                            In the

United States Court of Appeals
              For the Seventh Circuit

No. 11-2848

E QUAL E MPLOYMENT O PPORTUNITY C OMMISSION,

                                              Plaintiff-Appellant,
                                v.


T HRIVENT F INANCIAL FOR L UTHERANS,
                                             Defendant-Appellee.


            Appeal from the United States District Court
                for the Eastern District of Wisconsin.
        No. 2:10-cv-853—William C. Greisbach, Chief Judge.



  A RGUED S EPTEMBER 7, 2012—D ECIDED N OVEMBER 20, 2012




  Before C UDAHY, R OVNER, and T INDER, Circuit Judges.
  T INDER, Circuit Judge. The Equal Employment Oppor-
tunity Commission (EEOC) brought suit against Thrivent
Financial for Lutherans (Thrivent) on behalf of Gary
Messier, alleging a violation of the medical record confi-
dentiality requirements of the Americans with Disa-
bilities Act (ADA), 42 U.S.C. § 12111 et seq. On July 6, 2006,
Omni Resources, Inc. (Omni), a technology consulting
2                                             No. 11-2848

agency, hired Messier to work as a temporary SAS pro-
grammer for Thrivent pursuant to an agreement between
Omni and Thrivent. After Messier left Omni and Thrivent
on December 4, 2006, Messier had a difficult time
finding a new job and began to suspect that Thrivent
was saying negative things about him to prospective
employers who called for reference checks. The EEOC
alleges that during these reference checks, Thrivent
was revealing information about Messier’s migraine
condition to prospective employers in violation of the
ADA’s requirement that employee medical information
obtained from “medical examinations and inquiries” must
be “treated as a confidential medical record.” 42 U.S.C.
§ 12112(d). The district court found that Thrivent learned
of Messier’s migraine condition outside the context of
a medical examination or inquiry. Therefore, the con-
fidentiality provisions of 42 U.S.C. § 12112(d)(3) did
not apply, and the district court granted summary judg-
ment to Thrivent. For the reasons explained below, we
agree that Thrivent did not learn about Messier’s
migraine condition as the result of 42 U.S.C. § 12112(d)
“medical examinations and inquiries.” Consequently,
Thrivent had no duty to treat its knowledge of Messier’s
migraine condition as a confidential medical record,
and we affirm the judgment of the district court.


                            I
  Because Thrivent and the EEOC filed cross-motions
for summary judgment in the district court, we review
the district court’s grant of summary judgment to
No. 11-2848                                              3

Thrivent de novo, “constru[ing] all inferences in favor of
the party against whom the motion under consideration
is made,” here, the EEOC. Hess v. Reg-Ellen Mach. Tool
Corp., 423 F.3d 653, 658 (7th Cir 2005). After hiring
Messier to serve as a temporary SAS programmer in
Thrivent’s Appleton, Wisconsin office, Omni assigned
Messier to work as a Business Analyst in the Fraternal
Support Service Department, under the supervision of
Thrivent employee John Schreiner. Messier worked at
Thrivent for almost four months without incident,
and during that time, he was “very good about notify-
ing” both Thrivent and Omni when he planned to be
absent from work. On November 1, 2006, however,
Messier failed to report to work. Because Messier had
not notified anyone at Thrivent about his absence,
Schreiner called Messier’s Account Manager at Omni,
Thomas Brey, looking for Messier, but Brey was equally
ignorant as to why Messier had failed to report to work
that morning. A puzzled Brey then sent the following
email to Messier: “Gary, Give us a call, and give John a
call. We need to know what is going on. John called
here looking for you.” For hours, neither Schreiner nor
Brey heard anything from Messier. At last, Messier sent
the following email to Schreiner and Brey at 4:53 p.m.:
   Tom/John
   I’ve been in bed all day with a severe migraine.
   Have not had one this severe in over six years.
   Three doses of Imitrex today and I am finally
   able to function. Sorry for the very late reply but
   when I get migraines of this severity I am bed
4                                                No. 11-2848

