                                                              United States Court of Appeals
                                                                       Fifth Circuit
                                                                    F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                                                                     June 10, 2005
                          FOR THE FIFTH CIRCUIT
                                                                Charles R. Fulbruge III
                                                                        Clerk

                               No. 04-20335



     KIM R. TULLOS,


                                               Plaintiff-Appellee,


           versus


     THE CITY OF NASSAU BAY; ET AL,


                                               Defendants,


     THE CITY OF NASSAU BAY,


                                               Defendant-Appellant.




            Appeal from the United States District Court
                 for the Southern District of Texas



Before GARWOOD, BENAVIDES, and STEWART, Circuit Judges.

PER CURIAM:*

     The City of Nassau Bay, Texas (the City) appeals the judgment

entered upon a jury verdict finding that police officer Kim Tullos



     *
       Pursuant to 5TH CIR. R. 47.5 the Court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
(Tullos) was a qualified individual under the Americans With

Disabilities Act (ADA) who was terminated from his position because

he was perceived to be disabled.         We affirm.

                      Facts and Proceedings Below

       Tullos became a police officer with the City in 1995.                  He

began his career as a peace officer in 1969, and had worked for

various employers in east Texas, including police and sheriff’s

departments, county constable and park police departments, and the

Department of Veterans Affairs (VA).             In 1994, Tullos had been

diagnosed with post-traumatic stress disorder (PTSD) stemming from

combat tours in Vietnam between 1965 and 1969.         He had never failed

any psychological     exam   assessing    his    fitness    to   be   a    police

officer,   however,   including   the     exam   required    when     he   began

employment with the City.

       In March of 2000 Tullos was called to a scene where a woman

had    reportedly   shot   herself   in    the    chest.         Tullos    tried

unsuccessfully to help revive the victim, whom he had previously

met.    About three months later, Tullos began having nightmares

involving the suicide victim, and felt that his “anger level was

up.”   On November 15, 2000 he went to see a local psychologist, Dr.

George Dempsey (Dempsey), in order to find out why he was having

nightmares.    Tullos testified that his first visit with Dempsey

took no more than about thirty minutes, and that during this visit

Dempsey told him to take some time off from work for further



                                     2
testing.    When Tullos asked Dempsey for a letter to justify his

taking sick leave, Dempsey instead encouraged Tullos to give him

permission to talk to the police chief, Ron Wrobleski (Wrobleski),

about Tullos’s condition.        Tullos agreed to this.     After leaving

Dempsey’s    office,    Tullos     went     to   his   scheduled   firearm

qualification test, which he passed.         He saw his supervisor, Sgt.

Anderson, at the firing range, and told Anderson that he would be

on leave and that Dempsey would explain to Wrobleski.

