No. 03-1163 __________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT __________________________________________ JUVENTINO CORREA, Plaintiff-Appellant, v. ROADWAY EXPRESS, Defendant-Appellee. __________________________________________________________ On Appeal from the United States District Court for the Middle District of North Carolina, Rehearing and Suggestion for Rehearing En Banc __________________________________________________________ Brief of the U.S. Equal Employment Opportunity Commission as Amicus Curiae in Support of Plaintiff-Appellant’s Petition for Rehearing and Suggestion for Rehearing En Banc __________________________________________________________ NICHOLAS M. INZEO Acting Deputy General Counsel LOUIS LOPEZ Attorney PHILIP B. SKLOVER Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, NW, 7th Floor Washington, DC 20507 (202) 663-4098 TABLE OF CONTENTS TABLE OF AUTHORITIES ii STATEMENT OF PURPOSE 1 STATEMENT OF INTEREST 2 STATEMENT OF THE ISSUE 2 STATEMENT OF THE CASE 2 A. Statement of Facts 2 B. District Court and Panel Decisions 4 ARGUMENT I. ROADWAY SUBJECTED CORREA TO AN UNLAWFUL PRE-EMPLOYMENT MEDICAL EXAMINATION 6 II. ROADWAY’S ARGUMENTS THAT CORREA MUST HAVE A DISABILITY TO BRING AN UNLAWFUL PRE-EMPLOYMENT MEDICAL EXAMINATION CLAIM AND THAT HE HAS NOT SUFFERED ANY INJURY ARE WITHOUT MERIT 11 CONCLUSION 18 CERTIFICATE OF COMPLIANCE 19 CERTIFICATE OF SERVICE TABLE OF AUTHORITIES FEDERAL CASES Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975) 17 Armstrong v. Turner Indus., Inc., 141 F.3d 554 (5th Cir. 1998) 16-17 Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) 16 Correa v. Roadway Express, 2003 WL 42143 (M.D.N.C. Jan. 2, 2003) 4-5, 9 Cossette v. Minn. Power & Light, 188 F.3d 964 (8th Cir. 1999) 13 Deane v. Pocono Med. Ctr., 142 F.3d 138 (3d Cir. 1998) 16 Fredenberg v. Contra Costa County Dep’t of Health Servs., 172 F.3d 1176 (9th Cir. 1999) 13 Griffin v. Steeltek, Inc., 160 F.3d 591 (10th Cir. 1998) 13, 17 Harris v. Harris & Hart, Inc., 206 F.3d 838 (9th Cir. 2000) 8 Karraker v. Rent-A-Center, Inc., 239 F. Supp. 2d 828 (C.D. Ill. 2003) 13 Mack v. Johnston Am. Corp., 1999 WL 304276 (W.D. Pa. 1999) 13 Pollard v. City of Northwood, 161 F. Supp. 2d 782 (N.D. Ohio 2001) 13 Raines v. Byrd, 521 U.S. 811 (1997) 12 Roe v. Cheyenne Mountain Conf. Resort, Inc., 124 F.3d 1221 (10th Cir. 1997) 12, 13 Smith v. Midland Brake, Inc., 180 F.3d 1154 (10th Cir. 1999) 16 Thomas Jefferson Univ. v. Shalala, 512 U.S. 504 (1994) 16 United States v. Colo. Supreme Court, 87 F.3d 1161 (10th Cir. 1996) 12 FEDERAL STATUTES, REGULATIONS AND RULES Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq. 2 § 12112(d)(2)(A) 7-8, 12-17 § 12112(d)(2)(B) 7 § 12112(d)(3) 10 § 12112(d)(4) 13 Civil Rights Act of 1991, 42 U.S.C. § 1981a 17 42 U.S.C. § 1981 4 42 U.S.C. § 1983 4 29 C.F.R. § 1630.13(a) 11, 15 29 C.F.R. pt. 1630 app. 15 Fed. R. App. P. 32(a)(7)(B) 19 Fed. R. App. P. 35(b)(1)(B) 1 4th Cir. R. 40(b)(i) 1 4th Cir. R. 40(b)(iv) 1 OTHER AUTHORITY ADA Enforcement Guidance: Pre-Employment Disability-Related Questions and Medical Examinations (EEOC Notice 915.002) (Oct. 10, 1995) 7-9 EEOC Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the ADA (EEOC Notice 915.002) (July 26, 2000) 15 House Ed. and Labor Report, H.R. Rep. No. 485 pt.2, 101st Cong., 2d Sess. (1990) 14 Senate Report, S. Rep. No. 116, 101st Cong., 1st Sess. (1989) 14 STATEMENT OF PURPOSE In the judgment of counsel, a material factual or legal matter was overlooked in the panel decision. See 4th Cir. R. 40(b)(i). Specifically, the undisputed facts clearly demonstrate that Defendant’s physical abilities test constituted an unlawful pre-offer medical examination under the ADA. In adopting the reasoning of the district court, the panel erroneously required evidence that each individual test was medical in nature and that the test results were used to determine if Plaintiff had a disability. The ADA, however, prohibits any pre-offer medical examination regardless of how the results are used. In the judgment of counsel, if the panel declines to reconsider its decision, rehearing en banc is necessary because this appeal involves a question of exceptional importance: Whether a physical abilities test purported