Date: 01-08-2018

Case Style:

Case Number: 16-1403

Judge: Rovner

Court: United States Court of Appeals for the Seventh Circuit on appeal from the Middle District of Illinois

Plaintiff's Attorney: Pro Se

Defendant's Attorney: Tracy C. Litzinger, Leonard W. Sachs and Timothy D. Gronewold

Description: Yasas Rodrigo sued his employer,
Carle Foundation Hospital (“Carle”), for violations of the
Americans With Disabilities Act, 42 U.S.C. § 12101 et seq.
(“Act”). The district court granted summary judgment in favor
of Carle on Rodrigo’s claims for disability discrimination,
failure to provide a reasonable accommodation, and retaliation.
Rodrigo appeals and we affirm.
I.
Rodrigo was a resident in Carle’s Family Medicine Residency
Program (“Program”) beginning in July 2010. Medical
residency programs provide training to medical school
graduates who are seeking to become licensed physicians
certified in various specialties. Residents provide patient care
under the supervision of experienced doctors in settings such
as acute care hospitals like Carle. Unlike medical school, this
part of physician training includes an employment component.
The three‐year Program at issue here was governed by annual
contracts between Carle and its residents and by policies
adopted by the hospital. The standard contract was designed
to be renewed each year as a resident completed the Program’s
requirements. Residents were required to successfully complete
certain mandatory and elective rotations through various
medical specialties before proceeding from one Program year
to the next.
Residents were also required to pass the Step 3 test, the
third part of the United States Medical Licensing Examination
(“USMLE”) before advancing to the third year of the Program.
The Step 1 test and the two‐part Step 2 test (encompassing
clinical knowledge and clinical skills) are usually completed in
medical school, prior to residency. Carle adopted a policy in
July 2012 that “[m]ore than two failures of USMLE Step
No. 16‐1403 3
3 … will result in termination from the program.” R. 18‐23.
Passing the Step 3 exam is a prerequisite for obtaining a license
to practice medicine in the United States, and a license, in turn,
is necessary to be eligible to take the Family Medicine board
exam. Carle did not graduate residents from its Program
unless they completed licensing requirements and were
eligible to take the board exam. The State of Illinois (where
Carle is located) has its own limits on licensure: a medical
student with a total of five failures in the Step tests is not
eligible for further testing or licensure in Illinois without
significant remediation. See 68 Ill. Admin Code § 1285.60(a)(8)
(setting forth the nine‐ to twelve‐month remediation programs
required by law).
Rodrigo failed his first attempt to pass Step 1 as well as his
first attempt to pass Step 2 before successfully completing
those tests. He followed this performance with difficulties in
rotations during his first year in Carle’s Program. In the fall of
2010, he was placed in remediation and directed to repeat two
rotations. He completed remediation and was returned to good
standing. Shortly thereafter, his performance in two other
rotations was deemed insufficient and he was again placed in
remediation. At that time, his supervisors at Carle considered
whether a neuropsychological examination might help identify
any physical or cognitive issues that were affecting his performance.
Rodrigo never underwent the recommended testing,
but he successfully completed the second round of remediation
and returned again to good standing in the Program. Carle
extended Rodrigo’s first Program year by nearly five months
to allow him to complete the first year requirements.
4 No. 16‐1403
In May 2012, near the end of his second year in the Program,
Rodrigo took the Step 3 test and failed. With only two
months left before he was to begin the third year of the
Program, Carle agreed to allow Rodrigo to extend his second
Program year by twelve weeks in order to allow him to take
the Step 3 test a second time. Around this same time, Carle
adopted its policy limiting residents to three attempts at the
Step 3 test. The policy requiring passage of Step 3 before
advancing to the third Program year remained in effect.
In August 2012, Rodrigo reported to Carle that he had
failed a second time. After the second failure, Rodrigo informed
the director of the Program, Dr. Bharat Gopal, that he
had a sleep disorder and that he had been diagnosed with
Restless Leg Syndrome. Like most medical residents working
long hours in stressful circumstances, he had complained of
fatigue at various points in his residency but he had never
previously reported having a diagnosed sleep disorder. He
attributed his first two Step 3 failures to fatigue brought on by
his sleep disorder and told Dr. Gopal that he had scheduled a
third attempt. Although Rodrigo did not request an accommodation,
Dr. Gopal suggested that he take a leave of absence to
focus on passing Step 3. Dr. Gopal reminded Rodrigo that he
would be terminated from the Program if he failed the test a
third time. After initially rejecting the offer of a leave of
