                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 09-1126


FRANK SHIN, M.D.,

                Plaintiff - Appellant,

           v.

UNIVERSITY OF MARYLAND       MEDICAL   SYSTEM   CORPORATION;   SUSAN
WOLFSTHAL, Doctor,

                Defendants - Appellees.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.     William D. Quarles, Jr., District
Judge. (1:08-cv-00240-WDQ)


Argued:   January 28, 2010                      Decided:   March 11, 2010


Before MICHAEL and DUNCAN, Circuit Judges, and R. Bryan HARWELL,
United States District Judge for the District of South Carolina,
sitting by designation.


Affirmed by unpublished opinion.        Judge Duncan wrote             the
opinion, in which Judge Michael and Judge Harwell joined.


ARGUED: Jason I. Weisbrot, SNIDER & ASSOCIATES, LLC, Baltimore,
Maryland, for Appellant.    Neal Mullan Brown, WARANCH & BROWN,
LLC, Lutherville, Maryland, for Appellees. ON BRIEF: Michael J.
Snider, SNIDER & ASSOCIATES, LLC, Baltimore, Maryland, for
Appellant.     Nicole   A.   McCarus,  WARANCH  &  BROWN,  LLC,
Lutherville, Maryland, for Appellees.
Unpublished opinions are not binding precedent in this circuit.




                               2
DUNCAN, Circuit Judge:

      Frank Shin, M.D., appeals a decision of the district court

granting summary judgment to the University of Maryland Medical

System Corporation (“UMMSC”) and its Residency Program director

Dr.   Susan   D.   Wolfsthal   (collectively,        “Appellees”).        The

district   court   granted   summary     judgment   to   Appellees   on   Dr.

Shin’s     discriminatory    discharge      and     failure   to     provide

reasonable accommodation claims, reasoning that Dr. Shin was not

“a qualified individual with a disability” under the Americans

with Disabilities Act (the “ADA”).         42 U.S.C. § 12111(8) (2006).

Because we agree that Dr. Shin could not perform the essential

functions of his job with or without reasonable accommodation,

we affirm.



                                  I. 1

      Dr. Shin began his medical internship with UMMSC on June

24, 2006. 2    Initially, he performed his medical intern duties

satisfactorily.    Medical interns are rated on a 9-point scale at


      1
       Because summary judgment was granted below, we present the
facts affecting our ADA analysis in the light most favorable to
the appellant.   See Pueschel v. Peters, 577 F.3d 558, 563 (4th
Cir. 2009).
      2
       Dr. Shin had just completed medical school at Boston
University, receiving eleven Honors grades, seven High Pass
grades, and twenty Pass grades.


                                   3
UMMSC.     Generally, the score of 1-3 is deemed a failure; 4-6 is

satisfactory;    and      7-9   is   superior.            In     his   first     rotation

through Emergency Care Services from June 24, 2006, through July

27, 2006 (“Block 1”), Dr. Shin scored eight out of nine for

overall competence.         His evaluator stated that “Dr. Shin [was]

ready to be an excellent clinician, [having] had a strong start

to his first year of residency.”              J.A.       297.

      After   the    first      month,    however,         Dr.    Shin’s    evaluation

scores began to drop.           For his rotation through Critical Care

Services from July 21, 2006, through August 23, 2006 (“Block

2”), both Dr. Stephen Gottlieb and Dr. Mandeep Mehra gave Dr.

Shin an overall competence score of three.                       Dr. Mehra explained

that Dr. Shin had to be “shadowed heavily by the residents to

prevent    medical   errors,”        which    placed       “a     greater      burden    of

responsibility on the other interns and resulted in residents

needing to act as interns.”              S.J.A. 85. 3          During this rotation,

Dr. Mehra limited Dr. Shin’s workload to three patients and once

had to have other residents help complete his work.

      Dr. Shin’s deteriorating performance prompted Dr. Wolfsthal

to meet with him about the problem.                  At that meeting, Dr. Shin

explained that he found “it difficult to balance new admissions

in   the   setting   of    taking     care     of    patients          already    on    the

      3
        References in the              record       to     “S.J.A.”       are    to     the
Supplemental Joint Appendix.


                                          4
service.”       S.J.A. 86.   He also explained that, to keep up with

his workload, he often arrived at 6 a.m. and stayed until 8-9

p.m.       Dr. Shin added that on night call he would take one to two

extra Provigil pills to stay awake. 4        To address the problem,

Dr. Wolfsthal and Dr. Shin developed the following action plan:

       1.   [Dr. Shin] would thoroughly work up 2 patients
       while on call.

