Equal Employment Opportunity Commission v. Grane Healthcare Co. (2 F. Supp. 3d 667, 2014)

MEMORANDUM OPINION

KIM R. GIBSON, District Judge.

I. INTRODUCTION

This matter comes before the Court on cross-motions for summary judgment filed by the parties pursuant to Fed. R. Civ. Pro. 56. (ECF Nos. 92, 95). The Plaintiff seeks partial summary judgment on threshold issues relating to liability. (ECF No. 95). The' Defendants move for summary judgment with respect to all claims brought against them. (ECF No. 92). For the reasons that follow, the Plaintiff’s motion for partial summary judgment (ECF No. 95) will be granted in part and denied in part, and the Defendants’ motion for summary judgment (ECF No. 92) will be denied.

II. BACKGROUND

Grane Healthcare Company (“Grane”) is an organization maintaining management contracts with several different entities. (ECF No. 115 at 1-2 ¶1.) Ross Nese (“Nese”) serves as Grane’s President. (Id. at 2 ¶ 6). Len Oddo (“Oddo”) is Grane’s Chief Operating Officer. (Id. at 2 ¶ 2). In that capacity, Oddo implements Grane’s management contracts. (Id. at 2 ¶ 4). He also serves as the Vice President of the Ebensburg Care Center, LLC (“ECC”). (Id. at 2 ¶ 3). Oddo reports to Richard Graciano (“Graciano”), who serves as Grane’s Chief Executive Officer (“CEO”). (Id. at 2 ¶ 5).

During the fall of 2009, Grane purchased the LaurelCrest Nursing and Rehabilitation Center (“LCNRC”) from Cambria County. (ECF No. 115 at 2 ¶7). In connection with the purchase, the ECC was designated to become the owner and operator of a new facility known as the Cambria Care Center (“CCC”). (Id. at 2-3 ¶ 8). This arrangement was scheduled to become effective on January 1, 2010. (Id.).

Grane has a management consulting agreement with the CCC. (ECF No. 115 at 3 ¶ 9). According to the agreement, Grane was responsible for recruiting and hiring more than 300 employees to staff the CCC and care for its 200 residents. (Id. at 5 ¶¶ 16-17). To fulfill that obligation, Grane invited the LCNRC’s employees to apply for positions with the CCC. (Id. at 5 ¶ 18). The application process began in October 2009, when the LCNRC’s employees were informed of the impending sale. (Id. at 6-7 ¶¶ 20, 23). Beth Lengle (“Lengle”), Grane’s Vice President of Nursing Services, was in charge of processing the applications. (Id. at 5-6 ¶ 19). Individuals interested in applying for positions with the CCC were instructed to report to a conference room located within the LCNRC in order to complete the required paperwork. (Id. at 8 ¶28). Pennsylvania’s Older Adults Protective Services Act [35 Pa. Stat. § 10225.101 et seq.\ requires covered healthcare facilities to consider the “criminal history record[s]” of all prospective employees in connection with the application process. 35 Pa. Stat. § 10225.502(a)(1). In accordance with that mandate, Lengle reviewed the “criminal history record” of each individual seeking employment with the CCC. (ECF No. 115 at 18 ¶¶ 56-57).

Grane typically requires every applicant to undergo a test for illegal drugs. (ECF No. 115 at 10 ¶ 33). Registered nurse Deborah Hoover (“Hoover”), a nurse consultant for Grane, was responsible for administering the tests conducted on the LCNRC employees seeking employment with the CCC. (Id. at 10 ¶34). Urine samples submitted by the applicants were screened for illicit substances. (Id. at 11 ¶¶ 37-39). Forms provided to the applicants requested information about their medications. (Id. at 115 ¶ 35). When an applicant’s drug test yielded a positive result, Lengle cross-checked the test result with the list of the applicant’s medications to determine whether the positive finding was attributable to a prescribed medication. (Id. at 12 ¶ 41). An applicant was deemed to have passed the drug test if his or her disclosed medications corresponded with the positive test result. (Id. at 12 ¶ 42). Grane maintained a policy of refusing to hire any applicant who was using a controlled substance without a prescription. (Id. at 11 ¶¶ 40).

Corporate Care Services (“CCS”) was contracted to conduct pre-employment physical examinations of the CCC’s incoming employees. (ECF No. 115 at 8-9 ¶ 29). LCNRC employees interested in being considered for positions with the CCC were instructed to complete pre-placement evaluation forms provided by CCS. (Id. at 9 ¶30). Each form solicited information about an applicant’s medical history. (Id. at 9 ¶ 31). A separate portion of the form was designed to record the results of a physical examination. (Id. at 9 ¶ 31). Every applicant was required to undergo a medical examination, regardless of whether he or she was seeking to become a member of the CCC’s medical staff. (Id. at 19 ¶ 60). Charlene McFeeley (“McFee-ley”), a nurse practitioner employed by CCS, performed physical examinations of the LCNRC employees who were seeking employment with the CCC. (Id. at 20 ¶¶ 63-64). After examining each prospective employee, McFeeley provided a written indication as to whether the individual was able to perform the “essential functions” of his or her desired position. (Id. at 20-21 ¶ 65). Healthcare facilities such as the CCC are required to screen employees and contractors “with direct consumer contact” for tuberculosis. 35 Pa. Stat. § 448.806(D.1)(5). Tuberculosis screenings were performed as a part of the CCC’s application process. (ECF No. 115 at 18 ¶ 55).

More than 300 LCNRC employees applied for positions with the CCC. (ECF No. 115 at 21 ¶ 68). The applicants were examined by McFeeley during the fall of 2009. (ECF No. 98-3 at 5). Grane ultimately hired roughly 225 of the applicants to work for the CCC. (ECF No. 115 at 21 ¶ 68). Although most of the successful applicants were offered positions in person, there were situations in which individuals were offered positions by telephone. (Id. at 21 ¶ 69).

The CCC began its operations on January 1, 2010. (ECF No. 115 at 5 ¶ 16). Shortly thereafter, several unsuccessful applicants for employment filed charges of discrimination with the Equal Employment Opportunity Commission (“EEOC”), alleging that Grane and the ECC had violated the Americans with Disabilities Act of 1990 (“ADA”) [42 U.S.C. § 12101 et seq.] by conducting pre-offer medical examinations of prospective employees and declining to hire some of them because of actual or perceived disabilities. (ECF No. 116-24). The EEOC commenced this action against Grane and the ECC on September 30, 2010, seeking injunctive and monetary relief to remedy the alleged violations of the ADA. (ECF No. 1). Grane and the ECC answered the EEOC’s complaint two months later. (ECF No. 8). On September 14, 2012, the EEOC filed a motion for partial judgment on the pleadings. (ECF No. 60). Grane and the ECC responded to the motion by seeking permission to amend their answer. (ECF No. 64). The motion for partial judgment on the pleadings was denied without prejudice in a memorandum opinion and order dated March 15, 2013, 2013 WL 1102880. (ECF No. 86). Grane and the ECC filed their amended answer three days later. (ECF No. 87). The parties filed cross-motions for summary judgment on July 8, 2013. (ECF Nos. 92, 95). Those motions are the subject of this memorandum opinion.

