Michael Stern v. St. Anthony's Health Center

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 14-2400

MICHAEL STERN,

Plaintiff-Appellant,

v.

ST. ANTHONY’S HEALTH CENTER,

Defendant-Appellee.

____________________

Appeal from the United States District Court for the

Southern District of Illinois.

No. 3:12-cv-00785-SCW — Stephen C. Williams, Magistrate Judge.

____________________

ARGUED OCTOBER 30, 2014 — DECIDED JUNE 4, 2015

____________________

Before WILLIAMS, TINDER, and HAMILTON, Circuit Judges.

TINDER, Circuit Judge. St. Anthony’s Health Center

(“SAHC”) fired Michael Stern after a neutral evaluator

opined that Dr. Stern’s short-term memory deficiencies ren-

dered him unfit for duty as SAHC’s Chief Psychologist. Dr.

Stern sued under the Americans with Disabilities Act

(“ADA”), and the district court granted summary judgment

to SAHC. Dr. Stern appeals, contending, inter alia, that

SAHC failed to engage with him in an interactive process to

2 No. 14-2400

find reasonable accommodations that would permit him to

continue his employment. We are troubled by SAHC’s ac-

tions, which short-circuited the interactive process mandat-

ed by the ADA. But because Dr. Stern failed to create an is-

sue of fact as to whether he was able to perform the essential

functions of his job with or without reasonable accommoda-

tion, we affirm.

I. BACKGROUND

In 1998 Dr. Stern began working as a clinical psychologist

in SAHC’s Psychological Services Department, an acute-care

facility offering inpatient and outpatient psychological ser-

vices in Alton, Illinois. Four years later, SAHC promoted Dr.

Stern to Chief Psychologist, a position he held until he was

fired in 2010. As Chief Psychologist, Dr. Stern’s position was

divided into three broad areas of responsibility: supervisory,

administrative, and clinical. Dr. Stern was solely responsible

for supervising the Department’s six clinical professionals,

one Ph.D.-credentialed psychologist and five licensed coun-

selors. Supervision of the clinical staff consumed approxi-

mately 30%-50% of Dr. Stern’s professional time. Dr. Stern

performed administrative tasks, such as billing, scheduling,

payroll, planning, budgeting, managing, evaluating, organ-

izing, and developing the Department, which occupied ap-

proximately 15%-30% of his professional time. Finally, Dr.

Stern provided direct clinical treatment to patients, which

consumed approximately 15%-25% of Dr. Stern’s profession-

al time. Dr. Stern’s patients, over 60% of whom were chil-

dren, presented with psychological and mental problems in-

cluding depression, anxiety disorders, and suicidal risks.

Complex cases, that is, ones which required more intensive

psycho-therapeutic work, dominated his patient load.

No. 14-2400 3

On March 29, 2010, Dr. Stern received an annual perfor-

mance evaluation for 2009 signed by Patti Fischer, SAHC’s

Vice President of Physician Services and Dr. Stern’s direct

supervisor. Fischer assigned Dr. Stern an overall score of

2.54 on a scale of 0-4, which resulted in Dr. Stern receiving a

2.5% merit pay increase. Fischer said that Dr. Stern’s

strengths during 2009 were that he had “developed a great

team, embraced productivity, [g]reat volumes!” and his

“growth opportunities” were: “Fix billing! Continue to im-

prove financial skills.”

In July 2010, one of Dr. Stern’s subordinates, Tracy

Sashidharan, resigned and made troubling comments about

Dr. Stern during her exit interview with a human resources

manager. Sashidharan reported that she was leaving SAHC

because of significant concerns about Dr. Stern and indicated

that others in the Department were also considering leaving.

She said Dr. Stern had “cognitive issues,” such as forgetting

appointments and meetings, forgetting to get pre-approval

for services, failing to perform timely performance reviews,

exhibiting impulsive behavior, and “passing off administra-

tive work.” Sashidharan “personally observed that [patient]

charts prepared by Dr. Stern failed to include … basic infor-

mation,” such as dates of services, treatment plans, treat-

ment goals, and whether the goals were being met.

Sashidharan said Dr. Stern took six to twelve months instead

of the required two weeks to furnish reports to local school

districts confirming or denying “whether a suspended stu-

dent was fit to safely return to school after an incident.”

Sashidharan opined that Dr. Stern was suffering from Alz-

heimer’s disease, and although she had told him of her con-

cerns, she “[did]n’t think he remember[ed] the conversa-

tion.” She “believed Dr. Stern’s condition had become a sig-

4 No. 14-2400

nificant problem and risked the quality and integrity of pa-

tient care.” She notified her coworkers in advance of what

she would say during her exit interview, and it was her im-

pression that they supported her decision because, although

they “were fond of Dr. Stern, [they] had the same concerns.”

The human resources manager relayed Sashidharan’s

comments to Fischer, Dr. Stern’s supervisor. Fischer spoke

with Sashidharan, who reiterated her concerns. Sashidharan

told Fischer that Dr. Stern’s memory seemed to have gotten

progressively worse over the previous year and a half. She

said she contemplated reporting Dr. Stern to the Illinois De-

partment of Professional Regulations, the licensure and dis-

ciplinary agency responsible for psychologists. She said

there had been patient complaints about Dr. Stern “not fol-

lowing up.” She said two other subordinates of Dr. Stern

had spoken with him about his memory and cognitive func-

tioning, but he “kind of laughed it off and [one employee]

wasn’t certain that he even remembered it the next day.”

Fischer next spoke with Shannon Baugher, Dr. Stern’s

subordinate and the Department’s only other Ph.D.-level

psychologist. Dr. Baugher said that “she was very concerned

about [Dr. Stern’s] cognitive functioning and that it had been

progressively going downhill very gradually over the last

year and a half, and that it was something that they didn’t

realize had gotten so bad because it was so gradual, and [the

other members of the Department] had gradually taken on

more and more of his responsibilities.” Dr. Baugher echoed

Sashidharan’s comment about patient complaints, and gave

other examples, including that “she must have showed him

at least three or four times just how to forward an e-mail, he

couldn’t remember where the button was on Microsoft Out-

No. 14-2400 5

look that you would hit to forward an e-mail to someone

else, and each time she showed him he acted like it was the

first time.” Dr. Baugher said she was concerned about

whether Dr. Stern “could safely treat patients” given “his

memory deficiencies.”

Fischer also spoke with Susanne Ringhausen, who

shared an office suite with Dr. Stern’s Department, and was

SAHC’s Director of the Employee Assistance Program and a

licensed clinical counselor. Ringhausen expressed concerns

about Dr. Stern’s memory deficiencies and opined that “he

had signs of early cognitive or dementia problems, such as

irritability and forgetfulness.” Ringhausen relayed to Fischer

that Dr. Stern had whispered in Sashidharan’s ear, “I love

you,” which Ringhausen ascribed to “possible dementia.” 1

Ringhausen said she spoke with Dr. Stern about her con-

cerns “as a colleague,” but he “denied the validity of these

concerns and minimized the severity of the concerns and

complaints.”

