                     RECOMMENDED FOR FULL-TEXT PUBLICATION
                          Pursuant to Sixth Circuit Rule 206
                                File Name: 12a0276p.06

              UNITED STATES COURT OF APPEALS
                            FOR THE SIXTH CIRCUIT
                              _________________


                                               X
                                                -
 EMILY KROLL,
                                                -
                           Plaintiff-Appellant,
                                                -
                                                -
                                                    No. 10-2348
          v.
                                                ,
                                                 >
                                                -
                        Defendant-Appellee. -
 WHITE LAKE AMBULANCE AUTHORITY,
                                               N
                  Appeal from the United States District Court
             for the Western District of Michigan at Grand Rapids.
               No. 1:09-cv-626—Gordon J. Quist, District Judge.
                              Argued: March 8, 2012
                       Decided and Filed: August 22, 2012
            Before: MOORE, SUTTON, and DONALD, Circuit Judges.

                                _________________

                                    COUNSEL
ARGUED: Bradley K. Glazier, BOS & GLAZIER, P.L.C., Grand Rapids, Michigan, for
Appellant. Michael S. Bogren, PLUNKETT COONEY, Kalamazoo, Michigan, for
Appellee. ON BRIEF: Bradley K. Glazier, BOS & GLAZIER, P.L.C., Grand Rapids,
Michigan, for Appellant. Michael S. Bogren, PLUNKETT COONEY, Kalamazoo,
Michigan, for Appellee.
        MOORE, J., delivered the opinion of the court, in which DONALD, J., joined,
and SUTTON, J., joined in part. SUTTON, J. (pp. 17–18), delivered a separate
dissenting opinion.
                                _________________

                                     OPINION
                                _________________

       KAREN NELSON MOORE, Circuit Judge. Emily Kroll (“Kroll”) appeals the
district court’s grant of summary judgment in favor of White Lake Ambulance Authority
(“WLAA”), Kroll’s former employer, on claims under the Americans with Disabilities


                                          1
No. 10-2348            Kroll v. White Lake Ambulance                                               Page 2


Act (“ADA”). Kroll argues that the district court erred in holding as a matter of law that
the counseling WLAA ordered Kroll to attend does not constitute a “medical
examination” under 42 U.S.C. § 12112(d)(4)(A). WLAA contends that the district court
properly granted summary judgment in its favor and asserts, for the first time on appeal,
that Kroll lacks standing to bring suit. This dispute presents an issue of first impression
in the Sixth Circuit as to the meaning of “medical examination” under 42 U.S.C.
§ 12112(d)(4)(A). For the reasons that follow, we VACATE the judgment of the district
court and REMAND for further proceedings consistent with this opinion.

                 I. BACKGROUND AND PROCEDURAL HISTORY

A. Background

         In September 2003, Kroll began working for WLAA as an Emergency Medical
Technician (“EMT”) specialist. R. 1 (Complaint ¶ 6). Kroll was generally considered
to be a “good EMT” and a “good employee” by her direct supervisor, Brian Binns
(“Binns”). R. 50-15 (Binns Dep. at 66, 100). However, after Kroll became romantically
involved with one of her co-workers at WLAA, Binns and the office manager, Jean
Dresen (“Dresen”), received reports of concerns from WLAA employees about Kroll’s
well being. See, e.g., R. 50-12 (Dresen Dep. at 27); R. 50-11 (Callison Dep. at 6, 12,
14).

         Kroll maintains that on April 21, 2008 Dresen “requested” that Kroll “receive
psychological counseling.”1 R. 1 (Complaint ¶ 8). Dresen informed Kroll that she had
spoken with Mike Weesies (“Weesies”),2 an administrative case manager at the Hackley
Workplace Health office,3 and that Weesies had referred Dresen to Mark Graves

         1
          During her deposition, Dresen was reticent to testify that she believed that Kroll needed
psychological counseling, but stated that she believed Kroll could benefit from talking with a “professional
health care provider.” R. 53-1 (Dresen Dep. at 56).
         2
         Dresen stated that Weesies was WLAA’s “Employee Assistance Program director.” R. 50-13
(Dresen Letter at 2).
         3
         Dresen testified that Hackley Workplace Health is “like” a “[w]orkers’ comp[ensation] office”
where WLAA would refer people injured on the job. R. 53-1 (Dresen Dep. at 35). Binns stated that
Hackley Workplace Health is “a medical organization that [WLAA] could send people who had family
problems, [or] had life problems” for assistance. R. 52-4 (Binns Dep. at 59-60).
No. 10-2348         Kroll v. White Lake Ambulance                                    Page 3


(“Graves”) regarding the availability of counseling. R. 50-12 (Dresen Dep. at 35-36).
Dresen testified that she did not know Graves’s title or whether he was a mental-health
professional. Id. at 36. Dresen told Kroll that she should contact the Red Cross
regarding financial assistance for counseling, and also requested that Kroll authorize the
release of her counseling records so that WLAA could monitor her attendance. Id. at 39-
40. Dresen stated that Kroll was receptive to the idea of counseling and informed
Dresen that she would pursue it “right away.” R. 50-13 (Dresen Letter at 3). Kroll, on
the other hand, testified that Dresen instructed her to seek counseling from Kim Jahn
(“Jahn”), but that Kroll was not amenable because Jahn “was a neighbor and friend of”
Dresen and Kroll had heard negative things about Jahn. R. 50-7 (Kroll Dep. at 139-40).
There was no testimony as to Jahn’s profession or qualifications.