       2. He would meet with [Dr.] Rebecca Manno on a weekly
       basis to discuss efficiency and organizational skills
       as well as key topics in cardiology.

       3. He [would] check with [Dr.] Alan Krumholz [in the
       Department of Neurology] . . . to see how he might
       best manage his medications in this setting.

       4.   In addition to working on organizational skills,
       he [would] also improve his skills in retrieving old
       records, dealing with cross-cover issues 5 and writing
       notes.

       5. Whenever called on a cross-over issue, he [would]
       review the event and his plans with [a resident].

S.J.A. 87 (footnote call number added).


       4
       Provigil, or “Modafanil,” is “[o]fficially [used] for
narcolepsy and excessive sleepiness associated with things like
shift work, sleep apnea, and multiple sclerosis, but also used
as an augmenting agent to boost the effectiveness of standard
antidepressants or when antidepressants cause excessive daytime
sleepiness as a side effect.”     Jack M. Gorman, The Essential
Guide to Psychiatric Drugs 131 (4th ed. 2007).
       5
       Interns at UMMSC are responsible for their co-interns’
patients when their co-interns go home.      On-call interns are
given an information sheet detailing information about each
patient, such as the patient’s allergies, location, reason for
admission, chronic medical problems, and medications, and other
information that may be pertinent to the case.


                                    5
        Two weeks later, Dr. Wolfsthal and Dr. Shin met again to

discuss his progress.              Despite the action plan, Dr. Wolfsthal

discovered that Dr. Shin had written orders for patients that

were inappropriate, such as “ordering IV Prednisone, ordering

[Fresh Frozen Plasma] on the wrong patient and placing a patient

on a standing order of narcotics that cause somnolence.”                         S.J.A.

88.     Thus, Dr. Wolfsthal asked Dr. Shin to continue meeting with

both Dr. Manno and Dr. Krumholz.                  In addition, she gave him the

phone       number    for   the   Employee       Assistance    Program   so    that    he

could seek confidential counseling.

      On September 1, 2006, UMMSC placed Dr. Shin on probation.

The   Clinical         Competency    Committee       noted     that   Dr.     Shin    had

“extremely       poor       organizational        skills      and   major     knowledge

deficits.”           S.J.A. 91.     Although the Committee recognized that

Dr. Shin had performed better during his Block 3 rotation, 6 that

success was attributed to the fact that Dr. Shin was generally

limited to three or four patients and that those patients were

“the less complicated ones.”             S.J.A. 91.            Thus, UMMSC informed




        6
       For his rotation through Medicine 1 - General Internal
Medicine from August 17, 2006, through September 19, 2006
(“Block 3”), Dr. Shin scored an eight for overall competence.
In a section labeled “Resident Strengths,” his evaluator Dr.
Jamal Mikdashi described Dr. Shin as a “thorough and hard
worker, motivated,” that “at times get[s] overwhemled [sic].”
J.A. 299.


                                             6
Dr.   Shin    that   he    would    need   to   meet    the   following   criteria

before December 1, 2006, to remain in the internship program:

      1. Achieve scores of 5 in all areas of competency in
      all rotations. 7

      2. Demonstrate the ability to manage a census of 4-7
      patients and admit 5 patients per call night. He may
      on occasion admit less than 5 patients depending on
      the flow of admissions, but he must demonstrate the
      ability to admit 5 when the need arises.

      3.   Demonstrate improvement in both his written and
      oral presentations.

      4. Continue meeting weekly with Dr. Rebecca Manno to
      work on organizational skills and efficiency as well
      as enhancing his knowledge base.

      5.     Meet every 2-3 weeks with Dr. Wolfsthal.

      6.    Be evaluated and have a drug screen                     at    the
      Employee Assessment Program (EAP). . . .

      7. At the end of 3 months, Frank will do a full H&P
      ([Clinical    Evaluation   Exercise]) under  direct
      observation by Dr. Graeme Forrest.

S.J.A. 92 (footnote call number added).

      Dr.     Shin’s      overall    competence        scores,   however,       never

improved.      For his rotation through Critical Care Unit/Telemetry


      7
       Although a five is generally classified as “satisfactory”
in other medical internship programs, a five “is borderline in
[UMMSC’s] program. That already means there are issues that are
being raised.”    S.J.A. 394-95.   “Interns and residents with
scores of five and below are generally brought to the [Clinical
Competency Committee] for further discussion.”      S.J.A. 395.
“The mean score for an Intern by the end of the year is
approximately 7.3, plus or minus a very small standard
deviation, so all the scores are between maybe 7.1 and 7.5.”
S.J.A. 394.


