Emily Kroll v. White Lake Ambulance Authority

violated 47 and thus services” wireless 332(c)(7)(B)(i)(II).

IV claim, M.C.L. state-law

Remaining is the

125.3504, court declined which the district address, finding that the violation issue Act renders the

Telecommunications Town- hold that Because we

moot. the Telecommunica- actions violated

ship’s Act, not address the we also need

tions claim.

state-law

V of the district court is

AFFIRMED.

Emily KROLL, Plaintiff-Appellant, LAKE AMBULANCE

WHITE

AUTHORITY, Defendant-

Appellee.

No. 10-2348. Appeals, States Court

United

Sixth Circuit. 8, 2012.

Argued: March Aug.

Decided and Filed: Glazier, Bradley K.

ARGUED: Bos & Glazier, P.L.C., Rapids, Michigan, Grand Appellant. Bogren, for Michael S. Plunk- Kalamazoo, Cooney, Michigan, ett Ap- for pellee. Glazier, Bradley ON BRIEF: K. Glazier, P.L.C., Bos & Rapids, Grand Michigan, Appellant. for Michael S. Bo- gren, Cooney, Kalamazoo, Plunkett Michi- gan, Appellee. MOORE, SUTTON,

Before: DONALD, Judges. Circuit MOORE, J., opinion delivered the court, DONALD, J., joined, in which SUTTON, J., SUTTON, joined part. J. 820-21), (pp. a separate delivered dissenting opinion.

OPINION MOORE, KAREN NELSON Circuit Judge. (“Kroll”)

