The EEOC’s Opening Brief (“EEOC-Br.”) explained how the district court erred in holding McLeod did not violate the A DA when it forced Whitten to undergo two medical evaluations and ultimately fired her because of her disability. Whitten had successfully performed the essential functions of her job, despite her congenital condition, for the previous twenty-eight years, and McLeod had no objective evidence that her condition had worsened. Nevertheless, the EEOC argued, McLeod unreasonably forced Whitten to undergo the medical evaluations based on nothing more than her supervisor’s untrained, subjective impressions.

In further violation of the ADA, the examinations themselves lacked a sufficient nexus to Whitten’s job requirements. They failed to incorporate both Whitten’s and McLeod’s understanding of her job requirements and the congenital nature of her condition, as well as her history of performing her job successfully. In relying on the unjustified and irrational recommendations stemming from these baseless examinations, McLeod acted unreasonably and violated the ADA.

In its Response Brief (“Resp.”), McLeod asserts, baselessly, that “overwhelming” objective evidence supported its decision to require Whitten’s medical examinations. It then points to Laliberte’s recommendations to justify its argument that it had to terminate Whitten because she could not safely perform her job. Nowhere does McLeod identify the significant objective evidence needed to support the medical examinations or explain why Laliberte was justified in administering an examination that grossly exceeded both Whitten’s and McLeod’s description of her job duties. Nor does it explain why Laliberte’s facially unsupportable recommendations should necessarily trump Whitten’s twenty-eight years of experience — during which she never once fell in pursuit of a story — in determining she could not perform her job safely. Because a reasonable jury could have decided each of these issues in the EEOC’s favor, the district court erred in granting summary judgment.

ARGUMENT

I. A Reasonable Jury Could Find McLeod Violated the A DA in Subjecting Whitten to Two Medical Examinations Because It Lacked a Reasonable Belief, Based on Objective Evidence, that Whitten’s Condition Prevented Her from Performing Essential Functions of Her Job or Posed a Direct Threat.

As explained previously (EEOC-Br. 24-25), the employer bears the “quite high” burden of showing that any medical examination of an employee, and any inquiry about the nature or severity of her disability, is “job-related and consistent with business necessity.” Wright v. Ill. Dep’t of Children & Family Servs., 798 F.3d 513, 523 (7th Cir. 2015) (internal citation and quotation marks omitted); 42 U.S.C. § 12112(d)(4)(A); 29 C.F.R. § 1630.14(c). Any such inquiry or examination may only arise from 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) (“Examination Guidance”).[1] The objective evidence supporting the employer’s reasonable belief must be “significant.” Wright, 798 F.3d at 522-23 (quoting Sullivan v. River Valley Sch. Dist., 197 F.3d 804, 811 (6th Cir. 1999)).

Based on the record in this case, including McLeod’s own job description for Whitten’s position, a reasonable jury applying these standards could find that “safe navigation of story sites” was not an essential function of Whitten’s job within the meaning of the ADA. Safety concerns involving disabled employees are properly addressed through the ADA’s “direct threat” provision, not by allowing an employer to transform a non-essential job function into an essential one by tacking on the word “safely.” A reasonable jury could also find McLeod lacked significant objective evidence that Whitten could not perform this function.

McLeod nevertheless continues to insist that “safely navigating story sites” is an essential function of Whitten’s job and that Whitten “simply believes she did not have to do that safely.” Resp. 9; see also id. at 29 (“Basically, Whitten does not believe doing her job safely is essential.”). McLeod’s trivializing remarks about Whitten’s purported “beliefs” reflect its misunderstanding of the ADA and its continued mischaracterization of the record.

A. A reasonable jury could find that safe navigation of story sites was not an essential function of Whitten’s job and that, in any case, Whitten performed this function successfully.

McLeod’s job description for Whitten’s Communications Specialist position (3-JA-722-25) nowhere mentions safety, navigation, different events or job sites, or any synonyms for those terms in its list of essential job functions. The closest it comes is “Interviews, accurately writes, and edits copy to produce informative articles …” (3-JA-722), and on the next-to-last page, under “Special projects assigned,” it lists “Interviews,” “Press stories,” and “Photographs.” 3-JA-724. McLeod’s attempt to shoehorn “safely navigating story sites” into this language (Resp. 30) is simply unavailing.

