Equal Emp't Opportunity Comm'n v. McLeod Health, Inc.

• Decision Date: 31 January 2019
• Docket Number: No. 17-2335,17-2335
• Citation: 914 F.3d 876
• Parties: EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff – Appellant, v. MCLEOD HEALTH, INC., Defendant – Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

914 F.3d 876

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff – Appellant,

v.MCLEOD HEALTH, INC., Defendant – Appellee.

No. 17-2335

United States Court of Appeals, Fourth Circuit.

Argued: November 15, 2018

Decided: January 31, 2019

ARGUED: Jeremy Daniel Horowitz, UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Washington, D.C., for Appellant. Michael Montgomery Shetterly, I, OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C., Greenville, South Carolina, for Appellee. ON BRIEF: James L. Lee, Deputy General Counsel, Jennifer S. Goldstein, Associate General Counsel, Elizabeth E. Theran, Assistant General Counsel, Office of General Counsel, UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Washington, D.C., for Appellant. Lucas J. Asper, OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C., Greenville, South Carolina, for Appellee.

Before GREGORY, Chief Judge, and KEENAN and FLOYD, Circuit Judges.

Reversed and remanded by published opinion. Judge Floyd wrote the opinion, in which Chief Judge Gregory and Judge Keenan concurred.

FLOYD, Circuit Judge:

The Equal Employment Opportunity Commission (EEOC) brought suit against McLeod Health, Inc. for alleged violations of the Americans with Disabilities Act (ADA). The EEOC claimed that McLeod violated the ADA by requiring Cecilia Whitten, a longtime employee with a disability, to undergo a work-related medical exam. Additionally, the EEOC claimed that McLeod violated the ADA by wrongfully discharging Whitten on the basis of her disability. The district court granted summary judgment to McLeod on both claims, and the EEOC now appeals. For the reasons that follow, we reverse the district court and remand for further proceedings.

I.

For 28 years, Whitten worked for McLeod, a corporation that operates various hospitals and other healthcare facilities in South Carolina.¹ She was, in essence, the editor of McLeod’s internal employee newsletter. One of her responsibilities was to develop content for the newsletter by interviewing other employees and writing about company events. To that end, Whitten typically traveled among McLeod’s various campuses. Although it was not always so, McLeod now has five different campuses, spread throughout an area of roughly 100 miles.

Whitten was born with a physical disability known as "postaxial hypoplasia

of the lower extremity." J.A. 284. Consequently, she lacks certain bones in her legs, feet, and right hand. J.A. 282. Her lower legs are, in her words, "shorter than normal," and her "right arm is shorter than [her] left arm." Id.

As a result of her disability, Whitten has always struggled with mobility. "Falling," she testified, "has been part of my life all my life and there’s no way around it." J.A. 317. Although she has had several surgeries to increase her stability, her limited "use of [her] feet and legs" still causes her to "fall sometimes" and "stumble sometimes." J.A. 287. Additionally, her condition causes her to "get ... tired more easily" and makes it difficult for her to sit or stand "in one position for too long." J.A. 287–88.

Despite her limited mobility, Whitten satisfactorily performed her duties as editor of McLeod’s employee newsletter for almost three decades. In McLeod’s words, Whitten’s condition "has not impacted her ability to perform the essential functions of her job during her employment." J.A. 142. Records indicate that Whitten fell at work multiple times before the events that precipitated this appeal.

Over the course of several months preceding the events at issue here, Whitten’s manager, Jumana Swindler, repeatedly expressed concerns about Whitten’s performance to McLeod’s human resources department (HR). Swindler told HR that Whitten had been missing deadlines, arriving late to work, and, in Swindler’s view, displaying a less-than-enthusiastic attitude about McLeod’s internal messaging. In her discussions with HR, Swindler raised the possibility that Whitten’s performance issues were due to problems with her health. Swindler thought that Whitten looked "sluggish," as if walking was more difficult for her than usual. J.A. 390. According to Swindler, Whitten appeared flushed and winded after moving very short distances; she also seemed to have trouble staying alert during meetings.

At HR’s suggestion, Swindler attempted to address Whitten’s performance issues by meeting with Whitten, clarifying her expectations, and reducing Whitten’s workload. She did not raise any concerns about Whitten’s health with Whitten herself.

