Emily Kroll v. White Lake Ambulance Auth. , 763 F.3d 619 ( 2014 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 14a0195p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
EMILY C. KROLL, ┐
Plaintiff-Appellant, │
│
│ No. 13-1774
v. │
>
│
WHITE LAKE AMBULANCE AUTHORITY, │
Defendant-Appellee. │
┘
Appeal from the United States District Court
for the Western District of Michigan at Grand Rapids.
No. 1:09-cv-00626—Gordon J. Quist, District Judge.
Argued: June 24, 2014
Decided and Filed: August 19, 2014
Before: MOORE, SUTTON, and DONALD, Circuit Judges.
_________________
COUNSEL
ARGUED: Bradley K. Glazier, BOS & GLAZIER, P.L.C., Grand Rapids, Michigan, for
Appellant. Michael S. Bogren, PLUNKETT COONEY, Kalamazoo, Michigan, for Appellee.
ON BRIEF: Bradley K. Glazier, BOS & GLAZIER, P.L.C., Grand Rapids, Michigan, for
Appellant. Michael S. Bogren, PLUNKETT COONEY, Kalamazoo, Michigan, for Appellee.
_________________
OPINION
_________________
KAREN NELSON MOORE, Circuit Judge. While Emily Kroll was an emergency
medical technician (“EMT”) for White Lake Ambulance Authority (“WLAA”), she began a
tumultuous affair with her married coworker. As the relationship unraveled, Kroll became
increasingly emotional at work. After Kroll had a personal altercation with one of her
1
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coworkers, her supervisor expressed concern regarding her “immoral” sexual conduct and
demanded that she undergo psychological counseling. When Kroll refused, she was fired. Kroll
claims that WLAA violated the Americans with Disabilities Act (“ADA”) by requiring a medical
examination that was not “job-related and consistent with business necessity.” 42 U.S.C.
§ 12112(d)(4)(A). In a previous appeal, we held that the district court erred in granting summary
judgment in favor of WLAA because Kroll had presented sufficient evidence genuinely to
dispute whether the counseling WLAA required of her was a “medical examination.” Kroll v.
White Lake Ambulance Auth., 691 F.3d 809 (6th Cir. 2012) (“Kroll I”). On remand, the district
court again granted summary judgment in favor of WLAA. Because we find evidence in the
record to establish a genuine factual dispute as to whether the required counseling was “job-
related and consistent with business necessity,” we REVERSE the district court’s grant of
summary judgment and REMAND for further proceedings consistent with this opinion.
I. BACKGROUND
In September 2003, White Lake Ambulance Authority hired Emily Kroll as an EMT.
EMTs are responsible for responding to emergency calls, providing basic medical care, and
safely transporting patients to the hospital. Kroll’s coworkers uniformly described her as a
“good” EMT who followed protocol, appropriately cared for patients, and maintained positive
working relationships with the other EMTs. R. 53-3 (Holmstrom Dep. at 4) (Page ID #514); R.
54-2 (Terpstra Dep. at 38) (Page ID #541); R. 53-5 (Osborn Dep. at 9–10) (Page ID #529–30).
In the nearly five years she was employed by WLAA, Kroll never faced any formal disciplinary
action for a rules violation. R. 52-4 (Binns Dep. at 58–59) (Page ID #486).
In 2007, Kroll began an affair with Joshua Easton, her married coworker. Their
relationship, which lasted for several months, was “rocky” and punctuated by frequent
arguments. R. 50-6 (Easton Dep. at 11–12) (Page ID #281–82). Kroll’s personal conflicts with
Easton began to affect her behavior at work. Easton claims that Kroll frequently sent him text
messages and e-mails and screamed at him over the phone while he was working. Id. at 14, 16
(Page ID #284–85). Several of Kroll’s coworkers witnessed other incidents that made them
question Kroll’s emotional stability. On one occasion, Amy Callison found Kroll crying in a
parking lot, R. 50-11 (Callison Dep. at 14) (Page ID #333), and on another occasion, Kroll called
No. 13-1774 Kroll v. White Lake Ambulance Auth. Page 3
Jean Dresen, the WLAA office manager, in tears after finishing a shift. R. 50-12 (Dresen Dep. at
23) (Page ID #340). In addition, other coworkers claim to have observed Kroll arguing with
Easton on her cell phone or sending text messages while she operated an ambulance. R. 50-9
(Terpstra Dep. at 32, 40) (Page ID #324–25); R. 50-5 (Osborn Dep. at 28–29) (Page ID #273–
74).
