     Case: 14-31161   Document: 00513152442     Page: 1   Date Filed: 08/13/2015




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT     United States Court of Appeals
                                                    Fifth Circuit

                                                                        FILED
                                                                    August 13, 2015
                                 No. 14-31161
                                                                     Lyle W. Cayce
                                                                          Clerk

FRED TAYLOR; VICKIE WILLIAMS; JESSICA WALKER; MICHAEL
CARTER,

             Plaintiffs - Appellants

v.

CITY OF SHREVEPORT; WILLIE L. SHAW, JR., Individually and in his
official capacity as Chief of Police; DUANE HUDDLESTON, Individually and
in his official capacity as Deputy Chief of Police; DAVID KENT, Individually
and in his official capacity as Assistant Chief of Police; DEBBIE
STRICKLAND, Individually and in her official capacity as Captain of
Shreveport Police Dept.,

             Defendants - Appellees




                Appeal from the United States District Court
                   for the Western District of Louisiana
                          USDC No. 5:13-CV-2227


Before JOLLY, HIGGINBOTHAM, and DAVIS, Circuit Judges.
W. EUGENE DAVIS, Circuit Judge:
      Plaintiffs-Appellants are police officers employed by the City of
Shreveport (the “City”). The City’s police department (the “Department”)
recently adopted a new sick leave policy entitled “SPD 301.06.” Plaintiffs
challenge SPD 301.06 on numerous statutory and constitutional grounds. They
seek declaratory and injunctive relief, damages, fees, and costs.
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                                       No. 14-31161
        The district court dismissed Plaintiffs’ suit in its entirety pursuant to
Federal Rule of Civil Procedure 12(b)(6). We affirm in part, vacate in part, and
remand for further proceedings.


                                              I.
        “We review de novo the district court’s decision to dismiss a complaint
under Federal Rule of Civil Procedure 12(b)(6), accepting as true the well-
pleaded factual allegations in the complaint.” 1 “To survive a Rule 12(b)(6)
motion to dismiss, the complaint ‘does not need detailed factual allegations,’
but it must provide the plaintiff’s grounds for entitlement to relief – including
factual allegations that, when assumed to be true, ‘raise a right to relief above
the speculative level.’” 2 We may affirm a district court’s order dismissing a
claim under Rule 12(b)(6) “on any basis supported by the record.” 3
        Defendants have attached copies of SPD 301.06 and its associated forms
to their motion to dismiss. We may consider these documents when reviewing
the district court’s order. 4


                                             II.
        We begin with Plaintiffs’ facial challenges to SPD 301.06 under federal
law.




        1N. Cypress Med. Ctr. Operating Co. v. Cigna Healthcare, 781 F.3d 182, 191 (5th Cir.
2015) (internal quotation marks and citations omitted).
       2 Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
       3 Asadi v. G.E. Energy (USA), L.L.C., 720 F.3d 620, 622 (5th Cir. 2013) (citing Torch

Liquidating Trust ex rel. Bridge Assocs. v. Stockstill, 561 F.3d 377, 384 (5th Cir. 2009)).
       4 See Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000) (holding

that a court may consider “[d]ocuments that a defendant attaches to a motion to dismiss . . .
if they are referred to in the plaintiff’s complaint and are central to her claim” (quoting
Venture Assocs. Corp. v. Zenith Data Sys. Corp., 987 F.2d 429, 431 (7th Cir. 1993))).
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                                               A.
       Plaintiffs first challenge SPD 301.06’s home confinement provisions. The
policy provides that an officer on sick leave must generally remain at his or her
residence for the entire sick leave period. However, the officer may leave his or
her home to (1) vote; (2) participate in religious activities; (3) obtain
medication; (4) undergo medical care, rehabilitative or therapeutic exercise, or
other therapeutic activities; and (5) obtain food or meals. The officer need not
first obtain permission to engage in any of these enumerated activities.
       Plaintiffs assert that the home confinement provisions violate their
rights to travel and associate with others under the Substantive Due Process
clause of the United States Constitution.
       A “police department, as a paramilitary organization, must be given
considerably more latitude in its decisions regarding discipline and personnel
management than the ordinary government employer.” 5 As a result, “the Police
Department’s sick leave regulations must be reviewed deferentially.” 6 We will
reverse on this issue only if “the regulations bear no rational relationship to a
legitimate state interest.” 7
       SPD 301.06’s home confinement provisions rationally serve the
Department’s legitimate interests in safety and morale “by expediting the
recovery of sick officers, minimizing the burden on officers who may have to
work longer hours while other officers are out sick, and assuring that officers
on sick leave are not malingering and that the sick leave policy is not abused.” 8
Importantly, the restrictions about which Plaintiffs complain “are not



       5  Crain v. Bd. of Police Comm’rs of the Metro. Police Dep’t of the City of St. Louis, 920
F.2d 1402, 1409 (8th Cir. 1990) (citing Hughes v. Whitmer, 714 F.2d 1407, 1419 (8th Cir.
1983)).
        6 Id. at 1406.
        7 Id.
        8 Id. at 1409 (citing Hughes, 714 F.2d at 1419).