Taking McLeod’s description at its word, this absence is strong evidence that neither “safely navigating story sites” nor conducting in-person interviews was an essential function of Whitten’s job. See EEOC-Br. 29-30; 29 C.F.R. § 1630.2(n)(3); Reyazuddin v. Montgomery Cty., 789 F.3d 407, 414-15 (4th Cir. 2015) (noting evidentiary value of employer’s description of job’s essential functions); Jacobs v. N.C. Admin. Office of the Courts, 780 F.3d 562, 580 (4th Cir. 2015) (finding absence of a function from employer’s job description created a genuine dispute of fact over essential job functions). Instead, McLeod characterizes the essential functions of Whitten’s job in terms of the work product, technical skills, and assistance it required from her, rather than by specifying exactly how to perform each task.

McLeod, notably, does not dispute the importance of its job description or attempt to distinguish Reyazuddin or Jacobs. See Resp. 29-31. Instead, it points to other record evidence, such as Swindler’s “unequivocal[]” testimony that safe navigation at interview sites was essential to Whitten’s position, for which McLeod includes no support or citation to the record. Resp. 30. McLeod also highlights Whitten’s and Swindler’s testimony that it was usually preferable for Whitten to travel to story sites in person. Resp. 7-9, 29-31. Even if this were so, however, Whitten’s and Swindler’s preference for a particular method does not convert it into an “essential function” of the job. See S kerski v. Time Warner Cable Co., 257 F.3d 273, 280 (3d Cir. 2001) (“[T]he essential function requirement focuses on the desired result rather than the means of accomplishing it.” (internal citation and quotation marks omitted)).

Even if traveling to story sites were considered an essential function of Whitten’s job, a reasonable jury could find that she could and did perform that function safely for twenty-eight years without incurring a single injury while pursuing a story. See EEOC-Br. 33-45. McLeod dismisses Swindler’s one-time instruction to Whitten to conduct a phone interview (1-JA-311-12; 2-JA-392) as an “isolated incident” and a “red herring.” Resp. 31. But the dearth of such conversations makes perfect sense when considering that Whitten’s condition virtually never precluded her from conducting onsite interviews.

McLeod now maintains that Whitten’s job involved “extensive walking, climbing, driving an automobile, getting in and out of an automobile, and walking around multiple McLeod Health campuses.” Resp. 5 (citing 1-JA-143). But a reasonable jury could find that this account considerably overstates the physical demands of the job, based on both McLeod’s own job description and Liberty Mutual’s description of the position as a “mostly sedentary desk job” that required “some travel to other campuses.” 3-JA-941. If the job truly required the “extensive” physical activity McLeod now describes, it is difficult to see how Whitten, with her physical limitations, could have done it successfully for twenty-eight years. As McLeod admits, however, her condition never impacted her performance of the essential functions of her job during her tenure. 1-JA-142. And no objective evidence in the record indicates this had changed when McLeod forced Whitten to undergo the medical examinations at issue.

B. A reasonable jury could find McLeod lacked the necessary significant objective evidence that Whitten’s condition was worsening to justify subjecting her to medical examinations.

McLeod does not dispute that the ADA required it to have a reasonable belief, based on significant objective evidence, that Whitten was no longer capable of performing the essential functions of her job or posed a direct threat before it could order her to submit to a medical examination. Resp. 32-33. Although McLeod claims — without citation — that the evidence supporting its position is “overwhelming” (Resp. 31, 34), it fails to adduce any such evidence that a reasonable jury would be required to credit.

According to McLeod, alleged deterioration or changes in Whitten’s condition were what prompted it to examine her. Resp. 32. Remarkably, McLeod contends the history of Whitten’s condition and its impact on her ability to perform her job is “irrelevant” to this showing (Resp. 36), as if one could measure deterioration without a baseline reference point. In any case, McLeod points to no objective evidence showing any such deterioration or change in Whitten’s condition. In fact, no such objective evidence existed.

McLeod primarily attempts to justify its position by referring to “an alarming increase in the frequency of Whitten’s falls.” Resp. 27; see id. at 34, 36 n.5 (referring without citation to alleged observations by Whitten’s doctor). But the record shows no such increase, alarming or otherwise. In the months leading to Whitten’s involuntary leave, she fell once at work (in a minor incident requiring no medical attention) and twice outside work. EEOC-Br. 7-8. Nothing in the record indicates any of these incidents stemmed from a worsening in her condition rather than a lifelong pattern of occasional falls.[2] 3-JA-617-20; 1-JA-316-17; see also 3-JA-896-911 (no significant changes in twenty years of medical records); 3-JA-941-42 (noting no change). Importantly, no record evidence indicates Whitten ever fell while navigating other campuses in pursuit of a story, either earlier in her tenure or in the months immediately preceding her suspension. In short, the record contains no objective evidence that Whitten’s fall frequency had increased, and certainly not the “significant” objective evidence required to justify a medical examination. Wright, 798 F.3d at 522-23.

