EEOC v. Target Corp.2006 U.S. App. LEXIS 21483 (7th Cir.)OPINI.docx

EEOC v. Target Corp.
2006 U.S. App. LEXIS 21483 (7th Cir.)
OPINION BY CIRCUIT JUDGE CUDAHY:
* * * The EEOC charged that Target violated Title VII of the
Civil Rights Act of 1964 by engaging in race discrimination
against African-American applicants for managerial positions.
The EEOC also alleged that Target violated the Act when it
failed to make and preserve records relevant to the
determination whether unlawful employment practices had been,
or were being, committed. * * * [T]he district court …
dismissed the action. The EEOC now appeals. We reverse and
remand for further proceedings.
Target Corporation is headquartered in Minneapolis, Minnesota.
One of its retail divisions is Target, a discount chain of more
than 1,100 stores nationwide. * * * This case involves District
110 [which] is made up of … stores in the Madison, Milwaukee,
and Waukesha, Wisconsin metropolitan areas. Each district is
managed by a District Team Leader, and each store is managed
by a Store Team Leader (STL), who is assisted by Executive
Team Leaders (ETLs). Each ETL is responsible for a different
area of store operation. * * *
This case involves a group of individuals who claim that they
were not hired in Target’s ETL hiring process because of their
race. * * * The claims of Kalisha White, Ralpheal Edgeston and
Cherise Brown-Easley involve their contact with STL Matthew
Armiger. Before February of 2001, District 110 had a district
recruiter. When the district recruiter position was eliminated,
STL Richard Walters, who was temporarily assigned recruiting
duties, asked fellow STL Armiger for help with those duties. At
that time, Armiger was managing a newly-opened and short-
staffed Target store in New Berlin, Wisconsin. Walters and
Armiger initially shared the recruiting duties equally, but later
Armiger’s duties were scaled back. Armiger testified that he
believed his recruiting duties were secondary to his management

of the store.
1. Kalisha White
Kalisha White, an African-American who attended Marquette
University, emailed Target her resume for an ETL position on
February 20, 2001, while she was still a student at Marquette.
White’s resume indicated that she was a member of Alpha
Kappa Alpha, an African-American sorority. Armiger e-mailed
White and asked her to call to set up an interview. White called
at least twice, but each time she spoke with Armiger he said he
was too busy to schedule an interview.
White became suspicious of Armiger and decided to conduct an
experiment to determine if he had discriminated against her
because of her race. Thus, on May 9, 2001, she submitted a
resume to Armiger under a fictitious name, “Sarah Brucker.”
White used her own telephone number, and gave Brucker a
Brookfield, Wisconsin, address. She believed the address was
located in a predominantly Caucasian neighborhood. Armiger
testified that White had a stronger resume than Brucker because
White was pursuing an MBA degree, while Brucker was not. On
May 10, 2001, Armiger emailed and called Brucker, asking her
to return his call. White had a Caucasian acquaintance call
Armiger and pretend to be Sarah Brucker. Armiger scheduled an
interview with Brucker during their conversation. White
testified that she called Armiger soon after Brucker’s
conversation with him, but he said that he was too busy to
schedule an interview with her.
2. Ralpheal Edgeston
Ralpheal Edgeston received an email from Armiger on March 2,
2001, in which Armiger asked her to call and schedule an
interview. Edgeston, an African-American student at Marquette
University, had submitted her resume to Target for an ETL
position at a multicultural job fair held at the University of
Wisconsin–Milwaukee in the previous month. Edgeston’s
resume indicated that one of her college majors was African-
American studies and, like Kalisha White’s resume, that she
was a member of the Alpha Kappa Alpha sorority, which

