Kris Indergard v. Georgia-Pacific Corporation ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KRIS INDERGARD,  No. 08-35278
Plaintiff-Appellant, D.C. No.
v.  3:06-CV-01317-
GEORGIA-PACIFIC CORPORATION, ALH-PP
Defendant-Appellee.
 OPINION
Appeal from the United States District Court
for the District of Oregon
Ancer L. Haggerty, District Judge, Presiding
Argued and Submitted
June 4, 2009—Portland, Oregon
Filed September 28, 2009
Before: Alfred T. Goodwin, Diarmuid F. O’Scannlain, and
Raymond C. Fisher, Circuit Judges.
Opinion by Judge Goodwin;
Dissent by Judge O’Scannlain
13883
13886 INDERGARD v. GEORGIA-PACIFIC CORP.
COUNSEL
Kerry M.L. Smith, Smith & Fjelstad, Gresham, Oregon, for
the plaintiff-appellant.
Scott G. Seidman, Tonkon Torp, Portland, Oregon, for the
defendant-appellee.
INDERGARD v. GEORGIA-PACIFIC CORP. 13887
OPINION
GOODWIN, Circuit Judge:
Kris Indergard (“Indergard”) appeals a summary judgment
in favor of Georgia-Pacific Corporation (“GP”) in her action
for damages under the Americans with Disabilities Act
(“ADA”) and Oregon disability law. GP argues that there was
no error in the district court, and that Indergard failed to
exhaust administrative remedies under the ADA. We have
jurisdiction pursuant to 28 U.S.C. § 1291, and we reverse.
FACTUAL AND PROCEDURAL BACKGROUND
Indergard worked at GP’s Wauna mill facility from Decem-
ber 27, 1984, until February 8, 2006. On December 9, 2003,
she took medical leave to undergo surgery for work-related
and non-work related injuries to her knees. She remained on
medical leave until March 21, 2005, when her orthopedic sur-
geon, Dr. Randall Ketzler, authorized her return to work, but
with permanent restrictions. GP policy required employees to
participate in a physical capacity evaluation (PCE) before
returning to work from medical leave, and GP so informed
Indergard.
GP contracted Columbia Rehabilitation (“Columbia”), an
independent occupational therapy provider located in Wash-
ington state, to conduct the PCE. Cory Blickenstaff, a physi-
cal therapist at Columbia, visited the GP facility and
conducted a job analysis for the Consumer Napkin Operator
position, which was Indergard’s position prior to her medical
leave, and for the Napkin Adjuster position, which was the
next position for which Indergard was entitled to bid under
the collective bargaining agreement. Blickenstaff interviewed
employees who worked in these positions, and identified the
physical demands of the positions, including amount of
weight an employee was required to lift, carry, push, pull, and
hold, and the type of movements the positions required.
13888 INDERGARD v. GEORGIA-PACIFIC CORP.
Among the lifting requirements that Blickenstaff identified
were a sixty-five pound individual lift and carry for the Con-
sumer Napkin Operator position and a seventy-five pound lift
for the Napkin Adjuster position. In light of these require-
ments, Columbia determined that Indergard’s permanent
restrictions prevented her from participating in the PCE.
Indergard met with GP supervisors and challenged the lifting
requirements in the job analyses, alleging that they were inac-
curate based on how the jobs were actually performed. Blick-
enstaff prepared a supplemental memorandum intended to
clarify the requirements, but the job analyses were not
revised.
On October 11, 2005, Indergard provided GP with a note
from Dr. Ketzler that removed the permanent restrictions he
had previously identified. GP then scheduled her to partici-
pate in the PCE. Vicky Starnes, a state-licensed occupational
therapist at Columbia, conducted the PCE at Columbia’s
office on November 9 and 10, 2005.
On the first day of the PCE, Starnes recorded Indergard’s
medical history and subjective reports of her current pain
level and use of medication, alcohol, tobacco, and assistive
devices. Starnes recorded Indergard’s weight, height, blood
pressure, and resting pulse. She observed Indergard’s gait,
balance, and posture. She measured the range of motion in
Indergard’s arms and legs, and compared the results to normal
limits. Starnes palpated Indergard’s knees and looked for
edema in her legs, and performed manual muscle testing,
recording the results of Indergard’s hip flexors, knee exten-
sors and flexors, bilateral internal and external hip rotation,
and straight leg raises.
Next, Starnes measured Indergard’s ability to lift various
amounts of weight from floor to waist, waist to chest, and
chest to overhead, and evaluated Indergard’s body mechanics
during the lifts. She then measured Indergard’s ability to carry
increasing amounts of weight over a set distance, and her grip
INDERGARD v. GEORGIA-PACIFIC CORP. 13889
strength over varying grip widths. She measured Indergard’s
static strength to determine her ability to lift, push, and pull
in various postures, and compared Indergard’s results to
norms adopted by the U.S. Department of Health and Human
Services. Indergard then performed a “Job Simulation Task,”
which required her to lift and pour five gallon buckets filled
with forty-five pounds of sand. Starnes then tested Inder-
gard’s ability to place nuts and bolts in a box while kneeling
with her vision obscured, and observed Indergard’s ability to
climb stairs, stand, sit, kneel, squat, and crawl. Indergard
walked on a treadmill for twenty minutes at a 2.8 mile per
hour pace, and pushed a weight sled. Finally, Starnes recorded
details about Indergard’s vision, communication, cognitive
ability, hearing, attitude, and behavior.
