Dark v. Curry County

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROBERT DARK, 

Plaintiff-Appellant,

v. No. 04-36087

D.C. No.

CURRY COUNTY; CURRY COUNTY

ROAD DEPARTMENT; DAN CRUMLEY,  CV-03-03041-

individually and in his official JPC/ALA

capacity as Curry County OPINION

Roadmaster,

Defendants-Appellees.



Appeal from the United States District Court

for the District of Oregon

Ann L. Aiken, District Judge, Presiding

Argued and Submitted

December 6, 2005—Portland, Oregon

Filed July 6, 2006

Before: Dorothy W. Nelson, Diarmuid F. O’Scannlain,

Circuit Judges, and Larry A. Burns,* District Judge.

Opinion by Judge O’Scannlain

*The Honorable Larry A. Burns, District Judge for the Southern District

of California, sitting by designation.

7451

7456 DARK v. CURRY COUNTY

COUNSEL

Manuel C. Hernandez, Hernandez and Associates, LLC, Ban-

don, Oregon, argued the cause for the appellant and was on

the briefs.

Jason M. Montgomery, Law Office of Robert E. Franz, Jr.,

Springfield, Oregon, argued the cause for the appellee and

was on the brief. Robert E. Franz, Jr. was also on the brief.

OPINION

O’SCANNLAIN, Circuit Judge:

We are asked to review a summary judgment dismissal of

a claim by an epileptic heavy-equipment operator for a county

road department under the Americans with Disabilities Act.

I

From the age of 16, Robert Dark has suffered from epi-

lepsy. He controls the condition with medication but still

endures the occasional seizure which is usually preceded by

a physical manifestation called an “aura.” An aura is “akin to

a nervous jerk”; it indicates “the potential for a seizure on the

day of the aura,” typically no sooner than one hour later. Dark

says that a seizure follows an aura approximately half of the

time.

Dark’s employment with the Road Department of Curry

County, Oregon (“the County”) commenced on March 4,

1985. His position, “Maintenance and Construction Worker

III,” required, among other tasks, the operation of heavy

equipment such as construction vehicles. Dark’s employment

record over approximately 16 years reflects satisfactory, at

least, job performance.

DARK v. CURRY COUNTY 7457

On the morning of January 15, 2002, prior to his leaving

for work, Dark experienced an aura. Despite this warning,

Dark reported for work as scheduled and failed to inform any-

one 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. Fortunately, at the time

Dark was operating the vehicle at a very slow rate of speed.

His passenger, another Road Department employee, gained

control of the vehicle and brought it to a safe halt.

In response to this incident, the County requested that Dark

undergo a medical examination. Dr. John Melson, M.D., a

neurologist, performed the examination on March 11, 2002

and concluded that “because of the presence of poorly con-

trolled idiopathic epilepsy, [Dark] should not work in high

places, he should not work around moving machinery where

sudden loss of consciousness would endanger either himself

or others, and this would appear to severely limit him from

the duties of the job described.”

Subsequent to receipt of Dr. Melson’s report, the Road

Department placed Dark on administrative leave. During this

process, Dark’s commercial driver’s licence was also sus-

pended. On April 1, 2002, the Road Department held a disci-

plinary hearing at which Dark was represented by counsel.

Dark admitted to having experienced an aura on the morning

of the incident.

The Road Department terminated Dark’s employment on

April 17, 2002. It communicated its decision in a three-page

letter signed by Daniel P. Crumley, the department’s Road-

master, which concluded that Dark could not perform the

essential functions and duties of his position and that his con-

tinued employment posed a threat to the safety of others.

Dark appealed these findings to the Curry County Board of

Commissioners (“the Board”) and received a hearing on May

22, 2002. On June 26, 2002, the Board affirmed Crumley’s

7458 DARK v. CURRY COUNTY

decision to terminate Dark’s employment. It reasoned that

Dark had “acted irresponsibly, recklessly, and with a total dis-

regard of the safety of himself, other employees, and mem-

bers of the public.”

On November 25, 2002, Dark filed a complaint with the

Equal Employment Opportunity Commission (“EEOC”). Fol-

lowing an investigation, the EEOC determined that the evi-

dence “does not establish a violation of the Americans with

Disabilities Act [(“ADA”)].” See 42 U.S.C. § 12101 et seq.

On March 11, 2003, it declined to sue the County on Dark’s

behalf but permitted him 90 days within which to initiate a

private action.

