and it's also a two page opinion it doesn't give a very elaborate recitation of the facts in that case does not have a lot of negro analysis given the importance of the issue at stake and the stakes of what the district court did here i think it's a evidence to silicate that man was not qualified psychologically qualified to be a police officer and he had no evidence to imply that there was a detailed psychological report there in which the psychologist explained exactly what she observed during her interview that major be convinced her that he was not qualified here based on the allegations of our complaints there is an actual and they are we have new report but what we asymptomatic his condition is controlled with medication has been for several years now he is well qualified to be a police officer he's been a police officer multiple jurisdictions both in ohio and in pennsylvania  marines he served overseas two tours of duty there's no history of disciplinary problems there's simply no basis other than his age the diagnosis to disqualify him as a police officer that there was an adverse employment action taken against him with regard to whether or not he is disabled i would like to point out that the lower court actually used the wrong stander to definition is and person is regarded as having an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit major life activity and that's in the statute it's at forty  appropriate standard is in this case don't come across to focus on what the district courts separation of off sparked responsibility for its own decision from the psychologist was the district court what is your perspective response to that just the court's unwillingness to impute the psychologists judgments to the city under the ada well i think if you look at the allegations that we've made in our complaint we have very clearly tied the city of pittsburgh to the discriminatory enemies of the then we said colleges for it have yours the psychologist there is psychologist so i don't see any basis i don't see why they would not be liable based on grammar spondee superior or for whatever the psychologist did just like any private employer that hires a medical professional to do medical insurance examinations  the lower court's decision ignores specific provisions in the americans with disabilities act with regard to employee entrance exams and qualification requirements a specifically set out regulations and rules regarding when an employer can make disability related inquiries in connection with and claimants or hiring somebody and they specifically have regulations congress talks about employee entrance exams they are ok they don't need to be job related in consistent with business necessity however if an employee entrance exam is going to screen out somebody they're going to pull the cation requirements to screen out somebody who would be disabled then those qualifications were going to themselves have to be job related inconsistent with business necessity and that is an affirmative they'd ever even filed an answer and use that as a basis to dismiss and that has the effect of completely insulating the city's decision making in the city psychological examinations ringback for any review whatsoever because as soon as a person comes into court and can't plead that they passed the psychological examination that they are complaining about they immediately have met the prime if they should case and they're out of court again  i would also like to point out because i think it's really important if this court were to the lower court decision it would have the effect of all wowing state and local government if the state or the city were to pass a law that says all hairdressers have to pass a psychological examination no hairdresser could ever bring in a d h a claim because any hairdresser that doesn't pass a psychological examination cannot plead upon the basic case they can never clear that they will slow five because they didn't meet statutory rape or statutory requirements for that position and they would never be able to get past the initial pleading state like christopher biggs could and that we know that that cannot be what congress intended in eighty eight dollars we know it because that would completely read out of existence the regulations and  under some circumstance rely on state law to insulate their psychological examinations from review even if they could say what they would they have said here that because the state law requires or forbids us from hiring somebody that didn't pass an exam we were forbidden were you know we will not be able to hire his officers even if they can say that in some circumstance which i think would be inappropriate here didn't they can't say that here because they didn't give the psychological exam that the state requires they proposed a different a different exam with different procedures and different standards that permits award your group of people to be excluded who permits people to be excluded based on reasons that are not included in the state so just because somebody doesn't pass the city you may please the court my name is julie coren and i represent the appellee the city of pittsburgh we're going to be arguing or talking i'm going to be talking about the four major issues that were brought up on appeal by the appellant which i understand to be questions of whether the court the district court applied the right standard whether the district court was proper to rely on cook whether the district court required the appellant trend to dissipate affirmative defenses and whether or not the district court no consequences of this diagnosis is very bizarre i mean it's a little bit strange it makes you it makes the court have to wonder i would imagine that what was what were the psychologist allegedly relying on to believe that this person was disabled or couldn't do the job or rather was a psychologist or merely doing what they were hired to do by state law and what cook and station is all right let's just clarify and you're not disputing that the is still covered so there's no basis for saying that someone who's currently symptomatic is not covered by the law you're not disputing that standard no i'm not disputing that but what i guess there is a pretty big difference between that type of diagnosis and the prejudices and judgment that comes along with that versus a ph d and what we're having here in we have a situation where a person who has apparently never been a symptomatic and