Fischer also had concerns based upon her own experi-

ences with Dr. Stern. Between approximately April or May

2010 and July 2010, Fischer felt that Dr. Stern had repeatedly

1 Sashidharan did not mention this incident to Fischer. During litigation,

Sashidharan submitted affidavits on behalf of both Dr. Stern and SAHC.

In Dr. Stern’s affidavit, Sashidharan said that Dr. Stern served as a pro-

fessional mentor to her and “was consistently kind to [her] and consist-

ently treated [her] with respect and professionalism.” She said that, on at

least one occasion, Dr. Stern said “I love you” to her, “but this was said

in a ‘fatherly’ or ‘grandfatherly’ affectionate fashion; [she] was not of-

fended by it.” In SAHC’s affidavit, Sashidharan said she “observed Dr.

Stern engage in behavior that [she] considered impulsive, unprofessional

and sexually charged,” and gave two examples other than the “I love

you” incident.

6 No. 14-2400

forgotten their prior discussions on the subject of hiring a

new child psychologist. On a more personal level, Fischer

felt that Dr. Stern had recently mishandled the treatment of

Fischer’s minor relative, who had been treated by Dr. Stern

“on and off” since 2005. In April 2010, the child asked to see

Dr. Stern; after this session, Dr. Stern said he was concerned

about her, and recommended anti-depressant medication

and a quick follow-up visit. However, after a session on May

10, 2010, Dr. Stern reported that the child was “a lot better”

and “she didn’t need to follow up for maybe a couple of

months.” (For Fischer’s part, she believed that the child was

“on again and off again,” but by May the child “was certain-

ly better than she had been.”) In late June 2010, the family

discovered that the child had been cutting herself for “prob-

ably more than a year.” Thereafter, Fischer “didn’t feel com-

fortable with [the minor] going back to Dr. Stern” because he

“felt … she could go unmonitored for at least a couple of

months” and “he had no idea she had been cutting,” so

Fischer transferred the minor’s care to a different SAHC

counselor.

In August 2010, after the discussions recounted above,

Fischer consulted Lawrence Burch, an internist and SAHC’s

Vice-President of Medical Affairs. Dr. Burch advised that

SAHC “should get an evaluation because no one [at SAHC],

including [him]self, was really capable of making a full

evaluation of the problem, but if that problem did exist it

was absolutely necessary that it be elucidated.” Fischer then

spoke with a case manager at the Illinois Health Profession-

al’s Program, who also recommended that SAHC have

Plaintiff evaluated and furnished recommendations of clin-

ics that were experienced in evaluating medical profession-

als.

No. 14-2400 7

On August 18, 2010, Fischer and Dr. Burch met with Dr.

Stern and informed him of the reported concerns about his

cognitive functioning. Fischer told Dr. Stern that SAHC was

requiring him to undergo a fitness-for-duty evaluation at

SAHC’s expense, and she gave him information regarding

the clinics recommended by the Illinois Health Professional’s

Program. Fischer told Dr. Stern that he would be placed on a

paid “leave of absence effective immediately and he would

remain on leave until [SAHC] had the results of the evalua-

tion which indicated that he was fit for duty.”

Dr. Stern later contacted Fischer and said he “wasn’t im-

pressed” with the recommended clinics, and he requested

that SAHC retain Robert Fucetola, Chief of Clinical Neuro-

psychology at Washington University Medical School, to

conduct the evaluation. Dr. Stern believed Dr. Fucetola

would provide “the best possible evaluation and [was] the

most credentialed person [he] could get.” Fischer agreed to

Dr. Stern being evaluated by Dr. Fucetola at SAHC’s ex-

pense.

Fischer contacted Dr. Fucetola and retained him to “do

the assessment and give [SAHC] a fitness for duty [opin-

ion].” After two days of cognitive testing and interviews

with Dr. Stern and his wife, Dr. Fucetola issued a “draft re-

port” which did not “clearly say yes or no [whether Dr.

Stern] was fit for duty.” Fischer telephoned Dr. Fucetola and

“reminded him that he had told [Fischer] he would give

[her] a definitive fitness for duty [opinion], yes or no.” Dur-

ing this conversation, Dr. Fucetola told Fischer that Dr. Stern

“definitively had cognitive issues in terms of word retrieval

and memory,” and said “he would typically see symptoms

like this in early Alzheimer’s patients, but you couldn’t be …

8 No. 14-2400

sure unless you did longitudinal testing.” Dr. Fucetola then

issued his final report.2

In his final report, Dr. Fucetola wrote: “The current eval-

uation indicates that there are short-term memory deficien-

cies in Dr. Stern, with a level of memory functioning that is

below expectation considering his age, education, and high

intellectual potential.” The report indicated that Dr. Stern’s

“higher level working memory” and “general cognitive

functioning” were “mildly deficient” and “mildly impaired,”

respectively. The report stated that Dr. Stern’s “[w]ord re-

trieval” and “[l]earning and memory” were “mildly to mod-

erately deficient” and “mildly to moderately impaired,” re-

spectively. In particular, when adjusted for age and educa-

tion, Dr. Stern’s “Immediate Memory Index” was found to

be in the lowest two percent—that is, when Dr. Stern “was

read some stories aloud then immediately asked to say them

right back and recall them, he performed at the second per-

centile” of his peers. Dr. Stern’s “Delayed Memory Index”—

when he was asked to recall information 30 minutes later—

measured in the fifth percentile among those of his age and

education. Dr. Stern’s “word list generation” also was in the

fifth percentile, “[m]eaning 95 percent of the population sim-

ilar to Dr. Stern would have performed better than Dr.

Stern.” Other than these learning and memory deficiencies,

2 There is a dispute among the witnesses as to whether Dr. Fucetola pre-

pared a “draft report,” which is not in the record, in addition to the final

report, which is in the record. We view all conflicts in the evidence in Dr.

Stern’s favor at the summary-judgment stage, and Dr. Stern appears to

believe that the evidence of a “draft report”—which Dr. Fucetola denies

existed and Fischer claims to have shredded—favors him. There is no

evidence that the draft report differed from the final report in any way

other than the lack of a definitive fitness-for-duty opinion.

No. 14-2400 9

the report indicates that Dr. Stern performed at least “within

expectation” and “within normal limits.”

In the report, Dr. Fucetola recommended that Dr. Stern

“follow-up with his internist to discuss possible medical in-

terventions for the memory disorder,” and undergo repeated

neuropsychological evaluation to determine if his “mild

cognitive impairment (MCI)-amnesiac form picture” was

progressive. Dr. Fucetola wrote: “Based on the results of this

evaluation, Dr. Stern is not believed to be fit for duty in his

current position as a hospital director of psychology.” Dr.

