I hope everyone had fun with the Super Bowl yesterday. It was the lowest scoring Super Bowl by five points in the history of all Super Bowl’s. It beat the record set by the Miami Dolphins when they beat the Washington Redskins in 1972 to go undefeated. What is particularly mind-boggling is that the rules have changed in a big way since 1972 to emphasize passing and scoring, and yet the game was the lowest scoring in history. The 72 Dolphins featured a very balanced attack (Warfield, Griese, Csonka, Kiick), and an incredible defense (Buaniconti etc), but the rules were so different. It is incredible that a game played in 2019 would somehow beat that record.

Turning to the blog entry of the day, we discuss a published decision from the Fourth Circuit had been making its rounds on the Internet. The case is EEOC v. McLeod Health Inc. decided on January 31, 2019. It bears talking about because it is pretty progressive in much of its thinking. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning; and a big takeaways section. Of course, the reader is free to focus on any or all of the categories.



For 28 years, plaintiff worked for McLeod Health Inc., which operates various hospitals and other healthcare facilities in South Carolina. Her job was the editor of McLeod’s internal employee newsletter. Her responsibilities included interviewing other employees and writing about company events. Accordingly, plaintiff typically traveled among McLeod’s various campuses, which are now five in number and spread across an area of 100 miles. Plaintiff has a physical disability known as posttaxial hypoplasia of the lower extremity. As a result, she does not have certain bones in her legs, feet, and right hand. Her lower legs are shorter than normal and her right arm is shorter than her left arm. Therefore, she has always struggled with mobility. Falling has always been part of her life and there’s no way around it. While she has had surgery to increase her stability, her limited use of her feet and legs still cause her to fall sometimes and stumble sometimes. Also, that condition causes her to get tired more easily and make it difficult for her to sit or stand in one position for too long.

Despite her limited mobility, plaintiff satisfactorily performed her duties as editor of McLeod’s employee newsletter for almost 30 years. While records indicated that plaintiff fell at work multiple times before the events involved in this case, McLeod’s own words said that her condition did not impact her ability to perform the essential functions of her job during her employment.

Over the course of several months preceding the event giving rise to this case, plaintiff’s manager repeatedly expressed concerns about plaintiff’s performance to McLeod’s Human Resources Department. She told HR that plaintiff had been missing deadlines, arriving late to work, and in her view, displaying a less than enthusiastic attitude about McLeod’s internal messaging. In her discussion with HR, plaintiff’s manager raised the possibility that plaintiff performance issues were due to problems with her health, such as plaintiff looked like walking was more difficult for her than usual and that plaintiff appeared flushed and winded after moving very short distances. Plaintiff’s supervisor also reported that plaintiff seemed to have trouble staying alert during meetings. At HR’s suggestion, plaintiff’s manager attempted to address plaintiff’s performance issues by meeting with plaintiff, clarifying her expectations, and reducing plaintiff’s workload. However, she did not raise any concerns about plaintiff’s health with the plaintiff herself.

In 2012, plaintiff fell 3 times in a four months span. Plaintiff’s manager reported plaintiff’s third fall to HR shortly after it happened. HR advised her to bring her concern to the company’s occupational health department and plaintiff’s manager did so right away. Based upon that report, plaintiff’s job description, and its own records of plaintiff’s medical issues, occupational health determine that the plaintiff needed to undergo a fitness for duty medical exam. Even so, occupational health was not particularly concerned with plaintiff’s performance on the job. It ordered the fitness for duty exam to ensure that the plaintiff could safely get to different locations in order to do her stories.

At occupational health, a nurse practitioner gave plaintiff a fitness for duty exam. During that exam, plaintiff told the nurse practitioner about her medical history and the circumstances of her recent falls. Plaintiff also told the nurse practitioner that she had difficulty stepping on the curbs and that she was supposed to, but generally did not, use a cane network. The nurse practitioner listen to plaintiff’s heart and lungs and also examined her joints. Her conclusion was that plaintiff needed further testing by undergoing a functional capacity exam. A functional capacity exam is an exam where position evaluate whether an employee is physically capable of performing the duties of her job. The nurse practitioner based that conclusion on: 1) plaintiff’s self-reported history of falls; 2) her decision not to use her recommended assistive device; and 3) for general lack of mobility and range of motion in her knees, ankles, and feet.

McLeod placed the plaintiff on paid administrative leave pending the results of her functional capacity exam. Functional capacity exam was performed by an occupational therapist who did not have access to plaintiff in order to clarify her job duties prior to the exam. While McLeod told the occupational therapist that her job required her to carry no more than 20 pounds at a time, the occupational therapist determined that the plaintiff would likely need to be able to carry 38 pounds at a time to do her job and tested her accordingly. His exam also indicated, inaccurately so, that he believed that the plaintiff had only recently begun to fall at work and in her home.

