appellant michael in this case this case is comes to us with relatively narrow issues comes out of summary disposition summary judgment and we have an eighty eight claim where my client was constructively discharged as a police officer for the city of troy after surgery for craniotomy for a benign mass in his brain now this case has a long history going back many years but through the opinion of the district court it's been essentially narrowed down to what i see as two issues before this court the first issue is whether or not there was a failure to accommodate my client the second issue is whether or not he was qualified to be a police officer now those two cases say that do you mean the police officer who works dispatch or do you mean out in the field wonderful question and it's a good question because when we took depositions and looked into this issue we found that a lot of those positions are no longer filled by sworn police officers therefore they're filled by civilians and outside standard employees but the curious feature of this case is that on march seventeenth two thousand and nine as cited in our brief and in the underlying court mr mr michael was assigned to the office of the chief of police which is a preliminary measure in a disciplinary action there was a question about whether or not he had wrongful that's something that's known in the department that's not something known to that would be known to us that i had the prelude for discipline it's the first time i had heard of it it's explained in the letter that essentially it says in the letter that he shall turn in any department what weapons identification keys but most importantly shall take no police action whatsoever until further notice this was his status on march seventeenth two thousand and nine six days later he notifies the city that he's going to need another surgery now his status then means that it was at the time that all of this was material was more  can to being in dispatch to directly answer your question his status as the disciplinary aspect come in didn't you say that it's a new one is assigned to the chiefs right it's it's it's it struck me that you were tipping do you say about that conduct what was it said irrelevant at this point the allegation was that he was associating with a known felon but that's not your point your point is this is his status right his status at the time what he was doing as a police officer for the city of troy was simply calling in four days a week to see what his status was he had no weapon he had no badge we had no identification this was basically a holding pen that the chief of police testifies that they might use for disciplinary action they might use that for an officer who was involved in a violent episode like the shooting they might use it for an officer who was who was having some stress related issues is general catchall holding pattern now here's the thing while he was in that position he was had full pay and full benefits it was only almost a year later in january after they sent him for his is examinations by dr van horn that they then moved him to what they called it  union where the city attorney in its in a pleading that todd michael was not an employee when we deposed the chief of police i asked him what was todd michael's employment status he couldn't tell us he searched for the word and he couldn't say whether or not he was an employee or not that's a construct of fire i ask you this your disability claim is a regarded as your position is your man in fact is not this able he's able to be a police officer but the apartment bill regarded him as they will because of these well three craniotomies but the last one in particular is that correct well just a little just for candor towards the tribunal we're almost six years later now at this point mr michael could not be a police officer i will be candid to the tribunal but back then in two thousand and two thousand and ten two thousand level two thousand and twelve he could have been a police officer that was the position up until we filed suit ok now your your position and i gather the district court return but he said well yeah but they didn't do individual eyes inquiries so we're going to disregard those opinions is there any problem with that i think so i think the judge was weighing credibility of of the doctors she was engaged in ounces that was more proper for the jury under the district court's analysis under judge levy's analysis essentially if the if the city has an individual inquiry from a physician that's all they need to rely upon they don't need to rely on anything else they don't need to do the city itself doesn't need to do in individual eyes inquiry about the continued employment of the appellant by way of example on the same diagnosis individualized in always medical me you're not speaking it's always a physician i don't know if it's always a physician but in this case and in a guess it could be ok ok sure expert something i would think so yeah but in our case we're talking in our case and in the case that diagnosed with this ailment he had the same or similar same or similar treatment same or similar symptoms and returned to work in two thousand and one on a simple doctor's no without an individualized inquiry by any physician from the city and was hailed as an inspiration upon his return but there were a number of things that happened between us right i mean i want to ask you some questions about the statute  sort of the statutory question that were answered in this case but i mean since you bring up that factual aspect of the case at the time they put them on administrative leave they have not only some doctors opinions  van horn etc regarding whether he has the executive functioning to do the the functions of his job and i don't when i go through this i do not mean to attack your client this time by the time of the third surgery now after i mean you're aware that they get a report that is accompanying a drug dealer to drug transactions for reasons that are really m this cat tails incident they don't know if that really happened but they do have jamie i guess his wife at the time i think tell