III. STANDARD OF REVIEW

Summary judgment may only be granted where the moving party shows that there is no genuine dispute as to any material fact, and that a judgment as a matter of law is warranted. Fed. R. Civ. P. 56(a). Pursuant to Federal Rule of Civil Procedure 56, the Court must enter summary judgment against a party who fails to make a showing sufficient to establish an element essential to his or her case, and on which he or she will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In evaluating the evidence, the Court must interpret the facts in the light most favorable to the nonmoving party, drawing all reasonable inferences in his or her favor. Watson v. Abington Township, 478 F.3d 144, 147 (3d Cir.2007). The burden is initially on the moving party to demonstrate that the evidence contained in the record does not create a genuine issue of material fact. Conoshenti v. Public Service Electric & Gas Co., 364 F.3d 135, 140 (3d Cir.2004). A dispute is “genuine” if the evidence is such that a reasonable trier of fact could render a finding in favor of the nonmoving party. McGreevy v. Stroup, 413 F.3d 359, 363 (3d Cir.2005). Where the nonmoving party will bear the burden of proof at trial, the moving party may meet its burden by showing that the admissible evidence contained in the record would be insufficient to carry the non-moving party’s burden of proof. Celotex Corp., 477 U.S. at 322, 106 S.Ct. 2548. Once the moving party satisfies its burden, the burden shifts to the nonmoving party, who must go beyond his or her pleadings and designate facts by the use of affidavits, depositions, admissions, or answers to interrogatories showing that there is a genuine issue of material fact for trial. Id. at 324, 106 S.Ct. 2548. The nonmoving party cannot defeat a well-supported motion for summary judgment by merely reasserting unsupported factual allegations contained in his or her pleadings. Williams v. Borough of West Chester, 891 F.2d 458, 460 (3d Cir.1989).

IV. JURISDICTION AND VENUE

The Court has jurisdiction to entertain the EEOC’s claims pursuant to 28 U.S.C. § 1331, 42 U.S.C. § 2000e-5(f)(3), and 42 U.S.C. § 12117(a). Venue is proper under 28 U.S.C. § 1391(b).

V. DISCUSSION

Title I of the ADA contains provisions governing the conduct of covered employers in relation to their current and prospective employees. 42 U.S.C. §§ 12111-12117. Title I’s anti-discrimination provision, codified at 42 U.S.C. § 12112(a), provides that “[n]o covered entity shall discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.” The term “qualified individual” is defined as “an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” 42 U.S.C. § 12111(8). The “discrimination” prohibited by § 12112(a) is defined broadly enough to include a covered entity’s failure or refusal to “mak[e] reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity,” or its “den[ial of] employment opportunities to a job applicant or employee who is an otherwise qualified individual with a disability, if such denial is based on the need of such covered entity to make reasonable accommodation[s] to the physical or mental impairments of the employee or applicant....” 42 U.S.C. § 12112(b)(5)(A)-(B). In this context, “reasonable accommodations” may include “job restructuring,” a “part-time or modified” work schedule, a “reassignment to a vacant position,” or the “acquisition or modification of equipment or devices.” 42 U.S.C. § 12111(9)(B).

Since § 12112(a) prohibits only discrimination “on the basis of disability,” an individual must be “disabled” to enjoy statutory protection thereunder. Macfar- lan v. Ivy Hill SNF, LLC, 675 F.3d 266, 274 (3d Cir.2012). “[A] physical or mental impairment that substantially limits one or more [of an individual’s] major life activities” qualifies as a “disability” under the ADA. 42 U.S.C. § 12102(1)(A). It is axiomatic that an employer cannot discriminate against an applicant for employment “on the basis of disability” without knowing that he or she is “disabled.” Geraci v. Moody-Tottrup, Int’l, Inc., 82 F.3d 578, 581 (3d Cir.1996). To provide prospective employees with prophylactic protection against the forms of “discrimination” proscribed by Title I, Congress has taken steps to limit the information available to covered employers at critical stages of the hiring process. The provisions of the ADA pertaining to medical examinations and inquiries are codified at 42 U.S.C. § 12112(d), which provides:

(d) Medical examinations and inquiries.

(1) In general. The prohibition against discrimination as referred to in subsection (a) shall include medical examinations and inquiries.

(2) Preemployment.

(A) Prohibited examination or inquiry. Except as provided in paragraph (3), a covered entity shall not conduct a medical examination or make inquiries of a job applicant as to whether such applicant is an individual with a disability or as to the nature or severity of such disability.

(B) Acceptable inquiry. A covered entity may make preemployment inquiries into the ability of an applicant to perform job-related functions.

(3) Employment entrance examination. A covered entity may require a medical examination after an offer of employment has been made to a job applicant and prior to the commencement of the employment duties of such applicant, and may condition an offer of employment on the results of such examination, if—

(A) all entering employees are subjected to such an examination regardless of disability;

(B) information obtained regarding the medical condition or history of the applicant is collected and maintained on separate forms and in separate medical files and is treated as a confidential medical record, except that—

i. supervisors and managers may be informed regarding necessary restrictions on the work or duties of the employee and necessary accommodations;

ii. first aid and safety personnel may be informed, when appropriate, if the disability might require emergency treatment; and

iii. government officials investigating compliance with this Act shall be provided relevant information on request; and

(C) the results of such examination are used only in accordance with this title.

(4) Examination and inquiry.

(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.

(B) Acceptable examinations and inquiries. A covered entity may conduct voluntary medical examinations, including voluntary medical histories, which are part of an employee health program available to employees at that work site. A covered entity may make inquiries into the ability of an employee to perform job-related functions.

(C) Requirement. Information obtained under subparagraph (B) regarding the medical condition or history of any employee are subject to the requirements of subpara-graphs (B) and (C) of paragraph (3).

42 U.S.C. § 12112(d). This statutory framework is designed to shield information about an applicant’s medical condition from his or her prospective employer until after an offer of employment is made.

