Co-Worker Risk Trumps Diabetic ADA Claim

The U.S. Ninth Circuit Court of Appeals ruled November 28 that a lower court judge was right in throwing out Norman Hutton’s ADA claims against his employer, Elf Atochem North America Inc.

Atochem officials said they were concerned about scenarios such as Hutton losing consciousness and causing a “catastrophic” chlorine spill. Hutton worked as a chlorine finishing operator at Atochem’s Portland, Oregon facility.

“Even if we were to agree with Hutton, however that the likelihood of an accident is small, we conclude that the severity and scale of the potential harm to others presented by Hutton’s employment nevertheless pose a significant risk under the direct-threat analysis,” Judge A. Wallace Tashima wrote in the appellate court opinion.

Loss of Consciousness

According to the court, Hutton worked for Elf from 1986 to 1998 when he was laid off. Elf knew when he was hired that he was diabetic.

The opinion said that Hutton had several diabetic episodes while an Atochem employee, some of which required emergency medical attention. Once he lost consciousness.

Hutton had another episode in 1998 and was suspended. His union and the company determined that under the union contract, Hutton did not have enough seniority to replace any of the day-shift workers, nor was the company required to create a special new position for him.

The company told Hutton that no suitable job was available to accommodate him. If an appropriate position became available, the company said, it would consider him. Eight positions eventually opened, but none was considered right for him.

Hutton sued under the ADA and Oregon law in state court, and the case was transferred to the US District Court for the District of Oregon. A magistrate threw out Hutton’s claim.

The appeals court decision was Hutton v. Elf Atochem N. Am. Inc., 9th Cir., No. 00-35683, 11/28/01.

– Fred Schneyer      editors@plansponsor.com