EEOC v. Flambeau, Incorporated

Filing

Filed opinion of the court by Judge Hamilton. AFFIRMED. Joel M. Flaum, Circuit Judge; Daniel A. Manion, Circuit Judge and David F. Hamilton, Circuit Judge. [6813998-1] [6813998] [16-1402]

Case: 16-1402

Document: 48

Filed: 01/25/2017

Pages: 15

In the

United States Court of Appeals
For the Seventh Circuit
____________________
No. 16-1402
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff-Appellant,
v.
FLAMBEAU, INC.,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Western District of Wisconsin.
No. 3:14-cv-00638-bbc — Barbara B. Crabb, Judge.

____________________
ARGUED SEPTEMBER 15, 2016 — DECIDED JANUARY 25, 2017
____________________
Before FLAUM, MANION, and HAMILTON, Circuit Judges.
HAMILTON, Circuit Judge. On the merits, this Americans
with Disabilities Act case would turn on the interplay between the ADA’s prohibition on involuntary medical examinations and its insurance safe-harbor provision. See 42 U.S.C.
§§ 12112(d)(4) and 12201(c). Defendant Flambeau, Inc.
adopted an employee wellness program. It required its employees, as a condition of receiving employer-subsidized

Case: 16-1402

2

Document: 48

Filed: 01/25/2017

Pages: 15

No. 16-1402

health insurance, to fill out a medical questionnaire and to undergo biometric testing. One employee did not meet those requirements in time for the 2012 benefit year. As a result, he
and his family were briefly without health insurance. He filed
a complaint with the Equal Employment Opportunity Commission, and the EEOC then filed this suit against Flambeau.
The EEOC contends that Flambeau’s requirement violated the
ADA’s ban on involuntary medical examinations in 42 U.S.C.
§ 12112(d)(4). On cross-motions for summary judgment, the
district court granted Flambeau’s motion and dismissed the
case. The EEOC has appealed.
On the merits, the parties have taken ambitious positions
on appeal. Flambeau argues that wellness programs are
largely exempt from the limits on medical examinations because the ADA does not “restrict … [an] organization … administering the terms of a bona fide benefit plan that are
based on underwriting risks, classifying risks, or administering such risks that are based on or not inconsistent with State
law.” 42 U.S.C. § 12201(c)(2). The EEOC replies that this insurance safe harbor simply does not apply to wellness programs
so that the prohibition on involuntary medical examinations
applies. Both sides also offer narrower grounds for deciding
the case.
We conclude that the statutory debate should not be resolved in this appeal. The relief the EEOC seeks is either unavailable or moot. The employee resigned several years ago,
before suit was filed. He did not incur damages as a result of
Flambeau’s policy, and he is not entitled to punitive damages.
In addition, Flambeau abandoned its wellness program requirements for reasons unrelated to this litigation. Because
the undisputed facts show that the EEOC is not entitled to any

Case: 16-1402

Document: 48

Filed: 01/25/2017

No. 16-1402

Pages: 15

3

relief, we affirm the district court’s judgment dismissing the
case but without reaching the merits of the parties’ statutory
debate.
I. Factual and Procedural Background
In general, employer wellness programs use a set of benefits, incentives, and/or penalties to improve employee health
and lower health insurance costs. For example, a wellness
program might include discounted gym memberships, higher
insurance premiums for smokers, and monetary rewards for
weight loss. Flambeau offered such a wellness program to its
employees.
That program included a health risk assessment in which
employees answered questions about their medical histories.
They also were measured for health indicators such as weight,
cholesterol levels, and blood pressure. Each employee received his or her individual test results. Flambeau received
aggregated and anonymous results. In 2012 and 2013, Flambeau pushed employees to participate in the wellness program by requiring participation as a condition of the employer’s contributions to an employee’s health insurance premiums.
Dale Arnold, a Flambeau employee, was unable to complete the assessment and testing before the 2012 benefit year
deadline. Flambeau terminated his insurance coverage but
gave him the option of buying continuing coverage under
COBRA. Mr. Arnold did not take that option, so his health insurance lapsed.
Mr. Arnold then filed complaints with the Department of
Labor and the Equal Employment Opportunity Commission
alleging violations of the Family Medical Leave Act and the