Fucetola continued: “The memory deficiencies observed in

this exam would be expected to impact Dr. Stern’s everyday

functioning as a hospital director of psychology. At this

point, his current constellation of administrative and clinical

duties is believed to be excessive given the degree of

memory impairment.” Dr. Fucetola then discussed the fol-

lowing possible accommodations:

[I]t is possible that currently Dr. Stern would

be more likely to be able to complete routine

clinical duties, including psychotherapy, by re-

lying upon common strategies to compensate

for the memory difficulty (i.e., making more

written notes, completing documentation

shortly after encounters, etc.). One possibility

may be to eliminate administrative responsibil-

ities including supervisory responsibilities, and

structuring a lighter caseload, perhaps work-

ing less than full time, seeing fewer patients

per week, and/or seeing less complex cases

(e.g., nonsuicidal patients). Eliminating admin-

istrative duties and reducing or keeping stable

10 No. 14-2400

clinical duties is likely to allow Dr. Stern to

compensate for the memory difficulties more

effectively. Other options could also be con-

sidered to reduce workload (e.g., adjusting the

balance of inpatient and outpatient work). A

one year interim plan with monitoring by a

superior could be developed until it is deter-

mined whether Dr. Stern’s memory disorder is

in fact distinctly progressive.

In his deposition, Dr. Fucetola elaborated. “Because [dur-

ing] the testing even remembering material a half an hour

later [was] quite challenging, even though Dr. Stern was try-

ing very hard,” Dr. Fucetola was concerned that “there

would be problems with [Dr. Stern] being able to converse

with someone and then remember the content the next day,

the next session.” Dr. Fucetola said he was “not sure wheth-

er note taking would help or not,” or whether “note taking is

feasible or advisable in the scenario that Dr. Stern faces.” Dr.

Fucetola indicated that, during the testing, “verbal cues, a

cue word here and there … did not help.” Dr. Fucetola noted

his “concerns” about Dr. Stern’s ability to treat complex pa-

tients. He stated that the “breadth and severity” of Dr.

Stern’s “short-term memory loss” made it “improbable that

Dr. Stern could effectively run the Psychology Department.”

He reasoned that “supervising and taking on responsibility

for other mental health professionals requires a great deal of

new learning,” such as “new cases and new material,” and

Dr. Stern’s “short-term memory loss precluded his ability to

do that effectively.”

Dr. Stern testified that Dr. Fucetola “was as objective as

one could be.” But while Dr. Stern did not “question the ac-

No. 14-2400 11

curacy of his test scores,” he felt that Dr. Fucetola’s “conclu-

sions don’t fit the complaints or the data.” Specifically, Dr.

Stern testified that he was able to “perform the essential

functions of the job [he was] doing at [SAHC].”

On September 7, 2010, Fischer discussed Dr. Fucetola’s

report with Dr. Burch and Sister Anselma Belongea, SAHC’s

Vice-President of Professional Services. Dr. Burch and Fisch-

er went “through the recommendations” offered by Dr.

Fucetola as possible accommodations. With respect to the

suggestion that Dr. Stern treat less complex patients, Fischer

said that the Department did not divide patients into com-

plex and noncomplex categories, and sometimes it is not

“readily evident” whether a patient is complex, and “things

may go south” during treatment and a less complex case can

become complex. They discussed decreasing Dr. Stern’s

caseload, but there “was no part-time position in the de-

partment,” which “would mean creating a new position for

him.” Fischer also felt there was no one in the Department

qualified to supervise Dr. Stern, and “in order to supervise

him you really would need somebody in the room with him

while he was doing the counseling, and if you had some-

body in the room with him, then why would you need two

people?” Fischer also felt “it was not feasible to delegate [Dr.

Stern’s] administrative duties to anybody else in the de-

partment” because “there was no other supervisor in the de-

partment.” Dr. Burch believed that taking simultaneous

notes during sessions would distract from listening to the

patient and Dr. Stern’s memory problems meant that the

“notes are going to be impaired” if he waited until the end of

a one-hour session to write. Dr. Burch said, based upon the

report and “from a medical standpoint,” Dr. Stern was not

12 No. 14-2400

“able to see patients.” 3 Fischer felt “there were liability is-

sues, if a patient did commit suicide could [they] confidently

say [they] did everything in [their power] to protect that pa-

tient, and given the report that [they] had in [their] hands,

[they] could not confidently say that.”

On September 15, 2010, Fischer and Belongea met with

Dr. Stern. Dr. Stern had spoken with Dr. Fucetola after the

evaluation, but he did not have a copy of Dr. Fucetola’s re-

port. Fischer and Belongea discussed the report in “broad

strokes,” and they “focused mainly on the conclusion … that

[Dr. Stern] was not fit to be Director of Psychology.” Dr.

Stern, in an attempt to “scramble … to find any way … to

slice [the] job so that [he could] keep it,” suggested that his

non-clinical duties be eliminated. Fischer responded that

there was no opening for a part-time clinical psychologist.

Dr. Stern suggested that they promote Dr. Baugher, the De-

partment’s other Ph.D.-level psychologist, to Chief Psy-

chologist and allow him to take her job as a full-time clinical

psychologist. Fischer responded that “currently that’s not

something that’s available,” and, “if you … are unable to do

the administrative functions of your job, and those are essen-

tial, then I’m sorry, we don’t have a position for you.” Dr.

Stern’s employment with SAHC was terminated effective

September 17, 2010.

3 Dr. Burch testified that he did not recommend that Dr. Stern be fired,

only that he was “asked at that point from a medical standpoint if [he]

thought Dr. Stern, under the circumstances that existed at the time, was

able to see patients, and [his] answer was no.” Dr. Burch also testified

that he was not aware of any patient complaints about Dr. Stern, and he

was unaware of how Dr. Stern’s job was divided between clinical duties

and administrative duties.

No. 14-2400 13

Dr. Stern was not replaced. During the first few months

after Dr. Stern was fired, Dr. Baugher and Fischer assumed

his previous administrative and supervisory duties. In early

2011, SAHC merged the Psychological Services Department

and the Employee Assistance Program. Ringhausen, former-

ly the Director of the Employee Assistance Program, as-

sumed the role as the director of the newly-merged depart-

ment. Dr. Stern’s clinical caseload was absorbed by the other

clinicians.

II. DISCUSSION

We review the district court’s grant of summary judg-

ment to SAHC de novo, and examine the record and all rea-

sonable inferences in the light most favorable to Dr. Stern.

Spurling v. C & M Fine Pack, Inc., 739 F.3d 1055, 1060 (7th Cir.

2014). Summary judgment is appropriate if the moving party

“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 ADA prohibits an employer from discriminating

against a “qualified individual on the basis of disability.” 42

U.S.C. § 12112(a). In order to survive summary judgment,

Dr. Stern had the burden of creating an issue of fact as to,

among other things, whether he was a “qualified individual”

at the time SAHC fired him. 4 See Ammons v. Aramark Unif.

4 Under the ADA, there are two types of discrimination claims: failure to

accommodate and disparate treatment. See Basith v. Cook Cnty., 241 F.3d

919, 927 (7th Cir. 2001). Dr. Stern contends that he asserted both types of

claims before the district court, while SAHC contends that he only raised

a disparate treatment claim before the district court and therefore any

failure to accommodate claim has been waived on appeal. We need not

resolve this issue because, in order to prove either claim, Dr. Stern would

14 No. 14-2400

Servs., Inc., 368 F.3d 809, 818 (7th Cir. 2004). The ADA de-

fines a “qualified individual” as “an individual who, with or

without reasonable accommodation, can perform the essen-

tial functions of the employment position that such individ-

ual holds or desires.” 42 U.S.C. § 12111(8). To determine

whether someone is a “qualified individual,” we apply a

two-step test. “First, we consider whether the individual sat-

isfies the prerequisites for the position, such as possessing

the appropriate educational background, employment expe-

rience, skills, licenses, etc.” Basith v. Cook Cnty., 241 F.3d 919,

927 (7th Cir. 2001) (quotation omitted). “If he does, then we

must consider whether or not the individual can perform the

essential functions of the position held or desired, with or

without reasonable accommodation.” Id. (quotation omit-

ted). There is no question that Dr. Stern satisfied the prereq-

uisites for the position of Chief Psychologist. At issue is Dr.