Emily Kroll appeals the district grant summary judgment court’s in fa- Authority vor of White Lake Ambulance (“WLAA”), employer, Kroll’s former April Kroll maintains that on Americans with Disabili- claims under the (“ADA”). argues that the Act that Kroll “requested” ties Dresen “receive holding matter (Com- as a district court erred counseling.”1 R. counseling ¶ WLAA ordered law 8). that informed Kroll plaint Dresen that not constitute a “med- Kroll to attend does (“Wee- spoken had with Mike Weesies she 42 under U.S.C. ical examination” sies”),2 manager case at administrative 12112(d)(4)(A). that WLAA contends office,3 Hackley Workplace Health and granted properly court sum- the district Dresen to Mark that Weesies had referred asserts, and for mary in its favor (“Graves”) regarding Graves availabili- that lacks appeal, on Kroll first time (Dresen ty counseling. Dep. R. 50-12 at pres- This bring dispute suit. standing to 35-36). testified that she did not Dresen impression first ents an issue of know title or whether he was a Graves’s of “medical Sixth Circuit as to Id. at professional. mental-health 36. examination” told that should Dresen Kroll she contact 12112(d)(4)(A). that For the reasons Red financial regarding Cross assis- follow, judgment of the we VACATE requested for counseling, tance and also REMAND further district court and Kroll that authorize the release of her opinion. with this proceedings consistent counseling that records so WLAA could at monitor her attendance. Id. 39-40. AND I. BACKGROUND receptive Dresen stated that Kroll was PROCEDURAL the idea of and informed Dre- HISTORY “right away.” pursue sen she would Background A. (Dresen 3). Kroll, at R. 50-13 Letter on began working Kroll In September hand, other testified Dresen in- Emergency Medical for WLAA as counseling from structed her to seek Kim (“EMT”) specialist. R. 1 Technician (“Jahn”), that Kroll was not ame- Jahn but ¶ 6). generally Kroll was con- (Complaint neighbor nable “was a because Jahn “good EMT” “good sidered to be a of’ Kroll had friend Dresen and heard supervisor, Brian employee” by her direct (Kroll negative about Jahn. R. 50-7 things (“Binns”). (Binns Dep. Binns R. 50-15 at 139-40). Dep. testimony at There was no 66, 100). However, after Kroll became qualifications. profession Jahn’s involved with one her co- romantically 28, 2008, days April A few then- later WLAA, Binns and the office workers at WLAA, Binns, met with director (“Dresen”), manager, Dresen re- Jean dispute following and Kroll’s father be- concerns from reports ceived WLAA employee. tween Kroll another WLAA See, Kroll’s well employees being. about (Binns (Com- 66); R. 1 (Dresen Dep. R. 50-15 at 27); at e.g., Dep. R. R. 50- 50-12 ¶ 10). (Callison 6,12,14). Kroll that plaint at Binns told he had Dep. Hackley Workplace During deposition, Dresen 3.Dresen testified that 1. was reticent comp[ensation] testify that she believed Kroll needed Health is a “[w]orkers’ “like” counseling, but stated that she people WLAA would refer office” where talking benefit from with believed Kroll could (Dresen jured job. Dep. at on the R. 53-1 “professional provider.” health care R. 53- 35). Hackley Workplace Binns stated (Dresen 56). Dep. at organization Health "a medical people family who had [WLAA] could send 2. that Weesies was WLAA's Dresen stated problems” problems, had life for assis- [or] Program R. “Employee director.” Assistance 59-60). (Binns Dep. R. tance. 52-4 2). (Dresen Letter for her “complaint regards sue letter sex-discrimination com- [Kroll] received ¶ 14, and, 26, 2009, screaming acquaintance plaints, at a id. on June [on male driving ... right-to-sue while ... vehicle EEOC issued letter phone] ¶ claims, emergency respect ... with to her ADA 15. patient with a id. [in] loaded lights status sirens.” 9, 2009, complaint July On Kroll filed a (Binns Dep. at Binns was Because against in federal district court ability to perform about Kroll’s concerned of the ADA Title alleging violations job safely, he told Kroll that she must ¶ Specifically, VII. Id. Kroll contended in order continue that WLAA’s demand that Kroll attend 61-62; working at R. WLAA. Id. at 50-15 counseling was in violation of 42 U.S.C. (Binns 99). Dep. at Binns testified he 12112(d)(4) (Count 1), § of the ADA ‘psy “think” that he term didn’t “used the improperly fired Kroll in retalia- ” in chological’ counseling describing the counseling tion for her refusal to attend R. that he asked Kroll to 52-4 attend. (Count II), and that WLAA discriminated 59). (Binns However, Dep. at when asked against requir- Kroll on the basis of sex say” to would “be fair (Count III). ing counseling that she attend requested psychol Binns Kroll “see 9, 2010, On June sum- WLAA moved for to her ogist discuss issues related men (Sum- mary judgment on all counts. R. 50 health,” responded affirmatively. tal Binns Mot.). mary Judgment reply, at Id. 60. Kroll told she would Binns that stipulated summary judgment Count on not attend the counseling, meeting, left III, (Summary R. Judgment Resp. 51 did not return WLAA. R. to work at 1), n. did present arguments (Kroll 178). Dep. deposi At her summary opposition judgment on Count