Before an offer of employment is extended, an employer may not ask a job applicant to undergo a medical examination or inquire as to whether he or she “is an individual with a disability.” 42 U.S.C. § 12112(d)(2)(A). This prohibition precludes the utilization of investigative techniques that could identify applicants with disabilities and exclude them from further consideration. Griffin v. Steeltek, Inc., 160 F.3d 591, 594 (10th Cir.1998). Once an offer of employment has been extended, a prospective employee may be asked to undergo a medical examination. 42 U.S.C. § 12112(d)(3). An “entrance examination” is permissible under the ADA if “all entering employees are subjected to such an examination regardless of disability,” the applicable confidentiality requirements are adhered to, and the results of the examination are “used only in accordance with” Title I. 42 U.S.C. § 12112(d)(3)(A)-(C). After an employee’s duties have commenced, the employer may not ask him or her to undergo another medical examination or inquire as to whether he or she is disabled “unless such examination or inquiry is shown to be job-related and consistent with business necessity.” 42 U.S.C. § 12112(d)(4)(A). An employer remains free to inquire as to the ability of an applicant or employee “to perform job-related functions” at all times. 42 U.S.C. § 12112(d)(2)(B), (4)(B).

Given that § 12112(d)(3)(C) permits the results of an “entrance examination” to be “used only in accordance with” Title I’s anti-discrimination provision, an employer may not rely on the results of a lawful medical examination or inquiry to deny employment to an individual unless the examination or inquiry reveals that an impairment suffered by the individual would preclude him or her from performing the “essential functions” of the job in question. Holiday v. City of Chattanooga, 206 F.3d 637, 640-48 (6th Cir.2000). A plaintiff asserting a claim under § 12112(d)(3)(C) must ordinarily show that he or she is “disabled,” since § 12112(a) only prohibits “discrimination] against a qualified individual on the basis of disability.” O’Neal v. City of New Albany, 293 F.3d 998, 1009-10 (7th Cir.2002). Unlike § 12112(a), which aims to protect a discrete class of “disabled” persons from discrimination, § 12112(d) contains no language limiting the category of applicants and employees entitled to statutory protection. Cossette v. Minnesota Power & Light, 188 F.3d 964, 969 (8th Cir.1999). Consequently, an individual who is subjected to an unlawful medical examination or inquiry can successfully assert a claim under § 12112(d) without establishing the existence of a statutory “disability.” Pennsylvania State Troopers Association v. Miller, 621 F.Supp.2d 246, 252 (M.D.Pa.2008). In this vein, an applicant who is rejected by an employer based on information gleaned from an illegal pre-offer medical examination or inquiry may seek redress under § 12112(d)(2)(A) even if that information does not reveal a “disabling” medical condition. Griffin, 160 F.3d at 593-94.

It is undisputed that the LCNRC employees seeking positions with the CCC were subjected to pre-offer medical examinations and inquiries prohibited under the ADA. (ECF No. 131 ¶¶ 1-2). The EEOC asserts § 12112(d) claims against the Defendants based on those examinations and inquiries. (ECF No. 1 ¶ 12(c)-(d)). According to the EEOC, discovery has revealed that 26 unsuccessful applicants were “disabled” within the meaning of the ADA during the relevant period of time. (ECF No. 114 at 20-22). The Defendants concede that those individuals were statutorily “disabled” for purposes of the pending motions for summary judgment. (ECF No. 130 at 1). In addition to the § 12112(d) claims premised on the unlawful medical examinations and inquiries, the EEOC brings § 12112(a) claims on behalf of the 26 “disabled” applicants who were not offered positions with the CCC. (ECF No. 1 at ¶ 12(g)).

The motion for partial summary judgment filed by the EEOC relates only to the claims arising under § 12112(d). (ECF No. 95). Since it is undisputed that illegal pre-offer medical examinations and inquiries were conducted in connection with the CCC’s hiring process, the EEOC seeks an order enjoining the Defendants from violating § 12112(d) in the future. (ECF No. 95-1 at 9). The EEOC also requests that “further proceedings” be held “to determine individualized remedies for the aforementioned violations of the ADA.” (Id.). The Defendants broadly move for summary judgment with respect to all claims asserted against them in this case. (ECF No. 92).

A. The EEOC’s Standing to Assert ADA Claims on Behalf of the Aggrieved Applicants

A federal court operating under the strictures of Article III of the Constitution “generally may not rule on the merits of a case without first determining that it has jurisdiction over the category of claim in suit.” Sinochem International Co., Ltd. v. Malaysia Int’l Shipping Corp., 549 U.S. 422, 430-31, 127 S.Ct. 1184, 167 L.Ed.2d 15 (2007). Like all other Article III tribunals established by Congress, this Court exercises “[t]he judicial Power of the United States.” U.S. Const., Art. Ill, § 1. This “judicial Power” is validly exercised only where a live “case” or “controversy” exists between the parties. Hollingsworth v. Perry, - U.S. -, 133 S.Ct. 2652, 2659, 186 L.Ed.2d 768 (2013). The power vested in a federal court “exists only to redress or otherwise to protect against injury to the complaining party, even though the court’s judgment may benefit others collaterally.” Warth v. Seldin, 422 U.S. 490, 499, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). An action does not constitute a justiciable “case” or “controversy” for constitutional purposes unless the person bringing the action has the proper legal “standing” to do so. Flast v. Cohen, 392 U.S. 83, 95, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968). To satisfy the Constitution’s “requirement of standing,” “[a] plaintiff must allege personal injury fairly traceable to the defendant’s allegedly unlawful conduct and likely to be redressed by the requested relief.” Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984). “This triad of injury in fact, causation, and redressability comprises the core of Article Ill’s case-or-controversy requirement, and the party invoking federal jurisdiction bears the burden of establishing its existence.” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 103-04, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998).

The Defendants move for summary judgment on the ground that the EEOC lacks standing. (ECF No. 93 at 9-15). This attack on the EEOC’s standing is predicated on a belief that none of the applicants were “injured” by the unlawful medical examinations and inquiries challenged in this case. (ECF No. Ill at 2-5). In Tice v. Centre Area Transportation Authority, 247 F.3d 506, 519-20 (3d Cir.2001), the Third Circuit held that a plaintiff proceeding with a claim under § 12112(d) must “demonstrat[e] the existence of an injury-in-fact” in order to obtain relief. Relying on Tice, the Defendants maintain that the EEOC lacks standing to assert § 12112(d) claims in this case because no “injuries” resulted from the improper medical examinations and inquiries. (ECF No. 93 at 11).

By relying on Tice to challenge the EEOC’s standing in this case, the Defendants conflate the “injury” necessary to satisfy the jurisdictional prerequisites of Article III with the “injury” needed to justify an award of damages under the ADA. “An injury need not be economic or tangible in order to confer standing.” Le-Blanc-Sternberg v. Fletcher, 67 F.3d 412, 425 (2d Cir.1995). The “injury” required under Article III generally consists of “an invasion of a legally protected interest.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). The invasion of legal rights conferred upon an individual by statute can provide him or her with standing to seek redress in federal court. Havens Realty Corp. v. Coleman, 455 U.S. 363, 373-74, 102 S.Ct. 1114, 71 L.Ed.2d 214 (1982). In certain instances, federal courts can “vindicate[] deprivations of certain ‘absolute’ rights that are not shown to have caused actual injury through the award of a nominal sum of money.” Carey v. Piphus, 435 U.S. 247, 266, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978). A violation of § 12112(d) occurs as soon as an employer conducts an unlawful medical examination or initiates a prohibited medical inquiry. Katz v. Adecco USA Inc., 845 F.Supp.2d 539, 545 n. 7 (S.D.N.Y.2012). Article Ill’s injury-in-fact requirement can be satisfied by “an identifiable trifle of injury.” NCAA v. Governor of New Jersey, 730 F.3d 208, 219 (3d Cir.2013). The “injuries” complained of here are clearly sufficient to satisfy the Constitution’s jurisdictional prerequisite.

