Tullos v. City of Nassau Bay

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should not be published and is not precedent except under the limited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.”
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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.
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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
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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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