Louis Holiday v. City of Chattanooga

1
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,
v.
C ITY OF C HATTANOOGA ,
Defendant-Appellee.
;>

1
No. 98-5619
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.

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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

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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 . C ODE 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

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4 Holiday v. City of Chattanooga No. 98-5619
examination. Dr. Dowlen examined Holiday on October 21,
1994, at which time Holiday voluntarily informed the doctor
that he was infected with HIV. Holiday also told Dr. Dowlen
that he had been diagnosed as borderline anemic since he was
in high school. According to Holiday, at the conclusion of the
physical examination, Dr. Dowlen told him that he had
passed.
However, after the physical examination was completed, a
person from Dr. Dowlen’s office telephoned Donna Kelley,
and advised her that Holiday had failed the examination.
Kelley was told that she should obtain a copy of the medical
report and discuss it further with Dr. Dowlen. According to
Kelley, she gathered that Holiday was HIV positive and
suffered from an AIDS-related health problem.
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
No. 98-5619 Holiday v. City of Chattanooga 17
evaluated based on his actual abilities and the relevant
medical evidence, and to be protected from discrimination
founded on fear, ignorance or misconceptions. Holiday has
adduced sufficient evidence from which a jury could conclude
that the City refused to hire him as a police officer because of
its unsubstantiated fears of HIV transmission, despite the
absence of objective medical evidence that he was physically
incapable of performing the essential functions of the
position. Accordingly, the district court erred in granting the
City’s motion for summary judgment.
V.
For the reasons set forth above, we REVERSE the district
court’s grant of summary judgment on behalf of the City.

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16 Holiday v. City of Chattanooga No. 98-5619
4The ADA provides that a disabled individual is not “qualified” for
a specific employment position if he poses a “direct threat” to the health
or safety of others that cannot be eliminated by a reasonable
accommodation. See 42 U.S.C. §§ 12111(3), 12113(b). “The
determination that an individual poses a ‘direct threat’ shall be based on
an individual assessment of the individual’s present ability to safely
perform the essential functions of the job. This assessment shall be based
on a reasonable medical judgment that relies on the most current medical
knowledge and/or on the best available objective evidence.” 29 C.F.R.
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
the potential harm will occur; and (iv) the imminence of the potential
harm. Id.
placed at risk by the officer having a life-threatening
contagious disease include but are not limited to co-
workers, other law enforcement, medical personnel,
suspects and accident victims.
(J.A. at 97-98.) Based on these and similar facts contained in
the record before us, a rational trier of fact could conclude
that the City in fact withdrew its employment offer because of
its fears that Holiday would transmit HIV on the job.
The Supreme Court has observed that “[f]ew aspects of a
handicap give rise to the same level of public fear and
misapprehension as contagiousness.” School Board v. Arline,
480 U.S. 273, 284 (1987). It is for this reason that individuals
with such disabilities are in particular need of statutory
protection; otherwise “they would be vulnerable to
discrimination on the basis of mythology -- precisely the type
of injury Congress sought to prevent.” Id. at 285. The City
concedes on appeal that Holiday posed no direct threat to
health and safety of others, and, apparently, disavows its
earlier assertions to the contrary.4 In our view, however, the
City’s abrupt shift of position in the midst of this litigation
only contributes in creating a question of fact regarding its
true motives in withdrawing the employment offer.
When he applied for a position as a police officer with the
City of Chattanooga, Louis Holiday was entitled to be
No. 98-5619 Holiday v. City of Chattanooga 5
examination. Holiday testified that when he asked why,
Kelley answered that she could not “put other employees and
the public at risk by hiring you.” (J.A. at 173-74.) This
position was subsequently repeated in the City’s answers to
interrogatories during discovery. The City was asked to
“further describe each and every way in which any medical
condition, based upon which Defendant or Dr. Dowlen
disqualified Mr. Holiday from employment with Defendant,
is incompatible with the work requirements” of a police
officer. The City responded that Holiday’s HIV status
rendered him a health and safety threat to others, based on the
possibility of blood-to-blood contact during police work. On
appeal, the City has abandoned its prior assertion that
Holiday’s HIV status rendered him a direct threat to the health
or safety of others, and now claims that his HIV seropositivity
played absolutely no role in its decision to withdraw the
employment offer.
On June 19, 1997, Holiday filed suit in district court
alleging that the City had violated the ADA and the
Rehabilitation Act by refusing to hire him due to his HIV-
positive status. Following discovery, the court granted the
City’s motion for summary judgement. This appeal followed.
II.
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,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law.” FED . R. C IV . P.
56(c). As the party moving for summary judgment, the City
bears the burden of showing the absence of a genuine issue of
material fact as to at least one essential element of Holiday’s
claim. See Celotex Corp. v. Catrett, 477 U.S. 317, 324
(1986). If Holiday, as the non-moving party, presents
evidence from which a jury might return a verdict in his favor,
summary judgment may not be granted. See Anderson v.