to examine an applicant’s ability to perform essential functions violates the ADA when it is administered at the pre-offer stage of the application process and measures the biological and physiological responses of an applicant. See Fed. R. App. P. 35(b)(1)(B); 4th Cir. R. 40(b)(iv). STATEMENT OF INTEREST The U.S. Equal Employment Opportunity Commission (EEOC or Commission) is the agency charged by Congress with the administration, interpretation and enforcement of Title I of the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. § 12101 et seq. This appeal raises a fundamental question regarding pre-employment medical testing of applicants in violation of the ADA. Because of the importance of this issue to the effective enforcement of the ADA, the Commission respectfully offers its views to the Court. STATEMENT OF THE ISSUE1 Whether Defendant’s physical abilities test constituted an unlawful pre-offer medical examination when it went beyond testing Plaintiff’s ability to perform job-related functions and measured his physiological responses to his test performance. STATEMENT OF THE CASE A. Statement of Facts Juventino Correa applied for a casual dockworker position with Roadway Express in February 1999. Correa Dep. at 21-23. At this time, Correa attended an informational meeting at Roadway’s facilities at which he was given a booklet describing the hiring process and the job functions. At the end of the meeting, Correa was told to return the next day if he was still interested in the position. Id. at 23-24. Correa returned the next day, completed an application form and took several written tests. Id. at 25-26. Before Correa left Roadway’s offices, Mark Holzer, the human resources manager, told him we might call you.” Id. at 36. Later, Correa received a telephone call from Roadway requesting that he go to HealthSouth for a physical abilities test. Id. at 37-38. At HealthSouth, Correa was asked to perform a physical abilities test with three subparts: (1) stepping up and down on a platform in response to noise cues; (2) lifting weights and placing them on a tray; and (3) pulling on a handle with maximum strength. Id. at 39-42. Correa testified that the test administrator measured his heart rate and blood pressure at the beginning and end of the first test (stepping on the platform). Id. at 45-46. In March 1999, Roadway informed Correa that he failed the first subpart of the physical abilities test and it thus could not offer him the casual dockworker position. Roadway advised Correa of a lower paying position that did not require the same testing. Correa Dep. at 50. Instead of applying for this position, however, Correa told Holzer that the step test was improperly administered at twice the correct speed. Holzer told Correa that he could retake the step test. Id. at 51. Correa later was told that he failed the step test for the second time. Id. at 56. When Correa requested a copy of his test results from HealthSouth and indicated that he had contacted EEOC, Holzer asked him to take the step test a third time. Id. at 59-61; Correa Dep. Ex. 6. This time, Correa passed the step test and was asked to see Holzer for a personal interview. Correa Dep. at 74. Correa declined the interview because he did not believe that it was part of the regular hiring process, and because he feared having an interview in English given his lack of English fluency. Id. at 77. As a result of Correa’s failure to interview, Roadway asserts that it considered him to have withdrawn his application for employment. Id. at 76-78; Correa Dep. Ex. 8. In response, Correa reiterated his desire to maintain his application to work as a casual dockworker at Roadway. Correa Dep. Ex. 9. Correa filed a lawsuit pro se in federal court in June 2000. In his lawsuit, Correa alleged claims of discrimination based on age, national origin, race and disability, as well as violations of his civil rights pursuant to 42 U.S.C. § 1981 and § 1983. B. District Court and Panel Decisions In January 2003, the district court granted summary judgment to Roadway on all of Correa’s claims. Correa v. Roadway Express, 2003 WL 42143 (M.D.N.C. Jan. 2, 2003). In discussing Correa’s medical examination claim, the district court recognized