HR 230-8 Assignment 2
EEOC v. Target Corp.
2006 U.S. App. LEXIS 21483 (7th Cir.)
OPINION BY CIRCUIT JUDGE CUDAHY:
* * * The EEOC charged that Target violated Title VII of the Civil Rights Act of 1964 by engaging in race discrimination against African-American applicants for managerial positions. The EEOC also alleged that Target violated the Act when it failed to make and preserve records relevant to the determination whether unlawful employment practices had been, or were being, committed. * * * [T]he district court … dismissed the action. The EEOC now appeals. We reverse and remand for further proceedings.
Target Corporation is headquartered in Minneapolis, Minnesota. One of its retail divisions is Target, a discount chain of more than 1,100 stores nationwide. * * * This case involves District 110 [which] is made up of … stores in the Madison, Milwaukee, and Waukesha, Wisconsin metropolitan areas. Each district is managed by a District Team Leader, and each store is managed by a Store Team Leader (STL), who is assisted by Executive Team Leaders (ETLs). Each ETL is responsible for a different area of store operation. * * *
This case involves a group of individuals who claim that they were not hired in Target’s ETL hiring process because of their race. * * * The claims of Kalisha White, Ralpheal Edgeston and Cherise Brown-Easley involve their contact with STL Matthew Armiger. Before February of 2001, District 110 had a district recruiter. When the district recruiter position was eliminated, STL Richard Walters, who was temporarily assigned recruiting duties, asked fellow STL Armiger for help with those duties. At that time, Armiger was managing a newly-opened and short-staffed Target store in New Berlin, Wisconsin. Walters and Armiger initially shared the recruiting duties equally, but later Armiger’s duties were scaled back. Armiger testified that he believed his recruiting duties were secondary to his management of the store.
1. Kalisha White
Kalisha White, an African-American who attended Marquette University, emailed Target her resume for an ETL position on February 20, 2001, while she was still a student at Marquette. White’s resume indicated that she was a member of Alpha Kappa Alpha, an African-American sorority. Armiger e-mailed White and asked her to call to set up an interview. White called at least twice, but each time she spoke with Armiger he said he was too busy to schedule an interview.
White became suspicious of Armiger and decided to conduct an experiment to determine if he had discriminated against her because of her race. Thus, on May 9, 2001, she submitted a resume to Armiger under a fictitious name, “Sarah Brucker.” White used her own telephone number, and gave Brucker a Brookfield, Wisconsin, address. She believed the address was located in a predominantly Caucasian neighborhood. Armiger testified that White had a stronger resume than Brucker because White was pursuing an MBA degree, while Brucker was not. On May 10, 2001, Armiger emailed and called Brucker, asking her to return his call. White had a Caucasian acquaintance call Armiger and pretend to be Sarah Brucker. Armiger scheduled an interview with Brucker during their conversation. White testified that she called Armiger soon after Brucker’s conversation with him, but he said that he was too busy to schedule an interview with her.
2. Ralpheal Edgeston
Ralpheal Edgeston received an email from Armiger on March 2, 2001, in which Armiger asked her to call and schedule an interview. Edgeston, an African-American student at Marquette University, had submitted her resume to Target for an ETL position at a multicultural job fair held at the University of Wisconsin–Milwaukee in the previous month. Edgeston’s resume indicated that one of her college majors was African-American studies and, like Kalisha White’s resume, that she was a member of the Alpha Kappa Alpha sorority, which Armiger testified to knowing was an African-American sorority. Additionally, her resume listed that she was a member of the National Association for the Advancement of Colored People (NAACP). Edgeston called Armiger and scheduled a phone interview for March 4, 2001; however, Armiger did not call Edgeston at the appointed time and did not return her calls after that date. Target never scheduled another interview with Edgeston.
3. Cherise Brown-Easley
Class member Cherise Brown-Easley, an African-American, also submitted her resume to Target at the University of Wisconsin–Milwaukee multicultural job fair in February 2001. Brown-Easley’s resume indicated that she was a member of the “Metropolitan Alliance of Black School Educators.” Brown-Easley received an email from Armiger requesting that she call Armiger to schedule an interview. She called Armiger and scheduled an interview for March 4, 2001. Armiger did not contact Brown-Easley at the appointed time. Instead, Brown-Easley called Armiger a half hour after the interview time, and after being informed that he had left for the day, she left a message for him. The following day, she left another message for Armiger, but she never heard back from him.