    ridden until I can get them to a level so I can
    function. People have many medical conditions
    that are not obvious on the surface. They struggle
    with them every-day and try to get thru [sic] life
    one day at a time. I’ve had these migraines since
    a major car accident in 1984. Because this was
    a head on at 50 miles an hour I am very lucky to
    have lived thru [sic] it. But these migraines are an
    end result of the head trauma that I experienced
    that day. I have been waiting for the medical
    field to come up with a solution ever since. I am
    attending a few sessions, this coming Saturday,
    in a seminar sponsored by Theda-Care on Brain &
    Spine conditions. Hopefully this may provide
    the information that I have been searching for to
    help alleviate this situation. The medical field
    has come a long way since 1984. I am currently
    reaping some of the benefits to help control this
    problem with the medication regiment that I am
    currently on. At least I am functional most days
    but when I have one of the severity I had today
    do not expect any response from me or even a
    phone call as the pain level is so severe that it
    puts most people in the hospital. I have been
    dealing with this pain for a long time and I have
    found the best way to deal with it is to let it run
    its course. Probably a lot more than either of you
    wanted to know but I want to be totally honest
    with both of you. If all goes well I will be in tomor-
    row on schedule. I hope this answers your con-
    cerns and that I am fully commited [sic] to
No. 11-2848                                                5

    Thrivent and Omni thru [sic] the remainder of my
    contract.
    Gary
Brey responded to Messier’s email a few hours later
urging Messier to “get better” and to “let me know . . . [i]f
there is anything that I or Omni can do.”
  Despite Messier’s assurance that he was fully com-
mitted through the remainder of his contract, Messier quit
his job with Thrivent only a month later on December 4,
2006. The record is not clear about why Messier quit,
but statements by Schreiner that “we ran into a very
strong disagreement on expectations and he walked out
on us” suggest that the parting was not on good terms.
Messier soon began looking for new employment, and
in the months that followed, three prospective em-
ployers lost interest in him after conducting reference
checks. Concerned about what Schreiner was telling
prospective employers, Messier hired Reference Matters,
Inc. (RMI), an online reference checking agency, to find
out what Schreiner was saying. On January 10, 2008,
an RMI agent called Schreiner pretending to be a pro-
spective employer interested in hiring Messier. During
the phone conversation with RMI, Schreiner disclosed
that Messier “has medical conditions where he gets
migraines. I had no issue with that. But he would not
call us. It was the letting us know.”
   Based on Schreiner’s conversation with RMI, Messier
filed a charge with the EEOC alleging disability discrim-
ination under the ADA on August 25, 2008. The EEOC
first issued a “Letter of Discrimination” to Thrivent on
6                                                 No. 11-2848

March 15, 2010, which stated that the EEOC found rea-
sonable cause to believe that Thrivent had violated the
ADA. When this letter failed to induce a settlement
between Messier and Thrivent, the EEOC filed the
instant action on September 30, 2010, alleging that
Thrivent had violated the ADA confidentiality pro-
visions contained in 42 U.S.C. § 12112(d) by “revealing
to prospective employers Messier’s confidential med-
ical information obtained from a medical inquiry.” 42
U.S.C. § 12112(d), entitled “Medical examinations and
inquiries,” provides in relevant part:
    (1) In general
    The prohibition against discrimination as referred
    to in subsection (a) of this section shall include
    medical examinations and inquiries.
    ...
    (3) Employment entrance examination
    ...
          (B) information obtained regarding the
          medical condition or history of the appli-
          cant is collected and maintained on sepa-
          rate 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;
No. 11-2848                                          7

              (ii) first aid and safety personnel
              may be informed, when appropri-
              ate, if the disability might require
              emergency treatment; and
              (iii) government officials investi-
              gating compliance with this chap-
              ter shall be provided relevant in-
              formation on request; and
       (C) the results of such examination are
       used only in accordance with this
       subchapter.
   (4) Examination and inquiry
       ...
       (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).
8                                                  No. 11-2848

With this statutory language in mind, the district court
quickly realized that before it could decide whether
Schreiner’s statements to RMI violated the confiden-
tiality provisions outlined in 42 U.S.C. § 12112(d)(3)(B),
it must first decide whether the confidentiality pro-
visions even applied to Messier’s situation. Determining
whether these provisions applied required deciding a
threshold issue: “whether Thrivent received Messier’s
medical information through a medical inquiry.” Conse-
quently, the district court urged both sides to file cross-
motions for summary judgment on this threshold issue,
which both parties filed on March 1, 2011. In the text of
its motion, the EEOC only asked the court to find that
Messier’s disclosure of his migraine condition was “done
in the context of a medical inquiry of Messier by
Thrivent.” 1 Nevertheless, in the course of the EEOC’s