The second day of the PCE included similar tests. Starnes
measured and recorded Indergard’s heart rate after she per-
formed the treadmill test, and noted that she required “in-
creased oxygen” and demonstrated “poor aerobic fitness.”
Starnes concluded that Indergard was unable to perform the
sixty-five pound lift and carry that Blickenstaff had identified
as a requirement of the Napkin Operator position, or the
seventy-five pound lift that Blickenstaff identified as a
requirement for the Napkin Adjuster position. Starnes recom-
mended that Indergard not return to work, and forwarded the
results of the PCE to Dr. Ketzler, who agreed with Starnes’s
assessment. The lifting requirements that the PCE indicated
Indergard could not meet were those that she had previously
contested as inaccurate.
GP then informed Indergard that she could not return to
either position, and that no other positions were available for
which she was qualified. On February 8, 2006, GP terminated
her employment pursuant to a provision in the collective bar-
gaining agreement that allowed GP to terminate employees
who had been on leave for more than two years. Indergard
filed a union grievance, which was denied, and filed a joint
complaint with the EEOC and BOLI. The administrative
13890 INDERGARD v. GEORGIA-PACIFIC CORP.
investigation found no substantial evidence to support her
claims. She received right to sue letters, and filed this action.
Indergard alleged various claims of disability discrimina-
tion under the ADA and Oregon disability law. Relevant to
this appeal, she alleged that GP misrepresented the essential
job functions of the position in which she had worked prior
to going on medical leave, forced her to participate in the PCE
without “an objectively reasonable basis for doing so,” and
refused to allow her to return to employment after the PCE.
In her first claim for relief, Indergard alleged that the PCE
was improper and discriminatory, and that GP relied on the
PCE to “remove and/or deny” her return to employment. She
also raised other claims under the ADA, including that GP
treated her “in a disparate, discriminating and harassing man-
ner” because she was disabled, had a record of disability or
was perceived as disabled, and that GP failed to engage in the
interactive process. She sought relief in the form of loss of
income, and $250,000 in non-economic damages.
GP moved for summary judgment, and Indergard’s
response abandoned all claims except those alleging that the
PCE was an improper medical examination and that GP dis-
criminated against her because of a perceived disability or
record of disability. GP’s reply argued that the PCE was not
a medical examination, and that it therefore did not violate the
ADA. It further argued that even if the PCE was a medical
examination, it was job-related and consistent with business
necessity, and therefore expressly allowed by the ADA. See
42 U.S.C. § 12112(d)(4)(A).1
1
(A) Prohibited examinations and inquiries
A covered entity shall not require a medical examination and
shall not make inquiries of an employee as to whether such
employee is an individual with a disability or as to the nature or
severity of the disability, unless such examination or inquiry is
shown to be job-related and consistent with business necessity.
42 U.S.C. § 12112(d)(4)(A).
INDERGARD v. GEORGIA-PACIFIC CORP. 13891
The magistrate judge agreed with GP that the PCE was not
a medical examination. Because the magistrate judge deter-
mined that the PCE was not a medical examination, he con-
cluded that GP had not violated 42 U.S.C. § 12112(d)(4)(A)
and that it was entitled to summary judgment. In the interest
of providing a thorough analysis, however, the magistrate
judge analyzed GP’s business necessity defense. Noting that
the standard to establish business necessity is “quite high,” the
magistrate judge found that although GP had a reasonable
basis to request the PCE, it “would not be entitled to summary
judgment on the basis of the business necessity defense
because [GP] failed to show that the PCE was limited to the
essential functions” of Indergard’s prior positions. The magis-
trate judge, however, decided that GP was nonetheless enti-
tled to summary judgment because the PCE was not a medical
examination.
Indergard filed objections, but the district court adopted the
Findings and Recommendation in full and granted GP’s
motion for summary judgment. This appeal followed.2
DISCUSSION
I. The district court erred in holding that the PCE was
not a medical examination under the ADA
[1] Under the ADA, an employer may not require a current
employee to undergo a medical examination unless the exami-
nation “is shown to be job-related and consistent with busi-
ness necessity.” 42 U.S.C. § 12112(d)(4)(A). This section
applies to all employees, whether or not they are disabled
under the ADA. Fredenburg v. Contra Costa County Dep’t of
Health Servs., 172 F.3d 1176, 1182-82 (9th Cir. 1999). The
implementing regulations impose the same restriction, but
state that an employer “may make inquiries into the ability of
2
Indergard does not appeal the district court’s grant of summary judg-
ment on her discrimination based on perceived disability claim.
13892 INDERGARD v. GEORGIA-PACIFIC CORP.
an employee to perform job-related functions.” 29 C.F.R.