Case: 16-1402

4

Document: 48

Filed: 01/25/2017

Pages: 15

No. 16-1402

Americans with Disabilities Act. After discussions with the
Department of Labor, Flambeau agreed to reinstate Mr. Arnold’s health insurance retroactively so long as he completed
the testing and paid his own share of the premiums. Mr. Arnold did so, and Flambeau restored his insurance.
Before the 2014 benefit year began, Flambeau’s management ended the mandatory testing program, finding that it
was not cost-effective. Mr. Arnold resigned his job at Flambeau in March 2014. Six months later, in September 2014, the
EEOC filed this suit against Flambeau alleging that its mandatory assessment and testing violated the ADA prohibition
on involuntary medical examinations in 42 U.S.C.
§ 12112(d)(4).
Flambeau moved for summary judgment. It argued that
its wellness plan was covered by the ADA’s insurance safe
harbor, a provision of the Act that limits the interpretation of
(among other provisions) the ban on involuntary medical examinations. See 42 U.S.C. § 12201(c). The safe harbor says that
ADA provisions, including Subchapter I, which contains the
ban on involuntary medical examinations, “shall not be construed to prohibit or restrict … [an] organization … from …
administering the terms of a bona fide benefit plan … .” 42
U.S.C. § 12201(c)(2) & (c)(3). The safe harbor also provides
that it “shall not be used as a subterfuge to evade the purposes” of the ADA provisions on employment and public accommodations and services. § 12201(c). Flambeau argued in
the alternative that the health testing and assessments were
voluntary because they were not conditions of employment.
The EEOC filed a cross-motion for partial summary judgment
as to liability, arguing that the insurance safe harbor did not
apply to save the Flambeau program.

Case: 16-1402

No. 16-1402

Document: 48

Filed: 01/25/2017

Pages: 15

5

The district court granted Flambeau’s motion and denied
the EEOC’s. EEOC v. Flambeau, Inc., 131 F. Supp. 3d 849, 857
(W.D. Wis. 2015). It decided that the safe harbor could cover
at least some wellness programs and that this was one such
program. Id. at 855–56.
The parties’ briefing on appeal addressed the statutory issue whether the insurance safe harbor should be interpreted
to apply to wellness programs generally and to Flambeau’s in
particular. After oral argument, we ordered supplemental
briefing on whether the case is moot. Having received and
considered that briefing, we conclude that the EEOC’s claim
for injunctive relief is moot and that undisputed facts foreclose its claims for compensatory and punitive damages on
behalf of Mr. Arnold.
II. Analysis
Article III of the Constitution limits federal courts’ jurisdiction, our power to speak the law, to “cases” and “controversies.” Campbell-Ewald Co. v. Gomez, 577 U.S. —,—, 136 S. Ct.
663, 669 (2016). A “live controversy” must exist at “all stages
of review.” Brown v. Bartholomew Consolidated School Corp., 442
F.3d 588, 596 (7th Cir. 2006). Federal courts therefore lack jurisdiction over moot cases, cases in which “one of the parties
lacks a personal stake” in the suit’s outcome. Banks v. National
Collegiate Athletic Ass’n, 977 F.2d 1081, 1085 (7th Cir. 1992). The
EEOC offers two theories for holding that this case is not
moot. First, it argues that Mr. Arnold has a personal stake in
the suit’s outcome because he is entitled to compensatory and
punitive damages. Second, the EEOC argues that it can seek
injunctive relief because the “voluntary cessation” exception
to mootness applies in this case.