                                           7
(“Block 4”), Dr. Gary Plotnick gave Dr. Shin a four, and Dr.

John Kastor gave him a three.                        Dr. Kastor characterized Dr.

Shin’s       rotation    as     a    “troubled      performance,”          and    recommended

that Dr. Shin not be allowed to “[a]dmit more than one patient

on    call    until     [h]is       ability   to     d[e]al       with    more    information

improves.”        S.J.A. 94.            Dr. Kastor also noted confidentially

that Dr. Shin displayed “[t]he poorest performance by an intern

that [he had] experienced at [UMMSC].”                        S.J.A. 248.             Similarly,

Dr. Plotnick explained that Dr. Shin had “difficulty putting it

all together” and “[n]eed[ed] help synthesizing and seeing the

big picture.”           S.J.A. 93.            Dr. Plotnick communicated to Dr.

Wolfsthal that Dr. Shin “need[ed] complete supervision.”                                 S.J.A.

95.     These reviews prompted Dr. David Tasker to recommend that

Dr. Shin no longer be allowed to attend the outpatient clinic, a

requirement of the internship program.                            He reasoned that this

would “take some of the pressure off [Dr. Shin].”                              S.J.A. 101.

       Dr.     Shin     also    received       poor        reviews       for    his    rotation

through Med 4 - General Internal Medicine (“Block 6”).                                 Both Dr.

Majid Cina and Dr. Aba Ibe gave him a competence score of four.

S.J.A. 105-06.          Dr. Cina commented that Dr. Shin’s “most glaring

deficiencies . . . [were] lack of efficiency, an inability to

think    globally       about       patients,       poor    organization         skills,     and

difficulty       with    prioritization. . . .                    He   required       extensive

help     with    workload.”            S.J.A.       at     105.        Likewise,       Dr.   Ibe

                                                8
explained   that   she   “found     [her]self      relying    heavily    on   the

resident to constantly supervise him and [she] also stayed late

on many occasions to ensure that his documentation on patients

was appropriate.”     S.J.A. at 106.

     Finally,   for   his   Block    7       rotation   through   the   Veterans

Affairs Medical Center, Dr. Richard Rees gave Dr. Shin a one for

overall competence.      To explain such a low evaluation, Dr. Rees

noted:

     Frank’s overall performance was unsatisfactory.    He
     doesn’t know what he doesn’t know.    He is extremely
     argumentative and refused to accept explanations for
     why certain decisions were made when they were based
     on clear evidence and were well accepted standards of
     care[.]   Taking that one step further, he would then
     write orders on those patients based on what he felt
     was right/appropriate, in direct contradiciton [sic]
     to the orders which the resident stated he should
     write . . . .      To make things even worse, when I
     discussed these issues with him, it was clear he had
     no insight into his problems.

S.J.A. 115.     Confidentially, Dr. Rees said that Dr. Shin was

“dangerous and should no longer be allowed to continue in a

direct patient care role.”          S.J.A. 249.         He felt that Dr. Shin

was not remediable and that an extended internship would be of

no benefit.

     Not only were Dr. Shin’s performance scores low, but he

also failed the Clinical Evaluation Exercise. 8              Although Dr. Shin


     8
        “The clinical evaluation exercise (CEX), a direct
observation of a history and physical examination with feedback
(Continued)
                                         9
was able to get an adequate history of the patient, he was

unable to perform a satisfactory physical examination.                           In his

assessment,    Dr.    Forrest      noted     twenty-three        problems      with   Dr.

Shin’s physical examination, including the fact that Dr. Shin

“[p]erformed     [the]     exam    without       turning    on    the    lights”      and

“[f]ailed   to   wash      [his]   hands        before   touching       the   patient.”

S.J.A. 102.      In his summary, Dr. Forrest explained that “[Dr.

Shin’s]    clinical     competency      is      borderline.        He    may    get    an

adequate history and utilize the resources around him, but his

thinking is rather rigid and inflexible and he is not very open

to   suggestions      of    help.”         S.J.A.    103.         Dr.    Forrest      was

particularly     concerned     that    Dr.      Shin’s   “examination         technique

[was] so poor that he may miss something obvious.”                      Id.

     The    record    reflects       that    Dr.    Forrest’s      concerns      proved

true: Dr. Shin misdiagnosed patients or prescribed to them the

wrong medications while at UMMSC.                For example, during his Block

7 rotation, a nurse called to inform Dr. Shin that the blood

pressure of one of his cross-over patients had dropped.                               In

response, Dr. Shin told the nurse to give that patient fluids.

