STATEMENT OF JURISDICTION

The Equal Employment Opportunity Commission (“EEOC” or “Commission”) brought this enforcement action against defendant McLeod Health, Inc. (“McLeod”) pursuant to T itle I of the Americans with Disabilities Act of 1990, as amended (“ADA”), 42 U.S.C. §§ 12101 et seq. 1-JA-12-18.[1] The district court had jurisdiction under 28 U.S.C. §§ 451, 1331, 1337, 1343, and 1345. The district court entered final judgment on September 21, 2017. 2-JA-604. The EEOC timely appealed on November 20, 2017. 2-JA-605-07. This Court has jurisdiction under 28 U.S.C. § 1291.

1. Does the record support a reasonable jury finding that McLeod violated the ADA by forcing charging party Cecelia Whitten to undergo two medical exams without any reasonable belief, based on objective evidence, that Whitten’s condition prevented her from performing essential job functions or posed a direct threat?

2. Could a reasonable jury find that, even if McLeod were justified in subjecting Whitten to one or more medical examinations, the examinations it gave Whitten were neither job-related nor consistent with business necessity, in violation of the ADA?

3. Could a reasonable jury find that McLeod discriminated against Whitten in violation of the ADA by putting her on involuntary unpaid leave and subsequently terminating her employment based on the results of the improper medical examinations to which it had subjected her?

STATEMENT OF THE CASE

A. Course of Proceedings

This is an appeal from a final judgment of the district court dismissing this ADA action. On September 11, 2014, the EEOC filed a complaint alleging that McLeod violated the ADA by forcing its employee, Cecelia Whitten, to undergo two illegal medical examinations and by discharging her due to her disability after first placing her on forced unpaid leave. 1-JA-12-18. McLeod moved for summary judgment, arguing that the medical examinations were appropriate in light of Whitten’s symptoms, and that the examinations showed Whitten was no longer qualified for her position because she posed a threat to herself that could not be accommodated. R.40.[2] The magistrate judge issued a report and recommendation on January 21, 2016, suggesting that the district court grant McLeod’s motion and dismiss the case. 2-JA-487-518.

On March 31, 2016, the district court adopted the recommendation in part. It dismissed the illegal examination claim in its entirety, but rejected the magistrate judge’s rationale for dismissing the wrongful termination claim and remanded the case for further consideration. 2-JA-519-38. McLeod moved for reconsideration, and the district court concluded, in an order dated November 18, 2016, that additional analysis of the wrongful termination claim was necessary. It instructed the magistrate judge to give “particular attention to the role of the futile gesture doctrine, as well as whether a failure to accommodate claim exists and survives summary judgment.” 2-JA-542.

On June 19, 2017, the magistrate judge again recommended summary judgment on the wrongful termination claim. 2-JA-543-74. In an opinion dated September 21, 2017, the district court adopted the recommendation and granted summary judgment in favor of McLeod on all remaining claims. 2-JA-575-603.

B. Statement of the Facts

McLeod is a regional health network that owns and operates multiple hospitals and doctors’ practices in South Carolina. 1-JA-141-42. This case arises from McLeod’s termination of Cecelia Whitten after twenty-eight years of employment as the editor of McLeod’s employee newsletter. 3-JA-716. In addition to layout and editing responsibilities, Whitten’s Communications Specialist position required her to write stories, which occasionally involved going to McLeod’s five different campuses and into the community to interview people and take pictures. Id.

Whitten was born with a condition called postaxial hypoplasia of the lower extremity, which resulted primarily in missing bones and tendons in her legs and feet, a shortened right arm, and missing digits on her right hand and both feet. 1-JA-142; 1-JA-281-83. She testified that, as a result of her condition, “[f]alling has been part of [her] life all [her] life and there’s no way around it.” 1-JA-317.

Nonetheless, Whitten performed her job successfully for many years. As McLeod acknowledged in the position statement it submitted to the EEOC, Whitten’s “medical condition [did] not impact[] her ability to perform the essential functions of her job during her employment.” 1-JA-142. Although she occasionally received counseling for tardiness and failure to meet deadlines throughout her time at McLeod, neither issue ever resulted in discipline. 1-JA-29; 1-JA-33; 1-JA-155-277.

Whitten’s supervisor, Jumana Swindler, testified that Whitten’s performance and enthusiasm began to decline in late 2011. 1-JA-29-30; 2-JA-386-89. Swindler also claimed she noticed Whitten declining physically, frequently appearing sweaty, flush, or pale, having difficulty walking even short distances, and requiring frequent absences. 1-JA-30-33. However, as Whitten’s medical records show, her condition has been stable for two decades and her weight, cardiovascular health, and mobility exhibited no changes during the period in which Swindler claims to have seen a difference. 3-JA-895-911. Walking has been a challenge for Whitten throughout her career with McLeod, and the occasional sweating, flushing, and pallor about which Swindler testified are consistent with Whitten’s long-standing ailments, which include obesity, hypertension, and pre-diabetes.

Swindler also claimed that other employees suspected Whitten “was possibly sleeping in her office,” although she admitted their suspicions were never confirmed. 1-JA-31 (referring to these alleged claims as “nothing confirmed and I never saw it”). As a result, she testified, she began stopping by Whitten’s office more frequently “to see … if I observed the behavior,” but she never witnessed Whitten sleeping at work. 2-JA-391. Swindler did not talk to Whitten directly to express her concerns or ask if her health was declining, and had no training to bolster her subjective impressions of Whitten’s deteriorating condition. 2-JA-390-91 (“Q. Did you talk to Miss Whitten about your observations? A. No, I did not. … I did not think it appropriate. I would not say anything to her.”); 2-JA-399-400; 2-JA-403-04.

As described supra at 4-5, Whitten’s congenital condition has always made falling a regular part of her life. 1-JA-317. These falls usually occurred outside work but occasionally happened on McLeod’s premises as well. Whitten’s personnel and medical files refer to falls at work in 1992, 1994, 2000, 2003, and 2006, prior to the events of this case. 3-JA-851-60; 3-JA-864-68. Again, however, McLeod admitted in its EEOC position statement that Whitten’s condition and attendant falls did not prevent her from performing her essential job functions. 1-JA-142.

One weekend in April 2012, Whitten tripped over a tree root while walking with her sister at a local park. Although she required stitches, she missed no work because of the fall and experienced no further complications. 3-JA-716. The following month she caught her toe on a rug at work and fell when returning to her office, but was largely unhurt and did not require any medical attention. Id. In July 2012, Whitten fell at a restaurant during her lunch break and hurt her arm. She had an x-ray that afternoon, which confirmed that the arm was not broken, and returned to work at the normal time the next morning. Id.

After the July 2012 fall, McLeod officials Swindler, Shannon Carr (Director of Human Resources), and Octavia Williams-Blake (Associate Vice President of Occupational Health) discussed requiring Whitten to undergo a fitness-for-duty exam. Swindler testified that she believed such an exam was warranted partly because she believed Whitten was falling more often and partly because she was not pleased with the quality of Whitten’s recent work. 1-JA-44-46. She also testified she thought the exam might uncover a neurological basis for Whitten’s falls, even though she had no neurological training and knew Whitten’s permanent physical condition caused her to fall frequently. 2-JA-399-400. In opting to require the exam, Carr and Williams-Blake both relied on Swindler’s representations regarding Whitten’s job performance and health. 1-JA-89-94; 1-JA-60-62. None of the three discussed their concerns with Whitten before ordering her to have the exam. 2-JA-399.