During the week that Armiger failed to contact Edgeston and Brown-Easley, he was scheduled to interview nine ETL applicants. In addition to Edgeston and Brown-Easley, Armiger also failed to contact two Caucasian applicants. However, Target later interviewed at least one of the two Caucasian applicants, but Edgeston and Brown-Easley were never interviewed. Armiger testified that he did not know the race of White, Edgeston, or Brown-Easley during the recruiting process. Armiger could not recall reviewing White or Brown-Easley’s resumes. He also claimed he did not study Edgeston’s resume closely enough to determine her race.
D. Target’s Record Retention
Also at issue in this appeal is Target’s practice of employment record retention. * * * Armiger admitted to throwing out the resumes of applicants he deemed unqualified, including those of White, Edgeston and Brown-Easley, rather than retaining them as required by law and by Target’s document retention policy. Armiger claims he threw out the resumes to protect the applicants’ privacy.
In an effort to comply with the EEOC’s document retention requirement, Target currently uses Brass Ring, a nationwide employment recruitment website, to store applicant documents, including: copies of applicants’ resumes, applicants’ … test results and completed … interview forms. Target recruiters who receive the resumes submit them to Brass Ring and make copies of the resumes of the candidates they plan to interview. * * * Target also has several policies to ensure that job applications and related documents are retained for the required time. Target uses its corporate intranet and email messages to share its record retention policies with STLs. The human resource managers meet biannually to audit each Target store, to conduct training and to remind employees of the record retention policy. The human resource managers instruct on-campus recruiters to retain all resumes, applications and interview guides and notes, and to route the documents to the national headquarters. Finally, the ETL for Team Relations is responsible for ensuring that the record keeping policy is being followed at each Target store.
The success of Target’s record retention program through Brass Ring has been disputed. There is some indication that all employees are not following the program. As discussed above, STL Armiger threw out resumes that he should have retained. Additionally, … [an] administrative assistant testified in June of 2003 that she does not send applicant documents to Brass Ring, but instead she retains them herself for the required time. * * * While Target’s policy does not include a provision to ensure that relevant documents are retained from the time a discrimination charge is filed until that case is fully concluded, Target claims to address this requirement on a case by case basis, notifying employees to retain documents when a charge arises. * * *
A. Record Retention
Under Title VII, employers are required to “make and keep such records relevant to the determinations of whether unlawful employment practices have been or are being committed.” The EEOC’s record keeping regulations require that employers retain applications and other documents related to hiring for one year. Additionally, if a charge of discrimination has been filed, an employer is required to retain all relevant personnel records until the final disposition of the charge. * * *
While we agree that Target has put forth evidence that it has revised its record retention policies in an effort to comply with Title VII, we do not agree that such changes ensure “on [their] face” that Target will not commit further violations. The reforms chosen do not address the particular problems that allowed violations to occur. Individual recruiters and administrative personnel destroyed records that were supposed to be retained because they did not know that they must retain them. * * *
Nothing in Target’s new record keeping policy clearly prevents bad faith destruction of resumes or other employment application documents. Target’s new policy involves reiterating its procedures for retaining documents to its store managers and recruiters and outsourcing the physical storage of employment documents. Similar to Target’s document retention polices prior to 2001, Target depends greatly on the diligence of the company’s recruiters and its managerial personnel to ensure that resumes, applications and interview guides are retained because these personnel must forward the original documents to Brass Ring. Target has not claimed that it has adopted a system of penalties for failure to forward documents or in any other way provided new incentives to ensure compliance with the EEOC’s record keeping requirements.
Because these genuine issues of fact bear on whether Target’s new record retention policy is sufficient to prevent future violations of federal law, Target’s motion for summary judgment on this issue should not have been granted. * * *
B. Title VII Disparate Treatment Claims
* * * The parties do not dispute that the EEOC established a prima facie case of disparate treatment.… * * * [T]he district court [found] that Target presented a legitimate, nondiscriminatory reason to explain why White, Edgeston and Brown-Easley were not interviewed for ETL positions. Store Team Leader Matthew Armiger’s burdensome workload … caused him to fail in several of his recruitment duties, including failure to conduct interviews when they were scheduled. The EEOC did not contest this finding; therefore step two of the McDonnell Douglas test is satisfied and the burden shifts back to the EEOC.