Dr. Lee-Ann Wagner overheard the conversation and instructed Dr.



to the house officer, is a form of clinical skills evaluation
used by many internal medicine training programs.”      Frank J.
Kroboth et al., Didactive Value of the Clinical Evaluation
Exercise: Missed Opportunities, 11(9) J. Gen. Internal Med. 551,
551 (1996).


                                           10
Shin to go and see the patient.                  Specifically, she reminded Dr.

Shin that “[w]hen a nurse calls that there’s been a change in a

vital sign like this, you need to see the patient.”                         S.J.A. 206-

07.        Upon arriving at the patient’s room, Dr. Wagner and Dr.

Shin       learned    that   the   patient     was    in    critical   condition     and

needed to be rushed to the Intensive Care Unit.                             Dr. Wagner

asked Dr. Shin to page the Intensive Care Resident while she

prepared the patient to be moved.                   Dr. Shin, however, could not

follow Dr. Wagner’s instructions on how to obtain the resident’s

beeper       number.         Dr.   Wagner     was    thus     forced   to    leave   the

critically ill patient so that she could page the resident.

        Similarly, during his Block 4 rotation, Dr. Shin prescribed

a large amount of Lasix 9 for a patient with aortic stenosis. 10

After       being    subjected     to   ten      times      the   medication    he   was

supposed to receive, the patient began “urinating out[] more

fluid than [UMMSC] would have wanted for a patient with aortic

stenosis.”           S.J.A. 281-82.         Although the patient suffered no

lasting “bad effects,” after that incident, Dr. James Strait

       9
       Lasix, or “Furosemide,” is a “diuretic (water pill) used
to treat high blood pressure. It is also used to treat swelling
due to fluid retention associated with heart failure or kidney
or liver disease.”   The Pocket Guide to Prescription Drugs 709
(9th ed. 2010).
       10
       Aortic stenosis is a heart valve disorder, in which “the
heart -- specifically, the left ventricle -- has to work harder
to pump blood to the brain and other vital organs.”     The Merck
Manual of Health & Aging 722 (Keryn A.G. Lane ed., 2004).


                                            11
felt    he     needed   to    review      “all      of   [Dr.    Shin’s]        orders   very

closely.”        S.J.A 282.         Yet, even under such close supervision,

Dr. Shin continued making mistakes. 11

       UMMSC made assistance available to help Dr. Shin complete

his medical internship.                 For example, UMMSC provided Dr. Shin

with        “tutoring     from      [its]       chief     residents,”           S.J.A.     66;

“mentoring       from      several        of     [their]        faculty     members        and

residents,”       S.J.A.         66;     less       complex     patients         and     fewer

admissions; and dayfloaters and “moonlighters to help with [his]

workload” at certain critical times, S.J.A. 86, 193-94.                                  UMMSC

also    excused     Dr.      Shin      from    participating       in     the    outpatient

clinic -- a requirement of the internship program.                                 Finally,

several faculty members and residents assisted Dr. Shin with his

duties.       While the “Friends of Frank” would meet weekly with Dr.

Shin to discuss his various problems, 12 several of Dr. Shin’s


       11
        Other mistakes included (1) wrongly documenting that
“[t]he patient [was] deceased,” when in fact the patient was
not; (2) giving wrong orders for insulin (NPH 40/30 BID) at
discharge in addition to starting a new dose of Lantus; and (3)
omitting critical information, such as vital signs, in patients’
medical histories. S.J.A. 247.
       12
       Dr. Strait testified as follows, “We were having meetings
with Frank and Dr. Wali on a weekly basis, I and one of the
other residents, to try to discuss various time management
issues and try to help him out. We would meet, have lunch, and
then discuss things.”    S.J.A. 255.   They met to discuss what
sort of issues Dr. Shin was having and to “see if [they] c[ould]
help him out.”     S.J.A. 257.    They sometimes called it the
“Friends of Frank.” S.J.A. 257.


                                               12
supervisors would “write his notes” or verbally dictate them to

him, S.J.A. 182, “wr[i]te orders on his patients,” S.J.A. 222,

or encourage him to go home and leave the “leftover work [for]

. . . the resident,” S.J.A. 438.

       Despite    these       accommodations,        Dr.    Shin    continued       having

difficulties.         As a consequence, both on his own initiative and

at the direction of UMMSC, Dr. Shin sought evaluation by several

mental health professionals to better understand his problems.