The standing inquiry required under Article III “is augmented by consideration of prudential limitations” on the exercise of a federal court’s jurisdiction. City of Pittsburgh v. West Penn Power Co., 147 F.3d 256, 264 (3d Cir.1998). The “judicially-imposed limits on the exercise of federal jurisdiction” include “the general prohibition on a litigant’s raising another person’s legal rights, the rule barring adjudication of generalized grievances more appropriately addressed in the representative branches, and the requirement that a plaintiffs complaint fall within the zone of interests protected by the law invoked.” Allen, 468 U.S. at 751, 104 S.Ct. 3315. Unlike the jurisdictional limitations inherent in Article III, which exist as a matter of constitutional mandate, the prudential limitations on the exercise of federal adjudicatory jurisdiction “can be modified or abrogated by Congress.” Bennett v. Spear, 520 U.S. 154, 162, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997). Congress has specifically vested the EEOC with the authority to remedy violations of Title I. See 42 U.S.C. § 12117(a). Unlike a private party, the United States sustains injuries to its sovereignty from the mere violation of its laws. Vermont Agency of Nat. Res. v. United States, 529 U.S. 765, 771, 120 S.Ct. 1858, 146 L.Ed.2d 836 (2000). It is undisputed that the Defendants violated the ADA more than 300 times. (ECF No. 131 ¶¶ 1-3). Under these circumstances, it is obvious that the EEOC has standing to bring this action to vindicate the statutory rights of the aggrieved individuals.

B. The Defendants’ Coverage under Title I

Title I’s prohibitions apply to “covered entities].” 42 U.S.C. § 12111(2). An “employer” is a “covered entity” within the meaning of the ADA. 42 U.S.C. § 12111(2). The term “employer” is defined as “a person engaged in an industry affecting commerce who has 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year, and any agent of such person....” 42 U.S.C. § 12111(5)(A). The EEOC alleges that Grane is liable for violating the ADA because it acted as the CCC’s agent in relation to the hiring process at issue. (ECF No. 1 ¶ 7). It is further alleged that the CCC independently qualifies as an “employer” for purposes of Title I. (Id. ¶ 8). The Defendants maintain that, during the relevant period, they were not “employers” subject to the ADA’s prohibitions. (ECF No. Ill at 5-8).

Oddo testified that Grane had acted as the CCC’s “managing agent” during the period falling between the acquisition and the opening of the facility. (ECF No. 133-3 at 4). The parties agree that Grane, in its capacity as an “agent,” was “responsible for recruiting and selecting” the CCC’s “initial complement of employees.” (ECF No. 131 at ¶¶ 5-6). It is undisputed that Grane independently employed enough people to qualify for coverage under Title I. (ECF No. 131 ¶ 4). The EEOC argues that Grane is amenable to suit under the ADA because of its status as the CCC’s agent. (ECF No. 96 at 7-8). The Defendants contend that since the CCC did not open until January 1, 2010, it was not an “employer” during the course of the preceding hiring process. (ECF No. Ill at 5-8). They further assert that Grane cannot be held liable under the present circumstances, since it was neither an agent of an “employer” nor a “joint employer” during the relevant period of time. Id.

The EEOC reads Title I’s definition of the term “employer” to render an “agent” liable for its own discriminatory conduct. (ECF No. 96 at 7-8). The statute could be understood to operate in this manner. Nevertheless, the ADA’s use of the word “agent” has more frequently been invoked to determine the extent of a covered employer’s liability for the misconduct of its employees. Roman-Oliveras v. Puerto Rico Electric Power Auth., 655 F.3d 43, 50-52 (1st Cir.2011). Title VII of the CM Rights Act of 1964 (“Title VII”) [42 U.S.C. § 2000e et seq.] defines the term “employer” in the same way as Title I of the ADA. 42 U.S.C. §§ 2000e(b), 12111(5)(A). In a series of decisions interpreting Title VII's statutory definition, the Supreme Court has consistently construed the word “agent” to mean that a traditional employer’s liability for the actions of its employees (i.e., its “agents”) must be determined in accordance with agency law principles. Pennsylvania State Police v. Suders, 542 U.S. 129, 144, 124 S.Ct. 2342, 159 L.Ed.2d 204 (2004); Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 754-64, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998); Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 72, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986). This reading of the statutory language suggests that Congress intended to hold traditional employers liable for the actions of their agents in certain circumstances. Huston v. Procter & Gamble Paper Products Corp., 568 F.3d 100, 106 (3d Cir.2009); Knabe v. Boury Corp., 114 F.3d 407, 411 (3d Cir.1997); Craig v. Y & Y Snacks, Inc., 721 F.2d 77, 80-81 (3d Cir.1983). It does not inevitably compel the conclusion that the ADA and Title VII impose direct liability upon the agents themselves. Mason v. Stallings, 82 F.3d 1007, 1009 (11th Cir.1996) (remarking that “the ‘agent’ language was included to ensure respondeat superior liability of the employer for the acts of its agents”). If read literally, the statutory definitions would appear to impose liability upon all agents of covered employers, including individual employees. Tomka v. Seiler Corp., 66 F.3d 1295, 1313-14 (2d Cir.1995). Nonetheless, the Third Circuit has held that individual “agents” cannot be sued under Title VII. Kachmar v. SunGard Data Systems, Inc., 109 F.3d 173, 184 (3d Cir.1997); Dici v. Commonwealth of Pennsylvania, 91 F.3d 542, 552 (3d Cir.1996). The Civil Rights Act of 1991 measures the maximum amount of compensatory and punitive damages available to an aggrieved employee by reference to the number of employees working for his or her employer. 42 U.S.C. § 1981a(b)(3). The Court of Appeals has relied on this “sliding scale of damages” as a basis for inferring that “Congress did not contemplate that such damages would be assessed against individuals who are not themselves the employing entity.” Sheridan v. E.I. DuPont de Nemours & Co., 100 F.3d 1061, 1077 (3d Cir.1996). In light of these principles, a reasonable argument could be made that Title I’s statutory definition does not impose liability upon covered agents. Tomka, 66 F.3d at 1313 (observing that Title VII’s definition could be read to mean that “discriminatory personnel actions taken by an employer’s agent only create liability for the employer-entity”).

