The full case caption appears at the
end of this opinion. ROVNER, Circuit Judge. Stephen Lenker sued hisemployer, Methodist Hospital, under the AmericansWith Disabilities Act, for failing to accommodatehim. Lenker, a nurse, suffered from multiplesclerosis (“MS”). After his doctor issued alifting restriction for him, the hospital removedhim from his job as a nurse because the hospitalconsidered lifting to be an essential part of thejob that could not be reasonably accommodated. Ajury found in favor of the hospital and Lenkerappeals. We affirm. I. Lenker was diagnosed with MS while he was stillin nursing school, and Methodist Hospital knew hehad the condition when it hired him. At the timeof his hire, Lenker’s MS was in remission, he hadno restrictions on lifting and he was able tofully perform all of his nursing duties. One ofMethodist’s job requirements for a staff nurse isthe ability “to manage, with assistance asappropriate, approximately 200 lbs. weight.” Anurse’s duties include turning patients in bed,assisting patients to and from the bathroom,helping patients walk and assisting patients whounexpectedly fall. Sometimes other staff membersare available to assist a nurse with lifting, andsometimes because of staffing shortages orbecause an emergency arises, a nurse may have toengage in physically strenuous lifting withoutassistance. None of this was a problem for Lenker until hehad been on the job for approximately six months.At that time, he suffered an MS episode thatresulted in a 10 day hospitalization. When he wasreleased, his doctor indicated that Lenker shouldnot engage in any lifting. Methodist’s policy atthe time was to require any employee who was sickon the job or who missed more than three days ofwork to obtain clearance from its OccupationalHealth Department before being allowed to returnto work. Additionally, the policy stated that ifthe employee was released to work by theOccupational Health Department with restrictions,the employee’s manager was to determine whetherthe employee could return to work with thatrestriction. As a result of the policy, aphysician from the Occupational Health Departmentexamined Lenker following his hospitalization.That doctor concurred with the judgment ofLenker’s personal physician that Lenker shouldnot engage in lifting. Thus, Lenker’s workrelease contained a “no lifting” restriction.Lenker’s manager subsequently determined thatLenker could not return to work as a nurse withthat restriction because lifting was a necessarypart of the job. Although the hospital’s policy required twelvemonths of service before an employee was eligiblefor a leave of absence, Methodist granted Lenkera leave to give him time to have his liftingrestriction reevaluated and possibly removed. Thehospital also gave Lenker access to its jobposting board, which was not available to non-employees. Lenker’s manager informed him of hislayoff status and these benefits by telephone,and the two did not talk again about Lenker’semployment status. During Lenker’s layoff, hisphysical condition worsened, and after a year onlayoff status, the hospital terminated Lenker’semployment. Lenker sued Methodist, claimingviolation of the Americans With Disabilities Act,and violation of state defamation law. Thedistrict court granted summary judgment on thestate law defamation claim, and the ADA claimwent to trial before a jury. The jury found infavor of Methodist Hospital. Lenker appeals. II. Lenker claims the district court erred when itrefused to grant his Rule 50 motion for judgmentas a matter of law, because Methodist failed toshow at trial that it engaged in an interactiveprocess to accommodate Lenker’s disability.Lenker also protests the district court’s refusalto give three of his proposed jury instructions.The district court declined to give Lenker’sproposed instruction regarding the interactiveprocess in which an employer must engage todetermine what accommodations might exist for thedisabled employee, instead giving instructionsproposed