Brian Binns, the Director of WLAA during the period of Kroll’s employment, prohibited
employees from using their cell phones for any purpose while driving a vehicle owned by
WLAA. R. 52-4 (Binns Dep. at 51–52) (Page ID #484). Kroll’s coworkers testified that they
reported to both Binns and Dresen that Kroll frequently used her cell phone while operating the
ambulance. R. 50-5 (Osborn Dep. at 29–30) (Page ID #274–75); R. 50-9 (Terpstra Dep. at 27,
32) (Page ID #322, 324). However, Kroll denies ever having used her cell phone while driving
an ambulance for WLAA. R. 50-7 (Kroll Dep. at 134) (Page ID #294); see also R. 50-14
(Sturgis Dep. at 27–28) (Page ID #357–58). At the time of his deposition, Binns could recall
only one complaint about Kroll using her phone while driving. R. 52-4 (Binns Dep. at 53, 61–
64) (Page ID #484, 486–87).
In mid-April 2008, Binns and Dresen discussed their concerns regarding Kroll’s
behavior, and Binns directed Dresen to identify a mental-health professional who could help
Kroll. R. 50-12 (Dresen Dep. at 35–36) (Page ID #345–46). Dresen spoke to Kroll about
Binns’s desire that she seek counseling for her mental-health issues. Dresen informed Kroll that
WLAA would not pay for therapy but offered to assist in finding a counselor. Dresen also asked
Kroll to sign a release permitting WLAA to monitor whether she was attending counseling. Id.
at 35–36, 39–40 (Page ID #345–48). Kroll did not seek counseling at that time.
On April 28, Kroll and Jodi Osborn, a paramedic, worked together on an ambulance run.
There was personal animosity between the two women: Before the run, Kroll had inadvertently
forwarded a message, which she had originally intended for Easton, to Osborn. In the message,
Kroll asked Easton whether he was involved in a sexual relationship with Osborn. R. 50-16
(Email) (Page ID #368). During the ambulance run, Osborn and Kroll argued about the e-mail.
Osborn called Kroll a “whore” who was “only good for getting down on [her] knees.” R. 50-7
(Kroll Dep. at 167) (Page ID #303). When Kroll and Osborn began to treat the patient, Osborn
No. 13-1774 Kroll v. White Lake Ambulance Auth. Page 4
asked Kroll to assist her in administering oxygen, but Kroll ignored the request. After the run,
Osborn complained to Binns that Kroll had refused to communicate regarding the patient’s care.
R. 50-5 (Osborn Dep. at 35–36) (Page ID #277–78).
Binns met with Kroll and her father later that day to discuss Binns’s concerns about
Kroll’s behavior. Binns told Kroll that she could continue her employment with WLAA only if
she agreed to undergo counseling. R. 53-3 (Holmstrom Dep. at 10–11) (Page ID #515). Binns
admitted during his deposition that he “never had a problem with [Kroll] as far as patient care.”
R. 52-4 (Binns Dep. at 66) (Page ID #488). Rather, he decided to compel counseling because
Kroll’s “life was a mess and [h]e thought [h]e could help her.” Id. He also explained that his
primary concerns regarding Kroll related to her personal life and her sexual relationships. Id. at
68–69 (Page ID #488). Kroll confirmed that Binns told her she would need to attend counseling
because of her personal behavior. She testified that, during the meeting following her argument
with Osborn, Binns “said I was picking up men from the bar and I was going to end up raped if I
just picked up random men from the bar.” R. 53-4 (Kroll Dep. at 173) (Page ID #523). Kroll
recalls that Binns explicitly told her that she “needed counseling because of [her] immoral
personal behavior.” Id. at 175 (Page ID #523).1 Neither Binns nor Dresen consulted with a
psychologist or other mental-health professional before deciding to force Kroll into counseling.
R. 53-1 (Dresen Dep. at 173) (Page ID #500). Although Kroll agreed that she had some
emotional problems and that she might have benefitted from some counseling, she refused
treatment because she could not afford to pay for it. R. 50-7 (Kroll Dep. at 178) (Page ID #307).
Kroll turned in her WLAA equipment, and she was not scheduled for any additional shifts. Id.
