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Stern v. St. Anthony's Health Center/--> Page 276 788 F.3d 276 (7th Cir. 2015) MICHAEL STERN, Plaintiff-Appellant, v. ST. ANTHONY'S HEALTH CENTER

United States Court of Appeals, Seventh Circuit

June 4, 2015

MICHAEL STERN, Plaintiff-Appellant,
v.
ST. ANTHONY'S HEALTH CENTER, Defendant-Appellee

Argued: October 30, 2014.

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[Copyrighted Material Omitted]

Page 278

Appeal from the United States District Court for the Southern District of Illinois. No. 3:12-cv-00785-SCW -- Stephen C. Williams, Magistrate Judge.

For Michael Stern, Plaintiff - Appellant: Lee W. Barron, Attorney, William D. Buchanan, Attorney, Lee W. Barron, P.C., Alton, IL.

For St. Anthony's Health Center, Defendant - Appellee: Laura M. Jordan, Attorney, Krissa P. Lubben, Attorney, Thompson Coburn Llp, St. Louis, MO.

Before WILLIAMS, TINDER, and HAMILTON, Circuit Judges.

OPINION

Page 279

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 rendered 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 find reasonable accommodations that would permit him to continue his employment. We are troubled by SAHC's actions, which short-circuited the interactive process mandated by the ADA. But because Dr. Stern failed to create an issue of fact as to whether he was able to perform the essential functions of his job with or without reasonable accommodation, 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 services 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 counselors. Supervision of the clinical staff consumed approximately 30%-50% of Dr. Stern's professional time. Dr. Stern performed administrative tasks, such as billing, scheduling, payroll, planning, budgeting, managing, evaluating, organizing, and developing the Department, which occupied approximately 15%-30% of his professional time. Finally, Dr. Stern provided direct clinical treatment to patients, which consumed approximately 15%-25% of Dr. Stern's professional time. Dr. Stern's patients, over 60% of whom were children, presented with psychological and mental problems including depression, anxiety disorders, and suicidal risks. Complex cases, that is, ones which required more intensive psycho-therapeutic work, dominated his patient load.

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On March 29, 2010, Dr. Stern received an annual performance 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 improve 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 administrative work." Sashidharan " personally observed that [patient] charts prepared by Dr. Stern failed to include ... basic information," such as dates of services, treatment plans, treatment 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 student was fit to safely return to school after an incident." Sashidharan opined that Dr. Stern was suffering from Alzheimer's disease, and although she had told him of her concerns, she " [did]n't think he remember[ed] the conversation." She " believed Dr. Stern's condition had become a significant problem and risked the quality and integrity of patient care." She notified her coworkers in advance of what she would say during her exit interview, and it was her impression 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 Department of Professional Regulations, the licensure and disciplinary agency responsible for psychologists. She said there had been patient complaints about Dr. Stern " not following up." She said two other subordinates of Dr. Stern had spoken with him about his memory and cognitive functioning, 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-look that you would hit to forward an e-mail to someone else, and each time she

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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 concerns " 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 experiences with Dr. Stern. Between approximately April or May 2010 and July 2010, Fischer felt that Dr. Stern had repeatedly 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 certainly better than she had been." ) In late June 2010, the family discovered that the child had been cutting herself for " probably more than a year." Thereafter, Fischer " didn't feel comfortable 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 Professional's Program, who also recommended that SAHC have Plaintiff evaluated and furnished recommendations of clinics that were experienced in evaluating medical professionals.

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.

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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 evaluation which indicated that he was fit for duty."

Dr. Stern later contacted Fischer and said he " wasn't impressed" with the recommended clinics, and he requested that SAHC retain Robert Fucetola, Chief of Clinical Neuropsychology 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." ...


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