Holiday v. Chattanooga

• Court: Court of Appeals for the Sixth Circuit
• Decided: March 10, 2000
• Docket: 98-5619
• Status: Published

Opinion

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 ELECTRONIC CITATION: 2000 FED App. 0087P (6th Cir.) File Name: 00a0087p.06

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT _________________

;  LOUIS HOLIDAY,  Plaintiff-Appellant,   No. 98-5619 v.  > CITY OF CHATTANOOGA,  Defendant-Appellee.  1 Appeal from the United States District Court for the Eastern District of Tennessee at Chattanooga. No. 97-00354—R. Allan Edgar, Chief District Judge. Argued: August 13, 1999 Decided and Filed: March 10, 2000 Before: KEITH, BOGGS, and CLAY, Circuit Judges. _________________ COUNSEL ARGUED: Chip Rowan, ROWAN & NEIS, Atlanta, Georgia, for Appellant. Michael A. McMahan, CITY ATTORNEY’S OFFICE, Chattanooga, Tennessee, for Appellee. ON BRIEF: Chip Rowan, ROWAN & NEIS, Atlanta, Georgia, for Appellant. Michael A. McMahan, Kenneth O. Fritz, CITY ATTORNEY’S OFFICE, Chattanooga, Tennessee, for Appellee.

1 2 Holiday v. City of Chattanooga No. 98-5619

_________________ OPINION _________________ CLAY, Circuit Judge. Plaintiff, Louis Holiday, brought suit against Defendant, the City of Chattanooga (“the City”), under the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., and the Vocational Rehabilitation Act of 1973, 29 U.S.C. § 791 et seq., charging that the City refused to hire him as a police officer because he is infected with the human immunodeficiency virus (“HIV”), the virus that causes Acquired Immunodeficiency Syndrome (“AIDS”). The City had extended Holiday an employment offer contingent upon his passing a physical examination required by state statute; at this examination, Holiday voluntarily informed the physician engaged by the City of his HIV status. This physician subsequently advised the City that Holiday had not passed the medical examination because, in the doctor’s opinion, Holiday was not strong enough to withstand the rigors of police work. The district court dismissed Holiday’s suit on summary judgment on grounds that Holiday was not “otherwise qualified” for the position. On appeal, Holiday contends that summary judgment was improper because a genuine issue of material fact exists as to whether the City improperly refused to hire him because of his disability, where (i) the physician’s opinion was not the product of the individualized inquiry mandated by the ADA, and is at odds with substantial evidence indicating that Holiday was in fact physically capable of performing as a police officer; and (ii) there is evidence that the City withdrew its offer to Holiday because of its fears that he would transmit HIV on the job. We agree. For the reasons set forth below, we REVERSE the district court’s grant of summary judgment on behalf of the City. I. Holiday is currently a police officer with the Tennessee Capitol Police, where he has been employed since May of No. 98-5619 Holiday v. City of Chattanooga 3

1997. He has also had various degrees of experience as a police officer with several other jurisdictions in Tennessee, including the Springfield Police Department (“PD”), the Murfreesboro PD, the Tennessee State University PD and the Nashville Metro PD. In April of 1993, Holiday submitted an application to the City for employment as a police officer. He passed a written examination and also successfully completed a physical agility test in September of 1993. The physical agility test consisted of various tests of physical strength and endurance including running, jumping hurdles, an obstacle course and carrying heavy weights. The City’s police department subsequently contacted Holiday in October of 1994 and invited him to an interview on October 11, 1994, with the Administrator of the City’s Department of Safety, Ervin Dinsmore, and Police Chief Ralph Cothran. After the interview, Dinsmore made Holiday a conditional offer of employment subject to Holiday’s successful completion of physical and psychological examinations. All applicants for the position of police officer are required by Tennessee law to pass a physical examination administered by a licensed physician. TENN. CODE ANN. § 38-8-106(7) (1997). The City has contracted with outside health care providers, including Memorial Hospital in Chattanooga, to perform the post-offer physical examinations required by statute. Donna Kelley, the City’s Personnel Director, testified that the City worked with these medical providers to determine the components of the physical examinations; the City supplied information as to what the job of police officer involves, and together with the health care providers, mutually determined the scope of the examinations. The City does not normally test employment applicants for HIV or AIDS; nor does it have a policy requiring that all persons who apply for a position as a police officer must test negative for HIV. Pursuant to its contract with Memorial Hospital, the City referred Holiday to Dr. Steve Dowlen, M.D., a physician on staff at the hospital, for Holiday’s pre-employment physical 4 Holiday v. City of Chattanooga No. 98-5619 No. 98-5619 Holiday v. City of Chattanooga 17

