Date: 09-29-2009

Case Style: Kris Indergard v. Georgia-Pacific Corporation

Case Number: 08-35278

Judge: Alfred T. Goodwin

Court: United States Court of Appeals for the Ninth Circuit on appeal from the District of Oregon (Multnomah County)

Plaintiff's Attorney: Kerry M.L. Smith, Smith & Fjelstad, Gresham, Oregon, for the plaintiff-appellant.

Defendant's Attorney: Scott G. Seidman, Tonkon Torp, Portland, Oregon, for the defendant-appellee.

Description: Kris Indergard (“Indergard”) appeals a summary judgment in favor of Georgia-Pacific Corporation (“GP”) in her action for damages under the Americans with Disabilities Act (“ADA”) and Oregon disability law. GP argues that there was no error in the district court, and that Indergard failed to exhaust administrative remedies under the ADA. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we reverse.

Indergard worked at GP’s Wauna mill facility from December 27, 1984, until February 8, 2006. On December 9, 2003, she took medical leave to undergo surgery for work-related and non-work related injuries to her knees. She remained on medical leave until March 21, 2005, when her orthopedic surgeon, Dr. Randall Ketzler, authorized her return to work, but with permanent restrictions. GP policy required employees to participate in a physical capacity evaluation (PCE) before returning to work from medical leave, and GP so informed Indergard.

GP contracted Columbia Rehabilitation (“Columbia”), an independent occupational therapy provider located in Washington state, to conduct the PCE. Cory Blickenstaff, a physical therapist at Columbia, visited the GP facility and conducted a job analysis for the Consumer Napkin Operator position, which was Indergard’s position prior to her medical leave, and for the Napkin Adjuster position, which was the next position for which Indergard was entitled to bid under the collective bargaining agreement. Blickenstaff interviewed employees who worked in these positions, and identified the physical demands of the positions, including amount of weight an employee was required to lift, carry, push, pull, and hold, and the type of movements the positions required.

Among the lifting requirements that Blickenstaff identified were a sixty-five pound individual lift and carry for the Consumer Napkin Operator position and a seventy-five pound lift for the Napkin Adjuster position. In light of these requirements, Columbia determined that Indergard’s permanent restrictions prevented her from participating in the PCE. Indergard met with GP supervisors and challenged the lifting requirements in the job analyses, alleging that they were inaccurate based on how the jobs were actually performed. Blickenstaff prepared a supplemental memorandum intended to clarify the requirements, but the job analyses were not revised.

On October 11, 2005, Indergard provided GP with a note from Dr. Ketzler that removed the permanent restrictions he had previously identified. GP then scheduled her to participate in the PCE. Vicky Starnes, a state-licensed occupational therapist at Columbia, conducted the PCE at Columbia’s office on November 9 and 10, 2005.

On the first day of the PCE, Starnes recorded Indergard’s medical history and subjective reports of her current pain level and use of medication, alcohol, tobacco, and assistive devices. Starnes recorded Indergard’s weight, height, blood pressure, and resting pulse. She observed Indergard’s gait, balance, and posture. She measured the range of motion in Indergard’s arms and legs, and compared the results to normal limits. Starnes palpated Indergard’s knees and looked for edema in her legs, and performed manual muscle testing, recording the results of Indergard’s hip flexors, knee extensors and flexors, bilateral internal and external hip rotation, and straight leg raises.

Next, Starnes measured Indergard’s ability to lift various amounts of weight from floor to waist, waist to chest, and chest to overhead, and evaluated Indergard’s body mechanics during the lifts. She then measured Indergard’s ability to carry increasing amounts of weight over a set distance, and her grip strength over varying grip widths. She measured Indergard’s static strength to determine her ability to lift, push, and pull in various postures, and compared Indergard’s results to norms adopted by the U.S. Department of Health and Human Services. Indergard then performed a “Job Simulation Task,” which required her to lift and pour five gallon buckets filled with forty-five pounds of sand. Starnes then tested Indergard’s ability to place nuts and bolts in a box while kneeling with her vision obscured, and observed Indergard’s ability to climb stairs, stand, sit, kneel, squat, and crawl. Indergard walked on a treadmill for twenty minutes at a 2.8 mile per hour pace, and pushed a weight sled. Finally, Starnes recorded details about Indergard’s vision, communication, cognitive ability, hearing, attitude, and behavior.