     A day or two later, Wrobleski called Tullos and told him to

come to Wrobleski’s office with his badge. Wrobleski handed Tullos

a memorandum purporting to relate a telephone conversation between

Wrobleski and Dempsey, and informing Tullos that he was thereby

relieved    of   all   law    enforcement    authority   and   placed   on

administrative leave.        The memorandum indicated that Dempsey had

determined that Tullos was depressed and suffering from PTSD, and

that he additionally had “an impulse control disability coupled

with a rage disorder.”         The memorandum further stated “that in

[Dempsey’s] professional opinion, these conditions coupled with the

PTSD are rendering you in a condition in which, under certain

situations or stimulation, your behavior would become unpredictable

and pose a real danger to yourself or potentially those you were

dealing with.”    Stating that “[a]t the present time, Dr. Dempsey

has determined that your mental and psychological conditions are

not conducive to your active and daily performance of the duties of

a police officer,” the memorandum then states that Tullos was being

                                     3
placed on non-disciplinary administrative leave.               The leave is

described as “continu[ing] until such time that a prognosis is

reached confirming your fitness and suitability to return to work

in the field of law enforcement.”1

     1
      The memorandum, dated November 17, 2000, reads as follows:
        “On Wednesday, November 15, 2000 at approximately 4:35 p.m., I
  received a telephone call from Sergeant Tim Anderson of the Nassau Bay
  Police Department. Sergeant Anderson stated that he had been contacted by
  you at which time you informed him of the following:
        •     That on your own [you] had visited a Dr. George Dempsey, known
              to be a local licensed psychologist, for a personal problem;
        •     That Dr. Dempsey had instructed you to go home and not perform
              any law enforcement duties until further notice or
              authorization from him; and,
        •     That if the department required any further information that
              we were to call Dr. Dempsey.
        At 3:20 p.m. on Thursday, November 16, 2000, I called Dr. Dempsey at
  his office at which time he related the following:
        •     That he had examined you during which time you signed a
              medical release form permitting him to discuss the nature of
              your visit and his findings with your employer;
        •     That following his examination, he instructed you to go home
              and not perform any law enforcement duties because of the
              following determinations:
              •     That you are depressed and currently suffering from a
                    condition known as Post Traumatic Stress Disorder
                    (PTSD);
              •     That you have been undergoing treatment for PTSD through
                    the Veterans Administration Hospital in Houston, Texas
                    and that this treatment has included the use of
                    psychotherapeutic medication;
              •     That in addition to the above, that he has also
                    diagnosed you as having an impulse control disability
                    coupled with a rage disorder; and,
              •     That in his professional opinion these conditions
                    coupled with the PTSD are rendering you in a condition
                    in which, under certain situations or stimulation, your
                    behavior would become unpredictable and pose a real
                    danger to yourself or potentially those you were dealing
                    with.
        The rules and regulations of the Nassau Bay Police Department and
  those of the Texas Commission on Law Enforcement Officers Standards and
  Education (TCLEOSE) require that police officers have and maintain certain
  psychological and mental fitness levels as determined by a licensed
  psychiatrist or psychologist.     At the present time, Dr. Dempsey has
  determined that your mental and psychological conditions are not conducive
  to your active and daily performance of the duties of a police officer.
  Therefore, in accordance with Chapter 2, Section 9, paragraph ‘C’ of the
  Nassau Bay Police Department rules and regulations manual, I am placing
  you on non-disciplinary Administrative Sick Leave with pay. This action
  is effective immediately and temporary in nature but will continue until

                                      4
     At      Wrobleski’s   instruction,    Tullos    read    and   signed   the

memorandum and turned in his badge. Tullos later testified that he

was surprised by the discussion in the memorandum of impulse

control and rage disorders, because Dempsey had not mentioned these

to him.      However, he did not inform Wrobleski of any dispute with

the contents of the memorandum.

     Over the next few weeks, Tullos had weekly visits with Dempsey

and also attended a weekly group therapy session. Tullos testified

that Wrobleski called him “a couple of times” during this period,

and that Tullos could only tell him that Dempsey still had him on

leave and that he was going to therapy.           On December 13, Wrobleski

wrote    a   letter   to   Dempsey   expressing    concern    about   Tullos’s

psychological fitness for being a peace officer, and requesting a

diagnosis and prognosis from Dempsey.2            The letter indicates that


  such time that a prognosis is reached confirming your fitness and
  suitability to return to work in the field of law enforcement.
        During this period of leave, you are hereby relieved of all police
  officer and law enforcement authority as empowered and granted to you by
  virtue of your employment with the City of Nassau Bay Police Department.
  This action is being taken in your best interest and in the interest of
  the city. The city is concerned and views this situation as very serious
  and this action as necessary and prudent for the purposes of protecting
  you and the city from any potential litigation.
        Your signature below merely confirms that you were given a copy of
  this memorandum and an opportunity to discuss its contents with the
  writer.”
     2
      The December 13, 2000 letter reads as follows:
  “Dear Dr. Dempsey,

  On Thursday, November 16, 2000, I had a conversation with you regarding
  the above named patient. The purpose of this conversation was to confirm
  information forwarded to me by Mr. Tullos concerning his office visit with
  you on Wednesday, November 15, 2000. Mr. Tullos informed me that he had
  given you a verbal release of patient confidentiality to allow you to
  discuss his situation with me.


                                       5
Tullos had advised Wrobleski that he could become a danger to

himself or others.     Although Wrobleski’s November 17 memorandum to

Tullos indicated that he would be kept on administrative leave



  In our November 16 conversation, you confirmed that you had examined Mr.
  Tullos on the previous day and had determined that he was currently
  suffering from a Post Traumatic Stress Disorder [PTSD] coupled or
  compounded by other conditions.

  According to Mr. Tullos, you ordered him to go home, not return to work or
  perform any law enforcement related duties until authorized by you.
  Tullos advised that this immediate action was necessary due to his state
  of depression; increased or elevated PTSD coupled with other conditions
  that might make his behavior unpredictable in certain situations and
  thereby a potential danger to himself or those he may be dealing with.
  You also confirmed this.

  It is my understanding that Mr. Tullos has maintained a routine office
  visit and testing schedule with you since my initial discussion with him.
  Since November 17, Mr. Tullos has been placed on a non-disciplinary
  administrative sick leave with pay from the department, during which time
  he has been instructed to not perform any law enforcement duties until
  released by your office.

  As you may be aware, the Texas Commission on Law Enforcement Officer
  Standards and Education [TCLEOSE] mandates that persons employed as peace
  officers be psychologically evaluated to determine their fitness and
  suitability for the profession. Given your preliminary findings, it is my
  initial belief that Mr. Tullos may currently not be psychologically fit
  for the performance of the duties of a peace officer. It is therefore
  necessary that the City evaluate Mr. Tullos’ future potential and
  suitability for continued employment.

  In order to assist us in making this evaluating, we are requesting that
  you to provide us with the following:

        •     Diagnosis - including current and any pre-existing conditions
              known by you to be present.
        •     Prognosis - please discuss the planned treatment along with
              your assessment of his potential suitability to return to work
              in the field of law enforcement as a police officer.
  Should you have any questions or need clarification about this letter,
  please do not hesitate to call me. Thank you for your prompt attention to
  this request.