§ 1630.14(c). Thus, we must determine whether the PCE was
a medical examination under the ADA or simply an inquiry
into whether Indergard was capable of performing the job-
related functions of the positions she was qualified to return
to after her medical leave.
A. Regulatory guidance indicates that the PCE was a
medical examination
Neither the ADA nor the implementing regulations define
the term “medical examination,” and case law interpreting
this provision is limited. Agency guidance on the issue, how-
ever, is more detailed. Although agency guidance documents
are “not controlling upon courts by reason of their authority,
[they] do constitute a body of experience and informed judg-
ment to which courts and litigants may properly resort for
guidance.” Meritor Sav. Bank v. Vinson, 477 U.S. 57, 65
(1986) (internal quotation marks and citation omitted); see
also Christensen v. Harris County, 529 U.S. 576, 587 (2000)
(stating that “interpretations contained in policy statements,
agency manuals, and enforcement guidelines . . . are ‘entitled
to respect’ . . . only to the extent that [they] have the power
to persuade”) (internal quotation marks and citation omitted).
[2] The interpretive appendix to 29 C.F.R. § 1630.14(c)
states, in relevant part, that “[t]his provision permits employ-
ers to make inquiries or require medical examinations (fitness
for duty exams) when there is a need to determine whether an
employee is still able to perform the essential functions of his
or her job.” 29 C.F.R. Pt. 1630, App. § 1630.14(c). The inter-
pretive appendix to 29 C.F.R. § 1630.14(a) also contemplates
the use of “[p]hysical agility tests,” which “are not medical
examinations and so may be given at any point in the applica-
tion or employment process.” Id. at App. § 1630.14(a). The
appendix further states that physical agility tests “must be
given to all similarly situated applicants or employees regard-
less of disability,” and notes that if the test “screen[s] out or
INDERGARD v. GEORGIA-PACIFIC CORP. 13893
tend[s] to screen out an individual with a disability . . . the
employer would have to demonstrate that the test is job-
related and consistent with business necessity and that perfor-
mance cannot be achieved with reasonable accommodation.”
Id.
[3] EEOC Enforcement Guidance draws a further distinc-
tion between medical examinations and physical agility tests.
It defines a medical examination as “a procedure or test that
seeks information about an individual’s physical or mental
impairments or health.” Enforcement Guidance on Disability-
Related Inquiries and Medical Examinations, available at
http://www.eeoc.gov/policy/docs/guidance-inquiries.html
[hereinafter “EEOC Enforcement Guidance”]. It provides the
following seven factors to be considered in determining
whether a test is a medical examination:
(1) whether the test is administered by a health care
professional
(2) whether the test is interpreted by a health care
professional
(3) whether the test is designed to reveal an impair-
ment of physical or mental health
(4) whether the test is invasive
(5) whether the test measures an employee’s perfor-
mance of a task or measures his/her physiological
responses to performing the task
(6) whether the test normally is given in a medical
setting
(7) whether medical equipment is used
Id. The EEOC Enforcement Guidance states that although in
some cases a combination of factors may be relevant to the
13894 INDERGARD v. GEORGIA-PACIFIC CORP.
determination of whether a test is a medical examination, in
“other cases, one factor may be enough to determine that a
test or procedure is medical.” Id. It then provides a list of tests
considered medical examinations, including “blood pressure
screening and cholesterol testing” and “range-of-motion tests
that measure muscle strength and motor function.” Id.
[4] The EEOC Enforcement Guidance states that certain
employer-required tests are generally not medical examina-
tions, including
physical agility tests, which measure an employee’s
ability to perform actual or simulated job tasks, and
physical fitness tests, which measure an employee’s
performance of physical tasks, such as running or
lifting, as long as these tests do not include examina-
tions that could be considered medical (e.g., measur-
ing heart rate or blood pressure).
Id. (emphasis added).
1. Single factors establish that the PCE was a medi-
cal examination
[5] In light of the agency guidance, Indergard’s argument
that the PCE was a medical examination is convincing. As
noted above, the PCE included range of motion and muscle
strength tests, and Starnes measured Indergard’s heart rate
and recorded an observation about her breathing after the
treadmill test. Each of these tests is within the EEOC’s
description of tests that are considered medical examinations.
The post-treadmill test heart rate measurement and notation
regarding Indergard’s “increased oxygen” intake and demon-
stration of “poor aerobic fitness” weigh heavily in favor of
considering the PCE a medical exam, particularly because
Starnes had already noted that Indergard “was able to walk for
20 minutes at 2.8 mph on treadmill without increased antalgic
behavior or objective findings of pain complaints noted.” Had
INDERGARD v. GEORGIA-PACIFIC CORP. 13895
Starnes’s observations ended there, it might be appropriate to
characterize the treadmill test as a test that measured Inder-
gard’s performance of a physical task. Measuring Indergard’s
heart rate and recording observations about her breathing and
aerobic fitness, however, was not only unnecessary to deter-
mine whether she could perform the task, but is also the kind
of examination that the EEOC Enforcement Guidance identi-
fies as inappropriate to include in a non-medical physical agil-
ity or fitness test.