In step three of the McDonnell Douglas test, a plaintiff must show that the defendant’s nondiscriminatory reason for rejecting the applicant is a pretext meant to hide a discriminatory motive. * * * [W]e find that the EEOC did present sufficient evidence to establish a genuine issue of material fact as to whether Target’s reason for not interviewing White, Edgeston and Brown-Easley was a pretext for race discrimination. First, Target argued that Armiger could not have discriminated against White, Edgeston and Brown-Easley because he did not know their race. However, * * * [t] he EEOC showed that each applicant’s resume contained information that suggested she might be African-American. White’s resume indicated that she was a member of Alpha Kappa Alpha sorority, and Armiger testified that he knew this to be an African-American sorority. Edgeston’s resume showed that she also was a member of Alpha Kappa Alpha sorority, that she majored in African-American studies, that she wrote a paper titled The African-American Response to School Choice in Milwaukee and that she was a member of the NAACP. Finally, Brown-Easley’s resume indicated that she was a member of the “Metropolitan Alliance of Black School Educators.” Armiger testified that he typically looked at sorority involvement and extracurricular activities when he reviewed resumes, and that he reviewed White and Edgeston’s resumes. In addition, Armiger was in charge of recruiting at University of Wisconsin–Milwaukee, and Edgeston and Brown-Easley’s resumes were collected from a multicultural career fair at that school.
Additionally, Armiger claims that he failed to interview White because he was “too busy” with his management duties when she called. He claims that he often told applicants that he was too busy to speak to them if they called while he was on the sales floor, and that he did not keep a record of who called. However, fifteen minutes after White called Armiger, Armiger took a call from the fictitious Caucasian applicant, “Sarah Brucker,” and scheduled an interview with her. “Brucker” was less qualified than White because White was pursuing an MBA degree but “Brucker” was not, and Armiger recalled seeing in White’s resume that she was pursuing this MBA. These facts support a reasonable inference that Armiger’s busy schedule was (a) not his actual motivation; or (b) an insufficient reason for failing to interview White, Edgeston and Brown-Easley. * * *
Target claims that Armiger would not have had White’s resume in front of him when she called to set up an interview and he said he was too busy to do so, and he therefore would not have known her race. However, the EEOC presented expert testimony indicating that some people can determine a speaker’s race based on his or her voice or name. Dr. Thomas Purnell, a linguistics professor, researched racially affiliated dialects and telephone filtered speech. Purnell had White, Edgeston and Brown-Easley read statements to him over the telephone that were similar to those they made to Armiger. He testified that the three women were discernible as African American. Dr. Marianne Bertrand, an economics professor, testified that some corporate recruiters can identify a person’s race based on his or her name. Bertrand’s study compared job applicants with Caucasian names, such as Sarah, versus applicants with African American names, such as Lakisha. Bertrand noted that White’s first name, Kalisha, is very similar to the name Lakisha that was used in her study. The expert testimony of Purnell and Bertrand might persuade a reasonable fact finder that, at the time of the phone calls, Armiger at least suspected that White was African American and that “Brucker” was Caucasian. * * *
This expert evidence likewise could lead a fact finder to conclude that Armiger knew Edgeston and Brown-Easley’s race because each of these applicants left at least one message for Armiger after he failed to call at their scheduled interview time. Armiger had set up interviews for March 4 and 6, 2001. He was supposed to interview nine ETL candidates over those two days, including Edgeston and Brown-Easley. * * * The Caucasian candidate was interviewed later by another Target official. Edgeston and Brown-Easley were never interviewed. * * * [A] reasonable fact finder could conclude that contrary to Target’s assertion and Armiger’s testimony, Armiger did know the race of the applicants at the time he chose not to interview them.
Finally, Target also argues that if Armiger had intended to discriminate against Edgeston and Brown-Easley he would not have contacted them to set up an interview, and that because Armiger did set up the interview it makes sense to assume that he would not miss it for a discriminatory reason. The EEOC claims that Armiger did not choose to interview Edgeston and Brown-Easley, but instead only followed up on the recommendations of his predecessor and of career fair recruiters. This Court need not address the contours of each side’s logic on this point any further than to conclude that there is a dispute over when and with how much care Armiger reviewed Edgeston and Brown-Easley’s resumes and who actually decided to interview the individuals. * * * [T]he EEOC has presented a genuine issue of fact as to whether Armiger was truly the decision maker that elected to interview Edgeston and Brown-Easley.