Dr. James F. McTamney diagnosed Dr. Shin with possible Attention

Deficit     Disorder,         finding    that    Dr.       Shin     had     difficulties

“switch[ing] back and forth between ideas.”                         S.J.A. 113.         He

also    noted    that   Dr.     Shin’s      “working       memory   was     . . .    below

expected levels.”             Id.     He suggested Dr. Shin be placed on

medication      and    seek    the    aid   of   a   rehabilitation          specialist.

Similarly, after a thorough evaluation, Dr. Jill A. RachBeisel

diagnosed       Dr.   Shin     with     “significant        impairment       in   visual-

spatial     reasoning         and     visual     memory,”          S.J.A.     124,     and

recommended that Dr. Shin be placed on a trial of stimulant

medication, consider Strattera, 13 and seek behavioral coaching.

On January 5, 2007, UMMSC placed Dr. Shin on leave so that he


       13
        Strattera, also known as “Atomoxetine hydrochloride,” is
“used to treat attention-deficit/hyperactivity disorder (ADHD).”
The Pocket Guide, supra note 9, at 1226.     This medication is
believed to help “increase attention and decrease impulsiveness
and hyperactivity.” Id.


                                            13
could    be    further       evaluated    and    engage        in     more    extensive

rehabilitation for his deficiencies.

       Even with medication, however, Dr. Shin did not improve.

Thus, on March 12, 2007, Dr. Craig D. Thorne determined that Dr.

Shin had reached maximal medical improvement but was unfit to

return to work as a medical intern.                UMMSC terminated Dr. Shin

by letter dated April 4, 2007.            His termination was upheld in an

internal grievance proceeding held on June 18, 2007.

       Before being terminated, Dr. Shin requested the following

accommodations:        (1)    fewer    patients;       (2)    additional         time   to

record and synthesize verbal information from the night flow

team; and (3) “a more compassionate environment.”                            J.A. 202.

UMMSC rejected implementation of these accommodations.                           It noted

that    Dr.   Shin    would    not    achieve    the    minimum       210    admissions

required      by   the   Accreditation        Council        for    Graduate      Medical

Education (“ACGME”) in his first year if his admissions were

further reduced, and that more time to absorb information from

the night team would not adequately train him in the skills he

needed to become a physician.                 As to his request for a more

compassionate        environment,     UMMSC     explained          that   many    of    Dr.

Shin’s colleagues and administrators had already come to his

aid.     Under     these     circumstances,      UMMSC       felt    termination        was

warranted.



                                         14
      Dr. Shin filed a complaint with the United States Equal

Employment Opportunity Commission, which issued its right to sue

letter on November 1, 2007.                   He then brought suit against UMMSC,

the Medical Center, the Residency Program, and Dr. Wolfsthal,

alleging     both      discriminatory              discharge          and     the    failure       to

provide reasonable accommodation in violation of the ADA and the

Civil Rights Act of 1964 (“Title VII”), as amended, 42 U.S.C.

§ 2000e    et    seq.,       as    well      as    state        law    claims       for    wrongful

discharge,      breach        of    contract,            and     defamation.              Dr.     Shin

voluntarily        dismissed        the      Medical       Center       and     the       Residency

Program as defendants on February 27, 2008.                             On January 7, 2009,

the district court granted summary judgment to UMMSC and Dr.

Wolfsthal       on     the        ADA     claims,         and     declined          supplemental

jurisdiction         over    Dr.    Shin’s        state    law        claims.        This       appeal

followed.


                                                  II.

      On    appeal,         Dr.    Shin      maintains         that     the     district         court

erroneously granted summary judgment to Appellees on his claims

under the ADA.          We review a district court’s decision to grant

summary judgment de novo, “viewing the facts and the inferences

to   be    drawn      therefrom         in   the        light    most       favorable       to    the

nonmovant.”        Riddick ex rel. Riddick v. Sch. Bd. of the City of

Portsmouth, 238 F.3d 518, 522 (4th Cir. 2000).                                Summary judgment


                                                  15
is   appropriate         only   “if   the        pleadings,   the    discovery     and

disclosure materials on file, and any affidavits show that there

is no genuine issue as to any material fact and that the movant

is entitled to judgment as a matter of law.”                        Fed. R. Civ. P.

56(c)(2).

