In the
United States Court of Appeals
For the Seventh Circuit

No. 98-4183

STEPHEN P. LENKER,

Plaintiff-Appellant,

v.

METHODIST HOSPITAL,

Defendant-Appellee.



Appeal from the United States District Court
for 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.

  ROVNER, Circuit Judge. Stephen Lenker sued his
employer, Methodist Hospital, under the Americans
With Disabilities Act, for failing to accommodate
him. Lenker, a nurse, suffered from multiple
sclerosis ("MS"). After his doctor issued a
lifting restriction for him, the hospital removed
him from his job as a nurse because the hospital
considered lifting to be an essential part of the
job that could not be reasonably accommodated. A
jury found in favor of the hospital and Lenker
appeals. We affirm.

I.

  Lenker was diagnosed with MS while he was still
in nursing school, and Methodist Hospital knew he
had the condition when it hired him. At the time
of his hire, Lenker’s MS was in remission, he had
no restrictions on lifting and he was able to
fully perform all of his nursing duties. One of
Methodist’s job requirements for a staff nurse is
the ability "to manage, with assistance as
appropriate, approximately 200 lbs. weight." A
nurse’s duties include turning patients in bed,
assisting patients to and from the bathroom,
helping patients walk and assisting patients who
unexpectedly fall. Sometimes other staff members
are available to assist a nurse with lifting, and
sometimes because of staffing shortages or
because an emergency arises, a nurse may have to
engage in physically strenuous lifting without
assistance.

  None of this was a problem for Lenker until he
had been on the job for approximately six months.
At that time, he suffered an MS episode that
resulted in a 10 day hospitalization. When he was
released, his doctor indicated that Lenker should
not engage in any lifting. Methodist’s policy at
the time was to require any employee who was sick
on the job or who missed more than three days of
work to obtain clearance from its Occupational
Health Department before being allowed to return
to work. Additionally, the policy stated that if
the employee was released to work by the
Occupational Health Department with restrictions,
the employee’s manager was to determine whether
the employee could return to work with that
restriction. As a result of the policy, a
physician from the Occupational Health Department
examined Lenker following his hospitalization.
That doctor concurred with the judgment of
Lenker’s personal physician that Lenker should
not engage in lifting. Thus, Lenker’s work
release contained a "no lifting" restriction.
Lenker’s manager subsequently determined that
Lenker could not return to work as a nurse with
that restriction because lifting was a necessary
part of the job.

  Although the hospital’s policy required twelve
months of service before an employee was eligible
for a leave of absence, Methodist granted Lenker
a leave to give him time to have his lifting
restriction reevaluated and possibly removed. The
hospital also gave Lenker access to its job
posting board, which was not available to non-
employees. Lenker’s manager informed him of his
layoff status and these benefits by telephone,
and the two did not talk again about Lenker’s
employment status. During Lenker’s layoff, his
physical condition worsened, and after a year on
layoff status, the hospital terminated Lenker’s
employment. Lenker sued Methodist, claiming
violation of the Americans With Disabilities Act,
and violation of state defamation law. The
district court granted summary judgment on the
state law defamation claim, and the ADA claim
went to trial before a jury. The jury found in
favor of Methodist Hospital. Lenker appeals.

II.

  Lenker claims the district court erred when it
refused to grant his Rule 50 motion for judgment
as a matter of law, because Methodist failed to
show at trial that it engaged in an interactive
process to accommodate Lenker’s disability.
Lenker also protests the district court’s refusal
to give three of his proposed jury instructions.
The district court declined to give Lenker’s
proposed instruction regarding the interactive
process in which an employer must engage to
determine what accommodations might exist for the
disabled employee, instead giving instructions
proposed by Methodist Hospital on this same
subject. The court also declined to instruct the
jury that Methodist’s "100% healed" policy
violated the ADA, or that the jury could consider
whether Methodist’s stated reason for terminating
Lenker was pretextual. We review the denial of a
motion for judgment as a matter of law de novo,
determining whether the evidence presented and
the reasonable inferences drawn from the evidence
are sufficient to support the verdict when viewed
in a light most favorable to the party against
whom the motion is directed. Emmel v. Coca-Cola
Bottling Co. of Chicago, 95 F.3d 627, 629-30 (7th
Cir. 1996). We review the jury instructions to
determine if, as a whole, they were sufficient to
inform the jury correctly of the applicable law,
reversing only if a particular instruction
misguides the jury to a party’s prejudice. Maltby
v. 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 a
matter of law because the hospital engaged in a
directed rather than an interactive process with
him once it learned of his disability. Lenker
contends that Methodist failed to establish that
lifting was an essential element of a nurse’s
job, and that he could not be accommodated. He
protests Methodist’s failure to assess the job of
nurse and his abilities with an eye toward
accommodating him. He maintains that uncontested
evidence supports his view that the hospital
refused to even consider an accommodation.
Following a trial, we are limited in our review
to assessing whether no rational jury could have
found for Methodist. Emmel, 95 F.3d at 630.