        A few days later on April 28, 2008, then-director of WLAA, Binns, met with
Kroll and Kroll’s father following a dispute between Kroll and another WLAA
employee. R. 50-15 (Binns Dep. at 66); R. 1 (Complaint ¶ 10). Binns told Kroll that he
had received a “complaint in regards to [Kroll] screaming at a male acquaintance [on the
phone] . . . while . . . driving a vehicle loaded with a patient . . . [in] emergency status
with lights and sirens.” R. 52-4 (Binns Dep. at 61). Because Binns was concerned about
Kroll’s ability to perform her job safely, he told Kroll that she must attend counseling
in order to continue working at WLAA. Id. at 61-62; R. 50-15 (Binns Dep. at 99).
Binns testified that he didn’t “think” that he “used the term ‘psychological’” in
describing the counseling that he asked Kroll to attend. R. 52-4 (Binns Dep. at 59).
However, when asked whether it would “be fair to say” that Binns requested that Kroll
“see a psychologist to discuss issues related to her mental health,” Binns responded
affirmatively. Id. at 60. Kroll told Binns that she would not attend the counseling, left
the meeting, and did not return to work at WLAA. R. 53-4 (Kroll Dep. at 178). At her
deposition, Kroll testified that because WLAA told her that she would have to pay for
the counseling out of pocket, she “told them [she] did not have the monetary funds to
seek counseling,” although she would have been willing to attend the counseling if it
was provided to her free of charge. Id.
No. 10-2348          Kroll v. White Lake Ambulance                                       Page 4


B. Procedural History

        On May 30, 2008, Kroll filed a sex-discrimination complaint with the Michigan
Department of Civil Rights (“MDCR”) and the Equal Employment Opportunity
Commission (“EEOC”). R. 1 (Complaint ¶ 12). On February 23, 2009, Kroll filed
another complaint with the EEOC alleging ADA violations. Id. ¶ 13. On April 1, 2009,
the EEOC and MDCR issued Kroll a right-to-sue letter for her sex-discrimination
complaints, id. ¶ 14, and, on June 26, 2009, the EEOC issued Kroll a right-to-sue letter
with respect to her ADA claims, id. ¶ 15.

        On July 9, 2009, Kroll filed a complaint in federal district court against WLAA
alleging violations of the ADA and Title VII. Id. ¶ 16. Specifically, Kroll contended
that WLAA’s demand that Kroll attend counseling was in violation of 42 U.S.C.
§ 12112(d)(4) of the ADA (Count 1), that WLAA improperly fired Kroll in retaliation
for her refusal to attend counseling (Count II), and that WLAA discriminated against
Kroll on the basis of sex by requiring that she attend counseling (Count III).

        On June 9, 2010, WLAA moved for summary judgment on all counts. R. 50
(Summary Judgment Mot.). In reply, Kroll stipulated to summary judgment on Count
III, R. 51 (Summary Judgment Resp. at 1 n.1), and did not present arguments in
opposition to summary judgment on Count II, see id. On August 19, 2010, the district
court granted WLAA’s motion for summary judgment, concluding that “counseling
alone does not constitute a medical examination under the ADA” and that, therefore,
WLAA’s requirement that Kroll attend counseling as a condition of continued
employment was not governed by 42 U.S.C. § 12112(d)(4). R. 57 (Dist. Ct. Op. at 6).

        Kroll filed a timely motion to alter or amend the judgment pursuant to Federal
Rule of Civil Procedure 59(e).4 R. 59 (Mot. to Alter Judgment). The district court




        4
          Kroll’s motion was governed by the new twenty-eight day time limit for Rule 59 motions
effective December 1, 2009. See FED. R. CIV. P. 59(e) advisory committee’s notes; 12 CHARLES ALAN
WRIGHT, ARTHUR R. MILLER, MARY KAY KANE & RICHARD L. MARCUS, FEDERAL PRACTICE AND
PROCEDURE § 3182 (2d ed. 2012).
No. 10-2348            Kroll v. White Lake Ambulance                                              Page 5


denied the motion on September 20, 2010. R. 61 (Dist. Ct. Order). Kroll timely
appeals.5 R. 62 (Notice of Appeal).

