FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

KRIS INDERGARD,  No. 08-35278

Plaintiff-Appellant, D.C. No.

v.  3:06-CV-01317-

ALH-PP GEORGIA-PACIFIC CORPORATION,

Defendant-Appellee. OPINION 

Appeal from the United States District Court

for the District of Oregon

Ancer L. Haggerty, District Judge, Presiding

Argued and Submitted

June 4, 2009—Portland, Oregon

Filed September 28, 2009

Before: Alfred T. Goodwin, Diarmuid F. O’Scannlain, and

Raymond C. Fisher, Circuit Judges.

Opinion by Judge Goodwin;

Dissent by Judge O’Scannlain

13883
COUNSEL

Kerry M.L. Smith, Smith & Fjelstad, Gresham, Oregon, for

the plaintiff-appellant.

Scott G. Seidman, Tonkon Torp, Portland, Oregon, for the

defendant-appellee.

13886 INDERGARD v. GEORGIA-PACIFIC CORP.
OPINION

GOODWIN, Circuit Judge:

Kris Indergard (“Indergard”) appeals a summary judgment

in favor of Georgia-Pacific Corporation (“GP”) in her action

for damages under the Americans with Disabilities Act

(“ADA”) and Oregon disability law. GP argues that there was

no error in the district court, and that Indergard failed to

exhaust administrative remedies under the ADA. We have

jurisdiction pursuant to 28 U.S.C. § 1291, and we reverse.

FACTUAL AND PROCEDURAL BACKGROUND

Indergard worked at GP’s Wauna mill facility from December 27, 1984, until February 8, 2006. On December 9, 2003,

she took medical leave to undergo surgery for work-related

and non-work related injuries to her knees. She remained on

medical leave until March 21, 2005, when her orthopedic surgeon, Dr. Randall Ketzler, authorized her return to work, but

with permanent restrictions. GP policy required employees to

participate in a physical capacity evaluation (PCE) before

returning to work from medical leave, and GP so informed

Indergard. 

GP contracted Columbia Rehabilitation (“Columbia”), an

independent occupational therapy provider located in Washington state, to conduct the PCE. Cory Blickenstaff, a physical therapist at Columbia, visited the GP facility and

conducted a job analysis for the Consumer Napkin Operator

position, which was Indergard’s position prior to her medical

leave, and for the Napkin Adjuster position, which was the

next position for which Indergard was entitled to bid under

the collective bargaining agreement. Blickenstaff interviewed

employees who worked in these positions, and identified the

physical demands of the positions, including amount of

weight an employee was required to lift, carry, push, pull, and

hold, and the type of movements the positions required. 

INDERGARD v. GEORGIA-PACIFIC CORP. 13887
Among the lifting requirements that Blickenstaff identified

were a sixty-five pound individual lift and carry for the Consumer Napkin Operator position and a seventy-five pound lift

for the Napkin Adjuster position. In light of these requirements, Columbia determined that Indergard’s permanent

restrictions prevented her from participating in the PCE.

Indergard met with GP supervisors and challenged the lifting

requirements in the job analyses, alleging that they were inaccurate based on how the jobs were actually performed. Blickenstaff prepared a supplemental memorandum intended to

clarify the requirements, but the job analyses were not

revised. 

On October 11, 2005, Indergard provided GP with a note

from Dr. Ketzler that removed the permanent restrictions he

had previously identified. GP then scheduled her to participate in the PCE. Vicky Starnes, a state-licensed occupational

therapist at Columbia, conducted the PCE at Columbia’s

office on November 9 and 10, 2005. 

On the first day of the PCE, Starnes recorded Indergard’s

medical history and subjective reports of her current pain

level and use of medication, alcohol, tobacco, and assistive

devices. Starnes recorded Indergard’s weight, height, blood

pressure, and resting pulse. She observed Indergard’s gait,

balance, and posture. She measured the range of motion in

Indergard’s arms and legs, and compared the results to normal

limits. Starnes palpated Indergard’s knees and looked for

edema in her legs, and performed manual muscle testing,

recording the results of Indergard’s hip flexors, knee extensors and flexors, bilateral internal and external hip rotation,

and straight leg raises. 

Next, Starnes measured Indergard’s ability to lift various

amounts of weight from floor to waist, waist to chest, and

chest to overhead, and evaluated Indergard’s body mechanics

during the lifts. She then measured Indergard’s ability to carry

increasing amounts of weight over a set distance, and her grip

13888 INDERGARD v. GEORGIA-PACIFIC CORP.
strength over varying grip widths. She measured Indergard’s

static strength to determine her ability to lift, push, and pull

in various postures, and compared Indergard’s results to

norms adopted by the U.S. Department of Health and Human

Services. Indergard then performed a “Job Simulation Task,”

which required her to lift and pour five gallon buckets filled

with forty-five pounds of sand. Starnes then tested Indergard’s ability to place nuts and bolts in a box while kneeling

with her vision obscured, and observed Indergard’s ability to

climb stairs, stand, sit, kneel, squat, and crawl. Indergard

walked on a treadmill for twenty minutes at a 2.8 mile per

hour pace, and pushed a weight sled. Finally, Starnes recorded

details about Indergard’s vision, communication, cognitive

ability, hearing, attitude, and behavior. 