examination. Dr. Dowlen examined Holiday on October 21, evaluated based on his actual abilities and the relevant 1994, at which time Holiday voluntarily informed the doctor medical evidence, and to be protected from discrimination that he was infected with HIV. Holiday also told Dr. Dowlen founded on fear, ignorance or misconceptions. Holiday has that he had been diagnosed as borderline anemic since he was adduced sufficient evidence from which a jury could conclude in high school. According to Holiday, at the conclusion of the that the City refused to hire him as a police officer because of physical examination, Dr. Dowlen told him that he had its unsubstantiated fears of HIV transmission, despite the passed. absence of objective medical evidence that he was physically incapable of performing the essential functions of the However, after the physical examination was completed, a position. Accordingly, the district court erred in granting the person from Dr. Dowlen’s office telephoned Donna Kelley, City’s motion for summary judgment. and advised her that Holiday had failed the examination. Kelley was told that she should obtain a copy of the medical V. report and discuss it further with Dr. Dowlen. According to Kelley, she gathered that Holiday was HIV positive and For the reasons set forth above, we REVERSE the district suffered from an AIDS-related health problem. court’s grant of summary judgment on behalf of the City. Kelley obtained the medical report filled out by Dr. Dowlen, which, among other things, asked the following question: “Is person physically fit to perform strenuous activity that may be necessary in police work?” Dr. Dowlen had answered this question “No”. In the comments accompanying his answer, Dr. Dowlen wrote: “anemia with lymphocytosis, lymph nodes in both axillae -- needs further evaluation by his physician since history by patient of HIV+ 3-4 years.” (J.A. at 201-02.) Shortly after she received the medical report, Kelley spoke with Dr. Dowlen, who told her that Holiday was anemic and had problems with his lymph nodes, and had some blood abnormalities. Kelley could not recall when asked during her deposition testimony whether Dr. Dowlen stated that the blood abnormalities were HIV or AIDS related. Dr. Dowlen expressed his medical opinion that Holiday was physically unable to perform the duties of a police officer because he was not strong enough to withstand the rigors of police work. Kelley then discussed the matter with Dinsmore, who ultimately decided not to employ Holiday based on Dr. Dowlen’s medical report. Kelley subsequently informed Holiday that the City’s conditional offer of employment was withdrawn because he had not passed the physical 16 Holiday v. City of Chattanooga No. 98-5619 No. 98-5619 Holiday v. City of Chattanooga 5

