Mario Echazabal v. Chevron Usa, Inc. Irwin Industries, Inc.

Opinion by Judge TASHIMA; Dissent by Judge TROTT.

OPINION

In this action under the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq. (“ADA”), we held in an earlier opinion that the “direct threat” defense provided by 42 U.S.C. § 12113 in an ADA discrimination action does not include threats to the employee’s own health. *1026 Echazabal v. Chevron U.S.A., Inc., 226 F.3d 1063, 1070 (9th Cir.2000). In Chevron U.S.A. Inc. v. Echazabal, 536 U.S. 73 , 122 S.Ct. 2045 , 153 L.Ed.2d 82 (2002) (“Echazabal ”), the Supreme Court reversed and remanded, holding that the direct threat defense includes threats to an employee’s own health. It also held the EEOC’s direct threat regulation, 29 C.F.R. § 1630.15 (b)(2) (defining the defense to include threats to the employee), to be valid. Id.

In light of Echazabal, the only remaining issue on remand is whether Chevron has met the requirements for assertion of the direct threat defense. Specifically, we must decide whether Chevron based its decision upon “ ‘a reasonable medical judgment that relies on the most current medical knowledge and/or the best available objective evidence,’ and upon an expressly ‘individualized assessment…

dissenting:

In making its decision not to hire Mr. Echazabal, Chevron relied on the recommendation of his own treating physician who agreed with Chevron’s examining doctors that the job in question would jeopardize the applicant’s health. Mr. Echaza-bal now attacks not only the opinion of Chevron’s doctors, but also the medical opinion of the doctor he chose to treat him. His “ammunition?” Two competing academic opinions never communicated to Chevron in connection with its hiring decision and not produced until the filing of his lawsuit. On this record, I conclude that this past-posted evidence cannot create a genuine issue of material fact as to the equity of Chevron’s good faith decision. At best, this lawsuit is a misguided attempt by plaintiffs lawyers belatedly to put Chevron’s and his own doctors’ opin *1036 ions on trial, an adventure which is not germane on this set of facts to whether Chevron’s decision when it was made comported with what the law required. As such, this case stands for the proposition that securing the opinion of a health-compromised job applicant’s own treating doctor is not enough to protect an employer from costly litigation, litigation that comes…

336 F.3d 1023 Mario ECHAZABAL, Plaintiff-Appellant, v. CHEVRON USA, INC.; Irwin Industries, Inc., Defendant-Appellee. No. 98-55551. United States Court of Appeals, Ninth Circuit. Argued and Submitted September 19, 2002. Filed July 23, 2003. COPYRIGHT MATERIAL OMITTED Larry Minsky, Cerritos, CA, for the plaintiff-appellant. Jon Kardassakis, Hawkins, Schnabel, Lindahl & Beck, Los Angeles, CA, for defendant-appellee Chevron USA Inc. Dori K. Bernstein, Washington, DC, for amicus curiae United States Equal Employment Opportunity Commission, urging reversal. Craig E. Stewart, Pillsbury Winthrop, San Francisco, CA, for amici curiae American College of Occupational and Environmental Medicine, Western Occupational and Environmental Medical Association, and California Society of Industrial Medicine and Surgery, urging affirmance. On Remand from the United States Supreme Court. Before REINHARDT, TROTT, and TASHIMA, * Circuit Judges. Opinion by Judge TASHIMA; Dissent by Judge TROTT. OPINION TASHIMA, Circuit Judge: 1 In this action under the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq. ("ADA"), we held in an earlier opinion that the "direct threat" defense…