Michelle Pittard, a nurse practitioner in Occupational Health, conducted Whitten’s initial fitness exam on July 12, 2012. In addition to discussing Whitten’s medical history and recent falls, Pittard examined the functioning of her heart, lungs, joints, and neck, as well as her hearing, neurological functioning, and psychiatric state. 2-JA-427-37. Whitten told her during this examination that the decreased mobility resulting from her congenital condition caused her previous falls. 2-JA-438. Based on Whitten’s self-reported history of falling, her recent falls, and information from McLeod about the physical requirements of Whitten’s job, Pittard recommended Whitten undergo a functional capacity exam as a prerequisite for returning to work. 3-JA-767; 3-JA-770. McLeod then placed Whitten on paid administrative leave pending a review of her ability to perform her job safely. 1-JA-65-66.

Two weeks later, occupational therapist Todd Laliberte gave Whitten a functional capacity exam.[3] Laliberte worked for McLeod as a Functional Capacity Evaluator Specialist and Ergonomics Specialist. He tested Whitten’s ability to stand, her range of movement, grip, and gait, the amount she could lift, push, and pull, and her ability to squat, kneel, and stoop. He also had her type a brief story. 3-JA-796-817; 3-JA-643-44; 3-JA-652-53.

Laliberte knew McLeod characterized Whitten’s job as involving “sedentary to light work,” with “[l]ifting and carrying requirements” of “20 lbs or less.” 3-JA-955. Nevertheless, he determined that she should be able to lift up to fifty pounds, and he had her lift and carry a thirty-eight-pound weight as part of the exam. 2-JA-341-42; 2-JA-355-59. At no time during the examination did Laliberte ask Whitten to clarify her job duties or attempt to determine when her falls had begun. 2-JA-340; 2-JA-343-44; 2-JA-368. Still, he believed, despite the lifelong nature of her condition, that the onset of her falls was “recent[].” 3-JA-934.

At the end of this examination, Laliberte wrote in an email to Williams-Blake that Whitten was a “Mild to Moderate fall risk because of ankle weakness and severe decondition [sic] state but she is capable of performing 70-80 on her essential job demands to include lifting and carrying up to 40 lbs without an assistance device 20 to 30 feet.” 3-JA-929. In his subsequent report of July 31, 2012, however, he stated that she constituted a “[h]igh fall risk with 75 % of all work related task and facilit[y] access.” 3-JA-840. His report also recommended several proposed accommodations, including restriction of her assignments to a ten-mile distance from her office, a parking space allowing her access to the building without requiring her to step over a curb, modifications to her workstation and chair, and the use of a scooter. 3-JA-839. Laliberte did not consult with Whitten in compiling this list, 2-JA-372-73; 1-JA-321-22, and he did not provide his rationale for suggesting the ten-mile work restriction or for why he believed Whitten would be less likely to fall if she were closer to her primary job site.

At Williams-Blake’s direction, Whitten submitted a reasonable accommodation request form the following week, on August 3, 2012. Whitten testified that, although she submitted the form because she was ordered to do so, she did not think she needed any accommodations to continue performing the job (which she had been doing successfully for nearly three decades), and she was worried any requests she made would be used to create a pretext to terminate her. 1-JA-315-16; 1-JA-333-34. On the form, Whitten listed the following proposed accommodations: Laliberte’s help with selecting appropriate assistive devices, a parking spot not near a curb, a desk chair with adjustable arms, and a limitation on walking or standing “as much as possible” (though she noted that this would not be as much of an issue if she had a scooter or power chair). Whitten did not ask that she be allowed to stay closer to her primary work site. 3-JA-735-37.

After reviewing Whitten’s form, a committee examining the case concluded she could not return to her job because Laliberte’s proposed mobility restrictions would prevent her from traveling to events within a 100-mile radius and navigating them to conduct interviews and take pictures, an essential function of her job. 1-JA-106. Williams-Blake then informed Whitten on August 8, 2012, that she could not return to her job. 3-JA-719; 1-JA-301. Williams-Blake and others told Whitten several times that she could submit a contrary doctor’s opinion or retake the functional capacity exam if she disagreed with Laliberte’s proposed restrictions. 1-JA-69; 1-JA-109-11; 3-JA-665-66; 3-JA-687-89. Whitten, however, testified that she believed any efforts to obtain and submit a contrary medical opinion or retake the exam would be futile because Williams-Blake had already told her that she could not return to her position. 3-JA-630; 3-JA-667-68; 3-JA-689-92.

McLeod told Whitten she could take an unpaid medical leave of absence while looking for an appropriate alternative position. 3-JA-719. However, it also said she would have to compete for any such position with other interested applicants and the new position would likely pay less. 2-JA-448-49; 2-JA-458; 3-JA-720. Whitten found two potential alternative positions, but her interest in them waned when she learned that each would pay less than one-third of what she had been earning before her involuntary leave. 3-JA-720.

During this period McLeod offered to assist her with applying for short-term disability benefits. 1-JA-84. But when she sought those benefits, Liberty Mutual, McLeod’s disability benefits carrier, denied Whitten’s application. It concluded Whitten did not meet the Short Term Disability Plan’s definition of “disabled” because the medical condition that caused her fall had been present since birth, and “there ha[ve] been no changes noted in your condition.” 3-JA-942.

McLeod terminated Whitten’s employment effective February 13, 2013, once her involuntary, unpaid leave reached six months, in keeping with its policy. 3-JA-954. It identified the reason for the termination as “MISC-DISABILITY.” 3-JA-951.

Whitten submitted a timely EEOC charge. 3-JA-712-20. The EEOC subsequently filed this lawsuit against McLeod on September 11, 2014, alleging that McLeod violated the ADA by forcing Whitten to undergo two illegal medical examinations and by discharging her due to her disability after first placing her on forced leave. 1-JA-12-18.

C. District Court’s Decision

McLeod moved for summary judgment on August 25, 2015. It argued that Whitten’s medical examinations were appropriate in light of her symptoms and that the examinations showed Whitten was no longer qualified for her position because she posed a threat to herself that could not be accommodated. R.40-1 at 18-35. In the magistrate judge’s initial report and recommendation, he concluded that it was undisputed that traveling to and navigating around story sites was an essential part of Whitten’s Communications Specialist position. 2-JA-505-08. He also found that McLeod was reasonable in believing Whitten’s medical condition could impair her ability to perform that function and that the scope of the examinations she underwent was no broader than necessary. 2-JA-508-13. The recommendation did not address the threat argument. 2-JA-511 at n.13.

With respect to the wrongful termination claim, the magistrate found that Laliberte’s recommendation to limit Whitten’s assignments to those within ten miles of her office, combined with her requested accommodation of limiting her walking and standing, precluded her from performing her job. 2-JA-516. The magistrate also found that Whitten’s failure to submit a report or opinion from her doctor to challenge Laliberte’s assessment constituted a failure to engage in the ADA’s “interactive process” to determine reasonable accommodations, leaving McLeod with no choice but to defer to Laliberte’s assessment. 2-JA-516-17. The magistrate therefore recommended granting summary judgment on both claims. 2-JA-518.

