Opinion
Case No. 1:19-cv-186
10-21-2020
Raul GARIBAY, Plaintiff, v. HAMILTON COUNTY, TENNESSEE, Defendant.
Douglas S. Hamill, Mikel & Hamill PLLC, Chattanooga, TN, for Plaintiff. R. Dee Hobbs, Hamilton County Attorneys Office, Chattanooga, TN, for Defendant.
Douglas S. Hamill, Mikel & Hamill PLLC, Chattanooga, TN, for Plaintiff.
R. Dee Hobbs, Hamilton County Attorneys Office, Chattanooga, TN, for Defendant.
MEMORANDUM OPINION
TRAVIS R. MCDONOUGH, UNITED STATES DISTRICT JUDGE Before the Court is Defendant Hamilton County, Tennessee's ("Hamilton County" or "the County") motion for summary judgment (Doc. 26). For the reasons set forth below, the motion will be DENIED .
I. BACKGROUND
Plaintiff Raul Garibay alleges that Hamilton County violated the Americans with Disabilities Act ("ADA") when it failed to hire him for a position as a corrections officer with the Hamilton County Sheriff's Office. (See generally Doc. 19.) The following facts are agreed upon by the parties unless otherwise specified.
Garibay served in the National Guard from 2007 through 2016. (Doc. 27-1, at 18.) He was deployed to Iraq from May 2009 to May 2010. (See id. at 13, 18, 26.) After his return from deployment, Garibay had difficulty sleeping, experienced nightmares, and was ultimately diagnosed with post-traumatic stress disorder ("PTSD"). (Id. at 25–26.) Garibay states, however, that as the years progressed, his symptoms lessened. (Doc. 32, at 2.) Eventually, he stopped taking his PTSD medications "[b]ecause [he] had no symptoms" and "didn't feel [he] needed them." (Doc. 27-1, at 29, 38, 55–56.) Garibay also informed his doctor that he had stopped taking the medications. (Id. ) According to Garibay, he no longer experienced any symptoms of his PTSD by 2017. (Id. at 53–54; Doc. 32, at 2–3.)
In 2014, Garibay worked for two months as a corrections officer at the Bledsoe County Correctional Complex. (Doc. 27-1, at 14–15, 17.) Prior to starting that job, Garibay submitted to a physical evaluation, a mental evaluation, and a psychological evaluation. (Id. at 16.) Garibay also went through training, including training necessary to be issued a firearm. (Id. ) Following his return from deployment, Garibay also worked for Walmart and Best Buy as an asset-protection associate. (Id. at 18–19.)
On February 29, 2017, Garibay applied for a position as a corrections officer with the Hamilton County Sheriff's Department ("HCSD"). (Id. at 27.) The hiring process for the position involved (i) the submission and review of an application online, (ii) a review of the applicant's personal and employment information, (iii) a criminal background check, (iv) an agility test, (v) interviews, (vi) review by internal affairs, and (vii) psychological, physical, and medical evaluations. (Id. at 268–69.) An applicant who passed a particular step in the process would advance to the next step. (Id. at 268–74.) An applicant who successfully passed the review by internal affairs would receive a conditional offer of employment, with hiring contingent upon successful psychological, physical, and medical evaluations. (Id. at 274–75.)
Garibay passed the first six steps of the hiring process and was given a conditional offer of employment. (Id. at 277–81, 286.) Garibay then proceeded to the psychological evaluation. (See id. at 288–90.) A written test—the Minnesota Multiphasic Personality Inventory ("MMPI")—was administered to Garibay by Carole Miller, a human-resources employee for the County, on April 16, 2018. (Id. at 294.) Miller faxed Garibay's answers to Dr. Donald Brookshire, with whom the County contracted to perform psychological evaluations for job applicants. (Id. at 289–90.) On April 20, 2018, Dr. Brookshire manually entered Garibay's written answers into computer software designed to score the MMPI. (Id. at 195–96.) Dr. Brookshire admitted that a couple of Garibay's answers were first entered incorrectly, and those errors were incorporated into a score report. (Id. ) That same day, Dr. Brookshire interviewed Garibay and, during the interview, learned about Garibay's PTSD diagnosis. (Id. at 200, 204.) According to Dr. Brookshire, the interview lasted approximately forty-five minutes. (Id. at 66.) During the interview, Dr. Brookshire asked Garibay about his history with PTSD but did not ask him whether he was presently experiencing symptoms. (Id. at 205–07.) Following the interview Dr. Brookshire received medical and psychological records from the Department of Veteran's Affairs ("VA"), which noted Garibay's history of treatment for PTSD. (See Doc. 36, at 10.)