The second day of the PCE included similar tests. Starnes

measured and recorded Indergard’s heart rate after she performed the treadmill test, and noted that she required “increased oxygen” and demonstrated “poor aerobic fitness.”

Starnes concluded that Indergard was unable to perform the

sixty-five pound lift and carry that Blickenstaff had identified

as a requirement of the Napkin Operator position, or the

seventy-five pound lift that Blickenstaff identified as a

requirement for the Napkin Adjuster position. Starnes recommended that Indergard not return to work, and forwarded the

results of the PCE to Dr. Ketzler, who agreed with Starnes’s

assessment. The lifting requirements that the PCE indicated

Indergard could not meet were those that she had previously

contested as inaccurate.

GP then informed Indergard that she could not return to

either position, and that no other positions were available for

which she was qualified. On February 8, 2006, GP terminated

her employment pursuant to a provision in the collective bargaining agreement that allowed GP to terminate employees

who had been on leave for more than two years. Indergard

filed a union grievance, which was denied, and filed a joint

complaint with the EEOC and BOLI. The administrative

INDERGARD v. GEORGIA-PACIFIC CORP. 13889
investigation found no substantial evidence to support her

claims. She received right to sue letters, and filed this action.

Indergard alleged various claims of disability discrimination under the ADA and Oregon disability law. Relevant to

this appeal, she alleged that GP misrepresented the essential

job functions of the position in which she had worked prior

to going on medical leave, forced her to participate in the PCE

without “an objectively reasonable basis for doing so,” and

refused to allow her to return to employment after the PCE.

In her first claim for relief, Indergard alleged that the PCE

was improper and discriminatory, and that GP relied on the

PCE to “remove and/or deny” her return to employment. She

also raised other claims under the ADA, including that GP

treated her “in a disparate, discriminating and harassing manner” because she was disabled, had a record of disability or

was perceived as disabled, and that GP failed to engage in the

interactive process. She sought relief in the form of loss of

income, and $250,000 in non-economic damages. 

GP moved for summary judgment, and Indergard’s

response abandoned all claims except those alleging that the

PCE was an improper medical examination and that GP discriminated against her because of a perceived disability or

record of disability. GP’s reply argued that the PCE was not

a medical examination, and that it therefore did not violate the

ADA. It further argued that even if the PCE was a medical

examination, it was job-related and consistent with business

necessity, and therefore expressly allowed by the ADA. See

42 U.S.C. § 12112(d)(4)(A).1

1

(A) Prohibited examinations and inquiries 

A covered entity shall not require a medical examination and

shall not make inquiries of an employee as to whether such

employee is an individual with a disability or as to the nature or

severity of the disability, unless such examination or inquiry is

shown to be job-related and consistent with business necessity. 

42 U.S.C. § 12112(d)(4)(A). 

13890 INDERGARD v. GEORGIA-PACIFIC CORP.
The magistrate judge agreed with GP that the PCE was not

a medical examination. Because the magistrate judge determined that the PCE was not a medical examination, he concluded that GP had not violated 42 U.S.C. § 12112(d)(4)(A)

and that it was entitled to summary judgment. In the interest

of providing a thorough analysis, however, the magistrate

judge analyzed GP’s business necessity defense. Noting that

the standard to establish business necessity is “quite high,” the

magistrate judge found that although GP had a reasonable

basis to request the PCE, it “would not be entitled to summary

judgment on the basis of the business necessity defense

because [GP] failed to show that the PCE was limited to the

essential functions” of Indergard’s prior positions. The magistrate judge, however, decided that GP was nonetheless entitled to summary judgment because the PCE was not a medical

examination.

Indergard filed objections, but the district court adopted the

Findings and Recommendation in full and granted GP’s

motion for summary judgment. This appeal followed.2

DISCUSSION

I. The district court erred in holding that the PCE was

not a medical examination under the ADA

[1] Under the ADA, an employer may not require a current

employee to undergo a medical examination unless the examination “is shown to be job-related and consistent with business necessity.” 42 U.S.C. § 12112(d)(4)(A). This section

applies to all employees, whether or not they are disabled

under the ADA. Fredenburg v. Contra Costa County Dep’t of

Health Servs., 172 F.3d 1176, 1182-82 (9th Cir. 1999). The

implementing regulations impose the same restriction, but

state that an employer “may make inquiries into the ability of

2

Indergard does not appeal the district court’s grant of summary judgment on her discrimination based on perceived disability claim. 

INDERGARD v. GEORGIA-PACIFIC CORP. 13891
an employee to perform job-related functions.” 29 C.F.R.