Stern’s ability to perform the essential functions of the job,

with or without reasonable accommodation.

First, we identify the essential functions of the job. “The

factors we consider to determine whether a particular duty

is an essential function include the employee’s job descrip-

tion, the employer’s opinion, the amount of time spent per-

forming the function, the consequences for not requiring the

individual to perform the duty, and past and current work

experiences.” Gratzl v. Office of the Chief Judges of the 12th,

18th, 19th, & 22nd Judicial Circuits, 601 F.3d 674, 679 (7th Cir.

2010) (quotation omitted); see 29 C.F.R. § 1630.2(n)(3) (“Evi-

be required to establish that he is a “qualified individual.” See Majors v.

Gen. Elec. Co., 714 F.3d 527, 535 (7th Cir. 2013) (failure to accommodate);

Timmons v. Gen. Motors Corp., 469 F.3d 1122, 1127 (7th Cir. 2006) (dispar-

ate treatment).

No. 14-2400 15

dence of whether a particular function is essential includes,

but is not limited to: (i) The employer’s judgment as to

which functions are essential; (ii) Written job descriptions

prepared before advertising or interviewing applicants for

the job; (iii) The amount of time spent on the job performing

the function; (iv) The consequences of not requiring the in-

cumbent to perform the function; (v) The terms of a collec-

tive bargaining agreement; (vi) The work experience of past

incumbents in the job; and/or (vii) The current work experi-

ence of incumbents in similar jobs.”). In determining wheth-

er a particular duty is an essential function, “the employer’s

judgment is an important factor, but it is not controlling….

[W]e also look to evidence of the employer’s actual practices

in the workplace.” Miller v. Ill. Dep’t of Transp., 643 F.3d 190,

198 (7th Cir. 2011).

SAHC contends that the essential functions of the posi-

tion of Chief Psychologist consist of the clinical, supervisory,

and administrative duties discussed above. This contention

is supported by Dr. Stern’s testimony describing his job re-

sponsibilities and the percentage of time he spent on each

category. It is also consistent with SAHC’s job description,

which was written by Dr. Stern. 5

5 The job description’s “summary” states that the Chief Psychologist

“[a]dministers and delivers psychological services to patients at Saint

Anthony’s Health Center, Behavioral Health Services and Post Acute

Services. These services include biofeedback, pain management, consul-

tation, psychological and neuropsychological testing administration,

psychotherapy, treatment coordination, clinical supervision of psycho-

therapy/psychology staff and education/training. [The Chief Psycholo-

gist is] [r]esponsible for the management, evaluation, planning, organiz-

ing, and development of psychological services consistent with the mis-

sion, values, vision, and ethics of the Health Center.”

16 No. 14-2400

At SAHC, there was only one Chief Psychologist. The

position necessarily required the combination of all three el-

ements: clinical practice, supervision, and administration. If,

for example, the supervision element was eliminated, the

employee would no longer be the “chief”; if the clinical-

practice element was eliminated, the employee would no

longer be functioning as a “psychologist.” The evidence

demonstrates as a matter of law that each of the elements

constituted essential functions of the job. This case may be

contrasted with a case involving one member of a team of

employees working at an equal level. In a team environ-

ment, the ADA may require employers to think more flexi-

bly about which functions are essential and what sorts of ac-

commodations might be reasonable. Cf. Miller, 643 F.3d at

197–99 (reversing summary judgment for employer; evi-

dence showing that bridge maintenance crew shared duties

would allow jury to find that not every crew member need-

ed to perform every duty, and that different allocations of

duties could be reasonable accommodation).

We next consider if there is an issue of fact as to whether

Dr. Stern can perform the essential functions of the position

of Chief Psychologist without reasonable accommodation.

Dr. Stern relies upon the following evidence to make this

showing: (1) the 2009 performance evaluation; (2) the testi-

mony of Carol Snook, Dr. Stern’s administrative assistant;

and (3) the testimony of Ann Marie Scheumbauer, Dr.

Stern’s wife.

Fischer issued Dr. Stern’s 2009 performance evaluation

on March 29, 2010, less than six months before he was fired.

While the evaluation might be characterized as mixed (un-

der “Standards of Behavior” he scored the highest possible

No. 14-2400 17

in the “Service,” “Respect,” and “Inspiration” subcategories,

but scored the lowest possible in the “Health Center Goal” of

“Patient Satisfaction” and failed to meet the goal in “Fi-

nance”), we assume that the evaluation was favorable over-

all. However, it is undisputed that neither Fischer nor any-

one else in SAHC management became aware of the trou-

bling reports concerning Dr. Stern’s memory and cognitive

issues until after Fischer issued the evaluation. The first two

reports, from Sashidharan and Dr. Baugher in July 2010, in-

dicated that Dr. Stern’s memory was becoming progressive-

ly worse over the previous year and a half. Fischer’s own

experiences conformed to this hypothesis—she first noticed

his memory issues in April or May 2010, and she did not

question the competency of his treatment of her minor rela-

tive until June 2010, when she learned that Dr. Stern had

failed to discover that the minor had been cutting herself for

over a year. Dr. Fucetola’s September 2010 report corrobo-

rated the earlier reports of memory issues. The relevant in-

quiry is whether Dr. Stern could perform the essential func-

tions of his job at the time he was fired. See Basden v. Prof’l

Transp., Inc., 714 F.3d 1034, 1037 (7th Cir. 2013) (“[A plain-

tiff’s] ability to come to work, or to otherwise perform the

essential functions of her job, is examined as of the time of

the adverse employment decision at issue.”); cf. Peters v. Re-

naissance Hotel Operating Co., 307 F.3d 535, 545 (7th Cir. 2002)

(holding that satisfactory performance evaluation and em-

ployee of the month award issued two months prior to Title

VII plaintiff’s termination does not create an issue of fact as

to whether he was meeting his employer’s legitimate expec-

tations when his poor performance was discovered after the

evaluation and the award—“the question is not whether at

any time in [plaintiff’s] employment he was meeting his em-

18 No. 14-2400

ployer’s expectations; the question is whether he was meet-

ing his employer’s expectations at the time he was terminat-

ed”). We find that the 2009 performance evaluation does not

create an issue of fact as to whether Dr. Stern was able to

perform his job without accommodation at the time he was

terminated.

Snook, Dr. Stern’s administrative assistant, was asked in

her deposition whether there were job-related tasks at SAHC

that Dr. Stern “looked like he just couldn’t do,” and she re-

sponded: “I couldn’t say whether he couldn’t do them or

not, but he had difficulty.” Upon further questioning, she

clarified that Dr. Stern had difficulty preparing “reports and

things like that that required a lot of computer knowledge.”