McLeod also refers to a post-suspension incident when Whitten slipped on a magazine lying on the floor at her home. Resp. 11, 26. But any post-suspension falls are irrelevant to the reasonableness of McLeod’s decision to force Whitten to undergo the earlier medical examinations. In addition, McLeod grossly misrepresents the relevant record. It claims Whitten “saw her doctor for falls in September, October, and November,” Resp. 26, but the record of these visits actually shows she never fell during this period. See 3-JA-879 (November 2012, “[N]o recent falls.”); 3-JA-882 (October 2012, “No increase in fall frequency.”); 3-JA-885 (September 2012, “No falls since early August.”).

James v. Goodyear Tire & Rubber Co., 354 F. App’x 246 (6th Cir. 2009), on which McLeod relies to justify its medical examinations, is inapposite. The employee in James, who worked in an industrial setting operating heavy machinery, had a progressive disease; as McLeod acknowledges, it was undisputed that James’s condition “had worsened noticeably.” Id. at 247. The Sixth Circuit held, based on “[t]he limited, agreed-upon facts regarding James’s mobility, coupled with reports of prior forklift accidents,” that Goodyear was justified in questioning whether James could perform his job without creating a direct safety threat. Id. at 250. Here, in contrast, Whitten has had her condition since birth, and no objective evidence in the record indicates it changed or posed any greater danger over time.

McLeod also contends that Swindler’s subjective opinions about Whitten’s health provided it with a sufficient basis to demand Whitten undergo the two examinations.[3] The district court did not rely on this material, and for good reason. To justify her beliefs, Swindler referred to manifestations of Whitten’s disability that had been present from the beginning of Whitten’s employment: a sweaty, flushed appearance and trouble walking. McLeod offered no objective evidence — only Swindler’s subjective impression — that these symptoms had worsened. 1-JA-30-33. Swindler referred to rumors about Whitten sleeping in her office, but admitted she was never able to corroborate them. 1-JA-31; 2-JA-391. She speculated that Whitten’s condition might be worsening but made no attempt to discuss these concerns directly with Whitten. 2-JA-390-91; 2-JA-399-400; 2-JA-403-04. Thus, her impressions were entirely subjective, and do not constitute the reasonable, objective basis the ADA mandates to justify the two medical examinations. 42 U.S.C. § 12112(d)(4)(A); 29 C.F.R. § 1630.14(c).

McLeod argues that Swindler’s perceptions of Whitten’s performance problems also justified the medical examinations, and maintains Swindler “had not complained of [Whitten’s] performance issues until the year leading to the fitness exam.” Resp. 12. But a reasonable jury could readily find otherwise. First, according to Swindler herself, Whitten’s falls, and not her performance, drove the decision to order Whitten to undergo the exams. 2-JA-397. Also, the alleged performance issues McLeod identified were not new; they had been addressed as far back as 1995 through coaching. See EEOC-Br. 36-38. And the record shows Swindler raised deadline management issues with Whitten as early as 2004. 1-JA-203.

Insofar as Swindler may have had more recent concerns about Whitten’s performance, they were not serious enough to appear in Whitten’s successful October 2011 performance review. 3-JA-943-50; see King v. Rumsfeld, 328 F.3d 145, 149-50 (4th Cir. 2003) (noting evidence of previous positive performance reviews is evidence of adequate performance). Most importantly, Swindler should have addressed any performance issues with Whitten directly (as Carr advised Swindler to do, see 1-JA-90), rather than attributing them to her disability. Brownfield v. City of Yakima, 612 F.3d 1140, 1146 (9th Cir. 2010); see also EEOC Fact Sheet, The Americans with Disabilities Act: Applying Performance and Conduct Standards to Employees with Disabilities, § III.C, question 13 (“Generally, it is inappropriate for the employer to focus discussion about a performance or conduct problem on an employee’s disability. The point of the employer’s comments should be a clear explanation of the employee’s performance deficiencies or misconduct and what he expects the employee to do to improve.”).[4]

After characterizing the EEOC as attacking Swindler’s subjective intent (Resp. 34), McLeod makes the astounding argument that its reliance on Swindler’s account, right or wrong, necessarily immunized its decision to order the medical examinations. Resp. 35-36 (claiming this Court may not examine whether Swindler’s information was accurate). Essentially, McLeod proposes an extreme variant of the “business-judgment rule”: once a supervisor claims an employee’s condition has worsened — for whatever reason, and regardless of the accuracy of the belief — the employer has an objective basis for its actions and cannot be liable under the ADA. This contention is flawed in several ways.