tion, Kroll testified that because WLAA II, 19, 2010, On August see id. the district her that pay told she would have granted court WLAA’s motion for sum- counseling out of pocket, she “told them mary judgment, concluding that “counsel- monetary did not [she] have the funds to ing alone does not constitute a medical counseling,” seek would although she that, examination under the ADA” and willing been to attend the if it therefore, requirement WLAA’s that Kroll provided charge. her free of Id. as a condition of contin- employment ued 42 governed was not History Procedural B. 12112(d)(4). (Dist. R. Op. 57 Ct. 30, 2008, May On Kroll filed sex-dis- 6). complaint crimination Michigan with the (“MDCR”) Department of Rights timely Civil Kroll filed a motion to alter Equal Employment Opportunity judgment pursuant Com- or amend the to Feder ¶ (“EEOC”). 12). 59(e).4 (Complaint mission R. 1 al Rule of Civil Procedure R. 59 23, (Mot. February 2009, On Kroll filed another Judgment). to Alter The district complaint alleging 20, the EEOC ADA court the motion September denied ¶ 1, (Dist.Ct.Order). 2009, Id. April violations. 13. On timely 2010. R. 61 (Notice EEOC and a right-to- MDCR issued Kroll R. 62 appeals.5 Appeal). 18, governed by 4. Kroll's motion was the new appeal 5. Kroll filed a notice of on October twenty-eight day time Rule limit for 59 mo- seeking appeal 2010 of the district court’s 1, tions effective See December grant summary judgment initial favor Fed. 59(e) notes; advisory committee's 12 WLAA,twenty-eight days R.Civ.P. entry after the Arthur R. Wright, Mary Miller, Charles Alan denying order Kroll's motion to alter or Kane & Richard L. Kay Marcus, Federal Practice judgment. appeal amend Kroll's notice of (2d ed.2012). 3182 Procedure 813 any point proceedings, it at in the II. address ANALYSIS for the including appeal. first time on Zu of Review A. Standard Inc., Logitrans, 297 rich Ins. Co. v. F.3d grant a district court’s review “We (6th Cir.2002). 528, 531 v. novo.” Green summary judgment de standing satisfy To Article Ill’s re (6th Throckmorton, 853, F.3d Cir. plaintiff plead must con quirements, where Summary judgment proper crete, particularized, injury and imminent any dispute as genuine is no “there in fact caused the defendant is entitled fact and movant material judicial likely outcome would favorable matter law.” Fed. as a remedy. Cnty. Smith See v. Bd. Jefferson 56(a). All to be “inferences R.Civ.P. Comm’rs, 197, 206 Sch. 641 F.3d must be underlying facts from drawn banc) Cir.) (en (quoting Friends light most favorable viewed Earth, Envtl. Inc. Laidlaw Servs. the motion.” Matsushita party opposing Inc., 180-81, (TOC), 167, U.S. Corp., 475 Indus. Co.v. Zenith Radio Elec. (2000)), 145 L.Ed.2d 610 S.Ct. cert. 574, 587, 106 S.Ct. 89 L.Ed.2d U.S. — denied, U.S. -, 103, 132 S.Ct. 181 (internal (1986) marks and quotation 538 (2011). Standing bring L.Ed.2d 31 suit omitted). However, “[t]he alterations 12112(d) § 42 is a U.S.C. somewhat in of a scintilla of evidence mere existence confusing contentious issue fed position non-moving party’s support See, Indergard appeals. e.g., eral courts of motion for will insufficient defeat a 1049, Corp., 582 1056 n. v. Ga.-Pac. F.3d 3 must be evi summary judgment; there Cir.2009) (9th suggest (criticizing dissent’s jury reasonably on which the could dence proximate-causation “a ed insertion of re non-moving Moldow party.” find the for in quirement the context of Warren, 351, 374 City 578 F.3d v. of 12112(d)(4)(A)” example, § For standing). (6th Cir.2009) v. Liber (quoting Anderson standing courts have confused Inc., 252, 242, ty 477 U.S. 106 S.Ct. Lobby, whether a must be question plaintiff dis (internal (1986)) 2505, quo 202 91 L.Ed.2d bring 42 abled to suit under U.S.C. omitted), cert. marks and alterations tation 12112(d), see, N.Y. e.g., Conroy § v. State — U.S. -, 3504, denied, 177 130 S.Ct. 88, Servs., F.3d Dep’t Corr. 333 of (2010). L.Ed.2d 1114 (2d Cir.2003), which to whether “an goes element of the claim can be es essential Standing B. tablished,” not see v. standing, Griffin asserts, appeal In this for WLAA (10th Steeltek, Inc., 591, 160 F.3d 593 Cir. time, standing that Kroll lacks first 1998) (internal omitted), quotation marks claim under the ADA because bring her denied, 1065, 1455, 526 119 cert. U.S. S.Ct. counseling” Kroll “never underwent (1999).6 542 143 L.Ed.2d any and therefore “cannot demonstrate Be injury.” Appellee standing question Br. at 31. The at issue here concrete harm, jurisdictional, may any, we if must standing plaintiff allege is what a cause claim, 12112(d) R.App. City § timely Fed. P. a Lee v. Colum "[u]nder was because see of 59(e) 245, 4(a)(4)(A)(iv), bus, (6th Cir.2011) timely au (citing Rule motion 636 F.3d 252 period filing notice tomatically tolls the endorsing opinions position from the Sec this States, appeal.” v. 533 Tenth, Howard United ond, Circuits); Eighth, and Eleventh 472, (6th Cir.2008). F.3d 475 Inc., Sys., Bates v. Auto. see also Dura 625 283, (6th Cir.2010). F.3d 286 Circuit, courts, including this Most disability not an element concluded 814 12112(d). § Fifth Circuit’s in under 42 decision Arm- bring suit U.S.C.