that Roadway required Correa to submit to a pre-employment physical abilities test, which was related to the job functions of the casual dockworker position for which Correa applied. The district court also acknowledged that Correa asserted that the test administrator monitored his heart rate and blood pressure during the performance of at least one of the subparts that comprise the physical abilities test. Id. at *7-8. The district court reviewed Correa’s deposition testimony regarding the physical abilities test. According to the court, Correa’s testimony revealed that the test administrator measured his blood pressure the first time he took the step test and measured his heart rate the second time. Correa could not recall whether he was monitored the third time he took the step test. Correa, 2003 WL 42143, at *8. Accordingly, the court found that Correa failed to identify any evidence as to whether he was subjected to monitoring on each of the three occasions he took [the step test], and he [did] not produce any evidence, such as specific outcomes of the tests, to give rise to a genuine issue of material fact as to whether or not Roadway was conducting pre-employment medical testing to determine if Correa had either a disability or so as to determine the nature and severity of any such disability if disclosed by the testing.” Id. Ultimately, the court held that Roadway as a matter of law did not subject Correa to pre-employment medical testing.” Id. The Court of Appeals for the Fourth Circuit issued an unpublished, per curiam opinion on June 3, 2003. In a one-paragraph decision, the Court stated that it was dispensing with oral argument and was affirming the district court’s order granting summary judgment in favor or Roadway for the reasons stated by the district court.” Slip op. at 2. ARGUMENT I. ROADWAY SUBJECTED CORREA TO AN UNLAWFUL PRE-EMPLOYMENT MEDICAL EXAMINATION. One of the questions before the panel on appeal was whether Roadway’s physical abilities test constituted an unlawful pre-employment medical examination when it went beyond testing Correa’s ability to perform job-related functions by measuring his physiological responses to his test performance. The Commission believes that, in answering this question in the negative, the panel overlooked a material factual or legal matter as explained below. Moreover, the decision’s holding regarding pre-employment medical testing involves a question of central importance because it conflicts with the plain language of the statute, and because it seriously undermines the very purpose for which the ADA was created — to increase access to employment for people with disabilities. The ADA specifically states that a covered entity shall not conduct a medical examination or make inquiries of a job applicant as to whether such applicant is an individual with a disability or as to the nature or severity of such disability.” 42 U.S.C. § 12112(d)(2)(A). The ADA, however, does permit [a] covered entity [to] make pre-employment inquiries into the ability of an applicant to perform job-related functions.” 42 U.S.C. § 12112(d)(2)(B). In general, a physical abilities test, in which an applicant demonstrates the ability to perform actual or simulated job tasks, is not a medical examination under the ADA.” ADA Enforcement Guidance: Pre-Employment Disability-Related Questions and Medical Examinations, 15 (EEOC Notice 915.002) (Oct. 10, 1995) (hereinafter referred to as ADA Guidance). Accordingly, this test may be given at any point during the application process. If, however, an employer measures an applicant’s physiological or biological responses to performance, the test would be medical.” Id. A medical examination administered at the pre-offer stage of the hiring process violates the ADA because it seeks information about an individual’s physical or mental impairments or health.” Id. at 14. The rationale behind this prohibition is that [i]ndividuals with disabilities must be allowed a fair opportunity to be judged on their qualifications, ‘to get past that initial barrier’ where an employment judgment might be unfairly made based on disabilities rather than abilities.” Harris v. Harris & Hart, Inc., 206 F.3d 838, 841 (9th Cir. 2000) (citing