GP’s argument that anything less than a “genuine exercise
stress test” is not a medical examination distorts the EEOC
Enforcement Guidance and is not well-taken. Furthermore, to
the extent that GP attempts to rely on the magistrate judge’s
conclusion that Indergard’s blood pressure and heart rate were
measured as an “overall precaution before beginning testing
rather than to measure [Indergard’s] physiological response to
the performance portion of the PCE,” we emphasize that her
heart rate was taken both before and after the treadmill test,
and we note that although it might be a prudent medical pro-
cedure to take these physiological measurements, including
them in the report provided to GP was unnecessary for the
purpose of determining whether Indergard was physically
capable of performing her job duties.
2. Application of the seven-factor test establishes
that the PCE was a medical examination
[6] The EEOC Enforcement Guidance identifies seven fac-
tors as relevant to determining whether a test is a medical
examination, and at least four weigh in Indergard’s favor.
First, although Starnes is not a medical doctor, she is a
licensed occupational therapist. Nothing in the EEOC
Enforcement Guidance indicates that the term “health care
professional” should be limited to only doctors, and at least
one district court has found that the fact that a PCE “was
administered by a business specializing in physical therapy,
and not a medical doctor, makes it no less ‘medical’ than a
13896 INDERGARD v. GEORGIA-PACIFIC CORP.
nurse taking one’s blood pressure or an emergency medical
technician administering care to a patient on the way to the
hospital.” Medlin v. Rome Strip Steel Co., 294 F. Supp. 2d
279, 294 (N.D.N.Y. 2003).
[7] Second, not only did Starnes administer the PCE, but
she interpreted Indergard’s performance and recommended
that she not return to work. Furthermore, Starnes submitted
the test results to Dr. Ketzler, Indergard’s treating orthopedic
surgeon, who indicated his agreement with Starnes’s recom-
mendation. This distinguishes the PCE from a test where, for
example, a supervisor or other employee might observe the
employee’s physical ability to perform job tasks.
[8] Third, although the PCE was ostensibly intended to
determine whether Indergard could return to work, the broad
reach of the test was capable of revealing impairments of her
physical and mental health, particularly in light of Starnes
recording Indergard’s subjective reports of her current pain
level, use of medication and assistive devices, and communi-
cation, cognitive ability, attitude, and behavior.
[9] The fourth factor weighs in GP’s favor, as the PCE does
not seem to have been invasive. The fifth factor, however,
benefits Indergard because Starnes recorded her heart rate and
breathing pattern after the treadmill test, and Indergard’s mus-
cle pain and stiffness after the first day of testing. These are
measurements of Indergard’s physiological response to her
performance of a task and, as discussed above, go beyond col-
lecting information necessary to determine whether Indergard
was physically capable of performing the task. We express no
opinion on the sixth factor, except to note that the offices of
a licensed occupational therapist are more like a medical set-
ting than, for example, an employee’s work place.
[10] Finally, it is unclear whether the final factor favors
either party, because the only evidence that medical equip-
ment was used in the PCE is Starnes’s use of a blood pressure
INDERGARD v. GEORGIA-PACIFIC CORP. 13897
cuff at the beginning of the PCE. Thus, viewed in the light
most favorable to Indergard, applying the balancing factors
establishes that the PCE was a medical examination.
B. The limited case law available establishes that the
PCE was a medical examination
[11] Most cases interpreting 42 U.S.C. § 12112(d)(4)(A)
address the question of whether an admitted medical examina-
tion was job related and consistent with business necessity.
See, e.g., Yin v. California, 95 F.3d 864, 868 (9th Cir. 1996)
(following the district court in assuming that the proposed
examination was a medical examination within the meaning
of 42 U.S.C. § 12112(d)(4)(A)).
The case most on point is Medlin, 294 F. Supp. 2d at
293-94. Medlin, an employee, had been on medical leave after
a back injury. Id. at 284. Prior to returning to work, his
employer required him to undergo a functional capacity eval-
uation (“FCE”) to determine whether his residual functional
capacity met the job requirements for the position he previ-
ously held. Id. at 285. The FCE results revealed that Medlin
was “unable to maintain safe work practices or a heart rate
profile required for the level of repetitions and duration for a
complete Hot Role Slitter setup.” Id. (internal quotation marks
omitted). Medlin sued, alleging in part that the employer
made an improper disclosure of his medical information in
violation of the ADA when it made the results of the FCE
known to other employees. Id. at 293.
The court stated that the FCE was clearly job related and
consistent with business necessity, but noted that it was
unclear whether it qualified as a medical examination. Id.Without reaching a definitive conclusion, the court noted that
EEOC guidance and case law had indicated “that testing
ordered by the employer that physically or mentally tests an
employee’s ability to perform his or her job are permissible
tests under the ADA.” Id. at 293-94 (citing 29 C.F.R. Pt.
13898 INDERGARD v. GEORGIA-PACIFIC CORP.
1630, § 1630.13(b); Sullivan v. River Valley Sch. Dist., 197
F.3d 804, 811 (6th Cir. 1999)). The court then found that
because the sole purpose of the FCE was to determine
whether Medlin “could physically return to work without any
restrictions” and was “in essence and in reality, a fitness for
duty exam,” it therefore was likely a medical examination. Id.
at 294.