Notwithstanding the interpretive theory that Congress used the word “agent” solely to define a traditional employer’s liability for discriminatory actions taken by its employees, some federal courts have concluded that an agent otherwise falling within the definition of the term “employer” can be sued for discriminatory conduct directed at an individual technically “employed” by another entity. Nealey v. University Health Servs., Inc., 114 F.Supp.2d 1358, 1368-70 (S.D.Ga.2000). The Third Circuit has indicated that an agent can be properly named as a defendant in an action arising under Title I. Koslow v. Commonwealth of Pennsylvania, 302 F.3d 161, 177 (3d Cir.2002). In DeVito v. Chicago Park District, 83 F.3d 878, 882 (7th Cir.1996), the Seventh Circuit concluded that an agent satisfying the employee-numerosity requirement could be sued under the ADA for discriminatory conduct perpetrated against a plaintiff employed by a distinct entity. The reasoning employed in DeVito appears to remain viable in the Seventh Circuit. Alam v. Miller Brewing Co., 709 F.3d 662, 668 (7th Cir.2013) (citing cases “for the proposition that Title VII plaintiffs may maintain a suit directly against an entity acting as the agent of an employer”). The rule prohibiting the imposition of liability upon individual agents reflects the desire of Congress to “str[ike] a balance between the goal of stamping out all discrimination and the goal of protecting small entities from the hardship of litigating discrimination claims.” EEOC v. AIC Security Investigations, Ltd., 55 F.3d 1276, 1281 (7th Cir.1995). Those objectives are not in conflict when the “agent” engaging in discriminatory conduct falls within the applicable statutory definition. Nealey, 114 F.Supp.2d at 1368-69. Accordingly, the Court is convinced that an “agent” independently satisfying the ADA’s coverage criteria is amenable to suit by an individual formally “employed” by a different entity. Myers v. Garfield & Johnson Enters., Inc., 679 F.Supp.2d 598, 611-12 (E.D.Pa.2010).

Grane satisfies the ADA’s employee-nu-merosity requirement. (ECF No. 131 ¶ 4). It is undisputed that Grane, in its capacity as an “agent,” directly controlled the applicants’ access to “employment opportunities” with the CCC. Alam, 709 F.3d at 669. The only remaining question is whether the EEOC must independently establish the CCC’s status as an “employer” in order to hold Grane liable as an “agent.”

The EEOC concedes that every alleged act of discrimination in this case occurred before January 1, 2010. (ECF No. 96 at 9 n. 2). The CCC was not operational before that date. (ECF No. 133-3 at 4). The CCC’s status as an “employer” during the hiring period turns on whether it had 15 or more employees for each working day in each of 20 or more calendar weeks in 2008 or 2009. 42 U.S.C. § 12111(5)(A). Given that the CCC did not employ anyone prior to 2010, it is not clear how the EEOC believes that the CCC qualifies as a “covered entity.” (ECF No. 1 ¶ 10). In determining Grane’s potential liability as an “agent” of the CCC, the Court will assume arguendo that the CCC was not an “employer” within the meaning of Title I when the alleged acts of discrimination took place.

The ADA’s statutory definition requires Grane to be an “agent” of an employer to be liable under Title I. 42 U.S.C. § 12111(5)(A). This question must be answered in relation to the calendar year in which the challenged “discrimination” occurred. EEOC v. Metro. Atlanta Girls’ Club, Inc., 416 F.Supp. 1006, 1011-12 (N.D.Ga.1976). The parties agree that Grane acted as the CCC’s “agent” in 2009. (ECF No. 131 ¶ 6). Assuming that the CCC did not become an “employer” until 2010, the instant case presents the question of whether an entity independently satisfying the employee-numerosity requirement can be sued in its capacity as a present “agent” of a future “employer.”

In Robinson v. Shell Oil Co., 519 U.S. 337, 346, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997), the Supreme Court construed the word “employees” appearing in Title VU’s anti-retaliation provision to include both current and former employees of a covered employer. Speaking through Justice Thomas, the Supreme Court explained that Title VU’s definition of the term “employee” “lack[ed] any temporal qualifier and [wa]s consistent with either current or past employment.” Robinson, 519 U.S. at 342, 117 S.Ct. 843. The Supreme Court observed that the word “employees” found in the language defining the term “employment agency” was most naturally read to include “prospective employees.” Id. at 343 n. 3, 117 S.Ct. 843. This observation has been relied on as a basis for broadening the category of “employment agencies” falling within the coverage of Title VII. Veasy v. Teach for Am., Inc., 868 F.Supp.2d 688, 695-96 (M.D.Term.2012); Scaglione v. Chappaqua Cent. Sch. Dist., 209 F.Supp.2d 311, 315-16 (S.D.N.Y.2002).

The statutory definition presently at issue imposes a “temporal qualifier” on an entity’s status as an “employer.” Robinson, 519 U.S. at 342, 117 S.Ct. 843. An entity is covered only if it “has 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year.” 42 U.S.C. § 12111(5)(A). The statutory language, however, does not clearly establish a corresponding “temporal qualifier” on the agency relationship. Robinson, 519 U.S. at 342, 117 S.Ct. 843. The decisions extending liability to “agents” under the theory advanced by the EEOC suggest that an agent’s coverage under the relevant statutory provisions turns on its oim satisfaction of the employee-numerosity requirement. DeVito, 83 F.3d at 882; Nealey, 114 F.Supp.2d at 1368-69. The parties agree that Grane was independently covered under Title I in 2009, and that its agency relationship with the CCC predated January 1, 2010. (ECF No. 131 ¶¶ 4, 6). The Defendants concede that the CCC became an “employer” on that date. (ECF No. Ill at 5). Since the statutory language does not state that an entity must be an “agent” of a current “employer” in order to be a “covered entity,” Grane can be held liable for the discriminatory acts allegedly committed in its capacity as an existing “agent” of a future “employer.” 42 U.S.C. § 12111(5)(A). The alternative reading of the statute would create a gap in coverage not intended by Congress. EEOC v. Wyoming, 460 U.S. 226, 238, 103 S.Ct. 1054, 75 L.Ed.2d 18 (1983). Given that Grane, a covered “employer” itself, was knowingly hiring employees for a distinct entity that was likewise destined to fall within Title I’s coverage, “the broader context of the statute as a whole” suggests that the EEOC’s theory of agency liability should carry the day in this case. Robinson, 519 U.S. at 341, 117 S.Ct. 843.