  Sincerely,

  Ron Wrobleski
  Chief of Police”

Copies of the letter were sent to the city manager, the human resources
department, and Tullos’s file, but no copy was sent to Tullos.

                                      6
(which did not use up his accumulated sick leave) until a prognosis

was determined, Wrobleski instead put Tullos on sick leave on

December 19, effective December 11.

      On December 26, Dempsey sent a reply to Wrobleski’s letter,

with a copy to Tullos.     By way of prognosis, the reply stated: “Mr.

Tullos’ condition remains severe and likelihood of return to active

police duty is not recommended.           It is my clinical opinion that,

due   to   his   condition,   this   disability     from   police    work      be

permanent.”3

      Tullos testified that Wrobleski called him upon receiving the

Dempsey letter and insisted that Tullos either resign or be fired.

He did not dispute the conclusion of the Dempsey letter with

Wrobleski, however, later testifying that he had been trained in


     3
       The Dempsey letter reads as follows:
  “Dear Chief Wrobleski:

  I am in receipt of your letter dated December 14, 2000 requesting clinical
  diagnosis and prognosis of the above referenced individual. Pursuant to
  that, please find the following pertinent information:
  •     Diagnosis: Post Traumatic Stress Disorder exacerbated by traumatic
        event experienced while on duty April 13, 2000
  •     This diagnosis is clearly pre-existing to post-Viet Nam war issues
        and is well documented in Mr. Tullos’ medical records. It should be
        noted, however, that the work-related event referenced above was a
        clear exacerbation of this condition.
  •     Prognosis: Mr. Tullos’ condition remains severe and likelihood of
        return to active police duty is not recommended. It is my clinical
        opinion that, due to his condition, this disability from police work
        be permanent.

  If further information is necessary, please feel free to contact this
  office.

  Sincerely

  G.L. Dempsey, Ph.D.
  Clinical & Forensic Psychology”


                                      7
the military not to argue with his supervisors.          Before replying to

Wrobleski, Dempsey had told Tullos during one of their visits that

he should give up police work.        Tullos did not dispute this point

with Dempsey, later testifying that “the first thing they teach you

when you go into therapy” is that “you [] don’t argue with your

therapist.”     After receiving Dempsey’s letter, Tullos expressed

concern to Dempsey about possibly being fired, but still did not

dispute Dempsey’s conclusion.

     Sometime during January of 2001 Tullos saw a doctor with the

Trauma Recovery Program at the VA hospital.         Tullos testified that

overcrowding at the VA was such that he could see the VA doctor

only every six to eight weeks for about thirty minutes each time.

Tullos testified that the VA doctor thought that he would be able

to continue working. The VA doctor, Dr. Garza, eventually provided

Tullos with a letter in early February of 2001.          The letter, which

was included     in   the   trial   exhibits,   opines   that   the   suicide

incident exacerbated Tullos’s PTSD, but makes no mention one way or

the other of his fitness for work.        Tullos conceded that he did not

provide this letter to the City or in any way inform the City of

any opinion contrary to the conclusion of Dempsey’s letter.

     On January 30, 2001, Wrobleski sent a Termination Memorandum

to Tullos, in which he terminated Tullos’s position as of January

31, 2001.     After relating his version of the events beginning on

November 15, 2000, Wrobleski concludes in the memorandum that “it

is my belief that you presently do not meet the State’s, nor this

                                      8
department’s standards for psychological and emotional health.

Furthermore, Dr. Dempsey’s diagnosis has led me to conclude that

you may never be in a satisfactory psychological condition to

perform the duties of a peace officer.”4        The memorandum goes on to

     4
      The Termination Memorandum reads:
  “On Wednesday, November 15, 2000 at approximately 4:35 p.m., Sergeant T.L.
  Anderson of the Nassau Bay Police Department contacted me.        Sergeant
  Anderson stated that he had been contacted by [you] earlier that day and
  that you had informed him that you had been to visit a local psychologist
  by the name of Dr. George Dempsey. According to Anderson you had gone to
  Dr. Dempsey because of some personal problems that you were experiencing.
  You later confirmed this during a telephone conversation with me. Sgt.
  Anderson further informed me that you had told him that Dr. Dempsey had
  instructed you to go home and to not return to work until advised by him
  that you could do so. Lastly, Anderson related that you told him that the
  department could call Dr. Dempsey for more information as you had given
  you verbal authorization for him to do so.

  On Thursday, November 16, 2000, around 3:20 p.m. I had the occasion to
  speak with Dr. Dempsey concerning your visit. According to Dr. Dempsey,
  he had examined you and had made the following preliminary diagnosis:
        •     That you were depressed and suffering from a condition known
              as Post Traumatic Stress Disorder (PTSD).
        •     That you had had this condition for some time and previously
              had been receiving treatment at the Veteran’s Administration
              Hospital in Houston, Texas, and that this treatment included
              the use of psychotherapeutic medication.
        •     That in addition to the PTSD condition that you also had an
              impulse control disorder coupled with a rage disorder. Dr.
              Dempsey believed, in his preliminary diagnosis, that these
              conditions, coupled with the PTSD had rendered you in a
              condition in which, under certain situations, conditions or
              stimulation, your behavior would be unpredictable and you
              might pose a real danger to yourself and potentially those you
              were dealing with.