legislative history). In this case, there is undisputed evidence that Roadway (through HealthSouth) required Correa to undergo a pre-employment physical abilities test comprised of three subparts that tested Correa’s ability to perform job-related functions, such as stepping up and down on a platform, lifting weights and placing them on a tray, and pulling on a handle with maximum strength. It is further uncontested that during one or more aspects of this test, Correa’s heart rate and blood pressure were measured. Roadway’s test was administered by HealthSouth, a health care organization, in a medical setting using medical equipment. Moreover, the test results were interpreted by a health care professional ostensibly to determine more than Correa’s ability to perform the job functions; the tests measured his physiological responses to performing those tasks. Thus, virtually all of the factors outlined by EEOC to determine whether a test constitutes a medical examination for purposes of the ADA are met in this case.2 In spite of these facts, the district court concluded and the panel concurred that Roadway’s physical abilities test was not a medical examination under the ADA apparently because Correa failed to show that the monitoring occurred on each of the three occasions he took [the step test],” and because he did not produce evidence of the specific outcomes of the tests.” Correa, 2003 WL 42143, at *8. As explained below, such evidence is not needed to establish a violation of the ADA. First, that Correa’s heart rate and blood pressure were measured during at least one subpart of Roadway’s pre-employment physical abilities test is sufficient to establish a violation of the ADA. In outlining Correa’s deposition testimony, the court appeared to give undue weight to whether Correa’s biological functions were monitored during each of the three times he took the step test. The first time Correa took the test, he clearly recalled a device direct on [his] body” and a wrist watch” type article used by the test administrator to measure his heart rate. Correa Dep. at 39. He also testified that [t]hey measured the blood pressure at the beginning and at the end” of the step test. Id. at 45. The second time Correa took the step test, he testified that the test administrator measured his heart rate, but not his blood pressure. Id. at 53-54. Correa could not recall what biological functions, if any, were measured when he took the step test the third time. Id. at 69-70. Nevertheless, Roadway does not dispute that Correa’s biological responses were measured during some aspect of the physical abilities test. This evidence alone is sufficient to make Roadway’s test an unlawful pre-employment medical examination under the ADA. Second, evidence of the specific outcome of a medical examination is not necessary to establish a violation of the ADA. The undisputed evidence in this case shows that Correa failed the step test the first two times he took it and then passed it on the third time. Whether Correa failed the test because of a high heart rate, low blood pressure or some other reason is irrelevant to the fact that Roadway subjected Correa to an unlawful pre-employment medical examination. To the extent the panel agreed with the district court’s assessment that the medical examination is unlawful only if it was actually used to determine whether Correa had a disability or to determine the nature or severity of any disclosed condition, the court’s analysis is faulty. The ADA precludes employers from conducting medical examinations until after it makes a conditional job offer to an applicant. See 42 U.S.C. § 12112(d)(3). In this case, Correa was never given a conditional offer of employment. Indeed, Roadway does not dispute this fact and concedes that Correa, like all other applicants, was required to complete a personal interview upon completion of the physical abilities test but before being hired by Roadway. Proof that Roadway actually used the medical examination to determine if Correa had a disability or the nature or severity of an identified medical condition simply is not required by the statute. Notwithstanding, given that Correa’s heart rate and blood pressure were monitored