Dillon v. Norfolk Southern Railway Company

Filing 31

OPINION AND ORDER REGARDING THE PARTIES' 19 , 21 CROSS MOTIONS FOR SUMMARY JUDGMENT Signed by District Judge Gerald E. Rosen. (JOwe)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
THOMAS LEE DILLON,
Plaintiff,
No. 2:13-cv-12484
Hon. Gerald E. Rosen

vs.
NORFOLK SOUTHERN RAILWAY
COMPANY,
Defendant.
___________________________________/

OPINION AND ORDER REGARDING THE PARTIES’ CROSS-MOTIONS
FOR SUMMARY JUDGMENT
I. INTRODUCTION
Plaintiff Thomas Lee Dillon applied for employment with Defendant
Norfolk Southern Railway Company in 2007.

During the hiring process,

Defendant conducted a medical examination to ensure that Plaintiff was fit for
service. Finding nothing remarkable, Defendant hired Plaintiff. Four years later,
Plaintiff went out on medical leave and in processing paperwork Plaintiff
submitted to allow him to return to work, Defendant discovered that Plaintiff had
failed to disclose a previous injury during the hiring process.

So Defendant

separated Plaintiff from employment for this failure on June 8, 2011. Plaintiff
commenced this litigation on June 6, 2013.

1

The issue presented by Plaintiff’s one-count Complaint under the Americans
with Disabilities Act (ADA) is limited. Plaintiff does not claim that Defendant
violated the ADA by separating him on the basis of a disability or by failing to
provide him with a reasonable accommodation. Nor does Plaintiff, a unionized
employee, seek review of Defendant’s actions under the Railway Labor Act.
Instead, this case involves an interesting intersection between an employer’s
obligation to keep certain information related to medical examinations and
inquiries “confidential” under the ADA and an employer’s ability to take adverse
actions against its employees for failing to provide accurate information during the
hiring process.
Plaintiff claims that Defendant violated 42 U.S.C. § 12112(d), the ADA’s
provision governing the confidentiality of information disclosed in the process of
medical examinations and inquiries, when its Medical Department disclosed his
prior injury to its Labor Relations Department and his supervisor, as well as at a
disciplinary hearing.

Defendant disagrees, essentially asserting that the ADA

cannot be used as a shield to insulate an employee’s misrepresentations. The
parties have completed discovery and have now filed cross-motions for summary
judgment. Having reviewed and considered the parties’ briefs and supporting
documents and the entire record of this matter, the Court has determined that the
pertinent allegations and legal arguments are sufficiently addressed in these

2

materials and that oral argument would not assist in the resolution of this motion.
Accordingly, the Court will decide the parties’ motions “on the briefs.” See L.R.
7.1(f)(2). This Opinion and Order sets forth the Court’s ruling.
II. PERTINENT FACTS
The facts of this matter are straightforward and undisputed. Plaintiff applied
for employment with Defendant in February 2007. (Ex. 1 to Plf’s Dep., Dkt. # 211, at 22-27). Defendant hired Plaintiff as a train conductor in August 2007. (Plf’s
Dep., Dkt. # 19-1, at 13). As part of Defendant’s hiring practices and pursuant to
the ADA, Plaintiff then underwent a post-offer, pre-employment medical
examination (known as an employment entrance examination) at Defendant’s
request on August 10, 2007. (Ex. 2 to Plf’s Dep., Dkt. # 21-1, at 28-30).
During this examination, Plaintiff filled out a medical history questionnaire
known as the MED-15. It asked Plaintiff whether he previously or currently had
twenty-five medical conditions, and instructed Plaintiff to answer with “yes,” “no,”
or “don’t know.” (Id. at 28). One of those questions asked whether Plaintiff had
any “hospitalization or surgical procedures,” to which Plaintiff marked “No.”
(Id.). Another asked whether Plaintiff had a “[m]issing/impaired hand, arm, foot,
leg, finger, toe,” and Plaintiff again marked “No.” (Id.) Indeed, the only medical
condition that Plaintiff reported was a contusion on his knee, apparently related to

3

a recent dirt bike accident. (Id. at 28-29; Plf’s Dep., at 21-22, 42). The MED-15
also contained the following “Release, Verification, and Disclosure Statement:”
I certify that the answers given herein are true and complete to the
best of my knowledge. I authorize release of this information to my
employer/prospective employer and whatever investigation is deemed
necessary to confirm statements contained in this report of medical
examination. If it is determined, through investigation or otherwise at
any time, that my answers are untrue or misleading, or material information is omitted, I understand my employment may be terminated,
or, if applicable my application for employment may be rejected. If I
am an applicant for employment, I acknowledge that an offer of
employment, contingent on satisfactory completion of this medical
examination, a urine drug screen, and a background investigation, has
been made to me.
(Ex. 1 to Plf’s Dep., Dkt. # 21-1, at 29 (emphasis added); see also Plf’s Dep., at
23-24).
As it turns out, his answers on the MED-15 were not true and complete to
the best of his knowledge. Plaintiff broke his left femur as a teenager in an
automobile accident, requiring hospitalization and the insertion of a titanium rod
that connected to his leg with screws. (Plf’s Dep., at 34-38). It took six weeks to
heal and Plaintiff still has a two-inch scar on his leg from the incision. (Id. at 3840). Though Plaintiff alleges he orally disclosed this injury to the physician
completing the examination because it “was pertinent information [Defendant] . . .
needed to know” (Id. at 44-45), he did not change his written answers on the MED-