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                                       No. 14-31161
restrictions of their rights at all times, but rather are limitations placed on
their activities only when officers represent that they are too ill to report to
duty.” 9 “It is reasonable, after all, to expect that an employee too ill to work is
too ill to be going about other matters outside the home, even beyond the hours
of nine to five.” 10 Importantly,
       [t]he sick leave regulations in no way limit appellants as to whom
       they may associate with in their homes when ill. Neither do the
       regulations restrict the frequency or duration of the visits
       appellants may have in their homes with family and friends while
       on sick leave. The prohibition on outside-the-home visits to family
       and friends while on sick leave is entirely reasonable and not
       unduly restrictive. Similarly, it is unquestionably rational for the
       [Department] to limit [Plaintiffs’] ability to travel when on sick
       leave. 11

       Plaintiffs also argue that the home restriction provisions are
unconstitutional because they give government officials too much discretion to
decide whether and when an ill or injured officer may leave his or her house. 12
We reject this argument as well. When a home confinement provision in a sick
leave policy contains readily available and well-defined exceptions, the fact
that the policy “leaves certain small decisions to the employer’s discretion” will
not render the policy unconstitutional. 13 SPD 301.06 contains an enumerated
list of non-discretionary exceptions, so it passes constitutional muster. 14




       9 Id.
       10 Korenyi v. Dep’t of Sanitation of the City of New York, 699 F. Supp. 388, 393
(E.D.N.Y. 1988).
       11 Crain, 920 F.2d at 1409.
       12 See Crudele v. City of New York Police Dep’t, No. 97 Civ. 6687(RCC), 2004 WL

1161174, at *3-4 (S.D.N.Y. May 24, 2004); Uryevick v. Rozzi, 751 F. Supp. 1064, 1068-71
(E.D.N.Y. 1990); Voorhees v. Shull, 686 F. Supp. 389, 394-95 (E.D.N.Y. 1987); Phila. Lodge
No. 5, Fraternal Order of Police v. City of Phila., 599 F. Supp. 254, 258-59 (E.D. Pa. 1984),
aff’d mem. sub nom. 779 F.2d 43 (3d Cir. 1985).
       13 Monahan v. City of New York Dep’t of Corr., 10 F. Supp. 2d 420, 425 (S.D.N.Y. 1998).
       14 See Voorhees, 686 F. Supp. at 395 n.3.

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                                        No. 14-31161
       Thus, we reject Plaintiffs’ constitutional challenges to SPD 301.06’s
home confinement provisions. 15


                                               B.
       SPD 301.06 also provides: “When a member is using sick leave, their
supervisor or the Human Resources Officer may visit or contact the member to
ascertain if the department can do anything to assist the member and verify
information” regarding the officer’s health status. According to Plaintiffs, this
provision constitutes “home invasion” and an “unreasonable search and
seizure” in violation of the Fourth Amendment. This claim is meritless, so the
district court correctly dismissed it. 16




       15  Plaintiffs urge us to follow the Seventh Circuit’s decision in Pienta v. Village of
Schaumburg, Illinois, 710 F.2d 1258 (7th Cir. 1983), which applied the strict scrutiny
standard to strike down similar home confinement provisions in a police department’s sick
leave policy. We, like every other court to consider the issue, find Pienta “completely
unpersuasive.” Monahan, 10 F. Supp. 2d at 424 n.3. Accord Crain, 920 F.2d at 1408; Hambsch
v. Dep’t of the Treasury, 796 F.2d 430, 434 (Fed. Cir. 1986); Abel v. City of Algona, No. C07-
956BHS, 2008 WL 4542428, at *10-11 (W.D. Wash. Oct. 8, 2008); Crudele, 2004 WL 1161174,
at *2; Uryevick, 751 F. Supp. at 1068 n.2; Voorhees, 686 F. Supp. at 393-94; Phila. Lodge, 599
F. Supp. at 257-58. In any event, the sick leave policy at issue in Pienta was far more
restrictive than the policy challenged here.
        16 See Competello v. Labruno, No. Civ.A. 02-664(DRD), 2005 WL 1637907, at *10, *12

