UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT ________________________ No. 10-15480 _________________________ GERALD D. KIRKISH, Plaintiff-Appellant, v. MESA IMPORTS, INC., Defendant-Appellee. _________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF PLAINTIFF _________________________________________________ P. DAVID LOPEZ General Counsel CAROLYN L. WHEELER Acting Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel BARBARA L. SLOAN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, N.E., 5th Floor Washington, DC 20507 (202) 663-4721 barbara.sloan@eeoc.gov TABLE OF CONTENTS Page(s) TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . iii STATEMENT OF INTEREST. . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF ISSUES. . . . . . . . . . . . . . . . . . . . . . . . . . . 2 STATEMENT OF THE CASE 1. Nature of the Case and Course of Proceedings. . . . . . . . . . . . . 2 2. Statement of Facts. . . . . . . . . . . . . . . . . . . . . . . . 3 3. District Court's Decision. . . . . . . . . . . . . . . . . . . . . . . 9 STANDARD OF REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . 11 SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . 11 ARGUMENT MESA IMPORTS WAS NOT ENTITLED TO SUMMARY JUDGMENT ON ITS AFFIRMATIVE DEFENSE THAT REQUIRING KIRKISH TO DISCLOSE HIS MEDICATIONS WAS A PERMISSIBLE MEDICAL INQUIRY UNDER THE ADA. . . . . . . . . . . . . . . . . . . . .12 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . 25 CERTIFICATE OF SERVICE TABLE OF AUTHORITIES Page(s) Bates v. UPS, 511 F.3d 974 (9th Cir. 2007). . . . . . . . . . . . . . . . . . . . . 13 Coffman v. Indianapolis Fire Dept., 578 F.3d 559 (7th Cir. 2009) . . . . . . . . . . . . . . . . . . . . . 16 Conroy v. New York Dept. of Correctional Services, 333 F.3d 88 (2d Cir. 2003) . . . . . . . . . . . . . . . . . . . . . 15 Cripe v. City of San Jose, 261 F.3d 877 (9th Cir. 2001) . . . . . . . . . . . . . . . . . . 13-14 Fredenberg v. Contra Costa County Dep't of Health Services, 172 F.3d 1176 (9th Cir. 1999). . . . . . . . . . . . . . . . . . . . . 13 Houghton v. South, 965 F.2d 1532 (9th Cir. 1992) . . . . . . . . . . . . . . . . . . . . 11 Indergard v. Georgia-Pacific Corp., 582 F.3d 1049 (9th Cir. 2009) . . . . . . . . . . . . . . . . . . . . .13 Leonel v. American Airlines, 400 F.3d 702 (9th Cir. 2005) . . . . . . . . . . . . . . . . . . . . . 11 Roe v. Cheyenne Mountain Conference Resort, 124 F.3d 1221 (10th Cir. 1997). . . . . . . . . . . . . . . . . . . . .13 Snell v. Bell Helicopter Textron, 107 F.3d 744 (9th Cir. 1997). . . . . . . . . . . . . . . . . . . . . 11 Sullivan v. River Valley School District, 197 F.3d 804 (6th Cir. 2000) . . . . . . . . . . . . . . . 14-15, 16, 20 Tice v. Centre Area Transportation Authority, 247 F.3d 506 (3d Cir. 2001) . . . . . . . . . . . . . . . . . .16, 17, 20 Watson v. City of Miami Beach, 177 F.3d 932 (11th Cir. 1999). . . . . . . . . . . . . . . . . . . . . 15 Wice v. General Motors Corp., No.07-10662, 2008 WL 5235996 (E.D. Mich. Dec. 15, 2008). . . . . . 15, 19 Wong v. Regents of University of California, 192 F.3d 807 (9th Cir. 1999). . . . . . . . . . . . . . . . . . . . . 11 Yin v. State of California, 95 F.3d 864 (9th Cir. 1996) . . . . . . . . . . . . . . . . . . 15-16, 17 STATUTES AND REGULATIONS The Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq. . . . . . . . . . . . . . . . . . . passim ADA § 102(d)(4), 42 U.S.C. §12112(d)(4) . . . . . . . . . . . . passim 29 C.F.R. § 1630.2(r). 14, 18 OTHER AUTHORITY H.R. Rep. No. 485, 101st Cong., 2d Sess. (1990), reprinted at 1990 U.S.C.C.A.N. 303. . . . . . . . . . . . . . . 19, 20-21 Questions & Answers: Enforcement Guidance on Disability-Related Inquiries & Medical Examinations of Employees Under the Americans with Disabilities Act (ADA) (EEOC July 27, 2000), available at http://www.eeoc.gov/docs/guidance-inquiries.html . . . . . . . . . . . passim The Americans With Disabilities Act: Applying Performance & Conduct Standards to Employees With Disabilities (EEOC last modified Oct.14, 2008), available at http://www.eeoc.gov/facts/performance-conduct.html. . . 14-16, 22 "What are the most serious side effects of Neurontin?: Basic," http://www.epilepsy.com/medication/b_neurontin_serious). . . . . . 4, 18 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT _______________________ No. 10-15480 _______________________ GERALD D. KIRKISH, Plaintiff-Appellant, v. MESA IMPORTS, INC., Defendant-Appellee. ________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF PLAINTIFF _________________________________________________ STATEMENT OF INTEREST The Equal Employment Opportunity Commission is the agency charged by Congress with interpreting and enforcing Title I of the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq. ("ADA"), and other federal employment discrimination laws. Among its other provisions, the ADA prohibits employers from asking about an employee's prescription medication or making other medical inquiries, unless the inquiry is job-related and consistent with business necessity. In this case, the district court held that the mere fact that an