First, it incorrectly summarizes the EEOC’s position, which is that a reasonable jury could find McLeod lacked the significant, objective information to reasonably suspect Whitten could no longer perform the essential functions of her job. EEOC-Br. 27-40. As described above, Whitten did not have an objective basis for concluding the medical examinations were necessary. In relying solely on her subjective assessment, McLeod lacked the necessary objective basis as well. See Wright, 798 F.3d at 522-23. This position does not depend on Swindler having a bias against disabled individuals, a misguided sense of paternalism, or any other specific motivation. Although evidence that a supervisor in Swindler’s position was motivated by discriminatory animus would certainly be relevant if it existed, the EEOC’s position here in no way depends on such a finding.[5]

Second, the business judgment rule does not automatically render business decisions sacrosanct. As the Supreme Court has observed, “Proof that the defendant’s explanation is unworthy of credence is simply one form of circumstantial evidence that is probative of intentional discrimination, and it may be quite persuasive.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147 (2000); see also, e.g., Wexler v. White’s Fine Furniture, Inc., 317 F.3d 564, 577 (6th Cir. 2003) (“[T]he reasonableness of a business decision is critical in determining whether the proffered judgment was the employer’s actual motivation.”); Dister v. Cont’l Grp., Inc., 859 F.2d 1108, 1116 (2d Cir. 1988) (“[F]acts may exist from which a reasonable jury could conclude that the employer’s ‘business decision’ was so lacking in merit as to call into question its genuineness.”); Beaird v. Seagate Tech., Inc., 145 F.3d 1159, 1169 (10th Cir. 1998) (noting that an “idiosyncratic or questionable” business judgment may permit a jury to find pretext). There is no valid legal basis for McLeod’s argument that its reliance on Swindler’s account — based on her subjective feelings, bolstered by unsubstantiated rumors —immunizes it from liability.

Finally, McLeod dismisses and trivializes the EEOC’s position as “apparently want[ing] to limit employers so they can never require testing and only ask employees if they are okay.” Resp. 33. Not so. The EEOC simply seeks to enforce the ADA and its implementing regulations. This requires it to ensure that employers require their employees to undergo medical examinations only when they have a reasonable belief, based on significant objective evidence, that the employees are no longer capable of performing the essential functions of their jobs or pose a direct threat. 42 U.S.C. § 12112(d)(4)(A); 29 C.F.R. § 1630.14(c).

McLeod’s position echoes its argument to the district court that disabled employees may be subject to medical exams or inquiries at any time and for any reason. 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.”). But without such protections, an employer could require medical testing of an employee at any time, even without a reasonable basis, justified solely by a supervisor’s subjective sense that the employee’s work product has deteriorated. Such an interpretation would strip disabled employees of their protections under the ADA, entirely contravening the statute’s stated goals. See Sullivan, 197 F.3d at 811.

C. A reasonable jury could find McLeod lacked substantial objective evidence that Whitten posed a direct threat to herself.

McLeod also lacked objective evidence that Whitten posed a direct threat to herself. As explained above and in the EEOC’s Opening Brief, such a showing requires evidence of “a significant risk of substantial harm,” and must be assessed with reference to the alleged threat’s duration, severity, likelihood, and imminence. 29 C.F.R. § 1630.2(r); EEOC-Br. 40-45. Given the absence of evidence over nearly three decades that Whitten ever fell in pursuit of a story, a reasonable jury could certainly find McLeod lacked an objective basis to believe her continued employment presented such a risk. A jury could therefore conclude the medical examinations were unwarranted.

McLeod does not confront this argument directly. Instead, it simply says Whitten “does not believe doing her job safely is essential.” Resp. 29; see also id. at 9 (claiming Whitten “believes she did not have to [navigate McLeod campuses] safely”). These contentions echo the similarly inappropriate and unfounded questions McLeod posed during Whitten’s deposition, when it asked her to admit that she wanted “the ability to fall at work” and that head injuries from falls could be fatal. 1-JA-316-18; 1-JA-295.

On the contrary, Whitten actually testified that, although falling has indeed been a part of her life from birth, it had not prevented her from performing her job successfully for twenty-eight years. 1-JA-316-18. McLeod makes an offhand reference to “the historical workers compensation claims related to Whitten falling,” Resp. 12, but the record contains evidence of only one such claim, in April 2003. 3-JA-851-53. This number is comparable to that of other employees with similar tenures.