(D.N.J. July 12, 2005) (“The department can also call or visit the officer’s house to ensure
that the officer is abiding by the restrictions. . . . Here, both the monitoring policy and the
policy requiring that officers stay at home do further a substantial state interest in ensuring
that police officers do not abuse their sick leave privileges.”); Korenyi, 699 F. Supp. at 392,
396 (“Unannounced home visits to ensure compliance with the Department’s rules and
regulations are generally made daily. The employee signs a departmental form as proof that
he was in fact at home when visited. Suspected violators or malingerers are subject to
multiple daily visits. If an employee does not appear to be home when a visit occurs, a
Department investigator will telephone. If no response is obtained, a message is left on the
employee’s door instructing him to call the Department and explain his absence. . . . Plaintiff’s
facial challenge to the Department sick-leave rules and regulations is dismissed in its
entirety.”); Phila. Lodge, 599 F. Supp. at 259 (“The Court has determined that the procedure
by which the Fire Department visits the home of a firefighter on sick leave is constitutionally
acceptable.”).
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                                       No. 14-31161
                                              C.
       Plaintiffs also claim that SPD 301.06 violates the Equal Protection
Clause of the United States Constitution because the City’s police officers are
subject to greater sick leave restrictions than the City’s firefighters. This
challenge is meritless. The City has a rational basis for treating police officers
differently than firefighters. 17 Police officers, unlike firefighters, are tasked
with apprehending potentially hostile suspects, and they are authorized to use
deadly force if necessary. It is therefore rational for the City to take stronger
measures to protect the physical and mental health of its police officers than it
takes to protect its firefighters. 18


                                              D.
       Plaintiffs also challenge the provisions of SPD 301.06 that authorize the
Department to obtain medical information from ill or injured officers.
According to Plaintiffs, requesting and obtaining this information constitutes
an unlawful inquiry into the nature and severity of an officer’s disability.
       Section 12112(d)(4)(A) of the Americans with Disabilities Act (“ADA”)
provides:
       A covered entity shall not require a medical examination and shall
       not make inquiries of an employee as to whether such employee is
       an individual with a disability or as to the nature or severity of the
       disability, unless such examination or inquiry is shown to be job-
       related and consistent with business necessity.




       17 See A.M. ex rel. McAllum v. Cash, 585 F.3d 214, 226 (5th Cir. 2009) (“[P]laintiffs'
rights to equal protection have been violated only if the policy is not ‘rationally related to a
legitimate government purpose.’” (quoting City of Dallas v. Stanglin, 490 U.S. 19, 25 (1989);
Lyng v. Int’l Union, UAW, 485 U.S. 360, 370 (1988))).
       18 Cf. Crain, 920 F.2d at 1409 (“The police department, as a paramilitary organization,

must be given considerably more latitude in its decisions regarding discipline and personnel
regulations than the ordinary government employer.” (citing Hughes, 714 F.2d at 1419)).
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                                        No. 14-31161
Thus, a prohibited medical examination or inquiry may constitute a form of
employment discrimination under the ADA. 19
       Importantly, § 12112(d)(4)(A) is codified in Title I of the ADA. Plaintiffs
cannot bring a cause of action directly under Title I because Plaintiffs have not
satisfied that Title’s exhaustion requirements. In an attempt to get around the
exhaustion bar, Plaintiffs argue that they are actually pursuing medical
inquiry claims under Title II of the ADA, 20 which forbids disability
discrimination in the provision of public services, 21 and Section 504 of the
Rehabilitation Act, which forbids “any program or activity receiving Federal
financial assistance” from discriminating against persons solely on the basis of
disability. 22 Plaintiffs argue that Title II and the Rehabilitation Act
incorporate Title I’s medical inquiry prohibition by reference without also
incorporating Title I’s exhaustion requirements.


                                               1.
       The district court correctly dismissed Plaintiffs’ Title II claims. Unlike
Title I of the ADA, Title II does not create a cause of action for employment
discrimination. 23 An unlawful medical inquiry by a public employer constitutes




       19  See 42 U.S.C. § 12112(d)(1) (“The prohibition against discrimination as referred to
in subsection (a) of this section shall include medical examinations and inquiries.”).
        20 Id. §§ 12131-65.
        21 Frame v. City of Arlington, 657 F.3d 215, 223 (5th Cir. 2011).
        22 29 U.S.C. § 794.
        23 See Brumfield v. City of Chicago, 735 F.3d 619, 622-30 (7th Cir. 2013); Mary Jo C.

v. N.Y. State & Local Ret. Sys., 707 F.3d 144, 167-72 (2d Cir.), cert. dismissed, 133 S. Ct. 2823
(2013); Elwell v. Okla. ex rel. Bd. of Regents of the Univ. of Okla., 693 F.3d 1303, 1305-14
(10th Cir. 2012); Zimmerman v. Or. Dep’t of Justice, 170 F.3d 1169, 1171-84 (9th Cir.), cert.
denied, 531 U.S. 1189 (2001).
        Like every Circuit that has recently considered the question, we reject the Eleventh
Circuit’s contrary conclusion in Bledsoe v. Palm Beach Cnty. Soil & Water Conservation Dist.,
133 F.3d 816, 818, 820-25 (11th Cir. 1998).
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                                       No. 14-31161
a form of employment discrimination under the ADA. 24 Thus, a plaintiff may
not pursue a medical inquiry claim under Title II.


