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Equal Employment Opportunity Commission v. McLeod Health, Inc.

United States District Court, D. South Carolina, Florence Division

March 31, 2016

Equal Employment Opportunity Commission, Plaintiff,
McLeod Health, Inc., Defendant.


Bruce Howe Hendricks United States District Judge

This action arises out of Cecilia Whitten’s (“Whitten”) termination with Defendant McLeod Health, Inc. (“Defendant” or “McLeod”). On September 11, 2014, Plaintiff Equal Employment Opportunity Commission (“EEOC”) filed this action under Title I of the Americans with Disabilities Act of 1990 (“ADA”) and Title I of the Civil Rights Act of 1991, alleging that Defendant subjected Whitten to improper medical examinations and terminated her employment in violation of the ADA. In accordance with 28 U.S.C. § 636(b)(1) and Local Civil Rule 73.02 D.S.C., this matter was referred to United States Magistrate Thomas E. Rogers, III, for consideration of pretrial matters. The Magistrate Judge prepared a thorough Report and Recommendation (“Report”) which recommends that Defendant’s motion for summary judgment be granted. (ECF No. 59.) The EEOC filed timely objections to the Report (ECF No. 60), Defendant filed a reply (ECF No. 62), and the EEOC filed a sur-reply (ECF No. 63). For the reasons set forth herein, the Court adopts the Report in part. Specifically, the Court dismisses the EEOC’s claim for improper medical examinations with prejudice and remands the case for further consideration of the EEOC’s wrongful termination claim based on Defendant’s remaining arguments for summary judgment.


The Report sets forth in detail the relevant facts and standards of law, and the Court incorporates them and summarizes below only in relevant part. The EEOC filed this matter on September 11, 2014, alleging violations of the ADA. (ECF No. 1.) Specifically, the EEOC alleges that Defendant subjected Whitten to two illegal medical examinations and discriminated against Whitten by placing her on forced medical leave and ultimately discharging her because of her disability. (ECF No. 1 at 4-5.) On August 25, 2015, Defendant moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. (ECF No. 40.) After consideration of the response filed in opposition to the motion for summary judgment (ECF No. 44) and Defendant’s reply (ECF No. 50), the Magistrate Judge issued a Report recommending that the motion for summary judgment be granted. (ECF No. 59.) The Court has reviewed the objections to the Report, and finds them to be largely without merit. Therefore, it will enter judgment accordingly.[1]


The Magistrate Judge makes only a recommendation to this Court. The recommendation has no presumptive weight. The responsibility for making a final determination remains with this Court. Mathews v. Weber, 423 U.S. 261, 270 (1976). The Court is charged with making a de novo determination of any portions of the Report and Recommendation to which a specific objection is made. The Court may accept, reject, or modify, in whole or in part, the recommendation made by the Magistrate Judge or may recommit the matter to the Magistrate Judge with instructions. See 28 U.S.C. § 636(b)(1). The Court need not conduct a de novo review when a party makes only “general and conclusory objections that do not direct the court to a specific error in the magistrate’s proposed findings and recommendations.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). In the absence of a timely filed, specific objection, the Magistrate Judge’s conclusions are reviewed only for clear error. See Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005).


The EEOC objects to the Report on six grounds, arguing the Magistrate Judge erred in: (1) analyzing the two separate and distinct medical examinations that Defendant subjected Whitten to as a single comprehensive examination; (2) finding the ability to “navigate safely” is an essential function of Whitten’s former job; (3) finding Defendant had sufficient reasonable objective evidence to subject Whitten to any medical examination; (4) finding that any medical examination to which Defendant subjected Whitten was proper in scope; (5) finding Whitten frustrated the interactive process by not obtaining a contrary doctor’s opinion and by not formally applying for open positions at McLeod; and (6) failing to consider numerous facts in the record challenging the efficacy-and sincerity-of Defendant’s efforts to accommodate Whitten prior to discharging her. (ECF No. 60 at 1-2.)