placed at risk by the officer having a life-threatening examination. Holiday testified that when he asked why, contagious disease include but are not limited to co- Kelley answered that she could not “put other employees and workers, other law enforcement, medical personnel, the public at risk by hiring you.” (J.A. at 173-74.) This suspects and accident victims. position was subsequently repeated in the City’s answers to interrogatories during discovery. The City was asked to (J.A. at 97-98.) Based on these and similar facts contained in “further describe each and every way in which any medical the record before us, a rational trier of fact could conclude condition, based upon which Defendant or Dr. Dowlen that the City in fact withdrew its employment offer because of disqualified Mr. Holiday from employment with Defendant, its fears that Holiday would transmit HIV on the job. is incompatible with the work requirements” of a police officer. The City responded that Holiday’s HIV status The Supreme Court has observed that “[f]ew aspects of a rendered him a health and safety threat to others, based on the handicap give rise to the same level of public fear and possibility of blood-to-blood contact during police work. On misapprehension as contagiousness.” School Board v. Arline, appeal, the City has abandoned its prior assertion that 480 U.S. 273, 284 (1987). It is for this reason that individuals Holiday’s HIV status rendered him a direct threat to the health with such disabilities are in particular need of statutory or safety of others, and now claims that his HIV seropositivity protection; otherwise “they would be vulnerable to played absolutely no role in its decision to withdraw the discrimination on the basis of mythology -- precisely the type employment offer. of injury Congress sought to prevent.” Id. at 285. The City concedes on appeal that Holiday posed no direct threat to On June 19, 1997, Holiday filed suit in district court health and safety of others, and, apparently, disavows its alleging that the City had violated the ADA and the earlier assertions to the contrary.4 In our view, however, the Rehabilitation Act by refusing to hire him due to his HIV- City’s abrupt shift of position in the midst of this litigation positive status. Following discovery, the court granted the only contributes in creating a question of fact regarding its City’s motion for summary judgement. This appeal followed. true motives in withdrawing the employment offer. II. When he applied for a position as a police officer with the City of Chattanooga, Louis Holiday was entitled to be We review a grant of summary judgment de novo. DePiero v. City of Macedonia, 180 F.3d 770, 776 (6th Cir. 1999). Summary judgment is appropriate where “the pleadings, 4 depositions, answers to interrogatories, and admissions on The ADA provides that a disabled individual is not “qualified” for file, together with the affidavits, if any, show that there is no a specific employment position if he poses a “direct threat” to the health genuine issue as to any material fact and that the moving party or safety of others that cannot be eliminated by a reasonable is entitled to a judgment as a matter of law.” FED. R. CIV. P. accommodation. See 42 U.S.C. §§ 12111(3), 12113(b). “The determination that an individual poses a ‘direct threat’ shall be based on 56(c). As the party moving for summary judgment, the City an individual assessment of the individual’s present ability to safely bears the burden of showing the absence of a genuine issue of perform the essential functions of the job. This assessment shall be based material fact as to at least one essential element of Holiday’s on a reasonable medical judgment that relies on the most current medical claim. See Celotex Corp. v. Catrett, 477 U.S. 317, 324 knowledge and/or on the best available objective evidence.” 29 C.F.R. (1986). If Holiday, as the non-moving party, presents 1630.2(r). Relevant factors include (i) the duration of the risk; (ii) the nature and potential severity of the potential harm; (iii) the likelihood that evidence from which a jury might return a verdict in his favor, the potential harm will occur; and (iv) the imminence of the potential summary judgment may not be granted. See Anderson v. harm. Id. 6 Holiday v. City of Chattanooga No. 98-5619 No. 98-5619 Holiday v. City of Chattanooga 15

Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). In considering physically capable of performing the strenuous activity that the City’s motion for summary judgment, we accept police work may require; among other things, Holiday had Holiday’s evidence as true and draw all reasonable inferences served as a police officer in several other Tennessee in his favor. Id. The facts and inferences drawn therefrom jurisdictions, and had successfully completed the City’s own are thus viewed in the light most favorable to Holiday. rigorous physical agility test. DePiero, 180 F.3d at 776. Ultimately, we must decide “whether the evidence presents sufficient disagreement to Moreover, although the City on appeal claims that require submission to a jury or whether it is so one-sided that Holiday’s HIV status was not a factor in its decision to one party must prevail as a matter of law.” Terry Barr Sales withdraw the employment offer, Holiday has adduced direct Agency, Inc. v. All-Lock Co., 96 F.3d 174, 178 (6th Cir. 1996) evidence to the contrary. In her affidavit, Kelley stated that (quoting Anderson, 477 U.S. at 251-52). when she first learned that Holiday had not passed the physical examination administered by Dr. Dowlen, she was III. told that Holiday was HIV-positive and suffered from an AIDS-related health problem.3 Within hours the City opted The ADA protects employees and job applicants from to withdraw its employment offer. Holiday testified that discrimination based on their disabilities. The statute when he subsequently asked Kelley why the offer had been provides that no covered employer “shall discriminate against withdrawn, she answered that she could not “put other a qualified individual with a disability because of the employees and the public at risk by hiring you.” (J.A. at 173- disability of such individual in regard to job application 74.) The City then repeated this assertion during discovery. procedures, the hiring, advancement, or discharge of Holiday asked the City to further describe how any medical employees, employee compensation, job training, and other condition, based upon which Dr. Dowlen or the City had terms, conditions, and privileges of employment.” 42 U.S.C. disqualified Holiday from employment, was incompatible § 12112(a) (1994). The ADA defines the term “qualified with the work requirements of a police officer. The City individual with a disability” as “an individual with a disability responded to an Interrogatory by stating that Holiday’s HIV who, with or without reasonable accommodation, can perform status rendered him a health and safety threat to others: the essential functions of the employment position that such individual holds or desires.” 42 U.S.C. § 12111(8) (1994). The use of force to subdue suspects and to assist injured persons are essential job functions as a police officer. Accordingly, to prevail on his claim of unlawful Wrestling, running and striking are common occurrences employment discrimination under the ADA and the in subduing suspects. In such encounters, it is likely that Rehabilitation Act, Holiday must demonstrate: (i) that he is both the officer and the suspect will be injured, resulting an individual with a disability; (ii) that he is otherwise in the possibility of blood exchange. Persons who are qualified to perform the job requirements, with or without reasonable accommodation; and (iii) that he suffered an adverse employment action “because of” his disability.1 See 3 In her subsequent deposition testimony, Kelley claimed that she could not recall whether she had been told that Holiday was HIV-positive 1 or at risk for AIDS, but only that he had been identified as suffering from By statute, ADA standards govern Rehabilitation Act claims of some sort of “blood disorder.” Nonetheless, she conceded that it was her employment discrimination. See 29 U.S.C. § 794(d); Andrews v. State of understanding from speaking with Dr. Dowlen’s office that Holiday was Ohio, 104 F.3d 803, 807 (6th Cir. 1997). As a result, all subsequent not capable of performing as a police officer because he had a life- references to the ADA apply with equal force to Holiday’s Rehabilitation threatening, contagious disease. 14 Holiday v. City of Chattanooga No. 98-5619 No. 98-5619 Holiday v. City of Chattanooga 7

Supp. 965, 973 (S.D. Tex. 1996) (holding that bus company 42 U.S.C. § 12112(a); 29 U.S.C. § 794; Monette v. Electronic was not entitled to rely on medical report stating that job Data Sys. Corp., 90 F.3d 1173, 1178 (6th Cir. 1996). The applicant had not passed statutorily required physical City concedes that as an HIV-positive individual, Holiday has examination, where the employer could determine from the a statutory disability. However, the City argues that Holiday report that the doctor’s opinion was not supported by any cannot prove the remaining elements of his claim. The City objective medical findings and instead was improperly based maintains that it withdrew its conditional offer only because on a perceived disability; under such circumstances, the Holiday did not fulfill an essential requirement of the employer knew or should have known that its refusal to hire position: that he pass the physical examination mandated by the applicant “on the basis of [the doctor’s] faulty opinion state law. As a result, the City claims that Holiday was not was both improper and violative of the ADA”). “otherwise qualified” for the position; and that the offer was withdrawn not because of any disability, but because Holiday Accordingly, we conclude that summary judgment was did not fulfill the statutory requirements. improper because there exists a genuine issue of material fact as to whether Holiday was “otherwise qualified” to perform The district court agreed with the City’s contentions, the essential functions of the position of police officer for the holding that Holiday had not shown that he was “otherwise City. qualified” to perform the essential functions of the job of police officer because he had not passed the physical IV. examination required by state statute. The court below stated: “The City had a right to reasonably rely on Dr. Dowlen’s We next consider whether Holiday had presented sufficient expert medical opinion when the City made the decision to evidence that his employment offer was withdrawn “because withdraw its conditional offer of employment to Holiday.” of” his disability so as to survive summary judgment. We (J.A. at 287.) We disagree. We hold instead that the district believe that he has. While the City asserts that Holiday was court erred in accepting Dr. Dowlen’s report as dispositive not hired for the non-discriminatory reason that he did not evidence of Holiday’s alleged inability to serve as a police fulfill the statutory requirements, Holiday has set forth officer, where (i) there is no indication that the physician sufficient evidence from which a jury could conclude that this conducted the individualized inquiry mandated by the ADA, proffered reason is mere pretext. As discussed in more detail and (ii) Holiday has adduced sufficient evidence to raise an above, the absence of any objective medical and scientific issue of fact as to whether he is otherwise qualified to perform support for Dr. Dowlen’s opinion casts doubt on the City’s as a police officer. purported reliance on the physician’s report. This is especially true in light of all of the evidence -- again, A. available to the City at the time -- that Holiday was in fact “‘The thesis of the [ADA] is simply this: That people with disabilities ought to be judged on the basis of their abilities; fails a physical examination, nothing prevented the City from sending they should not be judged nor discriminated against based on Holiday back to Dr. Dowlen for further tests or to another licensed unfounded fear, prejudice, ignorance, or mythologies; people physician for a second opinion. See TENN. CODE ANN. § 38-8-106 (1997) ought to be judged on the relevant medical evidence and the (qualifications of police officers). Indeed, the City admits that on occasion job applicants have been sent for additional procedures or follow-up examinations when prescribed by the examining physician; for example, applicants who initially showed a positive tuberculosis test were sent back for a confirmatory test. Act claim. 8 Holiday v. City of Chattanooga No. 98-5619 No. 98-5619 Holiday v. City of Chattanooga 13