Armiger testified to knowing was an African-American sorority.
Additionally, her resume listed that she was a member of the
National Association for the Advancement of Colored People
(NAACP). Edgeston called Armiger and scheduled a phone
interview for March 4, 2001; however, Armiger did not call
Edgeston at the appointed time and did not return her calls after
that date. Target never scheduled another interview with
Edgeston.
3. Cherise Brown-Easley
Class member Cherise Brown-Easley, an African-American,
also submitted her resume to Target at the University of
Wisconsin–Milwaukee multicultural job fair in February 2001.
Brown-Easley’s resume indicated that she was a member of the
“Metropolitan Alliance of Black School Educators.” Brown-
Easley received an email from Armiger requesting that she call
Armiger to schedule an interview. She called Armiger and
scheduled an interview for March 4, 2001. Armiger did not
contact Brown-Easley at the appointed time. Instead, Brown-
Easley called Armiger a half hour after the interview time, and
after being informed that he had left for the day, she left a
message for him. The following day, she left another message
for Armiger, but she never heard back from him.
During the week that Armiger failed to contact Edgeston and
Brown-Easley, he was scheduled to interview nine ETL
applicants. In addition to Edgeston and Brown-Easley, Armiger
also failed to contact two Caucasian applicants. However,
Target later interviewed at least one of the two Caucasian
applicants, but Edgeston and Brown-Easley were never
interviewed. Armiger testified that he did not know the race of
White, Edgeston, or Brown-Easley during the recruiting
process. Armiger could not recall reviewing White or Brown-
Easley’s resumes. He also claimed he did not study Edgeston’s
resume closely enough to determine her race.
D. Target’s Record Retention
Also at issue in this appeal is Target’s practice of employment
record retention. * * * Armiger admitted to throwing out the

resumes of applicants he deemed unqualified, including those of
White, Edgeston and Brown-Easley, rather than retaining them
as required by law and by Target’s document retention policy.
Armiger claims he threw out the resumes to protect the
applicants’ privacy.
In an effort to comply with the EEOC’s document retention
requirement, Target currently uses Brass Ring, a nationwide
employment recruitment website, to store applicant documents,
including: copies of applicants’ resumes, applicants’ … test
results and completed … interview forms. Target recruiters who
receive the resumes submit them to Brass Ring and make copies
of the resumes of the candidates they plan to interview. * * *
Target also has several policies to ensure that job applications
and related documents are retained for the required time. Target
uses its corporate intranet and email messages to share its
record retention policies with STLs. The human resource
managers meet biannually to audit each Target store, to conduct
training and to remind employees of the record retention policy.
The human resource managers instruct on-campus recruiters to
retain all resumes, applications and interview guides and notes,
and to route the documents to the national headquarters. Finally,
the ETL for Team Relations is responsible for ensuring that the
record keeping policy is being followed at each Target store.
The success of Target’s record retention program through Brass
Ring has been disputed. There is some indication that all
employees are not following the program. As discussed above,
STL Armiger threw out resumes that he should have retained.
Additionally, … [an] administrative assistant testified in June
of 2003 that she does not send applicant documents to Brass
Ring, but instead she retains them herself for the required time.
* * * While Target’s policy does not include a provision to
ensure that relevant documents are retained from the time a
discrimination charge is filed until that case is fully concluded,
Target claims to address this requirement on a case by case
basis, notifying employees to retain documents when a charge
arises. * * *

A. Record Retention
Under Title VII, employers are required to “make and keep such
records relevant to the determinations of whether unlawful
employment practices have been or are being committed.” The
EEOC’s record keeping regulations require that employers
retain applications and other documents related to hiring for one
year. Additionally, if a charge of discrimination has been filed,
an employer is required to retain all relevant personnel records
until the final disposition of the charge. * * *
While we agree that Target has put forth evidence that it has
revised its record retention policies in an effort to comply with
Title VII, we do not agree that such changes ensure “on [their]
face” that Target will not commit further violations. The
reforms chosen do not address the particular problems that
allowed violations to occur. Individual recruiters and
administrative personnel destroyed records that were supposed
to be retained because they did not know that they must retain
them. * * *
Nothing in Target’s new record keeping policy clearly prevents
bad faith destruction of resumes or other employment
application documents. Target’s new policy involves reiterating
its procedures for retaining documents to its store managers and
recruiters and outsourcing the physical storage of employment
documents. Similar to Target’s document retention polices prior
to 2001, Target depends greatly on the diligence of the
company’s recruiters and its managerial personnel to ensure that
resumes, applications and interview guides are retained because
these personnel must forward the original documents to Brass
Ring. Target has not claimed that it has adopted a system of
penalties for failure to forward documents or in any other way
provided new incentives to ensure compliance with the EEOC’s
record keeping requirements.
Because these genuine issues of fact bear on whether Target’s
new record retention policy is sufficient to prevent future
violations of federal law, Target’s motion for summary
judgment on this issue should not have been granted. * * *