1
  The EEOC’s motion for summary judgment sought only
“summary judgment on the first, third, and fifth affirmative
defenses asserted in the Answer filed by defendant Thrivent
Financial for Lutherans on November 29, 2010.” The text of
Thrivent’s first, third, and fifth affirmative defenses is as
follows:
    1. The complaint fails to state a claim against Thrivent
    upon which relief can be granted.
    3. Thrivent was never Messier’s employer; it never
    obtained any of Messier’s confidential medical infor-
    mation from a medical inquiry; and it never made
    a medical inquiry of Messier.
    5. Messier apparently voluntarily disclosed to his
    employer OMNI Resources, Inc. that he missed work
                                              (continued...)
No. 11-2848                                                      9

briefs to support its motion and to oppose Thrivent’s
motion, the EEOC argued that Messier’s disclosures
would be covered by the 42 U.S.C. § 12112(d)(3)(B) confi-
dentiality provisions if either of the following were true:
(1) Thrivent learned about Messier’s migraine condition
in the course of conducting a medical inquiry, or
(2) Thrivent learned about Messier’s migraine condition
in the course of conducting “inquiries into the ability of
an employee to perform job-related functions” under
42 U.S.C. § 12112(d)(4)(B).
  In granting Thrivent’s motion for summary judgment,
the district court focused on the EEOC’s first argu-
ment—whether Thrivent had learned about Messier’s
migraine condition through a medical inquiry—presum-
ably since the text of the EEOC’s motion had focused
only on whether Brey’s email to Messier constituted
a medical inquiry (as opposed to a broader job-related
inquiry). The district court found that Brey’s email did not
constitute a medical inquiry because “[g]iven the vast
number of reasons an employee could miss work with-
out informing his employer, it seems unreasonable to
assume that an employer checking in on his absent em-



1
    (...continued)
       assignments at Thrivent due to migraine headaches.
       Messier’s voluntary disclosure of this information was
       not done in the context of a medical inquiry of Messier
       by Thrivent.
The EEOC’s motion for summary judgment does not mention
anything about job-related inquiries.
10                                              No. 11-2848

ployee has the intent to request or acquire medical infor-
mation.” On appeal, the EEOC drops the argument that
Brey’s email to Messier constituted a medical inquiry.
Instead, the EEOC focuses on its second argument that
the ADA’s confidentiality provisions protect all em-
ployee medical information revealed through “job-related”
inquiries. Because the EEOC’s broad construction of
the term “inquiries” in 42 U.S.C. § 12112(d) is not sup-
ported by the language of the statute, we reject the
EEOC’s second argument.


                             II
  At heart, this case is one of statutory interpretation. If
the term “inquiries” in 42 U.S.C. § 12112(d) refers only
to medical inquiries, as Thrivent urges, then the
EEOC’s claim fails since the EEOC concedes on appeal
that Brey’s email was not a medical inquiry. On the
other hand, if the term “inquiries” in 42 U.S.C. § 12112(d)
refers to all job-related inquiries, as the EEOC urges, then
the EEOC’s claim fares better. The EEOC particularly
urges us to adopt its admittedly “liberal interpretation”
of 42 U.S.C. § 12112(d) because it is “consistent with
clear congressional intent.” But as the U.S. Supreme
Court pointed out in Chevron, U.S.A., Inc. v. Natural Re-
sources Defense Council, Inc., 467 U.S. 837, 842 (1984),
“[w]hen a court reviews an agency’s construction of
the statute it administers,” it must first consider
“whether Congress has directly spoken to the precise
question at issue. If the intent of Congress is clear,
that is the end of the matter.” Here, we conclude that
No. 11-2848                                               11

42 U.S.C. § 12112(d) has a “plain meaning” that cannot
be ignored, and therefore, “we do not need to reach the
question of the proper deference owed” to the EEOC’s
interpretation of the statute. Vulcan Constr. Materials, L.P.
v. Fed. Mine Safety & Health Review Com’n, ___ F.3d ___,
2012 WL 5259008, at *14 (7th Cir. Oct. 25, 2012).
  In support of its motion for summary judgment, the
EEOC offered the Merriam-Webster definition of the
word “inquiry,” which can mean, among other things,
“a request for information.” Brey’s email was clearly
a request for information, and the EEOC correctly con-
strued Brey’s email as an inquiry under this generalized
definition. Yet the EEOC’s reliance on this generalized
definition of “inquiry” ignores the specific context in
which the term “inquiry” is used throughout 42 U.S.C.
§ 12112(d).
   The title of 42 U.S.C. § 12112(d) is “[m]edical examina-
tions and inquiries.” According to the Merriam-Webster
definition, the coordinating conjunction “and” is “used
as a function word to indicate connection or addition
especially of items within the same class or type.” M ERRIAM-
W EBSTER D ICTIONARY O NLINE, available at http://www.
merriam-webster.com/dictionary/and (last visited Nov. 16,
2012) (emphasis added). Consequently, the use of the
inclusive conjunction “and” in the title—instead of a
limiting or contrasting conjunction such as “or”—suggests
that the examinations and inquiries referred to in the
title of section (d) are within the same class or type:
they are both medical. At the very least, the use of the
conjunction “and” indicates that the adjective “medical”
modifies both “examinations” and “inquiries.”
12                                               No. 11-2848

