IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No. 98-55551 MARIO ECHAZABAL, Plaintiff-Appellant, v. CHEVRON U.S.A., INC., Defendant-Appellee. On Appeal from the United States District Court for the Central District of California SUPPLEMENTAL BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE NICHOLAS M. INZEO Acting Deputy General Counsel PHILIP B. SKLOVER Associate General Counsel CAROLYN L. WHEELER Assistant General Counsel EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street N.W. Washington, D.C. 20507 (202) 663-4739 TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . ii STATEMENT OF INTEREST . . . . . .. . . . . . . . . 1 ARGUMENT . . . . . . . . . . . . . . . . . . . . . .. 1 CONCLUSION . . . . . . . . . . . . . . . . . . . . . .9 CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE TABLE OF AUTHORITIES CASES PAGE(S) Anderson v. Little League Baseball, Inc., 794 F. Supp. 342 (D. Ariz. 1992) . . . . . . . . . . . . 8 Bragdon v. Abbott, 524 U.S. 624 (1998) . . . 3, 7 Chevron v. Echazabal, 22 S. Ct. 2045 (2002) . . 2, 8 Hutton v. Elf Atochem North America, Inc., 273 F.3d 884 (9th Cir. 2001). . . . . . . . . 2, 8 Lowe v. Alabama Power Co., 244 F.3d 1305 (11th Cir. 2001). . . . . . . . 6 Mantolete v. Bolger, 767 F.2d 1416 (9th Cir. 1985). . . . . . . . . 4, 7, 8 Nunes v. Wal-Mart Stores, Inc., 164 F.3d 1243 (9th Cir. 1999). . . . . . . . 2, 4 School Board of Nassau County, Fla. v. Arline, 480 U.S. 273 (1987) . . 3, 7 Smith v. Chrysler Corp., 155 F.3d 799 (6thCir. 1998). . . . . . . 7 STATUTES 29 U.S.C. § 701 . . . . . . . 1 29 U.S.C. § 791 . . . . . . . 4 42 U.S.C. § 12101 . . . . . . 1 REGULATIONS 29 C.F.R. § 1630.2(r) . . . . . 2, 7,8-9 29 C.F.R. Pt. 1630, App. § 1630.2(r) . . 2, 7 LEGISLATIVE HISTORY H.R. Rep. No. 101-485(III) at 45, 101ST Cong., 2d Sess., reprinted in 1990 U.S.C.C.A.N. 468. . . . . . 7 STATEMENT OF INTEREST The Equal Employment Opportunity Commission is charged with enforcement of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq., and other federal anti-discrimination statutes. Because of its importance to the proper enforcement of the ADA and the Rehabilitation Act, the Commission offers its views on the question the Court posed to the parties: Was appellee Chevron's decision to exclude appellant Echazabal because he posed a “direct threat” based on the kind of individualized inquiry required by regulation and Ninth Circuit law? ARGUMENT Chevron denied Echazabal a job in its oil refinery because tests showed that his liver was releasing a higher than normal level of enzymes into his bloodstream and Chevron's doctors thought working there would pose a direct threat to his own health. The district court held that, although it is arguable that Chevron incorrectly concluded that Echazabal's presence in the refinery would pose a direct threat to his health, Chevron was entitled to prevail because it reasonably relied on the medical opinion evidence it had on hand when it made its determination. See ER 637-38. The law requires more. Before excluding an individual as a direct threat, an employer must demonstrate that it has made an “individualized assessment” of his present ability to perform essential functions of the job, “based on a reasonable medical judgment that relies on the most current medical knowledge and/or on the best available objective evidence.” 29 C.F.R. § 1630.2(r).<1> The factors to be considered in determining whether an individual would pose a direct threat include: “(1) The duration of the risk; (2) The nature and severity of the potential harm; (3) The likelihood that the potential harm will occur; and (4) The imminence of the potential harm.” Id. See also 29 C.F.R. Pt. 1630, App. § 1630.2(r) (EEOC Interpretive Guidance stating that direct threat consideration “must rely on objective factual evidence”). In analyzing the validity of this regulation, the Supreme Court held that it is reasonable precisely because it “demands . . . a particularized enquiry into the harms the employee would probably face.” Chevron v. Echazabal, 122 S. Ct. 2045, 2053 (2002). The Court endorsed the regulation's objective of allowing employers to consider “specific and documented risks to the employee” but emphasized that such risk assessment must be based on a “‘reasonable medical judgment that relies on the most current medical knowledge and/or the best available objective evidence.'” Id. (quoting 29 C.F.R. § 1630.2(r)). The Supreme Court explained in an earlier Rehabilitation Act case that direct threat determinations should be “based on reasonable medical judgments given the state of medical knowledge” about the nature, duration, and severity of the risks presented by the disability, as well as the probability that the perceived harm will occur. School Board of Nassau County, Fla. v. Arline, 480 U.S. 273, 287-88 (1987). The Court recognized that Congress “carefully structured [the Act] to replace . . . reflexive reactions to actual or perceived handicaps with actions based on reasoned and medically sound judgments.” Id. at 284-85. Assessment of whether a determination is based on “reasoned” and “medically sound judgments” is the key to evaluating whether an employer has met its burden of establishing a “direct threat” defense under the Rehabilitation Act or the ADA. Employers cannot simply rely on a doctor's determinations because the Supreme Court has held that courts should assess whether the health care professional's view was objectively reasonable. Bragdon