  Following my discussion with Dr. Dempsey, I called you at your residence
  in Nassau Bay at which time you and I had a brief discussion concerning
  this matter. During that conversation, you related to me that you were
  concerned about your condition and worried that you might harm someone if
  you continued to work your daily shift as a police officer. You further
  stated that you had recognized that this condition had been bothering you
  for some time and that based on Dr. Dempsey’s preliminary diagnosis, you
  believed that your law enforcement career was in danger of ending.

  On Friday, Novermber 17, I called you and asked you to come to my office
  to discuss your situation. You arrived at around 3:00 p.m. at which time
  I delivered a prepared memorandum to you, placing you on a non-
  disciplinary Administrative Relief from Duty until further notice.
  Furthermore, because of Dr. Dempsey’s assessment of your impulse control
  and rage condition, I collected your department ID and badge. You and I

                                      9
discussed the memorandum and my action, to which you stated that you fully
understood. You did not voice any objections and stated that you agreed
with my actions. Over the next few days and weeks, you and I had occasion
to talk on several occasions about your progress. On each occasion, you
reported that nothing had changed.

On December 13, 2000, I wrote a letter to Dr. Dempsey asking for a
diagnosis and prognosis of your condition.      On December 27, 2000, I
received a response to my request from Dr. Dempsey.       I noted on Dr.
Dempsey’s response that you were also furnished a copy of this letter. In
Dr. Dempsey’s response, his prognosis of your conditions was that ‘it
remains severe and the return to active police duty is not recommended’.

The duties and responsibilities of a peace officer require the ability to
deal with a myriad of conditions and situations many of which require
clear, unbiased, emotion free decisions. Mental and emotional stability
is paramount to the position of a police officer.         This quality is
supported by the Texas Commission on Law Enforcement Officer Standards and
Education through their minimum standards for peace officer licensing that
mandates that persons desiring to become peace officers must be declared
in writing to be psychologically fit. Section 217.1 (12) of those rules
states that ‘a person desiring to be a peace officer must be examined by
a psychologist who is licensed by the Texas State Board of Examiners of
Psychologists, and that the appointee must be declared in writing by that
professional to be in satisfactory psychological and emotional health to
perform the duties of a peace officer.’

The Nassau Bay Police Department has adopted and incorporated these rules
into [its] department policies and further requires that officers maintain
a condition of satisfactory psychological and emotional health. In light
of Dr. Dempsey’s prognosis of your situation, it is my belief that you
presently do not meet the State’s, nor this department’s standards for
psychological and emotional health. Furthermore, Dr. Dempsey’s diagnosis
has led me to conclude that you may never be in a satisfactory
psychological condition to perform the duties of a police officer.

I must also inform you that as of the last pay period ending January 21,
2001, you have exhausted all accumulated sick leave. In order to satisfy
meeting a minum of 80 hours for payroll purposes, the remaining 49.5 hours
of sick leave, plus 16 hours of compensatory time, plus 32 hours of
accumulated holiday leave, and 1.5 hours of vacation leave were used.
(footnote omitted). As of this time, it will be necessary to debit your
accumulated vacation time in order to provide sufficient hours for payroll
purposes. Because it is apparent that you will not return to work prior
to the balance of your vacation time exhausting, I cannot permit or allow
the continued use of vacation time for your absences.

It is for these reasons that I must inform you that your employment with
the City of Nassau Bay, Police Department is hereby terminated as a result
of being ‘unfit’ for duty, effective at the close of business on
Wednesday, January 31, 2001. I regret that this action must be taken;
however, given the circumstances I am unable to identify any other viable
alternatives.

In accordance with the City of Nassau Bay’s Personnel Policy, employees

                                   10
state that Tullos’s sick leave had been exhausted, that Wrobleski

did not expect him to be able to return to work before his vacation

leave was exhausted, and that Tullos’s employment was therefore

being terminated.

     As required by Texas law, Wrobleski sent a form to the Texas

Commission on Law Enforcement Officer Standards and Education

(TCLEOSE) reporting the termination of Tullos’s employment. In the

portion of the form requiring an “explanation of the circumstances

under   which   the   person   left    the   agency,”   Wrobleski     entered

“Employee terminated after being declared unfit for continued

employment.”    Tullos was sent a copy of the report with a cover

letter informing him that the law allowed him to contact TCLEOSE to

contest or explain the information in the report.               He testified

that he did not do so, however, believing that this would not do

any good.   TCLEOSE apparently terminated Tullos’s certification;

Tullos testified that his subsequent attempt to participate in

continuing education for peace officers was refused.             Tullos also

testified that because of the loss of his certification and the

circumstances of his termination, he had been unable to find



  who feel that they have not been treated equitably and fairly in [matters]
  affecting their employment may file a grievance. In accordance with the
  City’s personnel policy, the City Manager shall supervise and administer
  the grievance process.    A copy of the city’s policy on grievances is
  attached hereto. Lastly, the finance department will be notified to draft
  a final paycheck to include payment for any unused vacation time. Please
  contact Mr. Quick’s office concerning the availability of that check.