§ 1630.14(c). Thus, we must determine whether the PCE was

a medical examination under the ADA or simply an inquiry

into whether Indergard was capable of performing the jobrelated functions of the positions she was qualified to return

to after her medical leave. 

A. Regulatory guidance indicates that the PCE was a

medical examination

Neither the ADA nor the implementing regulations define

the term “medical examination,” and case law interpreting

this provision is limited. Agency guidance on the issue, however, is more detailed. Although agency guidance documents

are “not controlling upon courts by reason of their authority,

[they] do constitute a body of experience and informed judgment to which courts and litigants may properly resort for

guidance.” Meritor Sav. Bank v. Vinson, 477 U.S. 57, 65

(1986) (internal quotation marks and citation omitted); see

also Christensen v. Harris County, 529 U.S. 576, 587 (2000)

(stating that “interpretations contained in policy statements,

agency manuals, and enforcement guidelines . . . are ‘entitled

to respect’ . . . only to the extent that [they] have the power

to persuade”) (internal quotation marks and citation omitted).

[2] The interpretive appendix to 29 C.F.R. § 1630.14(c)

states, in relevant part, that “[t]his provision permits employers to make inquiries or require medical examinations (fitness

for duty exams) when there is a need to determine whether an

employee is still able to perform the essential functions of his

or her job.” 29 C.F.R. Pt. 1630, App. § 1630.14(c). The interpretive appendix to 29 C.F.R. § 1630.14(a) also contemplates

the use of “[p]hysical agility tests,” which “are not medical

examinations and so may be given at any point in the application or employment process.” Id. at App. § 1630.14(a). The

appendix further states that physical agility tests “must be

given to all similarly situated applicants or employees regardless of disability,” and notes that if the test “screen[s] out or

13892 INDERGARD v. GEORGIA-PACIFIC CORP.
tend[s] to screen out an individual with a disability . . . the

employer would have to demonstrate that the test is jobrelated and consistent with business necessity and that performance cannot be achieved with reasonable accommodation.”

Id.

[3] EEOC Enforcement Guidance draws a further distinction between medical examinations and physical agility tests.

It defines a medical examination as “a procedure or test that

seeks information about an individual’s physical or mental

impairments or health.” Enforcement Guidance on DisabilityRelated Inquiries and Medical Examinations, available at

http://www.eeoc.gov/policy/docs/guidance-inquiries.html

[hereinafter “EEOC Enforcement Guidance”]. It provides the

following seven factors to be considered in determining

whether a test is a medical examination: 

(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 of 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

(7) whether medical equipment is used

Id. The EEOC Enforcement Guidance states that although in

some cases a combination of factors may be relevant to the

INDERGARD v. GEORGIA-PACIFIC CORP. 13893
determination of whether a test is a medical examination, in

“other cases, one factor may be enough to determine that a

test or procedure is medical.” Id. It then provides a list of tests

considered medical examinations, including “blood pressure

screening and cholesterol testing” and “range-of-motion tests

that measure muscle strength and motor function.” Id.

[4] The EEOC Enforcement Guidance states that certain

employer-required tests are generally not medical examinations, including 

physical agility tests, which measure an employee’s

ability to perform actual or simulated job tasks, and

physical fitness tests, which measure an employee’s

performance of physical tasks, such as running or

lifting, as long as these tests do not include examinations that could be considered medical (e.g., measuring heart rate or blood pressure).

Id. (emphasis added).

1. Single factors establish that the PCE was a medical examination

[5] In light of the agency guidance, Indergard’s argument

that the PCE was a medical examination is convincing. As

noted above, the PCE included range of motion and muscle

strength tests, and Starnes measured Indergard’s heart rate

and recorded an observation about her breathing after the

treadmill test. Each of these tests is within the EEOC’s

description of tests that are considered medical examinations.

The post-treadmill test heart rate measurement and notation

regarding Indergard’s “increased oxygen” intake and demonstration of “poor aerobic fitness” weigh heavily in favor of

considering the PCE a medical exam, particularly because

Starnes had already noted that Indergard “was able to walk for

20 minutes at 2.8 mph on treadmill without increased antalgic

behavior or objective findings of pain complaints noted.” Had

13894 INDERGARD v. GEORGIA-PACIFIC CORP.
Starnes’s observations ended there, it might be appropriate to

characterize the treadmill test as a test that measured Indergard’s performance of a physical task. Measuring Indergard’s

heart rate and recording observations about her breathing and

aerobic fitness, however, was not only unnecessary to determine whether she could perform the task, but is also the kind

of examination that the EEOC Enforcement Guidance identifies as inappropriate to include in a non-medical physical agility or fitness test. 