by Methodist Hospital on this samesubject. The court also declined to instruct thejury that Methodist’s “100% healed” policyviolated the ADA, or that the jury could considerwhether Methodist’s stated reason for terminatingLenker was pretextual. We review the denial of amotion for judgment as a matter of law de novo,determining whether the evidence presented andthe reasonable inferences drawn from the evidenceare sufficient to support the verdict when viewedin a light most favorable to the party againstwhom the motion is directed. Emmel v. Coca-ColaBottling Co. of Chicago, 95 F.3d 627, 629-30 (7thCir. 1996). We review the jury instructions todetermine if, as a whole, they were sufficient toinform the jury correctly of the applicable law,reversing only if a particular instructionmisguides the jury to a party’s prejudice. Maltbyv. Winston, 36 F.3d 548, 560 (7th Cir. 1994),cert. denied, 515 U.S. 1141 (1995). A. Lenker believes he is entitled to judgment as amatter of law because the hospital engaged in adirected rather than an interactive process withhim once it learned of his disability. Lenkercontends that Methodist failed to establish thatlifting was an essential element of a nurse’sjob, and that he could not be accommodated. Heprotests Methodist’s failure to assess the job ofnurse and his abilities with an eye towardaccommodating him. He maintains that uncontestedevidence supports his view that the hospitalrefused to even consider an accommodation.Following a trial, we are limited in our reviewto assessing whether no rational jury could havefound for Methodist. Emmel, 95 F.3d at 630. In determining whether a particular job functionis essential, we are guided by the federalregulations: Evidence of whether a particular function isessential includes, but is not limited to: (i) The employer’s judgment as to whichfunctions are essential; (ii) Written job descriptions prepared beforeadvertising or interviewing applicants for thejob; (iii) The amount of time spent on the jobperforming the function; (iv) The consequences of not requiring theincumbent to perform the function; (v) The terms of a collective bargainingagreement; (vi) The work experience of past incumbent inthe job; and/or (vii) The current work experience of incumbentsin similar jobs. See 29 C.F.R. sec. 1630.2(n)(3). See also R. 67,Court’s Instruction No. 16 (detailing thesefactors for the jury). The jury heard evidencethat Methodist considered lifting an essentialfunction of the job, that it was part of the jobdescription for staff nurses, that at times,staff shortages or emergencies left a nursewithout assistance in a lifting task, and thatthe need for lifting was not always predictablebecause patients sometimes fell or neededassistance unexpectedly. Lenker protests thatlifting comprised at most two percent of anurse’s day, that devices were available toassist in lifting patients, and that all nurseswere allowed to use their judgment to determinewhether they needed assistance in a particularsituation and call for other staff to help. Thejury was free to find, however, that those timesof the work day when lifting was required wereessential to the nurse’s job, that a device toassist in lifting a patient out of bed would nothelp a patient walk down the hall or to thebathroom, and that at times other staff would notbe available to assist. In short, based onevidence presented by the hospital, the jury wascertainly entitled to find that lifting was anessential function of a nurse’s job. The remaining question is whether Lenker couldbe accommodated, and whether the hospital engagedin an interactive process with him to determineappropriate accommodations. The hospital offeredevidence that Lenker could not always be assistedin carrying out this function because of staffshortages and emergencies. Thus, not only was thelifting function essential, but Lenker could notbe accommodated as a nurse. This did not relievethe hospital of its duty to accommodate Lenker inother ways if possible.