See, City Albany, O’Neal v. New us e.g., strong, urges apply, which WLAA Cir.2002) (“[T]he 998, 1007 293 F.3d does not this result. In Armstrong, alter required courts have nondisabled the law of case that already tangible inju- plaintiff at least show some improper disability inquiry prox- not a 12112(d) § ry-in-fact caused viola- employer’s imate decision cause of not tion.”). Relying on from other precedent 560, 562; 141 plaintiff. hire the F.3d circuits, argues violation of Griffin, (reaching 160 F.3d 595 con- cf. 12112(d) generate 42 does opposite Armstrong). clusion There is cognizable standing purposes harm for case, no such precedent and Kroll and, therefore, point Kroll must to some claim makes a viable that her termination result. other harm suffered as a See Tice did result proximately from WLAA’s in- Auth., v. Area 247 Transp. Centre F.3d counseling. struction to attend addi- (3d Cir.2001) (stating that all fed tion, Armstrong inju- dealt with cognizable appeals eral courts to consider the issue context, ry in preemployment where 12112(d) that a have held violation inherently individual has weaker standing); alone insufficient to confer employment stake in position. Indus., Inc., Armstrong Turner alleges F.3d at 556-57. Kroll harm result- (5th Cir.1998) (There F.3d is no ing from approxi- her termination after “indication either of the ADA or text mately years employ- four-and-a-half legislative history its a violation ment Indergard, with WLAA. See 582 F.3d ..., itself, give was intended to at (distinguishing Armstrong 1056 n. 3 damages liability.”); rise to see also Inder context). based on Al- preemployment its gard, (O’Scannlain, J., 582 F.3d at 1060 though was a part-time employee dissenting). WLAA that contends benefits, and did not receive full she main- identify cannot such harm because Kroll approximately tains that she worked 160 to never op underwent and was 176 period. hours each two-week posed counseling only to insofar as she was (Kroll 23-24). Dep. suggests at This that required pay out-of-pocket. for it employment with a signifi- WLAA was open It question is an in the Sixth Cir- livelihood, part cant of her life and cuit a whether violation of 42 U.S.C. that she had a substantial interest main- 12112(d), by itself, § generates cogniza- employment taining with WLAA. however, standing purposes; ble harm for the foregoing, Based on we conclude present this case does not occasion for us pleaded that Kroll has a claim for which it. alleged injury to answer Kroll has an We, she has Article III standing. there- proximately caused the violation of 42 fore, now consider whether the district 12112(d): § U.S.C. the termination of her granted summary court properly judgment employment. Griffin, See 160 F.3d at 595 in favor of WLAA. (distinguishing ground Armstrong plaintiff “sufficiently ... an alleged injury C. “Medical Examination” Under 42 fact, specifically” plaintiff was not 12112(d)(4) § responses hired as a result “of his to the more impermissible questions”). question pre The difficult Because we capacity appeal sented in is provide remedy this whether coun harm, requirements seling this that Kroll was Article III instructed Smith, examination” standing are met. See 641 “medical F.3d at constitutes a under 12112(d)(4)(A). § 42 U.S.C. The district