  The subject matter discussed in the body of section (d)
confirms that the word “inquiries” does not refer to all
generalized inquiries, but instead refers only to medical
inquiries. The entire section is devoted to a discussion of
a disabled employee’s “medical record,” “medical condi-
tion or history,” “medical files,” and medical “treatment.”
In fact, the EEOC’s argument that the term “inquiries” in
section (d) refers to all employer inquiries (not just em-
ployer medical inquiries) rests almost entirely on a
single reference to “job-related” inquiries in 42 U.S.C.
§ 12112(d)(4)(B). Yet once the “job-related” inquiries
language in section (d)(4)(B) is read in the context of the
entire section, it is easy to see that “job-related” inquiries
refer only to job-related medical inquiries:
     A covered entity may conduct voluntary med-
     ical 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.
The sentence preceding the “job-related” inquiries lan-
guage in section (d)(4)(B) discusses permissible employer-
initiated medical activities, including examinations,
histories, and health programs regarding an employee’s
medical health. Logically, the next sentence continues
this discussion of permissible employer-initiated medical
activities, including job-related inquiries regarding an
employee’s medical health. In sum, the EEOC’s argu-
ment that the word “inquiries” in 42 U.S.C. § 12112(d)(4)(B)
No. 11-2848                                             13

refers to all job-related inquiries, not just medical ones,
ignores the content of the rest of the section.


                            III
   We are also not persuaded by the EEOC’s claim that
the case law interpreting 42 U.S.C. § 12112(d)(4)(B) is on
its side. The EEOC argues that other courts have chosen
to read the term “inquiries” more broadly and have
interpreted the term to mean all employer-initiated, job-
related inquiries. To support this proposition, the EEOC
principally relies on two cases: Doe v. U.S. Postal Serv.,
317 F.3d 339 (D.C. Cir. 2003) and E.E.O.C. v. Ford Motor
Credit Co., 531 F. Supp. 2d 930 (M.D. Tenn. 2008).
  In Doe, the plaintiff, John Doe, fell ill with an AIDS-
related illness and missed several weeks of work. It was
not clear from the facts whether the Postal Service
knew that Doe was HIV-positive; however, the Postal
Service clearly knew that Doe was ill since he had
already taken weeks of sick leave. After Doe had been
absent for two months, his supervisor sent a letter in-
structing him “to complete and submit, within five calen-
dar days, a Postal Service administrative form and a
medical certificate ‘provid[ing] an explanation of the
nature of [his] illness.’ If he failed to submit these
forms, the letter warned, he would face potential dis-
ciplinary action for being absent without leave.” Doe,
317 F.3d at 341. The D.C. Circuit held that the super-
visor’s letter constituted an inquiry under 42 U.S.C.
§ 12112(d)(4)(B). Id. at 344.
14                                              No. 11-2848

  In Ford Motor, John Doe, another HIV-positive plaintiff,
requested time off work one day per week so that he
could participate in an HIV-treatment study. Doe had
already missed work on previous occasions to go to HIV-
related doctors’ appointments. Before Doe’s supervisor,
Danny Dunson, would allow Doe to miss additional
work and participate in the weekly study, Dunson de-
manded to know Doe’s diagnosis. The court found
that these facts presented “an issue for trial as to
whether Mr. Dunson’s questioning of Mr. Doe amounted
to an inquiry.” Ford Motor, 531 F. Supp. 2d at 937.
  The EEOC claims that Doe and Ford Motor stand for
the proposition that “inquiries” under 42 U.S.C.
§ 12112(d)(4)(B) include all interactions between the
employer and the employee that (1) are initiated by
the employer, and (2) result in the employee revealing
medical information. Yet in both Doe and Ford Motor,
the employers initiated the interactions with some pre-
existing knowledge that the employee was ill or physically
incapacitated. Additional case law supports this notion
that an employer must already know that an employee
is ill or physically incapacitated before initiating the
interaction in order for the interaction to be considered
an inquiry under 42 U.S.C. § 12112(d)(4)(B).
  In Harrison v. Benchmark Electronics Huntsville, Inc., 593
F.3d 1206 (11th Cir. 2010), for example, the Eleventh
Circuit reversed a district court’s grant of summary
judgment to Benchmark, the employer, because it
found that the employee, John Harrison, had sufficiently
alleged that Benchmark made an inquiry. Harrison had
No. 11-2848                                            15