[FOOTNOTE 1] Because Lenker couldnot be accommodated as a nurse, the hospital madeits internal job postings available to him sothat he could apply for other jobs in thehospital more suited to his abilities. SeeHendricks-Robinson v. Excel Corp., 154 F.3d 685,694 (7th Cir. 1998) (reasonable accommodationincludes reassignment to a vacant position forwhich the employee is qualified); Dalton v.Subaru-Isuzu Automotive, Inc., 141 F.3d 667, 677-78 (7th Cir. 1998) (same). Lenker testified thathe would have taken any job, but the hospitalclaimed Lenker refused to take any non-nursingjobs. For whatever reason, Lenker did not obtainanother permanent position at the hospital.Whether the hospital tried to reasonablyaccommodate Lenker with these steps, and whetherLenker cooperated in the hospital’s attempts toaccommodate him are classic fact questions forthe jury to resolve. The jury appears to haveresolved the issues in the hospital’s favor. Wewill not supplant our view of the evidence forthat of a jury in its verdict. Emmel, 95 F.3d at630 (quoting Hybert v. Hearst Corp., 900 F.2d1050, 1054 (7th Cir. 1990)). We therefore affirmthe district court’s denial of Lenker’s motionfor judgment as a matter of law. B. The district court rejected Lenker’s proposedjury instruction regarding the interactiveprocess. The controversial part of Lenker’sinstruction states that “if you find theinteractive process was one directed by thedefendant and not truly interactive, then this isa violation of the ADA on the part of thedefendant.” Lenker relied on Excel in support ofthis instruction. In Excel, the court found thatan employer’s procedure for accommodation wasdirective as opposed to interactive where, inpart, the plant nurse unilaterally determinedthat employees could not be accommodated incertain positions. 154 F.3d at 699. Here, thecourt declined the instruction because otherinstructions already accurately and fully advisedthe jury as to what constitutes an interactiveprocess: With regard to this court’s other instructionsthat fully advise the jury as to what constitutesan interactive review process, the court believesthat the language contained in its instructionsdoes properly reflect the language in thestatute; that the statute specifically does notreference in this context a directive process asopposed to an interactive process as being aviolation forbidden. For that reason, the courtdeclined to use the plaintiff’s tenderedInstruction 17. Tr. at 784. Although this explanation is somewhatcryptic, we believe the court was declining theinstruction because the statute says nothingabout a directed versus an interactive process,and other instructions adequately addressed therequirement for an interactive process. Our review of the other instructions revealsthat they did, in fact, adequately address theinteractive process. The remaining instructionsinformed the jury of the employer’s duty toanalyze the job involved, determine its purposeand essential functions, as well as the duty toconsult with the employee to determine theprecise job-related limitations imposed by thedisability and how those limitations could beovercome with a reasonable accommodation. Thecourt also instructed the jury that the employerwas obliged to identify, in consultation with theemployee, potential accommodations, and to assessthe effectiveness each would have in enabling theindividual to perform the essential functions ofthe position. The jury was also instructed thatthe employer was to consider the preference ofthe individual to be accommodated and then selectthe accommodation most appropriate for both theemployee and the employer. Based on this Court’sdecisions, the court also advised the jury thatmaking these determinations is a cooperativeprocess, and both the employer and the employeemust make reasonable, good faith efforts:Neither party should be able to cause a breakdownin the process for the purpose of either avoidingor inflicting liability. A party that obstructsor delays the interactive process is not actingin good faith. A party that fails to communicate,by way of initiation or response, may also beacting in bad faith. R. 67, Court’s Instruction No. 22. See Felibertyv. Kemper Corp., 98 F.3d 274, 280 (7th Cir.1996); Beck v. University of Wisconsin Bd. ofRegents, 75 F.3d 1130, 1135-36 (7th Cir. 1996).These instructions are accurate statements of thelaw, and the jury was not therefore misled bythem. Lenker’s complaint that the concept of”good faith” was not adequately addressed isbelied by the language we just quoted. As forLenker’s insistence on the “directed process”language, we have repeatedly held that a party isnot entitled to any particular wording, and thecourt adequately addressed the interactiveprocess concept with its instructions on the needfor a cooperative process. See e.g. Russell v.National R.R. Passenger Corp., 189 F.3d 590, 594(7th Cir. 1999). We therefore affirm the districtcourt’s refusal to give Lenker’s alternateinstruction. C. The