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6 Holiday v. City of Chattanooga No. 98-5619
1By statute, ADA standards govern Rehabilitation Act claims of
employment discrimination. See 29 U.S.C. § 794(d); Andrews v. State of
Ohio, 104 F.3d 803, 807 (6th Cir. 1997). As a result, all subsequent
references to the ADA apply with equal force to Holiday’s Rehabilitation
Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). In considering
the City’s motion for summary judgment, we accept
Holiday’s evidence as true and draw all reasonable inferences
in his favor. Id. The facts and inferences drawn therefrom
are thus viewed in the light most favorable to Holiday.
DePiero, 180 F.3d at 776. Ultimately, we must decide
“whether the evidence presents sufficient disagreement to
require submission to a jury or whether it is so one-sided that
one party must prevail as a matter of law.” Terry Barr Sales
Agency, Inc. v. All-Lock Co., 96 F.3d 174, 178 (6th Cir. 1996)
(quoting Anderson, 477 U.S. at 251-52).
III.
The ADA protects employees and job applicants from
discrimination based on their disabilities. The statute
provides that no covered employer “shall discriminate against
a qualified individual with a disability because of the
disability of such individual 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.” 42 U.S.C.
§ 12112(a) (1994). The ADA defines the term “qualified
individual with a disability” as “an individual with a disability
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) (1994).
Accordingly, to prevail on his claim of unlawful
employment discrimination under the ADA and the
Rehabilitation Act, Holiday must demonstrate: (i) that he is
an individual with a disability; (ii) that he is otherwise
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
No. 98-5619 Holiday v. City of Chattanooga 15
3In her subsequent deposition testimony, Kelley claimed that she
could not recall whether she had been told that Holiday was HIV-positive
or at risk for AIDS, but only that he had been identified as suffering from
some sort of “blood disorder.” Nonetheless, she conceded that it was her
understanding from speaking with Dr. Dowlen’s office that Holiday was
not capable of performing as a police officer because he had a life-
threatening, contagious disease.
physically capable of performing the strenuous activity that
police work may require; among other things, Holiday had
served as a police officer in several other Tennessee
jurisdictions, and had successfully completed the City’s own
rigorous physical agility test.
Moreover, although the City on appeal claims that
Holiday’s HIV status was not a factor in its decision to
withdraw the employment offer, Holiday has adduced direct
evidence to the contrary. In her affidavit, Kelley stated that
when she first learned that Holiday had not passed the
physical examination administered by Dr. Dowlen, she was
told that Holiday was HIV-positive and suffered from an
AIDS-related health problem.3 Within hours the City opted
to withdraw its employment offer. Holiday testified that
when he subsequently asked Kelley why the offer had been
withdrawn, she answered that she could not “put other
employees and the public at risk by hiring you.” (J.A. at 173-
74.) The City then repeated this assertion during discovery.
Holiday asked the City to further describe how any medical
condition, based upon which Dr. Dowlen or the City had
disqualified Holiday from employment, was incompatible
with the work requirements of a police officer. The City
responded to an Interrogatory by stating that Holiday’s HIV
status rendered him a health and safety threat to others:
The use of force to subdue suspects and to assist injured
persons are essential job functions as a police officer.
Wrestling, running and striking are common occurrences
in subduing suspects. In such encounters, it is likely that
both the officer and the suspect will be injured, resulting
in the possibility of blood exchange. Persons who are