The Court has considered the EEOC’s various objections de novo and finds them largely insufficient to reject the recommendations of the Magistrate Judge. In his thorough thirty-two page Report, the Magistrate Judge exhaustively detailed the factual background of this matter before engaging in a thoughtful and comprehensive analysis of the EEOC’s claims. (ECF No. 59.) He first found that the EEOC “failed to present evidence sufficient to create an issue of fact as to whether Whitten’s [medical examinations] violated the ADA.” (Id. at 28.)

To reach this finding, the Magistrate Judge applied the correct legal standard as set forth in 42 U.S.C. § 12112(d)(4)(A), 29 C.F.R § 1630.14(c), and the EEOC Technical Assistance Manual.[2] He first found that the “two-part medical examination” Whitten was subjected to was “job-related and consistent with business necessity.” (Id. at 18.) Here, the EEOC first objects that the Magistrate Judge incorrectly assumed that the two medical examinations at issue “constituted one comprehensive examination.” (ECF No. 60 at 4.) It argues that because of this error, the Report “necessarily fails to adequately consider [certain] independent issues[;]” specifically, whether Defendant had reasonable objective evidence to subject Whitten to each examination and whether each examination was proper in scope. (Id.) However, the EEOC provides little argument as to how the Magistrate Judge failed in these respects.

Contrary to the EEOC’s assertion, the Magistrate Judge thoroughly considered the circumstances and scope of both medical examinations; the first conducted by Michelle Pittard (“Pittard”) on July 12, 2012, and the second conducted by Todd Laliberte (“Laliberte”) on July 26, 2012.[3] (ECF No. 59 at 5-11, 24-28.) The fact that the Magistrate Judge referred to these examinations as “a two-part medical examination[, ]” in no way renders his analysis and findings incorrect. This objection therefore fails.

The EEOC next objects that the Magistrate Judge erred in finding the ability to “navigate safely” is an essential function of Whitten’s job as a Communications Specialist. (ECF No. 60 at 5.) In support, it cites deposition testimony in which Whitten stated that she did not think the ability to navigate safely was a requirement of her job. (Id. at 5; 40-2 at 63.) The EEOC further notes that the Communications Specialist position description contains no physical requirements. (ECF No. 60 at 6.)

The Fourth Circuit has defined “essential functions of a job” as “functions that bear more than a marginal relationship to the job at issue.” Tyndall v. Nat’l Educ. Ctrs., Inc. of Cal., 31 F.3d 209, 213 (4th Cir. 1994) (quoting Chandler v. City of Dallas, 2 F.3d 1385, 1393-94 (5th Cir. 1993)). This definition accords with the general definition from the regulations: “The term essential functions means the fundamental job duties of the employment position the individual with a disability holds or desires. The term ‘essential functions’ does not include the marginal functions of the position.” 29 C.F.R. § 1630.2(n)(1) (2014). The regulations offer a non-exhaustive list of evidence relevant to determining whether a job function is essential: (i) The employer’s judgment as to which functions are essential; (ii) Written job descriptions prepared before advertising or interviewing applicants for the job; (iii) The amount of time spent on the job performing the function; (iv) The consequences of not requiring the incumbent to perform the function; (v) The terms of a collective bargaining agreement; (vi) The work experience of past incumbents in the job; and/or (vii) The current work experience of incumbents in similar jobs. Id. § 1630.2(n)(3)(i)-(vii).

The uncontroverted evidence shows that these factors strongly favor Defendant. Whitten’s supervisor, Jumana Swindler (“Swindler”), testified that being able to navigate safely around McLeod campuses and outside events in order to obtain story ideas and interviews and photographs was an essential, rather than marginal, function of Whitten’s job. (ECF No. 40-3 at 15-21; 29.) Whitten herself testified that part of her job description was “to hunt for stories and then harvest the stories[, ]” and she agreed that “[i]t’s better to do that in person.” (ECF No. 44-7 at 32-33.) She testified that while she did “not necessarily” believe it was part of her job to “do it in person, ” she “believed that was the way to do it.” (Id. at 33.) The written job description for a Communications Specialist includes under the heading “Essential, ” “interviews and accurately writes, and edits copy to produce informative articles.”[4] (ECF No. 59 at 21.) Although the written job description does not expressly list the ability to navigate ...

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