there's no facts in the there's no such requirement well i went this agree into the fact that there would have to at least be facts in the complaint that raise a reasonable inference that the person's one of their major life activities are  effect on test taking and other stuff all those complaints can be dismissed if they don't just say i have a d h d or autism or something like that no i disagree with that i would say that this case is unique because we have a person behavior when he was younger so i don't see any allegation that disclaims in effect can we or if unless someone you know if someone played some got type one diabetes does the person also have to played and insulin has not been one hundred percent successful in controlling it that seems to be the thrust of where you're going but it can't be the case that someone on hiv has to plead something about whether retroviral is a working or a diabetic has to plead something about insulin i'm not aware of any authority  merely alleging that you have a d h d substantially affects major life activities like driving or taking tests or concentrating to read i mean the court in drag didn't you know that i think that's a that's a harder case because  underlying genetic markers so why is not alleging a t t alone enough unless you plead it has never affected anything in my life which i i don't see how he would plead to that here well i think by arguing that he is asymptomatic and that he's never had it affect his job in a way does allege that and i would also argue that the difference between a tribe b which can be dormant for a very long time versus age here as you describe two different in cook here what i believe the holding was that the post conditional offer exam the psychological exam as required by the pennsylvania state legislature in cook the holding was that type of examination was job related and consistent with business assessing so well no but no one no one argued in cook that the exam was botched i think the court said there's no and there's been no biased but i don't think there's any factual support that the court was able to rely on what we know about whether cook is whether cook gets you there and the district court reasoned that forgives to when you had to be biased not just psychologist do you agree with that distinction between yourselves and the psychologist you hired and if so what's your authority for it i believe that you think could get support stepped in yes in a way cook i believe argued that but for one psychologist opinion the officer was otherwise qualified and the court in cook determined that because he was not able to pass the psychological examination essentially be certified that he had the re how is it that you can avoid liability by contracting out the test i don't think that there is an effort to avoid liability there i think that there is a factual gap in the i guess it would be proximity or inference that can be raised so if you're not saying that you cannot be liable for the psychologist you hire which i think is what the discoursing you're saying that factually there's a good reason not to have you psychologist as biased or not to impute that to the city i'm trying to understand the logic i think factually and there's no allegation that the psychologist did anything that wasn't prescribe according to the law and they didn't treat him differently or require him to g argument about these other people who had behaved similar ways when they were teenagers but didn't have a ph d and the psych psychologist is kind of way that guy and for him the only reason the psychologist didn't excuse similar juvenile behavior  because it was connected to an a b a diagnosis why isn't that enough to get discovery i think there's cubit issues with that number want to think that three i guess they're all conclusory allegations that really do recites elements of the claim number two i  didn't pass a psychological examination there's no facts alleged there he's saying that people were treated similarly and were hired but there's no allegation showing that they i asked him specifically about his a just because they ask about these adolescent behavior and because they have other people about and that makes them the same and it actually dispels some of the allegations because i think i'll ask you mr cutler can answer st i don't think she's disputing that they can ask these questions the that the issue is how they used it his argument is i head i answered the same questions i admitted to the same juvenile conduct i also created a record that mine was under proper control and i wasn't having these problems now and yet they either because i was disabled because they regarded me as disabled they treated b differently based on the same answers and the same history of behavior the difference was the diagnosis what's your response to that point that i think miss coleman is making i think the response is that whenever you look at the state law does allow the psychologist to ask about all of the questions relating to their personal experience job experience and beyond and i think that there is another factual issue that we have in the oral relationship between e behaviors that are alleged and the time where they're supposed to be regarding or allegedly regard to psychologists or dependents allegedly regarding the plaintiffs a an examination that was any different and even if the outcome was different to say that it was based on something that happened or only time wise decades before it is not somehow automatically raise an inference that in two thousand and seventeen when he applied the psychologists or the city believe that some kind of behavior that happened decades before or a decade before would continue in the future or there's no inference that can be raised  that you have on your four point to think we've talked about one and two the standard in cook i do want to leave you time to get to three and then to spatial of defenses but i would like to get two four which you reference just now which is the role of pennsylvania state law in the city code versus the eight let's suppose pennsylvania law said to qualify as a policeman an applicant must not have a d h d even if it's under control and then not only to comply with the law you refused to hire gets the psychologists check that box and you said ok sorry he doesn't call i was state law i didn't pass a psychological exam would give us have an eighty eight claim i believe in that situation yes not a difference ok so