The occupational therapist concluded that plaintiff had a high fall risk and 75% of all work-related task and recommended that plaintiff among other things: 1) be restricted to traveling no more than 10 miles from her main office; 2) using assistive device, such as a motorized scooter; and 3) be provided a parking space in an area without a curb. Plaintiff in turn submitted a request for: 1) a parking spot in an area without a curb; 2) help with selecting an appropriate assistive device; 3) a new desk chair with adjustable height arms; and 4) limitations on walking and standing as much as possible. Plaintiff did not believe she needed any accommodation to continue doing her job, but thought that she was required to submit the accommodation form.

Though plaintiff was told several times that she could submit report from her own doctors if she disagreed with the occupational therapist conclusions, she was also told at least once that she could not have her old job back. She also did not submit reports from her own doctor to refute the occupational therapist conclusions. For that matter, she did not apply for other jobs available within McLeod even though the company assigned her a recruiter to help find her suitable positions. The plaintiff did find some open positions for which she was marginally qualified, but they paid significantly less than what she had made in her old job. After plaintiff had been on medical leave for six months, McLeod terminated her employment. Plaintiff then filed a complaint with the EEOC, and the EEOC brought suit against McLeod for violations of the ADA by: 1) requiring the plaintiff to undergo a medical exam despite a lack of objective evidence that such an exam with necessary; and 2) discharging plaintiff on the basis of her disability.


Court’s Reasoning

  1. The court in a footnote called befuddling the occupational therapist’s conclusion that plaintiff had a high fall risk for 75% of all work-related tasks. In particular, when the occupational therapist was asked how the 75% figure was formulated, he answered, “she had fallen at home, at restaurants, and at work. One, two, three. 75%.”
  2. Medical exams can only be done on an employee when it is job-related and consistent with business necessity per 42 U.S.C. §12112(d)(4)(A).
  3. The EEOC’s enforcement guidelines state that for an employer ordered medical exam to be job-related and consistent with business necessity, the employer must reasonably believe based upon objective evidence either: 1) the employee’s ability to perform the essential job function is impaired by a medical condition; or 2) the employee can perform all the essential functions of the job, but because of his or her medical condition, doing so would pose a direct threat to his or her safety or the safety of others.
  4. The threshold question is whether navigating to and within McLeod’s campuses was an essential function of plaintiff’s job.
  5. In a footnote, the court said that the correct way to apply the EEOC’s enforcement guidance in a case like this, is to begin by asking whether the relevant job function qualifies as essential. If the answer to that question is yes, then you have to ask whether the employee is medically capable of performing the function without posing a direct threat to herself or others, i.e. whether the employee can perform the function safely.
  6. There is evidence in the record supporting McLeod’s position. For example, plaintiff’s manager testified that plaintiff’s job required her to navigate to and from company events and conduct in person interviews. Additionally, plaintiff agreed in deposition testimony that her job required the ability to safely navigate marketing department functions, including but not limited to navigating outside parking lots, grassy areas, and walking in a wide variety of areas in order to obtain photographs and interviews.
  7. The record also contained evidence supporting the EEOC’s position. In particular: 1) although plaintiff preferred to navigate McLeod’s various campuses to conduct in-person interviews, take photographs, and attend company events, doing so was not actually essential to her job; 2) McLeod’s own written description of plaintiff’s position contained no mention of navigating to and from company events or conducting in-person interviews; 3) plaintiff testified that although she collected better content by attending company events and conducting in-person interviews, she didn’t think that either was necessarily a requirement for her job; 4) plaintiff was able to conduct interviews and collect other forms of content over the phone.
  8. To get past summary judgment, all the EEOC has to offer is more than a mere scintilla of evidence in support of its position that navigating to and within McLeod’s campuses was not an essential function of plaintiff’s job and that burden was met.
  9. A reasonable jury could conclude that when McLeod required plaintiff to take a medical exam, the company lacked a reasonable belief-based on objective evidence-that plaintiff’s medical condition left her unable to navigate within the company’s campuses without posing a direct threat to her own safety.
  10. An employer’s reasonable belief that an employee cannot perform the essential function or cannot do so without posing a direct threat has to be based on objective evidence obtained or reasonably available to the employer prior to making a disability related inquiry or requiring a medical examination. At that point in time, McLeod knew that plaintiff had been able to perform the essential function of her job for 28 years even though she suffered from limited mobility and sometimes fell at work. It also knew that she had fallen once at work and twice outside of work with the fall at work causing virtually no injury and the falls outside of work not causing any severe injury. The other item McLeod had had reported to it was that plaintiff had recently missed deadlines, was showing up late, and struggled to handle her workload. Also, plaintiff’s manager thought that plaintiff looked unusually winded after walking short distances and appear groggy during meetings. Accordingly, a reasonable jury looking at the evidence in the light most favorable to the plaintiff could conclude that in the context of plaintiff’s employment history, it was not reasonable for McLeod to believe that she had become a direct threat to herself on the job simply because she had fallen multiple times recently and her manager thought she looked groggy and out of breath. This is especially the case given that only one of plaintiff’s recent falls occurred at work resulting in virtually no injury.
  11. With respect to a wrongful discharge claim under the ADA, a plaintiff has to prove: 1) that she has a disability; 2) that she is a qualified individual for the employment in question; and 3) that her employer discharged her because of her disability.
  12. A qualified individual is an individual who with or without reasonable accommodation can perform the essential functions of the employment position the individual holds or desires. Since it is not certain that navigating to and within McLeod’s campuses was essential to plaintiff’s job, it can’t be said that there aren’t questions of fact regarding the wrongful termination.