Case: 16-1402

Document: 48

Filed: 01/25/2017

6

Pages: 15

No. 16-1402

We disagree with the EEOC’s “voluntary cessation” analysis, finding that the exception does not apply and that its
claim for injunctive relief is moot. There is a live controversy
between the parties over Mr. Arnold’s entitlement to compensatory and punitive damages. The undisputed facts, including information provided to us in response to our question
about available relief, show however that Mr. Arnold cannot
recover either compensatory or punitive damages. There
would be no point in a remand for further exploration of those
issues or other aspects of the case.
A. Mr. Arnold’s Personal Stake
The EEOC offers three grounds for awarding monetary
damages to Mr. Arnold at an eventual trial: he is entitled to
recover $82.02 in out-of-pocket medical expenses that Flambeau should have paid; he is entitled to emotional distress
damages; and he is entitled to punitive damages. Mr. Arnold
could not recover any of these damages.
1. Out-of-Pocket Expenses
Mr. Arnold claims a right to reimbursement for $82.02 of
medical expenses incurred while he did not have insurance
coverage. But Mr. Arnold also frankly admits never paying
that money: those bills were either written off or paid by third
parties. He has no right to be repaid.
2. Emotional Distress Damages
When the only evidence of emotional distress comes from
the injured party’s testimony, “he must reasonably and sufficiently explain the circumstances of his injury and not resort
to mere conclusory statements.” Biggs v. Village of Dupo, 892
F.2d 1298, 1304 (7th Cir. 1990). In this case, the only evidence
of Mr. Arnold’s emotional distress is his deposition testimony.

Case: 16-1402

Document: 48

No. 16-1402

Filed: 01/25/2017

Pages: 15

7

When asked to explain his emotional pain, Mr. Arnold repeated the events of his case: “when they took my insurance
away, and my kids didn’t know what’s going on, and I
couldn’t go to the doctor and stuff like that.” We “appreciate
that it can be hard to articulate emotional upset.” Biggs, 892
F.2d at 1304. Mr. Arnold need not show that he took medication, underwent therapy, or sought any medical attention.
Still, his testimony does not even reach the level of conclusory
statements of emotional distress and is insufficient to show he
could be entitled to such damages. Cf. Catalan v. GMAC Mortgage Corp., 629 F.3d 676, 696 (7th Cir. 2011) (reversing summary judgment where plaintiffs “described their emotional
turmoil in reasonable detail”).
3. Punitive Damages
Punitive damages are available for violations of the Americans with Disabilities Act if the defendant discriminated
“with malice or with reckless indifference to the federally protected rights of an aggrieved individual.” 42 U.S.C.
§ 1981a(b)(1). The EEOC argues that it can show that Flambeau acted with reckless indifference to Mr. Arnold’s federally
protected rights against involuntary physical examinations.
“The terms ‘malice’ and ‘reckless’” focus on the employer’s “state of mind.” Kolstad v. American Dental Ass’n, 527
U.S. 526, 535 (1999). But even “intentional discrimination does
not give rise to punitive damages” where the “underlying theory of discrimination” is “novel or otherwise poorly recognized.” Id. at 536–37. That description fits this case. The
EEOC’s theory of discrimination assumes that the ADA’s insurance safe harbor does not cover at least some wellness
plans. Whether that is true, and for what kinds of wellness

Case: 16-1402

8

Document: 48

Filed: 01/25/2017

Pages: 15

No. 16-1402

plans it might be true, were open questions at relevant times
in 2012 and 2013. They remain open even today.
The statute’s plain text does not resolve either question.
The parties and their amici have shown as much in their excellent briefs on this appeal. When Flambeau acted to terminate Mr. Arnold’s health insurance, the EEOC had not yet proposed the relevant regulations. See Regulations Under the
Americans with Disabilities Act, 81 Fed. Reg. 31126-01, 31128
(May 17, 2016) (EEOC published relevant notice of proposed
rulemaking in 2015 for rule that became 29 C.F.R.
§ 1630.14(d)). The only case law was adverse to the EEOC’s
position. See Seff v. Broward County, 691 F.3d 1221, 1224 (11th
Cir. 2012) (affirming district court’s finding that safe harbor
covered county’s wellness plan). Even today, and even counting this lawsuit, cases raising those questions can be counted
on one hand. See EEOC v. Honeywell International, Inc., No. 144517 ADM/TNL, 2014 WL 5795481, at *5 (D. Minn. Nov. 6,
2014) (denying EEOC’s motion for preliminary injunction,
and noting “great uncertainty” surrounding wellness plans);
EEOC v. Orion Energy Systems, Inc., — F. Supp. 3d. —, No. 14CV-1019, 2016 WL 5107019, at *6–7 (E.D. Wis. Sept. 19, 2016)
(finding that safe harbor does not apply to wellness programs).
That legal uncertainty at the relevant time distinguishes
this case from cases approving punitive damages for well-understood violations of the ADA and other antidiscrimination
laws. See Williamson v. Handy Button Machine Co., 817 F.2d
1290, 1296 (7th Cir. 1987) (“The complete rule … may be that
intentional, illegal conduct may support an award of punitive
damages when the application of the law to the facts at hand
was so clear at the time of the act that reasonably competent