employee was taking prescription pain medications was sufficient to justify his employer's demand that he disclose those medications even though the employee had been taking the medications for years without experiencing any adverse side effects and had never exhibited any unsafe or aberrant behavior. In our view, if allowed to stand, this interpretation of the medical inquiries provision would severely undermine its protections. We therefore offer our views to the Court. STATEMENT OF ISSUES <1> 1. Whether the district court erred in holding that an employer may compel a current employee to disclose his medications merely because the employer is aware that the employee is taking prescription pain medication and that some medications can cause side effects including drowsiness even though the employee has never experienced any such side effects or exhibited any unsafe behavior. 2. Whether the minor memory lapses experienced by the plaintiff justified the defendant's requirement that he disclose his medications. STATEMENT OF THE CASE 1. Nature of the Case and Course of Proceedings This is an appeal from an order granting summary judgment dismissing plaintiff's claims under the Americans with Disabilities Act. The plaintiff alleges that the defendant violated the ADA by requiring that he disclose the medications he was taking and by terminating him because of a disability. District court docket number ("R.") 1; see also R.6 (amended complaint). Defendant moved for summary judgment, arguing that its inquiry was lawful and that plaintiff could not establish the elements of his substantive discrimination claim. R.39. Plaintiff opposed the motion and cross-moved for summary judgment on the medical inquiries claim. R.44. On February 1, 2010, the district court granted defendant's motion, holding that the mere fact that plaintiff was taking prescription pain medications justified the medical inquiry, and, whereas the evidence was sufficient to support a finding that plaintiff was qualified, it was not sufficient as to the other elements of his substantive discrimination claim. R.52 ("Order"). Judgment was entered the same day. R.53. Plaintiff appealed. R.57. 2. Statement of Facts Gerald Kirkish started working for Mesa Imports in 2003 selling Honda vehicles. During his tenure with the company, his sales figures were typically in the top half - often in the top third - of defendant's sales staff. Until 2007, there were no concerns about his job performance. He had no traffic accidents or tickets and never displayed any unsafe or poor driving behavior. Order at 4. Since approximately 1994, Kirkish has suffered from peripheral neuropathy, a painful nerve disorder that causes numbness, burning, and stinging sensations in his feet and, to a lesser extent, his lower legs. In 2003, the year he began his job at Mesa Imports, Kirkish began seeing Dr. Shreder, who prescribed Neurontin and other pain medications. Order at 3. Neurontin may cause side effects including drowsiness and dizziness in some people, so people taking Neurontin may be advised not to drive or operate machinery until they know how the medication will affect them. See, e.g., "What are the most serious side effects of Neurontin?: Basic," available at http://www.epilepsy.com/medication/b_neurontin_serious). Kirkish had never experienced any such side effects. R.44-2, Plaintiff's Exhibit ("PEx")1 (Kirkish Dep.145-46, 148); see also PEx.6 (Shreder Dep.28-30) (noting that, while some of his patients "had to come off" Neurontin due to side effects such as sedation and weight gain, "plenty of patients" including Kirkish had been on the drug for years and did not experience such side effects). Kirkish did not attempt to hide his medical condition at work. Team Leader Terry Treece and perhaps other coworkers were aware that he took pain medications for the condition. Order at 5. In early 2007, Mesa Imports changed its sales incentive program so that, instead of offering both a cash and an interest rate incentive, customers could receive only one or the other incentive. Shortly after the change went into effect, Kirkish forgot and twice offered customers both incentives. Another salesman made a similar error. Order at 4-5. After the second mistake, Kirkish received a written warning, advising that he slow down and be more careful. PEx.2 (Kirkish Aff. ¶19). Shortly thereafter, in response to a manager's question, Kirkish could not recall the name of one of the two customers he had misinformed about the incentives. PEx.2 (Kirkish Aff. ¶14). Kirkish testified that he was not surprised he had forgotten the name since he communicated with dozens of people every week and had a better memory for faces than for names. PEx.1 (Kirkish Dep.151) (adding that he made a point of putting as much detail as possible about customers into the computer and relying on that information); accord PEx.2 (Kirkish Aff. ¶¶14-18). Despite these three memory lapses, it is undisputed that Kirkish's sales performance in February and March was good. See PEx.2 (Kirkish Aff. ¶¶20-21) (sold as many or more cars than usual); Order at 8. Despite Kirkish's actual sales performance, Treece stated that when he learned of the mistakes, he became concerned that Kirkish's "medications could be affecting his cognitive abilities." PEx.5 (Treece(Plaintiff) Decl.