Garibay was initially denied a conditional offer of employment after internal affairs discovered that he had admitted to some drug use in 2001, he had been arrested for assault, and he had his driver's license suspended for failure to pay traffic fines. (See Doc. 31-1, at 6, 9–10.) However, after Garibay met with Hamilton County Sheriff Jim Hammond and interviewed with more Hamilton County employees, he was permitted to move forward in the hiring process and was given a conditional offer of employment. (See id. at 301–22.)
Dr. Brookshire testified that he later reentered and rescored Plaintiff's answers, but he admits that his overall assessment of Plaintiff's fitness for the corrections officer position was based on the original score report. (Doc. 27-1, at 198–99.) Nevertheless, the County maintains that any differences between the original report and the corrected report were "nominal, and do not significantly impact the interpretation" of Plaintiff's MMPI. (Doc. 33, at 3 (quoting Doc. 27-1, at 353 (Defendant's expert's report).))
After his evaluation was completed, Dr. Brookshire sent a form to the County stating that Garibay was "not qualified" to be certified for the position under Tennessee law. (Doc. 27-2, at 76; see also id. at 184 (Dr. Brookshire stating that he does not do formal reports for pre-employment evaluations).) The form was accompanied by a single-page letter in which Dr. Brookshire stated:
The evaluation finds data consistent with an "apparent mental disorder" as described in the current edition of the Diagnostic and Statistical Manual of Mental Disorders of the American Psychiatric Association (DSM-5). This evaluation concludes that Raul Garibay is not psychologically fit to perform the duties of a Corrections Officer.
(Doc. 36, at 20.)
After receiving the result of Dr. Brookshire's evaluation, Miller called Garibay on behalf of the County to inform him that Dr. Brookshire did not qualify him for the position and that the conditional offer of employment was withdrawn. (Doc. 27-1, at 295.) During the call, Garibay told Miller that he felt he was being discriminated against because of his PTSD and asked whether he could get a second opinion or talk with the sheriff. (Id. at 40–41.) In response, Miller advised that the sheriff would not go against Dr. Brookshire's opinion. (Id. )
After learning that Garibay was not certified as "qualified" for the job, Garibay's wife telephoned Dr. Brookshire to discuss the decision. (Id. at 70.) Garibay was also present on the phone call, and, unbeknownst to Dr. Brookshire, Garibay's wife recorded the conversation. (Id. ) During the call, Dr. Brookshire told Mrs. Garibay:
[P]eople with this kind of history are not considered suitable for this type of work.... It wasn't a hard decision. I mean, it wasn't like he was on the fence and I had to make a decision one way or the other. I mean, it was – as soon as I got the VA records I realized, okay, he's out of the box, he's not even – he doesn't qualify for the evaluation really. But the sheriff's office doesn't pull records before they refer them to me. They just refer them to me and then expect me to kind of dig in, you know, to the extent I need to, to come up with the right answer.
(Id. at 180.) When Mrs. Garibay responded that Garibay's VA disability rating was "based on way back then, when there was [sic] issues when he came home and he had sought some treatment," Dr. Brookshire responded:
But if they – if he'd had these issues 30 years ago and there was a record existing somewhere of it, he still wouldn't be qualified for this type of work. I mean, as long as there's any history of that kind of thing – I mean, even if there was adolescent history of that kind of thing, he wouldn't qualify for it.
(Id. at 180–81.) However, Dr. Brookshire did state that he made his decision based on "the compilation of all the data [he] had" but that "the VA records ... were the most compelling, [he] think[s]." (Id. at 184–85.) The conversation proceeded:
Mrs. Garibay: ... I don't understand how that – how you can say that he can't – he basically is completely denied because he has a VA medical record and that's it.