GP’s argument that anything less than a “genuine exercise

stress test” is not a medical examination distorts the EEOC

Enforcement Guidance and is not well-taken. Furthermore, to

the extent that GP attempts to rely on the magistrate judge’s

conclusion that Indergard’s blood pressure and heart rate were

measured as an “overall precaution before beginning testing

rather than to measure [Indergard’s] physiological response to

the performance portion of the PCE,” we emphasize that her

heart rate was taken both before and after the treadmill test,

and we note that although it might be a prudent medical procedure to take these physiological measurements, including

them in the report provided to GP was unnecessary for the

purpose of determining whether Indergard was physically

capable of performing her job duties. 

2. Application of the seven-factor test establishes

that the PCE was a medical examination

[6] The EEOC Enforcement Guidance identifies seven factors as relevant to determining whether a test is a medical

examination, and at least four weigh in Indergard’s favor.

First, although Starnes is not a medical doctor, she is a

licensed occupational therapist. Nothing in the EEOC

Enforcement Guidance indicates that the term “health care

professional” should be limited to only doctors, and at least

one district court has found that the fact that a PCE “was

administered by a business specializing in physical therapy,

and not a medical doctor, makes it no less ‘medical’ than a

INDERGARD v. GEORGIA-PACIFIC CORP. 13895
nurse taking one’s blood pressure or an emergency medical

technician administering care to a patient on the way to the

hospital.” Medlin v. Rome Strip Steel Co., 294 F. Supp. 2d

279, 294 (N.D.N.Y. 2003). 

[7] Second, not only did Starnes administer the PCE, but

she interpreted Indergard’s performance and recommended

that she not return to work. Furthermore, Starnes submitted

the test results to Dr. Ketzler, Indergard’s treating orthopedic

surgeon, who indicated his agreement with Starnes’s recommendation. This distinguishes the PCE from a test where, for

example, a supervisor or other employee might observe the

employee’s physical ability to perform job tasks. 

[8] Third, although the PCE was ostensibly intended to

determine whether Indergard could return to work, the broad

reach of the test was capable of revealing impairments of her

physical and mental health, particularly in light of Starnes

recording Indergard’s subjective reports of her current pain

level, use of medication and assistive devices, and communication, cognitive ability, attitude, and behavior. 

[9] The fourth factor weighs in GP’s favor, as the PCE does

not seem to have been invasive. The fifth factor, however,

benefits Indergard because Starnes recorded her heart rate and

breathing pattern after the treadmill test, and Indergard’s muscle pain and stiffness after the first day of testing. These are

measurements of Indergard’s physiological response to her

performance of a task and, as discussed above, go beyond collecting information necessary to determine whether Indergard

was physically capable of performing the task. We express no

opinion on the sixth factor, except to note that the offices of

a licensed occupational therapist are more like a medical setting than, for example, an employee’s work place.

[10] Finally, it is unclear whether the final factor favors

either party, because the only evidence that medical equipment was used in the PCE is Starnes’s use of a blood pressure

13896 INDERGARD v. GEORGIA-PACIFIC CORP.
cuff at the beginning of the PCE. Thus, viewed in the light

most favorable to Indergard, applying the balancing factors

establishes that the PCE was a medical examination.

B. The limited case law available establishes that the

PCE was a medical examination

[11] Most cases interpreting 42 U.S.C. § 12112(d)(4)(A)

address the question of whether an admitted medical examination was job related and consistent with business necessity.

See, e.g., Yin v. California, 95 F.3d 864, 868 (9th Cir. 1996)

(following the district court in assuming that the proposed

examination was a medical examination within the meaning

of 42 U.S.C. § 12112(d)(4)(A)).

The case most on point is Medlin, 294 F. Supp. 2d at

293-94. Medlin, an employee, had been on medical leave after

a back injury. Id. at 284. Prior to returning to work, his

employer required him to undergo a functional capacity evaluation (“FCE”) to determine whether his residual functional

capacity met the job requirements for the position he previously held. Id. at 285. The FCE results revealed that Medlin

was “unable to maintain safe work practices or a heart rate

profile required for the level of repetitions and duration for a

complete Hot Role Slitter setup.” Id. (internal quotation marks

omitted). Medlin sued, alleging in part that the employer

made an improper disclosure of his medical information in

violation of the ADA when it made the results of the FCE

known to other employees. Id. at 293. 

The court stated that the FCE was clearly job related and

consistent with business necessity, but noted that it was

unclear whether it qualified as a medical examination. Id.

Without reaching a definitive conclusion, the court noted that

EEOC guidance and case law had indicated “that testing

ordered by the employer that physically or mentally tests an

employee’s ability to perform his or her job are permissible

tests under the ADA.” Id. at 293-94 (citing 29 C.F.R. Pt.

INDERGARD v. GEORGIA-PACIFIC CORP. 13897
1630, § 1630.13(b); Sullivan v. River Valley Sch. Dist., 197

F.3d 804, 811 (6th Cir. 1999)). The court then found that

because the sole purpose of the FCE was to determine

whether Medlin “could physically return to work without any

restrictions” and was “in essence and in reality, a fitness for

duty exam,” it therefore was likely a medical examination. Id.

at 294. 