v. Abbott, 524 U.S. 624, 649 (1998) (Title III ADA case in which Court noted that “[p]arallel provisions appear in the employment provisions of Title I”). Elaborating on this standard, the Court held that a health care professional has a duty to assess risk “based on the objective, scientific information available to him and others in his profession.” Id. Subjective belief that a risk exists, even if held in good faith, will not shield the decision maker from liability. Id. This Court has also recognized that employers have a substantial duty to educate themselves prior to determining whether an individual would pose a direct threat. See Nunes v. Wal-Mart Stores, Inc., 164 F.3d 1243, 1247 (9th Cir. 1999) (analysis of risk “necessarily requires the employer to gather ‘substantial information' about the employee's work history and medical status, and disallows reliance on subjective evaluations by the employer”)(citation omitted); accord Mantolete v. Bolger, 767 F.2d 1416, 1422-23 (9th Cir. 1985)(applying the Rehabilitation Act, 29 U.S.C. § 791, and holding that employers must consider “all relevant information regarding the applicant's work history and medical history”). Chevron did not make the individualized assessment required by law before it decided to reject Echazabal's application. Although Chevron consulted its own doctors and made a decision based on the doctors' recommendations, that was insufficient. Given the nature of Echazabal's condition, Chevron needed to obtain and consider more objective and accurate information about Echazabal's liver function, the chemicals in the plant and their effect on liver function, and Echazabal's actual experience working in the refinery. It was not reasonable for Chevron, or its doctors, to base their judgment about Echazabal's risk of injury on assumptions about the significance of a heightened enzyme reading. It appears from the record that it would have been a simple matter for Chevron to get the opinion of an expert on liver disease. It also appears that if Chevron had consulted an expert it would have known that, although Echazabal's hepatitis C is a chronic condition and thus of long duration, the risk to his health from working in the refinery was very small, the nature and severity of any harm to his liver from exposure to the chemicals in the refinery was negligible, and the ultimate potential harm of possible liver failure was not imminent. Echazabal presented the declarations of experts on toxicology and liver disease.<2> Both experts reviewed information that was available to Chevron when it decided to exclude Echazabal from the refinery, and both experts unequivocally stated that, even though Echazabal had hepatitis C, he could work as a plant helper in the refinery without facing a significant risk of substantial harm beyond that experienced by other workers. Both experts explained that enzyme levels are not an indication of liver function. ER 306; 322-325. Rather, the enzyme tests reflect only that an infection is ongoing (i.e., chronic) and reflect nothing about liver function. ER 306; 323. These experts also explained that the only tests that do measure liver function–blood albumin levels and prothrombin time (the time it takes blood to form clots)–revealed that Echazabal's liver was functioning normally. ER 322-24; 305. There is nothing in the record to suggest that Chevron's doctors had any scientific basis for assessing Echazabal's risk differently than his experts did. See Bragdon, 524 U.S. at 650 (a doctor “who disagrees with the prevailing medical consensus may refute it by citing a credible scientific basis for deviating from the accepted norm”).<3> Thus, the district court's conclusion that Chevron was entitled to rely on its doctors' assessment of Echazabal's risk is fatally at odds with the Supreme Court's holding that a subjective belief that a significant risk exists, “even if maintained in good faith” cannot insulate an employer from liability because “an individual physician's state of mind” cannot “excuse discrimination without regard to the objective reasonableness of his actions.” Bragdon, 524 U.S. at 650. See also Lowe v. Alabama Power Co., 244 F.3d 1305, 1309 (11th Cir. 2001) (rejecting doctor's good-faith evaluation of the limitations of a double amputee that were not based “on particularized facts using the best available objective evidence as required by the regulations”); Smith v. Chrysler Corp., 155 F.3d 799, 807 (6th Cir. 1998) (rejecting a good-faith belief defense that has no legitimate factual basis). When measured against the objective reasonableness required by law, see Bragdon, 524 U.S. at 649-50; Arline, 480 U.S. at 287-89; Mantolete, 767 F.2d at 1422-23; 29 C.F.R. § 1630.2(r); 29 C.F.R. Pt. 1630, App. § 1630.2(r); H.R. Rep. No. 101-485 (III) at 45, 101st Cong., 2d Sess. reprinted in 1990 U.S.C.C.A.N. 445, 468, it is apparent that Chevron's approach to risk assessment in this case was deficient. Proper risk assessment also requires that the employer consider the exact nature of the risk to the employee posed by the employment he seeks. The record indicates that Chevron did not consult records maintained by its own industrial hygiene department on the types and levels of chemicals and toxins in the refinery, before reaching its determination that Echazabal could not work there safely. ER 499; 560 at p. 98. If Chevron had consulted this information, it would have been able to make a more informed decision about whether