The district court agreed with the magistrate’s recommendation regarding the illegal examination claim. The court treated as dispositive Swindler’s testimony that safe navigation at story sites was a physical requirement of the job. 2-JA-524-25. It then concluded that McLeod’s medical examination of Whitten was warranted because “objective evidence” (i.e., her three falls over four months and Swindler’s testimony about her job performance and physical condition) supported its concern that her medical condition might impair her ability to perform this essential job function. 2-JA-526-28. Finally, the court found that the particulars of the examinations were sufficiently tied to Whitten’s ability to perform her job safely. 2-JA-530-33. Like the magistrate judge, the court did not discuss whether Whitten’s medical condition constituted a threat to herself.

However, the district court disagreed with the magistrate’s conclusion that McLeod was entitled to summary judgment on the wrongful termination claim. 2-JA-536-37. The court held that the magistrate had wrongly weighed Whitten’s failure to introduce her own doctor’s report or to formally apply for other positions at McLeod against her in finding that she had failed to engage in the ADA’s interactive process. 2-JA-536-37. The court explained that because Whitten testified Williams-Blake told her she could not return to her position, there was a factual dispute over whether she believed that producing such a report would have been futile, which could have implicated the ADA’s “futile gesture doctrine.” 2-JA-535-36.

McLeod requested reconsideration of the district court’s ruling on the wrongful termination claim. The district court then withdrew that part of its opinion, concluding that additional analysis of the claim was necessary, and remanded to the magistrate to “address the merits of the wrongful termination claim, with particular attention to the role of the futile gesture doctrine, as well as whether a failure to accommodate claim exists and survives summary judgment.” 2-JA-542.

In his subsequent recommendation, the magistrate judge again began with the premise that an ability to navigate safely was an essential function of Whitten’s position, a finding adopted by the district court. 2-JA-556. Based on Laliberte’s proposed ten-mile work restriction and Whitten’s proposed accommodation limiting her walking and standing, the magistrate concluded that “no reasonable accommodation existed that would allow [Whitten] to remain in her position as Communications Specialist.” 2-JA-558. The magistrate emphasized that Whitten had not submitted a contrary opinion from her doctor regarding her limitations despite being encouraged to do so multiple times. 2-JA-558-60. Given these invitations, the magistrate concluded that Whitten’s assumption that submitting such information would have been futile (based on Williams-Blake telling her she would never return to her position) was unreasonable. 2-JA-561-63.

The district court adopted the magistrate’s recommendation and granted summary judgment to McLeod. 2-JA-603. The court noted that the EEOC had not brought a failure-to-accommodate claim and that the issue only arose to the extent it constituted evidence of wrongful discharge. 2-JA-579-81. In ruling on that claim, the court explained that Whitten was not a qualified individual with a disability because the restrictions Laliberte set out precluded her from performing the essential functions of the job, and Whitten had not produced any medical opinion calling Laliberte’s conclusions into question. 2-JA-581-82. The court further held that submission of a contrary medical opinion would not have been futile in light of McLeod’s repeated assurances that it would consider any such material. 2-JA-583-84.

STANDARD OF REVIEW

This Court reviews a grant of summary judgment de novo. EEOC v. Central Wholesalers, Inc., 573 F.3d 167, 174 (4th Cir. 2009). “Summary judgment should only be rendered if ‘the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.’” Id. (quoting Fed. R. Civ. P. 56(c)). “[T]he court must draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000); see also Thompson v. Aluminum Co. of Am., 276 F.3d 651, 656 (4th Cir. 2002) (“We make no credibility determinations, and we do not weigh the evidence.”). The reviewing court “must disregard all evidence favorable to the moving party that the jury is not required to believe” and must “give credence to the evidence favoring the nonmovant ….” Reeves, 530 U.S. at 151.

SUMMARY OF ARGUMENT

McLeod suspended and ultimately terminated Whitten after twenty-eight years of successful service in the same position based on the results of two medical examinations. Forcing Whitten to undergo the examinations violated the ADA because, given her lengthy tenure and the congenital nature of her disability, McLeod lacked a reasonable basis to believe that her medical condition could impair her ability to perform her essential job functions. At the very least, whether McLeod acted reasonably is a disputed issue of fact for a jury to decide, and the court should not have granted summary judgment on that basis. Even if the examinations were justified in theory, moreover, the actual tests McLeod administered to Whitten — tests that ostensibly formed the basis of McLeod’s decision to place her on unpaid leave and later terminate her employment — were not sufficiently tied to Whitten’s job requirements.

In addition, McLeod relied on the results of its unlawful examinations to determine that Whitten could no longer perform her job. Because this conclusion was unjustified and irrational on its face, McLeod’s termination of Whitten raises a reasonable inference of unlawful discrimination in violation of the ADA.

ARGUMENT

Congress passed the ADA to combat not only the “outright intentional exclusion” of disabled people, but “overprotective rules and policies” as well: a paternalism that denies disabled individuals the opportunity for gainful employment. 42 U.S.C. § 12101(a)(5). This case presents a clear illustration of why such protections are necessary. McLeod decided to subject Whitten to two medical exams after it became aware that she had fallen several times for reasons related to her disability. The company made this decision not because Whitten was unable to perform her job, but because it paternalistically feared that she might hurt herself in the future. As McLeod’s Director of Human Resources put it, “we were concerned for her safety and [] we didn’t want her to come back to work and hurt herself any further.” 1-JA-110.

Despite her congenital disability, Whitten worked successfully for McLeod for nearly three decades. She fell occasionally, owing to the lack of bones, tendons, and other structures in her legs and feet that decreases her flexibility and stability. 3-JA-617-620. But these falls did not prevent her from performing her job. Indeed, McLeod specifically admitted that “her medical condition has not impacted her ability to perform the essential functions of her job during her employment.” 1-JA-142.

Disregarding Whitten’s long history of successful employment and the lack of objective evidence of any change in her condition, McLeod decided that her fall at a restaurant during lunch necessitated a fitness for duty test, which in turn led to Laliberte’s functional capacity exam. Laliberte failed to consider the congenital nature of Whitten’s condition or her history of falls, and did not even ask whether her condition had recently changed. Instead, he unilaterally and erroneously decided that her falls had begun only recently, and on that basis recommended a number of unnecessary restrictions before she could return to her job. When McLeod determined it could not accommodate these unnecessary restrictions, it suspended Whitten from working and, after six months, terminated her — all due to a misguided “concern for her safety.” 1-JA-110.

The medical examinations were not grounded in a reasonable belief, based on objective evidence, that Whitten’s condition prevented her from performing essential job functions or posed a direct threat to herself. Whitten’s twenty-eight years performing the job rendered any such fears unreasonable. Forcing her to undergo the examinations was therefore a violation of the ADA. Whitten’s suspension and termination resulting from the unsupported conclusions of these unlawful examinations, in turn, constituted an additional ADA violation. At the very least, these issues present genuine questions of material fact for a jury to decide, and summary judgment against the EEOC was therefore inappropriate.

I. A Reasonable Jury Could Find That McLeod Violated the A DA by Forcing Whitten to Undergo Two Unjustified Medical Examinations.