      Dr. Shin’s suit is based on the ADA, 14 the pertinent part of

which provides: “No covered entity shall discriminate against a

qualified individual with a disability because of the disability

of such individual in regard to . . . discharge of employees,

. . . job training, and other terms, conditions, and privileges

of employment.”          42 U.S.C. § 12112(a) (2006).               “Discrimination”

as   used    in    the    ADA   prohibits        not   only   disparate     treatment

because     of    an   employee’s     disability,       see   id.,    but   also   the

      14
        Significant changes to the ADA took effect on January 1,
2009, after this appeal was filed.    See ADA Amendments Act of
2008, Pub. L. No. 110-325, 122 Stat. 3553.      Congress did not
express its intent for these changes to apply retroactively, and
so we look to the law in place prior to the amendments.
Landgraf v. USI Film Prods., 511 U.S. 244, 270-71 (1994);
Olatunji v. Ashcroft, 387 F.3d 383, 389 (4th Cir. 2004) (“In the
face of congressional silence on the temporal reach of a given
statute, it is presumed that Congress did not intend for the
statute to be applied retroactively.”).     Our sister circuits
have found that the 2008 ADA amendments are not retroactive, see
Thornton v. United Parcel Serv., Inc., 587 F.3d 27, 34 n.3 (1st
Cir. 2009); EEOC v. Agro Distrib., LLC, 555 F.3d 462, 469-70 n.8
(5th Cir. 2009); Milholland v. Sumner County Bd. of Educ., 569
F.3d 562, 565-67 (6th Cir. 2009); Fredricksen v. United Parcel
Serv., Co., 581 F.3d 516, 521 n.1 (7th Cir. 2009); Becerril v.
Pima County Assessor’s Office, 587 F.3d 1162, 1164 (9th Cir.
2009); Lytes v. DC Water & Sewer Auth., 572 F.3d 936, 939-42
(D.C. Cir. 2009), and we see no reason to disagree with their
conclusion.


                                            16
failure to make “reasonable accommodations to the known physical

or mental limitations of an otherwise qualified individual with

a   disability        who      is       an       applicant       or       employee,”       id.

§ 12112(b)(5)(A), and “denying employment opportunities to a job

applicant     or    employee,”          where     the   denial       of    the    employment

opportunity     “is    based       on     the    need   . . .        to   make   reasonable

accommodation,” id. § 12112(b)(5)(B).                       See Smith v. Ameritech,

129 F.3d 857, 866 (6th Cir. 1997); Sieberns v. Wal-Mart Stores,

Inc., 125 F.3d 1019, 1021-22 (7th Cir. 1997); see also Burch v.

Coca-Cola Co., 119 F.3d 305, 314 (5th Cir. 1997) (recognizing

that a reasonable accommodation claim under the ADA differs from

a wrongful termination claim under the ADA), cert. denied, 522

U.S.   1084    (1998).        In     his       complaint,      Dr.    Shin   alleged     both

discriminatory discharge and the failure to provide reasonable

accommodation.

       For both wrongful termination and the failure to provide

reasonable accommodation, a plaintiff must first establish that

he is a “qualified individual with a disability” under the ADA.

See Rohan v. Networks Presentations LLC, 375 F.3d 266, 272 (4th

Cir.   2004)       (applying       this      standard     to     wrongful        termination

claim);   Rhoads      v.     FDIC,      257     F.3d    373,    387       (4th   Cir.   2001)

(applying this standard to failure to accommodate claim); see

also   Sieberns,       125     F.3d       at    1022    (“No     matter      the    type    of

discrimination alleged . . . a plaintiff must establish first

                                                17
that    he    was   “‘a   qualified    individual      with    a   disability.’”)

(internal      quotations     omitted).        The    ADA    defines    “qualified

individual       with     a   disability”     as     “an    individual    with      a

disability who, with or without reasonable accommodation, can

perform the essential functions of the employment position that

such individual holds or desires.”             42 U.S.C. § 12111(8).          Thus,

in order to survive summary judgment on his ADA claims, Dr. Shin

had to produce evidence showing that he is both qualified and

disabled.       In its order, after determining that Dr. Shin had

sufficiently        created   a   genuine    issue   of    material    fact   as   to

whether Appellees regarded him as disabled, 15 the district court


       15
            The ADA defines “disability” as:

       (A) a physical or mental impairment that substantially
       limits one or more of the major life activities of
       such individual;

       (B) a record of such an impairment; or

       (C) being regarded as having such an impairment.

42 U.S.C. § 12102(2)(A)-(C).   The district court concluded that
Dr. Shin had not met his burden as to (A) or (B), but that a
genuine dispute remained as to (C). We recognize that prior to
the 2008 ADA amendments, courts were split on whether a
plaintiff could bring an accommodation claim if he could prove
only that he was regarded as having a disability.        Compare
Kaplan v. City of N. Las Vegas, 323 F.3d 1226, 1232-33 (9th Cir.
2003) (concluding that there is no duty to accommodate an
individual who is regarded as having a disability); Weber v.
Strippit, Inc., 186 F.3d 907, 916-17 (8th Cir. 1999) (same);
Workman v. Frito-Lay, Inc., 165 F.3d 460, 467 (6th Cir. 1999)
(reaching same conclusion without analysis); and Newberry v. E.
Tex. State Univ., 161 F.3d 276, 280 (5th Cir. 1998) (same); with
(Continued)
                                        18
found   that     Dr.   Shin   was   unable    to   perform   the   essential

functions of his job with or without reasonable accommodation,

and thus granted summary judgment in favor of Appellees.                 Dr.