                                           II. ANALYSIS

A. Standard of Review

          “We review a district court’s grant of summary judgment de novo.” Green v.
Throckmorton, 681 F.3d 853, 859 (6th Cir. 2012). Summary judgment is proper where
“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). All “inferences to be drawn from
the underlying facts must be viewed in the light most favorable to the party opposing the
motion.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)
(internal quotation marks and alterations omitted). However, “[t]he mere existence of
a scintilla of evidence in support of the non-moving party’s position will be insufficient
to defeat a motion for summary judgment; there must be evidence on which the jury
could reasonably find for the non-moving party.” Moldowan v. City of Warren, 578 F.3d
351, 374 (6th Cir. 2009) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252
(1986)) (internal quotation marks and alterations omitted), cert. denied, 130 S. Ct. 3504
(2010).

B. Standing

          In this appeal WLAA asserts, for the first time, that Kroll lacks standing to bring
her claim under the ADA because Kroll “never underwent the counseling” and therefore
“cannot demonstrate any concrete injury.” Appellee Br. at 31. Because standing is
jurisdictional, we may address it at any point in the proceedings, including for the first
time on appeal. Zurich Ins. Co. v. Logitrans, Inc., 297 F.3d 528, 531 (6th Cir. 2002).




          5
          Kroll filed a notice of appeal on October 18, 2010 seeking appeal of the district court’s initial
grant of summary judgment in favor of WLAA, twenty-eight days after the entry of the order denying
Kroll’s motion to alter or amend judgment. Kroll’s notice of appeal was timely because “[u]nder Fed. R.
App. P. 4(a)(4)(A)(iv), a timely Rule 59(e) motion automatically tolls the period for filing a notice of
appeal.” Howard v. United States, 533 F.3d 472, 475 (6th Cir. 2008).
No. 10-2348           Kroll v. White Lake Ambulance                                           Page 6


        To satisfy Article III’s standing requirements, a plaintiff must plead a concrete,
particularized, and imminent injury in fact caused by the defendant that a favorable
judicial outcome would likely remedy. See Smith v. Jefferson Cnty. Bd. of Sch.
Comm’rs, 641 F.3d 197, 206 (6th Cir.) (en banc) (quoting Friends of the Earth, Inc. v.
Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000)), cert. denied, 132 S. Ct.
103 (2011). Standing to bring suit under 42 U.S.C. § 12112(d) is a somewhat
contentious and confusing issue in the federal courts of appeals. See, e.g., Indergard v.
Ga.-Pac. Corp., 582 F.3d 1049, 1056 n.3 (9th Cir. 2009) (criticizing dissent’s suggested
insertion of “a proximate-causation requirement in the context of § 12112(d)(4)(A)”
standing). For example, courts have confused standing with the question whether a
plaintiff must be disabled to bring suit under 42 U.S.C. § 12112(d), see, e.g., Conroy v.
N. Y. State Dep’t of Corr. Servs., 333 F.3d 88, 93-95 (2d Cir. 2003), which goes to
whether “an essential element of the claim can be established,” not standing, see Griffin
v. Steeltek, Inc., 160 F.3d 591, 593 (10th Cir. 1998) (internal quotation marks omitted),
cert. denied, 526 U.S. 1065 (1999).6

        The standing question at issue here is what harm, if any, a plaintiff must allege
to bring suit under 42 U.S.C. § 12112(d). See, e.g., O’Neal v. City of New Albany,
293 F.3d 998, 1007 (7th Cir. 2002) (“[T]he courts have required that a nondisabled
plaintiff at least show some tangible injury-in-fact caused by the § 12112(d) violation.”).
Relying on precedent from other circuits, WLAA argues that a violation of 42 U.S.C.
§ 12112(d) does not generate a cognizable harm for standing purposes and, therefore,
Kroll must point to some other harm suffered as a result. See Tice v. Centre Area
Transp. Auth., 247 F.3d 506, 519 (3d Cir. 2001) (stating that all federal courts of appeals
to consider the issue have held that a violation of § 12112(d) is alone insufficient to
confer standing); Armstrong v. Turner Indus., Inc., 141 F.3d 554, 561 (5th Cir. 1998)
(There is no “indication either in the text of the ADA or in its legislative history that a
violation . . . , in and of itself, was intended to give rise to damages liability.”); see also

        6
          Most courts, including this Circuit, have concluded that disability is not an element of a
§ 12112(d) claim, see Lee v. City of Columbus, 636 F.3d 245, 252 (6th Cir. 2011) (citing opinions
endorsing this position from the Second, Eighth, Tenth, and Eleventh Circuits); see also Bates v. Dura
Auto. Sys., Inc., 625 F.3d 283, 286 (6th Cir. 2010).
No. 10-2348         Kroll v. White Lake Ambulance                                     Page 7


Indergard, 582 F.3d at 1060 (O’Scannlain, J., dissenting). WLAA contends that Kroll
cannot identify such harm because Kroll never underwent counseling and was opposed
to counseling only insofar as she was required to pay for it out-of-pocket.

