206 F.3d 637 (6th Cir. 2000), 98-5619, Holiday v City of Chattanooga

Docket Nº:98-5619
Citation:206 F.3d 637
Party Name:LOUIS HOLIDAY, PLAINTIFF-APPELLANT, v. CITY OF CHATTANOOGA, DEFENDANT-APPELLEE.
Case Date:March 10, 2000
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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206 F.3d 637 (6th Cir. 2000)

LOUIS HOLIDAY, PLAINTIFF-APPELLANT,

v.

CITY OF CHATTANOOGA, DEFENDANT-APPELLEE.

No. 98-5619

United States Court of Appeals, Sixth Circuit

March 10, 2000

Argued: August 13, 1999

Appeal from the United States District Court for the Eastern District of Tennessee at Chattanooga. No. 97-00354--R. Allan Edgar, Chief District Judge.

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Chip Rowan (argued and briefed), Rowan & Neis, Atlanta, Georgia, for Appellant.

Michael A. McMahan (argued and briefed), Kenneth O. Fritz (briefed), City Attorney's Office, Chattanooga, Tennessee, for Appellee.

Before: Keith, Boggs, and Clay, Circuit Judges.

OPINION

Clay, Circuit Judge.

Plaintiff, Louis Holiday, brought suit against Defendant, the City of Chattanooga ("the City"), under the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., and the Vocational Rehabilitation Act of 1973, 29 U.S.C. § 791 et seq., charging that the City refused to hire him as a police officer because he is infected with the human immunodeficiency virus ("HIV"), the virus that causes Acquired Immunodeficiency Syndrome ("AIDS"). The City had extended Holiday an employment offer contingent upon his passing a physical examination required by state statute; at this examination, Holiday voluntarily informed the physician engaged by the City of his HIV status. This physician subsequently advised the City that Holiday had not passed the medical examination because, in the doctor's opinion, Holiday was not strong enough to withstand the rigors of police work.

The district court dismissed Holiday's suit on summary judgment on grounds that Holiday was not "otherwise qualified" for the position. On appeal, Holiday contends that summary judgment was improper because a genuine issue of material fact exists as to whether the City improperly refused to hire him because of his disability, where (i) the physician's opinion was not the product of the individualized inquiry mandated by the ADA, and is at odds with substantial evidence indicating that Holiday was in fact physically capable of performing as a police officer; and (ii) there is evidence that the City withdrew its offer to Holiday because of its fears that he would transmit HIV on the job. We agree. For the reasons set forth below, we REVERSE the district court's grant of summary judgment on behalf of the City.

I.

Holiday is currently a police officer with the Tennessee Capitol Police, where he has been employed since May of 1997. He has also had various degrees of experience as a police officer with several other jurisdictions in Tennessee, including the Springfield Police Department ("PD"), the Murfreesboro PD, the Tennessee State University PD and the Nashville Metro PD.

In April of 1993, Holiday submitted an application to the City for employment as a police officer. He passed a written examination and also successfully completed a physical agility test in September of 1993. The physical agility test consisted of various tests of physical strength and endurance including running, jumping hurdles, an obstacle course and carrying heavy weights. The City's police department subsequently contacted Holiday in October of 1994 and invited him to an interview on October 11, 1994, with the Administrator of the City's Department of Safety, Ervin Dinsmore, and Police Chief Ralph Cothran. After the interview, Dinsmore made Holiday a conditional offer of employment subject to Holiday's successful completion of physical and psychological examinations. All applicants for the position of police officer are required by Tennessee law to pass a physical examination administered by a licensed physician. Tenn. Code Ann. § 38-8-106(7) (1997).

The City has contracted with outside health care providers, including Memorial Hospital in Chattanooga, to perform the post-offer physical examinations required

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by statute. Donna Kelley, the City's Personnel Director, testified that the City worked with these medical providers to determine the components of the physical examinations; the City supplied information as to what the job of police officer involves, and together with the health care providers, mutually determined the scope of the examinations. The City does not normally test employment applicants for HIV or AIDS; nor does it have a policy requiring that all persons who apply for a position as a police officer must test negative for HIV.

Pursuant to its contract with Memorial Hospital, the City referred Holiday to Dr. Steve Dowlen, M.D., a physician on staff at the hospital, for Holiday's pre-employment physical examination. Dr. Dowlen examined Holiday on October 21, 1994, at which time Holiday voluntarily informed the doctor that he was infected with HIV. Holiday also told Dr. Dowlen that he had been diagnosed as borderline anemic since he was in high school. According to Holiday, at the conclusion of the physical examination, Dr. Dowlen told him that he had passed.

However, after the physical examination was completed, a person from Dr. Dowlen's office telephoned Donna Kelley, and advised her that Holiday had failed the examination. Kelley was told that she should obtain a copy of the medical report and discuss it further with Dr. Dowlen. According to Kelley, she gathered that Holiday was HIV positive and suffered from an AIDS-related health problem.

Kelley obtained the medical report filled out by Dr. Dowlen, which, among other things, asked the following question: "Is person physically fit to perform strenuous activity that may be necessary in police work?" Dr. Dowlen had answered this question "No". In the comments accompanying his answer, Dr. Dowlen wrote: "anemia with lymphocytosis, lymph nodes in both axillae -- needs further evaluation by his physician since history by patient of HIV+ 3-4 years." (J.A. at 201-02.) Shortly after she received the medical report, Kelley spoke with Dr. Dowlen, who told her that Holiday was anemic and had problems with his lymph nodes, and had some blood abnormalities. Kelley could not recall when asked during her deposition testimony whether Dr. Dowlen stated that the blood abnormalities were HIV or AIDS related. Dr. Dowlen expressed his medical opinion that Holiday was physically unable to perform the duties of a police officer because he was not strong enough to withstand the rigors of police work.

Kelley then discussed the matter with Dinsmore, who ultimately decided not to employ Holiday based on Dr. Dowlen's medical report. Kelley subsequently informed Holiday that the City's conditional offer of employment was withdrawn because he had not passed the physical examination. Holiday testified that when he asked why, Kelley answered that she could not "put other employees and the public at risk by hiring you." (J.A. at 173-74.) This position was subsequently repeated in the City's answers to interrogatories during discovery. The City was asked to "further describe each and every way in which any medical condition, based upon which Defendant or Dr. Dowlen disqualified Mr. Holiday from employment with Defendant, is incompatible with the work requirements" of a police officer. The City responded that Holiday's HIV status rendered him a health and safety threat to others, based on the possibility of blood-to-blood contact during police work. On appeal, the City has abandoned its prior assertion that Holiday's HIV status rendered him a direct threat to the health or safety of others, and now claims that his HIV seropositivity played absolutely no role in its decision to withdraw the employment offer.

On June 19, 1997, Holiday filed suit in district court alleging that the City had violated the ADA and the...

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