A. There is a Triable Issue of Fact as to Whether McLeod Had a Reasonable Belief, Based on Objective Evidence, that Whitten Could Not Perform Her Essential Job Functions or Posed a Direct Threat.

The ADA provides that “[a] covered entity shall not require a medical examination and shall not make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature or severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity.” 42 U.S.C. § 12112(d)(4)(A); see also 29 C.F.R. § 1630.14(c) (allowing the medical examination or inquiry of employees that are “job-related and consistent with business necessity” and relate to “the ability of an employee to perform job-related functions”); see generally Porter v. U.S. Alumoweld Co., 125 F.3d 243, 246 (4th Cir. 1997) (noting that EEOC regulations “provide clarification” as to whether a medical examination meets the ADA’s requirements). The employer bears the burden of meeting this standard, which is “‘quite high.’” Wright v. Ill. Dep’t of Children & Family Servs., 798 F.3d 513, 523 (7th Cir. 2015) (quoting Conroy v. N.Y. State Dep’t of Corr. Servs., 333 F.3d 88, 97 (2d Cir. 2003)); see also Bates v. Dura Auto. Sys., Inc., 767 F.3d 566, 581-82 (6th Cir. 2014) (describing standard).

The ADA’s text and implementing regulations establish two relevant points of law. First, employees who are known by their employers to be disabled are subject to the same protections against unwarranted medical exams as their colleagues. See 42 U.S.C. § 12112(d)(4)(A) (forbidding inquiry into the “nature and severity” of a disability, not merely whether it exists). McLeod’s contrary argument, made to the district court, contravenes the statute’s plain language and misstates the law. R.40-1 at 19 (“[I]f an employer is already aware of an employee’s disability, the usual prohibitions against medical inquiries do not apply, and a medical exam or medical inquiry is lawful.”). Such a rule would also eviscerate the ADA’s protections for disabled employees.

Second, as the regulations provide and the EEOC has explained in its Enforcement Guidance, a legitimate medical inquiry or examination must be based on the employer’s “reasonable belief, based on objective evidence,” that “a medical condition … will impair [an employee’s] ability to perform essential job functions or will pose a direct threat.” Enforcement Guidance: Disability-Related Inquiries and Medical Examinations of Employees Under the ADA (July 27, 2000), at https://www.eeoc.gov/policy/docs/guidance-inquiries.html (emphasis added); see generally Kroll v. White Lake Ambulance Auth., 691 F.3d 809, 815 (6th Cir. 2012) (“Kroll I”) ( observing, in construing the medical examination provision of ADA, that “[w]e recently reaffirmed that the EEOC Enforcement Guidance is ‘very persuasive authority’ in questions of statutory interpretation of the ADA”).

Courts that have considered the issue have agreed. See, e.g., Wright, 798 F.3d at 522-23 (“Courts consequently require that an employer provide ‘significant evidence that could cause a reasonable person to inquire as to whether an employee is still capable of performing his job.’” (quoting Sullivan v. River Valley Sch. Dist., 197 F.3d 804, 811 (6th Cir. 1999))); Kroll v. White Lake Ambulance Auth., 763 F.3d 619, 623 (6th Cir. 2014) (“Kroll II”) (“[T]he individual who decides to require a medical examination must have a reasonable belief based on objective evidence that the employee’s behavior threatens a vital function of the business.”). If an employer lacks such objective evidence relating to an employee’s ability to perform essential functions or poses a direct threat, the examination is unfounded and improper.

1. McLeod Lacked a Reasonable Belief, Based on Objective Evidence, that Whitten Could Not Perform Her Essential Job Functions.

The record does not support the district court’s conclusion that Whitten’s compulsory medical examinations complied with the ADA. The court based its holding on the premise that the ability to “navigate safely” was an essential function of Whitten’s job, and that Whitten’s recent falls justified McLeod in questioning whether Whitten could perform that function. 2-JA-523-28. To the contrary, both the necessity of safe navigation for her position and the relevance of Whitten’s falls to her ability to do her job are disputed questions of fact.

a. A reasonable jury could find that “safely navigating story sites” was not an essential function of Whitten’s Communications Specialist job.

As this Court has observed, “[t]o determine essential job functions, [the ADA] requires that consideration ‘be given to the employer’s judgment as to what functions of a job are essential, and if an employer has prepared a written description before advertising or interviewing applicants for the job, this description shall be considered evidence of the essential functions of the job.’” Reyazuddin v. Montgomery Cty., 789 F.3d 407, 414-15 (4th Cir. 2015) (quoting 42 U.S.C. § 12111(8)).

In defining the “essential functions” of a job, the ADA’s implementing regulations distinguish between “fundamental job duties,” which are essential, and “marginal functions of the position,” which are not.[4] 29 C.F.R. § 1630.2(n)(1). Reasons to consider a particular function “essential” include if the position exists to perform the function, if only a limited number of employees are available to perform the function, and if the function is highly specialized. Id. § 1630.2(n)(2). Relevant evidence includes, in part, the employer’s judgment, written descriptions of the position, job time spent performing the function, consequences of the job holder not performing the function, and the work experience of past holders of the job. Id. § 1630.2(n)(3).

Tellingly, McLeod’s own written description of the Communications Specialist position does not list safe navigation among the job’s essential functions. 3-JA-722-25. Though not dispositive per se, this is strong evidence the function is not essential. See 29 C.F.R. § 1630.2(n)(3) (noting the relevance of written descriptions of a position to determine its essential functions); Jacobs v. N.C. Admin. Office of the Courts, 780 F.3d 562, 580 (4th Cir. 2015) (finding a genuine dispute of fact as to whether working behind the counter was an essential function of the deputy clerk position where, inter alia, “[t]he job description does not indicate that all deputy clerks were expected to work at the front counter”); Washburn v. Harvey, 504 F.3d 505, 509 (5th Cir. 2007) (holding that the plaintiff had shown a triable issue of fact concerning the essential nature of a job requirement when a job posting for the position did not include the requirement); Bartee v. Michelin N. Am., Inc., 374 F.3d 906, 915 (10th Cir. 2004) (holding that the absence of a job function on an employer’s position description supported a jury verdict that the function was not essential); Stone v. City of Mount Vernon, 118 F.3d 92, 99 (2d Cir. 1997) (holding that the absence of a function in a job description created a triable dispute of fact over whether that function was essential).

Swindler testified that Whitten’s position required her “to actually navigate to and from those areas in which the event or interviews were occurring … whether it was inside on the lawn, at health fairs, or at the different facilities.” 1-JA-28. Whitten, however, testified that the ability to navigate safely through McLeod campuses and offices was not a job requirement. 3-JA-670. She testified that Swindler once instructed her that she must conduct an interview over the phone instead of in person, for example. 1-JA-310-11. Whitten also explained that some campuses had their own onsite public relations personnel who would write stories and take pictures, which they would send to Whitten for inclusion in the newsletter. 1-JA-308-09; 1-JA-311-12.