Dr. Brookshire: All right. Let me ask you something. If we had someone apply for a police job and they were actively psychotic at the time, but they were a veteran and their psychosis was related to their military experience, do you think that person should be allowed to become a police officer?
Mrs. Garibay: No, if they're diagnosed as – in a psychosis –
Dr. Brookshire: Right. Which –
Mrs. Garibay: – state. But that's –
Dr. Brookshire: – it's the same thing.
Mrs. Garibay: – not his diagnosis.
(Id. at 183.)
Subsequent to the County's decision not to hire him for the corrections-officer position, Garibay obtained work as a juvenile-detention officer for the Hamilton County Juvenile Court. (Id. at 20–21.) Though Garibay does not recall when his employment with the juvenile court began, he resigned after a few months due to conflicts with his schooling. (Id. at 22.) There was no pre-employment psychological evaluation required to obtain that job. (Id. at 21.)
Garibay filed this action against the County on June 26, 2019 (see Doc. 1), asserting a claim under the Americans with Disabilities Act ("ADA"), and filed an amended complaint on September 5, 2019 (Doc. 19). The County has moved for summary judgment (Doc. 26), and its motion is now ripe for review.
II. STANDARD OF LAW
Summary judgment is proper when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The Court views the evidence in the light most favorable to the nonmoving party and makes all reasonable inferences in favor of the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp. , 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) ; Nat'l Satellite Sports, Inc. v. Eliadis Inc. , 253 F.3d 900, 907 (6th Cir. 2001).
The moving party bears the burden of demonstrating that there is no genuine dispute as to any material fact. Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ; Leary v. Daeschner , 349 F.3d 888, 897 (6th Cir. 2003). The moving party may meet this burden either by affirmatively producing evidence establishing that there is no genuine issue of material fact or by pointing out the absence of support in the record for the nonmoving party's case. Celotex , 477 U.S. at 325, 106 S.Ct. 2548. Once the movant has discharged this burden, the nonmoving party can no longer rest upon the allegations in the pleadings; rather, it must point to specific facts supported by evidence in the record demonstrating that there is a genuine issue for trial. Chao v. Hall Holding Co., Inc. , 285 F.3d 415, 424 (6th Cir. 2002).
At summary judgment, the Court may not weigh the evidence; its role is limited to determining whether the record contains sufficient evidence from which a jury could reasonably find for the non-movant. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248–49, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A mere scintilla of evidence is not enough; the Court must determine whether a fair-minded jury could return a verdict in favor of the non-movant based on the record. Id. at 251–52, 106 S.Ct. 2505 ; Lansing Dairy, Inc. v. Espy , 39 F.3d 1339, 1347 (6th Cir. 1994). If not, the Court must grant summary judgment. Celotex , 477 U.S. at 323, 106 S.Ct. 2548.
III. ANALYSIS
The ADA forbids employers from discriminating "against a qualified individual on the basis of disability in regard to ... the hiring ... of employees." 42 U.S.C. § 12112(a) ; see also Moorer v. Baptist Mem'l Health Care Sys. , 398 F.3d 469, 479 (6th Cir. 2005). "To recover on a claim for discrimination under the ADA, a plaintiff must show that he or she (1) is disabled, (2) is otherwise qualified to perform the essential functions of the position, with or without accommodation, and (3) suffered an adverse employment action because of his or her disability." Ferrari v. Ford Motor Co. , 826 F.3d 885, 891 (6th Cir. 2016), abrogated on other grounds by Babb v. Maryville Anesthesiologists P.C. , 942 F.3d 308 (6th Cir. 2019).