815 (EEOC, Disabili- Guidance: and, as a not that it does court concluded Enforcement Medical Exami- ty-Related Inquiries for sum- result, WLAA’s motion granted Ameri- Under the Employees nations court The district mary judgment. 4). (ADA), at Act Disabilities cans with determining conclusion this reached strikes a bal- essence, restriction does “counseling alone categorically interests. competing ance between examination a medical constitute (Dist. Op. Ct. 57 ADA.” R. history pro legislative ADA’s The most fa- light facts Construing the mean into the intended insight little vides Kroll, we conclude vorable “medical examina the term scope or ing for the reasons in error decision 12112(d)(4).8 result, As §in tion” follow. Enforcement aid is the interpretive best published has EEOC that the Guidance 12112(d)(4)(A) 42 U.S.C. Title terms clarify explain “requiring] from employers prohibits 12112(d)(4). EEOC inqui “mak[ing] examination” medical nonbinding ‘constitute[s] Guidance “while such as to employee ries informed body experience disability awith individual employee may properly litigants to which courts inquiry examination ... unless such ” Lee, 636 F.3d at guidance.’ resort for consistent job-related and shown N. Burlington & v. (quoting 256 White Thus, employ necessity.”7 business (6th 789, Co., F.3d 812 Ry. 364 Santa Fe undergo be instructed ees can (en Cir.2004) banc)); AT T& see also “in certain only by employers examinations 5, Hulteen, n. U.S. 723 Corp. circumstances,” by the confined limited (2009) 1962, 173 L.Ed.2d 898 129 S.Ct. necessity” and “business “job-relatedness” (same). that the recently reaffirmed We Family Prevo’s EEOC v. requirements. “very Guidance EEOC Enforcement Inc., Cir. Mkt., F.3d of statu authority” questions persuasive pre 1998) (“[T]he intended statute Lee, 636 of the ADA. interpretation tory inquiries tests and ‘medical against vent White, F.3d (quoting F.3d business legitimate not serve that do omitted). (internal 812) marks quotation ”) C.F.R. (quoting purpose.’ 1630.13(b)). explained has Guidance: The EEOC The EEOC § Enforcement Congress’s and Medical Disability-Related Inquiries “reflect[s] that this restriction “med- Employees defines rights applicants the Examinations protect intent to or test procedure merit as “a ical examination” assessed employees be individu- about em information an alone, rights the that seeks protecting while or impairments mental physical in the al’s or individuals to ensure ployers (EEOC, R. 52-3 es health.” efficiently perform the workplace can Enforcement Inquiries Disability-Related jobs.” R. 52-3 Guidance: of their functions sential necessity” language prevailed. 12112(d)(4)(B), § em- the "business 42 U.S.C. 7. Pursuant to voluntary H. Henry to “conduct ployers permitted Perritt, Jr., with Disabili- are Americans ed.2003). In addi- inquires and "make medical examinations” ties Act Handbook 12112(d)(4)(B), tion, § job- added perform ability employee to House of an into the voluntary examina- permits which related functions.” perform- job inquiries related tions and ance, of the bill. version to the Senate-enacted very little discussion is 8. There (1990), reprinted No. 12112(d)(4) history. Rep. H.R. legislative in the ADA’s Conf. These 568-69. in 1990 U.S.C.C.A.N. replace "business proposal was a There history elucidate legislative do pieces of requirement with a “consistent necessity” standard, "medical examination.” but goals” legitimate business with Employees, by precluding vents discrimination em- and Medical Examinations of 5-6). ployers provides obtaining test from information about It seven-factor disabilities, ... or “nonvisible such as mental procedure whether a test analyzing illness,” then taking employ- adverse a “medical examination” and qualifies as “despite ment may [an individual's] actions abil- enough “one factor notes that job.” (EEOC, ity perform that a test procedure or medi- determine Disability-Relat- Guidance: cal”: Enforcement Inquiries ed and Medical Examinations (1) by the test is administered whether importance Employees, at professional; care a health 12112(d)(4)(A) preventing in discrimina- (2) interpreted by the test is whether that, fact tion is underscored professional; care health many provisions contrast other (3) designed the test is to re- ADA, all or not— individuals—disabled or impairment physical an veal may bring suit aid of its enforcement. health; mental Lee, See 636 F.3d (4) invasive; whether the test is Examples provided sug- the EEOC (5) whether the test measures em- gest employer’s intent not dis- performance of a ployee’s task or positive something qualifies as to whether physiological measures re- his/her as a “medical examination” task; sponses performing Instead, ADA. employer’s purpose (6) normally given whether the test larger must be factual considered and, setting; a medical particular context of a test or assessment’s (7) equipment whether medical is used. typical purposes. uses and Consider the guidance explains Id. at 6. The further example following provided the EEOC designed tests that are “psychological to in its Preemploy- Guidance: identify impairment” a mental disorder Disability-Related Questions ment examinations,” “psycho- are “medical while Medical Examinations:9 logical personality tests measure designed A test is to re- honesty, traits preferences, such illness, particular veal mental but a em- explanation not. habits” are Id. This is in ployer says give does not the test to keeping recognition EEOC’s in its (for example, disclose mental illness Psychiatric Enforcement Guidance on Dis- says employer it uses the test disclose not, abilities that or behaviors are “[t]raits habits). But, just tastes and the test themselves, impairments.” mental interpreted by psychologist, also is EEOC, Guidance Enforcement routinely is used in a setting clinical Americans with Act Psy- Disabilities and provide evidence that can be used to (1997), http://www. chiatric Disabilities (for diagnose mental example, health eeoc.gov/policy/docs/psych.html. whether an applicant has paranoid ten- dencies, is depressed). or Under these Thus, the EEOC instructs that to facts, this test is a medical examination. something determine whether constitutes a “medical EEOC, examination” one must consider Guidance: Preem- likely whether it is ployment Questions elicit information Disability-Related disability, about a providing Examinations, (1995), a basis for and Medical discriminatory treatment. The EEOC ex http://www.eeoc.gov/policy/docs/preemp. plains scenario, prohibiting inquiries such pre- explains, html. In this the EEOC parallel 9. prohibition preemployment pursuant There ais on "medical context to 42 U.S.C. 12112(d)(2). disability inquiries and examinations” in the applicants ination reflects whether intentions are which employer’s that an the fact identify- from fall- disability neutral does not save characteristics lead 12112(d)(4)(A)’s purview ing within the individual has excessive ing routinely' and administered anxiety, depression, compul- used and certain test (DSM-listed conditions). mental to uncover illness. psychologists sive disorders scenario that generalize from this canWe This test is medical. intentions employer’s purported