Case: 16-1402

No. 16-1402

Document: 48

Filed: 01/25/2017

Pages: 15

9

people would have agreed on its application.”); compare
EEOC v. Autozone, Inc., 707 F.3d 824, 835–36 (7th Cir. 2013) (approving punitive damages award in ADA case where defendant’s disability coordinator “was dismissive” of plaintiff’s repeated accommodation requests); Hertzberg v. SRAM Corp.,
261 F.3d 651, 662–63 (7th Cir. 2001) (affirming punitive damages where supervisors knew harasser’s jokes and touching
were “inappropriate” and “incorrect”); Bruso v. United Airlines, Inc., 239 F.3d 848, 859–60 (7th Cir. 2001) (reversing judgment as a matter of law denying punitive damages because
supervisors who demoted plaintiff after he reported harassment were familiar with Title VII and their employer’s antidiscrimination policy), with EEOC v. Boh Brothers Construction
Co., 731 F.3d 444, 468 (5th Cir. 2013) (en banc) (defendant entitled to judgment as a matter of law overturning punitive
damages because court “had not directly addressed whether
a plaintiff could rely on evidence of gender-stereotyping in a
same-sex discrimination case”).
The unsettled legal landscape also makes it unsurprising
that when Flambeau consulted its attorneys about the benefit
plan’s compliance with state and federal law, they did not
raise this problem. Flambeau’s director of human resources,
Mark Rieland, also consulted an attorney in January 2012 after Mr. Arnold filed a grievance with his union about his loss
of insurance coverage. Rieland sent Flambeau’s attorney an
article outlining the EEOC’s position on wellness programs: if
employees were required to participate, the program was not
voluntary. The attorney advised Rieland to “continue to deny
the grievance.” Rieland’s repeated consultations with an attorney regarding Mr. Arnold’s federally protected rights are
inconsistent with reckless indifference to those rights, absent

Case: 16-1402

10

Document: 48

Filed: 01/25/2017

Pages: 15

No. 16-1402

some reason to doubt he provided the attorney with all relevant information. See Farias v. Instructional Systems, Inc., 259
F.3d 91, 102 (2d Cir. 2001) (“[A]ction taken pursuant to advice
that the action is consistent with the law is insufficient to support an award of punitive damages under the standard articulated in Kolstad.”).
The EEOC emphasizes a later part of Rieland’s 2012 consultation with the attorney. After the attorney advised Rieland
to continue denying the grievance, Rieland mentioned that
the grievance indicated Mr. Arnold had contacted “Employee
Benefits, [U.S.] Department of Labor.” His attorney explained
that the grievance probably referred to the Employee Benefits
Security Administration, which was “not likely” to tell Mr.
Arnold that Flambeau was wrong. Mr. Arnold would, he
added, “have gotten a different reaction if he had contacted
the EEOC.”
The EEOC sees in that exchange a reckless indifference to
its position, which was best expressed at that time in its enforcement guidance, which said: “A wellness program is ‘voluntary’ as long as an employer neither requires participation
nor penalizes employees who do not participate.” Enforcement
Guidance: Disability-Related Inquiries and Medical Examinations
of Employees Under the Americans with Disabilities Act (ADA),
Equal Employment Opportunity Comm’n, (July 27, 2000),
https://www.eeoc.gov/policy/docs/guidance-inquiries.html
(last visited Jan. 19, 2017).
We recognize that that was the EEOC’s position and that
the EEOC’s guidelines are an important “body of experience
and informed judgment” entitled to some deference. They are
not, however, controlling law. Hendricks-Robinson v. Excel
Corp., 154 F.3d 685, 693 n.7 (7th Cir. 1998), quoting Smith v.

