                                                                            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                            NOT FOR PUBLICATION                              JUL 07 2011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


                                          2
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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