McLeod confirmed Whitten’s account in its position statement, admitting that “her medical condition has not impacted her ability to perform the essential functions of her job during her employment.”[6] 1-JA-142. Incredibly, McLeod now attempts to evade its own admission by arguing the EEOC may not use “statements of McLeod’s lawyers” as evidence (Resp. 3), but it is well settled that employer admissions in EEOC proceedings are admissible in subsequent litigation. See, e.g., EEOC v. Sears Roebuck & Co., 243 F.3d 846, 853 (4th Cir. 2001) (holding change between an employer’s EEOC position statement and its explanation during litigation allowed trier of fact to interpret the latter as “a post-hoc rationale, not a legitimate explanation”); Burton v. Freescale Semiconductor, Inc., 798 F.3d 222, 237 (5th Cir. 2015) (“A jury may view erroneous statements in [an] EEOC position statement as circumstantial evidence of discrimination.” (internal citation and quotation marks omitted)); Gage v. Metro. Water Reclamation Dist., 365 F. Supp. 2d 919, 936-37 (N.D. Ill. 2005) (“An employer’s position statement in an EEOC proceeding may be admissible to the extent it constitutes an admission.” (internal citation and quotation marks omitted)).

In lampooning Whitten’s position as “not believing she needed to work safely,” McLeod demonstrates perfectly why the ADA’s protections are necessary. McLeod acknowledges the “essence of this case” is its insistence that her condition does not allow Whitten to perform her job without a guarantee that she will never fall. Resp. 6. But despite her congenital medical condition, Whitten performed that job for nearly three decades. McLeod is unjustified in contending that, in the absence of objective evidence her condition had deteriorated enough to keep her from performing essential job functions or poses a direct threat, it may decide this condition now precludes her from working.

A reasonable jury could find that McLeod suspended and terminated Whitten based on its stereotyped impressions of her limitations and its paternalistic, unfounded fears that she might fall and injure herself in pursuit of a story at some indeterminate point in the future, despite decades of evidence to the contrary. Congress enacted the ADA to combat exactly these kinds of “overprotective rules and policies” preventing disabled individuals from maintaining gainful employment. 42 U.S.C. § 12101(a)(5). Such unjustified, overgeneralized paternalism does not constitute the required objectivity the ADA demands. See 42 U.S.C. § 12101(a)(2), (5), (7), (8) (noting the “isolat[ion] and segregat[ion]” that can result from the imposition of “overprotective rules and policies” contributing to “unfair and unnecessary discrimination and prejudice” against the disabled); id. § 12112(d)(4)(A); 29 C.F.R. § 1630.14(c).

D. A reasonable jury could find that Whitten’s medical examinations were not job-related or consistent with business necessity because they did not sufficiently account for her medical history or her actual job requirements.

Even assuming, arguendo, that a medical examination of Whitten were warranted in theory, the record supports a reasonable jury finding that the examinations Pittard and Laliberte conducted were not sufficiently related to Whitten’s actual job or consistent with business necessity. Pittard, who acknowledged she was not an expert in performing fitness-for-duty examinations, could not remember if she had the benefit of Whitten’s job description before administering the test and did not consult Whitten about her job requirements. 2-JA-424, 439-40, 445. Despite finding that Whitten’s falls were related to her long-standing mobility issues, rather than any change in her condition, Pittard nevertheless concluded a functional capacity examination (“FCE”) was necessary. 2-JA-426-27, 438, 446; 3-JA-769-70.

In arguing Pittard’s examination was legitimate, McLeod repeatedly refers to Whitten “expressing concerns … about her risk of falling and ability to navigate.” Resp. 10-11; see id. at 1, 13-14, 39-40. But McLeod’s characterization distorts the record evidence. Contrary to McLeod’s implication, Whitten did not actively seek help, and these citations do not indicate a change in her status.

McLeod misleadingly claims that, when asked if she wanted to have Occupational Health examine her, Whitten responded, “That would be nice.” Resp. 13; 1-JA-43. Whitten testified that she agreed to go when Swindler asked if she wanted “to make sure that [her] environment was safe,” but was confused because she thought it was unnecessary. 1-JA-303-04. This is a far cry from knowingly consenting to the broad exam that ultimately occurred, which violated the ADA and set her termination in motion.

Whitten did not complain about her condition worsening at any time. She expressed concern to Swindler and Pittard about stepping up onto a curb, but only because high curbs have always given her problems due to her leg length. 3-JA-636. She provided a history of her condition to Pittard as part of the exam McLeod forced her to undergo, but nothing in this material indicates Whitten told Pittard her mobility issues or falls were a new concern. In fact, the record indicates precisely the opposite: Pittard testified that although Whitten did not tell her how long she had had these mobility issues, it was “pretty clear” that her problems “had been going on for quite a while.” 2-JA-446. Whitten confirmed this, testifying that the condition has been present during her entire McLeod career. 1-JA-317 (“Falling has been part of my life all my life and there’s no way around it.”). McLeod claims that Pittard recommended an FCE based on “Whitten’s own concerns about instability, falling, and ambulation.” Resp. 40. This is untrue. Pittard testified she based her recommendation entirely on Whitten’s falls, not any concerns Whitten expressed. 3-JA-770.