Shin challenges this latter finding.           He contends that he could

indeed perform his job’s essential functions.                Alternatively,

Dr. Shin argues that he could have performed these essential

functions   if    UMMSC   had   made   reasonable    accommodations.      We

address each argument in turn.



                                       A.

     We first consider whether Dr. Shin was able to perform the

essential functions of his job.             The essential functions of a

job are those “that bear more than a marginal relationship to

the job at issue.”        Tyndall v. Nat’l Educ. Ctrs., Inc. of Cal.,

31 F.3d 209, 213 (4th Cir. 1994) (internal citations omitted).




D’Angelo v. ConAgra Foods, Inc., 422 F.3d 1220, 1240 (11th Cir.
2005) (concluding that there is a duty to accommodate an
individual who the employer regards as having a disability);
Kelly v. Metallics W., Inc., 410 F.3d 670, 675-76 (10th Cir.
2005) (same); Williams v. Phila. Hous. Auth. Police Dep’t, 380
F.3d 751, 772-76 (3d Cir. 2004) (same); and Katz v. City Metal
Co., Inc., 87 F.3d 26, 32-33 (1st Cir. 1996) (same). This court
has not taken a position on this issue.    See Wilson v. Phoenix
Specialty Mfg. Co., Inc., 513 F.3d 378, 388 (4th Cir. 2008).
Nevertheless, because we resolve this appeal on other grounds,
we need not address whether Dr. Shin was an individual with a
disability within the meaning of the ADA, nor whether Dr. Shin
could bring an accommodation claim if he could prove only that
he was being regarded as disabled.


                                       19
The parties do not dispute the district court’s determination

that

       [t]he essential functions of Dr. Shin’s position were
       to provide competent medical care to patients with
       efficiency   and  reasonable   autonomy.     [UMMSC’s]
       Graduate Medical Education Policy and Procedure Manual
       states that a resident should be able to “quickly and
       accurately integrate all information received” and
       identify findings, provide a reasoned explanation, and
       prescribe appropriate medications “in an efficient and
       timely manner.”    One of Dr. Shin’s responsibilities
       . . . was to “provide safe and appropriate care for
       patients.”

J.A. 192-93 (internal citations omitted).                  Instead, Dr. Shin

argues      that    his   performance    evaluations     demonstrate   that   he

performed those essential functions. 16            We disagree.

       The evaluations upon which Dr. Shin relies do not support

his argument.         Aside from favorable reviews during his Block 1

and    Block   3     rotations,    his   reviews   are   all   unsatisfactory.

Dr. Shin even conceded that, other than in June, his evaluations

do not show that he “establish[ed] [him]self as a satisfactory

resident.”         S.J.A. 357.    The record also shows that Dr. Shin was

       16
        Dr. Shin also argues that he was qualified for the
position as evidenced by his academic accolades. In particular
he notes that his “transcript while at Boston University School
of Medicine shows that [he] received 9 Honors, 10 High Passes,
and 20 Passes.” Appellant’s Br. at 30. While that may be so,
as the district court noted, “‘[s]tudent performance and
performing the essential functions of a resident physician are
[very] dissimilar.’” J.A. 193 (quoting Stopka v. Med. Univ. of
S.C., Case No. 2:05-1728-CWH, 2007 WL 2022188, at *13 (D.S.C.
July 11, 2007)).    One may achieve high marks throughout one’s
education and still not be able to perform the essential
functions of a job.


                                         20
unable “to provide competent medical care to patients with . . .

reasonable autonomy.”            J.A. 192.           In their evaluations of Dr.

Shin,   many    of    his   supervisors        stated    that    Dr.     Shin   required

constant supervision and aid.                  Dr. Mehra explained that during

Block 2, Dr. Shin “was shadowed heavily by the residents to

prevent medical errors.”              S.J.A. 85.        Similarly, Dr. Cina noted

that while in Block 6, Dr. Shin “required extensive help with

workload.      Because of this, the senior resident functioned in a

hybrid resident/intern role, and [he] functioned in a hybrid

attending/resident role.”             S.J.A. 105.