abilities they have.’” Smith v. Chrysler Corp., 155 F.3d 799, the meaning of the Rehabilitation Act, and filed judgment on 805 (6th Cir. 1998) (quoting 136 Cong. Rec. S 7422-03, 7347 behalf of the TVA following a bench trial. The lower court (daily ed. June 6, 1990) (statement of Sen. Harkin)) (alteration explained: in original). The ADA thus serves to “prohibit employers from making adverse employment decisions based on [The TVA was] entitled to rely upon the letter of stereotypes and generalizations associated with the plaintiff’s treating physician in determining that the individual’s disability rather than on the individual’s actual plaintiff was not capable of returning to work. The court characteristics.” EEOC v. Prevo’s Family Mkt., Inc., 135 also finds that the report was detailed and lengthy and F.3d 1089, 1097 (6th Cir. 1998) (holding that an employer that [the TVA] had no duty to inquire further of may require an HIV test for a food-handling employee who [plaintiff’s private physician] with regard to plaintiff’s works with knives as part of an individualized inquiry into the ability to return to work. existence of a health or safety risk). Id. at 441. On appeal, we upheld the district court’s finding The ADA mandates an individualized inquiry in that the plaintiff was not a qualified handicapped person determining whether an employee’s disability or other within the meaning of the Rehabilitation Act. Noting the condition disqualifies him from a particular position. In order thoroughness of the private psychiatrist’s report, we agreed to properly evaluate a job applicant on the basis of his that the TVA was entitled to terminate the plaintiff because it personal characteristics, the employer must conduct an reasonably believed, based primarily on the medical report, individualized inquiry into the individual’s actual medical that it could not accommodate the plaintiff’s psychological condition, and the impact, if any, the condition might have on condition. Id. at 442. that individual’s ability to perform the job in question. See, e.g., Estate of Mauro v. Borgess Med. Cen., 137 F.3d 398 (6th This case presents a very different set of facts. Dr. Cir.) (conducting an individualized inquiry into the plaintiff’s Dowlen’s “report” consists of two scribbled lines at the specific situation to determine whether HIV-positive surgical bottom of a boilerplate evaluation form. While the technician was otherwise qualified for his position despite his psychiatrist in Pesterfield clearly made an individualized medical condition), cert. denied, 119 S. Ct. 51 (1998); Wilson determination as to the plaintiff’s medical condition and its v. Chrysler Corp., 172 F.3d 500, 505 (7th Cir. 1999) (stating effect on his ability to fulfill his job requirements, there is no that “the ADA requires an individualized inquiry into the indication that Dr. Dowlen did anything of the sort. ability of the employee to perform a particular job”). Indeed, Moreover, the record is replete with factual evidence the Supreme Court in a recent triad of cases has again made available to the City at the time -- particularly Holiday’s clear that such an individualized determination -- one which successful performance of police jobs that Dr. Dowlen focuses on the medical condition’s actual effect on the claimed he was unqualified to do -- that flatly contradicted specific plaintiff -- lies at the heart of the ADA. See Sutton v. Dr. Dowlen’s unsubstantiated conclusion. Under these facts, United Air Lines, Inc., 119 S. Ct. 2139, 2147 (1999) (holding the City was not entitled to simply rely on the physician’s that mitigating or corrective measures must be taken into recommendation2as the basis for withdrawing its employment account in judging whether an individual possesses a offer to Holiday. See, e.g., EEOC v. Texas Bus Lines, 923 F. disability because doing otherwise would “run[] directly counter to the individualized inquiry mandated by the ADA”); 2 Murphy v. United Parcel Serv., Inc., 119 S. Ct. 2133 (1999) Notably, the City does not contend that Dr. Dowlen’s (holding that a truck driver with high blood pressure did not recommendation was final under Tennessee law. Although the City has stated that it does not normally seek second opinions after an applicant 12 Holiday v. City of Chattanooga No. 98-5619 No. 98-5619 Holiday v. City of Chattanooga 9