  Ronald Wrobleski, Chief of Police”


                                       11
employment, including constable positions and a law enforcement

instructor position at a junior college.

      After completing the Equal Employment Opportunity Commission

(EEOC) charge process, Tullos filed suit against the City and

Wrobleski on March 18, 2002, claiming, among other things, that the

City violated the ADA by terminating Tullos’s employment based on

a perceived disability.5       During a jury trial beginning on January

12, 2004, the City moved for judgment as a matter of law both at

the close of the plaintiff’s evidence and at the close of the

defendant’s evidence.        Both motions were denied, except for a

ruling that punitive damages were unavailable.            On January 20, the

jury returned a verdict for Tullos on the ADA claim, awarding

$166,000 for back pay, lost wages and benefits, and $34,000 for

front pay, future lost wages, and future benefits.             Specifically,

the jury found that Tullos was a qualified individual, that the

City regarded him as disabled, and that the perceived disability

was a motivating factor in the City’s termination of Tullos’s

employment.     The jury further found that the City did not deny

Tullos a reasonable accommodation under the ADA.            The City appeals

the judgment, the denial of its subsequent motion for judgment as

a matter of law or new trial, and the award of attorneys’ fees and

costs to the plaintiff.


      5
        Tullos’s non-ADA claims, including Texas Labor code violations involving
worker’s compensation benefits and an intentional infliction of emotional
distress claim against Wrobleski, were either dismissed on summary judgment or
resolved by the jury in favor of the City, and are not discussed further here.

                                      12
                                Discussion

     The ADA proscribes discrimination with regard to employment

“against a qualified individual with a disability because of the

disability of such individual.”       42 U.S.C. § 12112(a).6      To prevail

on his ADA claim, Tullos had to show that he was qualified to be a

police officer at the time of his termination, and that he was

terminated because of a disability.           Under the EEOC regulations

implementing the ADA, a “disability” includes “being regarded as

having” an “impairment that substantially limits one or more of [an

individual’s] major life activities.”            29 C.F.R. § 1630.2(g).7

Tullos argues that the City regarded him as disabled.

     The City argues that Tullos was not a “qualified individual”

under the ADA, and that even if he was a qualified individual, he

was not regarded as disabled by the City.          We determine that there

was sufficient evidence for a reasonable jury to find that Tullos




     6
       42 U.S.C. § 12112(a) provides:
  “(a) General rule
         No covered entity 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.”


     7
      29 C.F.R. § 1630.2(g) provides:
        “(g) Disability means, with respect to an individual–
        (1) A physical or mental impairment that substantially limits one or
  more of the major life activities of such individual;
        (2) A record of such an impairment; or
        (3) Being regarded as having such an impairment.”



                                     13
was qualified and that the City terminated him because it regarded

him as disabled.         We accordingly affirm.



I.      Standard of Review

        A motion for judgment as a matter of law made after a jury

trial is a challenge to the legal sufficiency of the evidence

supporting the jury’s verdict.            Hiltgen v. Sumball, 47 F.3d 695,

699 (5th Cir. 1995).         This court overturns a jury verdict only if

“there is no legally sufficient evidentiary basis for a reasonable

jury” to arrive at the verdict.                Id. at 699–700; Johnson v.

Louisiana, 369 F.3d 826, 830 (5th Cir. 2004).

II.     Was Tullos a “Qualified Individual” Under the ADA?

        A   “qualified    individual,”    as   defined    in   the   regulations

implementing the ADA, is one “who satisfies the requisite skill,

experience, education and other job-related requirements of the

employment position such individual holds or desires, and who, with

or without reasonable accommodation, can perform the essential

functions of such position.”          29 C.F.R. § 1630.2(m).8        That Tullos

had the required education and experience to serve as a police


        8
         29 C.F.R. § 1630.2(m) provides:
           “(m) Qualified individual with a disability means an individual with
     a disability who satisfies the requisite skill, experience, education and
     other job-related requirements of the employment position such individual
     holds or desires, and who, with or without reasonable accommodation, can
     perform the essential functions of such position.      (See § 1630.3 for
     exceptions to this definition).”

The exceptions in § 1630.3 involve illegal use of drugs, sexual orientation,
sexual behavior disorders, and compulsive gambling, kleptomania, and pyromania.

                                         14
officer is clear.         At the time of his termination, he held the

highest level of certification (“master”) from the TCLEOSE, and he

had been a peace officer for most of the previous thirty years.