                                              2.
       Plaintiffs’ Rehabilitation Act claims fare slightly better. Section 504 of
the Rehabilitation Act provides:
       No otherwise qualified individual with a disability in the United
       States . . . shall, solely by reason of her or his disability, be excluded
       from the participation in, be denied the benefits of, or be subjected
       to discrimination under any program or activity receiving Federal
       financial assistance or under any program or activity conducted by
       any Executive agency or by the United States Postal Service. 25

Unlike Title II of the ADA, the Rehabilitation Act incorporates many of Title
I’s prohibitions on employment discrimination by reference, 26 including §
12112(d)(4)(A)’s medical inquiry prohibition. 27 Therefore, unlike Plaintiffs’
Title II claims, Plaintiffs’ Rehabilitation Act claims may proceed if their
complaint properly states a claim under that statute.




       We do not now decide whether a plaintiff may pursue an employment discrimination
suit under Title II against an employer that is not covered by Title I, such as a public entity
with fewer than fifteen employees. See Mary Jo C., 707 F.3d at 171 n.12.
       24 42 U.S.C. § 12112(d)(1) (“The prohibition against discrimination as referred to in

subsection (a) of this section shall include medical examinations and inquiries.”).
       25 29 U.S.C. § 794(a).
       26 See id. § 794(d) (“The standards used to determine whether this section has been

violated in a complaint alleging employment discrimination under this section shall be the
standards applied under title I of the Americans with Disabilities Act of 1990 (42 U.S.C.
12111 et seq.) and the provisions of sections 501 through 504, and 510, of the Americans with
Disabilities Act of 1990 (42 U.S.C. 12201 to 12204 and 12210), as such sections relate to
employment.”).
       27 E.g., Lee v. City of Columbus, Ohio, 636 F.3d 245, 252 (6th Cir. 2011).

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                                       No. 14-31161
                                             3.
       Defendants first argue that Plaintiffs lack the qualifications necessary
to bring a claim under the Rehabilitation Act. For the following reasons, we
disagree.


                                             a.
       Section 504 of the Rehabilitation Act only applies to (1) federal agencies
and (2) entities receiving federal financial assistance. 28 “[T]o state a § 504
claim” under the Rehabilitation Act, “a plaintiff must allege that the specific
program or activity with which he or she was involved receives or directly
benefits from federal financial assistance.” 29 “[A] plaintiff may not predicate a
§ 504 claim against a state actor on the mere fact that the state itself obtains
federal money.” 30
       Defendants argue that the Plaintiffs failed to allege in their complaint
that the “specific program or activity” with which they are involved – namely,
the police department – “receives or directly benefits from federal financial
assistance.” We disagree. The complaint alleges that “the City receives federal
funds for the police department.” The Department is a specific “program or
activity” within the meaning of the Rehabilitation Act. 31 The complaint is
therefore not defective in this regard.




       28 See 29 U.S.C. § 794(a)-(b); Lightbourn v. Cnty. of El Paso, Tex., 118 F.3d 421, 426-
27 (5th Cir. 1997).
       29 Lightbourn, 118 F.3d at 427 (citing Brown v. Sibley, 650 F.2d 760, 767-71 (5th Cir.

Unit A 1981)).
       30 Id. (citing Brown, 650 F.2d at 767).
       31 See 29 U.S.C. § 794(b).

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                                       No. 14-31161
                                              b.
       Defendants also argue that the Rehabilitation Act requires Plaintiffs to
exhaust their administrative remedies before filing suit. Again, we disagree.
Although a plaintiff must exhaust his or her administrative remedies before
pursuing a Rehabilitation Act claim against a federal agency, it need not do so
before suing a federal grantee. 32 The Department is a federal grantee, not a
federal agency, so the Rehabilitation Act’s exhaustion requirements do not
apply here. 33


                                               c.
       Defendants also argue that, because Plaintiffs have not alleged that they
are “disabled” as the ADA defines that term, they have no standing to pursue
a medical inquiry claim under the Rehabilitation Act. We have previously
declined to decide whether a plaintiff must be disabled to invoke the
protections of § 12112(d)(4)(A). 34 We now join all our sister circuits who have
considered the question and hold that a plaintiff need not assert that he or she
has a disability to contest an allegedly improper medical inquiry or medical
examination. 35




       32 Prewitt v. U.S. Postal Serv., 662 F.2d 311, 314 (5th Cir. Unit A 1981) (citing
Camenisch v. Univ. of Tex., 616 F.2d 127, 134-35 (5th Cir. 1980), vacated on other grounds,
451 U.S. 390 (1981)).
       33 The district court erred by reaching the contrary conclusion.
       34 See Bachman v. Donahoe, 460 F. App’x 383, 384 (5th Cir. 2012) (per curiam); Fuzy

v. S&B Eng’rs & Constructors, Ltd., 332 F.3d 301, 303 (5th Cir. 2003); Armstrong v. Turner
Indus., Inc., 141 F.3d 554, 558-59 (5th Cir. 1998).
       35 See Lee, 636 F.3d at 252; Harrison v. Benchmark Elecs. Huntsville, Inc., 593 F.3d