¶8); Order at 5. He stated that "it was the only thing [he] could think of" since Kirkish was "a top performer otherwise." PEx.5 (Treece(Plaintiff) Decl.¶8). Treece admitted that he had no "specific knowledge" that the medications were adversely affecting Kirkish; had never "noticed any physical inability to do his job"; had never seen Kirkish "appear to be intoxicated or seemingly unable to safely operate a vehicle"; and had never "heard him slur his speech or act out of the ordinary." PEx.5 (Treece(Plaintiff) Decl.¶¶9-12).<2> Nevertheless, Treece informed Sales Manager Barry Bauman and General Sales Manager Richard Cvijanovich that Kirkish was taking pain medication that Treece thought "might be impacting his sales skills and also might pose a safety threat if [the company] did nothing to help." Defendant's Exhibit ("DEx")12 (Treece(Defendant) Decl.¶¶16-17). Cvijanovich conceded that, as far as he knew, Kirkish had had only the three memory lapses and that "[p]eople do make mistakes." PEx.3 (Cvijanovich Dep.36). Nevertheless, after hearing Treece's concerns, Cvijanovich consulted the company's owner and its general manager. According to Cvijanovich, they all "suspected" that Kirkish's medications were likely the cause of his "problems" and were "concerned" that his "impaired state" might cause him to injure himself or someone else while driving a company vehicle. DEx..13 (Cvijanovich Decl.¶6). Accordingly, Cvijanovich asked Kirkish to disclose the medications he was taking so that the company could determine whether he could safely operate company vehicles. Order at 5; DEx.13 (Cvijanovich Decl.¶7). The company also contacted its insurance agent who indicated that the company would need to obtain a "release from a health care professional attesting to [Kirkish's] ability to safely operate a motor vehicle." Order at 6 (quoting letter). Although Kirkish initially agreed to provide the medical information, he subsequently changed his mind "for privacy reasons," but offered to ask his doctor to address the company's concerns. Order at 5; PEx.1 (Kirkish Dep.164-66) (concerned that Cvijanovich "would want to pry into that side of [Kirkish's] life" and that information would not remain confidential). In mid-April, Dr. Shreder wrote a letter stating that Kirkish was currently taking Neurontin and "understands the risks and hazards of driving are severe while under this medication." However, he added, Kirkish "currently does not suffer from any symptoms although the side effects [were] attached to the medication." Order at 6. Not viewing this letter as a "release," Mesa Imports asked Kirkish to provide prescription information about Neurontin. Id. When he refused, the company again contacted its insurer. The agent researched Neurontin and decided that Kirkish would be considered "uninsurable" as long as he was taking that medication. The company then placed Kirkish on FMLA leave, informing him that he could not return to work without a Return-to-Work release form signed by his doctor. Order at 6. Cf. PEx.8 (FMLA certification form, signed by Dr. Shreder and checking "yes" to question "Is the employee able to perform the essential functions of employee's position?"). Even though he had never seen Kirkish exhibit any side effects from the medication, Dr. Shreder was unwilling to sign what he viewed as a "blanket" release for fear that he might be held liable if Kirkish had an accident while under his care. See PEx.6 (Shreder Dep.20, 23, 25, 29-30). In completing the Return-to- Work form, therefore, he stated that Kirkish had no work-related restrictions but then checked "medication limitations" and added "as described on the package inserts." See Order at 7. Dissatisfied with this caveat, Mesa Imports contacted Dr. Shreder directly and asked whether it was safe for Kirkish to drive company vehicles. Order at 6-7. Dr. Shreder responded that he "could drive so long as he [was] controlled on his medication." Order at 7. Still dissatisfied, Mesa Imports asked Dr. Shreder to complete a form certifying that Kirkish was "medically able to safely perform the essential functions of his job including driving without creating a safety risk to himself or others." Order at 7. On August 9, Kirkish submitted the completed form, signed by Dr. Shreder, with the required certification. An hour later, however, Dr. Shreder had second thoughts and faxed in a second copy of the form cancelling the certification and stating: "Dr. Shreder will not authorize driving. Mr. Kirkish is on his own recognisence[sic]." The following week, Kirkish was fired. Order at 7. Kirkish brought suit alleging that Mesa Imports violated the ADA by requiring without good cause that he provide medical information, and that this led to his unlawful termination. Kirkish also alleged that he was fired because of a disability - specifically, because the company perceived that his medical condition and medications caused him to be substantially limited in thinking and concentration. R.6. Defendant moved for summary judgment. In pertinent part, the company argued that its medical inquiry was lawful because Kirkish "was making mistakes and could not remember a customer," and Treece was concerned that Kirkish posed a safety risk because of the medications he was taking. R.39 ("only logical" to suspect that medications might cause Kirkish to injure himself or others while driving company vehicle). 