Although Whitten elsewhere agreed that her job involved “safely navigat[ing] marketing department functions” and “walking in a wide variety of areas in order to obtain photographs and interviews,” 3-JA-637, a reasonable jury could find that Whitten was expressing her preference for conducting in-person interviews rather than agreeing that such aspects of her job were essential. 3-JA-645; 1-JA-311; cf. 2-JA-392-93. When asked whether in-person interviews were part of the job, Whitten testified, “Not necessarily. … No one had ever told me to do that,” even though that was her preferred method. 1-JA-310. Swindler, similarly, testified that she “encouraged” Whitten to interview people in person, but never claimed she required it and admitted to demanding that Whitten do a phone interview on at least one occasion. 2-JA-392-93.

The Communications Specialist job description provides that conducting interviews is essential to the job, 3-JA-722, but it does not specify that such interviews must be face-to-face and mentions nothing about safe navigation of offsite locations. And although Whitten and Swindler both testified to a preference for in-person interviews, none of the evidence compels that method of interviewing. Accordingly, a reasonable jury could find that “safe navigation of story sites” was not an essential function of Whitten’s job.

The facts of C oursey v. University of Maryland Eastern Shore, 577 F. App’x 167 (4th Cir. 2014), where this Court found that a medical examination of the plaintiff would have been appropriate under the ADA, stand in stark contrast to this case and illustrate clearly why a different result is warranted here. Coursey was a university professor and athletics director, and his position “required that he instruct, supervise, and interact with students and faculty in a professional and non-threatening manner.” Id. at 173. After the defendant university received a “plethora of complaints about Coursey’s violent outbursts, erratic and inappropriate behavior, as well as his disregard for [defendant’s] policies,” id., it requested that he undergo a “medical evaluation and/or mental health evaluation to ascertain his fitness for duty.” Id. at 170.

This Court held that the defendant “has shown that it had valid concerns about Coursey’s ability to perform his duties.” Id. at 173. As the Court observed, “[a] university is in the business of educating students; as such, it is essential that its faculty members be able to fulfill that role.” Id. Here, in contrast, there is, at the very least, a genuine dispute of fact as to whether “safely navigating story sites” was an essential function of Whitten’s job, given that it was not even listed on her job description and she could perform the job in other ways.

b. A reasonable jury could find that Whitten’s three falls in April-July 2012 reflected no change in her condition or her ability to perform the essential functions of her job.

The court accepted McLeod’s argument that Whitten’s three falls in four months gave McLeod a reasonable basis to seek a medical exam. In Whitten’s unique case, however, this was far from undisputed. Whitten had performed her job satisfactorily, despite her condition, during the entirety of her twenty-eight years with the company. Her congenital condition decreased her flexibility and stability, leading to occasional falls, but this was true throughout her time at McLeod (and, indeed, throughout her life). 3-JA-617-20. Her medical records showed no appreciable change in her condition during the preceding twenty years, during which her weight, pulse, and blood pressure remained relatively constant. 3-JA-896-911.

Whitten fell more during some years than others, but this was true during her entire employment period, and McLeod produced no evidence that the frequency of her falls was increasing. 1-JA-291. She rarely fell at work, but the record shows that, even when earlier falls did occur in the workplace, McLeod, quite rightly, did not treat them as precluding her continued employment. 3-JA-851-60; 3-JA-864-68. Of the three falls that allegedly led McLeod to require the medical examinations, only one — which required no medical attention — occurred at work. 3-JA-716. None of the falls occurred while Whitten was working offsite in pursuit of a story, calling into question McLeod’s claim that the falls gave rise to a reasonable concern about her ability to navigate safely at story sites.

Records from Liberty Mutual, McLeod’s disability benefits carrier, further support Whitten’s view that her condition had not gotten worse in the months leading up to her compulsory medical examination and suspension. Liberty Mutual rejected Whitten’s application for short-term disability benefits after a medical review because it concluded she had her “medical condition since birth,” “there [had] been no changes noted in [her] condition,” and she was still able to do her “mostly sedentary desk job” which required “some travel to other campuses.” 3-JA-941-42.

Apart from its alleged concern that Whitten might not be able to navigate without incident, McLeod also emphasized to the district court Swindler’s impressionistic sense that Whitten’s health was worsening. This evidence, on which the district court did not rely, similarly fails to provide a reasonable basis for the medical examination. Swindler testified that she thought Whitten looked increasingly sweaty and flush in 2011 and 2012, and appeared to have trouble walking even short distances. 1-JA-30-33. But Whitten had these same issues during her entire career with McLeod, and McLeod has provided no objective evidence to support Swindler’s impressions. Swindler also testified about speculation she had heard that Whitten might be sleeping in her office, but admitted she never actually witnessed Whitten asleep, even though she began stopping by her office more frequently in an attempt to catch her in the act. 1-JA-31; 2-JA-391.

Swindler never raised these concerns directly with Whitten or asked if her health was declining. 2-JA-390-91; 2-JA-399-400; 2-JA-403-04. She speculated that the cause of Whitten’s falls might be neurological, but kept that suspicion to herself, and had no medical training to bolster her subjective impressions. 2-JA-399-400. The subjective impressions of a single witness, contradicted by substantial contrary evidence, cannot be the objective basis for a reasonable belief the ADA requires.

McLeod also argued to the district court that its medical exams were justified because Whitten showed less enthusiasm and a decline in performance. R.40-1 at 21; 1-JA-29-30; 2-JA-386-89. The district court relied in part on Whitten’s alleged failure to meet deadlines in determining that McLeod was reasonable in demanding she undergo the fitness for duty and functional capacity exams. 2-JA-528. But a reasonable jury could find, based on the evidence in the record, that any purported trouble Whitten was having with meeting deadlines was unrelated to her physical condition, and, accordingly, it could not serve as the basis for subjecting her to medical examinations.

Though the district court focused on Whitten’s alleged recent failure to meet deadlines, this was not a new concern. The record reflects that Whitten had been coached about deadlines at least as far back as 1995, and again in 2000, 2004, and 2005. 3-JA-697; 1-JA-157-58; 1-JA-180; 1-JA-203; 1-JA-232; 1-JA-235; 1-JA-276. Swindler confirmed this, testifying that Whitten had had intermittent performance problems throughout her time with McLeod, and explained that coaching short of discipline had always taken care of the issues in the past. 1-JA-29; 1-JA-33. Such issues were never serious enough to result in discipline, either before or after Swindler claims she began to suspect Whitten’s health was declining. Swindler mentioned no such concerns in compiling Whitten’s October 2011 performance review, in which she rated Whitten “successful,” even though McLeod claims Whitten’s problems began eighteen months before the start of her involuntary leave in July 2012. 1-JA-29; 1-JA-33; 2-JA-396; 3-JA-943-50. And although during her deposition Swindler conflated her concerns about Whitten’s performance and her concerns about her falls, 1-JA-44-46, she testified that it was Whitten’s falls, and not her alleged performance deficiencies, that led McLeod to require Whitten’s medical examination. 2-JA-397.

Insofar as McLeod had concerns about Whitten’s ability to meet deadlines, these were performance issues, not medical issues, and the appropriate way to address them would be through counseling rather than medical examination. “An employee’s behavior cannot be merely annoying or inefficient to justify an examination; rather, there must be genuine reason to doubt whether that employee can perform job-related functions.” Brownfield v. City of Yakima, 612 F.3d 1140, 1146 (9th Cir. 2010) (quoting Sullivan, 197 F.3d at 811). Indeed, McLeod’s own head of Human Resources, Shannon Carr, recognized this: she testified that, when Swindler expressed a concern that Whitten’s perceived performance problems were related to her health, Carr told her to address the concerns with Whitten directly. 1-JA-90. The district court therefore erred in concluding that the record evidence about Whitten’s alleged performance problems supported subjecting her to the medical exams at issue.