On July 9, 2009, Kroll filed a complaint alleging that WLAA violated the Americans
with Disabilities Act, 42 U.S.C. § 12112(d)(4)(A), by requiring her to submit to a medical
examination that was not “shown to be job-related and consistent with business necessity.” R. 1
(Compl.) (Page ID #1–8). After discovery, WLAA filed a motion for summary judgment,
asserting that the requirement that Kroll attend counseling did not violate the ADA because it
1
This was not the first time that Binns had required an employee to seek counseling after he learned that the
employee was involved in an extramarital sexual relationship. In the mid-1980s, Binns required Jeff Holmstrom to
undergo counseling because he was a “skirt chaser” who dated married women. R. 52-4 (Binns Dep. at 41–42)
(Page ID #482–83). And in 1993, Binns required Kathie Sturgis to attend counseling when he learned that she was
dating a married man. R. 54-1 (Sturgis Dep. at 13–14) (Page ID #536–57).
No. 13-1774 Kroll v. White Lake Ambulance Auth. Page 5
was job-related and consistent with business necessity. The district court granted WLAA’s
motion for summary judgment on alternative grounds, concluding that it “need not determine
whether WLAA had a reasonable basis to justify its demand that Kroll attend counseling
because, contrary to Kroll’s claim, counseling alone does not constitute a medical examination
under the ADA.” Kroll v. White Lake Ambulance Auth., No. 1:09-CV-626, 2010 WL 3273057,
at *4 (W.D. Mich. Aug. 19, 2010). On Kroll’s appeal, we reversed the grant of summary
judgment, holding that “Kroll has presented sufficient evidence such that a reasonable jury could
conclude that the ‘psychological counseling’ Kroll was instructed to attend did constitute a
‘medical examination’ under the ADA.” Kroll I, 691 F.3d at 820.
On remand, WLAA renewed its motion for summary judgment on the basis that, even if
counseling is a “medical examination,” it was permissible under the ADA to require the
examination because Kroll’s behavior was negatively affecting her job performance. The district
court again granted summary judgment in favor of WLAA, concluding that “Binns’s requirement
that Kroll obtain psychological counseling was both job-related and consistent with WLAA’s
business necessity.” Kroll v. White Lake Ambulance Auth., No. 1:09-CV-626, 2013 WL
2253757, at *5 (W.D. Mich. May 22, 2013). The district court reasoned that, based on the
concerns that Kroll’s coworkers expressed to Dresen and Binns regarding Kroll’s emotional
health, “Binns had ample evidence that Kroll’s emotional issues were compromising her ability
to perform her job duties in a competent and safe manner.” Id. The district court also concluded
on the basis of the same evidence that Kroll posed a “direct threat” to her own safety and the
safety of others because of the potential danger arising from her unsafe driving. Id. Kroll timely
appealed the district court’s grant of summary judgment in favor of WLAA.
II. STANDARD OF REVIEW
We review de novo the district court’s grant of summary judgment. EEOC v. Prevo’s
Family Mkt., Inc., 135 F.3d 1089, 1093 (6th Cir. 1998). Summary judgment is proper when the
moving party shows that there is “no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). On a motion for summary
judgment, the court must view all evidence and draw any reasonable inferences therefrom in
favor of the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
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587 (1986). The court must determine “whether the evidence presents a sufficient disagreement
to require submission to a jury or whether it is so one-sided that one party must prevail as a
matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251–52 (1986).
III. ANALYSIS
The Americans with Disabilities Act prohibits an employer from “requir[ing] a medical
examination . . . unless such examination or inquiry is shown to be job-related and consistent
with business necessity.” 42 U.S.C. § 12112(d)(4)(A). Because we have already determined
that Kroll has presented sufficient evidence to withstand summary judgment regarding whether
psychological counseling is a “medical examination,” the issue in this appeal is whether the
counseling is job-related and consistent with business necessity.
The employer bears the burden of proving that a medical examination is job-related and
consistent with business necessity by demonstrating that: “(1) the employee requests an
accommodation; (2) the employee’s ability to perform the essential functions of the job is
impaired; or (3) the employee poses a direct threat to himself or others.” Denman v. Davey Tree
Expert Co., 266 F. App’x 377, 379 (6th Cir. 2007). The business-necessity standard cannot be
satisfied by an employer’s bare assertion that a medical examination was merely convenient or
expedient. See Conroy v. New York Dep’t of Corr. Servs., 333 F.3d 88, 97 (2d Cir. 2003).
Rather, the 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. Wurzel v. Whirlpool Corp., 482 F. App’x 1, 12 (6th Cir. 2012); see also Pence v.