during at least some aspect of Roadway’s pre-offer physical abilities test, it is reasonable to conclude that information gleaned from the medical examination could readily be used by Roadway to determine if Correa (or other applicants) had an impairment or disability or to ascertain the nature or severity of any identified impairment or disability. See 29 C.F.R. § 1630.13(a). II. ROADWAY’S ARGUMENTS THAT CORREA MUST HAVE A DISABILITY TO BRING AN UNLAWFUL PRE-EMPLOYMENT MEDICAL EXAMINATION CLAIM AND THAT HE HAS NOT SUFFERED ANY INJURY ARE WITHOUT MERIT. In its briefs below (and on appeal), Roadway made two additional arguments regarding Correa’s pre-employment medical examination claim. First, Roadway argued that Correa does not have standing to assert an ADA claim because he is not disabled. Def. Br. Ex. 1, at 7. Second, Roadway asserted that Correa does not have a claim under the ADA because he has not suffered any injury or damages as a result of Roadway’s unlawful pre-employment medical examination. Id. at 10. For the reasons articulated below, these arguments fail. Roadway mischaracterized its first argument as an issue regarding Correa’s standing. [W]hether a plaintiff suing under the ADA comes within the definition of a person with a disability is simply not a question of standing but of whether an essential element of the claim can be established.” Roe v. Cheyenne Mountain Conf. Resort, Inc., 124 F.3d 1221, 1229 (10th Cir. 1997). Standing concerns whether the plaintiff is entitled to have the court decide the merits of the dispute or of particular issues.” Id. (quoting United States v. Colo. Supreme Court, 87 F.3d 1161, 1164 (10th Cir. 1996)). In other words, ‘[t]he standing inquiry focuses on whether the plaintiff is the proper party to bring this suit,’ which requires that the plaintiff show that she has a personal stake in the litigation.” Id. (quoting Raines v. Byrd, 521 U.S. 811, 818 (1997)). Roadway thus erred in arguing that Correa lacks standing because irrespective of whether Correa has a disability, he clearly has a personal stake in the litigation as he argues that he was denied employment as a result of Roadway’s unlawful pre-employment medical examination. With respect to the merits of Roadway’s contention, EEOC argues, and several courts have held, that an applicant does not have to be disabled to bring an unlawful pre-employment medical examination claim under § 12112(d)(2)(A) of the ADA. See, e.g., Griffin v. Steeltek, Inc., 160 F.3d 591, 595 (10th Cir. 1998); Fredenberg v. Contra Costa County Dep’t of Health Servs., 172 F.3d 1176, 1182 (9th Cir. 1999); Karraker v. Rent-A-Center, Inc., 239 F. Supp. 2d 828, 836 (C.D. Ill. 2003); Mack v. Johnston Am. Corp., 1999 WL 304276, *5 (W.D. Pa. 1999); see also Roe, 124 F.3d at 1229 (applying same analysis to review medical examination and inquiry claims of employees under § 12112(d)(4)); Cossette v. Minn. Power & Light, 188 F.3d 964, 969-70 (8th Cir. 1999) (same); Pollard v. City of Northwood, 161 F. Supp. 2d 782, 793 (N.D. Ohio 2001) (same). In addition to the case law on point, the plain language of the statute, EEOC’s regulations and policy guidance, and the legislative history all make it clear that the ADA’s restrictions on pre-offer medical examinations and inquiries apply to all applicants, not just to those with disabilities. Section 12112(d)(2)(A) states in relevant part: [A] covered entity shall not conduct a medical examination or make inquiries of a job applicant as to whether such applicant is an individual with a disability or as to the nature or severity of such disability.” The statutory language is clear: medical examinations are prohibited not only when addressed to a job applicant with a disability; they are prohibited when addressed to any job applicant. See 42 U.S.C. § 12112(d)(2)(A). Moreover, Congress’s purpose in enacting § 12112(d)(2)(A) would be significantly frustrated by construing it to protect only applicants with disabilities. During the drafting of the ADA, Congress identified as a specific concern the fact that employers who required applicants to complete pre-offer medical examinations frequently used the results of these pre-employment practices to exclude people with disabilities