[W]e conclude that there is a genuine issue of material fact as to whether Target’s proffered reason that Armiger was too busy to interview White, Edgeston and Brown-Easley was a pretext for discriminatory action based on race. Therefore, summary judgment was improper for these applicants’ individual claims. * * *
CASE QUESTIONS
1.
What were the legal issues in this case? What did the appeals court decide?
2.
What are the obligations of employers regarding the retention of records related to recruiting? What problems does the court identify with Target’s record-retention practices?
3.
What is the evidence that the store team leader Armiger was aware of the race of the applicants? That race was a factor in the applicants not receiving interviews?
4.
What changes would you recommend to Target’s recruiting and hiring practices? What should the role of store managers be?
Kroll v. White Lake Ambulance Authority
691 F.3d 809 (6th Cir. 2012)
OPINION BY CIRCUIT JUDGE MOORE:
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 claims under the Americans with Disabilities Act (“ADA”). Kroll argues that the district court erred in holding as a matter of law that the counseling WLAA ordered Kroll to attend does not constitute a “medical examination” under [the ADA]. * * *This dispute presents an issue of first impression in the Sixth Circuit as to the meaning of “medical examination” under [the ADA]. For the reasons that follow, we VACATE the judgment of the district court and REMAND for further proceedings consistent with this opinion.
* * * In September 2003, Kroll began working for WLAA as an Emergency Medical Technician (“EMT”) specialist. Kroll was generally considered to be a “good EMT” and a “good employee” by her direct supervisor, Brian Binns (“Binns”). 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 [sic].
Kroll maintains that on April 21, 2008 Dresen “requested” that Kroll “receive psychological counseling.” Dresen informed Kroll that she had spoken with … an administrative case manager … and that [he] had referred Dresen to Mark Graves (“Graves”) regarding the availability of counseling. Dresen testified that she did not know Graves’s title or whether he was a mental-health professional. Dresen told Kroll that she should contact the Red Cross regarding financial assistance for counseling, and also requested that Kroll authorize the release of her counseling records so that WLAA could monitor her attendance. Dresen stated that Kroll was receptive to the idea of counseling and informed Dresen that she would pursue it “right away.” Kroll, on the other hand, testified that Dresen instructed her to seek counseling from Kim Jahn (“Jahn”), but that Kroll was not amenable because Jahn “was a neighbor and friend of” Dresen and Kroll had heard negative things about Jahn. There was no testimony as to Jahn’s profession or qualifications.
A few days later on April 28, 2008, … Binns[] met with Kroll and Kroll’s father following a dispute between Kroll and another WLAA employee. Binns told Kroll that he had received a “complaint in regards to [Kroll] screaming at a male acquaintance [on the phone] … while … driving a vehicle loaded with a patient … [in] emergency status with lights and sirens.” Because Binns was concerned about Kroll’s ability to perform her job safely, he told Kroll that she must attend counseling in order to continue working at WLAA. Binns testified that he didn’t “think” that he “used the term ‘psychological’” in describing the counseling that he asked Kroll to attend. However, when asked whether it would “be fair to say” that Binns requested that Kroll “see a psychologist to discuss issues related to her mental health,” Binns responded affirmatively. Kroll told Binns that she would not attend the counseling, left the meeting, and did not return to work at WLAA. At her deposition, Kroll testified that because WLAA told her that she would have to pay for the counseling out of pocket, she “told them [she] did not have the monetary funds to seek counseling,” although she would have been willing to attend the counseling if it was provided to her free of charge.
* * * The … question presented in this appeal is whether the counseling that Kroll was instructed to attend constitutes a “medical examination” under [the ADA]. The district court concluded that it does not and, as a result, granted WLAA’s motion for summary judgment. The district court reached this conclusion by determining categorically that “counseling alone does not constitute a medical examination under the ADA.” Construing the facts in the light most favorable to Kroll, we conclude that this decision was in error for the reasons that follow.
[The ADA] 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.” Thus, employees can be instructed to undergo medical examinations by employers only “in certain limited circumstances,” confined by the “job-relatedness” and “business necessity” requirements. The EEOC has explained that this restriction “reflect[s] Congress’s intent to protect the rights of applicants and employees to be assessed on merit alone, while protecting the rights of employers to ensure that individuals in the workplace can efficiently perform the essential functions of their jobs.” In essence, the restriction strikes a balance between competing interests.