them  that he told her that he cut these cat tails off and attempt to intimidate his wife we have this you know recording of the chief craft and then we have this episode where he serves the chief with a summons at the chief's retirement party so i mean one could i think quite reasonably say this is bizarre behavior and it's perhaps behavior that is consistent with somebody who's executive kind of frontal lobe functioning is impaired by a brain condition and is a that something in addition to the opinions the medical opinions that that we have to somehow take into account when we make a decision about whether there's a genuine issue that the employer act acted based on stereotypes about people who have brain tumors or on the basis of a decision that this person is not able to carry a weapon and do our functions you know i think i  chief mayor had already made the decision to terminate my client before he was even a chief back when he was a captain in one thousand nine hundred five he issued a memo indicating that we need to terminate mr michael he had already made that decision decision a decade and a half before and it was only when he became the chief of police that now he was a hammer and everything looked like a nail to him well i mean you know if he decided he would if there was something that said let's say he had a brain problem at that time and you know i don't i just don't like being around people that are brain tumors and he had written that down maybe that's direct evidence of discrimination but if they just had some bad blood that's not actionable regularly answer your question about those allocate i mean aren't they germane to the legitimacy of the decision i don't i don't think so ok i don't think so because for example number one serving somebody with a lawsuit mr michael didn't do that a process server did that they make some may make some arguments about like the timing in the direction that he was doing he was doing it as an agent but i'm engaged in civil litigation i'm allowed to serve people ok is all right not be the best judge of that but what about the others i mean though the associating with the with the felon that was never substantiated he had been placed on this administrative holding position the office of the chief of police while that was investigated right he had been previously investigated and was  ed on other issues you know i would hate to be subject to just allegations like that and be disciplined as a result or have that count against me then the can't tell the issues about these stare these alleged steroids all that kind of stuff when we when we depose chief chief mayer we were able to say i think it's in the testimony that every other allegation is traced back to an x wife and i would hate for the ex wife to be the gate keeper of one's continued employment that just doesn't seem to be a fair standard certainly mr michael might be a colorful individual and i actually see it as problematic that the chief or the city would utilize not only the report of van horn but then twenty years of you know personal opinion observations rumors statements from ex wives a lot of this is right now for the third brain surgery a lot of it was before so a lot of it was before so i think one could argue that well i can look at that in conjunction with van horn's opinions and i can i can use t was stated here but they're relying upon more than that they're relying upon their own layman opinion about an ex wife talking about tales in a box let me ask you about the statute  to just go back to well what is the statutory question which trying to answer in this case yes and so the statute bars employers from quote discriminating or discriminate against a qualified individual on the basis of disability do you is it fair to say the question in this case is whether he was placed on unpaid leave because on the one hand or as one possibility because of stereotypes about brain surgery or people with brain tumors on the one hand or which is actionable or on the other hand because they thought correctly or not that he was not able to do the functions of his job right i think i think that a fair yes ok yeah and that that i think is is what it comes down to is is as the district court noted the issue is whether or not the city was required to provide a read reasonable accommodation they suggest that because he said he wasn't disabled in the case law supports that he wasn't disabled that the city doesn't have to give him a reasonable accommodation but the workman opinion upon which the city of police which required none of those essential policing functions and that investigation would have completed but we never had that happen thank you ron thank  please the court cradling appearing on behalf of the city of detroit in this matter your honor to answer your question that you asked this cannot be put on the process or in terms of serving judge craft that is retirement party in the lower court record thirty document two page and five ninety three in his deposition i asked these questions and obtained these answers from a point of todd michael question did you direct that you wanted the chief served on march thirteenth two thousand and nine answer yes question and did you know in directing that the chief be served on march thirteenth two thousand and nine that that was the date and time of his retirement party answer yes and did you specifically question him did you specifically intend to have the chief chief serve during that retirement party answer yes question and you believe that your intention to serve a man who you called a friend a man who you indicated was your christian brother is it your opinion that your firm intention to have him served at this retirement party was an exercise of good judgment answer yes in terms of the comments concerning his ex wife i asked in the same deposition i asked the question he tape recorded his wife at a marriage counseling session no less i said question do you think that secretly tape recording your wife is a marriage counseling in a marriage counseling session is an exercise of good judgment he said in answer extreme question do you think that seeking