  In determining whether a particular job function
is essential, we are guided by the federal
regulations:

Evidence of whether a particular function is
essential includes, but is not limited to:

(i) The employer’s judgment as to which
functions are essential;

(ii) Written job descriptions prepared before
advertising or interviewing applicants for the
job;

(iii)   The amount of time spent on the job
performing the function;

(iv) The consequences of not requiring the
incumbent to perform the function;

(v) The terms of a collective bargaining
agreement;

(vi) The work experience of past incumbent in
the job; and/or

(vii) The current work experience of incumbents
in similar jobs.

See 29 C.F.R. sec. 1630.2(n)(3). See also R. 67,
Court’s Instruction No. 16 (detailing these
factors for the jury). The jury heard evidence
that Methodist considered lifting an essential
function of the job, that it was part of the job
description for staff nurses, that at times,
staff shortages or emergencies left a nurse
without assistance in a lifting task, and that
the need for lifting was not always predictable
because patients sometimes fell or needed
assistance unexpectedly. Lenker protests that
lifting comprised at most two percent of a
nurse’s day, that devices were available to
assist in lifting patients, and that all nurses
were allowed to use their judgment to determine
whether they needed assistance in a particular
situation and call for other staff to help. The
jury was free to find, however, that those times
of the work day when lifting was required were
essential to the nurse’s job, that a device to
assist in lifting a patient out of bed would not
help a patient walk down the hall or to the
bathroom, and that at times other staff would not
be available to assist. In short, based on
evidence presented by the hospital, the jury was
certainly entitled to find that lifting was an
essential function of a nurse’s job.

  The remaining question is whether Lenker could
be accommodated, and whether the hospital engaged
in an interactive process with him to determine
appropriate accommodations. The hospital offered
evidence that Lenker could not always be assisted
in carrying out this function because of staff
shortages and emergencies. Thus, not only was the
lifting function essential, but Lenker could not
be accommodated as a nurse. This did not relieve
the hospital of its duty to accommodate Lenker in
other ways if possible./1 Because Lenker could
not be accommodated as a nurse, the hospital made
its internal job postings available to him so
that he could apply for other jobs in the
hospital more suited to his abilities. See
Hendricks-Robinson v. Excel Corp., 154 F.3d 685,
694 (7th Cir. 1998) (reasonable accommodation
includes reassignment to a vacant position for
which the employee is qualified); Dalton v.
Subaru-Isuzu Automotive, Inc., 141 F.3d 667, 677-
78 (7th Cir. 1998) (same). Lenker testified that
he would have taken any job, but the hospital
claimed Lenker refused to take any non-nursing
jobs. For whatever reason, Lenker did not obtain
another permanent position at the hospital.
Whether the hospital tried to reasonably
accommodate Lenker with these steps, and whether
Lenker cooperated in the hospital’s attempts to
accommodate him are classic fact questions for
the jury to resolve. The jury appears to have
resolved the issues in the hospital’s favor. We
will not supplant our view of the evidence for
that of a jury in its verdict. Emmel, 95 F.3d at
630 (quoting Hybert v. Hearst Corp., 900 F.2d
1050, 1054 (7th Cir. 1990)). We therefore affirm
the district court’s denial of Lenker’s motion
for judgment as a matter of law.

B.

  The district court rejected Lenker’s proposed
jury instruction regarding the interactive
process. The controversial part of Lenker’s
instruction states that "if you find the
interactive process was one directed by the
defendant and not truly interactive, then this is
a violation of the ADA on the part of the
defendant." Lenker relied on Excel in support of
this instruction. In Excel, the court found that
an employer’s procedure for accommodation was
directive as opposed to interactive where, in
part, the plant nurse unilaterally determined
that employees could not be accommodated in
certain positions. 154 F.3d at 699. Here, the
court declined the instruction because other
instructions already accurately and fully advised
the jury as to what constitutes an interactive
process:

With regard to this court’s other instructions
that fully advise the jury as to what constitutes
an interactive review process, the court believes
that the language contained in its instructions
does properly reflect the language in the
statute; that the statute specifically does not
reference in this context a directive process as
opposed to an interactive process as being a
violation forbidden. For that reason, the court
declined to use the plaintiff’s tendered
Instruction 17.

Tr. at 784. Although this explanation is somewhat
cryptic, we believe the court was declining the
instruction because the statute says nothing
about a directed versus an interactive process,
and other instructions adequately addressed the
requirement for an interactive process.
  Our review of the other instructions reveals
that they did, in fact, adequately address the
interactive process. The remaining instructions
informed the jury of the employer’s duty to
analyze the job involved, determine its purpose
and essential functions, as well as the duty to
consult with the employee to determine the
precise job-related limitations imposed by the
disability and how those limitations could be
overcome with a reasonable accommodation. The
court also instructed the jury that the employer
was obliged to identify, in consultation with the
employee, potential accommodations, and to assess
the effectiveness each would have in enabling the
individual to perform the essential functions of
the position. The jury was also instructed that
the employer was to consider the preference of
the individual to be accommodated and then select
the accommodation most appropriate for both the
employee and the employer. Based on this Court’s
decisions, the court also advised the jury that
making these determinations is a cooperative
process, and both the employer and the employee
must make reasonable, good faith efforts:
Neither party should be able to cause a breakdown
in the process for the purpose of either avoiding
or inflicting liability. A party that obstructs
or delays the interactive process is not acting
in good faith. A party that fails to communicate,
by way of initiation or response, may also be
acting in bad faith.