from jobs they are able to perform. See House Ed. and Labor Report, H.R. Rep. No. 485 pt.2, 101st Cong., 2d Sess. 72-73 (1990) (Historically, employment application forms and employment interviews requested information concerning an applicant’s physical or mental condition [and] [t]his information was often used to exclude applicants with ... so called hidden disabilities ... before their ability to perform the job was even evaluated.”). Recognizing that discrimination produces fear and reluctance for individuals with disabilities and discourages participation in the employment process, Congress drafted § 12112(d)(2)(A) to remove this barrier to employment. See Senate Report, S. Rep. No. 116, 101st Cong., 1st Sess. 16, 39 (1989) (the legislation prohibits any identification of disability by inquiry or examination at the pre-offer stage”). This comprehensive coverage of all applicants at the pre-offer stage, by its terms, effectuated the purpose of protecting individuals from having to address their disabilities — whether apparent or hidden — and of preventing employers from focusing on disability at the early stages of the application process. The Commission’s administrative interpretation of § 12112(d)(2)(A) is consistent with the plain language of the statute and the legislative purpose. EEOC regulations state that it is unlawful for a covered entity to conduct a medical examination or to make inquiries as to whether an applicant is an individual with a disability or as to the nature or severity of such disability.” 29 C.F.R. § 1630.13(a). Congress’s explicit reference to applicants” instead of qualified individuals with disabilities” reflects its intent to cover a broader class of individuals. See EEOC Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the ADA, 5 (EEOC Notice 915.002) (July 26, 2000). Indeed, the ADA is designed to remove barriers which prevent qualified individuals with disabilities from enjoying the same employment opportunities that are available to persons without disabilities. 29 C.F.R. pt. 1630 app. at 347 (2002). Allowing challenges by only those individuals with disabilities would have a chilling effect on enforcement of § 12112(d)(2)(A) because applicants who want to keep their disabilities private, and thus would ordinarily have a strong incentive to enforce the provision, would be deterred from suing to enforce it. Because EEOC’s interpretation is consonant with the language and legislative purpose of the ADA, the regulation is a permissible construction of the statute entitled to deference. Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S. 837, 843 (1984) (agency interpretations are entitled to deference so long as they are based on a permissible construction of the statute.). This Court therefore should accord substantial deference to the Commission’s interpretation on this issue. See Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 511 (1994) (deferring to agency guidance that expands on its own regulations where interpretation was consistent with plain language of regulations); Smith v. Midland Brake, Inc., 180 F.3d 1154, 1165 n.5 (10th Cir. 1999) (en banc) (EEOC’s regulations under Title I of the ADA are authorized by statute and entitled to a great deal of deference); Deane v. Pocono Med. Ctr., 142 F.3d 138, 143 n.4 (3d Cir. 1998) (en banc) (EEOC’s regulations under Title I of the ADA are entitled to substantial deference under the rule of Chevron). With respect to its second contention, Roadway urged this Court to adopt the standard articulated in Armstrong v. Turner Indus., Inc., 141 F.3d 554, 562 (5th Cir. 1998), where the plaintiff was required to identif[y] a cognizable and compensable injury arising out of the medical examination. In Armstrong, the Fifth Circuit found that the plaintiff was not entitled to any relief because he could not show any compensable injury resulting from the disability-related inquiries since he did not appeal his related refusal to hire claim or assert any other type of injury resulting from the medical examination. To the extent the decision in Armstrong can be read to suggest that an unlawful pre-employment medical examination claim requires a refusal to hire claim or other related claim to show