you are you do not and cannot contend that pennsylvania state or city code city could be liable i'm making a factual argument that because the psychologist followed the state law that in cook this court determined was essentially a prerequisite for the job but having the exercising appropriate judgement or restraint in performing the duties of a police officer is different than saying we don't want anybody with there is a difference between these two issues factually and one thing that comes up i think it's the case coleman  which is also a rd circuit common because pennsylvania state police what it was also reported but it relates to a police officer who was hired on probationary status and in that case the rd circuit has said making sure all masters are fit for duty is job related and consistent with business necessity and then look at that also in the context of cook it says this particular type of examination as required by pennsylvania state law thirty seven p eight code two hundred and three quite eleven is job related inconsistent with business necessity so this doesn't insulate but in this factual scenario between those two cases and in the previous case plus an asymptomatic person who has an allegation of an alleged impairment that is not automatically considered by the rd circuit to be a disability under the a t f a there is no factual scenario that raises a reasonable inference that they are entitled to discover i think i argue in the alternative but i do wonder how those two explanations fit together the the argument is that the psychologist determined he was psychologically incapable to exercise appropriate judgment restraint in performing the duties of a police officer operable thing that we see here is that there's two things really that work right holdings in cook the number one was that this type of psychological examination was job related and consistent with businesses that city so we know that the administr itself was not necessarily just the simple fact that he didn't get his job was not enough to raise an inference that he was discriminated against because we know that and it minister in this post contingent offer medical examination or mental health examination was permitted in actually passing it is required so if he's not able to pass it because of his answers during the test or because the psychologist opinion then that puts people who are hiring in a in a catch twenty two  they automatically have to hire someone that they are not sure can exercise their appropriate judgment or restraint and they're also not doing their job in making sure that a person is fit for duty and it means that they would automatically have to disregard these and and it would go against the grain of cook saying that this type of psychological examination is job related and consistent with business excessively you know so i guess i'm arguing kind of like the opposite you know we're hearing arguments that simply because he failed so saying because he failed the psychological examination he cannot pass it automatically in sleep that's one side of the argument the other side is that every time a person doesn't  that automatically mean even if they have a diagnosis that doesn't automatically or isn't per se a impairment under the a p a automatically has a federal lawsuit no i don't in the complaint in different phrases it's still a conclusion if there is no fact so you know that just the mere possibility of misconduct is not enough to get you pat passed a motion to dismiss stage there has to be a reasonable inference that the person is entitled to relief and here i would argue that simply having a diagnosis that you in your adult life and in your professional life at work never suffered from and was not necessarily even asked about at the psychological exam is not enough to raise a reasonable inference that the psychologist were purposefully doing something to discriminate against him or determining he wasn't able to requisite employ the right amount of judgement for the job simply because he did not  in the psychologist report about the city's knowledge about the basis for the psychologist decisions are not conclusory allegations there are very specific allegations and they are based on information that was communicated to counsel from an hired people who had behavioral issues as children even as adults but did not have each day diagnoses are also based on actual specific information council has had access to d their knowledge and not conclusive or they're not they're not based on supporting information belief problem is we need to get into discovery to be able to get things like the doctor's report to be able to get things like the information about the other candidates who are higher than the other candidates that were rejected in the district beginning of the argument about whether he's alleging that he's currently disabled or he's alleging that he's not currently disabled to be clear he was diagnosed with it he has been diagnosed with steve he had behavioral problems in his youth is on medication he's been on medication since two thousand and thirteen his symptoms are controlled and he is currently asymptomatic while we are alleging is that the city of pittsburgh based exclusively on his  allegations about the psychological exam it self which is a paragraph twenty six to thirty three those allegations say that the psychologists knew that he was diagnosed with a d h di the city knew the psychologist knew he told them and then as soon as he told them in the interview about his a d h e a d h d they immediately focused on the a d h the diagnosis and on his his youth the problems that he had before he was diagnosed they didn't ask him anything about his current symptoms they didn't ask him anything about how medication had a new year a get their symptoms they simply focused on the diagnosed in his  told them that he was diagnosed with a d t they focused on behavioral problems associated with each day that he is not experienced in the years and then that combined with the fact that he is obviously an accomplished law enforcement that at a minimum stands for the proposition that state regulations and state guidelines that exclude people because of their disability are reviewable and they are subject to the business  test here all we're asking is that the city of pittsburgh be required to plead and prove that the reason they disqualify him was because of some objective issue with his behavior an objective concerns about his behavior