Laliberte also neglected to talk to Whitten about her essential job demands and disregarded McLeod’s description of the position. Instead, he tested her against his unsupported impressions of her job requirements, which far exceeded what Whitten’s actual job entailed. 3-JA-651-62, 782-87, 789-90, 796-97. McLeod claims Laliberte “designed the test around her comments” (Resp. 16), but in establishing Whitten’s job demands he only spoke to Swindler, not Whitten, before the test (2-JA-343-44; 3-JA-786, 794), and explicitly disregarded Whitten’s input. 3-JA-796-97 (noting Whitten may have disagreed with his assessment of her job requirements). Whitten testified the only job function she recalled discussing during the exam was writing stories. 1-JA-307.

As an example of the test’s unreliability as it related to Whitten’s actual job functions, Laliberte assumed her purse weighed twenty pounds. Although he testified that he weighed the purse himself, he also testified only that he “probably” weighed it. 1-JA-365, 361. This equivocation, combined with the inherently incredible notion that a woman with Whitten’s disability routinely carried a twenty-pound purse, McLeod’s job description classifying her position as involving “sedentary to light work” with “[l]ifting and carrying requirements [of] 20 lbs or less,” 3-JA-955, and Whitten’s own clear testimony that she “had never had to lift anything” as heavy as the test Laliberte gave her “in any of my work,” 3-JA-651-52, further call Laliberte’s testimony into question. This dispute shows the relevance of Laliberte’s test to Whitten’s actual essential job functions was an open question of fact that should have gone to a jury.

Laliberte then evaluated Whitten based on the mistaken belief — which he never checked with her — that she had recently started to fall. 2-JA-340, 353, 357, 368. He also partially attributed the falls to her “severely deconditioned state,” ignoring the fact that her weight, pulse, and blood pressure had been relatively constant for the last twenty years. 3-JA-896-911. Because Laliberte began from a faulty premise regarding Whitten’s job requirements, her condition, and the onset of her falls, and because he ignored her twenty-eight years of experience in her position, a reasonable jury could find his examination and resultant conclusions were not sufficiently related to Whitten’s job duties.

McLeod claims the EEOC acted inconsistently in recommending that Whitten retake the FCE. Resp. 41. But there is nothing inconsistent about suggesting an employee may want to undergo an unlawful exam in order to return to the job she and her doctor agree she can do, without first waiting for the resolution of an EEOC investigation. That suggestion does not retroactively ratify McLeod’s illegal actions.

McLeod also misstates the record regarding this potential second FCE, which was not the same two-hour exam Whitten took previously. Instead, McLeod insisted it would need to be a more comprehensive, six-hour exam testing the scope of her ability to do numerous jobs, not just her Communications Specialist position. 1-JA-324-25; 3-JA-927-28. Given Whitten’s congenital condition, her unwillingness to subject herself to such an ordeal is entirely understandable — particularly when McLeod had already indicated it would not allow her to return to her job regardless. 1-JA-300-01, 3-JA-668.

II. A Reasonable Jury Could Find McLeod Violated the A DA When It Terminated Whitten in Reliance on the Two Improper Medical Examinations and Laliberte’s Unnecessary Accommodations.

As explained previously, a reasonable jury could find that McLeod’s termination of Whitten violated her rights under the ADA for three main reasons. The medical examinations that ultimately led to Whitten’s termination lacked a reasonable basis and were not reasonably tied to her actual job duties. Also, McLeod terminated Whitten in reliance on Laliberte’s patently unreliable and illogical conclusion that she could not perform the essential functions of her job without accommodations. EEOC-Br. 50-57.

McLeod makes no effort to explain how Swindler’s subjective impressions, based solely on unfounded rumors and Whitten’s general appearance, constitute the significant, objective evidence needed to justify the medical examinations. Nor does it defend Laliberte’s decision to base his examination on the incorrect idea that Whitten only recently began to fall, or his rejection of Whitten’s and McLeod’s accounts of her job requirements in favor of his own views.

Most glaringly, McLeod makes no attempt to justify Laliberte’s utterly arbitrary recommendation that Whitten could work safely within ten miles of her office, but no farther away. It simply parrots Laliberte’s conclusion that Whitten was a high fall risk with 75% of her work tasks, even though, as explained previously, his reasoning behind this conclusion is incomprehensible: “‘I’ve fallen at home. I’ve fallen at restaurants, and I’ve fallen at work.’ One, two, three. 75 percent.” 3-JA-822. See EEOC-Br. 53.