Case: 16-1402

Document: 48

Filed: 01/25/2017

No. 16-1402

Pages: 15

11

Midland Brake, Inc., 138 F.3d 1304, 1308 n.2 (10th Cir. 1998). An
employer’s or its attorney’s disagreement with EEOC guidance does not by itself support a punitive damages award, at
least where the guidance addresses an area of law as unsettled
as this one.
B. Injunctive Relief and Voluntary Cessation
Even if Mr. Arnold has no monetary stake in the controversy’s outcome, the EEOC argues that it can seek injunctive
relief. But that claim for relief is moot: Flambeau halted its
mandatory wellness program, so there is nothing to enjoin.
The EEOC argues that the controversy survived the employer’s voluntary cessation of the challenged practice. “[A]s
a general rule, ‘voluntary cessation of allegedly illegal conduct does not … make the case moot.’” Los Angeles County v.
Davis, 440 U.S. 625, 631 (1979), quoting United States v. W.T.
Grant Co., 345 U.S. 629, 632 (1953). That general rule does not
apply when both: (1) there is no reasonable expectation that
the alleged violation will reoccur; and (2) interim events “irrevocably eradicated” the alleged violation’s effects. Id. We explained above how the effects of Flambeau’s policy have been
eradicated or never existed. There is also no reasonable expectation now that Flambeau will reinstitute its mandatory wellness program. See EEOC v. North Gibson School Corp., 266 F.3d
607, 621 (7th Cir. 2001) (affirming mootness determination
where “EEOC has not identified a currently discriminatory
plan nor … has a reasonable expectation that a discriminatory
plan will be adopted”), abrogated in part on other grounds by
EEOC v. Waffle House, 534 U.S. 279 (2002).
The voluntary cessation exception to mootness is important. “Otherwise, a defendant could engage in unlawful

Case: 16-1402

12

Document: 48

Filed: 01/25/2017

Pages: 15

No. 16-1402

conduct, stop when sued to have the case declared moot, then
pick up where he left off, repeating this cycle until he achieves
all his unlawful ends.” Already, LLC v. Nike, Inc., 568 U.S. —,
—, 133 S. Ct. 721, 727 (2013); E.I. Dupont de Nemours & Co. v.
Invista B.V., 473 F.3d 44, 47 (2d Cir. 2006) (voluntary cessation
doctrine “aims to eliminate the incentive for a defendant to
strategically alter its conduct in order to prevent or undo a
ruling adverse to its interest”). This record does “allow us to
determine fairly” the reasons for Flambeau’s change in policy.
Cf. Ciarpaglini v. Norwood, 817 F.3d 541, 546 (7th Cir. 2016) (remanding for limited fact-finding on mootness where record
did not allow appellate court to determine whether defendant’s change in conduct was a “broader policy change”).
Manipulation is not a concern here. Flambeau made its
wellness program non-mandatory well before this lawsuit began, and it did so for reasons unrelated to the lawsuit. That is
important evidence that the conduct is unlikely to reoccur. See
Aref v. Lynch, 833 F.3d 242, 251 n.6 (D.C. Cir. 2016) (“A defendant who ceased the challenged conduct for reasons unrelated
to the litigation may have an easier time showing the challenged conduct is unlikely to reoccur.”).
The evidence of Flambeau’s reasoning also supports that
determination. It stopped requiring the biometric testing and
the assessment because their costs outweighed their benefits.
That was true in part because Flambeau found that its employees were not using the test results to change their behavior. We should not expect human nature to change too rapidly.
Cf. Ciarpaglini, 817 F.3d at 546 (change in government policy
appeared to render case moot, despite theoretical possibility
that it “might someday” change back); Adams v. Bowater Inc.,
313 F.3d 611, 615 (1st Cir. 2002) (case not moot because new