1206, 1211-14 (11th Cir. 2010); Thomas v. Corwin, 483 F.3d 516, 527 (8th Cir. 2007) (citing
Cossette v. Minn. Power & Light, 188 F.3d 964, 969 (8th Cir. 1999)); Conroy v. N.Y. State Dept
of Corr. Servs., 333 F.3d 88, 94 (2d Cir. 2003); Fredenburg v. Contra Costa Cnty. Dep’t of
Health Servs., 172 F.3d 1176, 1181-82 (9th Cir. 1999); Roe v. Cheyenne Mountain Conference
Resort, Inc., 124 F.3d 1221, 1228-29 (10th Cir. 1997); Franklin v. City of Slidell, 936 F. Supp.
2d 691, 714-15 (E.D. La. 2013) (citations omitted).
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                                        No. 14-31161
                                             4.
      We therefore proceed to the merits of Plaintiffs’ medical inquiry claims
under the Rehabilitation Act. SPD 301.06 contains two provisions that require
an officer on sick leave to divulge medical information to the Department: the
“general diagnosis” provision, and the “SPD-3 Form” provision. Plaintiffs
challenge both.


                                             a.
      SPD 301.06 provides that “[f]or every event that a member uses sick
leave [he or she] shall furnish or verify” to his or her supervisor the “[n]ature
of illness or injury.” Thus, an officer who takes sick leave must provide the
Department with a general diagnosis to explain why he or she was absent from
work. Plaintiffs assert that the Rehabilitation Act prohibits employers from
asking an absent employee about the medical nature of his or her absence and
the condition being treated.
      Crucially, to prevail on a Rehabilitation Act claim, the plaintiff must
ultimately prove that the defendant discriminated against him or her solely on
the basis of disability. 36 As a result, an inquiry into an employee’s medical
condition violates the Rehabilitation Act only if it is “intended to reveal or
necessitates revealing a disability.” 37 “Asking an employee returning to work
to describe the ‘nature’ of his illness . . . is not necessarily a question about
whether the employee is disabled.” 38 Because an employer’s request for a
general diagnosis is neither intended to reveal nor necessitates revealing a
disability, it does not violate the Rehabilitation Act. 39



      36 E.g., Lee, 636 F.3d at 255.
      37 Id. (citing 24 C.F.R. § 8.13(a)).
      38 Id. at 254-55.
      39 See id. at 255-57.

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                                       No. 14-31161
       Plaintiffs emphasize that several courts have struck down similar
general diagnosis provisions in sick leave policies under Title I of the ADA.
These courts hold that any request for medical information that may tend to
reveal a disability, including a request for a general diagnosis, is sufficient to
trigger Title I’s protections. 40 However, Title I does not contain the
Rehabilitation Act’s sole causation requirement. 41 As a result, a medical
inquiry that violates Title I will not necessarily violate the Rehabilitation
Act. 42 Even assuming without deciding that SPD 301.06’s general diagnosis
provision would violate Title I, it does not violate the Rehabilitation Act
because it is neither “intended to reveal” nor “necessitates revealing a
disability.” 43
       Therefore, the district court properly dismissed Plaintiffs’ challenge to
the general diagnosis provision. 44


                                              b.
       The SPD-3 Form requirement, which is the second medical inquiry
provision at issue, is somewhat more intrusive. Although we uphold one aspect


       40  See Conroy, 333 F.3d at 95-102 (“We hold that requiring a general diagnosis is
sufficient to trigger the protections of the ADA[.]”); Munoz v. SSA, Civil No. 10cv1003 MMA
(NLS), 2012 U.S. Dist. LEXIS 59326, at *5-6 (S.D. Cal. Apr. 26, 2012) (“[A] requirement that
an employee give his or her employer a general diagnosis to justify a request for sick leave is
impermissible because it may tend to reveal a disability. . . . [A]n attendance policy, that on
its face, allows supervisors to ask about the nature of a medical absence and the condition
being treated, is prohibited because it could result in an ‘impermissible disability-related
inquiry.’” (quoting EEOC v. Dilliard’s, No. 08cv1780-IED(PCL), 2012 U.S. Dist. LEXIS
16945, at *14-15 (S.D. Cal. Feb. 9, 2012))).
        41 Lee, 636 F.3d at 255.
        42 See id.
        43 See id. at 255-57.
        44 Although the district court erroneously dismissed this claim without prejudice on

exhaustion grounds, we may affirm an order granting a motion to dismiss “on any basis
supported by the record.” Asadi, 720 F.3d at 622 (citing Torch Liquidating Trust, 561 F.3d at
384). On remand, the district court may wish to amend its judgment so that this claim is
instead dismissed with prejudice.
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                                         No. 14-31161
of the requirement, we reverse and remand to allow Plaintiffs to pursue their
challenge to other aspects of the SPD-3 Form provision.
      First, “[f]or every undocumented sick leave event,” the officer must
complete the “Employee” section of an “SPD-3 Form.” This requires the officer
to certify:
      I hereby acknowledge that it is my responsibility to furnish the
      [D]epartment, or any of its representatives, any and all
      information, facts, and particulars requested in connection with
      my absence from work, and to permit them to examine all x-rays,
      records or documents regarding my physical condition or
      treatment. I authorize and request any and all of my physicians
      and hospitals to furnish all necessary information request [sic] by
      the [D]epartment[.]