Instead, McLeod treats Laliberte’s proposed ten-mile restriction as unassailable and argues that it “would eliminate essential functions of her position … rendering her unqualified as a matter of law.” Resp. 43-44. According to McLeod, this Court must accept Laliberte’s recommendations in the absence of contrary medical evidence, regardless of their facial irrationality. Resp. 51-53 (“[S]o long as Laliberte’s medical opinions result in Whitten being unqualified, then she is unqualified.”). McLeod’s position, like Laliberte’s, makes no sense. United States v. Jones, 858 F.3d 221, 228 (4th Cir. 2017) (“We do not leave our common sense at the courthouse door.”).

In taking this position, McLeod misstates both the facts and the law. As described supra at 8-11, a reasonable jury could find that Whitten’s physical condition had not changed during the time she worked for McLeod. 1-JA-316-17; 3-JA-617-20, 896-911, 941-42. In addition, there is no record of Whitten falling while navigating other campuses in search of a story during her entire twenty-eight years of employment. Although McLeod dismisses this fact as “irrelevant” (Resp. 36), it is, instead, direct evidence that McLeod acted unreasonably in terminating her for fear that such a fall might hypothetically occur. Faced with this evidence, a reasonable jury would not need to credit Laliberte’s unreasonable and illogical conclusions.

As a legal matter, evidence showing that a medical opinion is facially dubious, unsubstantiated, or lacking objectivity is enough to withstand summary judgment based on that opinion, even without production of a contrasting medical view. See, e.g., Justice v. Crown Cork & Seal Co., 527 F.3d 1080, 1092 n.5 (10th Cir. 2008) (“[T]o hold that one cannot second-guess an employer’s conclusion regarding the safety risks posed by an employee would eviscerate the ADA’s protections by permitting the employer to assert in nearly every case that it believed the employee’s medical limitations posed a credible threat to his safety or the safety of others.”); 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”); cf. EEOC v. Chevron Phillips Chem. Co., LP, 570 F.3d 606, 624-25 (5th Cir. 2009) (in ADA discrimination case, noting genuine dispute of material fact as to pretext when company officials relied on company nurse’s incorrect statement that employee’s chronic fatigue syndrome was a “blood disorder” she should have disclosed on post-offer questionnaire).

The Examination Guidance McLeod cites, Resp. 52-53, is not to the contrary. As McLeod notes, the quoted section of the Guidance states that the employer “should be cautious” about relying solely on the opinion of its own health care professional when an employee submits contradictory information from her treating physician. Examination Guidance, text following n.62. But this passage says nothing about the logical inverse of this situation: the Guidance does not require uncritical acceptance of the opinion of an employer’s health care professional, regardless of its facial implausibility, if the employee does not submit such contradictory material.

McLeod complains that Justice is “anything but analogous” to this case because Justice submitted a report from his treating physician. Resp. 44-45. But the central issue in Justice was the weight to be given to the opinion of the defendant’s physical therapist that the plaintiff had to seek employment elsewhere. Justice, 527 F.3d at 1084, 1090. As in this case, her opinion was based on discussions with the defendant’s supervisory personnel and what was, at best, a partial understanding of the plaintiff’s actual job duties. Id. As here, the opinion was given under circumstances calling its objectivity and accuracy into question. Id. And while Justice’s doctor made general recommendations about his condition, he did not “g[i]ve an opinion directly on th[e] issue” of Justice’s ability to perform his job duties. Id. at 1090. The court held that the objectivity of the physical therapist’s opinion was “subject to dispute,” and therefore that summary judgment based on that opinion was inappropriate. Id. at 1091. The same outcome should result here.

Next, McLeod argues it could not provide Whitten her desired accommodation of a scooter, car, and shadow employee. Resp. 46-47. But Whitten testified unequivocally that she never requested or needed these accommodations or any others to perform her job.[7] 1-JA-315-16; 2-JA-476-77 (¶¶ 5, 9-11). McLeod’s claim that Whitten was unable to perform her job without an unreasonable accommodation is therefore based on a fatally flawed premise and, at the very least, constitutes a triable issue of fact for a jury.

As explained previously (EEOC-Br. 11-12, 56), Whitten ultimately submitted an accommodation request form at McLeod’s insistence and against her own wishes. She suggested very modest accommodations, only one of which McLeod identified as problematic: that her walking and standing be limited “as much as possible,” i.e., only to the extent consistent with McLeod’s business needs. See 1-JA-315-16; 333-34; 3-JA-718, 726, 735-37; see also 2-JA-476 at ¶ 6 (noting this request did not ask for anything new, because she “ha[s] had to limit walking and standing as much as possible [her] whole life, including while working for McLeod Health, due to [her] congenital condition”). Notably, she did not refer to a car or a shadow, and mentioned a scooter only as one possibility, based on a suggestion Laliberte had made. 1-JA-315-16, 333-34; 3-JA-718, 735-37. At the very least, whether Whitten required an accommodation that McLeod could not reasonably provide is a dispute of fact. The evidence in the record cannot justify granting summary judgment for McLeod on this issue.