Thereafter, on May 5, 2003, Dark filed this lawsuit in the

District of Oregon. He sued Curry County, the Road Depart-

ment, and Crumley under the ADA and Oregon’s state-law

equivalent. See OR. REV. STAT. § 659A.100 et seq.1 Dark’s

first claim for relief alleged that the County violated the ADA

by discharging him while refusing reasonably to accommo-

date his disability; his second claim alleged a similar violation

of the Oregon statute. Dark seeks recovery of lost wages,

future wages, humiliation, and loss of reputation, as well as

punitive damages, reinstatement, and attorneys’ fees.

The County filed a motion for summary judgment on

August 16, 2004. The magistrate judge charged with making

a recommendation did not receive a response from Dark

because of an alleged postal error. On September 9, 2004, the

magistrate judge recommended granting the County’s motion.

The district court considered the magistrate’s recommenda-

tion and Dark’s subsequently filed Memorandum in Opposi-

tion to Defendants’ Motion for Summary Judgment and

1

“The standard for establishing a prima facie case of discrimination

under Oregon law is identical to that used under federal law.” Snead v.

Metro. Prop. & Cas. Ins. Co., 237 F.3d 1080, 1087 (9th Cir. 2001), cert.

denied, 534 U.S. 888 (2001).

DARK v. CURRY COUNTY 7459

supporting affidavits. On November 2, 2004, the court

adopted the magistrate’s recommendation and granted the

County’s motion for summary judgment and dismissed

Dark’s lawsuit.

Dark timely appealed.

II

Dark urges that summary judgment was improperly granted

because there are at least three genuine issues of material fact

which entitle him to a jury trial, specifically, with respect to

(1) the reason given for his termination, (2) his qualifications,

and (3) whether he is a “direct threat” to his fellow employees.2

2

We review de novo the district court’s grant of a motion for summary

judgment. Snead, 237 F.3d at 1087. We view the evidence in the light

most favorable to the nonmoving party and then determine whether there

remains a genuine issue of material fact and whether the moving party is

entitled to judgment as a matter of law. FED. R. CIV. P. 56(c); see Nunes

v. Wal-Mart Stores, Inc., 164 F.3d 1243, 1246 (9th Cir. 1999).

The party moving for summary judgment must only allege that there is

an absence of evidence by which the nonmoving party can prove his case.

See Rebel Oil Co., Inc. v. Atlantic Richfield Co., 51 F.3d 1421, 1435 (9th

Cir. 1995). The nonmoving party may not rest upon the mere allegations

or denials in the pleadings. See FED. R. CIV. P. 56(e). Still, “[t]he burden

on the nonmoving party is not a heavy one; the nonmoving party simply

is required to show specific facts, as opposed to general allegations, that

present a genuine issue worthy of trial.” 10A WRIGHT, MILLER & KANE,

FEDERAL PRACTICE AND PROCEDURE, Civil 3d § 2727 (1998).

On a contested factual issue, “[i]f the moving party shows that there is

an absence of evidence to support the plaintiff’s case, the nonmoving party

bears the burden of producing evidence sufficient to sustain a jury verdict

on those issues for which it bears the burden at trial.” Atlantic Richfield

Co., 51 F.3d at 1435 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 324

(1986)). Conversely, summary judgment is inappropriate where there are

genuine factual issues that may reasonably be resolved in favor of either

party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).

In this case, the County can prevail only if it can show that no reason-

able jury would infer from Dark’s evidence that he has stated a valid claim

under the ADA.

7460 DARK v. CURRY COUNTY

A

Dark first contends that there is a genuine issue of material

fact as to whether the County demonstrated a legitimate, non-

discriminatory reason for his termination. The County

responds that “[t]here is no dispute that the plaintiff did

engage in misconduct by driving with knowledge of the risk

he posed, and without warning any coworkers of the danger

he presented.” Thus, the County argues that Dark’s termina-

tion resulted from misconduct or a failure to meet legitimate

job expectations.

1

[1] The County alleged in its motion for summary judge-

ment that there are no disputed facts with respect to the reason

for Dark’s termination. But we find some difficulty with this

assertion because the record includes two divergent explana-

tions.

[2] The first explanation for Dark’s termination is the letter

of April 17, 2002, in which Crumley explained his decision

in terms of Dark’s alleged lack of fitness to perform the duties

of the position. In relevant part, the letter stated:

The allegation that you cannot perform the essential

functions and duties of the job of Maintenance and

Construction Worker III as described is substanti-

ated. . . .

....

Following your on the job seizure on 1/15/02, the

County had sufficient concerns regarding your medi-

cal condition to request an independent Neurologist

to evaluate you. . . .

....

DARK v. CURRY COUNTY 7461

. . . I accept Dr. Melson’s findings that because of

the presence of poorly controlled idiopathic epi-

lepsy, you should not work around moving

machinery . . . . That would prevent you from per-

forming the basic work functions outlined in your

job description.