      Regarding his ability to perform the essential functions of

the job, Wrobleski testified that Tullos was a satisfactory officer

and that there had been no complaints about his performance, either

before or after the suicide call.                Tullos testified that the

nightmares and anger that he sought Dempsey’s assistance for were

not affecting his job performance.               Tullos had been previously

found psychologically fit to be a police officer, despite the

certifying doctor’s knowledge of his PTSD.            Given that Dempsey did

not testify (in person or by deposition) and was not qualified as

an   expert,   a   jury    could    reasonably    find   that    this   evidence

outweighed Dempsey’s letter.

      The   City   argues    that    even   if    Dempsey’s     evaluation   was

incorrect, the City cannot be liable under the ADA because Tullos’s

doctor told the City that he was not qualified, and Tullos never

expressed any disagreement with his doctor’s opinion. According to

the City, the kind of burden that would be placed on the City of

unilaterally going against medical advice cannot be the intent of

the ADA.    This argument does have some appeal.              For example, the

Sixth Circuit has held that an employee could not be a qualified

individual under the ADA when her doctor had not released her to

return to work, because the employee consequently could not meet



                                       15
basic attendance   requirements   for   her   job.     Gantt   v.   Wilson

Sporting Goods Co., 143 F.3d 1042, 1047 (6th Cir. 1998); see also

Pate v. Baker Tanks Gulf South, Inc., 34 F. Supp. 2d 411, 416 (W.D.

La. 1999).    A requirement that a particular doctor release an

employee for work would likely be too inflexible, in that it would

not account for error or bad faith on the part of the doctor.

Another possibility would be to require that the employee at a

minimum express to his employer disagreement with a doctor’s

opinion, if the opinion is to be discounted in determining that the

employee is qualified under the ADA.

     Such a requirement would be consistent with the emphasis on

employer-employee interaction in interpretations of other aspects

of the ADA.     For example, an employer cannot be liable for

terminating an employee on the basis of behavior that is caused by

a disability if the employer is not told of the disability (unless

the disability has obvious manifestations).          Hedberg v. Indiana

Bell Telephone Co., Inc., 47 F.3d 928, 932–34 (7th Cir. 1995) (“The

ADA does not require clairvoyance.”).     Similarly, for an employer

to be liable under the ADA for failure to accommodate limitations

caused by an employee’s disability, courts have widely held that

the employee must request accommodation from the employer and

participate in an “interactive process” with the employer to arrive

at a suitable accommodation.      See, e.g., Loulseged v. Akzo Nobel

Inc., 178 F.3d 731, 735–36 (5th Cir. 1999); Conneen v. MBNA Am.


                                  16
Bank, N.A., 334 F.3d 318, 329–30 (3d Cir. 2003); Bartee v. Michelin

N. Am., Inc., 374 F.3d 906, 916 (10th Cir. 2004).          But see

Bultemeyer v. Fort Wayne Cmty. Schools, 100 F.3d 1281, 1285–87 (7th

Cir. 1996) (employer may carry higher burden in interactive process

when employee has mental illness).

     We need not, and do not, resolve this issue, however, because

the issue was never properly presented to the trial court.      The

jury was not instructed on the possibility that Tullos could be

unqualified even if he did have the requisite skills and education

and could perform the essential functions of the job, or on any

requirement that Tullos have disputed his doctor’s diagnosis.   The

City cannot claim that the jury instructions were inadequate

because it did not object to the instructions.     Neither did the

City raise in its motions for judgment as a matter of law any

argument that Tullos should be found unqualified even if he could

perform the essential functions of the job because of his failure

to dispute Dempsey’s diagnosis.      Instead, the City consistently

relied on the substance of Dempsey’s letter to argue that Tullos in

fact could not perform the essential functions of the job.      The

City’s argument that Tullos is essentially estopped from claiming

he is qualified because he never disputed his doctor’s conclusion

to the contrary was therefore not presented below and cannot be

considered on appeal.




                                17
      The City also argues that Tullos is blocked by a different

form of estoppel: his receipt of Social Security and VA disability

benefits. It is true that a sworn inconsistent assertion regarding

inability to work made for obtaining disability benefits can negate

an assertion that the plaintiff is “qualified” for the purposes of

an ADA claim, if the contradiction is not sufficiently explained.

Cleveland v. Policy Mgmt. Sys. Corp., 119 S.Ct. 1597, 1603 (1999);

Holtzclaw v. DSC Communications, Corp., 255 F.3d 254, 258 (5th Cir.

2001).   But “pursuit, and receipt, of [Social Security Disability

Insurance] benefits does not automatically estop the recipient from

pursuing an ADA claim.”            Cleveland, 119 S.Ct. at 1600.               To

determine whether Tullos’s receipt of disability benefits renders

him unqualified for purposes of an ADA claim, we would need to

evaluate the specific assertions he made to obtain those benefits,

along with his explanation for any inconsistencies.                 There is no

evidence     in   the     record   before     us   as    to   any    particular

representations made by Tullos in applying for his benefits.