        It is an open question in the Sixth Circuit whether a violation of 42 U.S.C.
§ 12112(d), by itself, generates a cognizable harm for standing purposes; however, this
case does not present occasion for us to answer it. Kroll has alleged an injury
proximately caused by the violation of 42 U.S.C. § 12112(d): the termination of her
employment. See Griffin, 160 F.3d at 595 (distinguishing Armstrong on ground that
plaintiff “sufficiently alleged . . . an injury in fact, specifically” that plaintiff was not
hired as a result “of his responses to the impermissible questions”). Because we have
the capacity to provide a remedy for this harm, the requirements of Article III standing
are met. See Smith, 641 F.3d at 206.

        The Fifth Circuit’s decision in Armstrong, which WLAA urges us to apply, does
not alter this result. In Armstrong, it was already the law of the case that the improper
disability inquiry was not a proximate cause of the employer’s decision not to hire the
plaintiff. 141 F.3d at 560, 562; cf. Griffin, 160 F.3d at 595 (reaching conclusion
opposite to Armstrong). There is no such precedent in this case, and Kroll makes a
viable claim that her termination did proximately result from WLAA’s instruction to
attend counseling.     In addition, Armstrong dealt with cognizable injury in the
preemployment context, where an individual inherently has a weaker stake in the
employment position. 141 F.3d at 556-57. Kroll alleges harm resulting from her
termination after approximately four-and-a-half years of employment with WLAA. See
Indergard, 582 F.3d at 1056 n.3 (distinguishing Armstrong based on its preemployment
context). Although Kroll was a part-time employee and did not receive full benefits, she
maintains that she worked approximately 160 to 176 hours each two-week period. R.
53-4 (Kroll Dep. at 23-24). This suggests that her employment with WLAA was a
significant part of her life and livelihood, and that she had a substantial interest in
maintaining her employment with WLAA.
No. 10-2348           Kroll v. White Lake Ambulance                                           Page 8


        Based on the foregoing, we conclude that Kroll has pleaded a claim for which she
has Article III standing. We, therefore, now consider whether the district court properly
granted summary judgment in favor of WLAA.

C. “Medical Examination” Under 42 U.S.C. § 12112(d)(4)

        The more difficult question presented in this appeal is whether the counseling
that Kroll was instructed to attend constitutes a “medical examination” under 42 U.S.C.
§ 12112(d)(4)(A). The district court concluded that it does not and, as a result, granted
WLAA’s motion for summary judgment. The district court reached this conclusion by
determining categorically that “counseling alone does not constitute a medical
examination under the ADA.” R. 57 (Dist. Ct. Op. at 6). Construing the facts in the
light most favorable to Kroll, we conclude that this decision was in error for the reasons
that follow.

        Title 42 U.S.C. § 12112(d)(4)(A) prohibits employers from “requir[ing] a
medical examination” or “mak[ing] inquiries of an employee as to whether such
employee is an individual with a disability . . . unless such examination or inquiry is
shown to be job-related and consistent with business necessity.”7 Thus, employees can
be instructed to undergo medical examinations by employers only “in certain limited
circumstances,” confined by the “job-relatedness” and “business necessity”
requirements. EEOC v. Prevo’s Family Mkt., Inc., 135 F.3d 1089, 1094 (6th Cir. 1998)
(“[T]he statute was intended to prevent against ‘medical tests and inquiries that do not
serve a legitimate business purpose.’”) (quoting 29 C.F.R. § 1630.13(b)). The EEOC has
explained that this restriction “reflect[s] Congress’s intent to protect the rights of
applicants and employees to be assessed on merit alone, while protecting the rights of
employers to ensure that individuals in the workplace can efficiently perform the
essential functions of their jobs.” R. 52-3 (EEOC, Enforcement Guidance: Disability-
Related Inquiries and Medical Examinations of Employees Under the Americans with



        7
         Pursuant to 42 U.S.C. § 12112(d)(4)(B), employers are permitted to “conduct voluntary medical
examinations” and “make inquires into the ability of an employee to perform job-related functions.”
No. 10-2348            Kroll v. White Lake Ambulance                                              Page 9


Disabilities Act (ADA), at 4). In essence, the restriction strikes a balance between
competing interests.

         The ADA’s legislative history provides little insight into the intended meaning
or scope of the term “medical examination” in § 12112(d)(4).8 As a result, the best
interpretive aid is the Enforcement Guidance that the EEOC has published to explain and
clarify the terms of § 12112(d)(4). The EEOC Enforcement 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 (quoting White v.
Burlington N. & Santa Fe Ry. Co., 364 F.3d 789, 812 (6th Cir. 2004) (en banc)); see also
AT&T Corp. v. Hulteen, 556 U.S. 710, 723 n.5 (2009) (same). We recently reaffirmed
that the EEOC Enforcement Guidance is “very persuasive authority” in questions of
statutory interpretation of the ADA. Lee, 626 F.3d at 256 (quoting White, 364 F.3d at
812) (internal quotation marks omitted).

