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Counseling for Sexual Conduct May Not Be Job-Related Business Necessity, Court Rules

Wednesday, August 20, 2014

By Jay-Anne Casuga

Aug. 19 - A Michigan emergency medical technician may proceed to trial on her claim that an ambulance authority violated the Americans with Disabilities Act by requiring her to undergo counseling because of her "immoral" sexual conduct, the U.S. Court of Appeals for the Sixth Circuit ruled Aug. 19.

Reversing summary judgment for White Lake Ambulance Authority, the Sixth Circuit found material factual disputes as to whether the counseling requirement for Emily Kroll, who began to have emotional outbursts related to a "tumultuous affair" with a married co-worker, was job-related and consistent with business necessity.

White Lake's director, who ordered the counseling, was aware of only two isolated incidents that called into question Kroll's ability to perform her essential job functions or that suggested she posed a direct safety threat, the court said. It found that those two incidents are insufficient to establish an objectively reasonable basis for the counseling.

Judge Karen Nelson Moore wrote the opinion, joined by Judges Jeffrey Sutton and Bernice B. Donald.

Appeals Court Previously Ruled in EMT's Favor

The Sixth Circuit previously heard Kroll's case in August 2012 when it held that the psychological counseling ordered by White Lake was a "medical examination" under the ADA.

On remand, the U.S. District Court for the Western District of Michigan granted summary judgment to the ambulance authority, finding that the counseling was permissible under the ADA because it was job-related and consistent with business necessity.

Specifically, the district court pointed to evidence that Kroll would cry frequently, used her cell phone at least once while driving an ambulance in violation of company policy, and on one occasion didn't respond to a co-worker's request to give oxygen to a patient.

Such evidence called into question Kroll's ability to perform her job and indicated that she posed a direct threat to the safety of herself and others, the court said.

Inability to Perform Duties Not Shown

The Sixth Circuit disagreed, ruling that White Lake failed to show that Director Brian Binns had a reasonable basis for believing that Kroll was unable to perform her essential job functions when he ordered the counseling.

The court said emotional outbursts by Kroll outside of business hours and not in the presence of patients didn't impair her ability to perform her job.

If Binns had been aware of a "pattern of behavior" indicating that Kroll's emotional and psychological issues were interfering with her patient care and transportation duties, then the counseling order may have been justified under the ADA, the court said.

However, the evidentiary record shows that Binns was aware of only two occasions-the cell phone while driving incident and the oxygen incident-that "may have undermined" Kroll's ability to do her job, the court said.

Reversing summary judgment to White Lake Ambulance Authority, the Sixth Circuit found material factual disputes as to whether the counseling requirement for Emily Kroll, who began to have emotional outbursts related to a "tumultuous affair" with a married co-worker, was job-related and consistent with business necessity.

Although those two "isolated moments of unprofessional conduct might reasonably have prompted Binns" to discipline Kroll or take other corrective action, they don't "support the conclusion that Kroll was experiencing an emotional or psychological problem that interfered with her ability to perform her job functions," the court said.

Direct Threat Not Established

Those "isolated incidents" also don't establish that Kroll posed a direct safety threat to herself or others, the Sixth Circuit ruled.

Even if Kroll posed a safety risk, the court said, the evidence shows that Binns didn't base his counseling order on "a reasonable medical judgment."

"Binns admitted that he ordered Kroll to attend counseling because he had 'concerns' about her 'sexual relationships with men' and that he thought that 'her life was a mess and [h]e could help her,' " the court said. "This open admission that an employer ordered a medical examination based on moralistic condemnation of an employee's private behavior is troubling, to say the very least."

Bos & Glazier represented Kroll. Plunkett Cooney represented White Lake. 

To contact the reporter on this story: Jay-Anne B. Casuga in Washington at jcasuga@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com

Text of the opinion is available at okhttp://www.bloomberglaw.com/public/document/Emily_Kroll_v_White_Lake_Ambulance_Auth_Docket_No_1301774_6th_Cir .

 

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