....

. . . I believe a “seizure free” condition is critical

for workers in your occupation. . . . [Y]our condition

in my opinion prevents you from performing your

duties . . . . It is also my conclusion that allowing

you to work in your present job for Curry County

would impose a threat to the safety and lives of your

coworkers and the public.

(Emphases added.) True, the letter also details aspects of the

January 15, 2002, incident. But nowhere does Crumley state

that Dark’s driving the pickup truck despite the aura was an

independent reason for the termination.

[3] The second explanation, “misconduct,” is contained in

the Board’s order of June 26, 2002. After reciting the relevant

facts, the Board reasoned:

By operating the truck and heavy equipment on Jan-

uary 15, 2002, Mr. Dark knowingly put the safety of

himself, co-workers and the general public in jeop-

ardy.

Now, therefore, it is hereby ordered that Dan

Crumley’s decision to terminate the employment of

Robert Dark is hereby affirmed for the reason that on

January 15, 2002, Robert Dark acted irresponsibly,

recklessly, and with a total disregard of the safety of

himself, other employees, and members of the public

....

7462 DARK v. CURRY COUNTY

The County, in effect, asserts that the Board’s rationale was

the only legally relevant reason for Dark’s termination.

[4] The County, however, provides no explanation as to

why we should accept such contention. To the contrary, we

think that the role of the Board was simply to entertain the

appeal of an already-completed termination. As noted in the

Board’s order affirming the termination, “[p]ursuant to the

Curry County Personnel rules, the Board’s mandate was to

‘deliberate and reach a decision to affirm, modify or deny the

disciplinary action.’ ” The termination letter also considered

Dark’s firing to have been a completed act. Regarding Dark’s

appeal to the Board, the letter stated, “The appeal must be in

writing. . . . It must also specify why you believe the dismissal

was not in good faith, for cause or was in error.” (Emphases

added.) And at oral argument, counsel for the County con-

ceded that the effective date of Dark’s termination was April

17, 2002, the date of Crumley’s termination letter. Thus, the

legally relevant action had already been accomplished before

the Board took cognizance of Dark’s appeal.

2

[5] Of course, even were we to treat the Board’s decision

as the legally operative one, the reason given for Dark’s ter-

mination must actually constitute a valid nondiscriminatory

explanation, i.e., one that “disclaims any reliance on the

employee’s disability in having taken the employment

action.” Snead, 237 F.3d at 1093.

[6] While courts have indeed “recognized a distinction

between termination of employment because of misconduct

and termination of employment because of a disability,” Col-

lings v. Longview Fibre Co., 63 F.3d 828, 832 (9th Cir. 1995)

(citation omitted), there is an important caveat. “[W]ith few

exceptions, conduct resulting from a disability is considered

to be part of the disability, rather than a separate basis for ter-

mination.” Humphrey v. Mem’l Hosps. Ass’n, 239 F.3d 1128,

DARK v. CURRY COUNTY 7463

1139-40 (9th Cir. 2001).3 The County does not argue that

Dark’s “misconduct” resulted from other than his disability.4

Thus, the Board’s explanation, as a matter of law, fails to

qualify as a legitimate, nondiscriminatory explanation for

Dark’s discharge.

3

Even if the Board’s explanation were legitimate and non-

discriminatory, we must still must consider it in light of the

ADA’s standard of causation.

[7] As noted, the County urges us to credit only the ratio-

nale provided by the Board of Commissioners, which was that

the Road Department terminated Dark because of his “mis-

conduct.” But the ADA does not require that a discriminatory

impetus have been the only motive for an adverse employ-

ment action. See Head v. Glacier Northwest Inc., 413 F.3d

1053, 1065 (9th Cir. 2005); Baird ex rel. Baird v. Rose, 192

F.3d 462, 469 (4th Cir. 1999); Foster v. Arthur Andersen,

3

One of those exceptions is the ADA’s explicit authorization for dis-

charge on the basis of alcoholism and illegal drug use, 42 U.S.C.

§ 12114(c)(4), and the Humphrey court, in fact, distinguished Collings on

that basis. Id. at 1139 n.18. Clearly that exception is inapplicable here.

In Newland v. Dalton, 81 F.3d 904 (9th Cir. 1996), we suggested that

an additional exception might apply in the case of “egregious and criminal

conduct” regardless of whether the disability is alcohol- or drug-related.

See id. at 906 (“Attempting to fire a weapon at individuals is the kind of

egregious and criminal conduct which employees are responsible for

regardless of any disability.”). Again, clearly that exception is inapplicable

here.