GP argues that because the FCE in Medlin was adminis-
tered to determine whether the employee could perform the
physical demands of his position without any restrictions, it
was designed to test the level of his disability and is therefore
distinguishable from the PCE in this case. This distinction is
unpersuasive. Although the court did state that the purpose of
the FCE was to determine whether Medlin “could physically
return to work without any restrictions,” id., it was adminis-
tered to an injured employee returning from medical leave in
order to ascertain whether he was capable of performing the
physical demands of his position. Id. at 284-86. Thus, there is
little to distinguish the FCE at issue in Medlin from the PCE
at issue here.
Furthermore, the Second Circuit has held that an employ-
er’s policy that all employees returning from sick leave pro-
vide a medical certification that included a “brief general
diagnosis that is ‘sufficiently informative as to allow [the
Department of Correctional Services] to make a determination
concerning the employee’s entitlement to leave’ ” was “suffi-
cient to trigger the protections of the ADA under [42 U.S.C.
§ 12112(d)(4)(A)]” because the general diagnosis “may tend
to reveal a disability.” Conroy v. New York Dep’t of Corr.
Serv., 333 F.3d 88, 92, 95-96 (2d Cir. 2003). Although Con-
roy was interpreting the provision in 42 U.S.C.
§ 12112(d)(4)(A) that prohibits an employer from making “in-
quiries of an employee as to whether such employee is an
individual with a disability or as to the nature or severity of
the disability” and is not directly on point, its reasoning is
useful to the extent that portions of Indergard’s PCE went
INDERGARD v. GEORGIA-PACIFIC CORP. 13899
beyond simply measuring her physical ability to perform job
tasks and could have revealed a disability.
[12] The purpose of the PCE may very well have been to
determine whether Indergard was capable of returning to
work. The substance of the PCE, however, clearly sought “in-
formation about [Indergard’s] physical or mental impairments
or health,” see EEOC Enforcement Guidance, and involved
tests and inquiries capable of revealing to GP whether she suf-
fered from a disability. Therefore, we hold that the PCE was
a medical examination under 42 U.S.C. § 12112(d)(4)(A).3
3
The dissent predicts a parade of lawsuit horribles for employers if
Indergard’s PCE is held to be a medical examination within the meaning
of 42 U.S.C. § 12112(d)(4)(A). To reach this conclusion, the dissent disre-
gards statutory language and commentary by dividing the comprehensive
PCE into its component tests for analysis. In addition, the dissent would
require Indergard to show that a particular component test was a medical
examination that proximately caused her to lose her job, a rationale that
has not been adopted in this circuit.
“The plainness or ambiguity of statutory language is determined by ref-
erence to the language itself, the specific context in which that language
is used, and the broader context of the statute as a whole.” Robinson v.
Shell Oil Co., 519 U.S. 337, 341 (1997). The statute provides that an
employer “shall not require a medical examination . . . unless such exami-
nation . . . is shown to be job-related and consistent with business necessi-
ty.” 42 U.S.C. § 12112(d)(4)(A). The EEOC Enforcement Guidance for
§ 12112(d)(4)(A) clarifies that testing blood pressure, cholesterol, muscle
strength, and motor function specifically are designated as medical exami-
nations. “The whole purpose of placing a person on leave is that he or she
may eventually return to work.” Fredenburg, 172 F.3d at 1181.
“The ADA was enacted in 1992 ‘to provide a clear and comprehensive
national mandate for the elimination of discrimination against individuals
with disabilities.’ ” Yin, 95 F.3d at 867 (quoting 42 U.S.C. § 12101(b)).
The ADA provisions that prohibit using medical examinations to discrimi-
nate in hiring or retaining employees protect all employees from being
stigmatized by their disabilities. 42 U.S.C. § 12112(d); see Fredenburg,
172 F.3d at 1182 (“protecting only qualified individuals would defeat
much of the usefulness of [the medical examination provisions]”). The
dissent’s method of dividing Indergard’s PCE into component parts and
engaging in proximate-cause analysis creates a risk that employers would
13900 INDERGARD v. GEORGIA-PACIFIC CORP.
II. Exhaustion of administrative remedies
GP argues that Indergard failed to exhaust administrative
remedies because her joint EEOC/BOLI complaint did not
provide requisite notice of the unlawful medical examination
claim. Indergard argues that the court should not reach this
issue because she has alleged identical claims under Oregon’s
state disability law, which is substantively the same as federal
seek to obtain medical information in tests that are not job-related and
thereby escape liability by asserting that their employment decisions were
based on information revealed in non-medical components of the evalua-
tion. This would promote unnecessary litigation, contravene the statutory
prophylactic purpose, and deter disabled employees from returning to
work following medical leave, because of concern for being stigmatized
by their disabilities.