4

15. (Id. at 46). 1 Absent a reference to this injury on the MED-15, Defendant’s
Medical Department would not have known about this injury. (Dr. Lena’s Dep.,
Dkt. # 19-8, at 17).
Plaintiff passed his employment entrance examination and had several years
of unremarkable employment with Defendant. This changed in April 2011, when
he notified his supervisor that he had injured his leg and would need to take some
time off -- which Defendant granted. (Plf’s Dep., at 69-70). In order for Plaintiff
to return to work, Defendant advised Plaintiff of the following:
[D]ue to your recent medical absence and the safety-sensitive nature
of your position, medical information will be needed in order to
determine your fitness for service. . . . Upon your release to return to
work by your treating doctor(s), your treating physician(s) must
provide copies of all medical records related to the evaluation and
treatment of the medical condition(s) that has resulted in your medical
absence. These medical records must include all doctor’s office
visit/progress notes, evaluation reports, diagnostic test reports,
operative reports (if applicable) and treatment records, as well as a
work release that describes any work restrictions or accommodations
currently deemed necessary (and if any, the anticipated duration of).
(Ex. 6 to Plf’s Dep., Dkt. # 21-1, at 33-34). Among the documents that Plaintiff
submitted to Defendant was a treatment note by Dr. Paul Dougherty dated May 4,
2011. (Ex. 11 to Plf’s Dep., Dkt. # 21-1, at 35-36). In this note, Dr. Dougherty
referenced Plaintiff’s prior injury, writing that he “has a known history of a left

1

He also testified that he asked a nurse for clarification as to what was meant by
“surgeries,” who responded that it referred to the removal of his tonsils, adenoids,
appendix, etc. Plaintiff took this to mean “major surgery.” (Plf’s Dep., at 29-32).
5

femur fracture fixed with intramedullary nailing approximately 15 years ago” that
“heal[ed] without incident.” (Id. at 36).
One of Defendant’s nurses, Anita Euell, reviewed Dr. Dougherty’s note,
discovered Plaintiff’s non-disclosure of this injury, and informed Dr. Paula Lina,
Defendant’s Associate Medical Director. (Dr. Lina’s Dep., at 20-21). Dr. Lina
directed Euell to consult with Defendant’s Labor Relations Department to
determine if “they wanted to take some kind of administrative action,” including
discipline.

(Id. at 21).

Upon this consultation, Dr. Lina sent the following

memorandum on May 19, 2011 to Plaintiff’s supervisor, C.M. Irvin, Jr., as part of
making the decision to conduct a disciplinary investigation:
The Medical Department has received a medical report dated May 4,
2011 from Dr. Paul Dougherty regarding Mr. Dillon’s left leg
condition. The report documents that Mr. Dillon has a history of a left
femur fracture fixed with intramedullary nailing approximately 15
years ago. This information was not disclosed during Mr. Dillon’s
August 10, 2007 pre-placement physical examination.
On or around August 10, 2007, Mr. Dillon completed a pre-placement
physical examination FORM MED-15. On the history portion of the
MED-15 examination form, he was specifically asked if he ever had
an “impaired hand, arm, foot, leg, finger, toe” and Mr. Dillon checked
the box for “No.” He was also asked if he ever had a “Hospitalization
or Surgical procedure” or “Other illnesses or injuries” and Mr. Dillon
again checked the box for “No.” Mr. Dillon signed the statement on
the MED-15 form attesting to the fact that his responses “are true and
complete” to the best of his knowledge.
As you are aware, the position of Conductor is safety-sensitive and
physically demanding. The essential job functions of this position
include such activities as prolonged walking/standing on uneven and
6

at times sloping terrain (ballast), heavy lifting/carrying and climbing
in all weather conditions. Applicants for these positions are screened
for all medical conditions which could impact their ability to safely
perform these duties. The pre-placement medical assessment requires
that applicants provide an accurate, honest and complete medical
history. During his pre-placement exam, Mr. Dillon failed to divulge
any information regarding his history of a femur fracture fixed with
intramedullary nailing, and his medical qualification substantially
hinged upon this denial.
Mr. Dillon’s self reported medical history on August 10, 2007, and
therefore, the basis for his qualification have been called into question
following the receipt and review of the medical documentation and
information noted above. When the Norfolk Southern Medical
Department qualified Mr. Dillon as medically fit to begin
employment, it did so based upon what appears to be materially false
information. If Mr. Dillon had disclosed at the time of his preplacement medical examination that he had experienced a femur
fracture fixed with intramedullary nailing, he would not have been
medically qualified at that time for a position of Conductor.
(Ex. 10 to Plf’s Mtn., Dkt. # 19-10; Dr. Lina’s Dep., at 42).2 In disclosing the
content of Plaintiff’s medical records, Dr. Lina “expect[ed Irvin] to follow the
corporate policy and procedures and law when handling or reviewing or looking at
medical records.”

(Dr. Lina’s Dep., at 27-28).

