United States District Court, W.D. Michigan, Southern Division
L. Maloney United States District Judge
regarded-as-disabled prong of the ADA protects employees who
are perfectly able to perform a job, but are rejected . . .
because of the myths, fears and stereotypes associated with
disabilities." Daugherty v. Sajar Plastics,
Inc., 544 F.3d 696, 703 (6th Cir. 2008) (internal
citations and quotation marks omitted).
case presents a peculiar fact-pattern that represents a
textbook case for unlawful discrimination under the
regarded-as-disabled prong of the ADA.
September 2013, Defendant M.G.H. Family Health Center (MGH)
hired Avis Lane as a community outreach coordinator. MGH
normally required a new hire to undergo a
"post-offer" physical with its third-party medical
evaluator, Workplace Health, prior to beginning work.
Ordinarily, that simple requirement presents little problem
under the ADA.
in this case, Lane was assigned employment duties before
undergoing a physical, and Workplace Health subsequently
recommended that Lane be placed on a medical hold(-even
though it initially did not receive a job description and was
unaware Lane had begun work).
Fries, the Physician Assistant who briefly examined Lane,
found that while she passed the physical examination itself,
Lane's medical records revealed impairments that
concerned him and warranted a "medical hold." After
receiving the job description, he determined that Lane should
not begin work until a functional capacity evaluation (FCE)
did Fries know, Lane continued to work.
fourteen days of successful work, Lane was suddenly
confronted by MGH officials, who noted that Workplace Health
had recommended Lane be put on a "medical hold" and
undergo a costly FCE, which MGH would not pay for. Lane
indicated that she was willing to pay for the FCE, but the
conversation shifted, and MGH encouraged Lane to obtain a
medical clearance from her own doctor (an MGH provider, no
less), which she did.
despite receiving Lane's full medical clearance, a
revised job description with lower lifting requirements, and
learning late that Lane had successfully performed the job
responsibilities for her sedentary position for five weeks,
Fries still refused to change his recommendation. MGH then
abruptly ended the individualized inquiry by terminating Lane
without paying for the FCE or at a minimum, following up with
Lane on her offer to pay for the FCE.
trouble for MGH, then, is that direct evidence of its
unlawful discrimination is laid bare: MGH, by its own
admission, fired Lane because it perceived her impairments as
rendering her ineligible for the position-but it did so prior
to the completion of any individualized inquiry by Workplace
turns out, Lane was "perfectly able to perform [her]
job, " but was nonetheless "rejected" solely
because Workplace Health had recommended what to MGH was a
mystery "medical hold, " on Lane; MGH viewed Lane
as capable but dispensable because of unfounded "fears,
" disguised by an already-broken policy, that Lane was
somehow medically unworthy to continue her employment.
Cf. Daugherty, 544 F.3d at 703.
the evidence worse for MGH, after termination, MGH offered
Lane her position back without any conditions, medical
examinations, or further inquiry. She declined the invitation
and no longer wants to work at MGH.
absence of any disputed material facts, the EEOC, proceeding
as the Plaintiff in this case, is entitled to summary
judgment as to liability under the ADA, and this matter will
proceed to a jury trial for a damages determination.
MGH is a federally qualified health center that provides,
among other things, medical services, dental services,
behavioral health services, and maternal infant health
services. (ECFNo. 36-1 atPageID.559-60.)
to the Affordable Care Act, MGH created an outreach and
enrollment coordinator position: a grant-funded position
tasked with enrolling people in the federal health-insurance
marketplace, and conducting community outreach. (Id.
Avis Lane applied for the enrollment coordinator position at
some point in the summer of 2013. When Lane applied, she
signed a form stating she understood that if she received
"a conditional offer of employment, " MGH
"maf require her to submit to a physical
examination. (ECF No. 34-6 at PageID.378 (emphasis added);
see Id. at PageID.379 (emphasis added) ("Q: So,
would it be fair that you understood zf Muskegon Family Care
offered you a conditional offer of employment you
might have to submit to a physical or medical examination
including drug testing; is that fair? [Lane:] Yes.").)
vein, MGH had a policy of mandating post-offer,
"pre-employment" physicals. (See ECF No.
34-14 at PageID.443 ("Ensure satisfactory completion of
the physical exam prior to hiring and assigning
duties.").) A candidate was supposed to "pass all .
. . post-offer requirements, " including the
"post-offer physical, " before "new hire
orientation." (ECF Nos. 34-4 at PageID.355; 34-14 at
with Lane, "the process was a little different"
because Human Resources staff "were notified that she
needed to start on September 10th, " in a very short
timeframe. (ECF No. 36-1 at PageID.558.) Thus, on September
6, 2013, MGH offered Plaintiff Avis Lane the outreach and
enrollment coordinator position. (ECF Nos. 34-4 at
PageID.357; 34-13 at PageID.441.) The only offer of
employment that has been submitted to this Court demonstrates
that an unconditionaloffer was made in
I am pleased to confirm the offer of employment made to you
as an Outreach/Enrollment Coordinator at Muskegon Family
Care. This position is full-time/temporary and is currently
This position is offered at a base rate of $18.00 per hour,
subject to deductions for taxes and other withholdings as
required by law and Muskegon Family Care policy. Employment
with Muskegon Family Care is at-will and either party may
terminate the employment relationship at any time with or
without cause, or with or without notice.