GP argues that because the FCE in Medlin was administered to determine whether the employee could perform the

physical demands of his position without any restrictions, it

was designed to test the level of his disability and is therefore

distinguishable from the PCE in this case. This distinction is

unpersuasive. Although the court did state that the purpose of

the FCE was to determine whether Medlin “could physically

return to work without any restrictions,” id., it was administered to an injured employee returning from medical leave in

order to ascertain whether he was capable of performing the

physical demands of his position. Id. at 284-86. Thus, there is

little to distinguish the FCE at issue in Medlin from the PCE

at issue here. 

Furthermore, the Second Circuit has held that an employer’s policy that all employees returning from sick leave provide a medical certification that included a “brief general

diagnosis that is ‘sufficiently informative as to allow [the

Department of Correctional Services] to make a determination

concerning the employee’s entitlement to leave’ ” was “sufficient to trigger the protections of the ADA under [42 U.S.C.

§ 12112(d)(4)(A)]” because the general diagnosis “may tend

to reveal a disability.” Conroy v. New York Dep’t of Corr.

Serv., 333 F.3d 88, 92, 95-96 (2d Cir. 2003). Although Conroy was interpreting the provision in 42 U.S.C.

§ 12112(d)(4)(A) that prohibits an employer from making “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” and is not directly on point, its reasoning is

useful to the extent that portions of Indergard’s PCE went

13898 INDERGARD v. GEORGIA-PACIFIC CORP.
beyond simply measuring her physical ability to perform job

tasks and could have revealed a disability.

[12] The purpose of the PCE may very well have been to

determine whether Indergard was capable of returning to

work. The substance of the PCE, however, clearly sought “information about [Indergard’s] physical or mental impairments

or health,” see EEOC Enforcement Guidance, and involved

tests and inquiries capable of revealing to GP whether she suffered from a disability. Therefore, we hold that the PCE was

a medical examination under 42 U.S.C. § 12112(d)(4)(A).3

3The dissent predicts a parade of lawsuit horribles for employers if

Indergard’s PCE is held to be a medical examination within the meaning

of 42 U.S.C. § 12112(d)(4)(A). To reach this conclusion, the dissent disregards statutory language and commentary by dividing the comprehensive

PCE into its component tests for analysis. In addition, the dissent would

require Indergard to show that a particular component test was a medical

examination that proximately caused her to lose her job, a rationale that

has not been adopted in this circuit. 

“The plainness or ambiguity of statutory language is determined by reference to the language itself, the specific context in which that language

is used, and the broader context of the statute as a whole.” Robinson v.

Shell Oil Co., 519 U.S. 337, 341 (1997). The statute provides that an

employer “shall not require a medical examination . . . unless such examination . . . is shown to be job-related and consistent with business necessity.” 42 U.S.C. § 12112(d)(4)(A). The EEOC Enforcement Guidance for

§ 12112(d)(4)(A) clarifies that testing blood pressure, cholesterol, muscle

strength, and motor function specifically are designated as medical examinations. “The whole purpose of placing a person on leave is that he or she

may eventually return to work.” Fredenburg, 172 F.3d at 1181. 

“The ADA was enacted in 1992 ‘to provide a clear and comprehensive

national mandate for the elimination of discrimination against individuals

with disabilities.’ ” Yin, 95 F.3d at 867 (quoting 42 U.S.C. § 12101(b)).

The ADA provisions that prohibit using medical examinations to discriminate in hiring or retaining employees protect all employees from being

stigmatized by their disabilities. 42 U.S.C. § 12112(d); see Fredenburg,

172 F.3d at 1182 (“protecting only qualified individuals would defeat

much of the usefulness of [the medical examination provisions]”). The

dissent’s method of dividing Indergard’s PCE into component parts and

engaging in proximate-cause analysis creates a risk that employers would

INDERGARD v. GEORGIA-PACIFIC CORP. 13899
II. Exhaustion of administrative remedies

GP argues that Indergard failed to exhaust administrative

remedies because her joint EEOC/BOLI complaint did not

provide requisite notice of the unlawful medical examination

claim. Indergard argues that the court should not reach this

issue because she has alleged identical claims under Oregon’s

state disability law, which is substantively the same as federal

seek to obtain medical information in tests that are not job-related and

thereby escape liability by asserting that their employment decisions were

based on information revealed in non-medical components of the evaluation. This would promote unnecessary litigation, contravene the statutory

prophylactic purpose, and deter disabled employees from returning to

work following medical leave, because of concern for being stigmatized

by their disabilities. 

Indergard was given a treadmill/blood-pressure test, which is used to

detect arterial blockages that could result in open-heart surgery. Unquestionably, this is a medical examination, and taking blood pressure following treadmill exertion is a critical part of the test not to be separated from

it. Yet, the dissent segregates the blood-pressure test from this standard

medical procedure and re-characterizes it as incidental or a technical violation of § 12112(d)(4)(A). While testing blood pressure is explicitly designated in the statutory commentary as being a medical examination, the

therapist, who administered the PCE, took many physiological measurements during the two-day testing, given as a composite examination.