2

That policy “assur[es] that

Dr. Lina drafted two versions of this memorandum. The version in text reflects
the final version, which incorporates edits made by the Labor Relations
Department. Of note, Plaintiff points out that the final version omits the following
prior language regarding whether Defendant would have hired Plaintiff if he had
disclosed the leg injury: “[H]ad Mr. Dillon disclosed his left leg condition . . . ,
absent medical documentation supporting his fitness for service, Mr. Dillon would
not have been considered a candidate for Train Service.” (Ex. 9 to Plf’s Mtn., Dkt.
# 19-9; Plf’s Mtn., Dkt. # 19, at 19-20). The difference between the two letters and
the larger issue of whether the leg injury would have disqualified Plaintiff from
employment is not -- as Plaintiff admits -- relevant to his Section 12112(d) claim.
(Plf’s Mtn., Dkt. # 19, at 27-28).
7

employee medical records are collected and maintained confidentially and in
accordance with applicable law, including the Americans with Disabilities Act.”
(Ex. 7 to Dr. Lina’s Dep., Dkt. 21-2, at 19-22).
On May 26, 2011, Assistant Division Superintendent Michael Wilson
conducted an investigative hearing pursuant to Defendant’s Collective Bargaining
Agreement (CBA) with the United Transportation Union. (Plf’s Dep., at 58; Ex. 6
to Plf’s Mtn., Dkt. # 19-6, at 1; Ex. C to Def’s Mtn., Dkt. # 21-3, at ¶¶ 6-7). The
purpose of the hearing was “to determine the facts and place [Plaintiff’s]
responsibility, if any, in connection with [his] falsification of documents pertinent
to [his] application for employment on August 10th, 2007.” (Ex. 6 to Plf’s Mtn.,
Dkt. # 19-6, at 1). A.P. Sherman, Defendant’s Division Road Foreman, presented
Defendant’s evidence as the Charging Officer. (Id. at 4-18, 40-42). Plaintiff
attended the hearing with two union representatives. (Id. at 1-3). At the hearing,
Sherman introduced three documents: (1) a redacted version of the MED-15 that
only showed information pertinent to Plaintiff’s failure to disclose his prior injury;
(2) a redacted version of Dr. Dougherty’s May 4, 2011 treatment note; and (3) Dr.
Lina’s May 19, 2011 memorandum to Superintendent Irvin.

(Id. at 47-50).3

Wilson issued his decision on June 8, 2011, dismissing Plaintiff from service after

3

In contrast, Plaintiff’s union representatives introduced complete and unredacted
versions of these and other documents at the hearing. (Ex. 6 to Plf’s Mtn., Dkt. #
19-6, at 47-62).
8

concluding that “[t]he evidence adduced in this investigation clearly proved” that
Plaintiff “falsif[ied] . . . documents pertinent to [his] application for employment
on August 10, 2007.” (Ex. 7 to Plf’s Mtn., Dkt. # 19-7).
Before filing this action, Plaintiff appealed Wilson’s decision pursuant to his
rights under the CBA. The parties ultimately resolved Plaintiff’s appeal, and
Defendant reinstated Plaintiff to his old position on March 6, 2013 (but without
compensation for his time out of service). (Plf’s Dep., at 148-56). Plaintiff
commenced this litigation three months later on June 6, 2013.
III. DISCUSSION
A.

Rule 56 Standard
Summary judgment is proper if the moving party “shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). As the Supreme Court has explained, “the
plain language of Rule 56[] mandates the entry of summary judgment, after
adequate time for discovery and upon motion, against a party who fails to make a
showing sufficient to establish the existence of an element essential to that party’s
case, and on which that party will bear the burden of proof at trial.” Celotex Corp.
v. Catrett, 477 U.S. 317, 322 (1986). In addition, where a moving party seeks an
award of summary judgment in its favor on a claim or issue as to which it bears the
burden of proof at trial, this party’s “showing must be sufficient for the court to

9

hold that no reasonable trier of fact could find other than for the moving party.”
Calderone v. United States, 799 F.2d 254, 259 (6th Cir. 1986) (internal quotation
marks, citation, and emphasis omitted).
In deciding a motion brought under Rule 56, the Court must view the
evidence in a light most favorable to the nonmoving party. Pack v. Damon Corp.,
434 F.3d 810, 813 (6th Cir. 2006). Yet, the nonmoving party may not rely on mere
allegations or denials, but must “cit[e] to particular parts of materials in the record”
as establishing that one or more material facts are “genuinely disputed.” Fed. R.
Civ. P. 56(c)(1). But, “the mere existence of a scintilla of evidence that supports
the nonmoving party’s claims is insufficient to defeat summary judgment.” Pack,
434 F.3d at 814 (alteration, internal quotation marks, and citation omitted).
B.