3. District Court's Decision The district court granted defendant's motion. The court stated that medical inquiries are permitted when they are job-related and consistent with business necessity - that is, "when an employer has good cause to determine whether an employee is capable of performing his or her job-related functions." Order at 8. In the court's view, Mesa Imports' request for Kirkish's prescription medication information met that standard. Id. at 9. The court acknowledged that Mesa Imports "had no concerns about Kirkish's sales performance" apart from his three memory lapses. The only issue was whether he could drive safely. Order at 8. Noting defendant's asserted safety and insurability concerns, the court stated: "'Ensuring that the workplace is safe and secure' is a legitimate business necessity," and "in the context of jobs that require driving, verifying the ability of an employee to drive safely qualifies as a business necessity." Id. at 8-9 (citations omitted). Here, the court continued, Kirkish had "openly" discussed his medical condition and medication throughout his employment, so defendant "was aware that Kirkish was taking prescription pain medications, which have possible side effects that include drowsiness." Order at 9. Thus, the court concluded, it "was reasonable for [the company] to be concerned about Kirkish's driving ability." Id. The court added that, "[a]lthough a history of drowsiness, accidents, or other poor driving behavior would certainly provide an additional basis for good cause," it was not necessary because "[c]ommon sense suggests that an employer should not have to wait for an accident to occur to justify taking preventative steps." Id. Rather, the court held, "[t]he fact that Kirkish was taking prescription pain medications was sufficient to give rise to a legitimate concern about his ability to drive safely." Id.<3> STANDARD OF REVIEW This Court reviews de novo an order granting summary judgment. Leonel v. American Airlines, 400 F.3d 702, 708 (9th Cir. 2005). The Court must determine "whether, viewing the evidence in the light most favorable to the nonmoving party, there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law." Id. Under the summary judgment standard, the Court does "not consider whether a jury could find in favor of the defendant: [it] affirm[s] the entry of summary judgment only if a jury could not find for the plaintiff." Wong v. Regents of Univ. of Cal., 192 F.3d 807, 821 (9th Cir. 1999). Moreover, where, as here, there is an affirmative defense on which the defendant bears the burden of proof, the defendant is entitled to summary judgment only if the evidence is such that no reasonable jury could find for the plaintiff on the defense. See Snell v. Bell Helicopter Textron, 107 F.3d 744, 746 (9th Cir. 1997) (evidence that would entitle the moving party to judgment as a matter of law); Houghton v. South, 965 F.2d 1532, 1536-37 (9th Cir. 1992) (evidence that, if uncontroverted at trial, would entitle the moving party to a directed verdict). SUMMARY OF ARGUMENT The district court erred in granting summary judgment on Kirkish's medical inquiries claim. Under the ADA, an employee ordinarily cannot be compelled to disclose prescription medications unless his employer has a "reasonable belief, based on objective evidence," that, because of a medical condition, the employee's ability to do essential job functions is impaired or he poses a direct threat. This normally means that some performance or conduct issue by the employee has triggered the need for the medical inquiry. In finding that the employer's inquiry here was lawful, the district court erroneously held that the employer did not need any evidence that the employee was experiencing any current performance problems or posed a direct threat. Rather, the court held that the mere fact that Kirkish was taking pain medication was sufficient to justify an otherwise unlawful medical inquiry. In reaching this conclusion, the district court applied an improper legal standard. Under the proper standard, a jury would not be compelled to find for the defendant on this claim. Summary judgment on the medical inquiries claim should, accordingly, be reversed. ARGUMENT MESA IMPORTS WAS NOT ENTITLED TO SUMMARY JUDGMENT ON ITS AFFIRMATIVE DEFENSE THAT REQUIRING KIRKISH TO DISCLOSE HIS MEDICATIONS WAS A PERMISSIBLE MEDICAL INQUIRY UNDER THE ADA. Under § 102(d)(4) of the ADA, 42 U.S.C. §12112(d)(4), an employer may not "require a medical examination" or "make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature or severity of the