The documentary record suggests that the asset purchase agreement transferring the LCNRC’s assets from Cambria County to Grane was executed on September 11, 2009. (ECF No. 133-7 at 2). Ebensburg Associates, LCC (“Ebensburg”), an affiliate of Grane, was designated to accept title to the real property. (Id.). The ECC, a separate Grane affiliate, was designated to accept title to the remaining assets. (Id.). This information was conveyed in an email authored by Theresa Creagh (“Creagh”), Grane’s General Counsel and Secretary. (Id.). On October 2, 2009, the ECC was organized as a limited liability company in accordance with 15 Pa. Cons.Stat. § 8913. (ECF No. 133-4 at 2-3). Pennsylvania law provides for the registration of fictitious business names. 54 Pa Cons. Stat. § 311. The name “Cambria Care Center” was registered as the ECC’s fictitious name on November 5, 2009. (ECF No. 133-6'at 3-4). In an affidavit submitted to the National Labor Relations Board (“NLRB”) on January 26, 2010, Oddo stated that Grane did not own the CCC. (ECF No. 98-2 ¶2). He further declared that Grane had a “contractual relationship” with Ebensburg and the ECC to manage the CCC, and that the ECC was responsible for the CCC’s operations. (Id.).

The EEOC correctly points out that the CCC was “a legal entity as early as October 2009.” (ECF No. 129 at 5). As an existing “entity,” the CCC was able to engage in an agency relationship with Grane, an independently “covered entity,” to facilitate the recruitment and selection of employees. (ECF No. 131 ¶¶ 4-6). The CCC’s status as a “legal entity,” however, does not warrant the conclusion that it was a “covered entity” under Title I. 42 U.S.C. § 12111(2). An entity is subject to the ADA’s provisions only if it “has 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year.” 42 U.S.C. § 12111(5)(A) (emphasis added). “[A]n employer ‘has’ an employee if [it] maintains an employment relationship with that individual.” Walters v. Metro. Educ. Enters., Inc., 519 U.S. 202, 207, 117 S.Ct. 660, 136 L.Ed.2d 644 (1997). Since the CCC had no employees until 2010, it did not fall within the statutory definition in 2009. It is not entirely clear how the EEOC believes that the CCC independently qualified as an “employer” during the relevant period, aside from its relationship with Grane. The “temporal qualifier” enacted by Congress must be enforced. Robinson, 519 U.S. at 342, 117 S.Ct. 843.

In an attempt to link the Defendants together for liability purposes, the EEOC maintains that they acted as a “joint employer” in connection with the hiring process. (ECF No. 96 at 8-10). The Defendants contend that the EEOC “cannot raise the joint employer theory for the first time at [this] stage.” (ECF No. Ill at 7). A plaintiff cannot assert an unpled claim in a brief supporting or opposing a motion for summary judgment. Nykiel v. Borough of Sharpsburg, 778 F.Supp.2d 573, 587 (W.D.Pa.2011); Johnson v. Cmty. College of Allegheny Cnty., 566 F.Supp.2d 405, 449 (W.D.Pa.2008). The “joint employer” theory advocated by the EEOC, however, does not constitute a new claim. Lebron v. Nat’l R.R. Passenger Corp., 513 U.S. 374, 379, 115 S.Ct. 961, 130 L.Ed.2d 902 (1995). The EEOC’s claims against the Defendants, which arise under the ADA, are concededly before the Court. Citizens United v. Federal Election Comm’n, 558 U.S. 310, 330-31, 130 S.Ct. 876, 175 L.Ed.2d 753 (2010). “Once a claim is properly presented, a party can make any argument in support of that claim.” Yee v. City of Escondido, 503 U.S. 519, 534, 112 S.Ct. 1522, 118 L.Ed.2d 153 (1992). The complaint filed in this case alleges that the Defendants were all entities “covered” under Title I. (ECF No. 1 ¶¶ 4-10). At the pleadings stage, the EEOC was not required to “pin [its] claim for relief to a precise legal theory.” Skinner v. Switzer, — U.S. -, 131 S.Ct. 1289, 1296, 179 L.Ed.2d 233 (2011). Consequently, the EEOC is not precluded from arguing that the Defendants may be held liable as “joint employers.”

In Graves v. Lowery, 117 F.3d 723, 727 (3d Cir.1997), the Third Circuit recognized that two employers could be viewed as “joint employers” if they “exercise[d] significant control over the same employees.” The EEOC relies on the reasoning employed in Graves to hold the Defendants collectively liable for any ADA violations perpetrated during the hiring process. (ECF No. 96 at 8-9). The situation in this case, however, is meaningfully different from the situation in Graves. The defendants in Graves independently satisfied the criteria for coverage under Title VII. Graves, 117 F.3d at 724 (describing the employers in question as “the judicial branch of the Commonwealth of Pennsylvania” and “Dauphin County,” both of which had enough employees to satisfy Title VII’s employee-numerosity requirement). The instant case is different because the EEOC is attempting to aggregate the employees of Grane with those of the CCC (which had no employees at the time of the alleged discriminatory conduct) to establish each entity’s coverage under the ADA. This factor distinguishes the instant case from some of the cases relied upon by the EEOC. King v. Chrysler Corp., 812 F.Supp. 151, 153-54 (E.D.Mo.1993). Since the dispute between the parties centers on whether the CCC was subject to Title I’s requirements rather than on whether an employment relationship existed between the CCC and a particular individual, greater scrutiny of this issue is required. Butterbaugh v. Chertoff, 479 F.Supp.2d 485, 492 (W.D.Pa.2007).

In Grane Health Care v. NLRB, 712 F.3d 145, 155 (3d Cir.2013), which also arose out of labor disputes stemming from Grane’s acquisition of the LCNRC, the Court of Appeals affirmed a finding by the NLRB that Grane and the CCC constituted a “single employer,” thereby rendering them jointly and severally hable for certain violations of the National Labor Relations Act (“NLRA”). The holding in Grane, however, lacks dispositive force in this case for two reasons. First, the Court of Appeals was required to review the NLRB’s factual findings pursuant to the evidentia-ry standard of “substantial evidence,” which is highly deferential. 29 U.S.C. § 160(e). In this ease, the CCC’s coverage under Title I is “an element of [the EEOC’s] claim for relief’ that must be established based on the evidence contained in the record. Arbaugh v. Y & H Corp., 546 U.S. 500, 516, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006). Second, the test for determining whether two entities constitute a “single employer” for purposes of the NLRA does not apply in cases involving anti-discrimination statutes such as the ADA and Title VII. In the present context, the more exacting test announced in Nesbit v. Gears Unlimited, Inc., 347 F.3d 72, 84-89 (3d Cir.2003), governs the question of whether Grane’s employees can be added to the CCC to bring the CCC within Title I’s coverage at the time of the alleged discrimination. Myers, 679 F.Supp.2d at 608 (explaining that Nesbit addresses “the specific situation in which a plaintiff seeks to evade Title VIPs minimum size requirements by ‘consolidating’ a defendant with an affiliated entity, thus allowing the employees of both entities to count toward the statutory minimum”).