absence, Rodrigo changed his mind and took three weeks off
to prepare for his third attempt. His twelve‐week extension for
the second Program year ended on September 22, 2012. Soon
thereafter, he took Step 3 for the third time. On October 29,
2012, he reported to Dr. Gopal that he had failed a third time.
No. 16‐1403 5
In reporting his score to Dr. Gopal via email, Rodrigo
remarked that, unlike his first two attempts at Step 3, he
remained awake during the exam and simply felt fatigued. He
wrote that he was “confident that an addition of a review
course or another month off would not have changed [his]
score.” R. 18–26. He told Dr. Gopal that, “Test taking has
always been an issue,” and that it was an inherited trait in his
family. He said, “The only regret I have it [sic] the fact that [I]
didn’t seek help early for my sleep until it was too late and this
played the biggest role on my test score.” He acknowledged
that he “was not the easiest resident to understand from day
one,” but that he believed in retrospect that, “fair decision[s]
[were] taken.” R. 18–26.
After assuring Dr. Gopal that he was open to whatever
decision Dr. Gopal made about his future, and acknowledging
that termination of his residency was a “valid option,” Rodrigo
asked to be promoted to third‐year status in the Program so
that he could continue his residency and attempt to pass Step
3 in California in May 2013. Illinois, of course, was no longer
an option because he had accumulated five total failures in the
Step tests. He anticipated he would receive his score by June
2013 and conceded that “at that point, there will NOT be
another option for me.” He declined any scenario that would
require him to repeat any additional months beyond July 2013,
which would have been the natural end date for his three‐year
residency. R. 18–26.
Dr. Gopal informed Rodrigo that he was not eligible to
continue in the Program. Rodrigo asked to resign from the
Program in lieu of termination and Carle honored the request,
announcing his resignation. Two days later, in a letter taking
6 No. 16‐1403
a decidedly different tone, Rodrigo requested reinstatement so
that he could finish his residency in Carle’s Program by July 1,
2013. He asserted that he had been placed under tremendous
stress “beyond whats [sic] expected from an ordinary resident
physician.” R. 18–30. He complained:
During my time at Carle FP residency, I did
not receive the appropriate intervention and
adequate testing due to fear of confidentiality.
As evident from the documentation, due
to prior retaliation and prejudice, I was reluctant
in seeking help. My severe insomnia was
caused by the undue stress and embarrassment
I was subjected to during my time at
Carle. As a result, this has prevented my
success in USMLE Step 3.
R. 18–30.
Carle declined the request for reinstatement and Rodrigo
filed suit, asserting claims under the Americans With Disabilities
Act. Specifically, he alleged that Carle failed to provide
him a reasonable accommodation for his disability, discriminated
against him on the basis of his disability by terminating
him, and retaliated against him for engaging in protected
activity. The district court granted summary judgment in favor
of Carle on all of Rodrigo’s claims. He appeals.
II.
On appeal, Rodrigo argues that he produced sufficient
evidence to overcome summary judgment on all three of his
claims. In particular, he asserts that Carle discriminated against
No. 16‐1403 7
him by terminating him when he failed to pass Step 3 within
the allotted time frame. He contends that Carle allowed
another Program participant to complete the Program without
passing Step 3, and that he can therefore make out a prima facie
case for discrimination under McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973).1 On the reasonable accommodation claim,
he asserts that he presented evidence showing that he requested
the accommodations of reinstatement to the Program,
and the chance to take the Step 3 test a fourth time in California,
among other things. He argues that Carle failed to respond
to these requests with an interactive process to determine an
appropriate accommodation. On the retaliation claim, he
asserts that he presented evidence of protected activities
including his request for a fourth attempt at the Step 3 test and
his request for reinstatement. He claims that his termination
and the refusal to reinstate him were in retaliation for engaging
in these protected activities. Carle responds that Rodrigo is not
protected by the Act because he is not a “qualified individual.”
We review the district courtʹs grant of summary judgment
de novo, examining the record in the light most favorable to
Rodrigo and construing all reasonable inferences from the
evidence in his favor. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986); Yahnke v. Kane County, Ill., 823 F.3d 1066, 1070
(7th Cir. 2016). Summary judgment is appropriate when there
are no genuine disputes of material fact and the movant is
entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a).
1 That participant was not similarly situated because he completed the
Program before Carle adopted its Step 3 policy. Therefore, we need not
address this claim further.
8 No. 16‐1403