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14 Holiday v. City of Chattanooga No. 98-5619
fails a physical examination, nothing prevented the City from sending
Holiday back to Dr. Dowlen for further tests or to another licensed
physician for a second opinion. See TENN. CODE A NN. § 38-8-106 (1997)
(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.
Supp. 965, 973 (S.D. Tex. 1996) (holding that bus company
was not entitled to rely on medical report stating that job
applicant had not passed statutorily required physical
examination, where the employer could determine from the
report that the doctor’s opinion was not supported by any
objective medical findings and instead was improperly based
on a perceived disability; under such circumstances, the
employer knew or should have known that its refusal to hire
the applicant “on the basis of [the doctor’s] faulty opinion
was both improper and violative of the ADA”).
Accordingly, we conclude that summary judgment was
improper because there exists a genuine issue of material fact
as to whether Holiday was “otherwise qualified” to perform
the essential functions of the position of police officer for the
City.
IV.
We next consider whether Holiday had presented sufficient
evidence that his employment offer was withdrawn “because
of” his disability so as to survive summary judgment. We
believe that he has. While the City asserts that Holiday was
not hired for the non-discriminatory reason that he did not
fulfill the statutory requirements, Holiday has set forth
sufficient evidence from which a jury could conclude that this
proffered reason is mere pretext. As discussed in more detail
above, the absence of any objective medical and scientific
support for Dr. Dowlen’s opinion casts doubt on the City’s
purported reliance on the physician’s report. This is
especially true in light of all of the evidence -- again,
available to the City at the time -- that Holiday was in fact
No. 98-5619 Holiday v. City of Chattanooga 7
Act claim.
42 U.S.C. § 12112(a); 29 U.S.C. § 794; Monette v. Electronic
Data Sys. Corp., 90 F.3d 1173, 1178 (6th Cir. 1996). The
City concedes that as an HIV-positive individual, Holiday has
a statutory disability. However, the City argues that Holiday
cannot prove the remaining elements of his claim. The City
maintains that it withdrew its conditional offer only because
Holiday did not fulfill an essential requirement of the
position: that he pass the physical examination mandated by
state law. As a result, the City claims that Holiday was not
“otherwise qualified” for the position; and that the offer was
withdrawn not because of any disability, but because Holiday
did not fulfill the statutory requirements.
The district court agreed with the City’s contentions,
holding that Holiday had not shown that he was “otherwise
qualified” to perform the essential functions of the job of
police officer because he had not passed the physical
examination required by state statute. The court below stated:
“The City had a right to reasonably rely on Dr. Dowlen’s
expert medical opinion when the City made the decision to
withdraw its conditional offer of employment to Holiday.”
(J.A. at 287.) We disagree. We hold instead that the district
court erred in accepting Dr. Dowlen’s report as dispositive
evidence of Holiday’s alleged inability to serve as a police
officer, where (i) there is no indication that the physician
conducted the individualized inquiry mandated by the ADA,
and (ii) Holiday has adduced sufficient evidence to raise an
issue of fact as to whether he is otherwise qualified to perform
as a police officer.
A.
“‘The thesis of the [ADA] is simply this: That people with
disabilities ought to be judged on the basis of their abilities;
they should not be judged nor discriminated against based on
unfounded fear, prejudice, ignorance, or mythologies; people
ought to be judged on the relevant medical evidence and the