* * *The EEOC … defines “medical examination” as “a procedure or test that seeks information about an individual’s physical or mental impairments or health.” It provides a seven-factor test for analyzing whether a test or procedure qualifies as a “medical examination” and notes that “one factor may be enough to determine that a test or procedure is medical”:
(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 impairment or physical or mental health;
(4) whether the test is invasive;
(5) whether the test measures an employee’s performance of a task or measures his/her physiological responses to performing the task;
(6) whether the test normally is given in a medical setting; and,
(7) whether medical equipment is used.
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. This explanation is in keeping with the EEOC’s recognition … that “[t]raits or behaviors are not, in themselves, mental impairments.”
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.” The importance of [this section of the ADA] 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.
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 …:
A psychological test is designed to reveal mental illness, but a particular employer says it does not give the test to disclose mental illness (for example, the employer says it uses the test to disclose just tastes and habits). But, the test also is interpreted by a psychologist, and is routinely used in a clinical setting to provide evidence that can be used to diagnose mental health (for example, whether an applicant has paranoid tendencies, or is depressed). Under these facts, this test is a medical examination.
* * * We can generalize from this scenario that when an employer’s purported intentions mismatch the predominant purpose and design of a particular test or assessment, which is to uncover mental-health defects or disabilities, those intentions are accorded less weight and significance in the analysis.
The Seventh Circuit decision in Karraker v. Rent-A-Center is a useful example of the application of the EEOC’s guidance directives. In Karraker, the Seventh Circuit held that an evaluation administered to employees seeking a promotion that included the Minnesota Multiphasic Personality Inventory (MMPI) constituted a “medical examination” under the ADA because the MMPI “is designed, at least in part, to reveal mental illness and has the effect of hurting the employment prospects of one with a mental disability.” The Seventh Circuit reached this decision in spite of the fact that the employer claimed to be administering the MMPI solely for the purpose of measuring personality traits, that the test was not being scored by a psychologist, and that the employer was only using “a vocational scoring protocol” as opposed to “a clinical protocol.” The Seventh Circuit determined that the fact that a high score on the test could be “one of several symptoms which may contribute to a diagnosis of paranoid personality disorder” was enough to conclude that the test was “best categorized as a medical examination” subject to the ADA’s restrictions.
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.” 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.” 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. * * *
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.” 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.” 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.” 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.”
No clear or precise meaning emerges from these definitions. Some definitions suggest that “psychological counseling” is more or less passive, with the counselor serving only as an aide in the individual’s own problem-solving process. Other definitions, however, tie “psychological counseling” to the science of psychology implicating the diagnosis and treatment of mental illness. Accordingly, we must consider the evidence presented by Kroll and employ the EEOC’s seven-factor test to determine whether a reasonable jury could conclude that the “psychological counseling” Kroll was instructed to attend constitutes a “medical examination” ….
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. 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.” 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 [the ADA] 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 that the counseling Kroll was instructed to attend constituted a “medical examination” under the ADA. Rather than speculate, we decline to comment on these factors because ultimately none is dispositive to our analysis. Upon considering factors one, two, and particularly three, we conclude that Kroll has presented sufficient evidence such that a reasonable jury could conclude that the “psychological counseling” Kroll was instructed to attend did constitute a “medical examination” under the ADA. We reach this conclusion, consistent with the reasoning of the Seventh Circuit, because the “psychological counseling” in question was likely to probe and explore whether Kroll suffered from a mental-health disability, regardless of whether this was WLAA’s intention.
We recognize that even if Kroll’s instruction to undergo “psychological counseling” is governed by [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. * * *
Dissent by Circuit Judge Sutton:
* * * I cannot agree that a requirement to obtain psychological counseling amounts to a requirement to obtain a medical examination.
The relevant provision says:
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.
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 obtain 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. * * * 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.
CASE QUESTIONS
1.
What was the legal issue in this case? What did the appeals court decide?
2.
What factors does the EEOC use to determine whether a procedure constitutes a “medical examination” under the ADA? How does the appeals court apply these factors in this case?
3.
Why does it matter whether the “psychological counseling” that the plaintiff was ordered to undergo was a medical examination? On remand, do you think that the counseling will be found to be job-related and consistent with business necessity? Why or why not?
4.
What is Justice Sutton’s argument in his dissenting opinion? Are you more persuaded by the majority opinion or the dissenting opinion? Why?
5.
What are some practical implications of this decision for employers dealing with employees who appear to be having emotional or behavioral problems?