4

The County does appear to argue that Dark’s misconduct, if not result-

ing from his disability, stemmed from his failure to take proper precau-

tions in light of his disability. But an employer could just as easily say that

excessive absenteeism was caused by an employee’s failure to arrive at

work regardless of his migraine headaches, see Kimbro v. Atlantic Rich-

field Co., 889 F.2d 869, 875 (9th Cir. 1990), or regardless of his obsessive

compulsive disorder, see Humphrey, 239 F.3d at 1140. Thus, we think that

the case law does not sustain this distinction.

7464 DARK v. CURRY COUNTY

LLP, 168 F.3d 1029, 1033-34 (7th Cir. 1999); McNely v.

Ocala Star-Banner Corp., 99 F.3d 1068, 1076 (11th Cir.

1996). Rather, “the ADA outlaws adverse employment deci-

sions motivated, even in part, by animus based on a plaintiff’s

disability or request for an accommodation—a motivating

factor standard.” Head, 413 F.3d at 1065 (emphases added).

[8] Causation is a factual inquiry, and we are satisfied that

there is record evidence sufficient that a jury could reasonably

find that Dark was terminated for an impermissible reason. In

addition to the April 17, 2002, termination letter, we consider

relevant the documentation Dark provided, in an affidavit

dated September 6, 2004, of six separate accidents for which

other Road Department workers went undisciplined. See Col-

lings, 63 F.3d at 834. Such evidence gives rise to a genuine

issue of material fact as to whether Dark’s disability was a

motivating factor for his termination.

4

[9] Even if the County had cleared each of the foregoing

hurdles, summary judgment is also inappropriate if Dark has

shown, by “specific, substantial evidence,” that the Board’s

explanation was mere pretext. See id. at 834. Dark must have

availed himself of

“the opportunity to demonstrate that the proffered

reason was not the true reason for the employment

decision. This burden now merges with the ultimate

burden of persuading the court that [he] has been the

victim of intentional discrimination. [He] may suc-

ceed in this either directly by persuading the court

that a discriminatory reason more likely motivated

the employer or indirectly by showing that the

employer’s proffered explanation is unworthy of cre-

dence.”

Snead, 237 F.3d at 1093-94 (quoting Texas Dept. of Commu-

nity Affairs v. Burdine, 450 U.S. 248, 256 (1981)).

DARK v. CURRY COUNTY 7465

[10] The summary judgment record is replete with evidence

suggesting that “misconduct” was a pretext for discrimination

on the basis of disability. First, Dark was not immediately ter-

minated after the January 15, 2002, accident, but rather was

subjected to a medical examination to determine his fitness

for the position. The report generated was entitled, “Fitness to

Work Evaluation Report.” As Dark aptly stated, the County

“did not need a doctor’s opinion to assess whether Plaintiff

had engaged in misconduct.” The record also provides direct

evidence of the County’s motivation for seeking this examina-

tion. The April 17, 2002, termination letter stated, “Following

your on the job seizure on 1/15/02, the County had sufficient

concerns regarding your medical condition to request an

independent Neurologist to evaluate you.” (Emphasis added.)

[11] Second, the documents explaining Dark’s termination

support an argument for pretext. The letter placing Dark on

administrative leave indicates that the County was concerned

more with Dark’s general condition than the incident of Janu-

ary 15, 2002:

As you can see, [Dr. Melson] has concluded that you

cannot perform the essential functions and duties of

your position of Maintenance and Construction

Worker III. . . . In addition, allowing you to continue

working in your current job for Curry County could

impose a direct threat to the safety and lives of your

fellow employees and other members of the public.

As already discussed, the termination letter also constitutes

substantial evidence suggesting that the “misconduct” ratio-

nale is pretext. In addition, the County itself added to the

summary judgment record other direct evidence of disability

discrimination. In Roadmaster Crumley’s affidavit of August

10, 2004, he states:

A Maintenance and Construction Worker III spends

approximately 65% of his time operating and driving

heavy equipment. . . .

7466 DARK v. CURRY COUNTY

The potential for harm is significant if the worker

suffers a seizure while operating heavy machinery

on public roads. Not only could the plaintiff himself

be hurt by an accident, but also his coworkers or the

public could be injured, even killed, if the plaintiff

had a seizure while driving a truck or heavy

machinery.

(Emphases added.) Crumley’s statements are forward-

looking; they exhibit a concern with Dark’s future ability,

given his epileptic condition, to perform safely the essential

functions of his job. Given the ADA’s standard of causation

and a plaintiff’s opportunity to show pretext, it is clear that a

rationale developed ex post by a reviewing body cannot wipe

away the original discriminatory justification for an employ-

ee’s termination. See, e.g., Hernandez v. Hughes Missile Sys-

tems Co., 362 F.3d 564, 569 (9th Cir. 2004) (“From the fact

that [the employer] has provided conflicting explanations of

its conduct, a jury could reasonably conclude that its most

recent explanation was pretextual.” (citations omitted)).

[12] Third, Dark’s showing of pretext is bolstered by com-

parative evidence. As already noted, the record includes docu-

mentation of similar accidents for which other workers went

undisciplined. In response, the County lists several prior inci-

dents in which Dark was involved but was not disciplined. Its

point, we gather, is that Dark was treated no differently than

other employees—the County apparently foregoes discipline

for most accidents. And yet in the same breath, in its brief the

County unwittingly explains how a reasonable jury could con-

clude that this evidence actually cuts in Dark’s favor:

The accidents involving other employees were not

seizure-related, and did not give rise to conclusions

that the employees were unfit for duty. Similarly, the

plaintiff’s prior accidents did not result in discipline.

It was not until an accident occurred that was caused

DARK v. CURRY COUNTY 7467

by a seizure, that the plaintiff’s fitness for duty was

called into question.

In other words, the County concedes that this accident was

special because it involved Dark’s disability.

[13] For all of the foregoing reasons, we must conclude that

the County’s evidence of a legitimate, nondiscriminatory

motive does not, standing alone, entitle it to summary judg-

ment.

B

Dark next contends that there is a genuine issue of fact as

to whether he was qualified.

[14] The ADA defines a “qualified individual” as an indi-

vidual “with a disability who, with or without reasonable

accommodation, can perform the essential functions of the

employment position that such individual holds or desires.”

42 U.S.C. § 12111(8) (emphasis added). Dark bears the bur-

den of proving that he is “qualified.” Hutton v. Elf Atochem

North America, Inc., 273 F.3d 884, 892 (9th Cir. 2001). We

must consider whether Dark can perform the job’s essential

functions without reasonable accommodation, and then, if he

cannot, whether he can do so with reasonable accommoda-

tion. See Kaplan v. City of North Las Vegas, 323 F.3d 1226,

1231 (9th Cir. 2003).

1

The term “essential functions” refers to the “fundamental

job duties of the employment position the individual with a

disability holds or desires.” It does not “include the marginal

functions of the position.” 29 C.F.R. § 1630.2(n)(1). A job

function may be considered “essential” for various reasons.

See id. § 1630.2(n)(2)(i)—(iii). The statute provides that

“consideration shall be given to the employer’s judgment as

7468 DARK v. CURRY COUNTY

to what functions of the job are essential, and if an employer

has prepared a written description before advertising or inter-

viewing applicants for the job, this description shall be con-

sidered evidence of the essential functions of the job.” 42

U.S.C. § 12111(8); see also 29 C.F.R. § 1630.2(n)(3) (requir-

ing consideration of the amount of time spent performing the

function).

Here, the County, in a September 1995 document entitled

“Job Description,” lists the “essential duties” of Dark’s posi-

tion as follows:

Operates grader, dozer, excavator, asphalt distribu-

tor, chip spreader, 18-wheel self-loading low boy

and ditchmaster.

Operates dump trucks, front-wheel loaders, brush

cutters, rollers, backhoe, water tankers and truck

mounted snow plows.

Performs minor blasting for road maintenance proj-

ects. Includes blasting rocks and opening plugged

culverts.

Performs manual labor associated with building

fences, cleaning culverts, traffic control, pot hole

patching, bridge repair, tree trimming, brush cuffing,

etc.

Maintains equipment by lubricating and making

minor repairs.

Trains employees in lower classifications in the

operation of heavy equipment.

The document also states that one of the aspects that “distin-

guishe[s the position] from lower classifications . . . [is] the

emphasis on the operation of heavy equipment.” This is valid

DARK v. CURRY COUNTY 7469

evidence of the essential functions of Dark’s position with the

Road Department.

To prove Dark is unqualified, the County points to the vari-

ous heavy machines and vehicles that Dark would be required

to operate and around which he would be required to work.

It contends that an employee in Dark’s former position would

spend approximately 65% of his time operating such heavy

equipment.

Dark does not contest the County’s judgment that the oper-

ation of heavy machinery is an essential function of the posi-

tion. Instead, Dark insists that he is indeed qualified to

perform such function. He points out that he has suffered only

one on-the-job epileptic episode during more than 16 years

with the Road Department. Moreover, he says, it was only a

change in his medication that caused the January 15, 2002,

seizure, and two physicians now recommend that Dark return

to work “with minimal or no restrictions.” Dark, in sum,

rejects Dr. Melson’s findings and claims that his seizures are

“again under control.”

Had Dark’s treating physicians opined that Dark was fit to

operate heavy machinery at the time of his firing, this perhaps

would have given rise to a genuine issue of material fact as

to his qualifications without reasonable accommodation. See,

e.g., Fredenburg v. Contra Costa County Dept. of Health

Servs., 172 F.3d 1176, 1179 (9th Cir. 1999). But the physi-

cians actually recommended Dark’s return to work following

a period of observation during which he could adjust to the

change in his medication. Dark provides no evidence that his

seizures were under control at the time of his termination.

2

[15] Such dearth of evidence leads to the question of

whether Dark was qualified with reasonable accommodation.

The ADA’s definition of discrimination includes “not making

7470 DARK v. CURRY COUNTY

reasonable accommodations to the known physical or mental

limitations of an otherwise qualified individual with a disabil-

ity . . . unless such covered entity can demonstrate that the

accommodation would impose an undue hardship on the oper-

ation of the business.” 42 U.S.C. § 12112(b)(5)(A); accord

Morton v. United Parcel Serv., Inc., 272 F.3d 1249, 1252 (9th

Cir. 2001).5

a

Dark has the burden of showing the existence of a reason-

able accommodation that would have enabled him to perform

the essential functions of an available job. See Zukle v.

Regents of University of California, 166 F.3d 1041, 1046 (9th

Cir. 1999) (citation omitted). To avoid summary judgment,

however, Dark “need only show that an ‘accommodation’

seems reasonable on its face, i.e., ordinarily or in the run of

cases.” U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 401-02

(2002) (emphasis added).

[16] In addition, our cases make clear that the County bore

an affirmative obligation to engage in an interactive process

in order to identify, if possible, a reasonable accommodation

that would permit Dark to retain his employment. See Allen

v. Pacific Bell, 348 F.3d 1113, 1115 (9th Cir. 2003) (per

curiam) (citing Humphrey, 239 F.3d at 1137-39); Morton, 272

F.3d at 1256 (explaining that summary judgement is available

only where there is no genuine dispute that the employer has

engaged in the interactive process in good faith); Nunes, 164

F.3d at 1248-49 (reversing summary judgment because, inter

alia, “the record contains no evidence that [the employer]

considered any at-work accommodations to reduce the risks

it feared” (citation omitted)); see also 29 C.F.R.

§ 1630.2(o)(3) (“To determine the appropriate reasonable

accommodation it may be necessary for the covered entity to

5

The County does not argue on appeal that any of the accommodations

proposed by Dark would have presented an undue hardship to its business.

DARK v. CURRY COUNTY 7471

initiate an informal, interactive process with the qualified

individual with a disability in need of the accommodation.”).

Because the County did not engage in any such process, sum-

mary judgment is available only if a reasonable finder of fact

must conclude that “there would in any event have been no

reasonable accommodation available.” Morton, 272 F.3d at

1256 (citation omitted).

b

Here, the record indicates that Dark requested accommoda-

tion through either (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.

Dark’s accommodation proposals are based on his argu-

ment that his uncontrolled epilepsy was temporary. Dark

argues—with the concurrence of his treating physicians—that

he could safely resume all functions of his job upon complet-

ing the transition to his new medication. Though Dr. Melson,

the County’s physician, doubted Dark’s overall fitness, he

also acknowledged the relevance of Dark’s “medication

adjustments.” At the least, Dark has raised a genuine issue of

material fact as to his qualifications post-adjustment. In this

light, we consider whether a reasonable juror could find that

any of the accommodations proposed by Dark were reason-

able and available.

i

[17] Regulations under the ADA provide that “job restruc-

turing” may be a “reasonable accommodation” required of the

employer. 29 C.F.R. § 1630.2(o)(2)(ii). Dark argues that the

transport of heavy machinery consumed only two to three per-

cent of Dark’s work time, and thus there is a genuine issue of

fact as to whether this was an essential function. For the 40

days during which Dark’s commercial driver’s license was

suspended, he argues, this function could have been reallo-

7472 DARK v. CURRY COUNTY

cated to another employee. The County, however, considers

this argument a red herring; whether Dark should be made to

drive on the public roads is beside the point when the job’s

essential function is the operation of heavy equipment, occu-

pying 65% of total work time.