She was then asked, “Did the work get done?” She respond-

ed: “As far as I know.” On appeal, Dr. Stern argues that “the

only proper inference at this stage is that [Snook’s testimony

quoted above] means [Dr. Stern was] performing the essen-

tial functions of his job.” We disagree. Even viewing the evi-

dence in Dr. Stern’s favor, it is hard to characterize Snook’s

testimony as a ringing endorsement of his work perfor-

mance. More importantly, Dr. Stern has failed to demon-

strate the extent of Snook’s knowledge of Dr. Stern’s work

activities—for example whether she observed his clinical

sessions, sat in on staff meetings, and reviewed his reports—

and whether she has the expertise and competence necessary

to evaluate Dr. Stern’s performance as a clinical psychologist

and supervisor of other clinicians. Without such a founda-

tion, a reasonable jury could not find that Snook’s testimony

rebuts Dr. Fucetola’s professional opinion that Dr. Stern was

“not believed to be fit for duty.” Moreover, in light of the re-

port that others in the Department were performing some of

Dr. Stern’s work, Snook’s testimony that, “[a]s far as [she]

No. 14-2400 19

know[s],” Dr. Stern’s “work [got] done” is not the same as

testimony that Dr. Stern actually performed the work him-

self. We find Snook’s testimony does not create an issue of

fact as to whether Dr. Stern was able to perform his job

without accommodation.

Scheumbauer, Dr. Stern’s wife, submitted an affidavit in-

dicating that, while Dr. Stern occasionally forgets “minor de-

tails,” he remembers “important dates” like her birthday and

their anniversary, and, while he occasionally “briefly strug-

gle[s] to retrieve the correct word,” he does not do so with

greater frequency than she has “seen in political figures such

as Governor Rick Perry of Texas, former President Ronald

Reagan, or Justice Ginsburg of the U.S. Supreme Court.” She

stated that she has observed Dr. Stern “write reports for

court proceedings, and track and bill his time for profession-

al services” without difficulty, and she indicated that, as a

school teacher, she would refer her students to Dr. Stern for

counseling services. As with Snook, Dr. Stern fails to lay an

adequate foundation establishing that Scheumbauer—who

describes her educational degrees as being “in painting”—is

competent to rebut Dr. Fucetola’s professional opinion. Ac-

cordingly, Scheumbauer’s testimony does not create an issue

of fact as to whether Dr. Stern was able to perform his job

without accommodation.

We next consider if there is an issue of fact as to whether

Dr. Stern was able to perform the essential functions of his

job with reasonable accommodation. Under the ADA, a “rea-

sonable accommodation” may include “job restructuring,

part-time or modified work schedules, reassignment to a va-

cant position, acquisition or modification of equipment or

devices, … the provision of qualified readers or interpreters,

20 No. 14-2400

and other similar accommodations for individuals with dis-

abilities.” 42 U.S.C. § 12111(9)(B). Dr. Stern relies upon Dr.

Fucetola’s report to argue that he should be entitled to reach

a jury on the issue of whether he could perform the job with

reasonable accommodation.

Dr. Fucetola’s report suggested two categories of possible

accommodations: (1) “relying upon common strategies to

compensate for the memory difficulty,” such as note-taking

and completing documentation shortly after encounters; and

(2) “eliminat[ing] administrative responsibilities including

supervisory responsibilities, and structuring a lighter case-

load.” Dr. Fucetola suggested the development of a “one

year interim plan with monitoring by a superior … until it is

determined whether Dr. Stern’s memory disorder is in fact

distinctly progressive.” We find Dr. Fucetola’s suggestions

to be insufficient to create an issue of fact as to whether Dr.

Stern could perform the job with reasonable accommoda-

tion.

The first problem is Dr. Fucetola’s lack of confidence in

his proposed accommodations. His report states that “it is

possible that currently Dr. Stern would be more likely to be

able to complete routine clinical duties” by better note-

taking and immediately completing documentation, and

“[e]liminating administrative duties and reducing or keep-

ing stable clinical duties is likely to allow Dr. Stern to com-

pensate for the memory difficulties more effectively.” In his

deposition, Dr. Fucetola explained that he was “not sure

whether note taking would help or not,” or whether “note

taking is feasible or advisable in the scenario that Dr. Stern

No. 14-2400 21

faces.” 6 Dr. Fucetola was outright pessimistic about Dr.

Stern’s ability to perform his supervisory responsibilities

(which Dr. Fucetola lumped together with Dr. Stern’s ad-

ministrative responsibilities), stating that “supervising and

taking on responsibility for other mental health professionals

requires a great deal of new learning,” such as “new cases

and new material,” and Dr. Stern’s “short-term memory loss

precluded his ability to do that effectively.” Dr. Fucetola did

not indicate that he attempted to test the efficacy of any of

his proposed accommodations during his sessions with Dr.

Stern. Instead, he commented that, during testing he gave

Dr. Stern “verbal cues, a cue word here and there” to help

Dr. Stern’s memory, but this “did not help.”

In Weigel v. Target Stores, 122 F.3d 461 (7th Cir. 1997), we

found that an affidavit from the plaintiff’s psychiatrist stat-

ing that “there was a good chance” that she would be able to

return to work with treatment was too conclusory and unin-

formative to support a conclusion that an accommodation of

medical leave would have been successful. Id. at 469; see id.

(affirming summary judgment in favor of the employer be-

cause of the plaintiff’s inability to establish the existence of a

genuine issue of fact on the question of her status as a quali-

fied individual under the ADA). More recently, we affirmed

summary judgment for an employer because the plaintiff

failed to produce evidence that she was a qualified individ-

ual under the ADA when she produced “evidence that med-

ication improved her condition” and “that she had hoped for

6 Dr. Burch testified that taking simultaneous notes during sessions

would distract from listening to the patient and Dr. Stern’s memory

problems meant that the “notes are going to be impaired” if he waited

until the end of a one-hour session to write.

22 No. 14-2400

enough improvement to return to work regularly after

leave,” but failed to “present medical evidence regarding the

effectiveness of her treatment.” Basden, 714 F.3d at 1038. By

contrast, in Spurling, 739 F.3d at 1062, we reversed a grant of

summary judgment for an employer because the plaintiff

satisfied her burden of “show[ing] that a reasonable accom-

modation could be made that would enable her to carry out

the essential functions of her job.” Specifically, the plaintiff

produced “evidence suggest[ing] that a reasonable accom-

modation was readily available; [plaintiff] simply needed

further medical testing and a prescription to control her nar-

colepsy.” Id.

The summary judgment record in this case is more like

that in Weigel and Basden than that in Spurling. The plaintiffs

in Weigel and Basden relied upon a conclusory and untested

opinion/hope that the proposed treatment/accommodation

would enable them to perform the essential functions of

their jobs. Dr. Fucetola likewise expresses a hope that “strat-

egies to compensate for [Dr. Stern’s] memory difficulty” and

shedding most of Dr. Stern’s duties “possibly” would allow

him to perform his remaining duties effectively. But it is

clear that Dr. Fucetola’s suggestions were untested. Dr. Stern

could have sought additional medical treatment or testing

after his discharge, as the plaintiff in Spurling did, and could

have obtained non-speculative, non-conclusory evidence

that a proposed accommodation or treatment would have

allowed him to adequately perform the essential functions of

his job. Dr. Stern bore the burden of creating a genuine issue

of fact as to whether he could perform the job of Chief Psy-

chologist with reasonable accommodation, and Dr. Fuceto-

la’s speculative, untested suggestions were not adequate to

satisfy that burden.