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8 Holiday v. City of Chattanooga No. 98-5619
abilities they have.’” Smith v. Chrysler Corp., 155 F.3d 799,
805 (6th Cir. 1998) (quoting 136 Cong. Rec. S 7422-03, 7347
(daily ed. June 6, 1990) (statement of Sen. Harkin)) (alteration
in original). The ADA thus serves to “prohibit employers
from making adverse employment decisions based on
stereotypes and generalizations associated with the
individual’s disability rather than on the individual’s actual
characteristics.” EEOC v. Prevo’s Family Mkt., Inc., 135
F.3d 1089, 1097 (6th Cir. 1998) (holding that an employer
may require an HIV test for a food-handling employee who
works with knives as part of an individualized inquiry into the
existence of a health or safety risk).
The ADA mandates an individualized inquiry in
determining whether an employee’s disability or other
condition disqualifies him from a particular position. In order
to properly evaluate a job applicant on the basis of his
personal characteristics, the employer must conduct an
individualized inquiry into the individual’s actual medical
condition, and the impact, if any, the condition might have on
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
Cir.) (conducting an individualized inquiry into the plaintiff’s
specific situation to determine whether HIV-positive surgical
technician was otherwise qualified for his position despite his
medical condition), cert. denied, 119 S. Ct. 51 (1998); Wilson
v. Chrysler Corp., 172 F.3d 500, 505 (7th Cir. 1999) (stating
that “the ADA requires an individualized inquiry into the
ability of the employee to perform a particular job”). Indeed,
the Supreme Court in a recent triad of cases has again made
clear that such an individualized determination -- one which
focuses on the medical condition’s actual effect on the
specific plaintiff -- lies at the heart of the ADA. See Sutton v.
United Air Lines, Inc., 119 S. Ct. 2139, 2147 (1999) (holding
that mitigating or corrective measures must be taken into
account in judging whether an individual possesses a
disability because doing otherwise would “run[] directly
counter to the individualized inquiry mandated by the ADA”);
Murphy v. United Parcel Serv., Inc., 119 S. Ct. 2133 (1999)
(holding that a truck driver with high blood pressure did not
No. 98-5619 Holiday v. City of Chattanooga 13
2Notably, the City does not contend that Dr. Dowlen’s
recommendation was final under Tennessee law. Although the City has
stated that it does not normally seek second opinions after an applicant
the meaning of the Rehabilitation Act, and filed judgment on
behalf of the TVA following a bench trial. The lower court
explained:
[The TVA was] entitled to rely upon the letter of
plaintiff’s treating physician in determining that the
plaintiff was not capable of returning to work. The court
also finds that the report was detailed and lengthy and
that [the TVA] had no duty to inquire further of
[plaintiff’s private physician] with regard to plaintiff’s
ability to return to work.
Id. at 441. On appeal, we upheld the district court’s finding
that the plaintiff was not a qualified handicapped person
within the meaning of the Rehabilitation Act. Noting the
thoroughness of the private psychiatrist’s report, we agreed
that the TVA was entitled to terminate the plaintiff because it
reasonably believed, based primarily on the medical report,
that it could not accommodate the plaintiff’s psychological
condition. Id. at 442.
This case presents a very different set of facts. Dr.
Dowlen’s “report” consists of two scribbled lines at the
bottom of a boilerplate evaluation form. While the
psychiatrist in Pesterfield clearly made an individualized
determination as to the plaintiff’s medical condition and its
effect on his ability to fulfill his job requirements, there is no
indication that Dr. Dowlen did anything of the sort.
Moreover, the record is replete with factual evidence
available to the City at the time -- particularly Holiday’s
successful performance of police jobs that Dr. Dowlen
claimed he was unqualified to do -- that flatly contradicted
Dr. Dowlen’s unsubstantiated conclusion. Under these facts,
the City was not entitled to simply rely on the physician’s
recommendation as the basis for withdrawing its employment
offer to Holiday.2 See, e.g., EEOC v. Texas Bus Lines, 923 F.