McLeod then chides Whitten for failing to engage in the interactive process when it was “ready and willing” to discuss her restrictions and potential accommodations. Resp. 47. But these were restrictions Whitten did not believe she had and accommodations she did not think she needed. 1-JA-315-16; 2-JA-476-77 (¶¶ 5, 9-11). And as explained previously (EEOC-Br. 55), in an argument McLeod neglected to address, it is the unlawful inquiry — and the unlawful exams, suspension, and termination flowing from it — that violated the ADA. A subsequent opportunity to contest the results does not retroactively make such an inquiry legal. See 42 U.S.C. § 12112(d)(4)(A); Owusu-Ansah v. Coca-Cola Co., 715 F.3d 1306, 1310 (11th Cir. 2013); Kroll v. White Lake Ambulance Auth., 691 F.3d 809 (6th Cir. 2012).

McLeod also contends Whitten was unreasonable in believing Williams-Blake’s statement that she could not return to her job. Resp. 25. Given Whitten’s experience, however, a reasonable jury could find this response was entirely rational. She had fallen twice away from work and a third time in an incident so minor it did not require a doctor’s visit. Based on these falls, and in the absence of any indication that her actual condition had worsened, McLeod (a) forced her to undergo two medical examinations unrelated to her actual job tasks; (b) forced her to submit a form requesting accommodations she did not need; (c) imposed facially illogical restrictions on her ability to work that disregarded her nearly three decades’ experience in the job; and (d) told her in early August, soon after the unjustified exams, that she could not return to her position. Given McLeod’s apparent determination to take her job from her, Whitten was fully justified in concluding the submission of additional paperwork for the committee to “consider” would be fruitless. This is particularly true in light of McLeod’s inconsistency regarding whether such information might relate to Whitten’s ability to return to her earlier job, or instead only to its ability to assign her elsewhere. See 3-JA-688-89 (Carr referred to returning to job); 3-JA-739 (Carr letter stating McLeod will review materials Whitten submits “for continued assessment for application for any ope[n] positions and possibilities for workplace accommodations”).

CONCLUSION

For the foregoing reasons and the reasons stated in the EEOC’s opening brief, the judgment of the district court should be reversed and the case remanded for further proceedings.

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 6,482 words, from the Introduction 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: April 27, 2018

[1] At https://www.eeoc.gov/policy/docs/guidance-inquiries.html.

[2] McLeod’s claim that Whitten fell four times during this period, including twice at work (Resp. 11), is apparently based exclusively on Swindler’s deposition testimony and uncorroborated by any other record evidence. McLeod earlier stated that Whitten fell only three times in the months before it placed her on involuntary leave. 1-JA-138. The district court similarly referred to Whitten’s three falls, with only one occurring at work. 2-JA-526-28. Thus, the alleged fourth fall on which McLeod now relies is, at best, a disputed factual issue.

[3] McLeod refers to “information from Swindler and Carr” as its alleged justification for the medical examinations (Resp. 35), but because Carr’s information came entirely from Swindler, only Swindler’s account is relevant to determining whether McLeod had the required information necessary to justify the examinations. See 1-JA-88-94.

[4] At http://www.eeoc.gov/facts/performance-conduct.html.

[5] Decisions based on a supervisor’s representation could also give rise to employer liability under a cat’s paw theory. See Staub v. Proctor Hosp., 562 U.S. 411, 419-22 (2011) (holding that an employer may be liable if biased material from the supervisor is “a causal factor” in the employer’s ultimate decision).

[6] McLeod now contends this assertion is incomplete, and that its position statement also referred to its concerns based on the three falls she had before her suspension. Resp. 3-5. As explained above, however, McLeod had no evidence these incidents constituted a “substantial increase” in falls, and the only one of them to occur at work required no medical treatment. In addition, none of this material conflicts with the thrust of McLeod’s admission: that during the twenty-eight years before her unjustified suspension, Whitten’s condition never hampered her ability to do her job.

[7] McLeod responds to Whitten’s categorical denial by pointing to Williams-Blake’s testimony that, although Whitten may not have requested accommodations, she somehow “intimated” a need for them. Resp. 20 & n.3. Leaving aside whether an “intimation” could constitute an accommodation request, Whitten testified to the contrary. 1-JA-315-16. This dispute of fact cannot be waved away as a mere difference in word choice.