No. 14-2400 23

Another difficulty with Dr. Fucetola’s suggestions is that

they appear to be contingent upon SAHC eliminating essen-

tial functions of Dr. Stern’s job, such as the supervisory re-

sponsibility. Dr. Fucetola indicated that the “breadth and se-

verity” of Dr. Stern’s “short-term memory loss” made it

“improbable that Dr. Stern could effectively run the Psy-

chology Department,” and Dr. Stern’s “short-term memory

loss precluded his ability to … effectively” “supervis[e] and

tak[e] on responsibility for other mental health profession-

als.” As discussed above, the supervisory portion of the

Chief Psychologist position constitutes an “essential func-

tion.”

We have repeatedly held that “[t]o have another employ-

ee perform a position’s essential function, and to a certain

extent perform the job for the employee, is not a reasonable

accommodation.” Majors v. Gen. Elec. Co., 714 F.3d 527, 534

(7th Cir. 2013); see Gratzl, 601 F.3d at 680 (“An employer

need not create a new job or strip a current job of its princi-

pal duties to accommodate a disabled employee.”); Ammons,

368 F.3d at 819 (“The … accommodation [plaintiff] offered …

is not … an accommodation that would permit [plaintiff] to

perform the essential functions of his job; instead it would

change the essential functions of his job.”). If a particular job

function, such as Dr. Stern’s supervisory responsibility, is an

essential function, then it is irrelevant whether the employer

could have someone else perform the function without un-

due hardship. See Majors, 714 F.3d at 535 (“The accommoda-

tion [plaintiff] seeks—another person to perform an essential

function of the job she wants—is, as a matter of law, not rea-

sonable, so [the employer] isn’t required to show the ac-

commodation would create an undue hardship.”); Gratzl,

601 F.3d at 680 n.4 (“An employer is simply not required to

24 No. 14-2400

create … a new position to accommodate an employee under

the ADA, regardless of the amount of hardship involved.”).

Dr. Fucetola opined that Dr. Stern’s “short-term memory

loss precluded his ability to … effectively” perform the su-

pervisory portion of his job, and Dr. Fucetola failed to sug-

gest an accommodation to allow Dr. Stern to perform this

essential function. Accordingly, Dr. Fucetola’s report is not

sufficient for a jury to find that Dr. Stern could perform all of

the essential functions of his job with reasonable accommo-

dation.

Dr. Stern emphasizes that the ADA defines “reasonable

accommodation” to include “job restructuring,” and charac-

terizes transferring his supervisory and administrative re-

sponsibilities as an example of such restructuring. The EEOC

guidance elaborates on the meaning of “job restructuring” in

the context of a reasonable accommodation, stating that

“[j]ob restructuring includes modifications such as: reallocat-

ing or redistributing marginal job functions that an employ-

ee is unable to perform because of a disability; and altering

when and/or how a function, essential or marginal, is per-

formed.” EEOC, Enforcement Guidance: Reasonable Ac-

commodation and Undue Hardship under the Americans

with Disabilities Act: “Job Restructuring.” 7 However, the

EEOC guidance makes clear that “[a]n employer never has

to reallocate essential functions as a reasonable accommoda-

tion, but can do so if it wishes.” Id.

The type of restructuring that is required as a “reasona-

ble accommodation” is illustrated in Kauffman v. Petersen

Health Care VII, LLC, 769 F.3d 958 (7th Cir. 2014). There we

7 Available at www.eeoc.gov/policy/docs/accommodation.html#job.

No. 14-2400 25

reversed a grant of summary judgment to a nursing home

that fired the plaintiff hairdresser because her doctor re-

stricted her from pushing wheelchair-bound residents to and

from the hair salon. We held that there was an issue of fact

as to whether pushing wheelchairs was an essential function

of her job, and therefore the nursing home’s failure to con-

sider reallocating the arguably marginal duty to other em-

ployees precluded summary judgment. See id. at 963 (“‘Job

restructuring’ is one of the accommodations that an employ-

er must consider. If a minor adjustment in the work duties of

a couple of other employees would have enabled the plain-

tiff despite her disability to perform the essential duties of

her job as a hairdresser, the nursing home’s refusal to con-

sider making such an adjustment was unlawful.”) (citation

omitted). The plaintiff in Kauffman spent only 1.71 hours of

her 35-hour workweek pushing wheelchairs (less than 5% of

her work time), whereas Dr. Stern estimates he spent 30%-

50% of his work time on his supervisory duties and 15%-30%

of his work time on his administrative duties. In this case,

there is no factual dispute that the supervisory and adminis-

trative responsibilities were essential rather than marginal

functions of Dr. Stern’s job as Chief Psychologist. The appli-

cable rule in this instance is that “[t]o have another employee

perform a position’s essential function … is not a reasonable

accommodation.” Majors, 714 F.3d at 534; see Ozlowski v.

Henderson, 237 F.3d 837, 841 (7th Cir. 2001) (“While it is true

that an employer may redistribute marginal functions of a

job to other employees, an employer is not required to real-

locate essential functions that the individual who holds the

job would have to perform, with or without reasonable ac-

commodation, in order to be considered qualified for the po-

sition.”) (quotation omitted).

26 No. 14-2400

Dr. Stern also suggests that he could have been accom-

modated by switching jobs with SAHC’s other Ph.D.-level

psychologist, Dr. Baugher. Dr. Stern suggests that Dr.

Baugher had designs on the Chief Psychologist job and

would have welcomed the promotion. But regardless of Dr.

Baugher’s wishes, there is no evidence that SAHC viewed

Dr. Baugher as an acceptable permanent Chief Psychologist.

It is undisputed that Dr. Baugher did not possess two of the

preferred qualifications set by SAHC for the position of

Chief Psychologist—at least five years of hospital practice as

a licensed psychologist (Dr. Baugher had only two) and pre-

vious management experience in psychological services. The

question then is whether the ADA required SAHC to reassign

Dr. Stern to Dr. Baugher’s job.

It is true that “the ADA may require an employer to reas-

sign a disabled employee to a different position as reasona-

ble accommodation where the employee can no longer per-

form the essential functions of their current position.” Gile v.