A plaintiff asserting disability discrimination may prove his case, as Garibay purports to do in this case, by presenting direct evidence of discrimination—that is, evidence that the employer "relied upon the plaintiff's disability in making its employment decision." Id. In cases in which there is direct evidence that the plaintiff suffered an adverse employment action because of his or her disability, the plaintiff "bears the burden of establishing that he or she is ‘disabled’ " and " ‘otherwise qualified’ for the position despite his or her disability: a) without accommodation from the employer; b) with an alleged ‘essential’ job requirement eliminated; or c) with a proposed reasonable accommodation." Id. (quoting Monette v. Elec. Data Sys. Corp. , 90 F.3d 1173, 1178 (6th Cir. 1996) ).
"Direct evidence is evidence that, if believed, ‘requires the conclusion that unlawful discrimination was at least a motivating factor in the employer's actions.’ " Thompson v. City of Lansing , 410 F. App'x 922, 929 (6th Cir. 2011) (quoting Wexler v. White's Fine Furniture, Inc. , 317 F.3d 564, 570 (6th Cir. 2003) ). It is "evidence that proves the existence of a fact without requiring any inferences." Rowan v. Lockheed Martin Energy Sys., Inc. , 360 F.3d 544, 548 (6th Cir. 2004) (citation omitted). The County argues in its reply brief that Garibay cannot prove his claim by direct evidence, because Dr. Brookshire stated that he did not rely exclusively on Garibay's PTSD diagnosis in deciding not to certify him. (Doc. 33, at 9–10.) It insists that Garibay has only indirect evidence of discrimination and is therefore required to comply with the McDonnell Douglas burden-shifting analysis to prove his case. (See id. ) However, a plaintiff relying on direct evidence need not show that his disability was the sole reason for the adverse employment action, so long as it was a motivating factor in the action. Thompson , 410 F. App'x at 929 ; see Lewis v. Humboldt Acquisition Corp., Inc. , 681 F.3d 312, 321 (6th Cir. 2012) (holding that the ADA prohibits discrimination that is a "but-for" cause of the adverse employment action). The question of whether Garibay has succeeded in showing that discrimination was a motivating factor in the decision not to hire him is one for the jury. See supra Section III.B.
A. Whether Garibay Is "Disabled" for the Purposes of the ADA
The plaintiff bears the initial burden of demonstrating that he was both "disabled" and "qualified" to perform the essential functions of the job with or without a reasonable accommodation. The ADA defines "disability" as:
(A) a physical or mental impairment that substantially limits one or more major life activities of such individual;
(B) a record of such an impairment; or
(C) being regarded as having such an impairment[.]
42 U.S.C. § 12102(1). The ADA instructs courts to construe the definition of disability "in favor of broad coverage of individuals." Id. § 12102(4)(A).
The County argues that Garibay is not disabled under the ADA, because he was not "regarded as" disabled. (Doc. 26-1, at 19.) Namely, it contends that he "has failed to produce any evidence whatsoever indicating that the County even knew he was disabled, much less that it ‘regarded him as substantially limited from performing a broad class of jobs.’ " (Id. at 20 (quoting Daugherty v. Sajar Plastics, Inc. , 544 F.3d 696, 704 (6th Cir. 2008).)) Garibay counters that he qualifies as disabled under all three possible definitions. (Doc. 32, at 10–13.) Because Garibay has presented sufficient evidence from which a reasonable jury could conclude that he has an "actual disability" pursuant to the first definition in 42 U.S.C. § 12102(A), the Court need not evaluate whether he has shown that he is disabled under the alternative definitions in §§ 12102(B) and (C).
As relevant to the first definition of "disability," the ADA provides the following non-exhaustive list of "major life activities":
caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.
42 U.S.C. § 12102(2)(A). Major life activities also include "the operation of a major bodily function," such as "functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions." Id. § 12102(2)(B). The Sixth Circuit also looks to related federal regulations in determining what qualifies as a "major life activity" and does not interpret the term "major" in a strict manner that would create a demanding standard. Hostettler v. College of Wooster , 895 F.3d 844, 853 (6th Cir. 2018) (quoting 29 C.F.R. § 1630.2(i)(2) ). In determining whether an alleged disability substantially limits a major life activity, courts should "compare the person claiming a disability to ‘most people in the general population.’ " Id. (quoting 29 C.F.R § 1630.2(j)(1)(ii) ). Notably for this case, the ADA provides that "[a]n impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active." 42 U.S.C. § 12102(4)(D).