Indergard was given a treadmill/blood-pressure test, which is used to
detect arterial blockages that could result in open-heart surgery. Unques-
tionably, this is a medical examination, and taking blood pressure follow-
ing treadmill exertion is a critical part of the test not to be separated from
it. Yet, the dissent segregates the blood-pressure test from this standard
medical procedure and re-characterizes it as incidental or a technical viola-
tion of § 12112(d)(4)(A). While testing blood pressure is explicitly desig-
nated in the statutory commentary as being a medical examination, the
therapist, who administered the PCE, took many physiological measure-
ments during the two-day testing, given as a composite examination.
Avoiding the statutory language, commentary, and purpose, the dissent
endeavors to convert the two-day PCE into a physical agility test, which
employers can give at any time, by dividing it into its component tests and
analyzing them separately.
Using this cut-and-divide approach, for which the dissent gives no
authority, not only dispenses with Indergard’s blood-pressure test as inci-
dental but also focuses on her weight-lifting testing as the basis or proxi-
mate cause for her termination. The therapist, who administered the PCE,
determined that Indergard could not accomplish the 65-pound lift and
carry nor the 75-pound lift, respectively required for her former Consumer
Napkin Operator position or the Napkin Adjuster position, for which she
would have been entitled to bid under the applicable collective bargaining
agreement. Indergard’s doctor had deemed her able to return to work and
subsequently agreed with her termination, based solely on the weight lift-
ing purportedly required for the two jobs.
INDERGARD v. GEORGIA-PACIFIC CORP. 13901
law but does not require administrative exhaustion, that GP
waived the failure to exhaust argument by way of a judicial
admission in its answer, that GP did not allege failure to
exhaust as an affirmative defense, and that because the EEOC
would have addressed the medical examination in the scope
of its investigation, the claim was properly before the district
court.
Because the magistrate judge determined that the PCE was
not a medical examination, he declined to reach GP’s argu-
ment that Indergard failed to exhaust her administrative reme-
dies with respect to this claim. In remanding this case, we do
not express any view on this argument, and the issue remains
open for the district court’s consideration.
CONCLUSION
[13] We hold that the PCE was a medical examination
within the meaning of 42 U.S.C. § 12112(d)(4)(A). Because
the magistrate judge correctly found that a triable issue of fact
remained on the question of whether the PCE was job related
and consistent with business necessity, the summary judgment
This circuit has not adopted a proximate-causation requirement in the
context of § 12112(d)(4)(A). The dissent’s reliance on Armstrong v. Tur-
ner Industries, Inc., 141 F.3d 554, 562 (5th Cir. 1998), is inapposite
because Turner concerned a pre-employment examination and not an
employee’s returning to work from medical leave. An employee, who has
worked for a company, has more invested in that employment, including
benefits, than an applicant for employment. Therefore, the employee has
more to lose by job termination than an applicant, and the employee also
effectively has been penalized for a medical absence, when his or her job
is lost upon return to work. Using its component-test analysis, the dissent
insists that Indergard has no cause of action, but she did lose her job when
she returned from medical leave because of the subject PCE. The dissent
cannot inject into the plain statutory language a contrived proximate-cause
requirement. As GP notes, proximate cause “is not an issue the Court
needs to decide in this appeal” before initial determination by the district
court and briefing on appeal. Appellee’s Br. at 22 n.5. Treating the two-
day PCE as a whole, rather than analyzing its discrete tests, promotes the
deterrent purpose behind § 12112(d)(4)(A).
13902 INDERGARD v. GEORGIA-PACIFIC CORP.
was inappropriate. We vacate the judgment and remand the
case to the district court to determine whether the PCE was
job related and consistent with business necessity, and to
determine whether Indergard exhausted administrative reme-
dies.
VACATED and REMANDED.
O’SCANNLAIN, Circuit Judge, dissenting:
The essential distinction between a medical examination
and a physical fitness or agility test, for the purposes of the
Moreover, Indergard continues to argue on appeal that the 65-pound
weight-lifting test for the Consumer Napkin Operator position, which was
her job, and the 75-pound weight-lifting test for the Napkin Adjuster posi-
tion are inaccurate weight requirements for these jobs. On summary judg-
ment review, Indergard’s statement of the weight requirements for the
respective jobs must be accepted. Cripe v. City of San Jose, 261 F.3d 877,
895 (9th Cir. 2001). Because Indergard’s inability to lift these weights
resulted in her termination, the weight-requirement discrepancy for the
two positions is a genuine issue of material fact, which precludes summary
judgment. Fed. R. Civ. P. 56 (c); Cripe, 261 F.3d at 894-95. On remand,
the district court can make this factual determination in deciding whether
Indergard’s medical examination was “job related and consistent with
business necessity.” 42 U.S.C. § 12112(d)(4)(A). GP has the burden of
proving that the PCE weight lifting it required for the two positions satis-
fies the business necessity defense, which “is quite high, and is not to be
confused with mere expediency.” Cripe, 261 F.3d at 890 (citation, internal
quotation marks, and alteration omitted); see EEOC v. Prevo’s Family
Market, Inc., 135 F.3d 1089, 1091-92 & n.3 (6th Cir. 1998) (holding that
family-owned grocery store did not violate § 12112(d)(4)(A) in terminat-
ing produce clerk for failing to have a medical examination to determine
if he was HIV-positive, when the job involved use of “paring knives, chef
knives, cleavers and pineapple corers, all of which are shared by the
clerks,” and the parties “agree[d] that produce clerks often cut themselves
in the course of their regular duties”). The dissent’s upholding summary
judgment for GP in this case defeats the statutory purpose of
§ 12112(d)(4)(A) by creating a pretext by which employers could misuse
medical examinations to discriminate against disabled employees return-
ing to work from medical leave.