Lewis v. Heartland Inns of America
591 F.3d 1033 (8th Cir. 2010)
OPINION BY CIRCUIT JUDGE MURPHY:
Alleging that she lost a job she had done well, solely because of unlawful sex stereotyping, Brenna Lewis brought this action for sex discrimination and retaliation against her former employer Heartland Inns of America.… The district court granted summary judgment to Heartland. We reverse and remand.
* * * Heartland Inns operates a group of hotels, primarily in Iowa. Brenna Lewis began work for Heartland in July 2005.… She started as the night auditor at Heartland’s Waterloo Crossroads location; at that job she worked at the front desk from 11:00 p.m. to 7:00 a.m. There were also two other shifts for “guest service representatives”: the A shift from 7:00 a.m. to 3:00 p.m. and the B shift from 3:00 p.m. to 11:00 p.m. Lewis’ manager at Waterloo Crossroads, Linda Gowdy, testified that Lewis “did her job well” and that she had requested a pay raise for her. Heartland recorded two merit-based pay raises for Lewis. The record also indicates that Gowdy received a customer comment praising Lewis.
On or about December 7, 2006, Lewis began working various part time front desk shifts at Heartland Inns located near Des Moines, including at Ankeny and Altoona. At both locations she was valued by her direct supervisors. Her manager at the Altoona hotel, Jennifer Headington, testified that Lewis “made a good impression[.]” She offered her a full time night auditor position after receiving telephone permission from Barbara Cullinan, Heartland’s Director of Operations. Lori Stifel, Lewis’ manager at the Ankeny hotel, testified in her deposition that Lewis did a “great job” in Ankeny, “fit into the [front desk] position really well” and was well liked by customers. Stifel received permission over the phone from Cullinan on December 15 to offer Lewis a full time A shift position. Neither Headington nor Stifel conducted an interview of Lewis before extending their offers, and the record does not reflect that Cullinan ever told them a subsequent interview would be necessary. Lewis accepted the offer for the A shift at Ankeny and began training with her predecessor, Morgan Hammer. At the end of December 2006 Lewis took over the job.
Lewis’ positive experience at Heartland changed only after Barbara Cullinan saw her working at the Ankeny desk. * * * She had approved the hiring of Lewis for the Ankeny A shift after receiving Stifel’s positive recommendation. After seeing Lewis, however, Cullinan told Stifel that she was not sure Lewis was a “good fit” for the front desk. Cullinan called Stifel a few days later and again raised the subject of Lewis’ appearance. Lewis describes her own appearance as “slightly more masculine,” and Stifel has characterized it as “an Ellen DeGeneres kind of look.” Lewis prefers to wear loose fitting clothing, including men’s button down shirts and slacks. She avoids makeup and wore her hair short at the time. Lewis has been mistaken for a male and referred to as “tomboyish.”
Cullinan told Stifel that Heartland “took two steps back” when Lewis replaced Morgan Hammer who has been described as dressing in a more stereotypical feminine manner. As Cullinan expressed it, Lewis lacked the “Midwestern girl look.” Cullinan was heard to boast about the appearance of women staff members and had indicated that Heartland staff should be “pretty,” a quality she considered especially important for women working at the front desk. Cullinan also had advised a hotel manager not to hire a particular applicant because she was not pretty enough. The front desk job description in Heartland’s personnel manual does not mention appearance. It states only that a guest service representative “[c]reates a warm, inviting atmosphere” and performs tasks such as relaying information and receiving reservations.
… Cullinan ordered Stifel to move Lewis back to the overnight shift. Stifel refused because Lewis had been doing “a phenomenal job at the front desk[.]” The following week, on January 9, 2007, Cullinan insisted that Lori Stifel resign. Around this time, Heartland informed its general managers that hiring for the front desk position would require a second interview. Video equipment was also purchased to enable Cullinan or Kristi Nosbisch, Heartland’s Human Resource Director, to see an applicant before extending any offer. * * *
Cullinan met with Brenna Lewis on January 23, 2007. At this point Lewis had held the front desk job for nearly a month after Cullinan’s initial approval of her hire for the position. The record contains no evidence of any customer dissatisfaction with Lewis or her service. Nevertheless, Cullinan told Lewis at the meeting that she would need a second interview in order to “confirm/endorse” her A shift position. Lewis was aware from Lori Stifel of what had been said about her appearance, and she protested that other staff members had not been required to have second interviews for the job. Lewis told Cullinan that she believed a second interview was being required only because she lacked the “Midwestern girl look.” She questioned whether the interview was lawful, and she cried throughout the meeting.