when predominant purpose mismatch employer the IFIB Example: gives An assessment, design particular of a test Personality (hypothetical), Test an ex- mental-health defects is uncover which designed and to reflect amination used disabilities, are intentions accord- those only likely to lie. applicant whether an is weight significance the anal- ed less test, This used employer, as following question The answer ysis. not a medical examination. EEOC further illus- provided set (alterations omitted). at Id. point: this trates employer give psychological ex- May in Karrak Seventh Circuit decision Rent-A-Center, Inc., applicants? aminations er F.3d 831 (7th Cir.2005), example useful of the particular depends on whether the That application guidance of the EEOC’s dir This medical. determi- examination Karraker, ectives.10 In the Seventh Cir would based on some of the nation above, as the cuit held that an evaluation administered purpose factors listed such in employ- employees seeking promotion the test and the intent Psychological ex- cluded Person giving Multiphasic the test. the Minnesota er (MMPI) they provide ality Inventory are if aminations constituted identifying lead to ADA be evidence would “medical examination” under the impairment, designed, disorder or listed “is at least in mental cause the MMPI Psychiatric Association’s the American mental and has the part, reveal illness Diagnostic most recent Statistical hurting employment prospects effect (DSM). Disorders Manual Mental disability.” of one a mental Id. reached this 837. The Seventh Circuit gives applicants An Example: employer of the fact that the em- spite an exam- decision (hypothetical), the RUOK Test exception, majority fied knowledge, Karraker is the most To our many analogous authority. present While there are utility limited to the these cases are of interpreting apply cases from this Circuit analysis. Authority cir- is scant from other "job-related” necessity” ing and "business well, cuits and most focus on the as cases relatively interpret exception, there few are meaning of "medical examination” ing "medical examination” in physical opposed context to mental- See, e.g., mental-health context. Prevo's See, Indergard, e.g., health evaluations. Inc., Mkt., 1093-94; Family Sulli 135 F.3d (holding physical-capacity F.3d at exam- Dist., Valley River 197 F.3d van v. Sch. required employee return to ination denied, (6th Cir.1999), cert. 530 U.S. 811-12 work leave a "medical ex- after medical was 2718, (2000) 120 S.Ct. 147 L.Ed.2d 983 amination”); Conroy, 333 at 95-96 F.3d implicitly (recognizing that mental and (holding requirement of a medical certificate fitness-for-duty fell physical examination diagnosis returning containing general before protections and "an within the ADA’s by the ADA’s “medical to work is covered employees to employer’s discretion to order provision); Griffin, F.3d at examination” unbounded”). hardly undergo examinations is disability (holding preemployment in- did not reach the Because the district court ADA). by quiries the covered were justi- question the was of whether in administering ing” “psychological” Ap- the nature. See ployer claimed to be stated, measuring Br. at 12-13. As solely purpose pellee previously MMPI for the of traits, summary judgment, the test on a motion for we personality was by a and that construe all facts in' of being psychologist, scored must favor using nonmoving which in employer only party, was “a vocational this instance is protocol” opposed scoring as to “a clinical Kroll. To the extent that the district court so, protocol.” Id. at to do decision in 836-37. The Seventh failed its was error.11 that a Circuit determined fact begin analysis, To our useful it is to “one high score the test could be of and lay— review definitions —both medical symptoms may several which contribute to “psy- to elucidate the common of diagnosis paranoid personality of disor- chological counseling.” The En- Oxford enough der” to conclude that the test glish Dictionary “counseling” defines categorized was “best as a medical exami- psychological psy- sense as “a form subject nation” to the ADA’s restrictions. chotherapy in adopts which counsellor (internal Id. omit- quotation marks permissive supportive and role en- ted). abling a client to solve her his or own (2d ed.1989). backdrop this legal problems.” With we consid- now Merriam Web- English Dictionary er Admittedly, Kroll’s claims. our task is defines “coun- ster’s from seling” distinct that undertaken the Sev- as “professional guidance of the enth by utilizing Circuit Karraker as the exact sub- individual meth- “counseling” stance of the Kroll especially collecting history ods case data, to structed attend remains and using techniques unclear of the per- various interview, in dispute parties. somewhat testing sonal and interests and Cy- alleges required ed.1995). that WLAA to “re- aptitudes.” Taber’s clopedic Dictionary psychological counseling” ceive “to see and defines Medical a mental health “counseling” counselor as condition to as providing “[t]he advice (Com- keeping employment.” guidance R. 1 a patient a health ¶¶ plaint addition, points professional” “psychological” and defines testimony from Binns in which he “[pertaining] study as of the mind in agreed that it fair say” would “be all its relationships, normal and abnor- (19 requested ed.2001). psy- that Kroll “see mal.” Dorland’s Medical Dictionary chologist to discuss issues related to her defines as “counseling” (Binns mental health.” Dep. information, advice, “provision of and sup- 60). WLAA admits that it Kroll port,” “psychology” instructed as branch “the “counseling” as of her condition science that with deals the mind and men- employment, continued but processes, contends tal especially in relation to hu- ed.2012).12 specify (32 WLAA did not that the “counsel- man and animal behavior.” Although initially the district court refers 12. Under this broad definition Dorland’s also provides psycholo- allegations relating definitions of "psycho- Kroll’s as "abnormal gy” study as "the (Dist. 5), mental logical counseling,” disorders Op. R. Ct. disturbances,” psychology” behavior "clinical opinion the remainder of the district court’s psychologic knowledge as "use of only "counseling” refers and the absence of techniques persons in the treatment of see, proof any “psychological testing,” e.g., mental, emotional, behavior, develop- Accordingly, id. at 8. it is unclear disorders,” psychology” mental and "social district court made this factual inference in "psychology that focuses on social interac- favor, Kroll’s as it have. should tion, ways on the in which actions others influence the behavior of an individual.” suggest that The definitions ambiguous. emerges precise or No clear counseling” “psychological sometimes Some definitions definitions. from these of and treatment diagnosis counseling” is used for the “psychological that suggest illness; recognizes ADA the the counselor mental passive, less more or are “psychologists” that stating in the individual’s much only as an aide serving profession- of “variety defi- health among Other the process. problem-solving own re- may provide coun- documentation however, nitions, “psychological [that] als tie ADA for impli- disabilities” psychology psychiatric garding of to the science seling” EEOC, Guid- and treatment diagnosis purposes. cating the with Disabilities Americans must con- on the Accordingly, we ance illness. mental (1997), and Disabilities by Kroll Psychiatric and Act presented the evidence sider test seven-factor the EEOC’s employ http://www.eeoc.gov/policy/docs/psych, could counseling jury However, reasonable psychological whether a determine html. counsel- “psychological targeted the always that be mental- conclude not need consti- to attend patients Kroll was instructed ing” diagnosis health —sometimes specifi- “medical examination” and counseling tutes psychological seek 12112(d)(4)(A). diag- that no mental-health cally request instance, based this nosis made. and factors one that clear both It Kroll, presented on the evidence interpretation two—administration that the could conclude jury reasonable in favor professional weigh a health-care — in- Kroll Kroll was counseling” “psychological designed type to attend was the structed ex- being a “medical instructed defect. a mental-health uncover alleged, Kroll specifically amination.” that it was con- dispute WLAA does conclusion, for support provided Binns de- suffering from Kroll cerned about coun- to attend instructed Kroll was that ideation, suicidal point to the pression, psychologist. seling administered deposition in his Binns stated psychologist of whether Regardless to the counsel- go he instructed facilitating passive, acted in would her related to issues “to ing discuss test-oriented, diagnostic role role, aor (Binns Dep. at mental health.” conclude jury could reasonable rea- for a are sufficient These facts minimum, have, at would psychologist that WLAA to conclude jury sonable the content interpretation some done counseling to Kroll to attend tended Kroll with to assist order de- affliction with possible explore indeed, reason this was the problems; im- a similar mental-health pression, that Kroll attend insisted why WLAA receive the she could so that pairment, we conclude Accordingly, counseling. treatment. corresponding appropriate factors find that jury could a reasonable defects of mental-health uncovering This concluding in favor of weigh one two precise is the direction employer’s counseling” “psychological 12112(d)(4)(A) designed to harm attend constituted was instructed job-relat- a demonstrated prevent absent examination.” “medical necessity. ed business three, argu- factor brings us to This six, five, four, to factors respect With analysis: in ably most critical information with seven, paucity counseling” “psychological whether application their to evaluate we have which a mental-health designed to reveal they decide makes difficult suggested, previously As impairment. concluding against weigh favor is somewhat in the abstract the answer REMAND for counseling proceedings that the instructed to consistent with was this opinion. attend constituted “medical examination” we speculate, under the ADA. Rather than SUTTON, Judge, dissenting. Circuit decline on these factors be- to comment majority every way I with the in agree ultimately dispositive none is to our cause require- I cannot that a one, agree but one: analysis. Upon considering factors psychological counseling ment obtain two, three, conclude particularly we a requirement amounts to to obtain a med- presented that Kroll has sufficient evi- ical examination. jury dence such that a reasonable could “psychological conclude that counsel- provision says: relevant The ing” Kroll was instructed to attend did entity require A covered not shall constitute a “medical examination” and shall not medical examination conclusion, the ADA. reach this consis- We inquiries employee make of an as to tent with reasoning of the Seventh employee whether such is an individual Circuit, because the coun- “psychological disability awith or as to the nature or seling” question likely probe was severity disability, unless such explore from a suffered inquiry examination or is shown to be disability, regardless mental-health job-related and consistent business whether this WLAA’s intention. See necessity.