Plaintiffs argue that this provision permits the Department to obtain any
medical information that it desires, even if the information is not directly
related to the officer’s absence. We do not interpret the form so broadly. The
officer need only furnish “information, facts, and particulars requested in
connection with [his or her] absence from work.” Likewise, the form only
authorizes the Department to obtain information from the officer’s healthcare
provider that is “necessary” to determine why the officer was absent. Thus, this
section of the SPD-3 Form only permits the Department to determine why the
officer missed work and confirm that the absence was justified. As explained
above, the Rehabilitation Act does not forbid an employer from investigating
the medical reason for an employee’s absence, so this provision is neither
“intended to reveal” nor “necessitates revealing” a disability. 45 The district
court therefore properly dismissed this aspect of Plaintiffs’ claim.
      However, the SPD-3 Form also provides that, if the officer uses three or
more days of undocumented sick leave in a single year, or if the officer uses


      45   See Lee, 636 F.3d at 255 (citing 24 C.F.R. § 8.13(a)).
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                                    No. 14-31161
documented sick leave, then the officer’s healthcare provider must also furnish
certain medical information about the officer on either the “Healthcare
Provider” section of the SPD-3 Form or the healthcare provider’s official
letterhead. The provider must, among other things, “[s]tate if the [officer’s]
condition is chronic and whether intermittent absences related to the condition
may be possible.” This “chronic condition” provision is more troubling, as it
may enable the Department to determine whether the officer has “a physical
or mental impairment that substantially limits one or more major life
activities.” 46 In other words, although the Department may lawfully
investigate why an officer missed work in the past, and request documentation
to confirm that the officer’s absence was justified, an investigation into the
officer’s future likelihood of missing work is more likely to reveal information
about an officer’s disability status under federal law. 47 Thus, Plaintiffs’ facial
challenge to the “chronic condition” provision states a prima facie claim under
the Rehabilitation Act, because that provision may very well be intended to
reveal or necessitate revealing a disability.
      We must therefore reverse the district court’s order to the extent it
dismissed this claim. On remand, the City will have the burden to show that
this aspect of the SPD-3 Form requirement is “job-related and consistent with
business necessity.” 48 To be sure, the City may very well be able to satisfy that
standard at the summary judgment phase of the case. As a paramilitary
organization charged with maintaining public safety, a police department



      46   See 42 U.S.C. § 12102(1)(A).
      47   Defendants emphasized at oral argument that the healthcare provider does not
necessarily need to fill out an SPD-3 Form; it may instead furnish the information in a
doctor’s report on its official letterhead. That is irrelevant. As we read the SPD-3 Form
requirement, the healthcare provider must provide the Department the same information
about the officer either way, which may be intended to reveal or necessitate revealing a
disability.
        48 See 42 U.S.C. § 12112(d)(4)(A).

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                                       No. 14-31161
must ensure that its officers are in peak physical and mental condition. 49 At
the motion to dismiss stage, however, the Court must take Plaintiffs’ well-
pleaded allegations as true. Plaintiffs allege that the SPD-3 Form requirement
is not consistent with business necessity. Business necessity is an affirmative
defense,     so   it    is     generally   inappropriate       to    dismiss     a    medical
inquiry/examination claim at the 12(b)(6) stage on business necessity
grounds. 50 We therefore reverse the district court’s order to the limited extent
that   Plaintiffs      challenge    the    SPD-3      Form     requirement       under     the
Rehabilitation Act.
       However, Plaintiffs may not obtain compensatory damages if they
ultimately prevail on their medical inquiry claim because none of the Plaintiffs
allege that the SPD-3 Form requirement proximately caused them any
tangible injury in fact. 51 We therefore affirm the district court’s order to the
extent it dismissed Plaintiffs’ claim for damages under the Rehabilitation Act,
and reverse and remand only to allow Plaintiffs to pursue their injunctive and
declaratory claims. 52 In other words, Plaintiffs’ Rehabilitation Act claim