INDERGARD v. GEORGIA-PACIFIC CORP. 13903
Americans with Disabilities Act (“ADA”), is that the former
is designed to reveal disability, while the latter is designed to
determine whether an employee can perform her job. I cannot
conclude that the evaluation Kris Indergard underwent on her
return to work at Georgia-Pacific was a medical examination
under 42 U.S.C. § 12112(d)(4)(A), for it was not designed to
reveal disability. Furthermore, even assuming that there were
any “medical” aspects of the physical capacity evaluation
(“PCE”), they were merely incidental to the physical agility
aspects and did not in any way cause the harms that Indergard
alleges. Therefore, I must respectfully dissent.
I
Indergard characterizes the PCE as “two days of testing,
poking, palpating, and examining.” However, over the course
of those two days, no blood was drawn, no urine samples col-
lected, no labwork performed, and no x-rays or scans taken.
No doctor or nurse ever examined, diagnosed, or treated her.
Instead, she went to an occupational therapy facility and per-
formed various physical tasks designed to determine whether
she could safely perform the duties of her old job. Such test-
ing was unquestionably advisable given her own physician’s
permanent restrictions on climbing, kneeling, squatting,
crawling, and lifting over thirty pounds. A common-sense
reading of the term “medical examination” would not include
this PCE.
Unfortunately, common sense plays no role in our ADA
jurisprudence. Instead, the EEOC has muddied the jurispru-
dential waters by issuing “guidances” that appear to read the
word “medical” right out of the statute. For example, the
interpretive appendix to 29 C.F.R. § 1630.14(a) first states
that “[p]hysical agility tests are not medical examinations” but
then adds that “[i]f such tests screen out or tend to screen out
individuals with disabilities, the employer would have to
demonstrate that the test is job-related and consistent with
business necessity . . . .” Apparently, having a tendency to
13904 INDERGARD v. GEORGIA-PACIFIC CORP.
screen out disabled individuals automatically converts a phys-
ical agility test into a medical examination subject to the
ADA. Given that physical agility tests by their very nature
tend to screen out people with certain disabilities, I see no
way for employers to conduct such tests without inviting
ADA lawsuits from those who fail them.
In addition, an EEOC enforcement guidance defines a med-
ical examination as “a procedure or test that seeks information
about an individual’s physical or mental impairments or
health.” EEOC Enforcement Guidance on Disability-Related
Inquiries and Medical Evaluations, available at
http://eeoc.gov/policy/docs/guidance-inquiries.html [hereinaf-
ter Enforcement Guidance]. Under this broad definition, any
return-to-work test would necessarily qualify as a medical
examination because it seeks to determine whether the
employee is fit enough to resume her duties. Employers seek-
ing to avoid ADA lawsuits would have to allow injured work-
ers to return to the job without being able to verify their
fitness for duty, creating the potential for re-injury.
The Enforcement Guidance also declares physical agility
tests not to be medical examinations “as long as these tests do
not include examinations that could be considered medical
(e.g., measuring heart rate or blood pressure).” Hence, a sin-
gle pulse measurement taken over the course of a two-day
physical agility test would be sufficient to convert such test
into a medical examination. If an employee taking a physical
agility test shows obvious distress, the examiner would not be
able to take her pulse or blood pressure as a precautionary
measure without implicating the ADA. Employers seeking to
ensure returning workers’ safety must therefore navigate the
precarious straits between the Scylla of ADA liability and the
Charybdis of a negligence lawsuit. Fearing either form of lia-
bility, employers may very well decline to conduct any form
of testing, thereby increasing the risk of returning worker
injury.
INDERGARD v. GEORGIA-PACIFIC CORP. 13905
The majority uncritically accepts these agency pronounce-
ments as gospel, even though we owe them no deference
when they subvert the plain text of the statute. See Gen.
Dynamics Land Sys., Inc. v. Cline, 540 U.S. 581, 600 (2004).
I decline to read the statute in such a way as to render a term
entirely meaningless.
II
Turning to the PCE at issue in this case, I am not persuaded
that it can be considered a medical examination merely by vir-
tue of the “single factors” that the majority lists: range-of-
motion and muscle strength tests, pulse measurement after a
treadmill test, and observations about Indergard’s breathing
after the treadmill test. It is important to remember that the
PCE was a two-day examination comprising numerous tests.
While one or two of these measurements may arguably have
been medical in nature, these were at most de minimis com-
ponents that were incidental to the physical tasks that formed
the bulk of the PCE.
