FILED: November 6, 2002

SCOTT EVANS,

Appellant,

v.

MULTNOMAH COUNTY SHERIFF'S OFFICE,

Respondent.

Appeal from Circuit Court, Multnomah County.

Thomas M. Christ, Judge pro tempore.

Argued and submitted August 1, 2002.

Jacqueline L. Koch argued the cause for appellant. With her on the briefs was Koch & Deering.

Jacqueline A. Weber, Assistant County Attorney, argued the cause for respondent. With her on the brief was Thomas Sponsler, County Attorney for Multnomah County.

Before Landau, Presiding Judge, and Brewer and Schuman, Judges.

SCHUMAN, J.

Reversed and remanded.

SCHUMAN, J.

Plaintiff, a corrections officer, brought this claim against his employer, the Multnomah County Sheriff's Office (defendant), claiming that defendant violated Oregon's fair employment statutes by discharging him instead of reasonably accommodating his disability. Defendant moved for summary judgment on the grounds that plaintiff was not a "disabled person" as that term is defined by the statutes and, alternatively, if he was disabled, no reasonable accommodation was possible because his disability prevented him from performing an essential function of his position. The trial court granted the motion and entered a judgment of dismissal in defendant's favor. Plaintiff appeals, and we reverse.

On review of summary judgment, we state the facts in the light most favorable to the nonmoving party, in this case plaintiff. Volt Services Group v. Adecco Employment Services, 178 Or App 121, 123, 35 P3d 329 (2001), rev den, 333 Or 567 (2002).

Following heart valve replacement surgery, plaintiff, on orders from his doctor, began taking a prescription anticoagulant drug. The doctor reported in a letter to defendant that this drug causes "an increased risk of serious internal or external bleeding or hemorrhage if [plaintiff] is physically injured" and that he had advised plaintiff "to avoid contact with inmates since inmate contact would put him at statistically increased risk of potential traumatic injury." The doctor also stated that the drug was a necessary medication for plaintiff and would be so permanently.

During plaintiff's recovery from surgery, defendant assigned him to temporary light duty as a background investigator. That post did not require any inmate contact. Plaintiff requested permanent assignment to such noncontact posts, maintaining that such an assignment was a reasonable accommodation, given defendant's operational structure and policies. In particular, plaintiff noted that defendant employed around 500 "corrections deputies" like plaintiff. Deputies may rotate among assignments on a daily, weekly, monthly or even yearly basis, with few, if any, permanent assignments. Plaintiff identified at least 18 posts filled by corrections officers that involve little or no inmate contact and the duties of which he would be willing and able to perform.

Further, defendant has a settlement agreement with another employee who, like plaintiff, must avoid inmate contact. The agreement requires that she be assigned only to secure control posts. Defendant also maintains a Temporary Alternative Work Assignment (TAWA) program for temporarily disabled employees. The program assigns these employees to certain "limited duty" positions; the assignments are reviewed every 30 days and can be extended at defendant's discretion.

Defendant refused to accommodate plaintiff's request. Instead, it terminated plaintiff's employment, asserting that all sworn deputies must be willing and able to rotate through all posts. Plaintiff then brought this action, alleging that defendant's refusal violated ORS 659A.112, (1) which requires employers to make reasonable accommodations for otherwise qualified disabled persons unless doing so imposes an undue hardship:

"(1) It is an unlawful employment practice for any employer * * * to bar or discharge from employment or to discriminate in compensation or in terms, conditions or privileges of employment because an otherwise qualified person is a disabled person.

"(2) An employer violates subsection (1) of this section if the employer does any of the following:

"* * * * *

"(e) The employer does not make reasonable accommodation to the known physical or mental limitations of an otherwise qualified disabled person who is a job applicant or employee, unless the employer can demonstrate that the accommodation would impose an undue hardship on the operation of the business of the employer."

Defendant moved for summary judgment, contending that plaintiff was not a disabled person for purposes of the statute and that, if he was, he was not "otherwise qualified" as that term is defined in ORS 659A.115: "the person, with or without reasonable accommodation, can perform the essential functions of the position." The trial court granted summary judgment for defendant, concluding that, "as a matter of law," plaintiff "cannot perform the essential functions of the position of deputy corrections officer and, therefore, * * * he is not otherwise qualified for the position." The court assumed without deciding that plaintiff's condition constituted a disability under ORS 659A.112. This appeal ensued.

We begin with the threshold question: Is plaintiff a "disabled person" and therefore entitled to claim the protections set out in ORS 659A.112? Several definitions that apply to all of the statutes in ORS chapter 659A bear directly on that question. ORS 659A.100 defines "disabled person" in part as "a person who has a physical or mental impairment which substantially limits one or more major life activities." ORS 659A.100(1). The statute then defines a "major life activity" as including "self-care, ambulation, communication, transportation, education, socialization, employment and ability to acquire, rent or maintain property." ORS 659A.100(2)(a) (emphasis added). As relevant here, "substantially limits" means:

"The impairment significantly restricts the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner or duration under which the average person in the general population can perform the same major life activity."

ORS 659A.100(2)(d)(B). The Bureau of Labor and Industries, the agency authorized to promulgate rules to implement chapter 659A, ORS 659A.805(1)(e), further defines "substantial limitation" as it relates to employment as follows:

"To be substantially limited in the major life activity of working, a person must be significantly restricted in the ability to perform a class of jobs or a broad range of jobs in various classes as compared to the ability of an average person with comparable skill, experience, education or other job-related requirements needed to perform those same positions."

OAR 839-006-0205(6)(b). For purposes of this case, then, plaintiff is a "disabled person" if he has a physical impairment that significantly limits his ability to perform a broad range of jobs in various classes that a person of comparable qualifications could perform.

Plaintiff has presented evidence in the form of a letter from his doctor that his prescribed regimen of anticoagulants creates "an increased risk of serious internal or external bleeding or hemorrhage if he is physically injured." That statement explicitly states neither that he is unable "to perform a class of jobs or a broad range of jobs in various classes" nor how that inability compares to the ability of "an average person with comparable skill, experience, education or other job-related requirements needed to perform those same positions." Id. However, when reviewing a grant of summary judgment, we look not only to facts in evidence but to inferences in favor of the nonmoving party that may be drawn from those facts. Robinson v. Lamb's Wilsonville Thriftway, 332 Or 453, 455, 31 P3d 421 (2001). Here, plaintiff has produced evidence that he must avoid activities that might cause physical trauma. From that, a reasonable factfinder could infer that plaintiff's condition renders him unable to perform many jobs in, for example, the construction, maintenance, law enforcement, and manufacturing fields that an average person of like skill and experience would be able to perform. A reasonable factfinder could conclude that those amount to "a class of jobs or a broad range of jobs in various classes." OAR 839-006-0205(6)(b).

Defendant, however, notes that ORS 659A.139 requires Oregon's disability discrimination statutes to "be construed to the extent possible in a manner that is consistent with any similar provisions of the federal Americans with Disabilities Act of 1990, as amended." According to defendant, the Oregon statute's definition of "disabled person" is substantially similar to the federal one, and a recent United States Supreme Court case, Toyota Motor Mfg., Ky., Inc. v. Williams, 534 US 184, 122 S Ct 681, 151 L Ed 2d 615 (2002), defines that term so as to disqualify plaintiff. We agree that the Oregon and federal definitions of "disabled person" are similar. The federal Americans with Disabilities Act (ADA) provides:

"The term 'disability' means, with respect to an individual -

"(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual[.]"

42 USC