such [medical] examination shall not be used for any purpose suffer a “disability” under the ADA where the medication he inconsistent with [the ADA].” 29 C.F.R. 1630.14(b)(2). took allowed him to perform major life activities without substantial limitation); Albertson, Inc. v. Kirkinburg, 119 S. Courts need not defer to an individual doctor’s opinion that Ct. 2162 (1999) (holding that the ADA imposes a statutory is neither based on the individualized inquiry mandated by the obligation to determine the existence of disabilities on a case- ADA nor supported by objective scientific and medical by-case basis, based upon the actual effect of the impairment evidence. The Supreme Court has expressly rejected the on the life of the individual in question). notion “that an individual physician’s state of mind could excuse discrimination without regard to the objective B. reasonableness of his actions.” Bragdon v. Abbott, 524 U.S. 624, 118 S. Ct. 2196, 2210 (1998) (holding that an individual In this case, Holiday has presented sufficient evidence that doctor’s unsupported belief that a patient’s HIV status would allow a jury to conclude that Dr. Dowlen failed to rendered her a health risk was not dispositive under the undertake the individualized determination that the ADA ADA). Instead, “courts should assess the objective requires and instead disqualified Holiday because of his HIV reasonableness of the views of health care professionals status -- without any indication that Holiday’s condition without deferring to their individual judgments.” Id.; see, actually impeded his ability to perform as a police officer. Dr. e.g., Estate of Mauro, 137 F.3d 398 (upholding hospital’s Dowlen’s medical report explicitly cited Holiday’s conclusion that continued employment of HIV-positive HIV-positive status as support for the physician’s opinion that surgical technician would pose a direct threat to the health of he was not fit for police work, and asserted that Holiday others only after concluding that objective medical and needed further evaluation by his personal physician because scientific evidence supported the hospital’s decision); Doe v. of his condition. When Dr. Dowlen’s office initially informed District of Columbia, 796 F. Supp. 559 (D.D.C. 1992) Donna Kelley that Holiday had failed the exam, she was told (holding that fire department violated the Rehabilitation Act that Holiday was HIV positive and suffered from an when it withdrew its offer of employment based on the AIDS-related complex. Significantly, there is no evidence applicant’s HIV status, where the department doctor’s opinion that Holiday’s HIV had progressed beyond the asymptomatic that HIV status impeded the applicant’s ability to perform as stage, or that Holiday actually suffered from any AIDS-related a firefighter was contradicted by objective medical evidence health problems at the time of his physical examination. concerning the applicant’s physical condition and by the There is also no evidence on the record that Dr. Dowlen testimony of other health care professionals). attempted to determine whether Holiday actually experienced fatigue, sluggishness, shortness of breath or any other This Court’s decision in Pesterfield v. Tennessee Valley symptom of physical weakness or lack of endurance -- even Authority, 941 F.2d 437 (6th Cir. 1991), is instructive. There, after Holiday voluntarily disclosed his HIV status. The an employee sued the TVA for its refusal to clear him as doctor’s complete failure to investigate the physical effects, medically able to return to work following hospitalization for if any, of Holiday’s HIV status raises a genuine issue of psychiatric treatment. The TVA had based its decision in material fact as to whether his subsequent opinion was the large part on a detailed recommendation from the employee’s product of the ADA-mandated individualized inquiry into private psychiatrist, who opined that the employee was unable Holiday’s actual condition. As the Third Circuit recently to return given his current mental condition. Id. at 438-39. explained in a related context: The district court held that, as a result of his psychological disability, the employee was not a qualified individual within 10 Holiday v. City of Chattanooga No. 98-5619 No. 98-5619 Holiday v. City of Chattanooga 11