In 2012, Whitten fell three times in a four-month span. The first fall occurred outside of work: Whitten tripped over a root while walking through the park and landed on a tree stump. She needed stitches in her forehead, but suffered no other harm. The second fall occurred at work: she tripped on a rug and experienced no significant harm. The third fall occurred outside of work: she tripped as she was leaving a restaurant after lunch with a friend. She had her arm x-rayed that afternoon; the bone was bruised, but it was not broken, and she was back at work the next day.

Swindler reported Whitten’s third fall to HR shortly after it happened. HR advised Swindler to bring her concerns to the company’s occupational health department (hereinafter "Occupational Health"). Swindler did so right away. Based on Swindler’s report, Whitten’s job description, and its own records of Whitten’s medical issues, Occupational Health determined that Whitten needed to undergo a fitness-for-duty medical exam. Notably, Occupational Health was not particularly concerned with Whitten’s performance on the job. It ordered the fitness-for-duty exam to ensure that Whitten could "safely get to different locations to do her stories." J.A. 60.

The day after Whitten’s third fall, Swindler informed Whitten "that she was going to take [her] to [Occupational Health]." J.A. 717. Swindler explained that "since [Whitten] had had several falls, they wanted to examine [her] work space and make sure it was safe for [her]." Id. Whitten "was confused about the necessity" of the exam, "especially since only one of the falls had been at work," but she "didn’t feel that [she] had a choice but to comply." Id . She told Swindler, "That would be nice." J.A. 43.

At Occupational Health, a nurse practitioner gave Whitten a fitness-for-duty exam. During the exam, Whitten told the nurse practitioner about her medical history and the circumstances of her recent falls. Whitten also told the nurse practitioner that she had difficulty stepping onto curbs and that she was supposed to—but generally did not—use a cane at work. The nurse practitioner listened to Whitten’s heart and lungs; she also examined Whitten’s joints.

The nurse practitioner concluded that Whitten needed further testing—specifically, a functional-capacity exam. A functional-capacity exam is an exam in which a physician evaluates whether an employee is physically capable of performing the duties of her job. The nurse practitioner based her conclusion that further examination was necessary on three things: (1) Whitten’s self-reported history of falls; (2) her decision not to use her recommended assistive device; and (3) "her general lack of mobility and range of motion in her knees, ankles, and feet." J.A. 771.

McLeod placed Whitten on paid administrative leave pending the results of her functional-capacity exam. Two weeks later, Whitten underwent a functional-capacity exam with an occupational therapist named Todd Laliberte, an occupational therapist. Laliberte acknowledged that he did not have access to Whitten to clarify her job duties prior to the exam. Moreover, although McLeod informed Laliberte that Whitten’s work required her to carry no more than 20 pounds at a time, Laliberte determined that Whitten would likely need to be able to carry 38 pounds at a time to do her job, and he tested her accordingly. Notes from his exam indicate that he believed that Whitten had only "recently beg[u]n to fall at work and in her home." J.A. 934.

Laliberte concluded that Whitten had a "[h]igh fall risk" in "75% of all work related task[s]."² J.A. 840. He recommended that Whitten, among other things, (1) be restricted to traveling no more than 10 miles from her main office; (2) use an assistive device, such as a motorized scooter; and (3) be provided a parking space in an area without a curb.

Whitten, in turn, submitted a request for the following accommodations: (1) a parking spot in an area without a curb, (2) help with selecting an appropriate assistive device, (3) a new desk chair with adjustable-height arms, and (4) limitations on walking and standing "as much as possible." J.A. 737. She did not believe that she needed any accommodations to continue doing her job, but she thought that she was required to submit the accommodation form.

After reviewing Laliberte’s conclusions and Whitten’s request, McLeod informed Whitten that she could not return to her job because her proposed accommodations would prevent her from traveling to the company’s various campuses to collect stories and take photographs, thereby nullifying the purpose of her position. Accordingly, the company placed Whitten on unpaid medical leave. Although she was told several times that she could submit reports from her own doctors if she disagreed with Laliberte’s conclusions, she was also told at least once that she could not have her old job back.

Whitten did not submit reports from her own doctors to refute Laliberte’s conclusions. Nor did she apply for other jobs available within McLeod, even though the company assigned her a recruiter to help her find suitable open positions. (Whitten found some open positions for which she was marginally qualified, but they paid significantly less than what she had made in her old job.)

After Whitten had been on medical leave for six months, McLeod terminated her employment. Whitten filed a complaint with the EEOC, and the EEOC brought suit against McLeod for violating the ADA by (1) requiring Whitten to...