disability unless such examination or inquiry is shown to be job- related and consistent with business necessity." Of relevance here, this prohibition extends to "asking an employee whether s/he is currently taking any prescription drugs or medications" since such an inquiry may well elicit disability-related information - precisely what the provision was designed to address. See Questions & Answers: Enforcement Guidance on Disability-Related Inquiries & Medical Examinations of Employees Under the Americans with Disabilities Act (ADA) at Q/A 1 (EEOC, July 27, 2000) ("Disability-Related Inquiries"), available at http://www.eeoc.gov/docs/guidance-inquiries.html. Accord Roe v. Cheyenne Mt. Conf. Resort, 124 F.3d 1221, 1231 (10th Cir. 1997) ("The district court concluded that the prescription drug disclosure provisions of the [company's] Policy violated the ADA, and we agree."). Unlike other substantive discrimination provisions in the statute, the medical inquiries provision "applies to all employees, whether or not they are disabled under the ADA." Indergard v. Georgia-Pac. Corp., 582 F.3d 1049, 1052-53 (9th Cir. 2009). The burden of establishing that a medical inquiry is job-related and consistent with business necessity rests on the employer. Fredenberg v. Contra Costa County Dep't of Health Servs., 172 F.3d 1176, 1182 (9th Cir. 1999) ("the only reasonable reading of [the statutory] language places the burden on the covered entity . . . to make the requisite showing"); see also Bates v. UPS, 511 F.3d 974, 994-95 (9th Cir. 2007) (describing business-necessity defense as "affirmative defense"). The standard is "quite high" and "is not to be confused with mere expediency." See Cripe v. City of San Jose, 261 F.3d 877, 890 (9th Cir. 2001) (discussing "business necessity"). A medical inquiry is permissible where it is triggered by evidence that a particular employee is having performance problems or by observable evidence suggesting that the employee will pose a direct threat because of a medical condition. See Disability-Related Inquiries at D (Periodic Testing or Monitoring). Before seeking medical information from a current employee, therefore, the employer ordinarily must have "a reasonable belief, based on objective evidence," that, "because of a medical condition," the employee "is unable to perform an essential function" or "will pose a 'direct threat'" - that is, a "significant risk of substantial harm that cannot be eliminated or reduced by reasonable accommodation." Id. at Q/A 5-6; accord The Americans With Disabilities Act: Applying Performance & Conduct Standards to Employees With Disabilities at Q/A 16 (EEOC last modified Oct.14, 2008) ("Conduct Standards"), available at http://www.eeoc.gov/facts/performance-conduct.html; 29 C.F.R. § 1630.2(r) (defining "direct threat").<4> See also Sullivan v. River Valley Sch. Dist., 197 F.3d 804, 811 (6th Cir. 2000) (holding that a medical inquiry is permissible if there is "significant evidence that could cause a reasonable person to inquire as to whether an employee is still capable of performing his job"); cf. Yin v. State of Cal., 95 F.3d 864, 868 (9th Cir. 1996) (stating that employer may order physical exam to determine plaintiff's ability to work "when health problems have had a substantial and injurious impact on an employee's job performance"). Significantly, the belief may not be based on stereotypes or "general assumptions" about people with specific medical conditions. Disability-Related Inquiries at Q/A 5. Rather, the employer "must have objective evidence suggesting that a medical reason is a likely cause of the problem." Conduct Standards at Q/A 16. Thus, for example, in Yin, 95 F.3d at 867-69, this Court upheld the employer's demands for the plaintiff's medical records and a physical examination where she had missed an inordinate amount of work over a multi-year period, including "one stretch of almost 30 days in a row" shortly before the last demand, and her absences were adversely affecting her performance and productivity. Similarly, in Tice v. Centre Area Transportation Authority, 247 F.3d 506, 517 (3d Cir. 2001), the Third Circuit held that the employer reasonably required a bus driver to undergo an independent medical examination when, after a lengthy absence for a back injury, his doctor, who had initially stated that he would need back surgery, cancelled the surgery; the driver complained that pain interfered with the use of his legs and required "narcotic" medication; and the employer received complaints that he was driving recklessly. In each case, the employee's behavior provided objective evidence to support the employer's belief that a medical condition was interfering with the employee's performance and/or presenting an unacceptable safety risk.