failed a drug test administered by Benchmark. The drug
test itself did not constitute a medical examination or
inquiry since, under the ADA, drug tests are not con-
sidered medical examinations. See 42 U.S.C. § 12112(b).
Nevertheless, the court held that if Harrison’s allega-
tions were true, what happened after the drug test did
constitute an inquiry under 42 U.S.C. § 12112(d)(4)(B). A
human resources officer confronted Harrison with his
positive drug test results. Harrison informed the officer
that his epilepsy medication likely triggered the positive
result. The human resources officer then told Harrison
to retrieve his prescription, and after he did, addi-
tionally had Harrison discuss his medication with
the drug testing agency’s medical review officer. In Har-
rison’s case, the employer had initiated an interaction
with Harrison after learning that he might suffer from
a drug problem, and thus, the court found sufficient
allegations of a 42 U.S.C. § 12112(d)(4)(B) inquiry.
Harrison, 593 F.3d at 1214-15.
  Similarly, in Fleming v. State Univ. of New York, 502
F. Supp. 2d 324, 338 (E.D.N.Y. 2007), the plaintiff,
Dr. Lester Fleming, was a medical resident who suf-
fered from sickle-cell anemia. During his residency,
Fleming was hospitalized for complications from the
disease, and Fleming advised his attending physicians
that he would be absent from work while he was in
the hospital. Up to this point, Fleming had never
revealed to any of his attending physicians that he
suffered from sickle-cell anemia. After learning that he
was in the hospital, one of Fleming’s attendings called
Fleming to ask why he was in the hospital. Only then
16                                             No. 11-2848

did Fleming reveal his disease, at which point the at-
tending advised him that he would need a doctor’s
letter in order to return to work. The court held that
these facts were sufficient to allege an inquiry under
42 U.S.C. § 12112(d)(4)(B). Like the previous cases,
the employer in Fleming initiated an interaction with
the employee after learning that he was ill.
  As these cases illustrate, previous courts have re-
quired—at minimum—that the employer already knew
something was wrong with the employee before
initiating the interaction in order for that interaction to
constitute a 42 U.S.C. § 12112(d)(4)(B) inquiry. Neither
Thrivent nor Omni had any such knowledge here. There
is no evidence in the record suggesting that Thrivent
or Omni should have inferred that Messier’s absence
on November 1, 2006 was due to a medical condition.
There is no evidence in the record that Messier had
been sickly during his first four months of employment.
There is no evidence that Messier had experienced a
headache at work during his first four months. For all
Thrivent and Omni knew, Messier’s absence was just
as likely due to a non-medical condition as it was due
to a medical condition. Indeed, as Thrivent pointed
out to the district court, “Messier could have had trans-
portation problems, marital problems, weather-related
problems, housing problems, criminal problems, motiva-
tional problems, a car or home accident, or perhaps he
simply decided to quit his job at OMNI (which he did
just a month later on December 4, 2006.)” When Brey
emailed Messier on November 1, 2006, he had no idea
that Messier was ill—let alone disabled. For this reason,
No. 11-2848                                           17

Brey’s email cannot be an inquiry for the purposes of
42 U.S.C. § 12112(d)(4)(B).


                           IV
  For the above reasons, we reject the EEOC’s argu-
ment that the term “inquiries” as used in 42 U.S.C.
§ 12112(d)(4)(B) refers to all job-related inquiries, and
not just medical inquiries. Because the EEOC concedes
on appeal that Brey’s email to Messier was not a
medical inquiry, Thrivent was not required to treat the
medical information that Messier sent in response to
Brey’s email as a confidential medical record. Thus,
Thrivent did not violate the requirements of 42 U.S.C.
§ 12112(d) by revealing Messier’s migraine condition
to RMI because the statute did not apply. We ac-
cordingly A FFIRM the decision of the district court
granting summary judgment to Thrivent.




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