B. Title VII Disparate Treatment Claims
* * * The parties do not dispute that the EEOC established a
prima facie case of disparate treatment.… * * * [T]he district
court [found] that Target presented a legitimate,
nondiscriminatory reason to explain why White, Edgeston and
Brown-Easley were not interviewed for ETL positions. Store
Team Leader Matthew Armiger’s burdensome workload …
caused him to fail in several of his recruitment duties, including
failure to conduct interviews when they were scheduled. The
EEOC did not contest this finding; therefore step two of the
McDonnell Douglas test is satisfied and the burden shifts back
to the EEOC.
In step three of the McDonnell Douglas test, a plaintiff must
show that the defendant’s nondiscriminatory reason for
rejecting the applicant is a pretext meant to hide a
discriminatory motive. * * * [W]e find that the EEOC did
present sufficient evidence to establish a genuine issue of
material fact as to whether Target’s reason for not interviewing
White, Edgeston and Brown-Easley was a pretext for race
discrimination. First, Target argued that Armiger could not have
discriminated against White, Edgeston and Brown-Easley
because he did not know their race. However, * * * [t] he EEOC
showed that each applicant’s resume contained information that
suggested she might be African-American. White’s resume
indicated that she was a member of Alpha Kappa Alpha
sorority, and Armiger testified that he knew this to be an
African-American sorority. Edgeston’s resume showed that she
also was a member of Alpha Kappa Alpha sorority, that she
majored in African-American studies, that she wrote a paper
titled The African-American Response to School Choice in
Milwaukee and that she was a member of the NAACP. Finally,
Brown-Easley’s resume indicated that she was a member of the
“Metropolitan Alliance of Black School Educators.” Armiger
testified that he typically looked at sorority involvement and
extracurricular activities when he reviewed resumes, and that he
reviewed White and Edgeston’s resumes. In addition, Armiger

was in charge of recruiting at University of Wisconsin–
Milwaukee, and Edgeston and Brown-Easley’s resumes were
collected from a multicultural career fair at that school.
Additionally, Armiger claims that he failed to interview White
because he was “too busy” with his management duties when
she called. He claims that he often told applicants that he was
too busy to speak to them if they called while he was on the
sales floor, and that he did not keep a record of who called.
However, fifteen minutes after White called Armiger, Armiger
took a call from the fictitious Caucasian applicant, “Sarah
Brucker,” and scheduled an interview with her. “Brucker” was
less qualified than White because White was pursuing an MBA
degree but “Brucker” was not, and Armiger recalled seeing in
White’s resume that she was pursuing this MBA. These facts
support a reasonable inference that Armiger’s busy schedule
was (a) not his actual motivation; or (b) an insufficient reason
for failing to interview White, Edgeston and Brown-Easley. * *
*
Target claims that Armiger would not have had White’s resume
in front of him when she called to set up an interview and he
said he was too busy to do so, and he therefore would not have
known her race. However, the EEOC presented expert testimony
indicating that some people can determine a speaker’s race
based on his or her voice or name. Dr. Thomas Purnell, a
linguistics professor, researched racially affiliated dialects and
telephone filtered speech. Purnell had White, Edgeston and
Brown-Easley read statements to him over the telephone that
were similar to those they made to Armiger. He testified that
the three women were discernible as African American. Dr.
Marianne Bertrand, an economics professor, testified that some
corporate recruiters can identify a person’s race based on his or
her name. Bertrand’s study compared job applicants with
Caucasian names, such as Sarah, versus applicants with African
American names, such as Lakisha. Bertrand noted that White’s
first name, Kalisha, is very similar to the name Lakisha that was
used in her study. The expert testimony of Purnell and Bertrand