Without evidence of any particular inconsistent assertions that he

may   have   made,   we   cannot   conclude    that     Tullos   could   not   be

considered a qualified individual under the ADA.

      Because there was sufficient evidence for a reasonable jury to

find that Tullos was able to perform the essential functions of his

position, and arguments that he could not be qualified as a matter

of law were either not properly presented below or not sufficiently


                                      18
supported by the record, we cannot vacate the jury’s finding that

Tullos was a qualified individual under the ADA.

III. Was Tullos Regarded as Having a Disability?

        A “disability” is defined by the regulations implementing the

ADA as “(1) [a] physical or mental impairment that substantially

limits one or more of the major life activities of such individual;

(2) [a] record of such an impairment; or (3) [b]eing regarded as

having such an impairment.”         29 C.F.R. § 1630.2(g).       The jury found

Tullos to be disabled under the “regarded as” prong, finding that

the City regarded Tullos as an individual with a disability.                      The

regulations        further    define    “being    regarded     as    having        [a

substantially       limiting]    impairment”     as   either   (1)       having    an

impairment that is not substantially limiting but being treated as

if it is, (2) having an “impairment that substantially limits major

life activities only as a result of the attitudes of others toward

such impairment,” or (3) not having an impairment but being treated

as    having   a   substantially     limiting    impairment.        29    C.F.R.    §

1630.2(l).9        The first of these scenarios appears to be at issue

in this appeal: Tullos contends that Wrobleski incorrectly treated


        9
         29 C.F.R. § 1630.2(l) provides:
           “(l) Is regarded as having such an impairment means:
           (1) Has a physical or mental impairment that does not substantially
     limit major life activities but is treated by a covered entity as
     constituting such limitation;
           (2) Has a physical or mental impairment that substantially limits
     major life activities only as a result of the attitudes of others toward
     such impairment; or
           (3) Has none of the impairments described in paragraph (h)(1) or (2)
     of this section but is treated by a covered entity as having a
     substantially limiting impairment.”

                                        19
his impairment (PTSD) as substantially limiting.10              For Tullos to

prevail, there must be sufficient evidence for a reasonable jury to

conclude that Tullos’s impairment, as Wrobleski perceived it, would

have substantially limited one of Tullos’s major life activities.

McInnis v. Alamo Cmty. Coll. Dist., 207 F.3d 276, 281 (5th Cir.

2000); Deas v. River West, L.P., 152 F.3d 471, 476 (5th Cir. 1998).

      Tullos argues that Wrobleski perceived him as substantially

limited in the major life activity of working.            For this activity,

the EEOC regulations provide that “[t]he term substantially limits

means significantly restricted in the ability to perform either a

class of jobs or a broad range of jobs in various classes as

compared to the average person having comparable training, skills

and abilities.     The inability to perform a single, particular job

does not constitute a substantial limitation in the major life

activity of working.” 29 C.F.R. § 1630.2(j)(3)(i). In determining

whether someone is restricted from performing a “class of jobs,”

the regulations contemplate considering the “number and types of

jobs utilizing similar training, knowledge, skills or abilities” to

the person’s former job, in a reasonably accessible geographical

area, which are also foreclosed to the person because of his


      10
         There does not appear to be any dispute that Tullos’s PTSD is an
impairment, so the third way listed above that one can be regarded as disabled
would not apply. The second scenario, in which the “attitudes of others” cause
an impairment to be substantially limiting, involves an employer’s taking adverse
action against an employee to avoid offending the sensibilities of others, such
as coworkers or customers. See School Bd. of Nassau County v. Arline, 107 S.Ct.
1123, 1128–29 & nn. 9–10 (1987).      Tullos’s termination did not involve the
“attitudes of others” in this manner.

                                       20
impairment.     29 C.F.R. § 1630.2(j)(3)(ii)(B).                    A similar inquiry,

but   for    jobs   not      utilizing      similar     training      and    skills,   is

contemplated for determining whether a person is restricted from a

“broad      range   of       jobs    in    various    classes.”         29    C.F.R.    §

1630.2(j)(3)(ii)(C).                The   Supreme    Court    has    summarized    these

considerations by saying: “If jobs utilizing an individual’s skills

(but perhaps not his or her unique talents) are available, one is

not precluded from a substantial class of jobs.                       Similarly, if a

host of different types of jobs are available, one is not precluded

from a broad range of jobs.”               Sutton v. United Airlines, Inc., 119

S.Ct. 2139, 2151 (1999).

      This circuit has little precedent giving examples of what

constitutes a “class of jobs.”                 We have held that firefighting,

including     being      a    paramedic      required    to    serve     as   a   backup

firefighter, is too narrow a field to constitute a class of jobs.

Bridges v. City of Bossier, 92 F.3d 329, 335–36 (5th Cir. 1996).

Other courts have considered the general area of law enforcement to

constitute a class of jobs.               Williams v. Philadelphia Hous. Auth.

Police Dept., 380 F.3d 751, 764–65 (3d Cir. 2004); McKenzie v.