district court also declined to giveLenker’s “100% healed” instruction, which reads,in relevant part: Additionally, if you find that the Plaintiff hasproven by a preponderance of the evidence thatthe Defendant Hospital has a policy that requiredthe Plaintiff to be “100% healed” or that he mustbe “cured” of his disability before he couldreturn to work as a nurse, then you shall findthat this is a per se violation of the ADA andshould find for the Plaintiff and against theDefendant. R. 66, Plaintiff’s Proposed Jury Instruction No.37. The district court rejected the instructionbecause it was unnecessary in light of otherinstructions given and because it did notaccurately reflect the law as it related to theissues presented in this case. Lenker relies onExcel in support of this instruction. Excel citedfavorably a district of Minnesota case for theproposition that a policy that requires anemployee to be 100% healed before returning towork is a per se violation of the ADA because itdoes not allow a case-by-case assessment of anindividual’s ability to perform the essentialfunctions of the job, with or withoutaccommodation. See Heise v. Genuine Parts Co.,900 F. Supp. 1137, 1154 n.10 (D. Minn 1995). Lenker claims there was testimony that MethodistHospital had such a policy. He cites statementsfrom hospital personnel that an employee with alifting restriction would not be allowed toreturn to work until the restriction was removedbecause lifting was an essential function of thejob that could not be accommodated. This is a farcry from saying that Lenker’s MS must be 100%healed before being allowed to return to work.The district court was correct that the “100%healed” instruction was not an accuratereflection of the law as applied to the facts ofthis case. Instead, Lenker’s real objection tothe hospital’s policy was that it decided,without consulting Lenker, that lifting was anessential job function that could not bereasonably accommodated. Other instructionsaddressed this issue, and it was for the jury todecide whether Methodist was justified in itsblanket assessment that nurses who could not liftcould not be accommodated as nurses. It was alsofor the jury to decide whether the hospitaladequately accommodated Lenker in other ways,such as giving him access to internal jobpostings, and placing him on layoff status togive him time to recover his ability to lift. D. The district court also rejected Lenker’sproposed instruction on the issue of pretext.Lenker’s instruction tracked the language of theMcDonnell Douglas case, using a burden shiftinganalysis. See McDonnell Douglas Corp. v. Green,411 U.S. 792 (1973). The instruction explainedthat Lenker believed the actions taken againsthim were the result of unlawful discrimination inviolation of the ADA, but that the hospital hadadvanced non-discriminatory reasons for itsactions. Lenker’s instruction explained that ifthis non-discriminatory explanation was not thetrue reason for the hospital’s actions, then theexplanation was pretextual. If the jury decidedthe explanation was pretextual, they were free toconclude that the real reason for the hospital’saction was unlawful discrimination. The districtcourt rejected this instruction because it foundthat a McDonnell Douglas burden-shifting analysiswas inappropriate and unnecessary for an ADA caseunder our decision in Bultemeyer v. Fort WayneCommunity Schools, 100 F.3d 1281 (7th Cir. 1996). In Bultemeyer, we explained that in a disparatetreatment claim under the ADA, the plaintiffcould use either direct proof or rely on theburden-shifting method defined in McDonnellDouglas. 100 F.3d at 1283. However, when aplaintiff brings a claim under the reasonableaccommodation part of the ADA, the burden-shifting method of proof is both unnecessary andinappropriate. We held in Bultemeyer that if theplaintiff demonstrated that the employer shouldhave reasonably accommodated the plaintiff’sdisability and did not, the employer hasdiscriminated under the ADA and is liable. Id.See also Weigel v. Target Stores, 122 F.3d 461,464 (7th Cir. 1997). There is no need at thatpoint for indirect proof or burden shifting.Because Lenker’s claim was based on reasonableaccommodation and not disparate treatment, thedistrict court was correct to reject Lenker’sproposed pretext instruction. AFFIRMED. :::FOOTNOTES:::
FN1 The hospital also tried to accommodate Lenker byallowing him to go on layoff status so that hewould have time to possibly regain his ability tolift if his MS went into remission.
Lenker v. Methodist Hospital In theUnited States Court of AppealsFor the Seventh Circuit No. 98-4183 STEPHEN P. LENKER, Plaintiff-Appellant, v. METHODIST HOSPITAL, Defendant-Appellee. Appeal from the United States District Courtfor the Northern District of Indiana, Hammond Division.No. 95 C 377–Theresa L. Springmann, Magistrate Judge. Argued September 23, 1999–Decided April 26, 2000 Before POSNER, Chief Judge, MANION and ROVNER,Circuit Judges.