The Act prohibits covered employers from discriminating
“against a qualified individual on the basis of disability in
regard to job application procedures, the hiring, advancement,
or discharge of employees, employee compensation, job
training, and other terms, conditions, and privileges of employment.”
42 U.S.C. § 12112(a). The Act defines the term “qualified
individual” as:
an individual who, with or without reasonable
accommodation, can perform the essential
functions of the employment position that
such individual holds or desires. For the
purposes of this subchapter, consideration
shall be given to the employerʹs judgment as
to what functions of a job are essential, and if
an employer has prepared a written description
before advertising or interviewing applicants
for the job, this description shall be
considered evidence of the essential functions
of the job.
42 U.S.C. § 12111(8). Discrimination includes, among other
things, “not making reasonable accommodations to the known
physical or mental limitations of an otherwise qualified
individual with a disability who is an applicant or employee,
unless such covered entity can demonstrate that the accommodation
would impose an undue hardship on the operation of
the business of such covered entity[.]” 42 U.S.C.
§ 12112(b)(5)(A).
Carle is correct that Rodrigo’s claims for discrimination and
failure to accommodate fail at the start because he cannot
No. 16‐1403 9
demonstrate that he is a “qualified individual.”2 In determining
whether an employee is a “qualified individual,” we first
consider whether the individual satisfies the prerequisites for
the position and then turn to the question of whether the
individual can perform the essential functions of the job with
or without reasonable accommodation. Stern v. St. Anthony’s
Health Center, 788 F.3d 276, 285 (7th Cir. 2015); 42 U.S.C.
§ 12111(8). Prerequisites might include an appropriate educational
background, employment experience, particular skills
and licenses. Stern, 788 F.3d at 285; Budde v. Kane County Forest
Preserve, 597 F.3d 860, 862 (7th Cir. 2010). See also 29
C.F.R. § 1630.2(m) (“The term ‘qualified,’ with respect to an
individual with a disability, means that the individual satisfies
the requisite skill, experience, education and other job‐related
requirements of the employment position such individual
holds or desires and, with or without reasonable accommodation,
can perform the essential functions of such position.”).
Passing an exam required for licensure would fall into this
category. See, e.g., Leisen v. City of Shelbyville, 153 F.3d 805, 808
(7th Cir. 1998) (fire department was entitled to require paramedic
certification as a core qualification for the job of firefighter,
and an employee who was unable to obtain certification
within allotted time was not a “qualified individual” for
the purposes of the Americans With Disabilities Act).
2 Rodrigo was certainly a qualified individual in certain respects, and he
successfully completed many of the requirements of the Program. When we
say he was not a qualified individual, we mean that he was not qualified to
advance to the third year of the Program and to continue in the Program
because Carle had a legitimate requirement that residents pass Step 3 before
progressing to the final Program year.
10 No. 16‐1403
It is undisputed that in 2007, years before Rodrigo was
admitted to the Program, Carle adopted a policy that required
residents to pass Step 3 before they would be offered a contract
for the third Program year. It is also undisputed that, in July
2012, Carle adopted a policy that “[m]ore than two failures of
USMLE Step 3 … will result in termination from the program.”
R. 18–23. See Leisen, 153 F.3d at 808 (“[e]mployers are entitled
to define the core qualifications for a position.”). After the
adoption of these policies, no resident who failed Step 3 more
than two times was allowed to continue in the Program. On
this record, there is simply no question that passing Step 3 was
a legitimate requirement for advancing into the third Program
year and completing the Program. And there is also no
question that Rodrigo not only failed Step 3 three times but
also disqualified himself from further testing or licensure in
Illinois without significant remediation because he had
accumulated five failures in the Step tests generally. Indeed,
after his termination from Carle’s Program, Rodrigo failed Step
3 two more times before passing on his sixth attempt in
another state.
Rodrigo’s arguments on appeal amount to an attempt to
withdraw factual admissions he made below and an effort to
recast his Step 3 failures as non‐essential functions of his job as
a resident. The attempt to withdraw prior admissions is so
frivolous that we need not address it further. And even if we
consider the requirement to pass Step 3 under the “essential
functions” framework, his claims would still fail. In determining
whether a particular duty is an essential function, we
consider the employer’s judgment, the employee’s written job
description, the amount of time the employee spends performNo.
16‐1403 11
ing that function, the consequences of not requiring the