[18] The ADA does not require an employer to exempt an

employee from performing essential functions or to reallocate

essential functions to other employees. See 29 C.F.R. Part

1630, App. (“An employer or other covered entity may

restructure a job by reallocating or redistributing nonessential,

marginal job functions.”); Phelps v. Optima Health, Inc., 251

F.3d 21, 26 (1st Cir. 2001). The County thus need not restruc-

ture Dark’s position by exempting him from the essential duty

of operating heavy machinery. Dark has not shown job

restructuring was an available option.

ii

[19] Then there is the possibility of reassignment. Dark is

a qualified individual under the ADA if he can “perform the

essential functions of a reassignment position, with or without

reasonable accommodation, even if [he] cannot perform the

essential functions of the current position.” Hutton, 273 F.3d

at 892; see also 42 U.S.C. § 12111(9) (noting that reasonable

accommodation may include reassignment to a vacant posi-

tion).

As noted, Dark offered the possibility of “[r]eassignment to

a vacant position, either temporary or permanent,” and alleges

that the “evidence shows [that] there were a number of open

positions for which [he] was qualified around the time of his

discharge.”6 The County does not reject the possibility of

6

Dark suggests he could have been reassigned to “weed control, flag-

ging, clerical, mechanic, data entry, reception, surveyor assistant, building

maintenance, and sign making.” As to Dark’s qualifications for these posi-

tions, the record indicates that his only limitation pertained to the possibil-

ity of injury should he become unconscious. Save flagging, there is no

such danger inherent in any of the proposed reassignments.

DARK v. CURRY COUNTY 7473

reassignment, but merely points out that the affidavit serving

as Dark’s evidence for the availability of reassignment states

only that certain positions “have become available” since his

termination, not that they were available at that time.

[20] Dark’s response is to cite two Tenth Circuit cases,

Smith v. Midland Brake, Inc., 180 F.3d 1154 (10th Cir. 1999),

and Boykin v. ATC/Vancom of Colorado, L.P., 247 F.3d 1061

(10th Cir. 2001). These cases hold that vacant positions to

which a disabled employee may be reassigned include those

“that the employer reasonably anticipates will become vacant

in the fairly immediate future.” Midland Brake, 180 F.3d at

1175 (citation omitted).

[21] The proposition Dark advances is consistent with our

previous holding that “the duty to accommodate is a continu-

ing duty that is not exhausted by one effort.” Humphrey, 239

F.3d at 1138. It is also contemplated within the EEOC guide-

lines. See 29 C.F.R. Part 1630, App. (advising that reassign-

ment is reasonable “if the position is vacant within a

reasonable amount of time,” which “should be determined in

light of the totality of the circumstances”). We adopt the

Tenth Circuit’s rule: in considering reassignment as a reason-

able accommodation, an employer must consider not only

those contemporaneously available positions but also those

that will become available within a reasonable period. There-

fore, we conclude that there is a genuine issue of material fact

as to whether Dark could have been accommodated through

reassignment.7

7

Dark does not specify when these jobs became available, except that

they became available since his termination—sometime between April 17,

2002, and September 6, 2004 (the date of his affidavit). In at least one

prior case, we have not required any greater specificity. See McGregor v.

Nat’l R.R. Passenger Corp., 187 F.3d 1113, 1115 (9th Cir. 1999) (“But

Amtrak’s own expert stated that in 1995 and 1996 there were twelve

‘appropriate openings’ for which McGregor was qualified despite her dis-

ability.”).

7474 DARK v. CURRY COUNTY

iii

Finally, Dark argues that the County could have reasonably

accommodated his disability by allowing his use of accumu-

lated sick leave or unpaid medical leave. He claims to have

offered the use of his 712 hours (89 days) of accumulated sick

leave “until the seizure issue could be resolved” by the adjust-

ment of his medication levels. On appeal, the County’s

response is simply to assert that the ADA does not require

their agreement to this proposal.

[22] In Nunes, we held that “[u]npaid medical leave may be

a reasonable accommodation under the ADA. . . . Even an

extended medical leave, or an extension of an existing leave

period, may be a reasonable accommodation if it does not

pose an undue hardship on the employer.” 164 F.3d at 1247;

see also 29 C.F.R. Part 1630, App. (stating that a reasonable

accommodation “could include permitting the use of accrued

paid leave or providing additional unpaid leave for necessary

treatment”); Humphrey, 239 F.3d at 1135-36 (holding that an

employee need not show that the proposed medical leave is

“certain or even likely to be successful” (citing Kimbro, 889

F.2d at 879)).8

[23] Although recovery time of unspecified duration may

not be a reasonable accommodation (primarily where the

employee will not be able to return to his former position and

cannot state when and under what conditions he could return

to work at all), see Taylor v. Pepsi-Cola Co., 196 F.3d 1106

(10th Cir. 1999), the County was obligated to consider this

8

The facts of Nunes are a significant parallel to those here: an otherwise

satisfactory employee suffered fainting spells on the job, and the employee

sought a leave of absence in order to gain control over the condition by

learning stress reduction techniques to control her symptoms. See 164 F.3d

at 1245-47; see also Kimbro, 889 F.2d at 879 (holding that an employee

who suffered from migraine episodes was justified in requesting a tempo-

rary leave of absence as an accommodation for his disability where the

leave would have allowed his doctor to formulate an effective treatment).

