KAREN NELSON MOORE, Circuit Judge.
Emily Kroll ("Kroll") appeals the district court's grant of summary judgment in favor of White Lake Ambulance Authority ("WLAA"), Kroll's former employer, on
In September 2003, Kroll began working for WLAA as an Emergency Medical Technician ("EMT") specialist. R. 1 (Complaint ¶ 6). Kroll was generally considered to be a "good EMT" and a "good employee" by her direct supervisor, Brian Binns ("Binns"). R. 50-15 (Binns Dep. at 66, 100). However, after Kroll became romantically involved with one of her co-workers at WLAA, Binns and the office manager, Jean Dresen ("Dresen"), received reports of concerns from WLAA employees about Kroll's well being. See, e.g., R. 50-12 (Dresen Dep. at 27); R. 50-11 (Callison Dep. at 6, 12, 14).
Kroll maintains that on April 21, 2008 Dresen "requested" that Kroll "receive psychological counseling."
A few days later on April 28, 2008, then-director of WLAA, Binns, met with Kroll and Kroll's father following a dispute between Kroll and another WLAA employee. R. 50-15 (Binns Dep. at 66); R. 1 (Complaint ¶ 10). Binns told Kroll that he had
On May 30, 2008, Kroll filed a sex-discrimination complaint with the Michigan Department of Civil Rights ("MDCR") and the Equal Employment Opportunity Commission ("EEOC"). R. 1 (Complaint ¶ 12). On February 23, 2009, Kroll filed another complaint with the EEOC alleging ADA violations. Id. ¶ 13. On April 1, 2009, the EEOC and MDCR issued Kroll a right-to-sue letter for her sex-discrimination complaints, id. ¶ 14, and, on June 26, 2009, the EEOC issued Kroll a right-to-sue letter with respect to her ADA claims, id. ¶ 15.
On July 9, 2009, Kroll filed a complaint in federal district court against WLAA alleging violations of the ADA and Title VII. Id. ¶ 16. Specifically, Kroll contended that WLAA's demand that Kroll attend counseling was in violation of 42 U.S.C. § 12112(d)(4) of the ADA (Count 1), that WLAA improperly fired Kroll in retaliation for her refusal to attend counseling (Count II), and that WLAA discriminated against Kroll on the basis of sex by requiring that she attend counseling (Count III).
On June 9, 2010, WLAA moved for summary judgment on all counts. R. 50 (Summary Judgment Mot.). In reply, Kroll stipulated to summary judgment on Count III, R. 51 (Summary Judgment Resp. at 1 n. 1), and did not present arguments in opposition to summary judgment on Count II, see id. On August 19, 2010, the district court granted WLAA's motion for summary judgment, concluding that "counseling alone does not constitute a medical examination under the ADA" and that, therefore, WLAA's requirement that Kroll attend counseling as a condition of continued employment was not governed by 42 U.S.C. § 12112(d)(4). R. 57 (Dist. Ct. Op. at 6).
Kroll filed a timely motion to alter or amend the judgment pursuant to Federal Rule of Civil Procedure 59(e).
"We review a district court's grant of summary judgment de novo." Green v. Throckmorton, 681 F.3d 853, 859 (6th Cir. 2012). Summary judgment is proper where "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R.Civ.P. 56(a). All "inferences to be drawn from the underlying facts must be viewed in the light most favorable to the party opposing the motion." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (internal quotation marks and alterations omitted). However, "[t]he mere existence of a scintilla of evidence in support of the non-moving party's position will be insufficient to defeat a motion for summary judgment; there must be evidence on which the jury could reasonably find for the non-moving party." Moldowan v. City of Warren, 578 F.3d 351, 374 (6th Cir.2009) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)) (internal quotation marks and alterations omitted), cert. denied, ___ U.S.___, 130 S.Ct. 3504, 177 L.Ed.2d 1114 (2010).
In this appeal WLAA asserts, for the first time, that Kroll lacks standing to bring her claim under the ADA because Kroll "never underwent the counseling" and therefore "cannot demonstrate any concrete injury." Appellee Br. at 31. Because standing is jurisdictional, we may address it at any point in the proceedings, including for the first time on appeal. Zurich Ins. Co. v. Logitrans, Inc., 297 F.3d 528, 531 (6th Cir.2002).