The Americans with Disabilities Act
Plaintiff brings his sole cause of action under the ADA’s general

proscription of discrimination by an employer against a qualified individual on the
basis of a disability. 42 U.S.C. § 12112. More specifically, Section 12112(d)
governs the ways in which an employer may seek out and then use an applicant or
employee’s medical information:
(1) In general. The prohibition against discrimination as referred to in
subsection (a) of this section shall include medical examinations and
inquiries.
***

10

(3) Employment Entrance Examination. A covered entity may require
a medical examination after an offer of employment has been made to
a job applicant and prior to the commencement of the employment
duties of such applicant, and may condition an offer of employment
on the results of such examination, if-(A) all entering employees are subjected to such an
examination regardless of disability;
(B) information obtained regarding the medical condition
or history of the applicant is collected and maintained on
separate forms and in separate medical files and is treated
as a confidential medical record, except that-(i) supervisors and managers may be
informed regarding necessary restrictions on
the work or duties of the employee and
necessary accommodations;
(ii) first aid and safety personnel may be
informed, when appropriate, if the disability
might require emergency treatment; and
(iii) government officials investigating
compliance with this chapter shall be
provided relevant information on request;
and
(C) the results of such examination are used only in
accordance with this subchapter.
(4) Examination and Inquiry.
(A) Prohibited examinations and inquiries. 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.
11

(B) Acceptable examinations and inquiries. A covered
entity may conduct voluntary medical examinations,
including voluntary medical histories, which are part of
an employee health program available to employees at
that work site. A covered entity may make inquiries into
the ability of an employee to perform job-related
functions.
(C) Requirement.
Information obtained under
subparagraph (B) regarding the medical condition or
history of any employee are subject to the requirements
of subparagraphs (B) and (C) of paragraph (3).
A plaintiff need not prove that he or she is a qualified individual with a disability
in order to state a claim under Section 12112(d). Lee v. City of Columbus, Ohio,
636 F.3d 245, 252 (6th Cir. 2011).
C.

Plaintiff’s claim under 42 U.S.C. § 12112(d) fails as a matter of law
It bears repeating that Plaintiff’s claim in this litigation only relates to his

allegation that Defendant failed to keep medical information it obtained pursuant to
an employment entrance examination confidential.4 Plaintiff does not challenge
his termination.

Nor does Plaintiff challenge Defendant’s use of medical

examinations, including for example, whether Defendant subjects all entering
employees to such examinations regardless of disability or whether Defendant
4

Though neither party addressed the issue, the Court questions whether Plaintiff’s
claim here is more properly categorized as one under Section 12112(d)(4)(B)
because Plaintiff’s disclosure of his leg injury occurred as a result of an inquiry
during his employment relative to his ability to return to work. Because Section
12112(d)(4)(C) expressly incorporates the confidentiality provisions of (d)(3), this
is a nonissue.
12

failed to maintain his information on “separate forms and in separate medical
files.” As set forth below, Plaintiff’s confidentiality claim fails as a matter of law.
1.

Plaintiff’s narrow interpretation of Section 12112(d)(3)(B)

The critical inquiry in this case is the breadth of Section 12112(d)(3)(B).
Plaintiff contends that an employer must keep all medical information gained as a
result of an employment entrance examination confidential, and that the three
exceptions set forth in subsections (i) through (iii) are the only permissible
disclosures an employer may make. It is clear, and Defendant does not argue
otherwise, that Defendant’s disclosure of Plaintiff’s medical information does not
fall within these three express subsections (which relate to work restrictions,
emergency treatment, and government investigations).

Because Defendant’s

disclosure did not fit within these three exceptions, Plaintiff requests that this Court
enter partial summary judgment as to Defendant’s liability. (Plf’s Mtn., Dkt. # 19).
In support of this narrow interpretation of Section 12112(d)(3)(B), Plaintiff
directs this Court to three out of circuit district court cases that generally present
the same fact pattern as the one here: Downs v. Massachusetts Bay Transportation
Authority, 13 F. Supp. 2d 130 (D. Mass. 1998); Blanco v. Bath Iron Works
Corporation, 802 F. Supp. 2d 215 (D. Maine. 2011); and Tamburino v. Old
Dominion Freight Lines, Inc., 2012 WL 526426 (D. Oregon Feb. 16, 2012). In all
three cases, an employer terminated an employee for presenting false information

13

during an employment entrance exam, and the employee subsequently brought a
claim under Section 12112(d)(3) or corresponding state law. The Court discusses
each case in turn.
In Downs, the employer terminated the plaintiff for failing to disclose during
an employment entrance examination that he had previously received workers’
compensation benefits and had injured his elbow. 13 F. Supp. 2d at 132-33. The
plaintiff filed a claim for workers’ compensation benefits a few years into
employment and in processing the claim, the employer granted its workers’
compensation claims representative “unlimited access” to the plaintiff’s medical
file. The claims representative discovered the nondisclosure, and the employer
discharged the plaintiff. Id. at 133, 141.
In granting summary judgment to the plaintiff, the Downs court concluded
that the claims representative’s access to the plaintiff’s medical information
violated the confidentiality provisions of Section 12112(d)(3)(B). The court’s
entire discussion is as follows:
Nor does the release of Downs’s medical file to the claims
representative fall within any of the permissible uses of this
confidential information under the ADA and Rehabilitation Act. As
Downs points out, the claims representative is neither a supervisor or
manager, nor a first aid or safety person, nor a government
investigator. Moreover, the purpose for which the information was
sought and used does not meet any of the purposes recited by the
ADA and Rehabilitation Act. Accordingly, the MBTA’s release of
Downs’s medical file violated his right to confidentiality under these
statutes.
14

Id. at 141-42.
Relying upon this reasoning, a Maine district court in Blanco denied a
motion to dismiss a similar Section 12112(d)(3)(B) claim. In that matter, the
plaintiff failed to disclose that he was diagnosed as ADHD on an employment
entrance examination, which the employer’s in-house physician discovered after
the plaintiff requested accommodations. 802 F. Supp. 2d at 217-18. The physician
disclosed the plaintiff’s answers to the examination to the employer’s labor
relations department.