United Airlines, Inc., 95 F.3d 492, 498 (7th Cir. 1996). Howev-

er, “there are significant limitations on an employer’s poten-

tial obligation to reassign a disabled employee as reasonable

accommodation.” Id. at 499. “An employer may be obligated

to reassign a disabled employee, but only to vacant posi-

tions; an employer is not required to ‘bump’ other employ-

ees to create a vacancy so as to be able to reassign the disa-

bled employee. Nor is an employer obligated to create a

‘new’ position for the disabled employee.” Id. (citation omit-

ted); see Ozlowski, 237 F.3d at 841 n.2 (“[A]n employer is not

required to bump a current employee in order to provide

reasonable accommodation.”). Although the ADA requires

an employer to consider reassigning a disabled employee to

a job that would represent a demotion, see Dalton v. Subaru-

No. 14-2400 27

Isuzu Auto., Inc., 141 F.3d 667, 678 (7th Cir. 1998), the em-

ployer’s reassignment obligation is nonetheless limited to

vacant positions. See id. at 677; see also Gratzl, 601 F.3d at 680

n.4; Gile, 95 F.3d at 499. Dr. Stern failed to point to evidence

that SAHC had a vacant position for which he was qualified

at the time he was fired. See Ozlowski, 237 F.3d at 840 (“It is

the plaintiff’s burden to show that a vacant position exists

for which he was qualified.”). Indeed, Dr. Stern testified that

“there was no job opening at the time for a clinical psy-

chologist” in the Department.

Furthermore, even if we were to accept that the ADA

might require SAHC to restructure the Department in these

circumstances (as SAHC eventually did four months after

Dr. Stern was fired), Dr. Stern nonetheless would be re-

quired to produce evidence sufficient for a reasonable jury to

conclude that he could competently perform whatever es-

sential functions might remain assigned to him after the re-

structuring. 8 As we have discussed, Dr. Fucetola seemed

pessimistic about Dr. Stern’s ability to perform his supervi-

sory responsibilities and noncommittal about his ability to

perform his clinical duties, even with the suggested accom-

modations. As discussed earlier, this leaves Dr. Fucetola’s

opinion insufficient to create an issue of fact as to whether

Dr. Stern was able to competently perform just his previous

clinical duties (which constituted only 15%-25% of the over-

8 In his reply brief, Dr. Stern also refers to the shedding of certain essen-

tial functions as a type of “part-time or modified work schedule” which

might be required as an accommodation by the ADA. 42 U.S.C. §

12111(9)(B). Regardless of the label Dr. Stern attaches to this proposed

accommodation—“restructuring” or “part-time or modified work

schedule”—our analysis of the proposed accommodation is the same.

28 No. 14-2400

all duties of his prior job)—or even a smaller slice of those

already-limited duties, such as non-complex or non-suicidal

patients. 9 See Basden, 714 F.3d at 1038; Weigel, 122 F.3d at 469.

And apart from Dr. Fucetola’s report, Dr. Stern points to no

other evidence to show that he was able to perform the es-

sential functions of his job with accommodation.

Dr. Stern argues that SAHC “never engaged in any inter-

active process with Dr. Stern to find any accommodations.”

On this point, we agree with Dr. Stern. While there is evi-

dence Fischer, Dr. Burch and Sister Belongea discussed

among themselves the accommodations suggested by Dr.

Fucetola, no one at SAHC included Dr. Stern in the conver-

sation until the termination meeting. By that time, viewing

the facts in Dr. Stern’s favor, the decisionmakers had already

determined that Dr. Stern was going to be fired. This is not

the “interactive process” envisioned—and mandated—by

the ADA. Instead, “when an employee asks for an accom-

modation because of a disability,” which Dr. Stern did as

soon as he received Dr. Fucetola’s report, “the employer

must engage with the employee in an interactive process to

determine the appropriate accommodation under the cir-

cumstances.” Kauffman, 769 F.3d at 963 (quotation omitted);

see 29 C.F.R. § 1630.2(o)(3) (“To determine the appropriate

reasonable accommodation it may be necessary for the [em-

ployer] to initiate an informal, interactive process with the

qualified individual with a disability in need of the accom-

modation.”).

9Moreover, it is undisputed that, as Fischer stated, a patient may origi-

nally present as non-complex and later turn complex. This would entail

potentially shuttling patients back and forth between therapists as the

patient’s “complexity” changes.

No. 14-2400 29

However, “[f]ailure of the interactive process is not an

independent basis for liability under the ADA.” Spurling, 739

F.3d at 1059 n.1. “Even if an employer fails to engage in the

required process, that failure need not be considered if the

employee fails to present evidence sufficient to reach the ju-

ry on the question of whether she was able to perform the

essential functions of her job with an accommodation.”

Basden, 714 F.3d at 1039; Majors, 714 F.3d at 535 (“This record

wouldn’t allow a finding that [the employee] was a qualified

individual, so whether the discussion between [the employ-

er] and [the employee] was sufficiently interactive is imma-

terial.”). We have stated that an employer’s failure to engage

in the interactive process “is actionable ‘if it prevents identi-

fication of an appropriate accommodation for a qualified in-

dividual.’ Accordingly, [the employee] must show that a

reasonable accommodation could be made that would ena-

ble her to carry out the essential functions of her job.” Spurl-

ing, 739 F.3d at 1062 (quoting Basden, 714 F.3d at 1039). For

example, in Spurling, the employee provided the employer

notice that her doctor believed she had a condition covered

under the ADA which caused her to fall asleep at work, but

the employer “never contacted [the employee’s doctor] to

determine the severity of [the employee]’s ADA claim or

how it might be able to provide a reasonable accommoda-

tion,” and instead fired the employee with no further inter-

action. Id. We found that “[t]he evidence suggests that a rea-

sonable accommodation was readily available; [the employ-

ee] simply needed further medical testing and a prescription

to control her narcolepsy.” Id. Likewise, in Kauffman, the

employee created an issue of fact as to whether “a minor ad-

justment in the work duties of a couple of other employees

would have enabled the plaintiff despite her disability to

30 No. 14-2400

perform the essential duties of her job as a hairdresser,” and

if the jury agreed, “the [employer]’s refusal to consider mak-

ing such an adjustment was unlawful.” 769 F.3d at 963.

As is evident in Spurling and Kauffman, as well as Dr.

Stern’s case, an employer’s refusal to interact has a tendency

to curtail the record, which in turn can frustrate judicial re-

view. But regardless of the state of the record, an employer’s

failure “to engage in the required [interactive] process …

need not be considered if the employee fails to present evi-

dence sufficient to reach the jury on the question of whether

she was able to perform the essential functions of her job

with an accommodation.” Basden, 714 F.3d at 1039. Unlike

the employer in Spurling, who fired the plaintiff without at-

tempting to obtain a medical evaluation of her capabilities,

SAHC retained Dr. Stern’s hand-picked evaluator, Dr. Fuce-

tola. More importantly, in Spurling and Kauffman, despite the

limited record, we found that each plaintiff satisfied her ini-

tial burden of producing competent evidence sufficient for a

jury to find that she was a qualified individual under the

ADA. By contrast, Dr. Stern has failed to produce adequate

evidence that he is a qualified individual, capable of per-

forming the essential functions of his job with or without

reasonable accommodation. Therefore, this case falls into the

category of cases in which an employer’s alleged failure to

adequately engage in the interactive process is immaterial.

See Basden, 714 F.3d at 1039 (“Because there was no evidence

permitting a conclusion that [employee] was a qualified in-

dividual for ADA purposes, the district court correctly en-

tered summary judgment for [the employer] on her ADA

claim despite any shortcomings in [the employer]’s response

to her [accommodation] request.”); Majors, 714 F.3d at 535

(same); Ozlowski, 237 F.3d at 840 (same).