might persuade a reasonable fact finder that, at the time of the
phone calls, Armiger at least suspected that White was African
American and that “Brucker” was Caucasian. * * *
This expert evidence likewise could lead a fact finder to
conclude that Armiger knew Edgeston and Brown-Easley’s race
because each of these applicants left at least one message for
Armiger after he failed to call at their scheduled interview time.
Armiger had set up interviews for March 4 and 6, 2001. He was
supposed to interview nine ETL candidates over those two days,
including Edgeston and Brown-Easley. * * * The Caucasian
candidate was interviewed later by another Target official.
Edgeston and Brown-Easley were never interviewed. * * * [A]
reasonable fact finder could conclude that contrary to Target’s
assertion and Armiger’s testimony, Armiger did know the race
of the applicants at the time he chose not to interview them.
Finally, Target also argues that if Armiger had intended to
discriminate against Edgeston and Brown-Easley he would not
have contacted them to set up an interview, and that because
Armiger did set up the interview it makes sense to assume that
he would not miss it for a discriminatory reason. The EEOC
claims that Armiger did not choose to interview Edgeston and
Brown-Easley, but instead only followed up on the
recommendations of his predecessor and of career fair
recruiters. This Court need not address the contours of each
side’s logic on this point any further than to conclude that there
is a dispute over when and with how much care Armiger
reviewed Edgeston and Brown-Easley’s resumes and who
actually decided to interview the individuals. * * * [T]he EEOC
has presented a genuine issue of fact as to whether Armiger was
truly the decision maker that elected to interview Edgeston and
Brown-Easley.
[W]e conclude that there is a genuine issue of material fact as to
whether Target’s proffered reason that Armiger was too busy to
interview White, Edgeston and Brown-Easley was a pretext for
discriminatory action based on race. Therefore, summary
judgment was improper for these applicants’ individual claims.

* * *
CASE QUESTIONS
1.
What were the legal issues in this case? What did the appeals
court decide?
2.
What are the obligations of employers regarding the retention of
records related to recruiting? What problems does the court
identify with Target’s record-retention practices?
3.
What is the evidence that the store team leader Armiger was
aware of the race of the applicants? That race was a factor in
the applicants not receiving interviews?
4.
What changes would you recommend to Target’s recruiting and
hiring practices? What should the role of store managers be?
Kroll v. White Lake Ambulance Authority
691 F.3d 809 (6th Cir. 2012)
OPINION BY CIRCUIT JUDGE MOORE:
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 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 [the ADA]. * * *This dispute
presents an issue of first impression in the Sixth Circuit as to
the meaning of “medical examination” under [the ADA]. For the
reasons that follow, we VACATE the judgment of the district
court and REMAND for further proceedings consistent with this
opinion.
* * * In September 2003, Kroll began working for WLAA as an
Emergency Medical Technician (“EMT”) specialist. Kroll was
generally considered to be a “good EMT” and a “good