The second day of the PCE included similar tests. Starnes measured and recorded Indergard’s heart rate after she performed the treadmill test, and noted that she required “increased oxygen” and demonstrated “poor aerobic fitness.” Starnes concluded that Indergard was unable to perform the sixty-five pound lift and carry that Blickenstaff had identified as a requirement of the Napkin Operator position, or the seventy-five pound lift that Blickenstaff identified as a requirement for the Napkin Adjuster position. Starnes recommended that Indergard not return to work, and forwarded the results of the PCE to Dr. Ketzler, who agreed with Starnes’s assessment. The lifting requirements that the PCE indicated Indergard could not meet were those that she had previously contested as inaccurate.

GP then informed Indergard that she could not return to either position, and that no other positions were available for which she was qualified. On February 8, 2006, GP terminated her employment pursuant to a provision in the collective bargaining agreement that allowed GP to terminate employees who had been on leave for more than two years. Indergard filed a union grievance, which was denied, and filed a joint complaint with the EEOC and BOLI. The administrative investigation found no substantial evidence to support her claims. She received right to sue letters, and filed this action. Indergard alleged various claims of disability discrimination under the ADA and Oregon disability law. Relevant to this appeal, she alleged that GP misrepresented the essential job functions of the position in which she had worked prior to going on medical leave, forced her to participate in the PCE without “an objectively reasonable basis for doing so,” and refused to allow her to return to employment after the PCE. In her first claim for relief, Indergard alleged that the PCE was improper and discriminatory, and that GP relied on the PCE to “remove and/or deny” her return to employment. She also raised other claims under the ADA, including that GP treated her “in a disparate, discriminating and harassing manner” because she was disabled, had a record of disability or was perceived as disabled, and that GP failed to engage in the interactive process. She sought relief in the form of loss of income, and $250,000 in non-economic damages.

GP moved for summary judgment, and Indergard’s response abandoned all claims except those alleging that the PCE was an improper medical examination and that GP discriminated against her because of a perceived disability or record of disability. GP’s reply argued that the PCE was not a medical examination, and that it therefore did not violate the ADA. It further argued that even if the PCE was a medical examination, it was job-related and consistent with business necessity, and therefore expressly allowed by the ADA. See 42 U.S.C. § 12112(d)(4)(A).1

1(A) Prohibited examinations and inquiries

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).

The magistrate judge agreed with GP that the PCE was not a medical examination. Because the magistrate judge determined that the PCE was not a medical examination, he concluded that GP had not violated 42 U.S.C. § 12112(d)(4)(A) and that it was entitled to summary judgment. In the interest of providing a thorough analysis, however, the magistrate judge analyzed GP’s business necessity defense. Noting that the standard to establish business necessity is “quite high,” the magistrate judge found that although GP had a reasonable basis to request the PCE, it “would not be entitled to summary judgment on the basis of the business necessity defense because [GP] failed to show that the PCE was limited to the essential functions” of Indergard’s prior positions. The magistrate judge, however, decided that GP was nonetheless entitled to summary judgment because the PCE was not a medical examination.

Indergard filed objections, but the district court adopted the Findings and Recommendation in full and granted GP’s motion for summary judgment. This appeal followed.2

DISCUSSION

I. The district court erred in holding that the PCE was not a medical examination under the ADA

[1] Under the ADA, an employer may not require a current employee to undergo a medical examination unless the examination “is shown to be job-related and consistent with business necessity.” 42 U.S.C. § 12112(d)(4)(A). This section applies to all employees, whether or not they are disabled under the ADA. Fredenburg v. Contra Costa County Dep’t of Health Servs., 172 F.3d 1176, 1182-82 (9th Cir. 1999). The implementing regulations impose the same restriction, but state that an employer “may make inquiries into the ability of an employee to perform job-related functions.” 29 C.F.R. § 1630.14(c). Thus, we must determine whether the PCE was a medical examination under the ADA or simply an inquiry into whether Indergard was capable of performing the jobrelated functions of the positions she was qualified to return to after her medical leave.

A. Regulatory guidance indicates that the PCE was a medical examination

Neither the ADA nor the implementing regulations define the term “medical examination,” and case law interpreting this provision is limited. Agency guidance on the issue, however, is more detailed. Although agency guidance documents are “not controlling upon courts by reason of their authority, [they] do constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance.” Meritor Sav. Bank v. Vinson, 477 U.S. 57, 65 (1986) (internal quotation marks and citation omitted); see also Christensen v. Harris County, 529 U.S. 576, 587 (2000) (stating that “interpretations contained in policy statements, agency manuals, and enforcement guidelines . . . are ‘entitled to respect’ . . . only to the extent that [they] have the power to persuade”) (internal quotation marks and citation omitted).