Garibay maintains that his PTSD qualifies as a disability under this first definition because, "[w]hen active, [his] PTSD substantially limited the major life activity of sleeping." (Doc. 32, at 11.) He also cites to a federal regulation that provides:
[T]he following types of impairments will, at a minimum, substantially limit the major life activities indicated: ...major depressive disorder, bipolar disorder, post-traumatic stress disorder, obsessive compulsive disorder, and schizophrenia substantially limit brain function.
29 C.F.R. § 1630.2(j)(3)(ii) (emphasis added) (also noting that "[t]he types of impairments described in this section may substantially limit additional major life activities not explicitly listed above"); (see Doc. 32, at 11 (citing id. )). Defendant does not respond to Garibay's argument that his PTSD qualifies as an "actual disability" under the first definition. (See generally Docs. 26-1, 33.)
There are two unpublished Sixth Circuit cases holding that a plaintiff's PTSD did not qualify as an actual disability under the ADA. See Tinsley v. Caterpillar Fin. Servs., Corp. , 766 F. App'x 337, 344 (6th Cir. 2019) ; Lane v. Bell Cnty. Bd. of Educ. , 72 F. App'x 389, 396–97 (6th Cir. 2003). However, Tinsley and Lane are easily distinguished from this case because the plaintiffs in each of those cases claimed that PTSD substantially limited only the major life activity of "working." See Tinsley , 766 F. App'x at 342 ; Lane , 72 F. App'x at 396. In the Sixth Circuit, when the major life activity affected by a disability is working, the individual claiming ADA protections must demonstrate that she is "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." Tinsley , 766 F. App'x at 342 (quoting Swanson v. Univ. of Cincinnati , 268 F.3d 307, 317 (6th Cir. 2001) ) (noting that this analysis survives the 2008 amendments to the ADA). However, it is only in the " ‘targeted situation’ where an employee asserts that her impairment substantially impacts the major life activity of working" that the individual "must also show that her impairment prevented her from performing a class of jobs or broad range of jobs in various classes." Id. at 344 ("Although Tinsley could have conceivably articulated her claim in terms of other, non-work-related life activities, Tinsley has identified only the major life activity of working.").
Here, Garibay claims that his PTSD, when active, substantially limits the major life activity of sleeping, as well as his brain function. (Doc. 32, at 11.) Other courts have found that PTSD can qualify as a disability under the first ADA definition when the plaintiff presented some evidence that the PTSD substantially interfered with a major life activity other than work. See, e.g., Kurtzhals v. Cnty. of Dunn , 969 F.3d 725, 728 (7th Cir. 2020) (holding that the plaintiff "does not need to establish that his symptoms interfered with his ability to work; it is enough that they substantially interfered with any major life activity"); Flynn v. Mid-Atlantic Mari-Time Acad. , No. 2:18-cv-502, 2019 WL 7859409, at *8 (E.D. Va. Jul. 30, 2019) (finding that plaintiff had satisfied the first element because "PTSD can constitute a disability under the ADA" and plaintiff had submitted evidence that her PTSD substantially affected life activities). The Court is satisfied that the evidence that, when active, Garibay's PTSD substantially limits his sleeping—especially taken in the context of the federal regulation identifying PTSD as substantially limiting brain function, 29 C.F.R. § 1630(j)(3)(iii), and the ADA's mandate that the definition of "disability" be broadly construed—presents at least a genuine issue of material fact as to whether he is disabled for the purposes of the ADA. At a minimum there remains a genuine dispute of material fact as to whether Garibay qualifies as disabled under the ADA. Accordingly, the County is not entitled to summary judgment on this basis.
