7th Cir.: Psychologist with Memory Loss Not Protected by ADA

By Jeffrey L. Rhodes Jun 18, 2015
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A medical center chief psychologist with signs of memory loss allegedly resembling that of dementia or early Alzheimer’s patients could not perform the essential functions of his position and thus had no Americans with Disabilities Act (ADA) claim, the 7th U.S. Circuit Court of Appeals held.

The employee, Michael Stern, Ph.D., had worked for the St. Anthony’s Health Center since 1998 and became chief psychologist in 2002. His job required that he oversee all aspects of the acute care center’s treatment of children, including those with depression, anxiety and suicidal risks. During his employment, Stern generally had positive evaluations. In 2010, however, St. Anthony’s became aware of memory issues concerning Stern when a resigning psychologist, Tracy Sashidharan, described Stern’s alleged memory lapses in her exit interview.

Sashidharan noted instances in which Stern did not recall previous conversations with her and other administrative matters. In addition, Patti Fischer, vice president of physician services, had a minor relative treated by Stern during his employment. While Stern noted improvement in the child, Fischer discovered that the child had been cutting herself during the time period of her treatment by Stern, which he had failed to detect.

As a result, St. Anthony’s required an independent medical evaluation of Stern’s cognitive abilities. Stern agreed on the medical expert, Dr. Robert Fucetola, and submitted to the evaluation. The evaluation showed that Stern had difficulty remembering information, scoring in the lowest 2 percent on one memory test and the lowest 5 percent in another. Fucetola determined that Stern suffered from short-term memory deficiencies. He recommended that Stern not continue to perform administrative duties requiring attention to detail and that he not treat patients unless he could receive assistance in note taking and other duties of the treatment.

Because administrative duties accounted for 15 to 30 percent of the position’s time, supervisory duties 30 to 50 percent, and treatment duties another 15 to 25 percent, St. Anthony’s decided it could no longer employ Stern as chief psychologist. To have a second psychologist assist Stern in therapy sessions would not make sense, as such sessions typically have only one treating psychologist present at a time. Thus, St. Anthony’s determined that Stern was not qualified to perform the essential functions of the chief psychologist position, with or without reasonable accommodation, and discharged him from employment.

Stern filed a lawsuit in federal district court claiming that he had been discriminated against under the ADA. Under the ADA, every employer with 15 or more employees must seek to reasonably accommodate qualified individuals with disabilities who apply to work at or who work for the company. That means employers must assist qualified individuals who cannot perform job duties without an accommodation (such as by providing modified work schedules, assistive equipment or devices, or readers or interpreters) to enable them to perform those duties, as long as the accommodations needed are reasonable and do not impose an undue burden on the business. Businesses that learn of a qualified individual’s disability must try to determine what help the employee needs to do the job and what the employer can reasonably provide.

The district court dismissed Stern’s claim on St. Anthony’s pretrial motion for summary judgment because Stern could not perform the essential functions of the position even if accommodated, and thus he was not a qualified individual with a disability. On appeal, Stern argued that Fucetola’s evaluation showed that certain accommodations could enable him to perform the duties of his job. Stern also argued that St. Anthony’s could have switched him from his chief psychologist position to that of a staff psychologist and promoted a current staff psychologist in his place. Finally, Stern cited testimony from his wife, a local teacher, that she had not noticed the degree of memory loss claimed and that she continued to refer minor patients to him because of his treatment abilities.

The 7th Circuit noted that St. Anthony’s had not sought to accommodate Stern. Nevertheless, it found that such a determination did not violate the law because the evidence showed that Stern could no longer perform the duties of the chief psychologist position. St. Anthony’s was not required to remove most or all of the duties of the position to accommodate Stern. Because the changes needed were so substantial, St. Anthony’s did not have to engage in the reasonable accommodation process.

Stern v. St. Anthony’s Health Center, 7th Cir., No. 14-2400 (June 4, 2015).

Professional Pointer: When an employer becomes aware of an employee’s impairment, it should typically engage in the reasonable accommodation process to ensure compliance with the law. When an employee cannot perform the major duties of the job, however, a company should investigate the situation and document its determination that the individual is not qualified. This will protect it from a future claim of failure to accommodate.

Jeffrey L. Rhodes is managing partner of the civil division of Albo & Oblon LLP, a business and employment law firm in Arlington, Va
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