Karraker, 837; 411 F.3d at see also 12112(d)(4)(A) (emphasis 42 U.S.C. add- Cochran, F.Supp. Barnes v. 904- ed). The words determinative are “re- (S.D.Fla.1996) (concluding preem examination,” quire” just and “medical ployment psychological evaluation consti “medical examination.” law bars a tuted a “medical examination” because the required medical examination—and that “nature and extent” the evaluation was Kroll, happen. emergen- did not When such that it “identifying tended towards technician, cy on-the-job showed (internal or impairment”) mental disorder over an distress affair with a married co- omitted). quotation Consequently, marks worker, principally through several out- we summary judgment hold that in favor work, her employer, bursts the White improper. of WLAA was Authority, Lake Ambulance understand- ably something tried to do about it. The recognize

We that even in- if Kroll’s however, employer, compel did not Kroll to struction undergo “psychological coun- take a medical It compelled examination. 12112(d)(4)(A) by § seling” governed her to obtain psychological counseling, al- ADA, may still WLAA be entitled to lowing to obtain it on her own terms summary if judgment counseling such any and with counselor she wished. The “job related” and consistent with “business had employer no interest the outcome of necessity.” Because the district court did counseling, any potential no interest question not decide this in the first no diagnosis, type interest in the of coun- stance, parties have not briefed received, seling she no interest in anything appeal. Accordingly, proper course is at all save she verification that obtained remand the case the district court for if going some form she was decision the first instance. providing continue EMT services for the III. CONCLUSION company. ambulance foregoing, definition, Based on the any compelled we VACATE By of the district granting compel court does not a medical examination. summary judgment guidelines recognize, in favor of and As the EEOC some amount to medical tests” “psychological Inc.; VENTURES, INC.; EEOC, RETAIL DSW