[2] The interpretive appendix to 29 C.F.R. § 1630.14(c) states, in relevant part, that “[t]his provision permits employers to make inquiries or require medical examinations (fitness for duty exams) when there is a need to determine whether an employee is still able to perform the essential functions of his or her job.” 29 C.F.R. Pt. 1630, App. § 1630.14(c). The interpretive appendix to 29 C.F.R. § 1630.14(a) also contemplates the use of “[p]hysical agility tests,” which “are not medical examinations and so may be given at any point in the application or employment process.” Id. at App. § 1630.14(a). The appendix further states that physical agility tests “must be given to all similarly situated applicants or employees regardless of disability,” and notes that if the test “screen[s] out or tend[s] to screen out an individual with a disability . . . the employer would have to demonstrate that the test is jobrelated and consistent with business necessity and that performance cannot be achieved with reasonable accommodation.”

Id.

[3] EEOC Enforcement Guidance draws a further distinction between medical examinations and physical agility tests. It defines a medical examination as “a procedure or test that seeks information about an individual’s physical or mental impairments or health.” Enforcement Guidance on Disability- Related Inquiries and Medical Examinations, available at http://www.eeoc.gov/policy/docs/guidance-inquiries.html [hereinafter “EEOC Enforcement Guidance”]. It provides the following seven factors to be considered in determining whether a test is a medical examination:

(1) whether the test is administered by a health care professional

(2) whether the test is interpreted by a health care professional

(3) whether the test is designed to reveal an impairment of physical or mental health

(4) whether the test is invasive

(5) whether the test measures an employee’s performance of a task or measures his/her physiological responses to performing the task

(6) whether the test normally is given in a medical setting

(7) whether medical equipment is used

Id. The EEOC Enforcement Guidance states that although in some cases a combination of factors may be relevant to the determination of whether a test is a medical examination, in “other cases, one factor may be enough to determine that a test or procedure is medical.” Id. It then provides a list of tests considered medical examinations, including “blood pressure screening and cholesterol testing” and “range-of-motion tests that measure muscle strength and motor function.” Id.

[4] The EEOC Enforcement Guidance states that certain employer-required tests are generally not medical examinations, including physical agility tests, which measure an employee’s ability to perform actual or simulated job tasks, and physical fitness tests, which measure an employee’s performance of physical tasks, such as running or lifting, as long as these tests do not include examinations that could be considered medical (e.g., measuring heart rate or blood pressure).

Id. (emphasis added).

1. Single factors establish that the PCE was a medical examination

[5] In light of the agency guidance, Indergard’s argument that the PCE was a medical examination is convincing. As noted above, the PCE included range of motion and muscle strength tests, and Starnes measured Indergard’s heart rate and recorded an observation about her breathing after the treadmill test. Each of these tests is within the EEOC’s description of tests that are considered medical examinations. The post-treadmill test heart rate measurement and notation regarding Indergard’s “increased oxygen” intake and demonstration of “poor aerobic fitness” weigh heavily in favor of considering the PCE a medical exam, particularly because Starnes had already noted that Indergard “was able to walk for 20 minutes at 2.8 mph on treadmill without increased antalgic behavior or objective findings of pain complaints noted.” Had Starnes’s observations ended there, it might be appropriate to characterize the treadmill test as a test that measured Indergard’s performance of a physical task. Measuring Indergard’s heart rate and recording observations about her breathing and aerobic fitness, however, was not only unnecessary to determine whether she could perform the task, but is also the kind of examination that the EEOC Enforcement Guidance identifies as inappropriate to include in a non-medical physical agility or fitness test.

GP’s argument that anything less than a “genuine exercise stress test” is not a medical examination distorts the EEOC Enforcement Guidance and is not well-taken. Furthermore, to the extent that GP attempts to rely on the magistrate judge’s conclusion that Indergard’s blood pressure and heart rate were measured as an “overall precaution before beginning testing rather than to measure [Indergard’s] physiological response to the performance portion of the PCE,” we emphasize that her heart rate was taken both before and after the treadmill test, and we note that although it might be a prudent medical procedure to take these physiological measurements, including them in the report provided to GP was unnecessary for the purpose of determining whether Indergard was physically capable of performing her job duties.