         The EEOC Enforcement Guidance: Disability-Related Inquiries and Medical
Examinations of Employees defines “medical examination” as “a procedure or test that
seeks information about an individual’s physical or mental impairments or health.”
R. 52-3 (EEOC, Enforcement Guidance: Disability-Related Inquiries and Medical
Examinations of Employees, at 5-6). It provides a seven-factor test for analyzing
whether a test or procedure qualifies as a “medical examination” and notes that “one
factor may be enough to determine that a test or procedure is medical”:

         (1) whether the test is administered by a health care professional;
         (2) whether the test is interpreted by a health care professional;
         (3) whether the test is designed to reveal an impairment or physical or
             mental health;
         (4) whether the test is invasive;



         8
          There is very little discussion of § 12112(d)(4) in the ADA’s legislative history. There was a
proposal to replace the “business necessity” requirement with a “consistent with legitimate business goals”
standard, but the “business necessity” language prevailed. 1 HENRY H. PERRITT, JR., AMERICANS WITH
DISABILITIES ACT HANDBOOK 22 (4th ed. 2003). In addition, the House added § 12112(d)(4)(B), which
permits voluntary medical examinations and inquiries related to job performance, to the Senate-enacted
version of the bill. H.R. CONF. REP. NO. 101-596 (1990), reprinted in 1990 U.S.C.C.A.N. 565, 568-69.
These pieces of legislative history do not elucidate the meaning of “medical examination.”
No. 10-2348           Kroll v. White Lake Ambulance                                 Page 10


        (5) whether the test measures an employee’s performance of a task or
            measures his/her physiological responses to performing the task;
        (6) whether the test normally is given in a medical setting; and,
        (7) whether medical equipment is used.

Id. at 6. The guidance further explains that “psychological tests that are designed to
identify a mental disorder or impairment” are “medical examinations,” while
“psychological tests that measure personality traits such as honesty, preferences, and
habits” are not. Id. This explanation is in keeping with the EEOC’s recognition in its
Enforcement Guidance on Psychiatric Disabilities that “[t]raits or behaviors are not, in
themselves, mental impairments.”             EEOC, Enforcement Guidance on the
Americans      with     Disabilities   Act   and    Psychiatric     Disabilities    (1997),
http://www.eeoc.gov/policy/docs/psych.html.

        Thus, the EEOC instructs that to determine whether something constitutes a
“medical examination” one must consider whether it is likely to elicit information about
a disability, providing a basis for discriminatory treatment. The EEOC explains that
prohibiting such inquiries prevents discrimination by precluding employers from
obtaining information about “nonvisible disabilities, such as . . . mental illness,” and then
taking adverse employment actions “despite [an individual’s] ability to perform the job.”
R. 52-3 (EEOC, Enforcement Guidance: Disability-Related Inquiries and Medical
Examinations of Employees, at 4). The importance of § 12112(d)(4)(A) in preventing
discrimination is underscored by the fact that, in contrast to many other provisions of the
ADA, all individuals—disabled or not—may bring suit in aid of its enforcement.
See Lee, 636 F.3d at 252.

        Examples provided by the EEOC suggest that an employer’s intent is not
dispositive as to whether something qualifies as a “medical examination” under the
ADA. Instead, the employer’s purpose must be considered in the larger factual context
of a particular test or assessment’s typical uses and purposes. Consider the following
No. 10-2348          Kroll v. White Lake Ambulance                                       Page 11


example provided by the EEOC in its Enforcement Guidance:                       Preemployment
                                                                 9
Disability-Related Questions and Medical Examinations:

        A psychological test is designed to reveal mental illness, but a particular
        employer says it does not give the test to disclose mental illness (for
        example, the employer says it uses the test to disclose just tastes and
        habits). But, the test also is interpreted by a psychologist, and is
        routinely used in a clinical setting to provide evidence that can be used
        to diagnose mental health (for example, whether an applicant has
        paranoid tendencies, or is depressed). Under these facts, this test is a
        medical examination.

EEOC, Enforcement Guidance: Preemployment Disability-Related Questions and
Medical Examinations, at 14 (1995), http://www.eeoc.gov/policy/docs/preemp.html. In
this scenario, the EEOC explains, the fact that an employer’s intentions are disability
neutral does not save from falling within § 12112(d)(4)(A)’s purview a test routinely
used and administered by psychologists to uncover mental illness. We can generalize
from this scenario that when an employer’s purported intentions mismatch the
predominant purpose and design of a particular test or assessment, which is to uncover
mental-health defects or disabilities, those intentions are accorded less weight and
significance in the analysis. The following question and answer set provided by the
EEOC further illustrates this point:

        May an employer give psychological examinations to applicants?