employee” by her direct supervisor, Brian Binns (“Binns”).
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 [sic].
Kroll maintains that on April 21, 2008 Dresen “requested” that
Kroll “receive psychological counseling.” Dresen informed
Kroll that she had spoken with … an administrative case
manager … and that [he] had referred Dresen to Mark Graves
(“Graves”) regarding the availability of counseling. Dresen
testified that she did not know Graves’s title or whether he was
a mental-health professional. 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. Dresen stated that Kroll was receptive to the idea of
counseling and informed Dresen that she would pursue it “right
away.” 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. There
was no testimony as to Jahn’s profession or qualifications.
A few days later on April 28, 2008, … Binns[] met with Kroll
and Kroll’s father following a dispute between Kroll and
another WLAA employee. 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.” 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. Binns
testified that he didn’t “think” that he “used the term
‘psychological’” in describing the counseling that he asked
Kroll to attend. 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. Kroll told Binns that she would not attend the
counseling, left the meeting, and did not return to work at
WLAA. 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.
* * * The … question presented in this appeal is whether the
counseling that Kroll was instructed to attend constitutes a
“medical examination” under [the ADA]. 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.”
Construing the facts in the light most favorable to Kroll, we
conclude that this decision was in error for the reasons that
follow.
[The ADA] 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.” 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. 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.” In essence, the restriction
strikes a balance between competing interests.
* * *The EEOC … defines “medical examination” as “a
procedure or test that seeks information about an individual’s
physical or mental impairments or health.” 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;
(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.
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. This explanation is in keeping with the EEOC’s
recognition … that “[t]raits or behaviors are not, in themselves,
mental impairments.”
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.” The importance of [this section of the ADA] 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.
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 example provided by the EEOC …:
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.
* * * 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 Seventh Circuit decision in Karraker v. Rent-A-Center is a
useful example of the application of the EEOC’s guidance
directives. 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.” 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.”
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” was
enough to conclude that the test was “best categorized as a
medical examination” subject to the ADA’s restrictions.
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.” 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.” 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. * * *
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.” 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.” Taber’s Cyclopedic Medical Dictionary defines
“counseling” as “[t]he providing of advice and guidance to a
patient by a health professional” and defines “psychological” as
“[pertaining] to the study of the mind in all of its relationships,
normal and abnormal.” 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.”
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” ….
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.”
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. 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.”
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 [the
ADA] 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
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.
We recognize that even if Kroll’s instruction to undergo
“psychological counseling” is governed by [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. * * *
Dissent by Circuit Judge Sutton:
* * * 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.
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. * * * 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.
CASE QUESTIONS
1.
What was the legal issue in this case? What did the appeals
court decide?
2.
What factors does the EEOC use to determine whether a
procedure constitutes a “medical examination” under the ADA?
How does the appeals court apply these factors in this case?
3.
Why does it matter whether the “psychological counseling” that
the plaintiff was ordered to undergo was a medical
examination? On remand, do you think that the counseling will
be found to be job-related and consistent with business
necessity? Why or why not?
4.
What is Justice Sutton’s argument in his dissenting opinion?
Are you more persuaded by the majority opinion or the
dissenting opinion? Why?
5.
What are some practical implications of this decision for
employers dealing with employees who appear to be having
emotional or behavioral problems?
Lewis v. Heartland Inns of America
591 F.3d 1033 (8th Cir. 2010)
OPINION BY CIRCUIT JUDGE MURPHY:
Alleging that she lost a job she had done well, solely because of
unlawful sex stereotyping, Brenna Lewis brought this action for

sex discrimination and retaliation against her former employer
Heartland Inns of America.… The district court granted
summary judgment to Heartland. We reverse and remand.
* * * Heartland Inns operates a group of hotels, primarily in
Iowa. Brenna Lewis began work for Heartland in July 2005.…
She started as the night auditor at Heartland’s Waterloo
Crossroads location; at that job she worked at the front desk
from 11:00 p.m. to 7:00 a.m. There were also two other shifts
for “guest service representatives”: the A shift from 7:00 a.m.
to 3:00 p.m. and the B shift from 3:00 p.m. to 11:00 p.m. Lewis’
manager at Waterloo Crossroads, Linda Gowdy, testified that
Lewis “did her job well” and that she had requested a pay raise
for her. Heartland recorded two merit-based pay raises for
Lewis. The record also indicates that Gowdy received a
customer comment praising Lewis.
On or about December 7, 2006, Lewis began working various
part time front desk shifts at Heartland Inns located near Des
Moines, including at Ankeny and Altoona. At both locations she
was valued by her direct supervisors. Her manager at the
Altoona hotel, Jennifer Headington, testified that Lewis “made
a good impression[.]” She offered her a full time night auditor
position after receiving telephone permission from Barbara
Cullinan, Heartland’s Director of Operations. Lori Stifel,
Lewis’ manager at the Ankeny hotel, testified in her deposition
that Lewis did a “great job” in Ankeny, “fit into the [front desk]
position really well” and was well liked by customers. Stifel
received permission over the phone from Cullinan on December
15 to offer Lewis a full time A shift position. Neither
Headington nor Stifel conducted an interview of Lewis before
extending their offers, and the record does not reflect that
Cullinan ever told them a subsequent interview would be
necessary. Lewis accepted the offer for the A shift at Ankeny
and began training with her predecessor, Morgan Hammer. At
the end of December 2006 Lewis took over the job.
Lewis’ positive experience at Heartland changed only after
Barbara Cullinan saw her working at the Ankeny desk. * * *