2. Application of the seven-factor test establishes that the PCE was a medical examination

[6] The EEOC Enforcement Guidance identifies seven factors as relevant to determining whether a test is a medical examination, and at least four weigh in Indergard’s favor. First, although Starnes is not a medical doctor, she is a licensed occupational therapist. Nothing in the EEOC Enforcement Guidance indicates that the term “health care professional” should be limited to only doctors, and at least one district court has found that the fact that a PCE “was administered by a business specializing in physical therapy, and not a medical doctor, makes it no less ‘medical’ than a nurse taking one’s blood pressure or an emergency medical technician administering care to a patient on the way to the hospital.” Medlin v. Rome Strip Steel Co., 294 F. Supp. 2d 279, 294 (N.D.N.Y. 2003).

[7] Second, not only did Starnes administer the PCE, but she interpreted Indergard’s performance and recommended that she not return to work. Furthermore, Starnes submitted the test results to Dr. Ketzler, Indergard’s treating orthopedic surgeon, who indicated his agreement with Starnes’s recommendation.

This distinguishes the PCE from a test where, for example, a supervisor or other employee might observe the employee’s physical ability to perform job tasks.

[8] Third, although the PCE was ostensibly intended to determine whether Indergard could return to work, the broad reach of the test was capable of revealing impairments of her physical and mental health, particularly in light of Starnes recording Indergard’s subjective reports of her current pain level, use of medication and assistive devices, and communication, cognitive ability, attitude, and behavior.

[9] The fourth factor weighs in GP’s favor, as the PCE does not seem to have been invasive. The fifth factor, however, benefits Indergard because Starnes recorded her heart rate and breathing pattern after the treadmill test, and Indergard’s muscle pain and stiffness after the first day of testing. These are measurements of Indergard’s physiological response to her performance of a task and, as discussed above, go beyond collecting information necessary to determine whether Indergard was physically capable of performing the task. We express no opinion on the sixth factor, except to note that the offices of a licensed occupational therapist are more like a medical setting than, for example, an employee’s work place. [10] Finally, it is unclear whether the final factor favors either party, because the only evidence that medical equipment was used in the PCE is Starnes’s use of a blood pressure cuff at the beginning of the PCE. Thus, viewed in the light most favorable to Indergard, applying the balancing factors establishes that the PCE was a medical examination.

B. The limited case law available establishes that the PCE was a medical examination

[11] Most cases interpreting 42 U.S.C. § 12112(d)(4)(A) address the question of whether an admitted medical examination was job related and consistent with business necessity. See, e.g., Yin v. California, 95 F.3d 864, 868 (9th Cir. 1996) (following the district court in assuming that the proposed examination was a medical examination within the meaning of 42 U.S.C. § 12112(d)(4)(A)).

The case most on point is Medlin, 294 F. Supp. 2d at 293-94. Medlin, an employee, had been on medical leave after a back injury. Id. at 284. Prior to returning to work, his employer required him to undergo a functional capacity evaluation (“FCE”) to determine whether his residual functional capacity met the job requirements for the position he previously held. Id. at 285. The FCE results revealed that Medlin was “unable to maintain safe work practices or a heart rate profile required for the level of repetitions and duration for a complete Hot Role Slitter setup.” Id. (internal quotation marks omitted). Medlin sued, alleging in part that the employer made an improper disclosure of his medical information in violation of the ADA when it made the results of the FCE known to other employees. Id. at 293.

The court stated that the FCE was clearly job related and consistent with business necessity, but noted that it was unclear whether it qualified as a medical examination. Id. Without reaching a definitive conclusion, the court noted that EEOC guidance and case law had indicated “that testing ordered by the employer that physically or mentally tests an employee’s ability to perform his or her job are permissible tests under the ADA.” Id. at 293-94 (citing 29 C.F.R. Pt. 1630, § 1630.13(b); Sullivan v. River Valley Sch. Dist., 197 F.3d 804, 811 (6th Cir. 1999)). The court then found that because the sole purpose of the FCE was to determine whether Medlin “could physically return to work without any restrictions” and was “in essence and in reality, a fitness for duty exam,” it therefore was likely a medical examination. Id. at 294.

GP argues that because the FCE in Medlin was administered to determine whether the employee could perform the physical demands of his position without any restrictions, it was designed to test the level of his disability and is therefore distinguishable from the PCE in this case. This distinction is unpersuasive. Although the court did state that the purpose of the FCE was to determine whether Medlin “could physically return to work without any restrictions,” id., it was administered to an injured employee returning from medical leave in order to ascertain whether he was capable of performing the physical demands of his position. Id. at 284-86. Thus, there is little to distinguish the FCE at issue in Medlin from the PCE at issue here.