No. 14-2400 31

We do not believe that our ruling erects an unreasonable

hurdle for ADA plaintiffs such as Dr. Stern. If in fact Dr.

Stern is capable of performing the essential functions of his

job, it should have been within his power to procure evi-

dence sufficient for a jury to find him to be a “qualified indi-

vidual.” For example, if Dr. Stern performed a comparable

job after his termination, he could produce evidence that he

adequately performed that job’s essential functions. 10 Or Dr.

Stern could have sought additional expert medical or voca-

tional evaluation of his capabilities with or without accom-

modation. 11 Instead, Dr. Stern relied upon evidence insuffi-

cient to create an issue of fact. Cf. Basith, 241 F.3d at 930

(“[Plaintiff] provides no evidence to substantiate this claim

[that he could perform the job with a wheelchair], such as a

report from his doctor that he could fully perform the deliv-

ery function with his proposed wheelchair.… [Plaintiff]’s

bare assertion that a wheelchair would accommodate his in-

ability to perform delivery of medications is sheer specula-

tion.”).

10 On appeal Dr. Stern does not cite to evidence describing his post-

SAHC employment. Before the district court, the parties referred to Dr.

Stern’s then-current employment as “providing evaluations for use in

court proceedings,” but no specifics were offered to show that this em-

ployment was comparable to his job at SAHC, i.e., providing long-term

clinical treatment and supervising other clinicians.

11 While we do not think that expert testimony was necessarily required

for Dr. Stern to show he was a qualified individual, some of the essential

functions of his job—practicing clinical psychology and supervising oth-

er clinicians—involve duties that are likely beyond the experience of

most jurors. We suspect that the more a job’s essential functions are out-

side the competence of a typical juror, the more likely expert testimony

may assist in proving an ADA plaintiff’s case.

32 No. 14-2400

We conclude by noting that, while we are troubled by

SAHC’s failure to meaningfully engage in the interactive

process, we think it is appropriate for an employer such as

SAHC to consider the sensitive nature of an employee’s po-

sition when evaluating potential accommodations. During

the decisionmaking process, Fischer and Dr. Burch clearly

were mindful of the fact that SAHC is an acute-care facility

and Dr. Stern’s position required him to be solely responsi-

ble for the clinical treatment of high-risk patients, most of

whom were children. Dr. Burch opined that, based upon Dr.

Fucetola’s report and “from a medical standpoint,” Dr. Stern

was not “able to see patients.” 12 Fischer was concerned that

no one in the small department was available or qualified to

sit in on Dr. Stern’s clinical sessions, and she felt “there were

liability issues, if a patient [of Dr. Stern’s] did commit sui-

cide,” given the information in Dr. Fucetola’s report. Fischer

had already transferred her minor relative’s treatment to a

different psychologist based upon her own concerns, even

before learning of the concerns of Dr. Stern’s co-workers and

Dr. Fucetola. It is fair to surmise that, if told of the contents

of Dr. Fucetola’s report and the comments of Sashidaran, Dr.

Baugher, Ringhausen, and Fischer, few parents would vol-

12 Dr. Stern argues that Dr. Burch’s comment that Dr. Stern should not

“practice psychology,” said in reaction to Dr. Fucetola’s report, consti-

tutes direct evidence of discrimination by SAHC. However, to establish

disability discrimination, even using direct evidence, a plaintiff must

establish that he is qualified to perform the essential functions of his job

either with or without reasonable accommodation. See Bekker v. Humana

Health Plan, Inc., 229 F.3d 662, 669–70 (7th Cir. 2000). Because Dr. Stern

has failed to create an issue of fact as to this threshold “qualified indi-

vidual” issue, we need not consider any other elements of his claim of

disability discrimination.

No. 14-2400 33

unteer their troubled children to act as guinea pigs for test-

ing the efficacy of proposed accommodations such as note-

taking or reduced responsibilities. We have held that an em-

ployer does not have to wait for a disabled employee in a

sensitive position to injure someone before it can evaluate

the employee’s fitness for duty, and, once evaluated, the

employer is “entitled to rely on a physician’s recommenda-

tion” that the employee is not able to safely perform an es-

sential function of his job. Timmons v. Gen. Motors Corp., 469

F.3d 1122, 1129 (7th Cir. 2006).

It is reasonable to require an employer to accommodate a

disability by, for example, diverting a few minutes of an or-

derly’s time to push wheelchairs to a hair salon (Kauffman) or

giving an employee a month of leave for her medical condi-

tion to be diagnosed and controlled with medication (Spurl-

ing). It seems less reasonable to require SAHC to knowingly

allow a psychologist with a documented memory impair-

ment—whose immediate memory scored in the lowest two

percent of the comparable population—to treat patients

without meaningful supervision at an acute-care facility. A

hospital in such a situation may rightly be concerned about

the risk to the health and safety of its patients. While the law

sometimes requires an employer to tread carefully, based

upon this scant record, Dr. Stern asked SAHC to step further

than the ADA required. The ADA does not require an em-

ployer to walk “on a razor’s edge—in jeopardy of violating

the [ADA] if it fired such an employee, yet in jeopardy of be-

ing deemed negligent if it retained him and he hurt some-

one.” Palmer v. Circuit Court of Cook Cnty., Ill., 117 F.3d 351,

352 (7th Cir. 1997). We do not mean to suggest that concern

for patient safety or fear of malpractice liability relieved

SAHC of the obligation to seriously engage in the interactive

34 No. 14-2400

process—it did not, as we have said—but we do think it is

entirely proper for an employer assessing the reasonableness

of a proposed accommodation to consider the sensitive na-

ture of the employee’s position and the potential safety and

liability risks involved. Cf. Emerson v. N. States Power Co., 256

F.3d 506, 513 (7th Cir. 2001) (holding that a phone operator

who answered “safety-sensitive calls” regarding gas and

electrical emergencies 5%-10% of the workday, and who was

susceptible to anxiety attacks, failed to create an issue of fact

as to whether she was a qualified individual under the

ADA). 13 This consideration also underscores the importance

of the requirement that, even when the employer fails to ad-

equately interact, a plaintiff must come forward with non-

speculative evidence “show[ing] that a reasonable accom-

modation could be made that would enable her to carry out

the essential functions of her job.” Spurling, 739 F.3d at 1062;

see Basden, 714 F.3d at 1039; Majors, 714 F.3d at 535.

Dr. Stern points to no evidence that would allow a trier

of fact to determine that he was a “qualified individual,” as

defined by the ADA. Accordingly, the judgment of the dis-

trict court is AFFIRMED.

13 In Emerson, in addition to finding no issue of fact as to whether the

plaintiff was qualified under the ADA’s “routine ‘qualified individual’

framework,” we came to the same conclusion under the “direct threat”

framework, which provides that “[a]n employee is not a qualified indi-

vidual if she poses ‘a significant risk to the health or safety of others that

cannot be eliminated by reasonable accommodation.’” Emerson, 256 F.3d

at 513–14 (quoting 42 U.S.C. § 12111(3)). Because the “direct threat”

framework has not been raised by either party, we decline to address its

possible application to the facts of this case.