To satisfy Article III's standing requirements, a plaintiff must plead a concrete, particularized, and imminent injury in fact caused by the defendant that a favorable judicial outcome would likely remedy. See Smith v. Jefferson Cnty. Bd. of Sch. Comm'rs, 641 F.3d 197, 206 (6th Cir.) (en banc) (quoting Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000)), cert. denied, ___ U.S. ___, 132 S.Ct. 103, 181 L.Ed.2d 31 (2011). Standing to bring suit under 42 U.S.C. § 12112(d) is a somewhat contentious and confusing issue in the federal courts of appeals. See, e.g., Indergard v. Ga.-Pac. Corp., 582 F.3d 1049, 1056 n. 3 (9th Cir.2009) (criticizing dissent's suggested insertion of "a proximate-causation requirement in the context of § 12112(d)(4)(A)" standing). For example, courts have confused standing with the question whether a plaintiff must be disabled to bring suit under 42 U.S.C. § 12112(d), see, e.g., Conroy v. N.Y. State Dep't of Corr. Servs., 333 F.3d 88, 93-95 (2d Cir.2003), which goes to whether "an essential element of the claim can be established," not standing, see Griffin v. Steeltek, Inc., 160 F.3d 591, 593 (10th Cir. 1998) (internal quotation marks omitted), cert. denied, 526 U.S. 1065, 119 S.Ct. 1455, 143 L.Ed.2d 542 (1999).
The standing question at issue here is what harm, if any, a plaintiff must allege
It is an open question in the Sixth Circuit whether a violation of 42 U.S.C. § 12112(d), by itself, generates a cognizable harm for standing purposes; however, this case does not present occasion for us to answer it. Kroll has alleged an injury proximately caused by the violation of 42 U.S.C. § 12112(d): the termination of her employment. See Griffin, 160 F.3d at 595 (distinguishing Armstrong on ground that plaintiff "sufficiently alleged ... an injury in fact, specifically" that plaintiff was not hired as a result "of his responses to the impermissible questions"). Because we have the capacity to provide a remedy for this harm, the requirements of Article III standing are met. See Smith, 641 F.3d at 206.
The Fifth Circuit's decision in Armstrong, which WLAA urges us to apply, does not alter this result. In Armstrong, it was already the law of the case that the improper disability inquiry was not a proximate cause of the employer's decision not to hire the plaintiff. 141 F.3d at 560, 562; cf. Griffin, 160 F.3d at 595 (reaching conclusion opposite to Armstrong). There is no such precedent in this case, and Kroll makes a viable claim that her termination did proximately result from WLAA's instruction to attend counseling. In addition, Armstrong dealt with cognizable injury in the preemployment context, where an individual inherently has a weaker stake in the employment position. 141 F.3d at 556-57. Kroll alleges harm resulting from her termination after approximately four-and-a-half years of employment with WLAA. See Indergard, 582 F.3d at 1056 n. 3 (distinguishing Armstrong based on its preemployment context). Although Kroll was a part-time employee and did not receive full benefits, she maintains that she worked approximately 160 to 176 hours each two-week period. R. 53-4 (Kroll Dep. at 23-24). This suggests that her employment with WLAA was a significant part of her life and livelihood, and that she had a substantial interest in maintaining her employment with WLAA.
Based on the foregoing, we conclude that Kroll has pleaded a claim for which she has Article III standing. We, therefore, now consider whether the district court properly granted summary judgment in favor of WLAA.
The more difficult question presented in this appeal is whether the counseling that Kroll was instructed to attend constitutes a "medical examination" under 42 U.S.C. § 12112(d)(4)(A). The district
Title 42 U.S.C. § 12112(d)(4)(A) prohibits employers from "requir[ing] a medical examination" or "mak[ing] inquiries of an employee as to whether such employee is an individual with a disability... unless such examination or inquiry is shown to be job-related and consistent with business necessity."
The ADA's legislative history provides little insight into the intended meaning or scope of the term "medical examination" in § 12112(d)(4).