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12 Holiday v. City of Chattanooga No. 98-5619
such [medical] examination shall not be used for any purpose
inconsistent with [the ADA].” 29 C.F.R. 1630.14(b)(2).
Courts need not defer to an individual doctor’s opinion that
is neither based on the individualized inquiry mandated by the
ADA nor supported by objective scientific and medical
evidence. The Supreme Court has expressly rejected the
notion “that an individual physician’s state of mind could
excuse discrimination without regard to the objective
reasonableness of his actions.” Bragdon v. Abbott, 524 U.S.
624, 118 S. Ct. 2196, 2210 (1998) (holding that an individual
doctor’s unsupported belief that a patient’s HIV status
rendered her a health risk was not dispositive under the
ADA). Instead, “courts should assess the objective
reasonableness of the views of health care professionals
without deferring to their individual judgments.” Id.; see,
e.g., Estate of Mauro, 137 F.3d 398 (upholding hospital’s
conclusion that continued employment of HIV-positive
surgical technician would pose a direct threat to the health of
others only after concluding that objective medical and
scientific evidence supported the hospital’s decision); Doe v.
District of Columbia, 796 F. Supp. 559 (D.D.C. 1992)
(holding that fire department violated the Rehabilitation Act
when it withdrew its offer of employment based on the
applicant’s HIV status, where the department doctor’s opinion
that HIV status impeded the applicant’s ability to perform as
a firefighter was contradicted by objective medical evidence
concerning the applicant’s physical condition and by the
testimony of other health care professionals).
This Court’s decision in Pesterfield v. Tennessee Valley
Authority, 941 F.2d 437 (6th Cir. 1991), is instructive. There,
an employee sued the TVA for its refusal to clear him as
medically able to return to work following hospitalization for
psychiatric treatment. The TVA had based its decision in
large part on a detailed recommendation from the employee’s
private psychiatrist, who opined that the employee was unable
to return given his current mental condition. Id. at 438-39.
The district court held that, as a result of his psychological
disability, the employee was not a qualified individual within
No. 98-5619 Holiday v. City of Chattanooga 9
suffer a “disability” under the ADA where the medication he
took allowed him to perform major life activities without
substantial limitation); Albertson, Inc. v. Kirkinburg, 119 S.
Ct. 2162 (1999) (holding that the ADA imposes a statutory
obligation to determine the existence of disabilities on a case-
by-case basis, based upon the actual effect of the impairment
on the life of the individual in question).
B.
In this case, Holiday has presented sufficient evidence that
would allow a jury to conclude that Dr. Dowlen failed to
undertake the individualized determination that the ADA
requires and instead disqualified Holiday because of his HIV
status -- without any indication that Holiday’s condition
actually impeded his ability to perform as a police officer. Dr.
Dowlen’s medical report explicitly cited Holiday’s
HIV-positive status as support for the physician’s opinion that
he was not fit for police work, and asserted that Holiday
needed further evaluation by his personal physician because
of his condition. When Dr. Dowlen’s office initially informed
Donna Kelley that Holiday had failed the exam, she was told
that Holiday was HIV positive and suffered from an
AIDS-related complex. Significantly, there is no evidence
that Holiday’s HIV had progressed beyond the asymptomatic
stage, or that Holiday actually suffered from any AIDS-related
health problems at the time of his physical examination.
There is also no evidence on the record that Dr. Dowlen
attempted to determine whether Holiday actually experienced
fatigue, sluggishness, shortness of breath or any other
symptom of physical weakness or lack of endurance -- even
after Holiday voluntarily disclosed his HIV status. The
doctor’s complete failure to investigate the physical effects,
if any, of Holiday’s HIV status raises a genuine issue of
material fact as to whether his subsequent opinion was the
product of the ADA-mandated individualized inquiry into
Holiday’s actual condition. As the Third Circuit recently
explained in a related context:

