Employment Law Daily Medical resident not an ADA ‘qualified individual’ because he repeatedly failed licensing exams
Friday, January 5, 2018

Medical resident not an ADA ‘qualified individual’ because he repeatedly failed licensing exams

By Lorene D. Park, J.D.

Affirming summary judgment against ADA discrimination and non-accommodation claims by a medical resident who was not allowed to continue his third year in a residency program, the Seventh Circuit found it undisputed that passing licensing exams was essential to his position and, given his repeated failures, he could not show that he could perform those functions so as to be a “qualified individual” under the Act. His ADA retaliation claim also failed (Rodrigo v. Carle Foundation Hospital, January 2, 2018, Rovner, I.).

Residency program. The plaintiff became a resident in Carle’s three-year residency program in July 2010. The program provides training to medical school graduates, who provide patient care under supervision by experienced doctors. Thus, unlike medical school, there is an employment component to the training. The residency was governed by annual contracts and hospital policies. In addition to completing certain rotations and passing Step 1 and Step 2 tests, residents had to pass a Step 3 test, the third part of the United States Medical Licensing Examination (USMLE) before advancing to the third year of the residency program. Under a policy adopted by Carle in July 2012, more than two failures of the Step 3 test results in termination from the program.

Licensure requirements. Passing the Step 3 exam is a prerequisite for a license to practice medicine in the U.S. A license is required to be eligible to take the Family Medicine board exam. Carle did not graduate residents unless they completed licensing requirements and were eligible to take the board exam. The State of Illinois (where Carle is located) also has 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.

Performance problems. The plaintiff failed his first attempt to pass Step 1 and first attempt to pass Step 2 before finally passing. He also had difficulties in rotations during his first year. In the fall of 2010, he was placed in remediation and repeated two rotations before returning to good standing. His supervisors considered whether a neuropsychological exam might identify any physical or cognitive issues affecting his performance, but he was never tested. After a second round of remediation, the plaintiff’s first year was extended so he could complete requirements.

In May 2012, near the end of his second year, the plaintiff failed the Step 3 test, which he had to pass to enter his third year. Carle allowed him to extend his second year by 12 weeks to take Step 3 a second time. He failed a second time and only then did he tell the program director he had a sleep disorder and had been diagnosed with Restless Leg Syndrome. He attributed his Step 3 failures to fatigue from his disorder. He scheduled a third attempt and, though he did not request an accommodation, the program director suggested he take time off to focus on passing Step 3. The director reminded him that a third failure meant termination from the program and the plaintiff took three weeks off to prepare for the test. Nonetheless, he failed.

Resignation. In reporting his third failure to the director in October 2012, the plaintiff said he was “confident that an addition of a review course or another month off would not have changed [his] score.” He also said his only regret was he “didn’t seek help early for my sleep until it was too late and this played the biggest role in my test score. He also acknowledged he “was not the easiest resident to understand from day one” and “fair” decisions were made. He assured the director he was open to any decision but asked to stay in the program so he could try to pass Step 3 in California (it was no longer an option in Illinois due to his five failures). Once informed that he was no longer eligible for the program, the plaintiff resigned in lieu of termination.

Lawsuit. Two days later, in a “decidedly different tone,” the plaintiff sent a letter seeking reinstatement by July 1, 2013. He complained that he “did not receive appropriate intervention and adequate testing” and “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.” Carle denied reinstatement and he filed suit under the ADA alleging discrimination, retaliation, and failure to accommodate. The district court granted summary judgment for Carle.

Was not a “qualified individual.” Affirming, the Seventh Circuit held that the discrimination and failure-to-accommodate claims failed because the plaintiff could not show he was able to perform the essential functions of his position. It was undisputed that under Carle’s policy, residents had to pass Step 3 before being offered a contract for a third program year. It was also undisputed that Carle adopted a policy in July 2012 that more than two failures at Step 3 would result in termination. After that, no resident who failed Step 3 more than twice was allowed to continue. “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,” the court concluded, and the plaintiff could not meet this requirement. Indeed, he disqualified himself from further testing or licensure in Illinois, and after his resignation, he failed Step 3 two more times before passing in another state on his sixth attempt.

Retaliation claim also fails. The ADA’s anti-retaliation provision is not limited to qualified individuals, but the plaintiff’s retaliation claim failed anyway. In asserting that Carle retaliated by refusing to waive its Step 3 passage requirement, he was really alleging discrimination or non-accommodation, not retaliation. In other words, the alleged “retaliation” was simply the enforcement of the Step 3 policy. The court refused to let him make an “end-run around the ‘qualified individual’ requirement by simply reframing a discrimination or accommodation claim as one for retaliation.” Summary judgment was therefore affirmed on this claim as well.

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