The EEOC Enforcement Guidance: Disability-Related Inquiries and Medical Examinations of Employees defines "medical examination" as "a procedure or test that seeks information about an individual's physical or mental impairments or health." R. 52-3 (EEOC, Enforcement Guidance: Disability-Related Inquiries
Id. at 6. The guidance further explains that "psychological tests that are designed to identify a mental disorder or impairment" are "medical examinations," while "psychological tests that measure personality traits such as honesty, preferences, and habits" are not. Id. This explanation is in keeping with the EEOC's recognition in its Enforcement Guidance on Psychiatric Disabilities that "[t]raits or behaviors are not, in themselves, mental impairments." EEOC, Enforcement Guidance on the Americans with Disabilities Act and Psychiatric Disabilities (1997), http://www.eeoc.gov/policy/docs/psych.html.
Thus, the EEOC instructs that to determine whether something constitutes a "medical examination" one must consider whether it is likely to elicit information about a disability, providing a basis for discriminatory treatment. The EEOC explains that prohibiting such inquiries prevents discrimination by precluding employers from obtaining information about "nonvisible disabilities, such as ... mental illness," and then taking adverse employment actions "despite [an individual's] ability to perform the job." R. 52-3 (EEOC, Enforcement Guidance: Disability-Related Inquiries and Medical Examinations of Employees, at 4). The importance of § 12112(d)(4)(A) in preventing discrimination is underscored by the fact that, in contrast to many other provisions of the ADA, all individuals — disabled or not — may bring suit in aid of its enforcement. See Lee, 636 F.3d at 252.
Examples provided by the EEOC suggest that an employer's intent is not dispositive as to whether something qualifies as a "medical examination" under the ADA. Instead, the employer's purpose must be considered in the larger factual context of a particular test or assessment's typical uses and purposes. Consider the following example provided by the EEOC in its Enforcement Guidance: Preemployment Disability-Related Questions and Medical Examinations:
EEOC, Enforcement Guidance: Preemployment Disability-Related Questions and Medical Examinations, at 14 (1995), http://www.eeoc.gov/policy/docs/preemp.html. In this scenario, the EEOC explains,
May an employer give psychological examinations to applicants?
Id. at 15-16 (alterations omitted).
The Seventh Circuit decision in Karraker v. Rent-A-Center, Inc., 411 F.3d 831 (7th Cir.2005), is a useful example of the application of the EEOC's guidance directives.
With this legal backdrop we now consider Kroll's claims. Admittedly, our task is distinct from that undertaken by the Seventh Circuit in Karraker as the exact substance of the "counseling" Kroll was instructed to attend remains unclear and somewhat in dispute by the parties. Kroll alleges that WLAA required her to "receive psychological counseling" and "to see a mental health counselor as a condition to keeping her employment." R. 1 (Complaint ¶¶ 8, 10). In addition, Kroll points to testimony from Binns in which he agreed that it would "be fair to say" that WLAA requested that Kroll "see a psychologist to discuss issues related to her mental health." R. 52-4 (Binns Dep. at 60). WLAA admits that it instructed Kroll to attend "counseling" as a condition of her continued employment, but contends that WLAA did not specify that the "counseling" be "psychological" in nature. See Appellee Br. at 12-13. As previously stated, on a motion for summary judgment, we must construe all facts in favor of the nonmoving party, which in this instance is Kroll. To the extent that the district court failed to do so, its decision was in error.
To begin our analysis, it is useful to review definitions — both medical and lay — to elucidate the common meaning of "psychological counseling." The OXFORD ENGLISH DICTIONARY defines "counseling" in the psychological sense as "a form of psychotherapy in which the counsellor adopts a permissive and supportive role in enabling a client to solve his or her own problems." (2d ed.1989). MERRIAM WEBSTER'S ENGLISH DICTIONARY defines "counseling" as "professional guidance of the individual by utilizing psychological methods especially in collecting case history data, using various techniques of the personal interview, and testing interests and aptitudes." (10th ed.1995). TABER'S CYCLOPEDIC MEDICAL DICTIONARY defines "counseling" as "[t]he providing of advice and guidance to a patient by a health professional" and defines "psychological" as "[pertaining] to the study of the mind in all of its relationships, normal and abnormal." (19 ed.2001). DORLAND'S MEDICAL DICTIONARY defines "counseling" as the "provision of information, advice, and support," and "psychology" as "the branch of science that deals with the mind and mental processes, especially in relation to human and animal behavior." (32 ed.2012).