Case: 16-1402

No. 16-1402

Document: 48

Filed: 01/25/2017

Pages: 15

13

case law might “easily” make resuming challenged conduct
“in defendants’ interest”).
The reasons for Flambeau’s change were not speculation
or opinion and were not based on the lawsuit. The policy was
not changed quickly or lightly. Flambeau required the testing
for two years. It knew, based on that experience, the program’s
costs and benefits. A decision supported by less evidence or
less thought might more reasonably be expected to recur. Cf.
Rich v. Secretary, Florida Dep’t of Corrections, 716 F.3d 525, 532
(11th Cir. 2013) (voluntary resumption of kosher prison meal
program did not moot case when defendant could “simply
end” program as it had in the past).
Norman-Bloodsaw v. Lawrence Berkeley Laboratory, 135 F.3d
1260 (9th Cir. 1998), involved such a decision. The defendants
in that case argued that the plaintiffs’ request for an injunction
against its mandatory employee medical screenings was moot
because they had ceased those screenings after deciding they
were not cost-effective. Id. at 1274. But they did not explain
why their views had changed, so the court determined that
the case was not moot. Id.
The EEOC argues that Flambeau’s economic reasons cannot support a finding of mootness. It cites Norman-Bloodsaw
and United States v. Concentrated Phosphate Export Ass’n, 393
U.S. 199 (1968), to argue that no decision based on cost-effectiveness can support a mootness determination. Like NormanBloodsaw, Concentrated Phosphate is distinguishable. In Concentrated Phosphate, the Supreme Court said that defendants’
“own statement that it would be uneconomical for them” to
continue their conduct, “standing alone, cannot suffice” to
show mootness. 393 U.S. at 203. Flambeau’s statement does
not stand alone. Flambeau’s conduct supports its claim: it

Case: 16-1402

14

Document: 48

Filed: 01/25/2017

Pages: 15

No. 16-1402

ended the mandatory testing program before the EEOC even
filed suit. Moreover, in Concentrated Phosphate there was evidence that defendants’ economic claims were false. Id. at 202–
03 (explaining how the regulatory change that allegedly rendered plaintiffs’ claims moot did not apply to all defendants
or all relevant conduct). No such evidence exists here.
The core requirement of the case-or-controversy standard
is that the parties “have a personal stake in the outcome of the
lawsuit throughout its duration.” Wisconsin Right to Life Political Action Committee v. Barland, 664 F.3d 139, 149 (7th Cir.
2011). They do not in this case. But we add this: at least in close
cases, mootness can be in part a prudential doctrine. Id.
(“Mootness doctrine is … premised on constitutional requirements and prudential considerations.”); Adams, 313 F.3d at
614 (Supreme Court did not mean “woodenly to exclude …
equitable or other considerations” from mootness analysis
when likelihood of conduct’s recurrence is “very hard to estimate”).
Prudence weighs against reaching to decide the merits of
this case. The questions of statutory interpretation are difficult, at least in the absence of interpretive regulations. Those
questions affect the 75% of firms offering health benefits that
also offer wellness programs. Kristin Madison, Employer Wellness Incentives, the ACA, and the ADA: Reconciling Policy Objectives, 51 Willamette L. Rev. 407, 412–13 (2015) (citing the results of a Kaiser Family Foundation survey of employers).
This case also presents the statutory questions in an outdated
legal landscape. The relevant EEOC regulations were issued
after this case’s events. See 29 C.F.R. § 1630.14 (effective July
18, 2016) (providing that medical examinations would be
deemed involuntary under ADA if employee’s participation

Case: 16-1402

No. 16-1402

Document: 48

Filed: 01/25/2017

Pages: 15

15

has effect of greater than 30% of total cost of “self-only” health
coverage, and that insurance safe harbor does not apply to
wellness programs). Most important, neither party to this case
has any longer a serious stake in its outcome. The genuine
statutory issues should be decided by a court in a case where
the answers will matter to the parties.
The judgment of the district court dismissing the action is
AFFIRMED for the reasons stated in this opinion.