<5> Here, in contrast, a reasonable jury would not be compelled to find that Mesa Imports' demand that Kirkish disclose his prescription medications was permissible. Kirkish had been working at Mesa Imports for four years and had been taking Neurontin throughout that period without incident. Unlike the plaintiffs in Yin, Tice, or other cases, there is no evidence that Kirkish had absenteeism problems, had been observed driving recklessly, had behaved abusively or shown poor judgment, or even nodded off during meetings. Although he had had three minor lapses in memory, a jury could find that they did not support a reasonable belief that a medical condition was interfering with his job performance or his ability to drive safely so as to justify the medical inquiry. In granting summary judgment to defendant, the district court did not analyze the evidence under this standard but instead concluded that Mesa Imports did not need objective evidence suggesting that Kirkish was having performance problems or would pose a direct threat because of a medical condition. In the court's view, the mere fact that he "was taking prescription pain medications was sufficient to give rise to a legitimate concern about his ability to drive safely." Order at 9. The court reasoned that ensuring a safe and secure workplace is a business necessity, and prescription pain medications can have side effects including drowsiness. According to the court, the company was not required to produce evidence that Kirkish himself had a history of drowsiness, poor driving, or other symptoms suggesting that he might be suffering side effects from his pain medications because "an employer should not have to wait for an accident to occur to justify taking preventative steps." Id. Thus, the court held, Mesa Imports was justified in requiring Kirkish to provide copies of his prescriptions and in barring him from driving while he was on the medication. Id. This reasoning and result are flawed. As noted above, to justify a medical inquiry under section 102(d)(4) where, as here, performance is not at issue, there must be sufficient "objective evidence" to support a "reasonable belief" that the employee would pose a direct threat, based on his medical condition. Merely knowing that the employee is taking pain medication neither constitutes "objective evidence" nor would support a "reasonable belief" that, due to the medication, the employee poses a "significant risk of substantial harm." See 29 C.F.R. § 1630.2(r) (defining "direct threat"). On the contrary, many medications - even common allergy and cold medicines - may cause side effects including drowsiness in some people. See, e.g., PEx.6 (Shreder Dep.29) (mentioning Benedryl). People taking such medications are typically advised not to drive or operate machinery until they know how the medication will affect them. See, e.g., "What are the most serious side effects of Neurontin?: Basic," available at http://www.epilepsy.com/medication/b_neurontin_serious) (advising people taking neurontin not to drive or operate machinery until they know how the medication will affect them). But many people, like Kirkish, can take these medications without becoming drowsy or experiencing any other significant side effects. And to the extent the medication is not causing such side effects in the individual, a jury could find that he or she is not presumptively less capable of driving safely, for example, than someone who is not taking the medication.<6> While, as the district court stated, the employer need not wait for an employee to cause an accident before taking preventative measures, § 102(d)(4) requires that there be sufficient evidence of current performance problems or safety issues to justify a medical inquiry. The cases cited by the district court are factually distinguishable because the medical inquiry in those cases either involved a licensing examination that did not target a specific employee or was justified by objective evidence. In Wice, an unreported district court decision from Michigan, the plaintiff was challenging a routine medical examination that the employer required all of its mobile equipment drivers to take in renewing their in-plant driving licenses. The court concluded that the examination was permissible since it not only constituted a reasonably effective means of achieving the employer's safety goals but also helped the employer satisfy its MIOSHA obligations. 2008 WL 5235996, at 1-3. Cf. Disability-Related Inquiries at Q/A 21 (routine physical examinations to comply with federal law or regulations are permissible). As for Tice, even the district court recognized its dissimilarity since the medical examination was in fact triggered by the plaintiff's conduct: among other things, he was attempting to return to work after a back injury, and his employer, unlike Mesa Imports, "had received complaints about [his] reckless driving." See Order at 9 (citing Tice, 247 F.3d at 517). As the Sullivan court explained, "An employee's protection from harmful intent on an employer's part comes from the dual requirements that there be evidence sufficient for a reasonable person to doubt whether the employee is capable of performing the job and that any examination be limited to determining an employee's ability to perform essential job functions." 