Cullinan wanted to know who had told Lewis about the comment and asked whether it was Lori Stifel. Thereafter Cullinan talked about the need for new managers when revenue is down like in Ankeny, where Stifel was the manager. Lewis responded that recent policy changes by Heartland, including bans on smoking and on pets, might explain the loss in revenue. Cullinan then encouraged Lewis to share more of her views about the new policies and took notes on what she said. Three days later, Lewis was fired.
Lewis does not challenge Heartland’s official dress code, which imposes comparable standards of professional appearance on male and female staff members, and her termination letter did not cite any violation of its dress code. The theory of her case is that the evidence shows Heartland enforced a de facto requirement that a female employee conform to gender stereotypes in order to work the A shift. There was no such requirement in the company’s written policies. In its termination letter to Lewis, Heartland asserted that she had “thwart[ed] the proposed interview procedure” and exhibited “host[ility] toward Heartland’s most recent policies[.]” * * * Lewis asserts that Heartland terminated her for not conforming to sex stereotypes and contends that this conduct violated Title VII of the Civil Rights Act and the Iowa Civil Rights Act.
* * * Among the authorities relied on by Lewis is Price Waterhouse v. Hopkins, where the Supreme Court decided that sex stereotyping can violate Title VII when it influences employment decisions. * * * In Price Waterhouse, where a female senior manager was denied partnership, partners involved in their decision had referred to her as “macho” and in need of “a course at charm school[.]” She was advised that to become a partner she should “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.” Such stereotypical attitudes violate Title VII if they lead to an adverse employment decision. * * * Like the plaintiff in Price Waterhouse, Lewis alleges that her employer found her unsuited for her job not because of her qualifications or her performance on the job, but because her appearance did not comport with its preferred feminine stereotype.
Other circuits have upheld Title VII claims based on sex stereotyping subsequent to Price Waterhouse. * * * The Sixth Circuit’s Smith case concerned a firefighter who was born male but subsequently came to identify as a woman. When he began “to express a more feminine appearance” at work, he was told by colleagues that he was not “masculine enough[.]” His superiors then “devise[d] a plan” to terminate him, including an order that he submit to multiple psychological evaluations. If he did not consent, “they could terminate Smith’s employment on the ground of insubordination.” Lewis similarly alleges that Heartland imposed a second interview and then used her objection to it against her when its real reason for terminating her was because she lacked the “Midwestern girl look” and was not pretty enough to satisfy Cullinan. As the Sixth Circuit concluded in Smith, an adverse employment decision based on “gender nonconforming behavior and appearance” is impermissible under Price Waterhouse. Likewise, in Chadwick, the First Circuit found a decision maker’s explanation why the plaintiff had not received a promotion evidence that the decision was motivated by an illegal sex stereotype that women would prioritize child care responsibilities over paid employment (with four young children she had “too much on her plate”). The Second Circuit similarly concluded in Back that the statement that a mother who received tenure “would not show the same level of commitment [she] had shown because [she] had little ones at home” showed discriminatory intent in the tenure decision. The Seventh Circuit found remarks characterizing conduct of a woman employee as “you’re being a blond[e] again today” probative of sex discrimination.… * * *
The district court recognized that sex stereotyping comments may be evidence of discrimination. The focus of its decision was the mistaken view that a Title VII plaintiff must produce evidence that she was treated differently than similarly situated males. Our court has explicitly rejected that premise. * * * Courts “consistently emphasize[] that the ultimate issue is the reasons for the individual plaintiff ’s treatment, not the relative treatment of different groups within the workplace.” * * * Comparative evidence is certainly not the “exclusive means by which a plaintiff may establish an inference of discrimination.” * * * The Supreme Court has stated that “[t]he critical issue” in a sex discrimination case is “whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.” * * * “[A]n employer who discriminates against women because, for instance, they do not wear dresses or makeup, is engaging in sex discrimination because the discrimination would not occur but for the victim’s sex.” * * * Lewis need only offer evidence that she was discriminated against because of her sex. The question is whether Cullinan’s requirements that Lewis be “pretty” and have the “Midwestern girl look” were because she is a woman. A reasonable fact finder could find that they were since the terms by their nature apply only to women.