The existing record does not shed much light on the terms of the asset purchase agreement, the relationship between Grane and its affiliates, or the circumstances in which the Defendants have collectively engaged in the management of the facility at issue. The ADA’s 15-em-ployee coverage requirement must be “strictly construed.” Nesbit, 347 F.3d at 85. That requirement “relates to the substantive adequacy” of the EEOC’s case. Arbaugh, 546 U.S. at 504, 126 S.Ct. 1235. Since there are unresolved questions as to whether Grane and the CCC constituted a “single employer” during the 2009 hiring process, the EEOC’s motion for partial summary judgment will be denied with respect to the CCC.

C. The EEOC’s Satisfaction of the Applicable Conditions Precedent

The ADA incorporates Title VII’s remedial scheme in cases involving employment discrimination. 42 U.S.C. § 12117(a). The statutory protocol imposes certain conditions precedent on the EEOC’s ability to commence an action. EEOC v. Allegheny Airlines & Steward & Stewardess Div., 436 F.Supp. 1300, 1304 (W.D.Pa.1977). The process is initiated “[w]henever a charge is filed by or on behalf of a person claiming to be aggrieved, or by a member of the Commission, alleging that an employer ... has engaged in an unlawful employment practice.” 42 U.S.C. § 2000e-5(b). After receiving a charge of discrimination, the EEOC is required to “make an investigation thereof.” Id. If the EEOC “determines after such investigation that there is reasonable cause to believe that the charge is true,” it must “endeavor to eliminate [the] unlawful employment practice by informal methods of conference, conciliation, and persuasion.” Id. The EEOC may commence an enforcement action only if it has been unable to secure an acceptable “conciliation agreement” from the offending employer. 42 U.S.C. § 2000e-5(f); EEOC v. Great Atlantic & Pacific Tea Co., 735 F.2d 69, 73 (3d Cir.1984). “EEOC enforcement actions are not limited to the claims presented by the charging parties. Any violations that the EEOC ascertains in the course of a reasonable investigation of the charging party’s complaint are actionable.” Gen. Tel. Co. of the Northwest, Inc. v. EEOC, 446 U.S. 318, 331, 100 S.Ct. 1698, 64 L.Ed.2d 319 (1980).

Once a charge of discrimination is filed, “the EEOC is in command of the process” and exclusively exercises “the authority to evaluate the strength of the public interest at stake.” EEOC v. Waffle House, Inc., 534 U.S. 279, 291, 122 S.Ct. 754, 151 L.Ed.2d 755 (2002). A court entertaining a subsequent action brought by the EEOC may not “inquire into the sufficiency of [its] investigation.” EEOC v. Keco Indus., Inc., 748 F.2d 1097, 1100 (6th Cir.1984). An inquiry of that kind “would propel the court into the domain which Congress has set aside exclusively for the administrative agency.” SEC v. Chenery Corp., 332 U.S. 194, 196, 67 S.Ct. 1575, 91 L.Ed. 1995 (1947). “[I]f the investigation gives rise to a reasonable belief that the charge is true” and subsequent attempts at conciliation are unsuccessful, the EEOC may “sue any of the alleged offenders.” EEOC v. Caterpillar, Inc., 409 F.3d 831, 832 (7th Cir.2005). The EEOC’s “preadju-dication finding of reasonable cause” is not subject to judicial review. Georator Corp. v. EEOC, 592 F.2d 765, 767 (4th Cir.1979).

The Defendants move for summary judgment on the ground that the EEOC never investigated whether the unsuccessful applicants were not hired because of information revealed by the unlawful medical examinations and inquiries, or because of actual or perceived disabilities. (ECF No. 93 at 31-35). As an initial matter, the argument advanced by the Defendants, if meritorious, would not implicate the more than 300 § 12112(d) claims asserted in this case. A § 12112(d) violation occurs as soon as “an employer conducts an improper medical examination or asks an improper disability-related question, regardless of the results or response.” Green v. Joy Cone Co., 107 Fed.Appx. 278, 280 (3d Cir.2004) (unpublished). The manner in which the illegally obtained information was used (or not used) has no bearing on whether the underlying prophylactic provisions were violated. Katz, 845 F.Supp.2d at 545 n. 7. The issues raised by the Defendants relate solely to the subset of claims arising under § 12112(a). In any event, the Defendants’ contention that the § 12112(a) claims were never investigated is refuted by the record.

Alan L. Archer (“Archer”), the EEOC investigator deposed by the Defendants, testified that he had “looked at the evidence holistically” in order to determine whether unsuccessful applicants to the CCC had been turned away because of disabling medical conditions. (ECF No. 100-2 at 10). He stated that his investigation had revealed the existence of “identified medical conditions” suffered by a majority of the unsuccessful applicants, leading him to believe that several personnel decisions had been made based on impermissible factors. (Id. at 9-10). The Supreme Court has recognized that “a policy of discriminatory decisionmaking” can sometimes give rise to an inference that “individual employment decisions were discriminatorily based.” Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 362, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977). The EEOC’s finding of “reasonable cause” is not judicially reviewable. EEOC v. Johnson Co., 421 F.Supp. 652, 657 (D.Minn.1975). The Defendants cannot evade the applicable limits on judicial review merely by contending that the multiple claims asserted in this case should have been investigated on a piecemeal basis. Serrano v. Cintas Corp., 699 F.3d 884, 904-05 (6th Cir.2012). A claim is subject to dismissal only “if it is evident that the [EEOC] failed to even undertake an investigation” of the matter. EEOC v. James Julian, Inc., 736 F.Supp. 59, 61 (D.Del.1990). This Court has already declared that it “[w]ould not examine the adequacy of [the] EEOC’s investigation.” (ECF No. 86 at 8). The Defendants recite a litany of questions that, in their view, should have been asked and answered during the course of Archer’s investigation. (ECF No. 93 at 32-34). Since “[t]he statute clearly makes the EEOC the master of its own case,” further consideration of the Defendants’ argument would contravene the express will of Congress. Waffle House, 534 U.S. at 291, 122 S.Ct. 754.

D. The EEOC’s Request for Injunc-tive Relief

As discussed earlier, issues of material fact exist as to whether the CCC was a “covered entity” under the ADA at the time of the alleged discriminatory acts. The CCC’s coverage under Title I is a “substantive ingredient” of the EEOC’s claims. Arbaugh, 546 U.S. at 503, 126 S.Ct. 1235. Because the CCC’s coverage has not been established as a matter of law, the EEOC’s motion for partial summary judgment will be denied with respect to the CCC. Nonetheless, the record establishes that Grane, a “covered entity,” violated § 12112(d) more than. 300 times. (ECF No. 131 ¶ 2). Thus, the EEOC’s motion for partial summary judgment will be granted with respect to Grane’s liability for the established violations.