McLeod also relies in part on Swindler’s testimony that Whitten was evading her work and asking others to do it for her. 1-JA-30. But Whitten testified that Swindler and her predecessors had designed a system under which employees at other campuses would send Whitten information about events in their departments. 1-JA-308-12. Swindler corroborated this assessment. 2-JA-384-85 (“[O]ur team is — is working together but supporting each other. … [A] number of people supported her. We’re a team, a communications team.”) Far from shirking her duty to go off campus and harvest stories in person, Whitten testified that at least once Swindler prevented her from doing so, requiring her to interview subjects over the phone against her wishes. 1-JA-310-11. Williams-Blake testified that Whitten had never refused to travel for work. 1-JA-74. Thus, to the extent McLeod argues it acted reasonably in relying on this purported deficiency to force Whitten to undergo the medical examinations, a reasonable jury could readily find otherwise, and summary judgment was unwarranted.

2. McLeod Lacked a Reasonable Belief, Based on Objective Evidence, that Whitten Posed a Direct Threat.

McLeod also lacked a reasonable basis to believe Whitten’s disability posed a direct threat.[5] As the term is used in the EEOC regulations, “direct threat” means “a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” 29 C.F.R. § 1630.2(r). Factors to consider in determining whether an employee poses a direct threat include “(1) The duration of the risk; (2) The nature and severity of the potential harm; (3) The likelihood that the potential harm will occur; and (4) The imminence of the potential harm.” Id.; see also Kroll II, 763 F.3d at 626; Echazabal v. Chevron USA, Inc., 336 F.3d 1023, 1027-28 (9th Cir. 2003); Rizzo v. Children’s World Learning Ctrs., Inc., 84 F.3d 758, 763-64 (5th Cir. 1996) (quoting § 1630.2(r) factors and concluding that “[w]hether one is a direct threat is a complicated, fact intensive determination, not a question of law”). Because McLeod had no reasonable basis to believe Whitten’s performance of her job posed a significant risk of substantial imminent harm to herself, this argument also does not justify summary judgment.

As described above, Whitten performed her job successfully despite her congenital condition for twenty-eight years, and there is no indication she was getting worse. Any concerns that the condition made her a danger to herself, precluding her employment, should have been put to rest long ago. McLeod focuses on the risks Whitten faced when walking on unfamiliar terrain in pursuit of stories for the company newsletter, but the record contains no mention of any falls she sustained while on duty at one of McLeod’s other campuses or in the community at any point between 1984 and 2012. Indeed, Whitten preferred to go offsite to harvest stories, even though she did not think it was an essential part of her job. 1-JA-310-11. Swindler, for her part, acknowledged that if Whitten felt safe and could meet the job requirements, that would be sufficient to allay her safety concerns. 1-JA-52. Given Whitten’s history, McLeod’s alleged concerns about risk duration, severity, likelihood, and imminence seem wholly overblown and, at the very least, a matter of dispute sufficient to preclude summary judgment. See 29 C.F.R. § 1630.2(r).

The statements of McLeod’s witnesses and attorneys show their concerns were based on overgeneralized, paternalistic, unsubstantiated fears, rather than the objective evidence the ADA requires. During her deposition, McLeod’s attorney asked Whitten, “I know people who have fallen and died from [a head injury]. Isn’t it possible that, if you fall under the wrong circumstances, you could die from the fall?” 1-JA-295. Carr testified that Whitten “did not seem to understand that we were concerned for her safety and that we didn’t want her to come back to work and hurt herself any further.” 1-JA-110. Swindler, similarly, worried that Whitten might hurt herself because she had a relative who fell due to a neurological condition and later died, so she wanted to keep Whitten from exposing herself to a similar risk. 2-JA-399-400. Thus, according to its own witnesses, McLeod took Whitten out of a job she had performed successfully for decades, involuntarily removing her from the workforce, all out of a misplaced concern for her well-being.

This is precisely the sort of application of “overprotective rules and policies,” resulting in the “isolat[ion] and segregat[ion]” of a disabled individual, denying her “equality of opportunity, full participation, independent living, and economic self-sufficiency,” that Congress aimed to prevent through its passage of the ADA. 42 U.S.C. § 12101(a)(2), (5), (7); see Justice v. Crown Cork & Seal Co., 527 F.3d 1080, 1089 (10th Cir. 2008) (reversing summary judgment in favor of employer because “there is contrary evidence in the record from which a finder of fact could conclude that these hazards [on which the employer based its conclusion that the employee was unsafe to work] were imagined or exaggerated, and that Crown’s purported reliance on Justice’s medical restrictions was a pretext masking Crown’s irrational fears about Justice’s condition”).

Less admirably, if no less discriminatorily, McLeod also seemed concerned that continuing to employ Whitten might potentially lead to worker’s compensation liability. Here again, however, it lacked the objective basis for such a concern necessary to justify the medical examinations. Cross-examination during Whitten’s deposition gives a sense of McLeod’s view of this concern:

Q. So you wanted to have the ability to fall at work?

…

A. I wanted to be able to continue what I was doing.

Q. And if you fell and that resulted in more workers’ comp claims, then that was life; correct?

…

A. Falling has been part of my life all my life and there’s no way around it. And so I didn’t think I should be limited in what I did other than what limitations I already have because of a condition that I can’t do anything about.

Q. So McLeod had to let you work and risk more workers’ comp injuries?

…

A. It had never been a problem before.

Q. So you think it’s okay to continually have workers’ comp claims?

…

A. I don’t think I had that many more than others particularly.

1-JA-316-18. Whitten had one worker’s compensation claim in her twenty-eight years at McLeod, in April 2003, nearly a decade before her involuntary leave and termination. 3-JA-851-53. Thus, McLeod’s questions about “continual[] workers’ comp claims,” in addition to being factually inaccurate, are further indication of its discriminatory perception of Whitten’s disability based on impermissible speculation rather than objective facts.

B. A Triable Issue of Fact Exists as to Whether the Exams Were Sufficiently Tied to Whitten’s Job Requirements.

Even if McLeod had been justified in forcing Whitten to undergo a medical examination of some sort, the actual examinations Pittard and Laliberte conducted were not properly based on Whitten’s abilities, duties, and condition. Instead, they went well beyond what was job-related and consistent with business necessity, in further violation of the ADA. 42 U.S.C. § 12112(d)(4)(A); 29 C.F.R. § 1630.14(c).

Pittard, who conducted Whitten’s fitness-for-duty exam, admitted at her deposition that she did not consider herself an expert in performing such examinations. 2-JA-445. She did not discuss Whitten’s position with her prior to the exam and did not recall if she had been given a copy of Whitten’s job description. 2-JA-424, 2-JA-439-40. Pittard knew that Whitten attributed her recent falls to her foot catching on a rug, and, after a full medical examination, found no evidence the falls were connected to anything other than Whitten’s mobility issues, which “had been going on for quite awhile.” 2-JA-426-27; 2-JA-438; 2-JA-446. Even so, in the absence of information that Whitten’s condition had changed at all during the entirety of her career at McLeod, Pittard recommended an additional medical examination. 3-JA-769-70.