the toxins in the refinery were of a nature or concentration that would have placed Echazabal at an unacceptable risk. When Dr. Fedoruk reviewed the company's records he concluded that the level of toxins present in the refinery placed Echazabal at no greater risk of injury than his co-workers. ER 306-17. Individualized risk assessment also requires considering relevant information about an applicant's or employee's work history. Mantolete, 767 F.2d at 1422-23. Chevron failed to give sufficient weight to the fact that Echazabal had worked in the coker unit, without incident or injury, for over twenty years, including 3½ years after learning that he had hepatitis C. A reasonable jury could find that this injury-free work history indicated that Echazabal would not pose a direct threat of injury to himself in the refinery. See Anderson v. Little League Baseball, Inc., 794 F. Supp. 342, 345 (D. Ariz. 1992) (holding that league officials could not exclude plaintiff from in-field coaching position and giving “great weight to the fact that plaintiff has served as a Little League coach at either first base or third base without incident”); cf. Hutton v. Elf Atochem North America, Inc., 273 F.3d 884, 894 (9th Cir. 2001) (in case of individual with diabetes who operated equipment that produced, stored and transferred liquid chlorine, three doctors, including a specialist in diabetes, were consulted and could not “rule out the occurrence of a hypoglycemic event that would affect Hutton's ability to remain conscious, alert, and communicative, especially in light of Hutton's somewhat erratic medical history”) (emphasis added). In light of all the evidence, a jury could find that Chevron's determination that Echazabal posed a direct threat was not based on “an expressly ‘individualized assessment of [Echazabal's] present ability to safely perform the essential functions of the job,' reached after considering, among other things, the imminence of the risk and the severity of the harm portended.” Chevron, 122 S. Ct. at 2053 (quoting 29 C.F.R. § 1630.2(r)). Therefore it was error for the district court to hold that Chevron's direct threat determination was sufficient as a matter of law. CONCLUSION The Commission urges the Court to reverse the grant of summary judgment to Chevron. Respectfully submitted, NICHOLAS M. INZEO Acting Deputy General Counsel PHILIP B. SKLOVER Associate General Counsel ____________________________ CAROLYN L. WHEELER Assistant General Counsel EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W. Washington, D.C. 20507 (202) 663-4739 August 8, 2002 CERTIFICATION OF COMPLIANCE On July 11, 2002, the Court ordered the parties to file a 15 page supplemental brief. The page limit for an amicus brief is thus 7 ½ pages. See Fed. R. App. P. 29 (d). In accordance with Fed. R. App. P. 32 (a)(7)(C) and Ninth Circuit Rules 32-1 and 32-3 (3), I certify that the attached amicus brief is proportionally spaced in a 14 point typeface, and contains a word count of 2066, which, when divided by 280, does not exceed the designated page limit of 7 ½ pages for an amicus brief in this case. _________________________ CAROLYN L. WHEELER Assistant General Counsel EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W. Washington, D.C. 20507 August 8, 2002 CERTIFICATE OF SERVICE I, Carolyn L. Wheeler, hereby certify that on this 8th day of August, 2002, two copies of the attached brief were sent by first class mail, postage prepaid, to each of the following counsel of record: Larry A. Minsky, Esq. Sievers & Minsky 110 Pine Ave., Suite 510 Long Beach, CA. 90802-4420 Jon Kardassakis, Esq. Kurt G. Gresenz, Esq. Hawkins, Schnabel, Lindahl & Beck 660 S. Figueroa St., Suite 1500 Los Angeles, CA. 90017-3457 ________________________ CAROLYN L. WHEELER Assistant General Counsel EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, NW. Washington, D.C. 20507 August 8, 2002 (202) 663-4739 1 It is well settled that the direct threat defense is an affirmative defense and that the employer therefore has the burden of proving that an employee or applicant poses a direct threat. Hutton v. Elf Atochem North America, Inc., 273 F.3d 884, 893 (9th Cir. 2001); Nunes v. Wal-Mart Stores, Inc., 164 F.3d 1243, 1247 (9th Cir. 1999). 2 Dr. Marion Fedoruk, M.D., Board Certified in Occupational Medicine, Industrial Hygiene and Toxicology, see ER 303-04; and Dr. Gary Gitnick, M.D., F.A.C.G., Chief of Division of Digestive Diseases at UCLA School of Medicine, see ER 319-20. 3 Chevron's direct threat determination is deficient even if the Court assumes that Chevron consulted Dr. Weingarten prior to making its decision. In a letter dated February 28, 1996, Dr. Weingarten, one of Echazabal's HMO physicians, answered Chevron's question about whether Echazabal could safely work in the refinery. ER 195. Although Chevron did not inform Dr. Weingarten of the specific chemicals Echazabal might encounter in the refinery (or the concentration levels of the various toxins), Dr. Weingarten indicated that he did not recommend that Echazabal be exposed to these chemicals. Id. Chevron's doctor indicated that he made his decision about Echazabal before hearing from Dr. Weingarten. ER 512-13. Thus, Dr. Weingarten at best provided Chevron with one more opinion that was inconsistent with current medical knowledge. Any claim that Chevron consulted with him does not establish that Chevron met its duty to base its direct threat determination on a reasonable medical judgment.