Dark v. Curry County, 451 F.3d 1078 (9th Cir. 2006)
Robert Dark, an epileptic, worked as a maintenance and construction worker for Curry County, Oregon. Dark?s duties included operating heavy-duty construction vehicles. On the morning of January 15, 2002, Dark had a nervous jerk which signaled to him that there was about a 50% chance he might have a seizure that day. Despite this warning, Dark failed to inform anyone of the possibility of him suffering an epileptic seizure. Later that day, Dark suffered a seizure and fell unconscious while driving a County pickup truck. Fortunately, a passenger in the vehicle was able to re-gain control of the truck before anyone was injured. Dark was later terminated on the grounds that he could not perform the essential functions of his position, and that his continued employment posed a threat to himself and the safety of others.
Dark then filed a lawsuit under the Americans with Disabilities Act (ADA), alleging disability discrimination. The district court granted the employer?s motion for summary judgment, but the Court of Appeal reversed noting that the County offered ?two divergent explanations? for Dark?s termination: (i) inability to perform the essential functions of the job, and (ii) misconduct associated with operating the truck in total disregard of the safety of himself and others. The Court concluded the ?record was replete with evidence suggesting that Dark?s purported ?misconduct? was a pretext for discrimination on the basis of a disability,? and that a genuine issue of material fact existed as to whether a reasonable accommodation could have been provided.

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