197 F.3d at 813. Under the district court's approach, however, no such evidence would be necessary. Any time an employer heard that an employee either was taking medication for a medical condition or had a condition that might require medication, the employer arguably could demand copies of any prescriptions for medicines the employee was taking regardless of whether the employee was having performance problems or exhibiting any symptoms of potential side effects. Such a rule would severely undermine the protections of § 102(d)(4). In passing the ADA, Congress specified that the best measure of an employee's ability to do a job is his actual job performance. H.R. Rep. No. 485, 101st Cong., 2d Sess. 74 (1990), reprinted at 1990 U.S.C.C.A.N. 303, 357. Where an employee's "actual job performance" does not support a valid concern about his ability to do his job safely and proficiently, a jury could find that his employer has no legitimate basis under § 102(d)(4) for seeking prescription information even if the employer knows or suspects that the employee is taking prescription medication for a medical condition. We therefore urge this Court to reject the district court's analysis and hold that, before making a medical inquiry or ordering a physical or mental examination, an employer must have a reasonable belief based on objective evidence that an employee cannot do essential job functions or would pose a direct threat because of a medical condition. Mesa Imports argued below that Kirkish's behavior justified the company's medical inquiries. The district court did not address this argument, but summary judgment would also be inappropriate on that theory. In light of the fact that Kirkish's job performance continued to be average or better, Mesa Imports must show that it had a reasonable belief based on objective evidence that he would pose a direct threat because of his medical condition. Yet, despite the fact that Kirkish had been taking pain medication throughout most or all of his tenure with the company, he had never exhibited any side effects from the medication. Even Treece, whose fears allegedly sparked the company's inquiries, admitted that he had never seen Kirkish appear intoxicated or unable to safely operate a vehicle, had never noticed any physical inability to do his job, and had never heard Kirkish slur his speech or observed him act out of the ordinary. PEx.5 (Treece (Plaintiff) Decl.¶8). Thus, based on the evidence, a jury could find that all that actually happened was that Kirkish misstated the company's incentive program to two customers and forgot one customer's name. A jury would not be compelled to find that the company had a "reasonable basis" for linking these three memory lapses to either Kirkish's medication or his ability to drive safely. On the contrary, a jury could find that Mesa Imports' concerns were based on "general assumptions" or stereotypes. Treece stated that he could think of no other explanation besides Kirkish's medication for his two mistakes. See id.; cf. Def.'s S.J. Motion at 9 ("only logical" to "suspect that the medications were the cause of Kirkish's problems or might cause him to injure himself or someone else while driving one of Mesa Imports' vehicles"). Yet, there are other obvious possible explanations for the mistakes such as carelessness, overwork, or family issues that have nothing to do with medication. See Conduct Standards at Q/A 16, Ex.20 (employee may not be required to undergo medical exam merely because he is found asleep at his desk since "there could be many [non-disability-related] reasons the employee is asleep" including family problems and working a second job). Mesa Imports admitted that mistakes were not uncommon, and, in fact, another employee made the same mistake regarding the sales incentives. As for forgetting the name, Kirkish testified that it was not unusual since in a normal week he spoke to dozens of people and he did not have a good memory for names. This theory would therefore not provide an alternative basis for affirming the summary judgment. Accordingly, this Court should hold that the district court's decision is based on an improper legal standard and that, under the proper standard, a jury would not be compelled to find that defendant's medical inquiries were objectively reasonable. Summary judgment for the defendant was, therefore, inappropriate. CONCLUSION For the foregoing reasons, the judgment for defendant on the medical inquiries claim should be reversed and the case should be remanded to the district court for further proceedings. Respectfully submitted, P. DAVID LOPEZ General Counsel CAROLYN L. WHEELER Acting Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel _/s/ Barbara L. Sloan________________ BARBARA L. SLOAN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, N.E., 5th Floor Washington, D.C. 20507 (202) 663-4721 fax: (202) 663-7090 barbara.sloan@eeoc.gov CERTIFICATE OF COMPLIANCE This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because it contains 4779 words, from the Statement of Interest through the Conclusion, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in a proportional typeface using Microsoft Word 2003 with Times New Roman 14-point