        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