Avoiding the statutory language, commentary, and purpose, the dissent

endeavors to convert the two-day PCE into a physical agility test, which

employers can give at any time, by dividing it into its component tests and

analyzing them separately. 

Using this cut-and-divide approach, for which the dissent gives no

authority, not only dispenses with Indergard’s blood-pressure test as incidental but also focuses on her weight-lifting testing as the basis or proximate cause for her termination. The therapist, who administered the PCE,

determined that Indergard could not accomplish the 65-pound lift and

carry nor the 75-pound lift, respectively required for her former Consumer

Napkin Operator position or the Napkin Adjuster position, for which she

would have been entitled to bid under the applicable collective bargaining

agreement. Indergard’s doctor had deemed her able to return to work and

subsequently agreed with her termination, based solely on the weight lifting purportedly required for the two jobs. 

13900 INDERGARD v. GEORGIA-PACIFIC CORP.
law but does not require administrative exhaustion, that GP

waived the failure to exhaust argument by way of a judicial

admission in its answer, that GP did not allege failure to

exhaust as an affirmative defense, and that because the EEOC

would have addressed the medical examination in the scope

of its investigation, the claim was properly before the district

court. 

Because the magistrate judge determined that the PCE was

not a medical examination, he declined to reach GP’s argument that Indergard failed to exhaust her administrative remedies with respect to this claim. In remanding this case, we do

not express any view on this argument, and the issue remains

open for the district court’s consideration.

CONCLUSION

[13] We hold that the PCE was a medical examination

within the meaning of 42 U.S.C. § 12112(d)(4)(A). Because

the magistrate judge correctly found that a triable issue of fact

remained on the question of whether the PCE was job related

and consistent with business necessity, the summary judgment

This circuit has not adopted a proximate-causation requirement in the

context of § 12112(d)(4)(A). The dissent’s reliance on Armstrong v. Turner Industries, Inc., 141 F.3d 554, 562 (5th Cir. 1998), is inapposite

because Turner concerned a pre-employment examination and not an

employee’s returning to work from medical leave. An employee, who has

worked for a company, has more invested in that employment, including

benefits, than an applicant for employment. Therefore, the employee has

more to lose by job termination than an applicant, and the employee also

effectively has been penalized for a medical absence, when his or her job

is lost upon return to work. Using its component-test analysis, the dissent

insists that Indergard has no cause of action, but she did lose her job when

she returned from medical leave because of the subject PCE. The dissent

cannot inject into the plain statutory language a contrived proximate-cause

requirement. As GP notes, proximate cause “is not an issue the Court

needs to decide in this appeal” before initial determination by the district

court and briefing on appeal. Appellee’s Br. at 22 n.5. Treating the twoday PCE as a whole, rather than analyzing its discrete tests, promotes the

deterrent purpose behind § 12112(d)(4)(A). 

INDERGARD v. GEORGIA-PACIFIC CORP. 13901
was inappropriate. We vacate the judgment and remand the

case to the district court to determine whether the PCE was

job related and consistent with business necessity, and to

determine whether Indergard exhausted administrative remedies. 

VACATED and REMANDED.

O’SCANNLAIN, Circuit Judge, dissenting:

The essential distinction between a medical examination

and a physical fitness or agility test, for the purposes of the

Moreover, Indergard continues to argue on appeal that the 65-pound

weight-lifting test for the Consumer Napkin Operator position, which was

her job, and the 75-pound weight-lifting test for the Napkin Adjuster position are inaccurate weight requirements for these jobs. On summary judgment review, Indergard’s statement of the weight requirements for the

respective jobs must be accepted. Cripe v. City of San Jose, 261 F.3d 877,

895 (9th Cir. 2001). Because Indergard’s inability to lift these weights

resulted in her termination, the weight-requirement discrepancy for the

two positions is a genuine issue of material fact, which precludes summary

judgment. Fed. R. Civ. P. 56 (c); Cripe, 261 F.3d at 894-95. On remand,

the district court can make this factual determination in deciding whether

Indergard’s medical examination was “job related and consistent with

business necessity.” 42 U.S.C. § 12112(d)(4)(A). GP has the burden of

proving that the PCE weight lifting it required for the two positions satisfies the business necessity defense, which “is quite high, and is not to be

confused with mere expediency.” Cripe, 261 F.3d at 890 (citation, internal

quotation marks, and alteration omitted); see EEOC v. Prevo’s Family

Market, Inc., 135 F.3d 1089, 1091-92 & n.3 (6th Cir. 1998) (holding that

family-owned grocery store did not violate § 12112(d)(4)(A) in terminating produce clerk for failing to have a medical examination to determine

if he was HIV-positive, when the job involved use of “paring knives, chef

knives, cleavers and pineapple corers, all of which are shared by the

clerks,” and the parties “agree[d] that produce clerks often cut themselves

in the course of their regular duties”). The dissent’s upholding summary

judgment for GP in this case defeats the statutory purpose of

§ 12112(d)(4)(A) by creating a pretext by which employers could misuse

medical examinations to discriminate against disabled employees returning to work from medical leave. 