In several other cases, the employer-defendant did not challenge the characterization of the plaintiff's PTSD as an actual disability for the purposes of the ADA. See, e.g., Trahan v. Wayfair Maine, LLC , 957 F.3d 54, 64 (1st Cir. 2020) ("The parties stipulated that Trahan suffers from PTSD, and Wayfair concedes that she was disabled within the meaning of the ADA by reason of her PTSD."); Rodriguez v. Eli Lilly & Co. , 820 F.3d 759, 765 (5th Cir. 2016) (noting that the parties did not contest that the plaintiff's PTSD qualified as a disability under the ADA); Diaz v. City of Philadelphia , 565 F. App'x 102, 105 (3d Cir. 2014) (parties agreeing that plaintiff with PTSD was disabled under the ADA); Jarvis v. Potter , 500 F.3d 1113, 1123 (10th Cir. 2007) (noting that the defendant did not dispute that plaintiff with PTSD "was an individual with a disability").
B. Whether Garibay Was Otherwise Qualified to Perform the Job
Under the ADA, an employee is a "qualified individual" if he can perform the essential functions of his job with or without a reasonable accommodation. 42 U.S.C. § 12111(8). In determining whether a particular function is essential to a position, the ADA directs that:
consideration shall be given to the employer's judgment as to what functions of a job are essential, and if an employer has prepared a written description before advertising or interviewing applicants for the job, this description shall be considered evidence of the essential functions of the job.
Id. Additionally, federal regulations implementing and interpreting the ADA direct that the following non-exhaustive list of factors should be considered in determining whether a job function is essential to a position: (1) the employer's judgment; (2) the written job description; (3) the amount of time spent performing the function; (4) the consequences of not requiring performance of the function; (5) the work experience of past incumbents of the position; and (6) the current work experience of incumbents in similar jobs. 29 C.F.R. § 1630(n)(3); Camp v. Bi-Lo, LLC , 662 F. App'x 357, 361 (6th Cir. 2016). In determining whether an individual is qualified for a particular job, the ADA requires an "individualized inquiry into the individual's actual medical condition, and the impact, if any, the condition might have on that individual's ability to perform the job in question." Holiday v. City of Chattanooga , 206 F.3d 637, 643 (6th Cir. 2000) (citations omitted).
The County argues that Garibay was not qualified for the corrections-officer position because he did not meet the statutory requirements for corrections officers within the State of Tennessee. (See Doc. 26-1, at 5–7, 13.) Tennessee Code Annotated § 41-4-144 provides that:
any person employed as a jail administrator, jailer, corrections officer or guard in a county jail or workhouse shall ... have been certified by a Tennessee licensed health care provider qualified in the psychiatric or psychological field as being free from any impairment, as set forth in the current edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM) of the American Psychiatric Association at the time of the examination, that would, in the professional judgment of the examiner, affect the person's ability to perform an essential function of the job, with or without a reasonable accommodation.
Tenn. Code Ann. § 41-4-144(a)(9). This requirement is "mandatory and binding upon any municipality, county or political subdivision" in Tennessee, and anyone who hires an applicant that fails to satisfy this condition commits a class A misdemeanor and is subject to a fine. Id. § 41-4-144(b)(1)–(2). Garibay does not dispute that he was subject to this requirement. Instead, he argues instead that (1) Dr. Brookshire's failure to certify him as qualified for the position violated the ADA because Dr. Brookshire did not engage in an "individualized inquiry" as mandated by the ADA, and (2) he was otherwise qualified to perform the essential functions of the job without accommodation. (Doc. 32, at 15–23.) The Sixth Circuit's decision in Holiday v. City of Chattanooga is instructive here. In Holiday , the City withdrew a conditional offer of employment as a police officer from the plaintiff after he failed a state-mandated physical examination. 206 F.3d at 640–41. Pursuant to Tennessee law at the time, all police officers were required to pass a physical examination, which the City contracted outside physicians to perform. Id. (citing Tenn. Code. Ann. § 38-8-106(7) ). During the examination, the plaintiff informed the examiner that he was HIV positive. Id. at 641. The examiner determined that the plaintiff was unfit to serve as a police officer, and the City subsequently withdrew its conditional offer. Id. The plaintiff brought a disability-discrimination action under the ADA, but the City argued "that it withdrew its conditional offer only because Holiday did not fulfill an essential requirement of the position: that he pass the physical examination mandated by state law." Id. at 642. The City maintained that the plaintiff was not qualified for the job because he "did not fulfill the statutory requirements." Id. The district court agreed with the City, finding that it could rely on the medical opinion of the examiner, and granted summary judgment in favor of the City. See id. at 643. On appeal, the Sixth Circuit reversed, holding:
Although the County itself did not conduct the evaluation, the County can still be liable if it relied on a discriminatory evaluation as "[e]mployers do not escape their legal obligations under the ADA by contracting out certain hiring and personnel functions to third parties." Holiday , 206 F.3d at 637 ("The ADA expressly prohibits employers from ‘participating in a contractual or other arrangement that has the effect of subjecting a covered entity's qualified applicant or employee to ... discrimination.’ " (quoting 42 U.S.C. § 12112(b)(2) )).