Furthermore, application of the seven-factor test also does
not convince me that the PCE as a whole was a medical
examination. In particular, I disagree with the majority’s con-
clusions regarding factors three, five, and seven. Factor three
asks “whether the test is designed to reveal an impairment in
physical or mental health.” Enforcement Guidance. According
to the majority, “although the PCE was ostensibly intended to
determine whether Indergard could return to work, the broad
reach of the test was capable of revealing impairments of her
physical and mental health.” Maj. op. at 13896. Here the
majority appears to confuse intent with effect. Because the
majority believes that the PCE could reveal an impairment, it
assumes that Georgia-Pacific intended for it to do so. I do not
read factor three so broadly. With respect to factors five and
seven, any measurement of physiological response and use of
medical equipment were de minimis in the overall context of
13906 INDERGARD v. GEORGIA-PACIFIC CORP.
the two-day PCE. On balance, the PCE looks overwhelmingly
more like a physical agility test than a medical examination.
III
In my view, the PCE cannot be considered a single exami-
nation but rather a battery of individual tests. By its viewing
of the PCE, the majority allows Indergard to proceed with her
suit even though she has shown no injury resulting from the
allegedly medical tests. However, it was unquestionably the
lifting task that scuttled Indergard’s return to work, not her
pulse rate after the treadmill test or her knee flexion. Because
she has suffered no injury from the parts of the test that alleg-
edly were medical examinations, she cannot maintain a claim
for a violation of § 12112(d).
Our sister circuits have agreed that a plaintiff seeking relief
under 42 U.S.C. § 12112(d) must be able to show “something
more than a mere violation of that provision. There must be
some cognizable injury in fact of which the violation is a legal
and proximate cause for damages to arise from a single viola-
tion.” Armstrong v. Turner Indus., Inc., 141 F.3d 554, 562
(5th Cir. 1998); see also Tice v. Centre Area Transp. Auth.,
247 F.3d 506, 519 (3d Cir. 2001); Cossette v. Minnesota
Power & Light, 188 F.3d 964, 970 (8th Cir. 1999); Griffin v.
Steeltek, Inc., 160 F.3d 591, 594-95 (10th Cir. 1998). In other
words, “a technical violation” is not enough. Tice, 247 F.3d
at 520. Here, even assuming that Georgia-Pacific technically
violated § 12112(d)(4)(A) by measuring Indergard’s pulse
and range of motion, she has made no showing that such mea-
surements have proximately caused her to lose her job. There-
fore, any such measurements “presents no ‘injury’ capable of
remedy, and thus affords no basis for suit.” Id. at 519.
Armstrong is instructive because it presents a scenario anal-
ogous to this case, albeit in the context of preemployment
medical inquiries.1 Armstrong had applied for a position as a
1
Preemployment medical inquiries and examinations fall under 42
U.S.C. § 12112(d)(2) of the ADA. Although the majority attempts to dis-
INDERGARD v. GEORGIA-PACIFIC CORP. 13907
pipefitter and was asked questions in his application about
prior injuries, his medical history, and worker’s compensation
claims. The questionnaire also asked whether he had “any
injury or condition not mentioned on this form,” and Arm-
strong answered “no.” A background check later revealed that
Armstrong had previously reported “possible asbestos expo-
sure,” and he was “rejected due to the provision of incorrect
and/or incomplete information.” 141 F.3d at 556-57. Because
the failure to hire had not resulted directly from the prohibited
medical inquiries, the court held that Armstrong lacked stand-
ing to sue for damages and injunctive relief under
§ 12112(d)(2)(A). Id. at 562-63. The court noted that the
ADA was not intended to protect employees from adverse
employment actions “incident to a prohibited section
12112(d)(2)(A) inquiry.” Id. at 560 n.15.
Similarly, Indergard’s termination was merely incident to
an alleged technical violation of § 12112(d)(4)(A). Had
Georgia-Pacific administered only the treadmill exercise and
range-of-motion tests, she would not have a cause of action
under the ADA even assuming that they are medical examina-
tions because she suffered no adverse employment action
from these tests. Conversely, had Georgia-Pacific adminis-
tered the lifting task alone, she also would not have a cause
of action because the lifting task is not a medical examination.
Only by yoking these tests together and attributing an injury
from a permissible physical agility task to an allegedly
improper medical examination can Indergard manufacture an
ADA violation.
tinguish Armstrong on this basis, see Maj. op. at 13901 n.3, the same anal-
ysis applies to all of the medical inquiry and examination provisions under
42 U.S.C. § 12112(d). See Tice, 247 F.3d at 519 (“Other courts of appeal
have addressed the question whether a plaintiff has a cause of action for
a violation of § 12112(d) without demonstrating the existence of an injury-
in-fact . . . . All have concluded that a violation of § 12112(d), without a
showing, presents no ‘injury’ capable of remedy, and thus affords no basis
for suit.”).
13908 INDERGARD v. GEORGIA-PACIFIC CORP.
IV
Because the majority renders the term “medical” meaning-
less and allows a plaintiff to continue her $250,000 suit on the
basis of a pulse measurement that caused her no harm, I
respectfully dissent.