We recognize that “[r]emarks at work that are based on sex stereotypes do not inevitably prove that gender played a part in a particular employment decision. The plaintiff must show that the employer actually relied on her gender in making its decision.” Lewis met this burden at the summary judgment stage. * * * Cullinan was a primary decision maker with authority to hire and fire employees. While several individuals also took part in the decision to terminate Lewis, they relied on Cullinan’s description of her January 23, 2007 conversation with Lewis. Cullinan consistently indicated that female front desk workers must be “pretty,” and she criticized Lewis’s lack of the “Midwestern girl look” in the same conversation in which she ordered Stifel to move Lewis back to the night audit. Cullinan authorized Stifel to hire Lewis over the phone, but demanded a “confirm/endorse” interview once she saw Lewis’s “tomboyish” appearance. * * *
Evidence that Heartland’s reason for the termination were pretextual include the fact that Lewis had a history of good performance at Heartland. She had no prior disciplinary record and had received two merit based pay raises. The two individuals who supervised her during the majority of her employment at Heartland both stated that they had no problem with her appearance, and at least one customer had never seen customer service like that Lewis had provided. * * * [A] reasonable fact finder could disbelieve Heartland’s proffered reason for terminating Lewis. Heartland asserts that it fired Lewis because of the January 23 meeting when Cullinan informed her that she would need to submit to a second interview. Lewis and Cullinan, the only two individuals in the room, portray the encounter in starkly different terms. On summary judgment we must construe the conversation in the light most favorable to Lewis, however. Lewis denies that she expressed hostility to Heartland’s policies or spoke in a disrespectful way or took an argumentative stance or refused to participate in a second interview. It is also relevant that the meeting occurred after Cullinan had given Stifel the understanding that “[Lewis’] appearance … was not what [she] wanted on the front desk” and after Stifel had shared that discussion with Lewis.
Shortly after Cullinan’s conversation with Stifel about Lewis’ appearance, Heartland procured video equipment so that Cullinan or Nosbisch could inspect a front desk applicant’s look before any hiring. Heartland’s termination letter to Lewis only relied on the January 23 meeting she had with Cullinan. Only later did Heartland allege poor job performance would justify her termination. Lewis asserts further that Heartland did not follow its own written termination procedure, which includes assessing the employee’s previous disciplinary record (Lewis had none) and conducting an investigation before making the termination decision. Kristi Nosbisch, Heartland’s equal employment officer responsible for directing investigations of employment discrimination, knew that Lewis had complained that Cullinan’s requirements were illegal, but she nonetheless relied on Cullinan’s account of their meeting without asking Lewis for her own.
* * * We turn next to Lewis’ retaliation claim. * * * Lewis went into the January 23 meeting with Cullinan after learning about the “Midwestern girl look” comment. Lewis had already held her job for nearly a month and understood that other transferred employees in her situation had not been required to submit to a second interview. She observed Cullinan grow defensive after she asked her about the “Midwestern girl look” comment. Heartland argues that its official policy dictated a second interview, but Lewis has raised a genuine fact issue about whether Heartland imposed second interviews in similar circumstances before January 2007 and whether Heartland began doing so in relation to Cullinan’s interaction with Lewis. Heartland suggests that Lewis’ comments during the January 23 meeting did not actually oppose any unlawful practice. Cullinan testified, however, that Lewis had “emphatically stated that she thought it was illegal for us to ask her to interview, and illegal for us to schedule her to another shift” and that Lewis said she thought the interview demand was because of her appearance. These statements cannot reasonably be characterized as anything other than opposition to illegal action.
No one questions that Lewis was subjected to an adverse employment action, and there is ample record evidence to support a causal nexus between that and Lewis’s protests at the January 23 meeting. Lewis received the termination notice a mere three days after the disputed conversation, and Heartland cited her objection to the second interview in her termination notice. The evidence of pretext already discussed applies with equal force in evaluating whether Lewis has made out a prima facie retaliation claim.
CASE QUESTIONS
1.
What were the legal issues in this case? What did the court decide?
2.
What was the evidence of sex stereotyping in this case?
3.
Is this also a sex-plus case? Why or why not?
4.
In a dissenting opinion, one of the judges who heard this case wrote that “[a]pparently, the majority would hold that an employer violates Title VII if it declines to hire a female cheerleader because she is not pretty enough, or a male fashion model because he is not handsome enough.…” Do you agree? Was this case correctly decided? Why or why not?
5.
What, if any, appearance policy would you recommend for a hotel?
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