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10 Holiday v. City of Chattanooga No. 98-5619
A belief that anyone with . . . HIV infection is
substantially limited in a major life activity is a
conclusion about the effects of the impairment and only
secondarily about the particular employee. An employer
with such a belief is failing to make an individualized
determination, as the ADA requires, and thus acts at its
peril. If an employer believes that a perceived disability
inherently precludes successful performance of the
essential functions of a job, with or without
accommodation, the employer must be correct about the
affected employee's ability to perform the job in order to
avoid liability; there is no defense of reasonable mistake.
Any other outcome would defeat the ADA's attempt to
eradicate what may be deeply rooted and seemingly
rational presumptions about the abilities of the disabled.
Taylor v. Pathmark Stores, Inc., 177 F.3d 180, 193 (3d Cir.
1999); see id. at 192 (noting that, “under the ADA, it is the
employer’s burden to educate itself about the varying nature
of impairment and to make individualized determinations
about affected employees”).
Holiday has also adduced significant evidence that, despite
his HIV seropositivity, he was in fact qualified to perform as
a Chattanooga police officer -- including the performance of
strenuous activity that may be necessary in police work.
Notably, Holiday passed the physical agility test administered
as part of the application process, which included various
tests of strength and endurance such as running, jumping
hurdles, completing an obstacle course and carrying heavy
weights. It is also important that during the time frame that
Holiday may have been HIV positive, he had served as a
police officer without any limitations on his ability to fulfill
the job requirements. Holiday had performed the very
functions that Dr. Dowlen deemed him unable to perform.
Moreover, the record reflects that, after being rejected by the
City, Holiday successfully passed a physical examination
required to serve as a police officer for the Tennessee Capitol
Police, presumably in satisfaction of TENN . C ODE . ANN . § 38-
8-106(7) -- the very statute which, the City now claims,
No. 98-5619 Holiday v. City of Chattanooga 11
barred his employment in Chattanooga. See Gilday v.
Mecosta County, 124 F.3d 760, 765-66 (6th Cir. 1997)
(holding that the fact that an ADA plaintiff currently holds a
position similar to the one from which he was previously
terminated constitutes sufficient evidence to create a factual
question as to whether the plaintiff was qualified to perform
the essential functions of the job).
In short, Dr. Dowlen’s recommendation, in addition to
being unsupported by any concrete medical findings, is also
at odds with the objective evidence on record. These facts --
which could have been ascertained by Dr. Dowlen at the time
of the physical -- suggest that, despite his HIV status, Holiday
was in fact physically able to withstand the rigors of police
work. We agree with Holiday that, under these circumstances,
Dr. Dowlen’s report at most creates a question of fact as to
whether Holiday was qualified to perform the essential
functions of the position of police officer.
C.
The district court thus erred in holding that the City had the
right to rely on Dr. Dowlen’s unsubstantiated and cursory
medical opinion, and in treating the physician’s opinion as
having settled the question of whether Holiday was qualified
for the job. Employers do not escape their legal obligations
under the ADA by contracting out certain hiring and
personnel functions to third parties. The ADA expressly
prohibits employers from “participating in a contractual or
other arrangement that has the effect of subjecting a covered
entity’s qualified applicant or employee to . . .
discrimination.” 42 U.S.C. § 12112(b)(2); see Piquard v. City
of East Peoria, 887 F. Supp. 1106, 1124 (C.D. Ill. 1995)
(stating that “[s]ection 12112(b)(2) was . . . intended to
prohibit an entity from doing through a contractual
relationship what it may not do directly”). Moreover, the
ADA’s prohibitions against employment discrimination
expressly extend to medical examinations and inquiries. See
42 U.S.C. § 12112(d)(1). Towards this end, the regulations
promulgated under the ADA provide that “[t]he results of

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