A belief that anyone with . . . HIV infection is barred his employment in Chattanooga. See Gilday v. substantially limited in a major life activity is a Mecosta County, 124 F.3d 760, 765-66 (6th Cir. 1997) conclusion about the effects of the impairment and only (holding that the fact that an ADA plaintiff currently holds a secondarily about the particular employee. An employer position similar to the one from which he was previously with such a belief is failing to make an individualized terminated constitutes sufficient evidence to create a factual determination, as the ADA requires, and thus acts at its question as to whether the plaintiff was qualified to perform peril. If an employer believes that a perceived disability the essential functions of the job). inherently precludes successful performance of the essential functions of a job, with or without In short, Dr. Dowlen’s recommendation, in addition to accommodation, the employer must be correct about the being unsupported by any concrete medical findings, is also affected employee's ability to perform the job in order to at odds with the objective evidence on record. These facts -- avoid liability; there is no defense of reasonable mistake. which could have been ascertained by Dr. Dowlen at the time Any other outcome would defeat the ADA's attempt to of the physical -- suggest that, despite his HIV status, Holiday eradicate what may be deeply rooted and seemingly was in fact physically able to withstand the rigors of police rational presumptions about the abilities of the disabled. work. We agree with Holiday that, under these circumstances, Dr. Dowlen’s report at most creates a question of fact as to Taylor v. Pathmark Stores, Inc., 177 F.3d 180, 193 (3d Cir. whether Holiday was qualified to perform the essential 1999); see id. at 192 (noting that, “under the ADA, it is the functions of the position of police officer. employer’s burden to educate itself about the varying nature of impairment and to make individualized determinations C. about affected employees”). The district court thus erred in holding that the City had the Holiday has also adduced significant evidence that, despite right to rely on Dr. Dowlen’s unsubstantiated and cursory his HIV seropositivity, he was in fact qualified to perform as medical opinion, and in treating the physician’s opinion as a Chattanooga police officer -- including the performance of having settled the question of whether Holiday was qualified strenuous activity that may be necessary in police work. for the job. Employers do not escape their legal obligations Notably, Holiday passed the physical agility test administered under the ADA by contracting out certain hiring and as part of the application process, which included various personnel functions to third parties. The ADA expressly tests of strength and endurance such as running, jumping prohibits employers from “participating in a contractual or hurdles, completing an obstacle course and carrying heavy other arrangement that has the effect of subjecting a covered weights. It is also important that during the time frame that entity’s qualified applicant or employee to . . . Holiday may have been HIV positive, he had served as a discrimination.” 42 U.S.C. § 12112(b)(2); see Piquard v. City police officer without any limitations on his ability to fulfill of East Peoria, 887 F. Supp. 1106, 1124 (C.D. Ill. 1995) the job requirements. Holiday had performed the very (stating that “[s]ection 12112(b)(2) was . . . intended to functions that Dr. Dowlen deemed him unable to perform. prohibit an entity from doing through a contractual Moreover, the record reflects that, after being rejected by the relationship what it may not do directly”). Moreover, the City, Holiday successfully passed a physical examination ADA’s prohibitions against employment discrimination required to serve as a police officer for the Tennessee Capitol expressly extend to medical examinations and inquiries. See Police, presumably in satisfaction of TENN. CODE. ANN. § 38- 42 U.S.C. § 12112(d)(1). Towards this end, the regulations 8-106(7) -- the very statute which, the City now claims, promulgated under the ADA provide that “[t]he results of