Timothy Barber
Timothy Barber

Employer that Failed to Engage in “Interactive Process” Not Liable Under ADA

September 23, 2015

The U.S. 7th Circuit Court of Appeals (whose rulings apply to all Wisconsin employers) recently ruled that an employer isn’t liable for discrimination under the Americans with Disabilities Act (ADA) if it failed to engage in the mandatory “interactive process” when a supervisory employee in a sensitive high-level position couldn’t prove that he could perform the essential functions of his job. The court further ruled that untested opinions or hope that the employee could perform some of his essential job functions with accommodations wasn’t sufficient to create a material issue of fact for trial.

Psychologist Develops Short-Term Memory Problems

Dr. Michael Stern was employed by Saint Anthony’s Health Center (SAHC) as the chief psychologist in the psychological services department for eight years. In 2009, he received a positive performance review. However, in the middle of 2010, one of his subordinates resigned and made several troubling allegations about him during her exit interview.

Specifically, the former employee indicated that she believed Stern had “cognitive issues,” such as forgetting appointments and meetings, failing to perform administrative tasks in a timely manner, passing off administrative work, and exhibiting impulsive behavior. She also noted that he failed to include basic information on patient charts, such as dates of treatment, treatment goals, treatment plans, and treatment progress. She stated that she believed Stern was suffering from Alzheimer’s disease and that other members of the department were concerned about the same issues.

The former employee’s concerns were forwarded to Stern’s supervisor, Patty Fischer. Fischer spoke with Stern’s subordinates and coworkers, all of whom reported their belief that he exhibited problems with memory and performing tasks. Some subordinates expressed a belief that he had mismanaged the care of minor patients.

Based on those findings, Fischer consulted with SAHC’s vice president of medical affairs, Lawrence Burch, who recommended that Stern undergo a fitness for-duty (FFD) evaluation at SAHC’s expense. SAHC agreed to have the FFD examination performed by Dr. Robert Fucetola, whom Stern had selected.

Fucetola evaluated Stern and administered several memory and cognitive tests. Although initially equivocal, he ultimately issued a report that indicated Stern was experiencing short-term memory deficiencies and tested in the lowest percentiles for word recall, word learning, and memory among individuals his age and with a similar education. Based on the results of the tests, he concluded that “Dr. Stern is not believed to be fit for duty in his current position as a hospital director of psychology.”

However, Fucetola opined that Stern might be able to continue working if SAHC reassigned some of his job functions, allowed him to treat patients with less complex cases, and had other doctors supervise him during clinical sessions and if he began to use memory-coping techniques such as copious note taking. Fucetola later testified that he didn’t believe Stern could effectively run the psychology department and doubted his ability to effectively treat patients.

Fischer and Burch met to discuss Fucetola’s report and came to the conclusion that none of the suggestions he offered was feasible. Moreover, the proposed accommodations put patients at risk. Specifically, they concluded the following:

  • It wasn’t feasible to have Stern treat less complex cases because SAHC didn’t categorize patients as being “complex.”
  • It wasn’t practical to have a qualified individual supervise Stern during clinical sessions because the supervising physician could just as easily treat the patient.
  • SAHC had no part-time positions that he could fill.
  • Copious note taking would interfere with his ability to listen and respond to patients during clinical sessions.

Based on those conclusions, SAHC terminated Stern and did not replace him. Instead, his job functions were split among his subordinates, and SAHC eventually merged its psychology department with another department.

Stern filed suit under the ADA, alleging failure to accommodate and disparate treatment. The district court granted summary judgment (pretrial dismissal) in favor of SAHC, and Stern appealed. On appeal, the 7th Circuit affirmed, holding that Stern failed to create a genuine issue of material fact about whether he was qualified to perform the essential functions of his job.

7th Circuit’s Decision

The court began its analysis by stating that to maintain an ADA claim, an employee must prove that he is a “qualified individual” under the statute. That requires him to establish that (1) he satisfies the prerequisites for the position and (2) he “can perform the essential functions of the position held or desired, with or without a reasonable accommodation.”

In discussing whether Stern could show that he was able to perform the essential functions of his job, the court noted the unique nature of his position: He was the only chief psychologist employed by SAHC, and his position required clinical practice, supervision of other professionals, and performance of administrative functions. The court ruled that all three of those elements were essential requirements for the job.

Employee must prove he was qualified on the date he was terminated. Stern argued that his positive performance review from 2009 proved that he was capable of performing the essential functions of his job. The court disagreed, ruling that it isn’t relevant whether an employee was able to perform the essential job functions at some previous point in time. Rather, the pertinent inquiry is whether he was able to perform his job functions at the time he was terminated.

In this case, the court stressed that while Stern indeed received a favorable performance review in 2009, the information about his memory deficiencies came to light in 2010. Thus, his 2009 performance review couldn’t create a genuine issue of fact for trial.

Conclusory testimony that employee’s “work got done” insufficient. Stern pointed to testimony from his administrative assistant, who stated that his “work got done.” He also relied on testimony from his wife, who stated that she observed that he was able to perform high-level tasks, such as writing reports for court proceedings.