Furthermore, the Second Circuit has held that an employer’s policy that all employees returning from sick leave provide a medical certification that included a “brief general diagnosis that is ‘sufficiently informative as to allow [the Department of Correctional Services] to make a determination concerning the employee’s entitlement to leave’ ” was “sufficient to trigger the protections of the ADA under [42 U.S.C. § 12112(d)(4)(A)]” because the general diagnosis “may tend to reveal a disability.” Conroy v. New York Dep’t of Corr. Serv., 333 F.3d 88, 92, 95-96 (2d Cir. 2003). Although Conroy was interpreting the provision in 42 U.S.C. § 12112(d)(4)(A) that prohibits an employer from making “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” and is not directly on point, its reasoning is useful to the extent that portions of Indergard’s PCE went beyond simply measuring her physical ability to perform job tasks and could have revealed a disability.

[12] The purpose of the PCE may very well have been to determine whether Indergard was capable of returning to work. The substance of the PCE, however, clearly sought “information about [Indergard’s] physical or mental impairments or health,” see EEOC Enforcement Guidance, and involved tests and inquiries capable of revealing to GP whether she suffered from a disability. Therefore, we hold that the PCE was a medical examination under 42 U.S.C. § 12112(d)(4)(A).3 3The dissent predicts a parade of lawsuit horribles for employers if Indergard’s PCE is held to be a medical examination within the meaning of 42 U.S.C. § 12112(d)(4)(A). To reach this conclusion, the dissent disregards statutory language and commentary by dividing the comprehensive PCE into its component tests for analysis. In addition, the dissent would require Indergard to show that a particular component test was a medical examination that proximately caused her to lose her job, a rationale that has not been adopted in this circuit.

“The plainness or ambiguity of statutory language is determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole.” Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997). The statute provides that an employer “shall not require a medical examination . . . unless such examination . . . is shown to be job-related and consistent with business necessity.” 42 U.S.C. § 12112(d)(4)(A). The EEOC Enforcement Guidance for § 12112(d)(4)(A) clarifies that testing blood pressure, cholesterol, muscle strength, and motor function specifically are designated as medical examinations.

“The whole purpose of placing a person on leave is that he or she may eventually return to work.” Fredenburg, 172 F.3d at 1181. “The ADA was enacted in 1992 ‘to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.’ ” Yin, 95 F.3d at 867 (quoting 42 U.S.C. § 12101(b)). The ADA provisions that prohibit using medical examinations to discriminate in hiring or retaining employees protect all employees from being stigmatized by their disabilities. 42 U.S.C. § 12112(d); see Fredenburg, 172 F.3d at 1182 (“protecting only qualified individuals would defeat much of the usefulness of [the medical examination provisions]”). The dissent’s method of dividing Indergard’s PCE into component parts and engaging in proximate-cause analysis creates a risk that employers would

II. Exhaustion of administrative remedies

GP argues that Indergard failed to exhaust administrative remedies because her joint EEOC/BOLI complaint did not provide requisite notice of the unlawful medical examination claim. Indergard argues that the court should not reach this issue because she has alleged identical claims under Oregon’s state disability law, which is substantively the same as federal law but does not require administrative exhaustion, that GP waived the failure to exhaust argument by way of a judicial admission in its answer, that GP did not allege failure to exhaust as an affirmative defense, and that because the EEOC would have addressed the medical examination in the scope of its investigation, the claim was properly before the district court.

Because the magistrate judge determined that the PCE was not a medical examination, he declined to reach GP’s argument that Indergard failed to exhaust her administrative remedies with respect to this claim. In remanding this case, we do not express any view on this argument, and the issue remains open for the district court’s consideration.

* * *

See: http://www.ca9.uscourts.gov/datastore/opinions/2009/09/28/08-35278.pdf

Outcome: [13] We hold that the PCE was a medical examination within the meaning of 42 U.S.C. § 12112(d)(4)(A). Because the magistrate judge correctly found that a triable issue of fact remained on the question of whether the PCE was job related and consistent with business necessity, the summary judgment was inappropriate. We vacate the judgment and remand the case to the district court to determine whether the PCE was job related and consistent with business necessity, and to determine whether Indergard exhausted administrative remedies.

VACATED and REMANDED.

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