Id. at 218.

The employer subsequently terminated the

plaintiff for failing to disclose his ADHD diagnosis. Id.
The Blanco court resolved the defendant’s motion “as a matter of
straightforward statutory interpretation.”

Id. at 222.

After finding that the

exceptions governing emergency treatment and government investigations did not
apply, the court then turned to the “one potential exception to allow disclosure of
the information in the employment entrance examination medical file: ‘supervisors
and managers may be informed regarding necessary restrictions on the work or
duties of the employee and necessary accommodations.’” Id. at 222-23 (citing
Section 12112(d)(3)(B)(i)). Such an exception did not apply, according to the
Blanco court, because there was:
nothing in the Amended Complaint that would allow the Court to
conclude that Dr. Mazorra disclosed the contents of the medical
questionnaire to the Defendants’ management personnel in order to
15

advise them of “necessary restrictions on the work or duties” for Mr.
Blanco or for “necessary accommodations.” To the contrary, she
disclosed the information to management because in her view he had
lied on the questionnaire, not to advise them of necessary restrictions
or accommodations. The Court cannot squeeze these facts into §
12112(d)(3)(B)(i).
As none of the exceptions appl[y] and as a matter of direct statutory
interpretation, the Court concludes that the Plaintiff has alleged
sufficient facts to avoid dismissal as to whether Dr. Mazorra’s
disclosure violated the confidentiality provision of the ADA.
Id. at 223. The Blanco court also disagreed with the employer’s argument that the
confidentiality requirement only applies to “truthful information. . . . [T]here is no
prevarication exception to the ADA’s confidentiality mandate for employment
entrance examinations, much less for information the company doctor perceives is
inaccurate. It is the information, accurate or not, that the statute protects.” Id. at
224. Finally, the court commented that Downs was “generally consistent” with
this conclusion, again emphasizing that the “ADA does not bar employers from
making employee-authorized disclosures of medical information; the ADA bars
employers from unauthorized disclosures of information obtained from
employment entrance examinations.” Id. at 227.
The third case to which Plaintiff directs this Court is Tamburino, an
unpublished case from the District of Oregon. As with the plaintiffs in Downs and
Blanco, the plaintiff in Tamburino failed to disclose certain medical conditions -scoliosis and carpal tunnel syndrome -- in connection with her hiring as a

16

commercial truck driver. 2012 WL 526426, at *1. The employer fired her three
years later after it discovered these omissions while processing a workers’
compensation claim.
compensation

Id. at *2.

manager

reviewed

More specifically, the employer’s workers’
her

employment

entrance

examination

documentation, compared it to her claim documentation, and discovered the
discrepancy.

Id. at *3.

She then gave the plaintiff’s medical examination

documentation to the employer’s vice president, “who made the decision to
terminate [the plaintiff] for allegedly providing false information.” Id.
Drawing heavily from Downs and Blanco, the Tamburino court found that
the plaintiff adequately stated a cause of action under Oregon’s analogous statute
governing employment entrance examinations. In so reasoning, the court narrowly
interpreted Oregon’s statute (Or. Rev. Stat. 659A.133(3)(b)) and held that an
employer could only disclose certain medical information as provided in the
statute. As applied, the court found that the two managers could only access the
plaintiff’s medical information solely “regarding ‘necessary restrictions on the
work or duties of the employee and necessary accommodations.’” Id. at *9. The
Tamburino court also rejected the employer’s argument that the plaintiff’s falsified
documentation rendered her ineligible to be an employee, and therefore the
disclosure was related to the plaintiff’s “work or duties:” “the reference to work
restrictions and accommodations can only be interpreted as those based on physical

17

or mental disabilities, not on some employment policy against falsifying
information.” Id.
2.

Lee, EEOC guidance, and other persuasive authority

At first blush, these factually analogous cases seemingly support Plaintiff’s
position that Section 12112(d) must be read narrowly to only permit disclosure in
the three enumerated manners. After all, the statute provides three exceptions to
the general confidentiality requirement and there is no dispute that Defendant’s use
of Plaintiff’s medical information did not involve these exceptions. The problem
with this interpretation and these cases, however, is that they cannot be reconciled
with the Sixth Circuit’s decision in Lee v. City of Columbus, 636 F.3d 245 (2011),
as well as with very persuasive authority published by the Equal Employment
Opportunity Commission (EEOC).
In Lee, several employees challenged the City of Columbus’s policy
requiring that employees seeking to return to employment following sick leave,
injury leave, or restricted duty to, among other things, provide a copy of a
physician’s note “stating the ‘nature of the illness’ and whether the employee is
capable of returning to regular duty, ‘to [their] immediate supervisor.’” Id. at 24748. The employees alleged that this policy violated the Rehabilitation Act -- which
incorporates “the ADA’s limitations on the disclosure of medical information set
forth in 42 U.S.C. § 12112(d).” Id. at 247, 252. In granting summary judgment to

