7th Cir. Denies Attempt to Circumvent “Qualified Person” Requirement for ADA Discrimination Claims
Employees who claim their employer’s policies discriminate in violation of the Americans with Disabilities Act (ADA) must show that they are an otherwise “qualified individual” for the position in question. A creative plaintiff’s attorney attempted to circumvent this basic requirement by challenging an employer’s policies under an ADA retaliation claim, which has no “qualified individual” requirement. The argument was presented before the Seventh Circuit in January, 2018. Employers can be reassured by the circuit’s conclusion — when it comes to enforcing its own job requirements and policies, a plaintiff cannot avoid the “qualified individual” element by simply claiming a different type of cause of action.
In Rodrigo v. Carle Foundation Hospital, 879 F.3d 236 (7th Cir. 2018) the plaintiff, Yasas Rodrigo, was a second-year medical resident for the defendant, Carle Foundation Hospital (Carle Hospital). To advance to the third year of his residency, Rodrigo was required to pass the “Step 3” portion of the United Sates Medical Licensing Examination. Rodrigo, 879 F.3d at 239. Although the State of Illinois allowed test-takers five attempts to pass the exam before imposing restrictions on test takers, Carle Hospital was more stringent — if a resident failed Step 3 three times, they were no longer permitted to participate in Carle Hospital’s residency program. Id.
Rodrigo failed the test three times and was therefore excluded from Carle Hospital’s residency program. Id. at 240. Only after his second failure did Rodrigo inform Carle that he was diagnosed with Restless Leg Syndrome, which interrupted his sleep and would cause him to fall asleep during the exams. Id. at 239. After learning of Rodrigo’s disability, Carle Hospital gave him three weeks to study for his third attempt even though Rodrigo never officially asked for any accommodation. Id. After failing to meet Carle Hospital’s requirements, Rodrigo took and failed the Step 3 exam two more times with other employers before finally passing on his sixth try. Id. at 241.
When Rodrigo failed the fatal third time, he filed suit against Carle Hospital under the ADA. Since Rodrigo was challenging his employer’s official policies, he first claimed Carle discriminated against him in violation of the ADA, because (1) he was an “otherwise qualified” employee and (2) Carle Hospital failed to “reasonably accommodate” when it held him to the same test-taking standards as his non-disabled peers. Id. at 242.
The Seventh Circuit found fault with both parts of Rodrigo’s argument. Most fundamentally, the Court held, Rodrigo failed to show he was an “otherwise qualified individual.” Id. at 241–42. Under the Act, an individual can only be “qualified” for a position if they satisfy the prerequisites for the position, and can perform the job’s essential functions with, or without, reasonable accommodations. Id. at 242. In this case, passing Step 3 was clearly an essential function for a medical resident. Id. The purpose of Carle Hospital’s residency program was to prepare residents for the practice of medicine, which was impossible to do if the resident does not pass Step 3. Id. Thus, Carle Hospital’s Step 3 requirement was a prerequisite for an essential function that Rodrigo failed to satisfy. Id. Interestingly, the court also noted that being allowed to take the test a fourth time would have be a futile accommodation — Rodrigo would not pass the exam until his sixth try. Id. at 244. In sum, Rodrigo was not a “qualified individual” protected under the ADA, and any accommodation would not have made him qualified. Id.
Where Rodrigo sheds new light is in foreclosing a potential end-run of the above “discrimination” analysis. Rodrigo, seeing the writing on the wall, next tried to avoid the “qualified individual” analysis by asserting a retaliation claim under the ADA. Retaliation requires the plaintiff to engage in a protected activity, such as requesting an accommodation, which caused an employer to act adversely against him or her. Id. at 243. A retaliation claim does not require the plaintiff to show he or she is a qualified individual, or that the accommodation would even have made a difference—the request itself, Rodrigo claimed, could be sufficient. Id. Thus, Rodrigo argued that Carle Hospital violated the ADA because it retaliated against him by failing to renew his contract after he engaged in a protected activity (requesting to take the test again due to his Restless Leg Syndrome).
The Seventh Circuit quickly rejected Rodrigo’s tactic. In effect, the court concluded, the alleged retaliation was really just Carle Hospital enforcing its Step 3 policy. Id. This was not an instance where an employee was fired contrary to a written policy. Since Rodrigo was not qualified to challenge the policy’s enforcement under a discrimination claim, he was also not entitled to make a collateral attack on the legitimacy of Carle Hospital’s Step 3 policy under the guise of a retaliation claim. Id.
In essence, Rodrigo forecloses a potential shortcut for ADA plaintiffs, ensuring they not only have to prove their case, but prove the correct type of case to be successful. As such, this case should be in any employer’s litigation toolbox, particularly when the thrust of an employee’s complaint is focused on the employer’s job prerequisites or clearly stated policy.