Please let me know if I can be of any further assistance to
you. We are looking forward to your employment with Muskegon
Emmitt M. Davis, PHR
Human Resources Director
(ECFNo. 34-13 atPageID.441.) Indeed, Davis testified that
Lane was "hired September 10, 2013, " without
mentioning any conditions. (ECF No. 34-4 at PageID.358.)
Other MGH officials confirmed their understanding that Avis
Lane was an employee during the relevant time period. MGH
allowed Lane to attend new hire orientation and "to
continue working"- even after a physical
examination-because it was "making some attempts . . .
to retain her as an employee." (ECF
No. 34-4 at Page Id. 368 (emphasis added).)
even the record in the light most favorable to MGH
demonstrates that Lane began her actual employment with MGH
on September 10, 2013. (ECF No. 36-1 at PageID.557-58);
see supranote 1. Certainly, MGH's normal
policies would have made her a conditional hire; however,
Lane was an employee and not merely a conditional hire
because: a) MGH's normal policies were not followed
(see, e.g., ECF No. 34-14 at PageID.443; ECF No.
36-1 atPageID.558); b) the undisputed factual record
establishes that she was an active employee performing duties
as assigned during the relevant time period (see,
e.g., ECF No. 34-4 at PageID.368; ECF No. 34-13 at
PageID.441); and c) the relevant law provides that while an
employer "may require a[n] [employee entrance]
examination after an offer of employment has been made to a
job applicant"-"and may condition an offer of
employment on the results of such examination"-the
examination must occur "prior to the commencement of the
employment duties of such applicant, " see 42
U.S.C. § 12112(d)(3) (emphasis added); and thus, MGH may
not rely on a misclassified health examination as the sole
reason to argue the offer was conditional. See
infra note 10.
MGH's offer letter to Lane, which prompted Lane to begin
work on September 10, 2013, MGH informed Lane that she needed
to report to Workplace Health for a physical, presumably
because that was otherwise the normal process. (ECF No. 36-1
the physical, a Workplace Health Physician Assistant, Peter
Fries, found no signs during Lane's examination that
suggested she could not perform her job duties. (See
ECF No. 34-2 at PageID.330.) Nonetheless, because Lane's
medical records showed she had suffered migraines and
thoracic outlet syndrome (TOS) from injuries sustained in a
car accident-and was prescribed medications for those
conditions-Fries recommended Workplace Health place Lane on a
"medical hold." (Id. at PageID.330.) Fries
did not, however, realize that Lane had already been assigned
work duties, because the normal protocol gave him the ability
to recommend that MGH "hold" a conditional hire
from beginning work duties, pending the completion of further
evaluation. (ECF No. 37-7 at PageID.855.)
deposition transcript contains the following exchange:
Q: So everything you inspected on Ms. Lane you noted that it
was normal and not abnormal?
A: Yes, sir.
Q: And then at some point you also reviewed her vital signs?
A: Yes, sir.
Q: But you didn't note anything in the Positive
Findings/Patient Recommendations regarding her vital signs;
is that correct?
Q: And then on page 4 of the evaluation where you make your
recommendation, you recommended medical hold pending further
data; is that correct?
A: Yes, sir.
Q: And what was that? Why did you make that recommendation?
A: Based upon her history and narcotic pain medication used,
multiple muscle relaxers, anti[-]inflammatories and Lidoderm
Q: Sorry, what did you just state about the medications?
Anti[-]inflammatory, Lidoderm patch?
A: Muscle relaxers.
Q: Muscle relaxers?
A: Narcotic pain medication. She's also on Neurontin,
which is a drug given for nerve-related pain.
Q: So your physical evaluation of her which we just discussed
where you checked normal for all the various parts of her
body that you examined, that didn't have any impact on
your medical hold recommendation?
Q: And similarly, nothing about her vital signs caused you to
place her on a medical hold?
Q: Anything else besides her medical history and the
Q: Excuse me, if you already testified to this, what about
the medical history? Was it the car accident?
A: It was her ongoing complaints with the headaches,
headaches and neck injury.
Q: And why would the medical history of the headaches and the
neck injury and then the medications for anti[-]
inflammatory, the Lidoderm, the muscle relaxers, the narcotic
pain medication and the Neurontin, why would those cause you
to place Avis Lane on a medical hold?
A: Well, it indicates that she is having some degree of pain
and certainly taking this much medication raises a
suspector of a cognitive problem at work.
(Id. at PagelD.330-31 (emphasis added).)
Fries did not even know what the essential functions of the
coordinator position were on September 10 when he recommended
the medical hold because he did not receive the job
description until two days later. (Id.; ECF Nos.
34-2; 34-18; 34-19.) Instead, Fries simply asserted, among
other things, "a suspector of a cognitive problem at
work, " and was concerned about Dr. Kapteyn's
records, which "indicated that the patient had been seen
recently for neck injury sustained in a motor vehicle
accident and that she was having ongoing complaints of
whiplash, persistent myofascial pain in the neck and shoulder
and thoracic outlet syndrome." (ECF No. 34-2 at
Dr. Kapetyn's records also had indicated Lane passed the
MRI, CT, and EMG examinations. On July 25, 2013, Dr. Kapteyn
even notes: "There is no mechanical underlying issue
that would preclude her, it ...