Dovala, 242 F.3d 967, 971–72 (10th Cir. 2001); Smaw v. Va. Dept. of

State Police, 862 F. Supp. 1469, 1475 (E.D. Va. 1994).                        Though we

indicated in Bridges that the single job of police officer would

not constitute a class, Bridges, 92 F.3d at 335 (citing Daley v.




                                             21
Koch, 892 F.2d 212, 215 (2d Cir. 1989)), we have not ruled on

whether the area of law enforcement overall is a class of jobs.

     The City argues that Tullos was perceived as being limited

only in the one particular job of police officer, and was therefore

not regarded   as   disabled     by   Wrobleski.       There   was   certainly

evidence   before   the   jury   that      Wrobleski   considered    Tullos’s

impairment as disqualifying him for the position of peace officer,

since Wrobleski’s termination memorandum to Tullos emphasized the

mental stability requirements for peace officers and stated his

conclusion that “you may never be in a satisfactory psychological

condition to perform the duties of a peace officer.”            The position

of “peace officer” under Texas law includes, in addition to city

police officers, jobs such as constables, park police, county park

rangers, arson and fire marshal investigators, and investigators

for various state entities such as the commissioner of insurance

and the state board of medical examiners. TEX. CRIM. PROC. CODE ANN.

§ 2.12.    The jury could therefore have reasonably found that

Wrobleski perceived Tullos’s impairment as disqualifying him from

more than just police officer positions.

     There is also evidence that Wrobleski considered Tullos’s

impairment as significantly restricting him from work in the

overall field of law enforcement.          Wrobleski referred in one of his

letters to Tullos’s “fitness and suitability to return to work in

the field of law enforcement.”        When asked at trial whether Tullos



                                      22
could have performed a police dispatcher position, Wrobleski stated

that he “would have been very leery of placing him in that

position.”11      Nowhere in Wrobleski’s letters or testimony does he

describe Tullos’s impairment in terms that limit it to police

officer work.      The jury could have reasonably found that Wrobleski

perceived Tullos’s impairment as significantly restricting him from

employment in the field of law enforcement, which has been found by

other courts to constitute a class of jobs under the regulations

implementing the ADA.

       Even if law enforcement is not considered a class of jobs,

there was evidence that Wrobleski considered Tullos’s impairment as

precluding jobs beyond those in law enforcement.                    Wrobleski’s

letters indicated that he believed Tullos to have impulse control

and    rage     disorders,    and    that    “under   certain    conditions     or

stimulation” he could “pose a real danger” to himself or others.

What    these    conditions    or    stimulations      might    entail   was   not

specified by Wrobleski.             During his trial testimony, Wrobleski

verified that he had concluded that Tullos’s impairment potentially

made him a danger to himself and others.              When then asked what job

such an employee could perform, Wrobleski replied that he had no

idea.   The jury could reasonably infer that Wrobleski’s perception

of Tullos’s impairment precluded essentially any job involving


      11
         Wrobleski explained: “Because of his mental condition and the – the
communications dispatcher, it’s an emergency communications. There’s a stress
level in there and other factors that are present that I don’t think would have
been conducive to his mental and physical condition at that time.”

                                        23
interaction   with   others,     given   that     Wrobleski   deemed   him

potentially “a real danger” to himself or others. These foreclosed

jobs would constitute significant limitation of employment in a

broad range of jobs in various classes.         As Tullos testified, with

“a rage disorder being put on you, you can’t go to work at

McDonalds.”

      There is language in Wrobleski’s termination memorandum noting

the importance of mental stability for police officers and peace

officers, such as “[m]ental and emotional stability is paramount to

the position of a police officer.”       This could suggest a view on

Wrobleski’s part that police officer and peace officer positions

demand a degree of stability not required by other jobs.               Even

assuming that to be the case, however, Wrobleski did not indicate

any belief that Tullos’s degree of stability was at a specific

level below that required for a peace officer but above that

required by other jobs.   There is no indication by Wrobleski that

the   “rage   disorder”    and     potential      unpredictability      and

dangerousness associated with his view of Tullos’s impairment were

somehow limited to police work.     Wrobleski’s testimony that he did

not know what a rage disorder was and that he had not educated

himself on PTSD are also consistent with the jury’s concluding that

he did not have an especially nuanced view of the extent of

Tullos’s impairment.

      In any event, overall, considering the record as a whole,

there was sufficient evidence to support a finding that Wrobleski’s

                                   24
perception of Tullos’s impairment would significantly limit Tullos

from working in either a class of jobs or a broad range of jobs in

various classes.      There was therefore sufficient evidence to

support the jury’s finding that Wrobleski regarded Tullos as

disabled.

                                  Conclusion

     There was sufficient evidence to support the jury’s findings

that Tullos was regarded as disabled and that he was a qualified

individual   under   the   ADA.      Arguments   that   Tullos   cannot   be

qualified as a matter of law were either not properly presented to

the trial court or not sufficiently supported in the record.              We

must therefore AFFIRM the judgment of the district court.

                                   AFFIRMED




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