  1. It really seems to depend upon the court as to how they view summary judgment motions. Summary judgment motions happen all the time in federal practice with respect to disability discrimination, with their success or not seeming to depend upon the jurisdiction. Some courts seem to think summary judgment motions act as a screen out for all but the strongest cases for plaintiffs. While other courts seem to focus much more on whether critical facts that can send the case the plaintiff’s way are in dispute. Of course, there is a range between the two extremes.
  2. There seems to have been a real lack of communication between HR, plaintiff’s manager, and the plaintiff. Reading between the lines, it seems that the plaintiff’s manager was making all kinds of assumptions about the plaintiff based upon what she was seeing. Happens all the time with people with disabilities. Instead of doing that, you want to focus on whether the essential functions of the job are being done with or without reasonable accommodations well. It seems a lot of problems could have been prevented here if the plaintiff’s manager, HR, and the plaintiff had communicated with each other.
  3. Interesting, the plaintiff not contesting McLeod’s actions was not held against her. Of course, that is the law, but even so, interesting.
  4. If you are going to do a medical exam on a current employee, make sure you first are doing so because it is job-related and consistent with business necessity. We discussed both of those concepts here.
  5. I have argued for years that direct threat and qualified are entirely two different concepts. It is heartening to finally be proven right. That is, the question of whether a person can do the essential functions of the job with or without reasonable accommodations (i.e. qualified), as this court points out, is an entirely different question than whether a person poses a direct threat to him or herself or to others.
  6. Essential functions of the job are based upon what is happening on the ground and not what is in job descriptions.
  7. Keep job descriptions current and accurate.
  8. This case is unusual with the statement saying that all the EEOC has to offer to survive summary judgment is offer more than a scintilla of evidence. That is not a high standard. Many jurisdictions in effect require far more than that.
  9. The decision to require a medical exam must be based upon objective evidence that the person cannot perform the essential functions of her job with or without reasonable accommodations or cannot do it safely. The reference point is the time the medical exam is requested.
  10. For a discussion of direct threat, see this blog entry. You can use the search engine in my blog to find others as we have discussed direct threat many times.
  11. Just because a person is suffering injuries outside of work does not necessarily make them a direct threat at work. In this case, it seems that the plaintiff because of her history knew how to protect herself when she fell.
  12. Never forget about the interactive process.
  13. Remember that qualified means can the person do the job’s essential function with or without reasonable accommodations. Also, if direct threat is involved, the question is can reasonable accommodations be made so that direct threat does not come up.
  14. If it ain’t broke, don’t fix it. I can’t tell you how many times I have seen in reviewing these kinds of cases where things are working perfectly fine, and the employer decides to fix it when it isn’t necessary to fix it.
  15. Make sure qualified people performed the fitness for duty exam and that they have all relevant information. That information also needs to be current. Finally, the exam itself needs to be narrowly focused. On the plaintiff side, plaintiff’s lawyer should strongly consider attending the fitness for duty exam. Just by sitting there and taking notes without saying a word can ensure that the exam stays narrowly focused and that the plaintiff is careful about what is said.
  16. It is not up to the medical professional to change the job’s essential functions.
  17. Remember, if you take federal funds and have more than 15 employees, you need an ADA/504 grievance procedure. If you do not take federal funds, are a public entity (see comments to this entry), and have 50 or more employees, you need an ADA grievance procedure. Regardless, grievance procedures are always a good idea.
  18. The question isn’t whether the employee was discharged because of a disability, but whether the employee was discharged on the basis of disability. That distinction matters as we discussed in this blog entry.