Laliberte’s functional capacity exam, which followed, and on which McLeod based its suspension and termination of Whitten, went far beyond testing the requirements of Whitten’s essential job functions. The occupational therapist testified that he based his exam on his understanding of Whitten’s essential job demands, but he did not talk to her to get the benefits of her twenty-eight years of personal experience when determining what those essential demands were. 3-JA-782-87. He believed that she would need to travel to many different places to conduct her job, and would need to carry up to fifty pounds of equipment once she was there, even though he acknowledged that her job classification only required lifting up to twenty pounds and that she would not have said she needed to carry so much. 3-JA-788-90; 3-JA-796-97. On the latter point, at least, he was correct: when asked about Laliberte’s examination, Whitten testified, “I had never had to lift anything that heavy in any of my work, so it was not really a true picture of what my job description was; but he had, for some reason, come up with that as part of the test.” 3-JA-651-52; see also 2-JA-476 (¶ 4). Thus, Laliberte intentionally disregarded both McLeod’s and Whitten’s perceptions of her lifting requirements and applied an estimate that far exceeded both.

Laliberte also based his examination on a belief that Whitten “had recently beg[u]n to fall at work and in her home.” 3-JA-934. In coming to this faulty premise, he did not ask Whitten when she had started to fall. When asked if he had discussed when the falls had begun, he testified, “I wasn’t worried about the route [sic]. I mean, … the fact is: This is my patient. I’m evaluating her.” 2-JA-368; see also 2-JA-340 (admitting he did not speak with Whitten about her fall history when determining the scope of the examination). Similarly, when asked if he knew whether her gait had recently changed, he responded, “No. I had never seen her before the test.” 2-JA-353; see also 2-JA-357 (testifying that he did not ask about recent changes to her grip because “I’m only testing that person at that time”). Had he asked Whitten about her falls, of course, she would have told him that they were due to her congenital condition, and, far from a recent phenomenon, falling had always been a part of her life. 1-JA-317.

Laliberte’s examination was based on an incorrect understanding of which functions were actually essential to Whitten’s job and of whether her ability to do her job had recently changed. He disregarded her extensive experience performing the job successfully, instead applying a test based on his own poorly informed beliefs about the nature of her tasks that did not mirror her actual job duties. A reasonable jury could therefore find that his examination was inconsistent with business necessity and violated the ADA. 42 U.S.C. § 12112(d)(4)(A).

II. A Reasonable Jury Could Find That McLeod Discriminatorily Discharged Whitten in Violation of the A DA.

McLeod claims that it terminated Whitten solely because Laliberte concluded she required accommodations that precluded her from performing essential functions of her job, and she “did not provide any further medical information, did not retake the [functional capacity exam], and did not apply for other positions” thereafter. R.40-1 at 2. It does not allege that it based the termination on any other aspect of Whitten’s job performance. Because Whitten’s termination arose directly from the unlawful medical examinations McLeod forced her to undergo, and because Laliberte’s conclusions were unreasonable on their face, the termination constituted an additional violation of the ADA.

To make out a prima facie case of discriminatory discharge under the ADA, a plaintiff must show: (1) that she was disabled, (2) that she was discharged, (3) that at the time of the discharge she was performing at a level that met her employer’s legitimate expectations, and (4) that “[her] discharge occurred under circumstances that raise a reasonable inference of unlawful discrimination.” Haulbrook v. Michelin N. Am., Inc., 252 F.3d 696, 702 (4th Cir. 2001). Once the plaintiff sets out a prima facie case, the burden shifts to the employer “to produce evidence of a legitimate, nondiscriminatory reason for terminating” the employee. Jacobs, 780 F.3d at 575. If the employer is successful, the burden shifts back to the plaintiff “to prove that these asserted justifications are pretextual.” Id. at 575-76.

McLeod only disputes the last of Haulbrook’s four prima facie elements.[6] It argues that it was reasonable in suspending and later terminating Whitten based on Laliberte’s report. However, given the contrary evidence on the record, McLeod’s reasonableness in this regard is a triable issue of fact. This Court should therefore reverse the district court’s grant of summary judgment.

First, as explained above, substantial evidence shows that McLeod was unreasonable in requiring Whitten to undergo the medical examinations. Again, Whitten had the same condition throughout her twenty-eight years in her position at McLeod, and although it occasionally led to her falling, it did not interfere with her ability to perform her job. McLeod claims that her recent falls and Swindler’s perception of her performance issues, combined, gave it a reasonable basis for the examinations. But Whitten’s falls were nothing new, only one occurred at work (and that one required no medical treatment), and the law is clear that Whitten’s performance problems, insofar as there were any at the time, should have been dealt with through counseling, not medical examination. At the very least, McLeod’s reasonableness on this score should have gone to a jury.

Second, as detailed above, the examinations were not reasonably tied to Whitten’s job duties. Rather than beginning with Whitten’s known condition and her actual job duties, the examinations ignored the twenty-eight years of data regarding her ability to do her job and instead foisted a set of tasks on her having little if any relevance to her essential job functions. In Laliberte’s case, moreover, the examination was based on the incorrect assumption that she had only recently begun to fall. 3-JA-934. The examinations thus call into question McLeod’s reasonableness and, by extension, whether it was discriminating against Whitten because of her disability.

Third, Laliberte’s conclusions were unreliable and illogical on their face, yet McLeod depended on them to suspend and ultimately terminate Whitten’s employment. This evidence casts McLeod’s reasonableness, and the purported nondiscriminatory nature of its justification for firing McLeod, into question. McLeod argued that it had to suspend Whitten because it could not accommodate Laliberte’s suggested restriction that she not be allowed to work outside a ten-mile radius of her office.[7] R.40-1 at 27-28; 3-JA-839 (Laliberte’s recommendation that McLeod “[l]imit[] her assignments as a Communications Specialist to the Florence area. (10 miles vicinity to the main hospital.)”) But McLeod’s contention was that Whitten was a fall risk wherever she walked, and that this risk precluded her from performing the essential functions of her job. R.40-1 at 28-29. Neither Laliberte nor McLeod ever explained the basis for Laliberte’s conclusion that Whitten could perform her job safely within ten miles of her office but not any further away. This facial arbitrariness further underscores how Laliberte’s understanding of Whitten’s condition and the essential functions of her job was sorely lacking.

Similarly, Laliberte could not explain how he arrived at his estimate that Whitten posed a high fall risk with 75% of her work tasks. 3-JA-839. When asked how he derived this specific diagnosis, Laliberte testified, incomprehensibly, that he based it on the fact that she had fallen at her home, at work, and at a restaurant, and that these three fall loci established the 75% figure: “‘I’ve fallen at home. I’ve fallen at restaurants, and I’ve fallen at work.’ One, two, three. 75 percent.” 3-JA-822.

Despite these obvious flaws in Laliberte’s report, McLeod’s work accommodation committee consulted with Laliberte during its meeting about Whitten, 1-JA-98, and opted to rely completely on his report in placing Whitten on medical leave and, ultimately, terminating her employment. 2-JA-467-68. This would have been unreasonable for any employer, given the report’s irrationality; for a hospital network like McLeod, whose very business is health care, the reliance on Laliberte’s unsupported opinions is particularly indefensible.