font. _/s/ Barbara L. Sloan________________ Barbara L. Sloan Attorney for Equal Employment Opportunity Commission Dated: July 2, 2010________________ CERTIFICATE OF SERVICE I hereby certify that on July 2, 2010, I electronically filed the foregoing brief with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system. The following participant in the case who is a registered CM/ECF user will be served by the appellate CM/ECF system. Edmundo P. Robaina ROBAINA & KRESIN PLLC One East Camelback, Suite 300 Phoenix, AZ 85012 I further certify that some of the participants in the case are not registered CM/ECF users. I have mailed the foregoing document by First-Class Mail, postage prepaid, or have dispatched it to a third-party commercial carrier for delivery within 3 calendar days to the following non-CM/ECF participants: John C. Hendricks Kevin Todd Minchey MEAGHER & GEER PLLP 8800 North Gainey Center Drive, Suite 261 Scottsdale, AZ 85258 _/s/ Barbara L. Sloan_______________ Barbara L. Sloan *********************************************************************** <> <1> The Commission takes no position on any other issue in this case. <2> Defendant submitted a different declaration from Treece that takes a more negative tone about Kirkish's behavior, stating, e.g., that Treece "noticed a distinct change in Kirkish"; he had "diminished sales"; his "cognitive abilities seemed to decrease"; his "errors compounded"; and he had "lower sales and many errors." R.40-2, DEx.12 (Treece(Defendant) Decl.¶¶10, 11, 15). <3> The court also rejected plaintiff's discriminatory discharge claim. The court held that Kirkish did not show that he was regarded as substantially limited in thinking and concentration, the major life activities he identified, because, "as Kirkish admits, he was terminated for his inability to drive, not his inability to think." Order at 11-12. And, the court continued, while there is an issue of fact whether he was qualified for his job, Kirkish could not show that defendant's proffered reason for his discharge - the fact that, without a doctor's release, he was uninsurable while taking his medications - was a pretext for discrimination. Id. at 13-15. <4> There are other circumstances in which medical inquiries are permissible, but none is applicable here. For example, an employer may require medical information to support certain requests for reasonable accommodation. Disability- Related Inquiries at Q/A 7, 10-11. An employer may also seek follow-up information when an employee returns to work after a serious illness or injury, particularly if the employer has reason to doubt the employee's present fitness for duty. Id. at Q/A 15-17 (may also require a doctor's note to substantiate use of sick leave). Cf. Conroy v. N.Y. Dept. of Correctional Servs., 333 F.3d 88 (2d Cir. 2003) (issue of fact as to lawfulness of policy permitting employer to demand that employees returning from even a brief absence provide a medical diagnosis from their doctors). In addition, an employer may require routine medical exams for employees in positions affecting public safety and/or in connection with government licensing requirements. Disability-Related Inquiries at Q/A 18, 21. See, e.g., Wice v. General Motors Corp., No.07-10662, 2008 WL 5235996, at *1 (E.D. Mich. Dec. 15, 2008) (upholding requirement that employees who operate in-plant mobile equipment take a basic physical exam as part of in-plant driver's license renewal process and to satisfy MIOSHA regulation setting certain fitness standards for mobile equipment operators); Watson v. City of Miami Beach, 177 F.3d 932 (11th Cir. 1999) (police department had "good cause" to order TB testing of all officers in light of their frequent contact with high-risk individuals). <5> See also Coffman v. Indianapolis Fire Dept., 578 F.3d 559, 565-66 (7th Cir. 2009) (fitness-for-duty exam was justified in fire department's "special work environment" where multiple firefighters expressed concern that the plaintiff- firefighter had become defensive and withdrawn; EMT officer observed that she seemed unable to do routine tasks or make decisions at a fire scene; and two other firefighters had recently committed suicide); Sullivan, 197 F.3d at 810-11 (request for medical exam was justified where a teacher exhibited "unusual" or "aberrant" behavior including "disruptive and abusive" outbursts at a school board meeting and disclosure of confidential student grade information to a local newspaper such that employer had "genuine reason to doubt" his ability to do his job). <6> Moreover, medications may be prescribed for a number of medical conditions, not simply for pain. Neurontin, for example, is primarily an anti- seizure drug. Thus, forcing an employee to disclose that he takes Neurontin may reveal that he has epilepsy - or raise an erroneous inference that he has that condition - which historically has carried with it certain stigmas and/or safety- related stereotypes. That is what section 102(d)(4) was designed to prevent. See H.R. Rep. No. 485, 101st Cong., 2d Sess. 74-75 (1990), reprinted at 1990 U.S.C.C.A.N. 303, 357-58.