The district court erred in accepting [the examiner's] report as dispositive evidence of [the plaintiff's] alleged inability to serve as a police officer, where (i) there is no indication that the physician conducted the individualized inquiry mandated by the ADA and (ii) [the plaintiff] has adduced sufficient evidence to raise an issue of fact as to whether he is otherwise qualified to perform as a police officer.
Id.
i. Individualized Inquiry
An ADA-compliant evaluation of an applicant's ability to perform a particular job requires consideration of the applicant's specific personal characteristics and the impact of any underlying condition on the performance of the essential functions of the job. Keith v. Cnty. of Oakland , 703 F.3d 918, 923 (6th Cir. 2013) (citing Holiday , 206 F.3d at 643 ) ("The ADA requires employers to act, not based on stereotypes and generalizations about a disability, but based on the actual disability and the effect that disability has on the particular individual's ability to perform the job."). A cursory examination, without more, amounts to discrimination against the disabled applicant. See, e.g., id. at 923–24 (no individualized inquiry when examiner "briefly reviewed [applicant's] file" and "declared, ‘He is deaf; he can't be a lifeguard’ "); Holiday , 206 F.3d at 644 (no individualized inquiry when examiner's report "cited [applicant's] HIV-positive status as support for the physician's opinion that he was not fit for police work" when there was no evidence that the examiner "attempted to determine whether [applicant] actually experienced fatigue, sluggishness, shortness of breath or any other symptom of physical weakness or lack of endurance"). By contrast, an examination in which the examiner spends adequate time learning about the potential impact of the applicant's condition on specific job functions satisfies ADA. See, e.g., Michael v. City of Troy Police Dept. , 808 F.3d 304, 307–08 (6th Cir. 2015) (evaluation was ADA-compliant when applicant was examined by two physicians, one for seven hours and one for ninety minutes, and both physicians wrote multi-page reports drawing direct connections between characteristics of applicant's condition and affected job functions).
Here, there is at least a genuine issue of material fact as to whether Dr. Brookshire's examination of Garibay satisfied the ADA's individualized-inquiry requirement. Although Dr. Brookshire's examination was certainly more than a cursory examination—he reviewed Garibay's MMPI test, his medical records, and interviewed him for forty-five minutes—a reasonable jury could conclude that he failed to consider the characteristics of Garibay's actual condition and the impact of those characteristics on specific job functions. For example, during the phone conversation with Mrs. Garibay, Dr. Brookshire stated that people with a history like Garibay's "are not considered suitable for this type of work" and that "as soon as [he] got the VA records [he] realized, okay, [Garibay's] out of the box ... he doesn't qualify for the evaluation really." (Doc. 27-1, at 180.) A reasonable jury could construe these comments as "stereotypes and generalizations," rather than an individualized assessment of Garibay's condition. See Keith , 703 F.3d at 923 (citing Holiday , 206 F.3d at 643 ). In fact, Miller, an HR employee for the County, testified that Dr. Brookshire "doesn't do the interview process if [applicants have] ever been treated [for mental-health conditions] before, he gets those records as well and he reviews those as well and then he says he cannot pass [the applicant]." (Doc. 31, at 12.) Further, in an affidavit submitted in connection with this litigation, Dr. Brookshire states:
I was unable to certify [Garibay] as "qualified" because, based on the totality of information I considered, including my interview with Mr. Garibay, the original scoring report and my interpretation thereof, the records I reviewed, and the fact that Mr. Garibay has been determined to have a fifty percent (50%) mental disability based on his diagnosis of PTSD by the VA, I could not make a reasonably confident statement that Mr. Garibay would not experience a recurrence of his PTSD symptoms while engaged in his duties as a law enforcement or corrections officer[.]
