Christopher Gibbs v. CITY OF PITTSBURGH On Appeal from the United States District Court for the Western…

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 20-1414
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CHRISTOPHER GIBBS,
Appellant
v.
CITY OF PITTSBURGH
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On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. No. 2:18-cv-01563)
District Judge: Hon. Joy Flowers Conti
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Argued: January 27, 2021
Before: RESTREPO, BIBAS, and PORTER, Circuit Judges.
(Filed: March 3, 2021)
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Margaret S. Coleman [ARGUED]
Timothy P. O’Brien
Law Offices of Timothy P. O’Brien
535 Smithfield Street, Suite 1025
Pittsburgh, PA 15222
Counsel for Appellant
Yvonne S. Hilton
Julie E. Koren [ARGUED]
Emily C. McNally
City of Pittsburgh Department of Law
414 Grant Street
313 City County Building
Pittsburgh, PA 15219
Counsel for Appellee
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OPINION OF THE COURT
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BIBAS, Circuit Judge.
Governments have a right to ensure that their policemen are
mentally fit. But they may not use psychological testing as a
cover to discriminate.
Christopher Gibbs alleges that Pittsburgh did just that.
When he applied for a job as a policeman, two psychologists
who screened him recommended not hiring him. Gibbs has
ADHD, and he claims that they rejected him because of that,

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even though it is under control. Although he has a history of
youthful misbehavior, he adds that the city hired other police-
men with similar histories who did not have ADHD.
With those allegations, Gibbs has plausibly alleged that the
psychologists discriminated against him. If he is right, Pitts-
burgh is liable for relying on them. And the city cannot dodge
liability by labeling the psychologists’ approval as a job quali-
fication. Because Gibbs has plausibly stated claims for disabil-
ity discrimination, we will reverse the District Court’s dismis-
sal.
I. BACKGROUND
Gibbs applied to be a Pittsburgh policeman. He aced the
written test and got a conditional job offer. After that, he had
to “[b]e personally examined by a Pennsylvania licensed psy-
chologist and found to be psychologically capable [of] exer-
cis[ing] appropriate judgment or restraint in performing the du-
ties of a police officer.” 37 Pa. Code § 203.11(a)(7). But of the
three psychologists who interviewed him, two said he was unfit
to serve. So he never got the final offer.
Gibbs alleges that the psychologists were biased. He claims
that once they learned of his ADHD diagnosis, they reflexively
rejected him. Yet they never explored whether his ADHD
would interfere with the job. If they had, he says, they would
have learned that his ADHD was under control: Five other po-
lice departments have found him mentally fit and hired him.
He has never misbehaved as a police officer or as a Marine.
And he passed a written test that he claims was “the best

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available objective psychological assessment of [his] mental
health.” App. 94.
Gibbs misbehaved as a child, before he was treated for
ADHD. But he claims that Pittsburgh hired other applicants
with similar childhood issues not caused by ADHD. So he be-
lieves he was denied the job based on anti-ADHD bias.
Gibbs sued Pittsburgh under the Americans with Disabili-
ties Act (ADA) and the Rehabilitation Act. The District Court
granted Pittsburgh’s motion to dismiss. It held that he was not
qualified to be a Pittsburgh policeman because “[p]assing [the
psychological test] was a ‘prerequisite,’ regardless of how able
Gibbs was to perform the essential functions of the job.” Gibbs
v. City of Pittsburgh, No. 18-1563, 2019 WL 1978431, at *4
(W.D. Pa. May 3, 2019). The court suggested that he “might
be able to state a viable claim” by pleading “bias in the statu-
torily-required psychological examination.” Id. But he had not
done that, it ruled; he had alleged only that the “psychologists,
not the City,” were biased. Id.
Gibbs now appeals. We review the District Court’s dismis-
sal de novo. Fowler v. UPMC Shadyside, 578 F.3d 203, 206
(3d Cir. 2009).
II. GIBBS STATED VALID DISCRIMINATION CLAIMS
The “substantive standards for determining liability [under
the ADA and Rehabilitation Act] are the same.” McDonald v.
Pa. Dep’t of Pub. Welfare, Polk Ctr., 62 F.3d 92, 95 (3d Cir.
1995). So we analyze Gibbs’s claims together.