       49  Cf. Crain, 920 F.2d at 1409.
       50  See Franklin, 936 F. Supp. 2d at 718 (“Thus, while it remains possible that the
business necessity exception may ultimately apply in this case, the Court declines, at [the
12(b)(6)] stage, to dismiss Plaintiff’s ADA claim under section 12112(d)(4)(A) on account of
the business necessity exception.”).
        51 Cf. Armstrong, 141 F.3d at 561-62 (“This Court has been unable to find any

indication either in the text of the ADA or in its legislative history that a violation of the
prohibition against . . . medical examinations and inquiries, in and of itself, was intended to
give rise to damages liability. . . . Consequently, we hold that damages liability under section
12112(d)[] must be based on something more than a mere violation of that provision. There
must be some cognizable injury in fact of which the violation is a legal and proximate cause
for damages to arise[.]”); Buchanan v. City of San Antonio, 85 F.3d 196, 199-200 (5th Cir.
1996).
        52 We leave open the possibility that Plaintiffs may recover fees and costs if they

successfully obtain declaratory or injunctive relief.
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                                       No. 14-31161
survives only to the limited extent that Plaintiffs seek to invalidate the
“chronic condition” aspect of the SPD-3 Form requirement. 53


                                             E.
       The remainder of Plaintiffs’ facial challenges under federal law are
either inadequately briefed or so patently meritless as to merit no discussion,
so we affirm the district court’s order to the extent it dismissed those claims.


                                             III.
       We turn now to Plaintiffs’ as-applied challenges to SPD 301.06 under
federal law.


                                             A.
       Plaintiff-Appellant Jessica Walker (“Walker”) alleges that Defendants
unlawfully disclosed her medical information of the Rehabilitation Act. 54
       Under 42 U.S.C. § 12112(d) of the ADA, if an employer performs a
medical inquiry or examination, the employer must treat the medical
information it obtains as a result of that inquiry as a “confidential medical
record.” 55 The Rehabilitation Act incorporates § 12112(d) by reference. 56




       53 On remand, the district court need not allow Plaintiffs to amend their claim to add
allegations that could support an award of compensatory damages. The district court afforded
Plaintiffs several opportunities to cure the numerous defects in their pleadings. Of course,
the district court may exercise its discretion to permit further amendment if it prefers.
       54 Walker also pursues a similar medical disclosure claim under Title II of the ADA,

but, as described above, Title II does not incorporate 42 U.S.C. § 12112(d).
       55 See 42 U.S.C. § 12112(d)(3)(B), (d)(4)(B)-(C); EEOC v. Thrivent Fin. for Lutherans,

700 F.3d 1044, 1046-52 (7th Cir. 2012).
       There are exceptions to that general rule, but none are relevant here. See 42 U.S.C. §
12112(d)(3)(B)(i)-(iii).
       56 See Lee, 636 F.3d at 252 (citations omitted); Doe v. United States Postal Serv., 317

F.3d 339, 340 (D.C. Cir. 2003) (“USPS”) (citations omitted).
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                                        No. 14-31161
       Importantly, § 12112(d) prohibits an employer from disclosing an
employee’s medical information only if the employer first acquired the
information as a result of a medical inquiry or examination as those terms are
defined in the ADA. 57 If the employee voluntarily divulges the medical
information to the employer without the employer specifically demanding the
information first, or if the employer otherwise obtains the medical information
outside the context of a medical inquiry or examination, then the employer has
no duty under § 12112(d) to keep that information confidential. 58 Thus, to
survive a Rule 12(b)(6) motion, the complaint must affirmatively allege that
the defendant obtained the disclosed medical information pursuant to a
medical examination or inquiry. 59
       Walker does not allege that Defendants disclosed medical information
that they first acquired pursuant to an employer-initiated medical inquiry or
examination, rather than by some other means. She does not specify which



       57  Thrivent Fin. for Lutherans, 700 F.3d at 1046-52; EEOC v. C.R. England, Inc., 644
F.3d 1028, 1046-48 (10th Cir. 2011); USPS, 317 F.3d at 343-45; Cash v. Smith, 231 F.3d 1301,
1303, 1307-08 (11th Cir. 2000).
        The ADA also provides that the employer must also keep medical information
obtained pursuant to a voluntary medical examination conducted as part of an employee
health program confidential, but nothing in the complaint indicates that this case implicates
that provision of the ADA. See, e.g., Fisher v. Harvey, No. 1:05-CV-102, 2006 WL 2370207, at
*4 (E.D. Tenn. Aug. 14, 2006).
        58 Thrivent Fin. for Lutherans, 700 F.3d at 1046-52; C.R. England, Inc., 644 F.3d at

1046-48; Cash, 231 F.3d at 1303, 1307-08.
        59 See Franklin, 936 F. Supp. 2d at 711-12 (“Plaintiff merely alleges that Johnson