The court ruled that such testimony wasn’t sufficient to create an issue of fact for trial because neither witness had personal knowledge of Stern’s ability to treat patients in clinical sessions or of who was actually performing his administrative work. As the court noted, testimony that the “‘work got done’ is not the same as testimony that Dr. Stern actually performed the work himself.”

“Hope” that an accommodation will allow an employee to perform his essential job functions isn’t sufficient. Next, Stern relied on Fucetola’s report and testimony to argue that he could perform the essential functions of his position if SAHC provided him with one or more of the recommended accommodations. The court disagreed for several reasons.

First, the court noted Fucetola’s “lack of confidence in his proposed accommodations.” His report simply said it was “possible” and “likely” that Stern could perform his job functions if one or more of his proposed accommodations were adopted. Also, Fucetola stated in his deposition that he was “not sure” whether some of his proposed accommodations, such as note taking, would be effective. The court found that Fucetola’s report and testimony were too conclusory.

The court has ruled in previous cases that “a conclusory and untested opinion/hope” that proposed accommodations would enable an employee to perform the essential functions of his position isn’t sufficient. Rather, an employee needs to present nonspeculative, nonconclusory evidence that a proposed accommodation or treatment would actually allow him to perform his essential job functions.

Employer isn’t required to eliminate essential job functions. The court also took issue with several of Fucetola’s suggestions because they required SAHC to either eliminate one or more of the essential functions of the chief psychologist position or reassign those functions to other employees. The court affirmed previous decisions in which courts have held that providing a reasonable accommodation under the ADA doesn’t require an employer to remove or eliminate one or more essential job functions—particularly if the employee is in a high-level supervisory role. By contrast, an employer may be required to be more flexible and reassign tasks for an employee working in a team environment.

The court clarified that while the ADA indicates that a reasonable accommodation may include “job restructuring,” Equal Employment Opportunity Commission (EEOC) guidance interpreting the Act states that “job restructuring” involves “reallocating or redistributing marginal job functions” or “altering when and/or how a function, essential or marginal, is performed.” The EEOC guidelines clearly state that “an employer never has to reallocate essential functions as a reasonable accommodation.”

In this case, the court noted that there was no dispute that the supervisory and administrative responsibilities were essential rather than marginal functions of the chief psychologist position. Thus, it wasn’t a reasonable accommodation to delegate those functions to Stern’s subordinates. Likewise, the court rejected his suggestion that he could have been accommodated by switching jobs with a subordinate. The court found that suggestion problematic for several reasons.

First, the subordinate in question wasn’t qualified for Stern’s position. Second, the ADA requires an employer to reassign a disabled employee to a different position only when there is a vacant position to fill. That is, “an employer is not required to ‘bump’ other employees to create a vacancy so as to be able to reassign the disabled employee.” Moreover, the employer isn’t required to create a new position to accommodate an employee.

For those reasons, the court concluded that Stern failed to present sufficient evidence to create a genuine issue of fact for trial about whether he could perform his essential job functions.

Failure to engage in interactive process isn’t an independent basis for liability. Stern argued that SAHC failed to engage in the “interactive process” required by the ADA before terminating him. The court agreed, noting that it was “troubled” by the employer’s failure to do so. However, it reaffirmed previous cases in which courts had concluded that an employer’s failure to engage in the interactive process isn’t an independent basis for liability under the ADA if the employee cannot show he was able to perform his essential job functions. Without such proof, an employee cannot establish that he is a “qualified individual” under the ADA.

Finally, while the court was concerned that SAHC failed to engage in the interactive process, it noted that Stern’s position required him to deal with children who have emotional problems and may be at risk for suicide, and SAHC was legitimately concerned about liability issues if it continued to allow him to treat patients. The court stated, “It is appropriate for an employer such as SAHC to consider the sensitive nature of [the] employee’s position when evaluating potential accommodations.” Stern v. St. Anthony’s Health Center, No. 12-2400 (7th Cir., June 4, 2015).

Bottom Line

Although this decision doesn’t break any new ground, it’s a useful reminder that you must determine on a case-by-case basis whether you can offer employees with disabilities reasonable accommodations. For a lower-level employee who works in a team environment, the ADA may very well require you to consider reassigning some nonessential job functions to other employees or altering the time and manner in which the employee performs his job functions. However, you aren’t required to wholly eliminate essential job functions, create a new position, or “bump” the employee to a different position.

The 7th Circuit recognized that an employer may take into account the sensitive nature of a high-level employee’s position when determining whether a requested accommodation is reasonable. Although the employer in this case wasn’t found liable for failing to engage in the ADA’s interactive process, you would be best served by actively communicating with disabled employees about how you can potentially accommodate them.


This article, slightly modified to note recent updates, was featured in the July 2015 issue of the Wisconsin Employment Law Letter, which is edited by Axley Brynelson Attorney Saul Glazer and published by BLR®—Business & Legal Resources. Reproduced here with the permission of BLR®—Business & Legal Resources.