Tenneco Auto. Operating Co., 169 F. App’x 808, 812 (4th Cir. 2006) (“[W]e note that whether a
mental examination was job-related and consistent with business necessity is an objective
inquiry.”) (internal quotation marks omitted).
A reasonable jury could conclude that Binns, who was the Director of WLAA during the
time of Kroll’s employment, decided that Kroll needed to receive counseling as a condition of
employment. Although Binns discussed the matter with Dresen, the office manager, and asked
that Dresen coordinate the logistics and communicate his decision to Kroll, R. 50-12 (Dresen
Dep. at 35) (Page ID #345), it was Binns who ultimately decided that counseling was necessary
and instructed that Dresen should call an administrator at WLAA’s external workplace-health
No. 13-1774 Kroll v. White Lake Ambulance Auth. Page 7
office to settle the details. Id. at 36 (Page ID #346). Thus, the decision to require a medical
examination was justified only if it was reasonably based on objective evidence known to Binns.
Kroll has provided evidence from which a jury could reasonably infer that Binns had only
limited information pertaining to her alleged emotional outbursts and disregard of safety rules.
First, the record indicates that Binns knew of only one incident during the entire period of
Kroll’s employment when she provided substandard patient care. Kroll does not dispute that
Osborne reported to Binns that Kroll had refused to administer oxygen to a patient during their
ambulance run. Indeed, it was Osborne’s complaint that prompted Binns to call Kroll for a
meeting and require her to submit to counseling. However, Binns was not under the impression
that Kroll routinely provided inadequate care to patients: he admitted that he “never had a
problem with [Kroll] as far as patient care,” R. 52-4 (Binns Dep. at 66) (Page ID #488), and it is
undisputed that Kroll had never before been formally disciplined for any reason. R. 53-4 (Kroll
Dep. at 25) (Page ID #519); R. 52-4 (Binns Dep. at 58–59) (Page ID #486). Second, a
reasonable jury could infer that Binns knew of only one incident of Kroll using her cell phone
while operating an ambulance. Although several of Kroll’s coworkers claim that they reported
to Binns on more than one occasion that Kroll was using her cell phone to text and call while
driving WLAA ambulances,2 Binns testified that he could recall only one employee reporting
that Kroll was using her cell phone while driving. R. 52-4 (Binns Dep. at 61–64) (Page ID
#486–87). We must therefore determine whether Binns’s knowledge of these two incidents
provided sufficient objective evidence upon which he could determine that a medical
examination was job-related and consistent with business necessity.
2
Kroll flatly denies that she ever used her cell phone while operating an ambulance. R. 50-7 (Kroll Dep. at
134) (Page ID #294). Her denial is lent some support by another former WLAA employee who recalled that Kroll
told her in a private conversation before Kroll initiated this lawsuit that she had never used her cell phone to make a
call or text message while driving. R. 50-14 (Sturgis Dep. at 27–28) (Page ID #357–58). Even assuming that Kroll
did not ever use her cell phone while operating an ambulance—as we must, at this stage of the litigation—the fact
remains that Binns was aware of at least one report that she had done so. R. 52-4 (Binns Dep. at 61–64) (Page ID
#486–87); see also Coffman v. Indianapolis Fire Dep’t, 578 F.3d 559, 565 (7th Cir. 2009) (concluding that a
medical examination was reasonable because a supervisor could rely on the reports of multiple coworkers regarding
an employee’s withdrawn and depressed behavior). Because the relevant inquiry is whether the decision maker had
objective evidence upon which to base his decision to compel a medical examination, see Sullivan v. River Valley
Sch. Dist., 197 F.3d 804, 811 (6th Cir. 1999), it is immaterial whether or not Kroll did actually use her cell phone
while driving.
No. 13-1774 Kroll v. White Lake Ambulance Auth. Page 8
It is undisputed that Kroll did not request psychological counseling or any other form of
medical accommodation from WLAA. Thus, the counseling required by WLAA can be justified
only if Binns had a reasonable basis for believing that Kroll was unable to perform the essential
functions of her job, see Sullivan v. River Valley Sch. Dist., 197 F.3d 804, 812 (6th Cir. 1999), or
that she posed a direct threat to her own safety or the safety of others, see Prevo’s Family Mkt.,
135 F.3d at 1095.
A. Impairment of Essential Job Functions
An employer may request a medical examination when “there [is] significant evidence
that could cause a reasonable person to inquire as to whether [the] employee is still capable of
performing [her] job.” Sullivan, 197 F.3d at 811. “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.’” Id. (quoting 42 U.S.C.