This case is directly analogous to Justice, 527 F.3d at 1089. In that case, the employer removed the plaintiff from his electrician position following a stroke that caused him lingering balance issues, even though he successfully performed his job for two years following his return from the stroke. Id. at 1082. The Tenth Circuit reversed the district court’s summary judgment in favor of the employer, finding that the plaintiff had presented “evidence that (1) Justice was qualified to work as an electrician in the plant notwithstanding his medical restrictions; and (2) Crown’s removal of him from that position was due to unsubstantiated concerns about the dangers posed by his balance problems.” Id. at 1089 n.3; see also id. at 1089 (noting “a disputed issue of material fact” whether the employer’s action was based on an “erroneous perception about … abilities” rather than “actual medical restrictions,” which precluded summary judgment).

The EEOC anticipates that McLeod will argue it was entitled to rely on Laliberte’s report because it gave Whitten multiple opportunities to present evidence from her own doctors, but she opted not to do so. Under the ADA, however, she should never have been obligated to make such a showing in the first place. As numerous courts interpreting the statute have explained, it is the unlawful inquiry, and not the lack of an opportunity to refute the results, that constitutes an ADA violation. See, e.g., 42 U.S.C. § 12112(d)(4)(A); Owusu-Ansah v. Coca-Cola Co., 715 F.3d 1306, 1310 (11th Cir. 2013) (holding that § 12112(d)(4)(A) protects employees from improper inquiries regardless of whether they are disabled); Kroll I, 691 F.3d at 816 (same); Conroy, 333 F.3d at 94-95. In addition, because Laliberte’s recommendations were facially irrational, Whitten should not have been required to produce evidence refuting them. See Justice, 527 F.3d at 1092 n.5 (noting that evidence calling into question the objectivity of a medical opinion or its application to a particular employment context is sufficient to withstand summary judgment); Holiday v. City of Chattanooga, 206 F.3d 637, 645 (6th Cir. 2000) (holding that work restrictions may not be based on an “unsubstantiated and cursory medical opinion”).

McLeod also claims that it based Whitten’s suspension and termination in part on her request for accommodation that included a limitation “on walking and standing as much as possible.” R.40-1 at 14; 1-JA-77-78. As Whitten explained, however, she submitted the accommodation request form only because Williams-Blake demanded that she do so — not because she believed she needed any accommodation — and she did so in fear that any requests she made would be used as a basis for her termination. 1-JA-316; 1-JA-333-34. In any case, the request itself does not support McLeod’s argument that Whitten demanded unreasonable accommodations. She asked only that her walking and standing be limited “as much as possible,” i.e., to the extent consistent with McLeod’s business needs, and never asked to have her work restricted to locations closer to her office.

Finally, McLeod removed Whitten from her job without first consulting her, and Whitten testified that Williams-Blake told her after McLeod placed her on this forced leave that she would not be allowed to return to her position. 1-JA-300-01; 3-JA-668. McLeod should not be allowed to escape liability by providing such mixed messages to its employees.

In sum, McLeod was unreasonable in requiring Whitten to undergo the medical examinations with Pittard and Laliberte, then compounded this error by relying uncritically on Laliberte’s facially irrational conclusions to justify putting her on involuntary unpaid leave and subsequently terminating her employment. A jury should have been given the opportunity to determine whether these actions were consistent with the ADA’s protections against disability discrimination. Summary judgment was therefore inappropriate.

CONCLUSION

For the foregoing reasons, the judgment of the district court should be reversed and the case remanded for further proceedings.

REQUEST FOR ORAL ARGUMENT

Given the importance of the issues on appeal to the proper interpretation of the ADA and the EEOC’s enforcement efforts, the Commission respectfully requests oral argument.

Respectfully submitted,

JAMES L. LEE

Deputy General Counsel

JENNIFER S. GOLDSTEIN

Associate General Counsel

ELIZABETH E. THERAN

Assistant General Counsel

/s/ Jeremy D. Horowitz

JEREMY D. HOROWITZ

Attorney

U.S. Equal Employment

Opportunity Commission

Office of General Counsel

131 M St. N.E., Room 5SW24J

Washington, D.C. 20507

(202) 663-4716

jeremy.horowitz@eeoc.gov

CERTIFICATE OF COMPLIANCE

I hereby certify that this brief complies with the type-volume requirements set forth in Federal Rules of Appellate Procedure Rule 32(a)(7)(B). This brief contains 10,238 words, from the Statement of Jurisdiction through the Conclusion, as determined by the Microsoft Word 2016 word processing program, with 14-point proportionally spaced type for text and footnotes.

/s/ Jeremy D. Horowitz

JEREMY D. HOROWITZ

Attorney

U.S. Equal Employment

Opportunity Commission

Office of General Counsel

131 M St. N.E., Room 5SW24J

Washington, D.C. 20507

(202) 663-4716

jeremy.horowitz@eeoc.gov

Dated: March 8, 2018

[1] Citations to the Joint Appendix take the form [volume #]-JA-[page #].

[2] Citations to the district court docket take the form R.[docket #].

[3] McLeod and its witnesses have used the terms “functional capacity exam” and “work capacity exam” interchangeably in this litigation. For clarity, the EEOC will use the term “functional capacity exam.”

[4] The EEOC’s ADAAA regulations, issued pursuant to statutory authority (see 42 U.S.C. § 12205a), are entitled to deference under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). See Summers v. Altarum Inst., 740 F.3d 325, 331-32 (4th Cir. 2014).

[5] Although the district court did not address whether Whitten posed a “direct threat” warranting a medical examination, the EEOC anticipates McLeod will raise this argument as an alternate ground for affirmance and therefore explains why the evidence does not support such a holding.

[6] Although McLeod claims Whitten’s performance level decreased, which could conceivably implicate the third prima facie case element, the company stated unequivocally to the district court that it based her suspension and termination on non-performance factors. R.40-1 at 2. Moreover, Whitten received a fully satisfactory performance review in October 2011, 3-JA-943-50, and Swindler specifically denied that Whitten’s alleged performance issues had any bearing on the decision to place Whitten on involuntary leave (which ultimately led to her termination), 2-JA-397. Such objective evidence is sufficient to establish satisfactory performance at the prima facie stage. EEOC v. Town & Country Toyota, Inc., 7 F. App’x 226, 231 (4th Cir. 2001) (citing EEOC v. Horizon/CMS Healthcare Corp., 220 F.3d 1184, 1192-94 (10th Cir. 2000), and Valentino v. U.S. Postal Serv., 674 F.2d 56, 71 n.24 (D.C. Cir. 1982)). Thus, only the fourth part of the prima facie case is in dispute.

[7] McLeod also argued it could not provide the necessary accommodation of providing Whitten a scooter, a car to carry it, and a shadow helper to load it on and off the car. R.40-1 at 27-28. Whitten strongly denies making any such request or, indeed, needing any accommodation whatsoever to continue doing the job she had performed for twenty-eight years. 2-JA-476-77 (¶¶ 9-11); 1-JA-316. Given this factual dispute, summary judgment based on McLeod’s alleged inability to offer this particular accommodation was unwarranted.