She had approved the hiring of Lewis for the Ankeny A shift
after receiving Stifel’s positive recommendation. After seeing
Lewis, however, Cullinan told Stifel that she was not sure
Lewis was a “good fit” for the front desk. Cullinan called Stifel
a few days later and again raised the subject of Lewis’
appearance. Lewis describes her own appearance as “slightly
more masculine,” and Stifel has characterized it as “an Ellen
DeGeneres kind of look.” Lewis prefers to wear loose fitting
clothing, including men’s button down shirts and slacks. She
avoids makeup and wore her hair short at the time. Lewis has
been mistaken for a male and referred to as “tomboyish.”
Cullinan told Stifel that Heartland “took two steps back” when
Lewis replaced Morgan Hammer who has been described as
dressing in a more stereotypical feminine manner. As Cullinan
expressed it, Lewis lacked the “Midwestern girl look.” Cullinan
was heard to boast about the appearance of women staff
members and had indicated that Heartland staff should be
“pretty,” a quality she considered especially important for
women working at the front desk. Cullinan also had advised a
hotel manager not to hire a particular applicant because she was
not pretty enough. The front desk job description in Heartland’s
personnel manual does not mention appearance. It states only
that a guest service representative “[c]reates a warm, inviting
atmosphere” and performs tasks such as relaying information
and receiving reservations.
… Cullinan ordered Stifel to move Lewis back to the overnight
shift. Stifel refused because Lewis had been doing “a
phenomenal job at the front desk[.]” The following week, on
January 9, 2007, Cullinan insisted that Lori Stifel resign.
Around this time, Heartland informed its general managers that
hiring for the front desk position would require a second
interview. Video equipment was also purchased to enable
Cullinan or Kristi Nosbisch, Heartland’s Human Resource
Director, to see an applicant before extending any offer. * * *
Cullinan met with Brenna Lewis on January 23, 2007. At this
point Lewis had held the front desk job for nearly a month after

Cullinan’s initial approval of her hire for the position. The
record contains no evidence of any customer dissatisfaction
with Lewis or her service. Nevertheless, Cullinan told Lewis at
the meeting that she would need a second interview in order to
“confirm/endorse” her A shift position. Lewis was aware from
Lori Stifel of what had been said about her appearance, and she
protested that other staff members had not been required to have
second interviews for the job. Lewis told Cullinan that she
believed a second interview was being required only because
she lacked the “Midwestern girl look.” She questioned whether
the interview was lawful, and she cried throughout the meeting.
Cullinan wanted to know who had told Lewis about the
comment and asked whether it was Lori Stifel. Thereafter
Cullinan talked about the need for new managers when revenue
is down like in Ankeny, where Stifel was the manager. Lewis
responded that recent policy changes by Heartland, including
bans on smoking and on pets, might explain the loss in revenue.
Cullinan then encouraged Lewis to share more of her views
about the new policies and took notes on what she said. Three
days later, Lewis was fired.
Lewis does not challenge Heartland’s official dress code, which
imposes comparable standards of professional appearance on
male and female staff members, and her termination letter did
not cite any violation of its dress code. The theory of her case is
that the evidence shows Heartland enforced a de facto
requirement that a female employee conform to gender
stereotypes in order to work the A shift. There was no such
requirement in the company’s written policies. In its
termination letter to Lewis, Heartland asserted that she had
“thwart[ed] the proposed interview procedure” and exhibited
“host[ility] toward Heartland’s most recent policies[.]” * * *
Lewis asserts that Heartland terminated her for not conforming
to sex stereotypes and contends that this conduct violated Title
VII of the Civil Rights Act and the Iowa Civil Rights Act.
* * * Among the authorities relied on by Lewis is Price
Waterhouse v. Hopkins, where the Supreme Court decided that