§ 12112(d)(4)(B)). Such a genuine reason may arise when an employee’s “aberrant behavior”
raises the concern that an employee’s mental or emotional instability could undermine her ability
to complete her job functions effectively in the employer’s work environment. Id. at 812; see
also Owusu-Ansah v. Coca-Cola Co., 715 F.3d 1306, 1311–12 (11th Cir. 2013) (concluding that
an examination was “job-related” because it assessed “an employee’s ability to handle
reasonably necessary stress . . . [which is an] essential function[] of any position”) (internal
quotation marks omitted).
The record contains ample evidence that Kroll began displaying aberrant emotional
behavior after she became embroiled in a relationship with Easton: a coworker observed her
crying in a grocery store parking lot, R. 50-11 (Callison Dep. at 15–16) (Page ID #334–35); she
called a coworker in tears one night after her shift, R. 50-12 (Dresen Dep. at 23) (Page ID #340);
and a coworker saw her crying and arguing with Easton in the hallway at WLAA, R. 50-8 (Betka
Dep. at 13, 15) (Page ID #313, 315). However, Kroll’s behavior is relevant to the assessment of
whether she was capable of performing her job only to the extent that it interfered with her
ability to administer basic medical care and safely transport patients to the hospital. A
reasonable jury could find that Kroll’s emotional outbursts outside of work hours and not in the
presence of patients did not impair her ability to perform essential job functions. Moreover, as
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discussed above, her behavior may provide a basis for compelling a medical examination only to
the extent that Binns was aware of it. Thus, at most, the record reveals only two incidents that
could support a determination that Kroll’s behavior may have undermined her ability to perform
the essential functions of her job: (1) a single incident of using her cell phone while driving an
ambulance; and (2) a single incident of refusing to administer oxygen to a patient.
Based on this information, a reasonable jury could find that Binns could not reasonably
have concluded that Kroll was unable to perform the essential functions of her job. Safely
transporting patients to the hospital and providing basic medical care were among the essential
duties of Kroll’s position as an EMT. Binns knew that an EMT who becomes distracted while
driving an ambulance, either because she is using her cell phone or because she is focused on
personal concerns, is at a higher risk of causing a traffic accident. See R. 52-4 (Binns Dep. at
51–52) (Page ID #484). Therefore, had Binns been aware of a pattern of behavior that showed
Kroll’s emotional or psychological problems were interfering with her ability to drive an
ambulance safely, he might have been justified in ordering a medical examination. In the instant
case, however, Binns knew only that Kroll had broken a safety rule once and provided
suboptimal care to a patient once. Kroll’s isolated moments of unprofessional conduct might
reasonably have prompted Binns to begin internal disciplinary procedures or to provide Kroll
with additional training, but they could not support the conclusion that Kroll was experiencing an
emotional or psychological problem that interfered with her ability to perform her job functions.
Thus, drawing all reasonable inferences in Kroll’s favor, we conclude that a reasonable jury
could determine that Binns did not have sufficient objective knowledge upon which to base a
decision that Kroll’s job performance was impaired.
B. Direct Threat
An employee poses a “direct threat” when she creates “a significant risk to the health or
safety of others that cannot be eliminated by reasonable accommodation.” 42 U.S.C. § 12111(3);
see also Prevo’s Family Mkt., 135 F.3d at 1095. An assessment of whether an employee poses a
direct threat must be “individualized” to the employee’s abilities and job functions and “based on
a reasonable medical judgment that relies on the most current medical knowledge and/or on the
best available objective evidence.” 29 C.F.R. § 1630.2(r). In determining whether a direct threat
No. 13-1774 Kroll v. White Lake Ambulance Auth. Page 10
exists, the court should consider: “(1) [t]he duration of the risk; (2) [t]he nature and severity of
the potential harm; (3) [t]he likelihood that the potential harm will occur; and (4) [t]he
imminence of the potential harm.” Id.
Our sister circuits have recognized that “special circumstances” may exist in workplaces
where employees respond to stressful situations and shoulder responsibility for public safety.