        That depends on whether the particular examination is medical. This
        determination would be based on some of the factors listed above, such
        as the purpose of the test and the intent of the employer in giving the test.
        Psychological examinations are medical if they provide evidence that
        would lead to identifying a mental disorder or impairment, listed in the
        American Psychiatric Association’s most recent Diagnostic and
        Statistical Manual of Mental Disorders (DSM).
        Example: An employer gives applicants the RUOK Test (hypothetical),
        an examination which reflects whether applicants have characteristics
        that lead to identifying whether the individual has excessive anxiety,


        9
         There is a parallel prohibition on “medical examinations” and disability inquiries in the
preemployment context pursuant to 42 U.S.C. § 12112(d)(2).
No. 10-2348            Kroll v. White Lake Ambulance                                               Page 12


         depression, and certain compulsive disorders (DSM-listed conditions).
         This test is medical.
         ...
         Example: An employer gives the IFIB Personality Test (hypothetical),
         an examination designed and used to reflect only whether an applicant
         is likely to lie. This test, as used by the employer, is not a medical
         examination.

Id. at 15-16 (alterations omitted).

         The Seventh Circuit decision in Karraker v. Rent-A-Center, Inc., 411 F.3d 831
(7th Cir. 2005), is a useful example of the application of the EEOC’s guidance
directives.10 In Karraker, the Seventh Circuit held that an evaluation administered to
employees seeking a promotion that included the Minnesota Multiphasic Personality
Inventory (MMPI) constituted a “medical examination” under the ADA because the
MMPI “is designed, at least in part, to reveal mental illness and has the effect of hurting
the employment prospects of one with a mental disability.” Id. at 837. The Seventh
Circuit reached this decision in spite of the fact that the employer claimed to be
administering the MMPI solely for the purpose of measuring personality traits, that the
test was not being scored by a psychologist, and that the employer was only using “a
vocational scoring protocol” as opposed to “a clinical protocol.” Id. at 836-37. The
Seventh Circuit determined that the fact that a high score on the test could be “one of
several symptoms which may contribute to a diagnosis of paranoid personality disorder”




         10
             To our knowledge, Karraker is the most analogous authority. While there are many cases from
this Circuit interpreting and applying the “job-related” and “business necessity” exception, there are
relatively few interpreting the meaning of “medical examination” in the mental-health context. See, e.g.,
Prevo’s Family Mkt., Inc., 135 F.3d at 1093-94; Sullivan v. River Valley Sch. Dist., 197 F.3d 804, 811-12
(6th Cir. 1999), cert. denied, 530 U.S. 1262 (2000) (recognizing implicitly that a mental and physical
fitness-for-duty examination fell within the ADA’s protections and that “an employer’s discretion to order
employees to undergo examinations is hardly unbounded”). Because the district court did not reach the
question of whether the counseling was justified under this exception, the majority of these cases are of
limited utility to the present analysis. Authority is scant from other circuits as well, and most cases focus
on the meaning of “medical examination” in the context of physical as opposed to mental-health
evaluations. See, e.g., Indergard, 582 F.3d at 1058 (holding physical-capacity examination required for
employee to return to work after medical leave was a “medical examination”); Conroy, 333 F.3d at 95-96
(holding requirement of a medical certificate containing general diagnosis before returning to work is
covered by the ADA’s “medical examination” provision); Griffin, 160 F.3d at 593-95 (holding
preemployment disability inquiries were covered by the ADA).
No. 10-2348            Kroll v. White Lake Ambulance                                               Page 13


was enough to conclude that the test was “best categorized as a medical examination”
subject to the ADA’s restrictions. Id. at 837 (internal quotation marks omitted).

         With this legal backdrop we now consider Kroll’s claims. Admittedly, our task
is distinct from that undertaken by the Seventh Circuit in Karraker as the exact
substance of the “counseling” Kroll was instructed to attend remains unclear and
somewhat in dispute by the parties. Kroll alleges that WLAA required her to “receive
psychological counseling” and “to see a mental health counselor as a condition to
keeping her employment.” R. 1 (Complaint ¶¶ 8, 10). In addition, Kroll points to
testimony from Binns in which he agreed that it would “be fair to say” that WLAA
requested that Kroll “see a psychologist to discuss issues related to her mental health.”
R. 52-4 ( Binns Dep. at 60).               WLAA admits that it instructed Kroll to attend
“counseling” as a condition of her continued employment, but contends that WLAA did
not specify that the “counseling” be “psychological” in nature. See Appellee Br. at 12-
13. As previously stated, on a motion for summary judgment, we must construe all facts
in favor of the nonmoving party, which in this instance is Kroll. To the extent that the
district court failed to do so, its decision was in error.11