DARK v. CURRY COUNTY 7475

option under the particular circumstances of Dark’s case. As

such, there remains a genuine issue of material fact as to

whether Dark could reasonably have been accommodated by

his request for leave sufficient to permit his transition to new

medication.9

9

The County objects to this entire line of analysis, arguing that accom-

modation of Dark would be per se unreasonable. It argues that “[i]f an

employee does not control his disability and fails to meet the employer’s

legitimate job expectations, the employer may lawfully terminate the

employee’s employment.” For this proposition, the County cites Siefken v.

Village of Arlington Heights, 65 F.3d 664 (7th Cir. 1995), in which a

municipality permissibly terminated a police officer’s employment

because he failed to control his diabetes, and Hill v. Kansas City Area

Transp. Auth., 181 F.3d 891 (8th Cir. 1999), in which a municipality fired

a bus driver who fell asleep twice on the job due to a combination of med-

ications she was taking to control hypertension.

We think that those cases are distinguishable. Hill requested, as an

accommodation, “a drug screening that would have identified a combina-

tion of pain and hypertension medications that would not cause drowsi-

ness.” The court considered this request unreasonable because it “was not

within her employer’s control. . . . [The employer] controlled Hill’s work

conditions, but it was not her doctor or pharmacist.” Id. Dark, in contrast,

requests accommodations that are very much within the County’s control,

e.g., reassignment or medical leave. In the same vein, Dark, unlike Sief-

ken, actually needs an accommodation and requests a change in the ordi-

nary terms and conditions of his work—not simply a “second chance” to

change his own behavior. See 65 F.3d at 666-67. Moreover, Dark, unlike

Hill, did not “ignore[ ] the problem until [his] work performance war-

ranted discharge.” Hill had repeated work attendance problems due to her

oversleeping and was twice found asleep on her bus. Id. at 893. Dark sim-

ply encountered a single work-related episode due to a temporary change

in his medication.

In any case, Nunes demonstrates that our court has not taken an

approach as unforgiving as that exhibited in these cases from the Seventh

and Eight Circuits. See 164 F.3d at 1245-47; see also Humphrey, 239 F.3d

at 1137 (“It would be inconsistent with the purposes of the ADA to permit

an employer to deny an otherwise reasonable accommodation because of

past disciplinary action taken due to the disability sought to be accommo-

dated.”). We therefore reject the County’s argument.

7476 DARK v. CURRY COUNTY

3

[24] We are satisfied that there remains a genuine issue of

material fact as to whether Dark was qualified with reason-

able accommodation.

C

[25] Finally, Dark contends that there is a genuine issue of

material fact as to whether he poses a “direct threat” to the

safety of others. Under the ADA, an employer is entitled to

defend the adverse employment action on the ground that “an

individual [poses] a direct threat to the health or safety of

other individuals in the workplace.” 42 U.S.C. § 12113(b).

For purposes of this summary judgment motion, it matters

not whether we consider the County’s asserted defense under

the rubric of “direct threat” or “business necessity.” See gen-

erally Morton, 272 F.3d at 1258-61 (citations omitted) (distin-

guishing the two defenses and explaining the scope of each).

We need only point out that both defenses incorporate a

requirement that the qualification standards be incapable of

modification through a reasonable accommodation that would

permit the disabled employee to meet those standards. See 42

U.S.C. § 12113(a); Morton, 272 F.3d at 1262-63; Hutton, 273

F.3d at 893.

[26] Thus, we must conclude that the County’s defense suf-

fers from the very same defect that foreclosed summary judg-

ment on the “qualified individual” issue. See supra Part II.B.

As we have already determined, there remains a genuine

question of material fact as to whether a reasonable

accommodation—such as temporary reassignment or the use

of medical leave—could have eliminated the need for applica-

tion of the “seizure-free” requirement resulting in Dark’s ter-

mination. The County has not met its burden and is therefore

not entitled to the defense on summary judgment.

DARK v. CURRY COUNTY 7477

III

Whatever the ultimate success of Dark’s ADA claim on the

merits, we conclude that he is entitled to a jury trial and that

the County is not entitled to summary judgment.

REVERSED and REMANDED.