and available: (1) Temporary change of duties; (2) Reassignment to a new position; (3) Use of accumulated sick leave or medical leave without pay.
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Editor: Ross Runkel, Professor of Law Emeritus. email Ross@LawMemo.Com, Phone 503-399-8028. Copyright LawMemo, Inc.
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