‘provided medical information’ to Dr. Klein, without alleging any facts indicating that
Johnson obtained the medical information in question from an entrance exam or disability-
related inquiry. . . . Thus, the Court finds that Plaintiff has failed to state a claim for
disclosure of confidential medical information against the City under 42 U.S.C. § 12112(d).”);
Dean v. City of New Orleans, Civil Action No. 11-2209, 2012 WL 2564954, at *21 (E.D. La.
July 2, 2012), aff’d, 544 F. App’x 353 (5th Cir. 2013) (“[The plaintiff] has not alleged that any
medical information that the Police Department may have released to SBA was obtained
through an entrance examination or a disability-related inquiry. In the absence of any such
factual allegations, he fails to state a claim upon which relief can be granted under Section §
[sic] 12112(d).”); Rohan v. Networks Presentation LLC, 175 F. Supp. 2d 806, 814 (D. Md.
2001).
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                                      No. 14-31161
medical conditions Defendants disclosed or how Defendants first found out
about them. Although Walker does allege that Defendants required her to
submit an SPD-3 Form, she does not describe the contents of that SPD-3 Form
or specify whether Defendants first learned of the disclosed medical conditions
as a result of that SPD-3 Form. Therefore, we affirm the district court’s order
dismissing Walker’s medical disclosure claim pursuant to Rule 12(b)(6). 60


                                             B.
       The remainder of Plaintiffs’ as-applied claims under federal law are
either inadequately briefed or too unspecific to state a claim upon which relief
can be granted. We therefore affirm the district court’s order to the extent it
dismissed them.


                                            IV.
       Plaintiffs have also sued several of their supervisors in their individual
and official capacities. Essentially, Plaintiffs argue that SPD 301.06 violates
their constitutional and statutory rights, so the individual Defendants must be
held liable for drafting, adopting, implementing, and enforcing SPD 301.06.
       The individual Defendants have asserted the defense of qualified
immunity. They are entitled to it. To avoid dismissal on qualified immunity
grounds, a plaintiff must show that (1) the defendant violated a federal


       60The district court dismissed this claim without prejudice on exhaustion grounds.
However, as explained above, the Rehabilitation Act’s exhaustion requirements do not apply
here. Nevertheless, we may affirm an order granting a motion to dismiss “on any basis
supported by the record.” Asadi, 720 F.3d at 622 (citing Torch Liquidating Trust, 561 F.3d at
384). On remand, the district court may wish to modify its judgment so that this claim is
dismissed with prejudice.
       On remand, the district court need not grant Walker a chance to amend her complaint
to add the missing allegations. The district court has already afforded Plaintiffs multiple
opportunities to cure the numerous defects in their pleadings. Of course, the district court
may exercise its discretion to permit further amendment if it so desires.
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                                         No. 14-31161
statutory or constitutional right; and (2) the right in question was “clearly
established” at the time of the violation. 61 As explained above, the
overwhelming majority of Plaintiffs’ statutory and constitutional challenges to
SPD 301.06 are meritless. Because the policy does not violate Plaintiffs’ rights,
the individual Defendants cannot be liable for implementing it. The only claim
with any potential merit is Plaintiffs’ medical inquiry challenge to the SPD-3
Form provision. However, the law regarding whether and when the doctrine of
business necessity allows a police department to gather medical information
from its officers is far from clearly established. 62 Thus, the district court
correctly dismissed all of Plaintiffs’ claims against the individual Defendants.


                                                V.
       Plaintiffs also raise miscellaneous state law claims against Defendants.
Because the district court dismissed all of Plaintiffs’ federal claims, it declined
to exercise supplemental jurisdiction over Plaintiffs’ state law claims, and
accordingly dismissed those claims without prejudice. 63 However, we have
ruled that the district court erroneously dismissed one of Plaintiffs’ federal
claims. We therefore remand to allow the district court to decide in the first
instance whether to dismiss Plaintiffs’ state law claims under Rule 12(b)(6).


                                               VI.
       We VACATE the district court’s order to the extent that it dismissed
Plaintiffs’ Rehabilitation Act challenge to the portion of the SPD-3 Form that
requests information regarding whether the officer has a “chronic condition.”


       61  Tolan v. Cotton, 134 S. Ct. 1861, 1865-66 (2014) (citations omitted).
       62  Compare Conroy, 333 F.3d at 95-102 with Lee, 636 F.3d at 254-55.
        63 See 28 U.S.C. § 1367(c)(3) (“The district courts may decline to exercise supplemental

jurisdiction over a claim under subsection (a) if . . . the district court has dismissed all claims
over which it has original jurisdiction.”).
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                                     No. 14-31161
We REMAND to the district court to allow Plaintiffs to pursue, at most,
injunctive and declaratory relief on that claim. 64
      On remand, the district court may also reconsider the portion of its order
dismissing Plaintiffs’ state law claims.
      We AFFIRM the district court’s order in all other respects.
      AFFIRMED in part, VACATED in part, and REMANDED.




      64 Again, we leave open the possibility that Plaintiffs may recover fees and costs if
they ultimately prevail on their Rehabilitation Act claim.
                                            20
