Dark v. Curry County, 451 F.3d 1078 (9th Cir. 2006)

Robert Dark, an epileptic since the age of 16, worked as a maintenance and construction worker for Curry County, Oregon for approximately 16 years. Among other things, Dark operated heavy equipment such as construction vehicles for the County. On the morning of January 15, 2002, Dark experienced an “aura” (a “nervous jerk”) that signaled to Dark he might have a seizure that day – approximately half of the time after experiencing an aura, Dark would have a seizure. Despite this warning, Dark reported for work as scheduled and failed to inform anyone of the possibility of his suffering an epileptic seizure. Later that day, Dark suffered a seizure and fell unconscious while driving a County pickup truck. Dark’s passenger, another County employee, was able to gain control of the truck before anyone was injured. Following a disciplinary hearing, Dark’s employment was terminated on the ground that he could not perform the essential functions of his position and that his continued employment posed a threat to the safety of others. Dark filed a lawsuit under the Americans with Disabilities Act (ADA), alleging discrimination on the basis of a disability. The district court granted the County’s motion for summary judgment, but the Court of Appeals reversed after observing that the County had offered “two divergent explanations” for Dark’s termination: (1) inability to perform the essential functions of the job and (2) misconduct associated with operating the truck in total disregard of the safety of himself and others. The Court concluded the “summary judgment record is replete with evidence suggesting that ‘misconduct’ was a pretext for discrimination on the basis of a disability” and that a genuine issue of material fact existed as to whether a reasonable accommodation could have been provided to Dark. Cf. Teichert Constr. v. Cal-OSHA, 140 Cal. App. 4th 883 (2006) (Cal-OSHA regulation requiring hauling and earth moving operations to “be controlled” was not unreasonably vague).

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Photo of Tony Oncidi Tony Oncidi

Anthony J. Oncidi is the co-chair of the Labor & Employment Law Department and heads the West Coast Labor & Employment group in the firm’s Los Angeles office.

Tony represents employers and management in all aspects of labor relations and employment law, including…

Anthony J. Oncidi is the co-chair of the Labor & Employment Law Department and heads the West Coast Labor & Employment group in the firm’s Los Angeles office.

Tony represents employers and management in all aspects of labor relations and employment law, including litigation and preventive counseling, wage and hour matters, including class actions, wrongful termination, employee discipline, Title VII and the California Fair Employment and Housing Act, executive employment contract disputes, sexual harassment training and investigations, workplace violence, drug testing and privacy issues, Sarbanes-Oxley claims and employee raiding and trade secret protection. A substantial portion of Tony’s practice involves the defense of employers in large class actions, employment discrimination, harassment and wrongful termination litigation in state and federal court as well as arbitration proceedings, including FINRA matters.

Tony is recognized as a leading lawyer by such highly respected publications and organizations as the Los Angeles Daily JournalThe Hollywood Reporter, and Chambers USA, which gives him the highest possible rating (“Band 1”) for Labor & Employment.  According to Chambers USA, clients say Tony is “brilliant at what he does… He is even keeled, has a high emotional IQ, is a great legal writer and orator, and never gives up.” Other clients report:  “Tony has an outstanding reputation” and he is “smart, cost effective and appropriately aggressive.” Tony is hailed as “outstanding,” particularly for his “ability to merge top-shelf lawyerly advice with pragmatic business acumen.” He is highly respected in the industry, with other commentators lauding him as a “phenomenal strategist” and “one of the top employment litigators in the country.”

“Tony is the author of the treatise titled Employment Discrimination Depositions (Juris Pub’g 2020; www.jurispub.com), co-author of Proskauer on Privacy (PLI 2020), and, since 1990, has been a regular columnist for the official publication of the Labor and Employment Law Section of the State Bar of California and the Los Angeles Daily Journal.

Tony has been a featured guest on Fox 11 News and CBS News in Los Angeles. He has been interviewed and quoted by leading national media outlets such as The National Law JournalBloomberg News, The New York Times, and Newsweek and Time magazines. Tony is a frequent speaker on employment law topics for large and small groups of employers and their counsel, including the Society for Human Resource Management (“SHRM”), PIHRA, the National CLE Conference, National Business Institute, the Employment Round Table of Southern California (Board Member), the Council on Education in Management, the Institute for Corporate Counsel, the State Bar of California, the California Continuing Education of the Bar Program and the Los Angeles and Beverly Hills Bar Associations. He has testified as an expert witness regarding wage and hour issues as well as the California Fair Employment and Housing Act and has served as a faculty member of the National Employment Law Institute. He has served as an arbitrator in an employment discrimination matter.

Tony is an appointed Hearing Examiner for the Los Angeles Police Commission Board of Rights and has served as an Adjunct Professor of Law and a guest lecturer at USC Law School and a guest lecturer at UCLA Law School.