to have your wife church with perjury the mother of your children was an exercise of good judgment yes so the things this record march two thousand and nine well that's the that's the question you know you got some doctors say yeah it was affected by the crying out of several who say no it wasn't i like to speak to that if i mean your honor i think that  the tast is whether or not the city of troy relied on reasonable medical judgment i think that's what result he chose us and other other cases of this circuit and in getting to that we have to look at c week they both there's three parts to this individualized inquiry as i see it in holiday versus chattanooga number one you have to do a medical assessment number two you have to know in analyze what are the job responsibilities one of the duties the distant descriptors of what this person does and third you have to then apply the medical condition to the job in a subtle and decide whether or not it's going to adversely impact the performance of those duties dr van horn dr c wick and his own neural psychologist dr billy ask us from the university of michigan all did that they concluded that based upon the neural psychological evaluations that they conducted objective neuroscience psychological evaluations the the they had discussions with  michael they interviewed him they were substantial all three of them and then they had the job descriptions for troy police officer and when you review all three of their reports that are in the record you will see that they enjoy to do exactly what an individual inquiry is supposed to be well and i mean we we are familiar with that yes important part of the case but this case i mean let's set aside the wurzel case for whatever reason it wasn't published in this case is perhaps the first one that where on the one hand the employer does have medical opinions that  they've got to be individualized i mean seven hours of in person interview with the plaintiff so they have that on the on the one hand but on the other hand mr cho fee and others would say there are actually individualized opinions on the other side and we don't really have a case where it's not just on the side of the employer so this this is a different situation and  feet genuine issue of material fact as to what exactly what exactly is the question the statutory question that this evidence is supposed to be answering i think  to answer your second question first it's whether he's otherwise qualified and i just should note for the record that i believe that the sixth circuit is against the prime of fish a case it's not seven or br the it's versus caden pleading it's not a three part test but both the prior test that was applied by this court in the current test all is the second factor require that the employee be otherwise qualified or the plaintiff be otherwise qualified for the position and that's really what we're dealing with and part of that rooted in the otherwise qualified inquiry and judge kept leagues is trying to get to the question what's the timing for that council telling us that otherwise qualified ought to be judged from the the short period of time where he was assigned to the chief to here so is the question should we refine it to that no no that's a red herring ok in essence he was assigned there in labor law we call that a whip is the time let's say that time he has it right he's officer for the as a functioning police officer for the city of troy his assignment there was simply because he was being the best investigated thank you for misconduct serious misconduct for which he had been previously risk a direct threat of harm to suffer others in his position that that is the test in so let me return back to the doctor whether objectively there's reason to think he posed a risk  or is it a subjective question about what your client the city thought it's to leave question i believe it's an honest belief question your honor and i do believe that this court recently in crawl versus i think it's a white lake township recognize that in these public safety positions we have to be extremely careful where there's tremendous risk of harm to the citizenry if we take someone who has psychological problems and put them in the workplace and i think the question that has to be looked at is did the city have a reasonable basis to rely on these neuropsychological reports and let me address i always call him dr leaf and i don't know  life in relief and but here's the point the lower court said that was not individual ised inquiry joe or court may have been wrong i don't think so and let me see why number one i think the lower court hit it right on the head on that honor and the reason they hit it on the head is because i met three part analysis doctors we can spend a lot of time talking about the medical assessment in the medical evaluation but spent no time none on the job description and the job duties you will not find us you'll find the word job duties in his report only to this extent he says that he can perform his job duties every other n psychologist dr see week dr van horn dr billy ask this talked at length about the job duties and responsibilities of a troy police officer and about police officers general you will not find that in dr le report anywhere and i will also say to you there are at least two places in his report where he indicates that he was below expected levels of performance in problem solving and in judgment and yet he never tied anything back so he missed it when it come to assessing the job duties of a police officer and furthermore in his deposition he indicated your honor that he didn't the city put him on paid leave all right then though here we have the two doctors you refer to van horn and see what it is that the way is breath and then and they were both you know in favor of the city saying that he can't return to work the two at that time todd michael was telling those standard there is nothing wrong with them and this is for long term disability these people i'm not saying they didn't look at it through some objectivity but but in essence the other reason that they fail is individual inquiries as addressed by the