13902 INDERGARD v. GEORGIA-PACIFIC CORP.
Americans with Disabilities Act (“ADA”), is that the former

is designed to reveal disability, while the latter is designed to

determine whether an employee can perform her job. I cannot

conclude that the evaluation Kris Indergard underwent on her

return to work at Georgia-Pacific was a medical examination

under 42 U.S.C. § 12112(d)(4)(A), for it was not designed to

reveal disability. Furthermore, even assuming that there were

any “medical” aspects of the physical capacity evaluation

(“PCE”), they were merely incidental to the physical agility

aspects and did not in any way cause the harms that Indergard

alleges. Therefore, I must respectfully dissent.

I

Indergard characterizes the PCE as “two days of testing,

poking, palpating, and examining.” However, over the course

of those two days, no blood was drawn, no urine samples collected, no labwork performed, and no x-rays or scans taken.

No doctor or nurse ever examined, diagnosed, or treated her.

Instead, she went to an occupational therapy facility and performed various physical tasks designed to determine whether

she could safely perform the duties of her old job. Such testing was unquestionably advisable given her own physician’s

permanent restrictions on climbing, kneeling, squatting,

crawling, and lifting over thirty pounds. A common-sense

reading of the term “medical examination” would not include

this PCE.

Unfortunately, common sense plays no role in our ADA

jurisprudence. Instead, the EEOC has muddied the jurisprudential waters by issuing “guidances” that appear to read the

word “medical” right out of the statute. For example, the

interpretive appendix to 29 C.F.R. § 1630.14(a) first states

that “[p]hysical agility tests are not medical examinations” but

then adds that “[i]f such tests screen out or tend to screen out

individuals with disabilities, the employer would have to

demonstrate that the test is job-related and consistent with

business necessity . . . .” Apparently, having a tendency to

INDERGARD v. GEORGIA-PACIFIC CORP. 13903
screen out disabled individuals automatically converts a physical agility test into a medical examination subject to the

ADA. Given that physical agility tests by their very nature

tend to screen out people with certain disabilities, I see no

way for employers to conduct such tests without inviting

ADA lawsuits from those who fail them. 

In addition, an EEOC enforcement guidance defines a medical examination as “a procedure or test that seeks information

about an individual’s physical or mental impairments or

health.” EEOC Enforcement Guidance on Disability-Related

Inquiries and Medical Evaluations, available at

http://eeoc.gov/policy/docs/guidance-inquiries.html [hereinafter Enforcement Guidance]. Under this broad definition, any

return-to-work test would necessarily qualify as a medical

examination because it seeks to determine whether the

employee is fit enough to resume her duties. Employers seeking to avoid ADA lawsuits would have to allow injured workers to return to the job without being able to verify their

fitness for duty, creating the potential for re-injury.

The Enforcement Guidance also declares physical agility

tests not to be medical examinations “as long as these tests do

not include examinations that could be considered medical

(e.g., measuring heart rate or blood pressure).” Hence, a single pulse measurement taken over the course of a two-day

physical agility test would be sufficient to convert such test

into a medical examination. If an employee taking a physical

agility test shows obvious distress, the examiner would not be

able to take her pulse or blood pressure as a precautionary

measure without implicating the ADA. Employers seeking to

ensure returning workers’ safety must therefore navigate the

precarious straits between the Scylla of ADA liability and the

Charybdis of a negligence lawsuit. Fearing either form of liability, employers may very well decline to conduct any form

of testing, thereby increasing the risk of returning worker

injury.

13904 INDERGARD v. GEORGIA-PACIFIC CORP.
The majority uncritically accepts these agency pronouncements as gospel, even though we owe them no deference

when they subvert the plain text of the statute. See Gen.

Dynamics Land Sys., Inc. v. Cline, 540 U.S. 581, 600 (2004).

I decline to read the statute in such a way as to render a term

entirely meaningless. 

II

Turning to the PCE at issue in this case, I am not persuaded

that it can be considered a medical examination merely by virtue of the “single factors” that the majority lists: range-ofmotion and muscle strength tests, pulse measurement after a

treadmill test, and observations about Indergard’s breathing

after the treadmill test. It is important to remember that the

PCE was a two-day examination comprising numerous tests.

While one or two of these measurements may arguably have

been medical in nature, these were at most de minimis components that were incidental to the physical tasks that formed

the bulk of the PCE.