Conroy, 333 F.3d at 99 (correctional facility); see also Brownfield v. City of Yakima, 612 F.3d
1140, 1146–47 (9th Cir. 2010) (police department); Coffman v. Indianapolis Fire Dep’t,
578 F.3d 559, 565 (7th Cir. 2009) (fire department); Thomas v. Corwin, 483 F.3d 516, 527 (8th
Cir. 2007) (juvenile unit of police department); Watson v. City of Miami Beach, 177 F.3d 932,
935 (11th Cir. 1999) (police department). In these “public safety” workplaces, an employer may
be justified in requesting a psychological exam on slighter evidence than in other types of
workplaces because employees are “in positions where they can do tremendous harm if they act
irrationally,” and thus they pose a greater threat to themselves and others. Watson, 177 F.3d at
935. However, even in public safety workplaces, a small number of isolated incidents of
troubling behavior may not be sufficient to establish that a psychological examination is a
business necessity. See Brownfield, 612 F.3d at 1146 (“Although a minor argument with a
coworker or isolated instances of lost temper would likely fall short of establishing business
necessity, Brownfield’s repeated volatile responses are of a different character.”).
As an EMT employed by an ambulance service, Kroll was undoubtedly employed in a
position of public safety. A reasonable jury could find that the emotional behavior observed by
Kroll’s coworkers, particularly any distractions while Kroll was driving, could endanger not only
herself and her coworkers but also the members of the public she was called upon to aid. Thus,
if Binns had been aware of a pattern of conduct in which Kroll succumbed to emotional outbursts
while she was driving or providing direct medical care, he might have been justified in
concluding that she posed a direct threat to safety. However, as discussed above, Binns knew of
only two isolated incidents when Kroll ever behaved in a way that could endanger another
person. A reasonable jury could find that Binns could not reasonably have concluded from these
missteps that Kroll presented “a significant risk to the health or safety of others.” 42 U.S.C.
§ 12111(3).
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Moreover, even if Kroll did pose a safety risk, a reasonable jury could find that Binns
was not justified in ordering her to submit to a medical examination because he did not make his
decision “based on a reasonable medical judgment.” 29 C.F.R. § 1630.2(r). We have not yet
determined what precisely this regulation requires an employer to do: It could direct an
employer to consult with a medical professional, to survey relevant medical literature, to take
stock of common knowledge regarding well-known medical conditions, or to take some other
action that evidences reliance on medical knowledge. See Prevo’s Family Mkt., 135 F.3d at
1095 (suggesting that the danger of HIV transmission through contact with blood was so well-
known that it was unnecessary to consult a medical professional to determine if an examination
was necessary); Estate of Mauro v. Borgess Med. Ctr., 137 F.3d 398, 403–06 (6th Cir. 1998)
(finding a compelled medical examination permissible when the decision was based on
consultation with physicians and a Centers for Disease Control report). For the regulation to
have any meaning, however, an employer must do more than follow its own lay intuition
regarding the threat posed by an employee’s potential medical condition.
We need not decide in this case how an employer may demonstrate that its decision to
require an examination was based on medical judgment because there is no evidence in the
record that Binns made any kind of medical judgment at all. R. 53-1 (Dresen Dep. at 56–59)
(Page ID #503–04) (admitting that WLAA did not consult with any mental-health professional).
Indeed, the only record evidence relating to Binns’s decision-making process strongly suggests
that he made his decision based on moral convictions rather than medical concerns: Binns
admitted that he ordered Kroll to attend counseling because he had “concerns” about her “sexual
relationships with men” and that he thought that “her life was a mess and [h]e could help her.”
R. 52-4 (Binns Dep. at 66, 68–69) (Page ID #488). This open admission that an employer
ordered a medical examination based on moralistic condemnation of an employee’s private
behavior is troubling, to say the very least. A jury could easily conclude from Binns’s own
testimony that he did not base a conclusion that Kroll posed a direct threat on a “reasonable
medical judgment.” 29 C.F.R. § 1630.2(r).
A jury drawing all reasonable inferences in Kroll’s favor could reasonably determine that
Binns lacked sufficient objective evidence to conclude that Kroll was impaired in the
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performance of her essential job functions or that she posed a direct threat to the safety of others.
Accordingly, there remains a genuine dispute of material fact regarding whether the
psychological counseling ordered by WLAA was “job-related and consistent with business
necessity,” 42 U.S.C. § 12112(d)(4)(A), and WLAA was not entitled to summary judgment.
IV. CONCLUSION
For the foregoing reasons, we REVERSE the district court’s judgment and REMAND
for further proceedings consistent with this opinion.