...
In my professional opinion, having personally interviewed Mr. Garibay, and reviewed various psychological and mental health reports and records regarding Mr. Garibay, he cannot be certified as "qualified" to hold a position with HCSO or any law enforcement agency because he suffers from a potentially debilitating mental illness, and the symptoms and presentation of that condition cannot be safely predicted or prevented.
(Doc. 27-1, at 69–70.) A reasonable jury could construe Dr. Brookshire's statements as implying that no person who has ever experienced PTSD would be fit for service as in law enforcement because PTSD is "potentially debilitating" and its symptoms are unpredictable. Contra Hoback v. City of Chattanooga , 550 F. App'x 257, 258 (6th Cir. 2013) (upholding a jury verdict in favor of an ADA plaintiff with PTSD who was terminated from his position as a police officer after a psychological evaluation declaring him unfit for police work).
In Holiday , the Sixth Circuit further explained:
If an employer believes that a perceived disability inherently precludes successful performance of the essential functions of a job, with or without accommodation, the employer must be correct about the affected employee's ability to
perform the job in order to avoid liability; there is no defense of reasonable mistake. Any other outcome would defeat the ADA's attempt to eradicate what may be deeply rooted and seemingly rational presumptions about the abilities of the disabled.
206 F.3d at 644 (emphasis added) (quoting Taylor v. Pathmark Stores, Inc. , 177 F.3d 180, 193 (3d Cir. 1999) ). Here, as in Holiday , there is at least a fact question as to whether Dr. Brookshire considered Garibay's specific symptoms and his ability to perform the essential job functions of a corrections officer or whether he relied on generalizations in violation of the ADA.
ii. Ability to Perform Essential Job Functions
Garibay also argues that there is sufficient evidence in the record that he was otherwise qualified for the corrections-officer position. (Doc. 32, at 15–16.) Specifically, Garibay points to his employment as a corrections officer at the Bledsoe County facility and as a juvenile-detention officer for the Hamilton County Juvenile Court. (See id. )
The County argues that the Court should not rely on Garibay's employment in these roles in considering whether he was qualified for the Hamilton County corrections-officer position. (Doc. 26-1, at 12–13.) It argues that the psychological evaluation Garibay underwent prior to working at the Bledsoe County facility did not include a review of his medical records and did not consider his PTSD. (Id. at 12.) The County also argues that the psychological assessment Garibay underwent was only valid for one year, and, thus, Garibay's condition could have changed subsequent to that evaluation. (Id. at 12–13.) Finally, the County argues that the Court should not consider his employment with the juvenile court because he was not subject to the same statutory requirements in that position—i.e. , he did not have to undergo a psychological evaluation. (Id. at 13.)
Garibay disputes this, stating that he disclosed his PTSD during the evaluation. (Doc. 32, at 8.)
Importantly, the County does not argue that Garibay was unable to perform any essential functions of the corrections-officer role; it only argues he was disqualified because he was not certified as free from any impairment that would affect his ability to perform essential job functions, as required by Tenn. Code Ann. § 41-4-144(a)(9). (See generally Doc. 26-1; Doc. 33.) Accordingly, there is very little briefing on the precise job functions that are essential to the corrections-officer position and whether Garibay could perform those job functions with or without a reasonable accommodation. Because the "otherwise-qualified" inquiry is primarily concerned with ability to perform job functions and because there is a genuine dispute of material fact as to whether Dr. Brookshire properly analyzed whether Garibay, individually, could perform the specific functions of the job, there is a genuine dispute of material fact concerning whether Garibay was qualified for the corrections-officer job. Therefore, the Court will not grant the County's motion for summary judgment on this basis either.
IV. CONCLUSION
For the reasons set forth above, the County's motion for summary judgment (Doc. 26) is DENIED.