injury, it is incorrect.3 An unlawful pre-employment medical examination claim is a separate and distinct violation of the ADA. In any event, Correa has adequately stated a claim under the ADA because he has asserted that he has suffered an injury as a result of the unlawful pre-offer medical examination. Indeed, unlike the plaintiff in Armstrong, Correa (acting pro se) continues to challenge Roadway’s refusal to hire him, arguing that he was not hired by Roadway because of concerns about the physical test results. Pl. Br. at 13. In addition, Correa seeks compensatory damages, punitive damages, attorney’s fees, and other appropriate relief to remedy his injury. Id. at 8, 23. This showing is sufficient to withstand summary judgment. See Griffin, 160 F.3d at 595. CONCLUSION For the foregoing reasons, the Commission asks this Court to grant Plaintiff-Appellant’s petition for rehearing and suggestion for rehearing en banc. Respectfully submitted, NICHOLAS M. INZEO Acting Deputy General Counsel PHILIP B. SKLOVER Associate General Counsel LORRAINE C. DAVIS Assistant General Counsel ___________________________ LOUIS LOPEZ Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, NW, 7th Floor Washington, DC 20507 (202) 663-4098 CERTIFICATE OF COMPLIANCE I certify that this brief complies with the type-volume limitation set forth in Fed. R. App. P. 32(a)(7)(B). This brief contains 4,033 words, and was prepared using the WordPerfect 9.0 processing system in 14-point proportionally spaced type for text and 14-point type for footnotes. ___________________________ LOUIS LOPEZ CERTIFICATE OF SERVICE I, Louis Lopez, hereby certify that on the 16th day of June 2003, I caused: (1) copies of the attached brief; (2) copies of EEOC’s motion for leave to file its amicus curiae brief in support of plaintiff-appellant’s motion for rehearing and suggestion for rehearing en banc; and (3) copies of my completed appearance of counsel form to be sent by Federal Express, overnight service, to the following: Patricia S. Connor, Clerk of the Court U.S. Court of Appeals for the Fourth Circuit 1100 East Main Street, Suite 501 Richmond, VA 23219 Juventino Correa P.O. Box 78155 Greensboro, NC 27427 C. Matthew Keen Ogletree, Deakins, Nash, Smoak & Stewart, P.C. P.O. Box 31608 Raleigh, NC 27622 ___________________________ LOUIS LOPEZ Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, NW, 7th Floor Washington, DC 20507 (202) 663-4098 1. EEOC appears as amicus curiae in this case to address only the issue stated above. The Commission does not express any views on other issues that this appeal may raise. 2. The Commission states that "[t]he following factors are helpful in determining whether a procedure or test is medical: Is it administered by a health care professional or someone trained by a health care professional? Are the results interpreted by a health care professional or someone trained by a health care professional? Is it designed to reveal an impairment or physical or mental health? Is the employer trying to determine the applicant's physical or mental health or impairments? Is it invasive (for example, does it require the drawing of blood, urine or breath)? Does it measure an applicant's performance of a task, or does it measure the applicant's physiological responses to performing the task? Is it normally given in a medical setting (for example, a health care professional's office)? Is medical equipment used? ADA Guidance at 14 (emphasis in original). 3. The analysis in Armstrong is faulty for another reason as well. The Armstrong court relied heavily on Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975), to support its holding that the plaintiff had no claim under § 12112(d)(2)(A) because he could not demonstrate any entitlement to "make whole" relief. Albemarle's concept of "make whole" relief, however, neither addresses, nor even contemplates, the remedies now permitted in ADA cases under the Civil Rights Act of 1991, 42 U.S.C. § 1981a, which states that a "complaining party may recover compensatory and punitive damages" in a lawsuit brought "against a respondent who engaged in unlawful intentional discrimination." Thus, the Armstrong court's conclusion in this respect is at best incomplete.