18

the employees, the district court determined that the policy violated Section
12112(d)(4)(A) “because supervisory personnel in the chain of command are not
authorized by the statute to have unfettered access to confidential medical
information.” Id. at 251. The district court did so upon a narrow reading of the
ADA -- one that is not dissimilar from the Downs, Blanco, and Tamburino courts:
The ADA and its implementing rules explicitly provide for disclosure
of such medical information to a supervisor only in select
circumstances, and by so expressly limiting disclosure, the statutory
scheme implicitly forecloses disclosure to supervisors for purposes
that fall outside those narrow and specific purposes. If the ADA were
intended to allow full disclosure to a supervisor in all instances, then
there would be no need for the specific disclosure to a supervisor
language. See, e.g., 42 U.S.C. § 12112(d)(3)(B)(i). The city’s view
would mean that the explicit exception for supervisors was mere
surplusage, but there is no basis to reach the conclusion that Congress
did not intend for the specific language concerning supervisors to
constitute a substantive provision.
Id. at 251-52 (citing the district court’s opinion). It therefore found that the policy
“was overly intrusive and improperly provided supervisors with confidential
medical information even when they had no reason to possess such knowledge,
particularly in light of the fact that the City had a human resources department
which presumably could be used to create a ‘confidentiality barrier between these
personnel, whose jobs consist of handling medical information, and supervisors.’”
Id. at 252 (citation omitted).
In reversing, the Sixth Circuit expressly rebuffed the district court’s narrow
reading of Section 12112(d):
19

The ADA clearly permits an employer, including by express
definition a supervisor (as an “agent” of the employer), to make
inquiries and receive medical information in accordance with §
12112(d). See 42 U.S.C. § 12111(2) and (5)(A). Nothing in §
12112(d) prohibits the City from designating an employee’s
immediate supervisor as the initial contact for purposes of
administering its sick leave benefits.
The confidentiality provisions set forth in § 12112(3)(B)(i), cited by
the district court, “protect disabled employees from job
discrimination by ensuring that the results of job-related medical
examinations would not be kept in their personnel files. The statute
goes no further than requiring employers to keep that limited class of
medical records confidential[.]” Yoder v. Ingersoll–Rand Co., 31
F.Supp.2d 565, 569 (N.D. Ohio 1997), aff’d, 172 F.3d 51 (6th Cir.
1998) (table). Section 12112(3)(B)(i) neither expressly nor implicitly
restricts the role of supervisory personnel in receiving and processing
an employee’s medical information.
Plaintiffs have no basis to challenge the Directive based on
unwarranted speculation that supervisors will disobey the statute’s
confidentiality strictures or the City’s Directive. Supervisors are
obligated to follow the City’s rules and policies, which include an
express prohibition against discrimination on the basis of disability
and disclosure of confidential medical information. Division policy
prohibits supervisors from sharing or disseminating doctors’ notes or
any confidential information contained therein.
Id. at 258 (emphasis added).5 Lee, therefore, defines the scope and intent of
Section 12112(d)’s use of the phrase “confidential” -- it must be interpreted with
an eye towards eliminating discriminatory actions by employers on the basis of
information gleaned from job-related medical examinations.

5

The Lee court also noted that such an interpretation was consistent with both the
EEOC’s policy governing sick-leave for its own employees and the EEOC’s
administrative guidance. Id.
20

Plaintiff unconvincingly argues that Lee “is limited to the facts of that case
and has no application to the facts before this Court.” (Plf’s Resp., Dkt. # 23, at
15). He notes that Lee only involved the disclosure of medical information of
employees returning from leave, not information garnered from an employment
entrance examination. (Id. at 16-18). The Tamburino court also echoes this
argument, distinguishing Lee as follows:
However, Lee addressed physicians’ notes for sick leave and not the
post-offer questionnaires at issue here. Here the issue is whether the
information was utilized consistent with the purpose of the statute for
determining necessary restrictions or accommodations. A review for
disciplinary purposes is not consistent with that purpose.
Tamburino, 2012 WL 526426, at *10. This Court is not convinced that there is a
distinction in this difference.

Though Lee analyzed the provision governing

medical examinations and inquiries of current employees (Section 12112(d)(4)),
that provision expressly incorporates the confidentiality provision contained within
the

provision

governing

employment

entrance

examinations

(Section

12112(d)(3)(B)). 42 U.S.C. § 12112(d)(4)(C); Lee, 363 F.3d at 250-51.
Plaintiff also asserts that Lee stands for the limited proposition that
Defendant

could

have

disclosed

Plaintiff’s

medical

information

contemporaneously with his hiring in 2007 for the purpose of evaluating
“necessary accommodations, restrictions or general fitness for duty with
supervision at that time.” (Plf’s Resp., Dkt. # 23, at 17). But Lee counsels that

21

Section 12112(d) cannot be so strictly construed given the breadth with which it
breathes into the word “confidential.”

And, as set forth in the following

paragraphs, guidance from the EEOC and other courts confirm that the Section’s
confidentiality provision cannot be used to protect an employee from an adverse
action that is not on the basis of a disability (which Plaintiff does not allege), but
rather upon an employee’s failure to disclose requested information during an
employment entrance examination.
First, the Lee Court’s endorsement of a broader statutory interpretation
meshes with the EEOC’s own interpretation of Section 12112(d). The EEOC’s
Enforcement Guidance on employment entrance examinations contemplates that
decision makers may have medical information when making an employment
decision so long as that decision is made “consistent with the ADA:”
May medical information be given to decision-makers involved in the
hiring process?
Yes. Medical information may be given to -- and used by -appropriate decision-makers involved in the hiring process so they
can make employment decisions consistent with the ADA. In addition,
the employer may use the information to determine reasonable
accommodations for the individual. For example, the employer may
share the information with a third party, such as a health care
professional, to determine whether a reasonable accommodation is
possible for a particular individual. The information certainly must be
kept confidential.
Of course, the employer may only share the medical information with
individuals involved in the hiring process (or in implementing an
affirmative action program) who need to know the information. For
22

example, in some cases, a number of people may be involved in
evaluating an applicant. Some individuals may simply be responsible
for evaluating an applicant’s references; these individuals may have
no need to know an applicant’s medical condition and therefore
should not have access to the medical information.
EEOC,

