FILED
NOT FOR PUBLICATION JUL 07 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
GERALD D. KIRKISH, No. 10-15480
Plaintiff - Appellant, D.C. No. 2:08-cv-01965-NVW
v.
MEMORANDUM *
MESA IMPORTS, INC.,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Arizona
Neil V. Wake, District Judge, Presiding
Argued and Submitted June 15, 2011
San Francisco, California
Before: FERNANDEZ and BYBEE, Circuit Judges, and SINGLETON, Senior
District Judge.**
Plaintiff-Appellant Gerald Kirkish (“Kirkish”) appeals the district court’s
grant of summary judgment for Defendant-Appellee Mesa Imports, Inc. (“Mesa”)
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable James K. Singleton, Senior United States District
Judge for the District of Alaska, sitting by designation.
on his claims under the American with Disabilities Act (“ADA”), 42 U.S.C. §
12101–12213. We have jurisdiction under 28 U.S.C. § 1291 and affirm.
Mesa’s inquiry into Kirkish’s prescription medication was justified by
business necessity. See 42 U.S.C. § 12112(d)(4)(A). It is undisputed that driving
cars was an essential part of Kirkish’s job. Even though Kirkish was never
involved in any automobile accidents on the job, “the business necessity standard
may be met even before an employee’s work performance declines if the employer
is faced with significant evidence that could cause a reasonable person to inquire as
to whether an employee is still capable of performing his job.” Brownfield v. City
of Yakima, 612 F.3d 1140, 1146 (9th Cir. 2010) (quoting Sullivan v. River Valley
Sch. Dist., 197 F.3d 804, 811 (6th Cir. 1999)) (quotation marks omitted) (emphasis
added). Here, Mesa already knew that Kirkish was taking prescription pain
medication. Given the serious side-effects many prescription pain medications
may have, and given that driving was a necessary part of Kirkish’s job, it was
clearly reasonable for Mesa to inquire whether Kirkish’s medication might affect
his ability to drive safely. Summary judgment on the question of whether Mesa
made an improper disability-related inquiry was therefore appropriate.
Summary judgment for Mesa was also appropriate on Kirkish’s disability
discrimination claim, because Kirkish cannot establish that he is a person with a
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disability. See Nunes v. Wal-Mart Stores, Inc., 164 F.3d 1243, 1246 (9th Cir.
1999) (“[T]o state a prima facie case under the ADA, [a plaintiff] must show that . .
. []he is a disabled person within the meaning of the ADA.”). Kirkish argues he
meets the ADA definition because Mesa viewed him as impaired in his ability to
think. We have held that the inability to think can constitute a disability if an ADA
plaintiff establishes that there is a “substantial limitation” on his ability to think.
Head v. Glacier Northwest, Inc., 413 F.3d 1053 (9th Cir. 2005). Although Mesa
had expressed concern over two incidents—one where Kirkish forgot the name of a
customer, and another where he offered a customer a promotion that was no longer
valid—there is no evidence to suggest that Mesa believed Kirkish’s ability to think
was impaired to a “substantial” degree. Rather, the record shows that Mesa was
merely unwilling to take chances with an employee who was taking pain
medication with potentially negative side effects, whose doctor refused to clear
him for driving, and who could not be insured through the employer’s provider.
AFFIRMED.
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