sex stereotyping can violate Title VII when it influences
employment decisions. * * * In Price Waterhouse, where a
female senior manager was denied partnership, partners
involved in their decision had referred to her as “macho” and in
need of “a course at charm school[.]” She was advised that to
become a partner she should “walk more femininely, talk more
femininely, dress more femininely, wear make-up, have her hair
styled, and wear jewelry.” Such stereotypical attitudes violate
Title VII if they lead to an adverse employment decision. * * *
Like the plaintiff in Price Waterhouse, Lewis alleges that her
employer found her unsuited for her job not because of her
qualifications or her performance on the job, but because her
appearance did not comport with its preferred feminine
stereotype.
Other circuits have upheld Title VII claims based on sex
stereotyping subsequent to Price Waterhouse. * * * The Sixth
Circuit’s Smith case concerned a firefighter who was born male
but subsequently came to identify as a woman. When he began
“to express a more feminine appearance” at work, he was told
by colleagues that he was not “masculine enough[.]” His
superiors then “devise[d] a plan” to terminate him, including an
order that he submit to multiple psychological evaluations. If he
did not consent, “they could terminate Smith’s employment on
the ground of insubordination.” Lewis similarly alleges that
Heartland imposed a second interview and then used her
objection to it against her when its real reason for terminating
her was because she lacked the “Midwestern girl look” and was
not pretty enough to satisfy Cullinan. As the Sixth Circuit
concluded in Smith, an adverse employment decision based on
“gender nonconforming behavior and appearance” is
impermissible under Price Waterhouse. Likewise, in Chadwick,
the First Circuit found a decision maker’s explanation why the
plaintiff had not received a promotion evidence that the
decision was motivated by an illegal sex stereotype that women
would prioritize child care responsibilities over paid
employment (with four young children she had “too much on

her plate”). The Second Circuit similarly concluded in Back that
the statement that a mother who received tenure “would not
show the same level of commitment [she] had shown because
[she] had little ones at home” showed discriminatory intent in
the tenure decision. The Seventh Circuit found remarks
characterizing conduct of a woman employee as “you’re being a
blond[e] again today” probative of sex discrimination.… * * *
The district court recognized that sex stereotyping comments
may be evidence of discrimination. The focus of its decision
was the mistaken view that a Title VII plaintiff must produce
evidence that she was treated differently than similarly situated
males. Our court has explicitly rejected that premise. * * *
Courts “consistently emphasize[] that the ultimate issue is the
reasons for the individual plaintiff ’s treatment, not the relative
treatment of different groups within the workplace.” * * *
Comparative evidence is certainly not the “exclusive means by
which a plaintiff may establish an inference of discrimination.”
* * * The Supreme Court has stated that “[t]he critical issue” in
a sex discrimination case is “whether members of one sex are
exposed to disadvantageous terms or conditions of employment
to which members of the other sex are not exposed.” * * * “[A]n
employer who discriminates against women because, for
instance, they do not wear dresses or makeup, is engaging in sex
discrimination because the discrimination would not occur but
for the victim’s sex.” * * * Lewis need only offer evidence that
she was discriminated against because of her sex. The question
is whether Cullinan’s requirements that Lewis be “pretty” and
have the “Midwestern girl look” were because she is a woman.
A reasonable fact finder could find that they were since the
terms by their nature apply only to women.
We recognize that “[r]emarks at work that are based on sex
stereotypes do not inevitably prove that gender played a part in
a particular employment decision. The plaintiff must show that
the employer actually relied on her gender in making its
decision.” Lewis met this burden at the summary judgment
stage. * * * Cullinan was a primary decision maker with

