Termination for Disability-Related Conduct Is Not Legitimate Non-Discriminatory Reason for Action

The plaintiff had epilepsy and suffered from seizures.???? He ?worked ?as ?a ?heavy ?equipment operator for a county government in Oregon for 16 years.? ?One morning he had an aura, which is followed by a seizure about ? of the time. ?Later that ?day ?he? suffered ?a ?seizure ?while ?driving? a county vehicle. ?The County requested he undergo a medical examination, which concluded that he had poorly controlled epilepsy and shouldn?t work around? moving? machinery.?? ?The? County? then fired him because he could not perform the essential ?functions ?of? his ?position ?and ?was ?a direct threat to others.?? ?He appealed his termination to the Board of Commissioners who concluded that he had acted recklessly by driving after having an aura.?? He filed a suit alleging disability discrimination and failure to accommodate.? ?The district court granted the employer?s motion for summary judgment. ?The Ninth Circuit reversed. Judge O?Scannlain held that there was a factual question whether the County?s original decision relying on disability rather than the Board?s decision relying on misconduct was the operative one.?? The panel concluded?? that? ?it? ?ultimately? ?did?? not? ?matter because there was no question the plaintiff?s misconduct ?resulted ?from? the ?disability.?? ?The court held that an employer?s proffered reason for a termination of a disabled employee is legitimate only where it disclaims any reliance on the employee?s disability in having taken the employment action. ?Here, the court held that the termination for misconduct constituted termination because of disability.? As to failure to accommodate, the court held the evidence established as a matter of law the plaintiff could not perform his prior job, but that the County had failed to engage in the interactive process for accommodation ?by ?reassignment.???? The ?Court held that an employer must consider not only those jobs that are currently available but also those that will be available within a reasonable period of time.? ?The court also held that there was the possibility of accommodation through leave of absence. ?Judge O?Scannlain rejected the employer?s argument that there is no duty to accommodate an employee who does not control his disability and fails to meet his employers legitimate job expectations. ?He wrote ?our court has not taken an approach as unforgiving as? the Seventh ?and ?Eighth ?Circuits.?Dark ?v. ?Curry?County, 451 F.3d 1078 (9th Cir. 2006).