It is clear that both factors one and two — administration and interpretation by a health-care professional — weigh in favor of the "psychological counseling" Kroll was instructed to attend being a "medical examination." Kroll specifically alleged, and Binns provided support for the conclusion, that Kroll was instructed to attend counseling administered by a psychologist. Regardless of whether the psychologist would have acted in a passive, facilitating role, or a test-oriented, diagnostic role a reasonable jury could conclude that the psychologist would have, at minimum, done some interpretation of the content of the counseling in order to assist Kroll with her problems; indeed, this was the reason why WLAA insisted that Kroll attend the counseling. Accordingly, we conclude that a reasonable jury could find that factors one and two weigh in favor of concluding that the "psychological counseling" Kroll was instructed to attend constituted a "medical examination."
This brings us to factor three, arguably the most critical in this analysis: whether the "psychological counseling" was designed to reveal a mental-health impairment. As previously suggested, the answer in the abstract is somewhat ambiguous. The definitions suggest that sometimes "psychological counseling" is used for the diagnosis and treatment of mental illness; the ADA recognizes as much in stating that "psychologists" are among the "variety of health professionals [that] may provide documentation regarding psychiatric disabilities" for ADA purposes. EEOC, Enforcement Guidance on the Americans with Disabilities Act and Psychiatric Disabilities (1997), http://www.eeoc.gov/policy/docs/psych.html. However, psychological counseling need not always be targeted to mental-health diagnosis — sometimes patients seek psychological counseling and specifically request that no mental-health diagnosis be made. In this instance, based on the evidence presented by Kroll, a reasonable jury could conclude that the psychological counseling Kroll was instructed to attend was the type designed to uncover a mental-health defect. WLAA does not dispute that it was concerned about Kroll suffering from depression, to the point of suicidal ideation, and Binns stated in his deposition that he instructed Kroll to go to the counseling "to discuss issues related to her mental health." R. 52-4 (Binns Dep. at 60). These facts are sufficient for a reasonable jury to conclude that WLAA intended for Kroll to attend counseling to explore her possible affliction with depression, or a similar mental-health impairment, so that she could receive the appropriate corresponding treatment. This uncovering of mental-health defects at an employer's direction is the precise harm that § 12112(d)(4)(A) is designed to prevent absent a demonstrated job-related business necessity.
With respect to factors four, five, six, and seven, the paucity of information with which we have to evaluate their application makes it difficult to decide whether they weigh in favor of or against concluding
We recognize that even if Kroll's instruction to undergo "psychological counseling" is governed by § 12112(d)(4)(A) of the ADA, WLAA may still be entitled to summary judgment if such counseling was "job related" and consistent with "business necessity." Because the district court did not decide this question in the first instance, the parties have not briefed it on appeal. Accordingly, the proper course is to remand the case to the district court for decision in the first instance.
Based on the foregoing, we
SUTTON, Circuit Judge, dissenting.
I agree with the majority in every way but one: I cannot agree that a requirement to obtain psychological counseling amounts to a requirement to obtain a medical examination.
The relevant provision says:
42 U.S.C. § 12112(d)(4)(A) (emphasis added). The determinative words are "require" and "medical examination," not just "medical examination." The law bars a required medical examination — and that did not happen. When Kroll, an emergency medical technician, showed on-the-job distress over an affair with a married co-worker, principally through several outbursts at work, her employer, the White Lake Ambulance Authority, understandably tried to do something about it. The employer, however, did not compel Kroll to take a medical examination. It compelled her to obtain psychological counseling, allowing her to obtain it on her own terms and with any counselor she wished. The employer had no interest in the outcome of the counseling, no interest in any potential diagnosis, no interest in the type of counseling she received, no interest in anything at all save verification that she obtained some form of counseling if she was going to continue providing EMT services for the ambulance company.
By any definition, compelled counseling does not compel a medical examination. As the EEOC guidelines recognize, some
The breadth of services encompassed by a psychological-counseling requirement resolves this claim. For it means that Kroll, not the company, controlled her destiny — controlled in other words whether she sought counseling that included a medical examination or did not. No doubt, she might meet this requirement by seeing a psychologist or psychiatrist who used a medical examination. But, if so, that was her choice, not the company's. If a trying boss insists that an employee arrive at work by eight o'clock the next morning, it is not the boss's fault if the employee opts to meet the requirement by staying overnight in the office. So it is here. Kroll had the right to meet this counseling requirement on her own terms, some of which could lead to a medical examination and others of which would not. Because White Lake Ambulance did not "require" Kroll to obtain a "medical examination," I must respectfully dissent.