         To begin our analysis, it is useful to review definitions—both medical and
lay—to elucidate the common meaning of “psychological counseling.” The OXFORD
ENGLISH DICTIONARY defines “counseling” in the psychological sense as “a form of
psychotherapy in which the counsellor adopts a permissive and supportive role in
enabling a client to solve his or her own problems.” (2d ed. 1989). MERRIAM
WEBSTER’S ENGLISH DICTIONARY defines “counseling” as “professional guidance of the
individual by utilizing psychological methods especially in collecting case history data,
using various techniques of the personal interview, and testing interests and aptitudes.”
(10th ed. 1995). TABER’S CYCLOPEDIC MEDICAL DICTIONARY defines “counseling” as
“[t]he providing of advice and guidance to a patient by a health professional” and defines


         11
            Although initially the district court refers to Kroll’s allegations as relating to “psychological
counseling,” R. 57 (Dist. Ct. Op. at 5), the remainder of the district court’s opinion refers only to
“counseling” and the absence of proof of any “psychological testing,” see, e.g., id. at 8. Accordingly, it
is unclear whether the district court made this factual inference in Kroll’s favor, as it should have.
No. 10-2348           Kroll v. White Lake Ambulance                                          Page 14


“psychological” as “[pertaining] to the study of the mind in all of its relationships,
normal and abnormal.” (19 ed. 2001). DORLAND’S MEDICAL DICTIONARY defines
“counseling” as the “provision of information, advice, and support,” and “psychology”
as “the branch of science that deals with the mind and mental processes, especially in
relation to human and animal behavior.” (32 ed. 2012).12

        No clear or precise meaning emerges from these definitions. Some definitions
suggest that “psychological counseling” is more or less passive, with the counselor
serving only as an aide in the individual’s own problem-solving process. Other
definitions, however, tie “psychological counseling” to the science of psychology
implicating the diagnosis and treatment of mental illness. Accordingly, we must
consider the evidence presented by Kroll and employ the EEOC’s seven-factor test to
determine whether a reasonable jury could conclude that the “psychological counseling”
Kroll was instructed to attend constitutes a “medical examination” under
§ 12112(d)(4)(A).

        It is clear that both factors one and two—administration and interpretation by a
health-care professional—weigh in favor of the “psychological counseling” Kroll was
instructed to attend being a “medical examination.” Kroll specifically alleged, and Binns
provided support for the conclusion, that Kroll was instructed to attend counseling
administered by a psychologist. Regardless of whether the psychologist would have
acted in a passive, facilitating role, or a test-oriented, diagnostic role a reasonable jury
could conclude that the psychologist would have, at minimum, done some interpretation
of the content of the counseling in order to assist Kroll with her problems; indeed, this
was the reason why WLAA insisted that Kroll attend the counseling. Accordingly, we
conclude that a reasonable jury could find that factors one and two weigh in favor of
concluding that the “psychological counseling” Kroll was instructed to attend constituted
a “medical examination.”


        12
           Under this broad definition DORLAND’S also provides definitions of “abnormal psychology”
as “the study of mental disorders and behavior disturbances,” “clinical psychology” as the “use of
psychologic knowledge and techniques in the treatment of persons with mental, emotional, behavior, and
developmental disorders,” and “social psychology” as “psychology that focuses on social interaction, on
the ways in which actions of others influence the behavior of an individual.”
No. 10-2348         Kroll v. White Lake Ambulance                                 Page 15


       This brings us to factor three, arguably the most critical in this analysis: whether
the “psychological counseling” was designed to reveal a mental-health impairment. As
previously suggested, the answer in the abstract is somewhat ambiguous.               The
definitions suggest that sometimes “psychological counseling” is used for the diagnosis
and treatment of mental illness; the ADA recognizes as much in stating that
“psychologists” are among the “variety of health professionals [that] may provide
documentation regarding psychiatric disabilities” for ADA purposes.                EEOC,
Enforcement Guidance on the Americans with Disabilities Act and Psychiatric
Disabilities    (1997),   http://www.eeoc.gov/policy/docs/psych.html.           However,
psychological    counseling    need    not   always    be   targeted   to   mental-health
diagnosis—sometimes patients seek psychological counseling and specifically request
that no mental-health diagnosis be made. In this instance, based on the evidence
presented by Kroll, a reasonable jury could conclude that the psychological counseling
Kroll was instructed to attend was the type designed to uncover a mental-health defect.
WLAA does not dispute that it was concerned about Kroll suffering from depression, to
the point of suicidal ideation, and Binns stated in his deposition that he instructed Kroll
to go to the counseling “to discuss issues related to her mental health.” R. 52-4 (Binns
Dep. at 60). These facts are sufficient for a reasonable jury to conclude that WLAA
intended for Kroll to attend counseling to explore her possible affliction with depression,
or a similar mental-health impairment, so that she could receive the appropriate
corresponding treatment. This uncovering of mental-health defects at an employer’s
direction is the precise harm that § 12112(d)(4)(A) is designed to prevent absent a
demonstrated job-related business necessity.