examinations, not. do others Warehouse, Disability Inc., Plaintiffs- Guidance: DSW Shoe —Re- Examina- and Medical Inquiries Appellees/Cross-Appellants, lated (“psychological Employees, tions of identify mental designed are tests impairment” are medical ex-

disorder FIRE NATIONAL INSURANCE UNION ams, tests measure “psychological but PITTSBURGH, PA., COMPANY OF honesty, prefer- traits such as personality Defendant-Appellant/Cross-Appellee. not). ences, No habits” are evidence 10-4576, 10-4608. Nos. Lake Ambulance insist- that White shows psychological counseling that Kroll’s ed of Appeals, United States Court No type of test or another. volve one Circuit. Sixth indeed, evidence, ambu- shows any insisted she submit to lance service July Argued: 2012. ma- counseling. The obtaining test while Filed: Aug. Decided and acknowledges point. the same As it jority re- psychological-counseling explains, treatments, range of covers a

quirement examinations,” including “medical

some Maj. Op. not. at 816.

some encompassed by

The breadth services requirement re- psychological-counseling Kroll, claim. it means that

solves this For company, destiny—

not the controlled in other words whether she

controlled included a

sought doubt, No or did not. she

examination by seeing

might requirement meet who used a

psychologist psychiatrist so, But, if that was

medical examination. choice, If a company’s. trying employee insists arrive

boss by eight morning, o’clockthe next

work employee opts if the

is not the boss’s fault requirement by staying over-

to meet it is here. Kroll

night office. So re- right meet this

had terms, on her own some of

quirement lead a medical examination

which could not. others of which would Because not “require” Lake Ambulance did

White examination,” I

Kroll to obtain “medical respectfully

must dissent.

Case Details

Case Name: Emily Kroll v. White Lake Ambulance Authority

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Aug 22, 2012

Citation: 691 F.3d 809

Docket Number: 10-2348

Court Abbreviation: 6th Cir.