lower court the other reason they fail is they did not talk to todd michael they did not interview todd michael they're based soley on a third party assessment they relied on dr leaf and which i don't i guess i don't blame them because they were able to say i don't think you should get a long term disability but they did not engage in individual inquiries either right is there a case you can cite me that says by not  in indicates that yes yes there is you cannot rely on third party assessments and the point of it is give us the site as after mr kofi if you if i can just you can see i think you find them for you and so the other thing that i think it's very interesting is that dr leith and said this he said dr van horn's testing was conventional but he says he used different methodology and here's what he said his deposition he said i'll tell you i believe activities daily of daily living trump neuropsychological testing so then i ask him about several of those things that we discussed a little earlier about him tape recording cheap craft about tape recording his wife all of those things i ask myself where you wear these things he said no that's in the record and i said this i said had you known about those things might that have changed your conclusion in terms of eighty else activities delisting daily living he said yes and the point of it is he never if he was going to rely on activities of daily living he shouldn't be relied solely on and therefore she should've taken into account the three doctors that testified favorably to mr michael would we have to remand for reconsideration in light of looking at all these doctors opinions rather than only the ones that were favorable to the well i think she did look at all of the opinions and determined that three were not individual ised inquiries but i will say this ultimately she did also say this and i believe this is true in this setting with a law enforcement officer and where they were going to put a gun in his hands ok this is not a matter that should go to the jury and i think that diane's vs see a philadelphia which is cited in our brief other cases stand for this firm proposition that we cannot be taking public safety officers there were five other doctors who said van horn's all wet and he can return now you saying that that still be a reasonable judgment by the city just to go solely on van horn edge we have in the collective bargaining agreement between the city and the troy police officers association a process which is what we follow the law what answer would the law give to judge gilman's hypothetical law would permit the city we had the need for a t f the a b a would say we have a right to rely on reasonable medical judgment and would it be reasonable i guess is my question if you had one doctor who said you know you had a ringer who already said he's not qualified and then no matter how many doctors the officer put on you could still disregard all those other i think the issue is going to have to be whether or not we're we're making decisions based on stereotypes or whether we're lying and individual inquiry and i think that's what we did here we rely van horn see weekend we even have billy ask who who  he was sent to by his by dr levy new says he'll give you a fair assessment he also said based on what's required of a police officer i can not put you in i can't right away she was going to end up saying well if he's tested for a gun shooting other things he may be ok that was never provided to us until through that was never given to the city but in any event we're not that and even that we have your point if you could wrap up thank you judge i will wrap up and say thank you and judge levy's opinion strips any rights of a police officer under the a d f a the pallies in their brief say that if there's a individualized inquiry the decision should not be second guessed that strips any rights under the a d f from a police officer just by virtue of him being a police officer and it isn't left a haphazard chance that he would continue as an employment let me ask you this question all right again if the question is whether the employer acted on the basis of stereotypes or whether the employer acted based on a belief that the person couldn't do their job function all right let's say hypothetically we had a case where it's it's basically undisputed that on the one hand the employer subjectively acted because they thought the person could not do the job functions but on the other hand there is a genuine issue as to whether they actually could do those functions is their liability or not i think so to go back to because that's the stereotypes that we're talking about well but if the employer undisputedly didn't act because of the stereotypes but doctors could argue about whether the person and not on stereotypes can really still be liable according to judge levy's opinion i don't care about that right now and that's what i care about is your answer yes i think there would they'll be liable yes think there still has to be a mechanism for the employee to challenge that reasonable basis this is a summary judgment question the question here is whether or not we get to take it to a jury that hadn't ploy would it not be true that the employee's interest in this is to say it's just to hang their hat appropriately on a law that says thou shalt not act on stereotypes about disability or folks with disabilities sorry didn't understand me neither  but isn't that the point to that's all an employee has in their on their side of the ledger is that you're acting on a disk or on a stereotype that's all we can say is that is that is that the reliance upon a report wasn't reasonable and that you must have been acting on stereotypes and that's brought out by the testimony of of chief mayer who testifies that he also considered the cat tails and everything else which to he didn't say this but the implication would be wealth that's what a crazy person does that's what an unsafe person does he's not a physician he's not qualified to make that assessment and i think i'm out of time thank you i think your arguments both very well done  we call the next case please