       With respect to factors four, five, six, and seven, the paucity of information with
which we have to evaluate their application makes it difficult to decide whether they
weigh in favor of or against concluding that the counseling Kroll was instructed to attend
constituted a “medical examination” under the ADA. Rather than speculate, we decline
to comment on these factors because ultimately none is dispositive to our analysis. Upon
considering factors one, two, and particularly three, we conclude that Kroll has presented
sufficient evidence such that a reasonable jury could conclude that the “psychological
No. 10-2348         Kroll v. White Lake Ambulance                                 Page 16


counseling” Kroll was instructed to attend did constitute a “medical examination” under
the ADA. We reach this conclusion, consistent with the reasoning of the Seventh
Circuit, because the “psychological counseling” in question was likely to probe and
explore whether Kroll suffered from a mental-health disability, regardless of whether
this was WLAA’s intention. See Karraker, 411 F.3d at 837; see also Barnes v. Cochran,
944 F. Supp. 897, 904-05 (S.D. Fla. 1996) (concluding that preemployment
psychological evaluation constituted a “medical examination” because the “nature and
extent” of the evaluation was such that it tended towards “identifying a mental disorder
or impairment”) (internal quotation marks omitted). Consequently, we hold that
summary judgment in favor of WLAA was improper.

        We recognize that even if Kroll’s instruction to undergo “psychological
counseling” is governed by § 12112(d)(4)(A) of the ADA, WLAA may still be entitled
to summary judgment if such counseling was “job related” and consistent with “business
necessity.” Because the district court did not decide this question in the first instance,
the parties have not briefed it on appeal. Accordingly, the proper course is to remand
the case to the district court for decision in the first instance.

                                   III. CONCLUSION

        Based on the foregoing, we VACATE the judgment of the district court granting
summary judgment in favor of WLAA and REMAND for proceedings consistent with
this opinion.
No. 10-2348        Kroll v. White Lake Ambulance                                     Page 17


                                      ____________

                                        DISSENT
                                      ____________

       SUTTON, Circuit Judge, dissenting. I agree with the majority in every way but
one: I cannot agree that a requirement to obtain psychological counseling amounts to
a requirement to obtain a medical examination.

       The relevant provision says:

       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.

42 U.S.C. § 12112(d)(4)(A) (emphasis added). The determinative words are “require”
and “medical examination,” not just “medical examination.” The law bars a required
medical examination—and that did not happen. When Kroll, an emergency medical
technician, showed on-the-job distress over an affair with a married co-worker,
principally through several outbursts at work, her employer, the White Lake Ambulance
Authority, understandably tried to do something about it. The employer, however, did
not compel Kroll to take a medical examination.              It compelled her to obtain
psychological counseling, allowing her to obtain it on her own terms and with any
counselor she wished. The employer had no interest in the outcome of the counseling,
no interest in any potential diagnosis, no interest in the type of counseling she received,
no interest in anything at all save verification that she obtain some form of counseling
if she was going to continue providing EMT services for the ambulance company.

       By any definition, compelled counseling does not compel a medical examination.
As the EEOC guidelines recognize, some “psychological tests” amount to medical
examinations, and others do not. EEOC, Enforcement Guidance: Disability - Related
Inquiries and Medical Examinations of Employees, at 5 (“psychological tests that are
designed to identify a mental disorder or impairment” are medical exams, but
No. 10-2348        Kroll v. White Lake Ambulance                                  Page 18


“psychological tests that measure personality traits such as honesty, preferences, and
habits” are not). No evidence shows that White Lake Ambulance insisted that Kroll’s
psychological counseling involve one type of test or another. No evidence, indeed,
shows that the ambulance service insisted she submit to any test while obtaining
counseling. The majority acknowledges the same point. As it explains, a psychological-
counseling requirement covers a range of treatments, some including “medical
examinations,” some not. Maj. Op. at 10.

       The breadth of services encompassed by a psychological-counseling requirement
resolves this claim.    For it means that Kroll, not the company, controlled her
destiny—controlled in other words whether she sought counseling that included a
medical examination or did not. No doubt, she might meet this requirement by seeing
a psychologist or psychiatrist who used a medical examination. But, if so, that was her
choice, not the company’s. If a trying boss insists that an employee arrive at work by
eight o’clock the next morning, it is not the boss’s fault if the employee opts to meet the
requirement by staying overnight in the office. So it is here. Kroll had the right to meet
this counseling requirement on her own terms, some of which could lead to a medical
examination and others of which would not. Because White Lake Ambulance did not
“require” Kroll to obtain a “medical examination,” I must respectfully dissent.