R. 67, Court’s Instruction No. 22. See Feliberty
v. Kemper Corp., 98 F.3d 274, 280 (7th Cir.
1996); Beck v. University of Wisconsin Bd. of
Regents, 75 F.3d 1130, 1135-36 (7th Cir. 1996).
These instructions are accurate statements of the
law, and the jury was not therefore misled by
them. Lenker’s complaint that the concept of
"good faith" was not adequately addressed is
belied by the language we just quoted. As for
Lenker’s insistence on the "directed process"
language, we have repeatedly held that a party is
not entitled to any particular wording, and the
court adequately addressed the interactive
process concept with its instructions on the need
for 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 district
court’s refusal to give Lenker’s alternate
instruction.

C.

  The district court also declined to give
Lenker’s "100% healed" instruction, which reads,
in relevant part:

Additionally, if you find that the Plaintiff has
proven by a preponderance of the evidence that
the Defendant Hospital has a policy that required
the Plaintiff to be "100% healed" or that he must
be "cured" of his disability before he could
return to work as a nurse, then you shall find
that this is a per se violation of the ADA and
should find for the Plaintiff and against the
Defendant.

R. 66, Plaintiff’s Proposed Jury Instruction No.
37. The district court rejected the instruction
because it was unnecessary in light of other
instructions given and because it did not
accurately reflect the law as it related to the
issues presented in this case. Lenker relies on
Excel in support of this instruction. Excel cited
favorably a district of Minnesota case for the
proposition that a policy that requires an
employee to be 100% healed before returning to
work is a per se violation of the ADA because it
does not allow a case-by-case assessment of an
individual’s ability to perform the essential
functions of the job, with or without
accommodation. See Heise v. Genuine Parts Co.,
900 F. Supp. 1137, 1154 n.10 (D. Minn 1995).

  Lenker claims there was testimony that Methodist
Hospital had such a policy. He cites statements
from hospital personnel that an employee with a
lifting restriction would not be allowed to
return to work until the restriction was removed
because lifting was an essential function of the
job that could not be accommodated. This is a far
cry 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 accurate
reflection of the law as applied to the facts of
this case. Instead, Lenker’s real objection to
the hospital’s policy was that it decided,
without consulting Lenker, that lifting was an
essential job function that could not be
reasonably accommodated. Other instructions
addressed this issue, and it was for the jury to
decide whether Methodist was justified in its
blanket assessment that nurses who could not lift
could not be accommodated as nurses. It was also
for the jury to decide whether the hospital
adequately accommodated Lenker in other ways,
such as giving him access to internal job
postings, and placing him on layoff status to
give him time to recover his ability to lift.

D.

  The district court also rejected Lenker’s
proposed instruction on the issue of pretext.
Lenker’s instruction tracked the language of the
McDonnell Douglas case, using a burden shifting
analysis. See McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). The instruction explained
that Lenker believed the actions taken against
him were the result of unlawful discrimination in
violation of the ADA, but that the hospital had
advanced non-discriminatory reasons for its
actions. Lenker’s instruction explained that if
this non-discriminatory explanation was not the
true reason for the hospital’s actions, then the
explanation was pretextual. If the jury decided
the explanation was pretextual, they were free to
conclude that the real reason for the hospital’s
action was unlawful discrimination. The district
court rejected this instruction because it found
that a McDonnell Douglas burden-shifting analysis
was inappropriate and unnecessary for an ADA case
under our decision in Bultemeyer v. Fort Wayne
Community Schools, 100 F.3d 1281 (7th Cir. 1996).

  In Bultemeyer, we explained that in a disparate
treatment claim under the ADA, the plaintiff
could use either direct proof or rely on the
burden-shifting method defined in McDonnell
Douglas. 100 F.3d at 1283. However, when a
plaintiff brings a claim under the reasonable
accommodation part of the ADA, the burden-
shifting method of proof is both unnecessary and
inappropriate. We held in Bultemeyer that if the
plaintiff demonstrated that the employer should
have reasonably accommodated the plaintiff’s
disability and did not, the employer has
discriminated 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 that
point for indirect proof or burden shifting.
Because Lenker’s claim was based on reasonable
accommodation and not disparate treatment, the
district court was correct to reject Lenker’s
proposed pretext instruction.

AFFIRMED.



/1 The hospital also tried to accommodate Lenker by
allowing him to go on layoff status so that he
would have time to possibly regain his ability to
lift if his MS went into remission.