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For either claim, Gibbs must plausibly allege three ele-
ments: that he was disabled, was qualified for the job, and suf-
fered discrimination because of his disability. Sulima v. Toby-
hanna Army Depot, 602 F.3d 177, 185 (3d Cir. 2010). He has
plausibly alleged all three.
A. Gibbs plausibly alleged that he was disabled
The ADA and Rehabilitation Act protect a job applicant not
only if he is mentally impaired, but also if an employer wrongly
“regard[s]” him as impaired. 42 U.S.C. § 12102(1)(C). The test
is whether the employer “perceived” him as impaired,
“whether or not the [perceived] impairment limits or is per-
ceived to limit a major life activity.” § 12102(3)(A). Although
Gibbs’s ADHD was under control, the psychologists allegedly
thought it was a handicap and fixated on it in rejecting him. So
he has plausibly alleged that they regarded him as disabled.
B. Gibbs plausibly alleged that he was qualified
Gibbs claims that he was qualified to be a policeman be-
cause five other police departments hired him, and even Pitts-
burgh made him a conditional job offer. Pittsburgh responds
that Gibbs lacked one qualification: passing the psychological
test.
That response misses the point. Gibbs claims that he failed
the test because the psychologists were biased. When a plain-
tiff claims that job criteria were applied in a discriminatory
way, of course he does not need to satisfy those criteria to bring
a discrimination claim. He need show only that he was quali-
fied based on all the other, nondiscriminatory criteria. See
§ 12112(b)(6) (banning the use of discriminatory job

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qualifications unless they are job-related and necessary for the
business); Prewitt v. U.S. Postal Serv., 662 F.2d 292, 306 (5th
Cir. Unit A Nov. 1981). Gibbs claims that he would have been
hired but for failing the allegedly biased test. So he has plausi-
bly claimed that he was qualified.
In finding Gibbs unqualified, the District Court relied on
Cook v. City of Philadelphia, 649 F. App’x 174 (3d Cir. 2016).
Cook is not precedential, and it does not help Pittsburgh. In
Cook, we reasoned that a psychological test for police officers
was a valid qualification, but only after the plaintiff had
pointed to no “facts that would support a claim of bias.” Id. at
177. Yet here, Gibbs alleges bias.
To be sure, we will not excuse a plaintiff from missing qual-
ifications just because he says they were discriminatory. He
must plausibly allege (and later prove) that they were. We now
turn to that third element.
C. Gibbs plausibly alleged that he suffered
discrimination
To plausibly allege discrimination, Gibbs does not have to
have detailed evidence. For now, he need only give Pittsburgh
fair notice of his claim and “raise the reasonable expectation
that discovery will uncover evidence of discriminatory mo-
tive.” Martinez v. UPMC Susquehanna, 986 F.3d 261, 267 (3d
Cir. 2021) (internal quotation marks omitted); accord Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007).
Gibbs has done that. He claims that once the psychologists
learned that he had ADHD, they fixated on his childhood mis-
behavior without considering whether it was currently under

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control. He also claims that his ADHD was under control and
that five other police departments thought so. And he claims
that Pittsburgh hired other policemen who had likewise misbe-
haved as children but did not have ADHD. He has thus ex-
plained why he thinks he suffered discrimination. If his allega-
tions are true, there is a reasonable chance that discovery will
unearth more evidence of it. So he has plausibly stated a claim.
The District Court thought that Gibbs had to allege that
Pittsburgh itself was biased, not just the psychologists that it
had hired. But at oral argument, Pittsburgh disavowed that rea-
soning. We reject it too. Under the ADA, discrimination in-
cludes “participating in a contractual or other arrangement or
relationship that has the effect of subjecting a . . . qualified ap-
plicant . . . to . . . discrimination.” § 12112(b)(2). Thus, “[a]n em-
ployer cannot evade its obligations under the ADA by contract-
ing out personnel functions to third parties.” Gillen v. Fallon
Ambulance Serv., Inc., 283 F.3d 11, 31 (1st Cir. 2002). That
includes “us[ing] a preemployment examination as conclusive
proof of an applicant’s [mental] capabilities.” Id. So if the psy-
chologists discriminated against Gibbs, Pittsburgh would be li-
able for relying on them.
The District Court also said that state law required Pitts-
burgh to screen out Gibbs. The parties debate whether that is
true, but it makes no difference. Under the Supremacy Clause,
an employer may not shield itself from federal antidiscrimina-
tion liability just by saying that it was trying to follow state
law. EEOC v. Allegheny Cty., 705 F.2d 679, 682 (3d Cir.
1983). “[T]he demands of the federal Rehabilitation Act [or
ADA] do not yield to state laws that discriminate against the

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disabled; it works the other way around.” Barber ex rel. Barber
v. Colo. Dep’t of Revenue, 562 F.3d 1222, 1234 (10th Cir.
2009) (Gorsuch, J., concurring). As Pittsburgh thus conceded
at argument, its trying to follow Pennsylvania law would not
be a defense.
* * * * *
Pittsburgh objects that its psychologists did not discrimi-
nate against Gibbs. That may be so. But Gibbs has plausibly
alleged that they did, and he deserves a chance to prove it. We
will reverse the District Court’s dismissal and remand to allow
discovery.

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