The EEOC asks that Grane be permanently enjoined from perpetrating further violations of § 12112(d). (ECF No. 95-1 at 9). The statutory provision upon which this request is based provides as follows:

If the court finds that the respondent has intentionally engaged in or is intentionally engaging in an unlawful employment practice charged in the complaint, the court may enjoin the respondent from engaging in such unlawful employment practice, and order such affirmative action as may be appropriate, which may include, but is not limited to, reinstatement or hiring of employees, with or without back pay (payable by the employer, employment agency, or labor organization, as the case may be, responsible for the unlawful employment practice), or any other equitable relief as the court deems appropriate.

42 U.S.C. § 2000e-5(g)(l). Given that this statutory language only requires a finding that the offending employer has engaged in “an unlawful employment practice charged in the complaint,” “[i]t is clear that the EEOC may obtain equitable relief that protects a class of persons from unlawful employment discrimination without citing numerous instances of such discrimination.” EEOC v. Frank’s Nursery & Crafts, Inc., 177 F.3d 448, 468 (6th Cir.1999). Once a finding of intentional discrimination has been made, it is generally incumbent upon the employer to demonstrate that “the discrimination is unlikely to continue.” EEOC v. AutoZone, Inc., 707 F.3d 824, 840 (7th Cir.2013).

The Defendants argue that the statutory violations established in this case were “merely technical” violations of the kind at issue in Tice, and that no relief is warranted. (ECF No. 93 at 11). This assertion is unavailing. Tice involved allegations that a covered employer had “improperly commingled] the medical records of employees with noneonfidential files.” Tice, 247 F.3d at 519. Unlike the situation in Tice, which concerned only misplaced medical records, the instant ease goes to the heart of what Congress intended to accomplish by prohibiting pre-offer medical examinations and inquiries.

Unlike many other legal proscriptions, which recognize prohibited conduct by reference to a defendant’s actions, statutes prohibiting discriminatory practices in the employment setting typically define unlawful conduct by reference to a covered employer’s “mental processes.” United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 716, 103 S.Ct. 1478, 75 L.Ed.2d 403 (1983). An otherwise lawful employment action becomes unlawful only when it is taken “on the basis of a discriminatory criterion.” Cooper v. Fed. Reserve Bank of Richmond, 467 U.S. 867, 874, 104 S.Ct. 2794, 81 L.Ed.2d 718 (1984). Because the outward actions prohibited by anti-discrimination statutes are facially legal, employers are sometimes able “to coat various forms of discrimination with the appearance of propriety, or to ascribe some other less odious intention to what is in reality discriminatory behavior.” Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1082 (3d Cir.1996). Victims of discrimination “often come to the legal process without witnesses and with little direct evidence indicating the precise nature of the wrongs [that] they have suffered.” Jackson v. Univ. of Pittsburgh, 826 F.2d 230, 236 (3d Cir.1987). Since an educated employer engaged in discriminatory practices will usually know “not to leave the proverbial ‘smoking gun’ behind,” discriminatory conduct can sometimes go undetected and unremedied. Aman, 85 F.3d at 1082.

The ADA’s prohibition against pre-offer medical examinations and inquiries is prophylactic in nature. Congress was concerned that medical information gleaned from such examinations and inquiries could be used to exclude disabled applicants from further consideration for employment. (ECF No. 140-1 at 39). In order to discriminate against an applicant “on the basis of disability,” an employer must know that the applicant is disabled. Gera-ci, 82 F.3d at 581. By denying employers access to medical information until after offers of employment are made, § 12112(d) aims to ensure that such information does not infect the employee-selection process. (ECF No. 140-1 at 39).

“Once an offer of employment has been made, a prospective employee may be asked to undergo a medical examination, provided that ‘all entering employees are subjected to such an examination regardless of disability,’ the confidentiality requirements of § 12112(d)(3)(B) are adhered to, and the results of the examination are ‘used only in accordance with’ Title I.” Chedwick v. Univ. of Pittsburgh Med. Ctr., Civil Action No. 07-806, 2011 WL 1559792, at *11, 2011 U.S. Dist. LEXIS 43239, at *33-34 (W.D.Pa. Apr. 21, 2011). With the caveat that the information obtained from the examination (and accompanying inquiries) cannot be used to unlawfully discriminate against a “disabled” individual in violation of § 12112(a), the employer “may condition [its] offer of employment on the results of [that] examination.” 42 U.S.C. § 12112(d)(3). If the offer of employment is withdrawn because of medical information discovered through the use of a post-offer examination or inquiry, the rejected individual remains free to pursue an ADA claim premised on the theory that the offer was withdrawn “for reasons not in accordance with” Title I. Garrison v. Baker Hughes Oilfield Operations, Inc., 287 F.3d 955, 963 n. 7 (10th Cir.2002). In that scenario, the factual issue typically centers on whether the “disability” detected by post-offer testing renders the individual unable to perform the “essential functions” of the desired position, “with or without reasonable ac-eommodation[s].” 42 U.S.C. §§ 12111(8), 12112(b)(5). The rejected applicant does not normally have to contend with assertions that he or she was rejected for “legitimate, nondiscriminatory reasons” other than his or her medical condition, since the employer’s initial decision to extend an offer of employment will have preceded the discovery of the relevant medical information. In this way, § 12112(d) deters covert discrimination against disabled applicants by forcing employers to make hiring decisions before procuring the information upon which discriminatory decisions could be based. Griffin, 160 F.3d at 594 (remarking that “Congress wished to curtail all questioning that would serve to identify and exclude persons with disabilities from consideration for employment”).

This case does not involve misplaced medical files or fleeting questions technically constituting medical inquiries. Tice, 247 F.Bd at 519-20. The existing record demonstrates that the LCNRC employees seeking employment with the CCC were subjected to a formalized process consisting of unlawful pre-offer medical examinations and illicit solicitations of detailed medical information. The individuals who were subjected to these illegal examinations and inquiries, including those who were ultimately rejected, were deprived of the prophylactic protection from discrimination that § 12112(d) was designed to create. Congress sought “to provide clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities.” 42 U.S.C. § 12101(b)(2). Covered employers cannot erode those standards by procuring detailed medical information about applicants for employment and contending, at the end of the day, that such information has never been used to the detriment of those applicants. If it were otherwise, disabled individuals would be vulnerable to several forms of discrimination that the ADA was designed to prevent. Since most employment decisions involve elements of discretion, it is relatively easy for an employer to “concoct a plausible reason for not hiring” a particular individual. Riordan v. Kempiners, 831 F.2d 690, 698 (7th Cir.1987). A decision declaring the admitted § 12112(d) violations to be “harmless” would seriously undermine the ADA’s policy of prophylactic deterrence.

The testimonial record indicates that pre-offer medical examinations were performed on the LCNRC employees seeking jobs with the CCC because several positions needed to be filled in a short period. (ECF No. 99-2 at 2 ¶¶ 9-11; ECF No. 99-3 at 3-4). If no relief is provided in this case,