ENFORCEMENT

QUESTIONS

AND

GUIDANCE:

PREEMPLOYMENT

DISABILITY-RELATED

MEDICAL EXAMINATIONS (Oct. 10, 1995) (emphasis added),

available at http://www.eeoc.gov/policy/docs/preemp.html. The EEOC has also
opined that employers may separate employees who falsify information on
employment entrance examinations. EEOC, A TECHNICAL ASSISTANCE MANUAL
ON THE

EMPLOYMENT PROVISIONS (TITLE I) OF THE AMERICANS WITH DISABILITIES

ACT § 9.8 (“An employer may refuse to hire or may fire a person who knowingly
provides a false answer to a lawful post-offer inquiry about his/her condition or
workers’ compensation history.”).

Here, individuals other than the Medical

Department -- i.e., those individuals involved in evaluating whether to take an
adverse action (an “employment decision”) against Plaintiff -- needed information
concerning Plaintiff’s failure to disclose his prior injury. Defendant’s disclosure in
this instance is consistent with the EEOC’s reasonable interpretation of the ADA
that decision makers may have access to an employee’s medical information for
the purpose of making an employment decision consistent with the ADA.
Plaintiff takes issue with this administrative guidance. First, what Plaintiff
does not do. Though Plaintiff generally references that “pronouncements from the

23

EEOC are not binding on this Court” (Plf’s Resp., Dkt. # 23, at 23) (citing White v.
Burlington N. and Santa Fe Ry. Co, 364 F.3d 789, 812 (6th Cir. 2004) and Lee,
supra), Plaintiff leaves out the fact that this guidance “while non-binding
‘constitute[s] a body of experience and informed judgment to which courts and
litigants may properly resort for guidance.’” Lee, 636 F.3d at 256 (citation omitted
and alteration in original); Kroll v. White Lake Ambulance Auth., 691 F.3d 809,
815 (6th Cir. 2012) (describing Lee as “reaffirm[ing] that the EEOC Enforcement
Guidance is ‘very persuasive authority’ in questions of statutory interpretation of
the ADA”). He has put forth no argument as to why the EEOC’s Enforcement
Guidance is substantively unreasonable. Second, Plaintiff points to the fact that
the EEOC issued the following reasonable cause determination in this case: “Based
on the evidence obtained during the investigation, there is reasonable cause to
believe that [Defendant] violated the ADA by terminating the [Plaintiff]’s
employment on the basis of its impermissible disclosure of his confidential
records.” (Plf’s Resp., Dkt. # 23, at 23; Ex. 13A to Plf’s Resp., Dkt. # 30-1). This
may be true, but the record is silent as to what facts -- such as the evidence
available to the EEOC at the time that it came to this conclusion -- the EEOC
considered when making this determination. Moreover, the EEOC’s reference to
“terminating

the

Charging

Party’s

employment”

suggests

the

EEOC’s

determination goes to the merits of Plaintiff’s discharge rather than Defendant’s

24

disclosure of his medical information. Without such facts and clarification, this
Court refuses to draw any inference based on this determination. Alexander v.
CareSource, 576 F.3d 551, 563 (6th Cir. 2009).6
Second, other courts have relied upon the EEOC’s body of expertise to
similarly reject such narrow constructions of Section 12112(d). In O’Neal v. City
of Albany, for example, the Seventh Circuit also relied upon the EEOC’s
Preemployment Disability-Related Questions and Medical Examinations Guidance
to find that an employer did not violate its confidentiality obligations by providing
the results of an applicant’s medical examination to hiring managers:
[S]uch a disclosure was contemplated by § 12112(d)(3), given that the
statute permits employers to condition a job offer on the results of a
medical examination, . . . [that the hiring managers] needed to know
the results, . . . [and that the plaintiff did] not allege that his medical
information was provided to anyone else in the police department or
that it was disseminated to anyone outside of the police department.
293 F.3d 998, 1009 (7th Cir. 2002). Similarly, a Northern District of Georgia court
held that an in-house attorney’s forwarding of a former employee’s medical
information held by the employer’s third-party FMLA administrator to outside