employee to perform the function, and the experiences of past
and current workers. Stern, 788 F.3d at 285; 29 C.F.R.
§ 1630.2(n)(3). Although the employer’s judgment is considered
an important factor, it is not determinative, and we also
look to evidence of the employer’s actual practices in the
workplace. Stern, 788 F.3d at 285–86; Miller v. Illinois Dept. of
Transportation, 643 F.3d 190, 198 (7th Cir. 2011).
Applying these factors, the undisputed evidence demonstrates
that passing Step 3 is an “essential function” for a thirdyear
medical resident at Carle. Carle, in its judgment as
employer, considers passage of the test essential to the resident’s
medical training. Indeed, a resident who does not pass
Step 3 is not eligible to become a licensed physician, and is not
eligible to take the Family Medicine board exam, the goal of
the residency Program. Carle includes the requirements for
passing Step 3, including the time frame for passage and the
maximum number of attempts, in its written policies. No other
resident who failed Step 3 three times was allowed to continue
in the Program after the hospital adopted its three‐strikes
policy. The consequence to Carle of the resident not passing is
that the resident may not be eligible for licensing without
significant remediation and will continue to practice on the
licenses of supervising physicians, an obvious risk for the
hospital. No matter how the requirement of passing Step 3 is
framed, whether as a core qualification or as an essential
function, the evidence supports only one conclusion: a resident
who cannot pass the test in the requisite time frame is not a
“qualified individual” for the third Program year.
12 No. 16‐1403
We turn to the retaliation claim. The Act’s retaliation
provision is not limited to protecting qualified individuals:
No person shall discriminate against any
individual because such individual has opposed
any act or practice made unlawful by
this chapter or because such individual made
a charge, testified, assisted, or participated in
any manner in an investigation, proceeding,
or hearing under this chapter.
42 U.S.C. § 122203(a) (emphasis added). See also Morgan v. Joint
Admin. Bd., 268 F.3d 456, 458–59 (7th Cir. 2001) (noting that the
statutory protections against discrimination in the Americans
With Disabilities Act are protections of “qualified individuals”
with a disability, “but the retaliation provision protects
individuals, period.“). To succeed on a claim for retaliation, a
plaintiff must demonstrate that she engaged in protected
activity, that she suffered an adverse action, and that there is
a causal connection between the two. Preddie v. Bartholomew
Consolidated School Corp., 799 F.3d 806, 814 (7th Cir. 2015).
Protected activities include asserting one’s rights under the Act
either by seeking accommodation or by raising a claim of
discrimination due to disability. Preddie, 799 F.3d at 814–15.
Rodrigo asserts that his protected activities included his
request for accommodation after his third failure of Step 3 and
his appeal for reinstatement. He cites his termination and the
denial of his request for reinstatement as adverse actions.
In asserting that Carle retaliated by refusing to waive its
Step 3 passage requirement, Rodrigo is really alleging a
discrimination or accommodation claim rather than a true
No. 16‐1403 13
retaliation claim. In other words, Carle’s alleged “retaliation”
was simply an enforcement of its Step 3 policy, and the
retaliation claim is thus a collateral attack on the legitimacy of
that requirement. Rodrigo may not make an end‐run around
the “qualified individual” requirement by simply reframing a
discrimination or accommodation claim as one for retaliation.
Because he is not a qualified individual for the purposes of his
discrimination and accommodation claims, he is not a qualified
individual for his mislabeled retaliation claim. In any case,
Rodrigo presented no evidence demonstrating that there was
a causal connection between his asserted protected activity and
either his termination or the refusal to reinstate him. Preddie,
799 F.3d at 814.
III.
Carle provided to Rodrigo a number of accommodations
during his residency including extensions of his first and
second Program years, and time off to study for his third
attempt at the Step 3 exam, an accommodation that he at first
declined. Rodrigo himself admitted that the addition of a
review course or another month off would not have helped
him pass Step 3. In his deposition, he conceded that, other than
giving him a leave of absence to study for the test (which the
hospital did), there was nothing Carle could have done to help
him pass the test after his second failure. It was after that
second failure that Dr. Gopal learned for the first time that
Rodrigo had a diagnosed sleep disorder. Rodrigo took the test
three more times before eventually passing it. Allowing him
the requested fourth attempt in California would not have
helped. Carle was entitled to enforce its legitimate Step 3
14 No. 16‐1403
policy, and so the court did not err in entering summary
judgment in favor of Carle on all three of Rodrigo’s claims
under the Act.

Outcome: AFFIRMED

Plaintiff's Experts:

Defendant's Experts:

Comments: