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).