6

Plaintiff also contends that the above quotation from the Technical Assistance
Manual only relates to evaluating a workers’ compensation claim and is taken out
of context. But there is nothing unique to the circumstances under which an
employer learns of a misrepresentation for purposes of evaluating a workers’
compensation claim versus another instance, such as in processing an employee’s
return to work paperwork.
25

counsel for the purpose of defending against litigation brought by the former
employee did not violate Section 12112(d):
[T]he proper concern is “ensuring that the information disclosed
pursuant to an employer’s medical inquiry spreads no farther than
necessary to satisfy the legitimate needs of both employer and
employee.” Here, the Court finds that preserving and obtaining
documents for the purpose of defending oneself in ongoing litigation
is a legitimate purpose. And, that limiting the disclosure to the inhouse counsel assigned to the litigation and the outside counsel
defending the suit is no further than necessary.
Floyd v. SunTrust Banks, Inc., 878 F. Supp. 2d 1316 (N.D. Ga. 2012) (citing Doe
v. United States Postal Service, 317 F.3d 339, 344 (D.C. Cir. 2003)) (emphasis
added); see also Scott v. Leavenworth Unified Sch. Dist., 190 F.R.D. 583, 585-87
(D. Kan. 1999) (rejecting an employer’s strict reading of Section 12112(d) in the
context of a discovery privilege dispute). Contrary to Plaintiff’s position that these
cases are factually distinct (Plf’s Resp., Dkt. # 23, at 18-22), they stand for the
more general proposition that Section 12112(d) cannot be read through the narrow
prism that Plaintiff suggests.
3.

Application

Consistent with Lee, the EEOC’s guidance, and the other above cited
authority, this Court finds that Plaintiff has not established that there are material
facts in dispute as to whether Defendant violated Section 12112(d)’s

26

confidentiality requirements. 7 Defendant’s medical personnel disclosed Plaintiff’s
prior injury (and his failure to disclose such an injury) to Defendant’s Labor
Relations Department, who in turn authorized the disclosure to Plaintiff’s
supervisor for the purpose of commencing an investigative hearing. There is
nothing in the record indicating that Defendant disclosed Plaintiff’s information to
those individuals who did not need to know, or that the information (in contrast to
his omission) was used to take an adverse action against Plaintiff. Moreover,
Defendant took steps to limit the information that was disclosed by redacting
information not pertinent to the disciplinary investigation.
While supported by some out of circuit case law, Plaintiff’s interpretation is
inconsistent with binding Sixth Circuit authority and would stand the ADA on its
head. To accept Plaintiff’s position on the structure of Section 12112(d), this
Court must sanction a no-win proposition for any employer.

That is, if an

employee provides false information that goes undetected during an ADA
authorized examination but later comes to light, the employer could either: (1) use
the information -- or for that matter, the lack of disclosing certain information -and risk liability under Section 12112(d); or (2) don’t use the information and
therefore encourage employees to be less than forthcoming during such

7

It is, therefore, unnecessary for this Court to determine whether Defendant’s
obligations to comply with the CBA and the Railway Labor Act alternatively
authorized the disclosure.
27

examinations. This Court cannot hold that the ADA insulates an employee from
an adverse action when that employee fails to provide accurate information on an
employment entrance examination because such a use is not expressly enumerated
within Section 12112(d). The express purpose of the Americans with Disabilities
Act, as amended, is “to provide a clear and comprehensive national mandate for
the elimination of discrimination against individuals with disabilities.” 42 U.S.C. §
12101(b)(1). This protective shield provided to employees by the ADA cannot
also be used by these employees as a sword to defend an employee’s own
dishonest conduct.

As set forth in Lee, Section 12112(d)’s confidentiality

provisions “protect disabled employees from job discrimination by ensuring that
the results of job-related medical examinations would not be kept in their
personnel files.”

For this Court to extend this purpose of protecting against

discrimination on the basis of disability to permit Plaintiff to bring his claim under
Section 12112(d) -- whether he fits within the statutory definition of a qualified
individual with a disability or not -- would lead to “an absurd result[]” and “an
interpretation inconsistent with the intent of Congress.” Walker v. Bain, 257 F.3d
660, 667 (6th Cir. 2001).8

8

Plaintiff’s theory also cuts against the public policy foundations of Section
12112(d). This Section recognizes that employers have workplace safety
obligations to consider when hiring applicants and returning employees to work
from a medical-related leave, and as such, expressly authorizes employers to
conduct medical examinations within the confines of the ADA. Employers that
28

The Court therefore enters Summary Judgment for Defendant and dismisses
Plaintiff’s Complaint with prejudice.
IV. CONCLUSION
For all of the foregoing reasons,
IT IS HEREBY ORDERED that Defendant’s Motion for Summary
Judgment [Dkt. # 21] is GRANTED.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Summary Judgment
[Dkt. # 19] is DENIED.
IT IS FURTHER ORDERED that Plaintiff’s Complaint is DISMISSED
WITH PREJUDICE.
IT IS SO ORDERED.

Dated: July 31, 2014

s/Gerald E. Rosen
Chief, Judge, United States District Court

fail to take these workplace safety obligations into account -- especially in “safetysensitive” work environments such as Plaintiff’s -- risk exposure to liability on a
multitude of levels. As but one example, consider Defendant’s potential liability in
the following hypothetical: Defendant does not conduct medical examinations as
part of its hiring practice for conductors, fails to discover that Plaintiff’s leg injury
did not in fact heal, and Plaintiff’s leg injury causes a train accident -- one that
could have been avoided but for the injury. Permitting an employer to take an
adverse action against an employee for failing to provide accurate information
during an employment entrance examination is consistent with Section 12112(d)’s
public policy anchor as it encourages employees to provide accurate information to
employers about their medical history.
29

I hereby certify that a copy of the foregoing document was served upon the parties
and/or counsel of record on July 31, 2014, by electronic and/or ordinary mail.
s/Julie Owens
Case Manager, [phone]

30