Furthermore, application of the seven-factor test also does

not convince me that the PCE as a whole was a medical

examination. In particular, I disagree with the majority’s conclusions regarding factors three, five, and seven. Factor three

asks “whether the test is designed to reveal an impairment in

physical or mental health.” Enforcement Guidance. According

to the majority, “although the PCE was ostensibly intended to

determine whether Indergard could return to work, the broad

reach of the test was capable of revealing impairments of her

physical and mental health.” Maj. op. at 13896. Here the

majority appears to confuse intent with effect. Because the

majority believes that the PCE could reveal an impairment, it

assumes that Georgia-Pacific intended for it to do so. I do not

read factor three so broadly. With respect to factors five and

seven, any measurement of physiological response and use of

medical equipment were de minimis in the overall context of

INDERGARD v. GEORGIA-PACIFIC CORP. 13905
the two-day PCE. On balance, the PCE looks overwhelmingly

more like a physical agility test than a medical examination.

III

In my view, the PCE cannot be considered a single examination but rather a battery of individual tests. By its viewing

of the PCE, the majority allows Indergard to proceed with her

suit even though she has shown no injury resulting from the

allegedly medical tests. However, it was unquestionably the

lifting task that scuttled Indergard’s return to work, not her

pulse rate after the treadmill test or her knee flexion. Because

she has suffered no injury from the parts of the test that allegedly were medical examinations, she cannot maintain a claim

for a violation of § 12112(d).

Our sister circuits have agreed that a plaintiff seeking relief

under 42 U.S.C. § 12112(d) must be able to show “something

more than a mere violation of that provision. There must be

some cognizable injury in fact of which the violation is a legal

and proximate cause for damages to arise from a single violation.” Armstrong v. Turner Indus., Inc., 141 F.3d 554, 562

(5th Cir. 1998); see also Tice v. Centre Area Transp. Auth.,

247 F.3d 506, 519 (3d Cir. 2001); Cossette v. Minnesota

Power & Light, 188 F.3d 964, 970 (8th Cir. 1999); Griffin v.

Steeltek, Inc., 160 F.3d 591, 594-95 (10th Cir. 1998). In other

words, “a technical violation” is not enough. Tice, 247 F.3d

at 520. Here, even assuming that Georgia-Pacific technically

violated § 12112(d)(4)(A) by measuring Indergard’s pulse

and range of motion, she has made no showing that such measurements have proximately caused her to lose her job. Therefore, any such measurements “presents no ‘injury’ capable of

remedy, and thus affords no basis for suit.” Id. at 519.

Armstrong is instructive because it presents a scenario analogous to this case, albeit in the context of preemployment

medical inquiries.1 Armstrong had applied for a position as a

1Preemployment medical inquiries and examinations fall under 42

U.S.C. § 12112(d)(2) of the ADA. Although the majority attempts to dis13906 INDERGARD v. GEORGIA-PACIFIC CORP.
pipefitter and was asked questions in his application about

prior injuries, his medical history, and worker’s compensation

claims. The questionnaire also asked whether he had “any

injury or condition not mentioned on this form,” and Armstrong answered “no.” A background check later revealed that

Armstrong had previously reported “possible asbestos exposure,” and he was “rejected due to the provision of incorrect

and/or incomplete information.” 141 F.3d at 556-57. Because

the failure to hire had not resulted directly from the prohibited

medical inquiries, the court held that Armstrong lacked standing to sue for damages and injunctive relief under

§ 12112(d)(2)(A). Id. at 562-63. The court noted that the

ADA was not intended to protect employees from adverse

employment actions “incident to a prohibited section

12112(d)(2)(A) inquiry.” Id. at 560 n.15.

Similarly, Indergard’s termination was merely incident to

an alleged technical violation of § 12112(d)(4)(A). Had

Georgia-Pacific administered only the treadmill exercise and

range-of-motion tests, she would not have a cause of action

under the ADA even assuming that they are medical examinations because she suffered no adverse employment action

from these tests. Conversely, had Georgia-Pacific administered the lifting task alone, she also would not have a cause

of action because the lifting task is not a medical examination.

Only by yoking these tests together and attributing an injury

from a permissible physical agility task to an allegedly

improper medical examination can Indergard manufacture an

ADA violation.

tinguish Armstrong on this basis, see Maj. op. at 13901 n.3, the same analysis applies to all of the medical inquiry and examination provisions under

42 U.S.C. § 12112(d). See Tice, 247 F.3d at 519 (“Other courts of appeal

have addressed the question whether a plaintiff has a cause of action for

a violation of § 12112(d) without demonstrating the existence of an injuryin-fact . . . . All have concluded that a violation of § 12112(d), without a

showing, presents no ‘injury’ capable of remedy, and thus affords no basis

for suit.”). 

INDERGARD v. GEORGIA-PACIFIC CORP. 13907
IV

Because the majority renders the term “medical” meaningless and allows a plaintiff to continue her $250,000 suit on the

basis of a pulse measurement that caused her no harm, I

respectfully dissent.

13908 INDERGARD v. GEORGIA-PACIFIC CORP.