authority to hire and fire employees. While several individuals
also took part in the decision to terminate Lewis, they relied on
Cullinan’s description of her January 23, 2007 conversation
with Lewis. Cullinan consistently indicated that female front
desk workers must be “pretty,” and she criticized Lewis’s lack
of the “Midwestern girl look” in the same conversation in which
she ordered Stifel to move Lewis back to the night audit.
Cullinan authorized Stifel to hire Lewis over the phone, but
demanded a “confirm/endorse” interview once she saw Lewis’s
“tomboyish” appearance. * * *
Evidence that Heartland’s reason for the termination were
pretextual include the fact that Lewis had a history of good
performance at Heartland. She had no prior disciplinary record
and had received two merit based pay raises. The two
individuals who supervised her during the majority of her
employment at Heartland both stated that they had no problem
with her appearance, and at least one customer had never seen
customer service like that Lewis had provided. * * * [A]
reasonable fact finder could disbelieve Heartland’s proffered
reason for terminating Lewis. Heartland asserts that it fired
Lewis because of the January 23 meeting when Cullinan
informed her that she would need to submit to a second
interview. Lewis and Cullinan, the only two individuals in the
room, portray the encounter in starkly different terms. On
summary judgment we must construe the conversation in the
light most favorable to Lewis, however. Lewis denies that she
expressed hostility to Heartland’s policies or spoke in a
disrespectful way or took an argumentative stance or refused to
participate in a second interview. It is also relevant that the
meeting occurred after Cullinan had given Stifel the
understanding that “[Lewis’] appearance … was not what [she]
wanted on the front desk” and after Stifel had shared that
discussion with Lewis.
Shortly after Cullinan’s conversation with Stifel about Lewis’
appearance, Heartland procured video equipment so that
Cullinan or Nosbisch could inspect a front desk applicant’s look

before any hiring. Heartland’s termination letter to Lewis only
relied on the January 23 meeting she had with Cullinan. Only
later did Heartland allege poor job performance would justify
her termination. Lewis asserts further that Heartland did not
follow its own written termination procedure, which includes
assessing the employee’s previous disciplinary record (Lewis
had none) and conducting an investigation before making the
termination decision. Kristi Nosbisch, Heartland’s equal
employment officer responsible for directing investigations of
employment discrimination, knew that Lewis had complained
that Cullinan’s requirements were illegal, but she nonetheless
relied on Cullinan’s account of their meeting without asking
Lewis for her own.
* * * We turn next to Lewis’ retaliation claim. * * * Lewis went
into the January 23 meeting with Cullinan after learning about
the “Midwestern girl look” comment. Lewis had already held
her job for nearly a month and understood that other transferred
employees in her situation had not been required to submit to a
second interview. She observed Cullinan grow defensive after
she asked her about the “Midwestern girl look” comment.
Heartland argues that its official policy dictated a second
interview, but Lewis has raised a genuine fact issue about
whether Heartland imposed second interviews in similar
circumstances before January 2007 and whether Heartland
began doing so in relation to Cullinan’s interaction with Lewis.
Heartland suggests that Lewis’ comments during the January 23
meeting did not actually oppose any unlawful practice. Cullinan
testified, however, that Lewis had “emphatically stated that she
thought it was illegal for us to ask her to interview, and illegal
for us to schedule her to another shift” and that Lewis said she
thought the interview demand was because of her appearance.
These statements cannot reasonably be characterized as
anything other than opposition to illegal action.
No one questions that Lewis was subjected to an adverse
employment action, and there is ample record evidence to
support a causal nexus between that and Lewis’s protests at the

January 23 meeting. Lewis received the termination notice a
mere three days after the disputed conversation, and Heartland
cited her objection to the second interview in her termination
notice. The evidence of pretext already discussed applies with
equal force in evaluating whether Lewis has made out a prima
facie retaliation claim.
CASE QUESTIONS
1.
What were the legal issues in this case? What did the court
decide?
2.
What was the evidence of sex stereotyping in this case?
3.
Is this also a sex-plus case? Why or why not?
4.
In a dissenting opinion, one of the judges who heard this case
wrote that “[a]pparently, the majority would hold that an
employer violates Title VII if it declines to hire a female
cheerleader because she is not pretty enough, or a male fashion
model because he is not handsome enough.…” Do you agree?
Was this case correctly decided? Why or why not?
5.
What, if any, appearance policy would you recommend for a
hotel?
Insert Page Header – Insert Page Number

Week 1 – Case Studies
Your Name
Herzing University
Case Study 1
Introduction
Essay specific to case study questions
Conclusion
References
Case Study 2
Introduction
Conclusion
References
Case Study 3
Introduction

Conclusion
References

EEOC v. Target Corp.2006 U.S. App. LEXIS 21483 (7th Cir.)OPINI.docx

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EEOC v. Target Corp.2006 U.S. App. LEXIS 21483 (7th Cir.)OPINI.docx