       His supervisors also explained that Dr. Shin was highly

inefficient.         Several evaluators noted that Dr. Shin “need[ed]

more    organization,”         S.J.A.    84,     “lack[ed]       . . .    efficiency,”

S.J.A. 105, and “appeared to be frequently behind schedule for

most of his tasks,” S.J.A. 106.                  Dr. Wagner testified that Dr.

Shin    “was   so    inefficient        that    he    couldn’t    get    those    things

[listed in his task list] done for his patients,” and thus, she

relied on “the medical students on the team .                       . . [to do] a lot

of the tasks for [Dr. Shin.]”                   S.J.A. 202-03.          Similarly, Dr.

Strait testified that Dr. Shin “would spend too much time on

unrelated      things    and    not   enough     time    on   the    . . .      important

things.”        S.J.A.      274.        Such     behavior     forced      one    of   his

supervisors to stay “late on many occasions to ensure that his

documentation on patients was appropriate.”                   S.J.A. 106.

                                           21
      Finally, the evidence shows that Dr. Shin was not able to

“to provide safe and appropriate care for patients.”                       J.A. 193

(internal quotations omitted).              Not only did Dr. Shin order the

wrong medications for several patients, but his poor judgment in

critical    situations       forced    his    supervisors    to    step     in    and

prevent several errors.             Dr. Shin’s failure to check up on a

patient after that patient’s vitals changed is of particular

concern.         Dr.   Wagner’s     constant    supervision    of    Dr.     Shin’s

actions allowed her to help a patient at a critical time.                        Left

to   his   own    devices,    Dr.    Shin    would   have   left    that    patient

unattended.

      This evidence, even when taken in the light most favorable

to Dr. Shin, demonstrates that Dr. Shin was not performing the

essential elements of his job. 17             No reasonable jury could find


      17
        Nevertheless, Dr. Shin maintains that if he did fail to
perform the essential functions of his job, it was only because
Appellees forced him to work beyond the work hour limits set
forth by ACGME.     We disagree.   There is no evidence on the
record showing that Appellees forced Dr. Shin to work such long
hours. Rather, Appellees required Dr. Shin to complete all his
work, and for Dr. Shin, that took longer than the maximum eighty
hours per week allowed by ACGME.    Dr. Shin chose to work these
long hours “to compensate for [his] problems” and get the
essential functions of the job completed.     S.J.A. 116.   Thus,
although there is some evidence in the record to support the
view that Dr. Shin often worked over eighty hours and that his
performance was affected by these long hours, we find that the
work hours were necessitated by the disability, not by UMMSC.
     Moreover, we recognize that Appellees tried to correct the
problem.   As Dr. Strait explained, “[b]ecause Frank would many
times stay after he was supposed to leave, . . . [w]e tried and
(Continued)
                                        22
that, while at UMMSC, Dr. Shin provided “safe and appropriate

care” for patients “with efficiency and reasonable autonomy.”

J.A. 192-93.



                                      B.

     We next consider Dr. Shin’s alternative argument that he

could have performed his job’s essential functions if reasonable

accommodations had been made.          The ADA states that “‘reasonable

accommodation’ may include . . . job restructuring, part-time or

modified        work   schedules,   [and]   reassignment    to     a    vacant

position.”        42 U.S.C. § 12111(9)(B).     The plaintiff bears the

burden     of    identifying   an   accommodation   that   would       allow   a

qualified individual to perform the job, as well as the ultimate

burden of persuasion with respect to demonstrating that such an

accommodation is reasonable.           Halperin v. Abacus Tech. Corp.,

128 F.3d 191, 197 (4th Cir. 1997).

     Dr. Shin argues that he would have been able to perform the

essential functions of his job had Appellees: (1) reduced the

number of patients for whom he was responsible; (2) provided him



we would force him to leave.”    S.J.A. 262.  At one point, the
“Friends of Frank” would page him every day at approximately
6 p.m. to remind him to go home and would even volunteer to take
care of his incomplete work.      Likewise, Appellees would not
allow Dr. Shin to take a clinic –- a requirement of the
internship –- so that he would not violate the eighty hour
restriction.


                                      23
additional     time    to     record     and      synthesize     information         when

presentations      were     given   from    the      night    float   team;    and    (3)

staffed a nurse practitioner while he was on call.                            Appellees

respond that Dr. Shin was given every possible accommodation to

perform the essential functions of his job, and that “there were

no additional, reasonable accommodations that would have allowed

[Dr. Shin] to perform the essential functions of a resident.”

Appellees’ Br. at 56.         We agree with Appellees.

       The record shows that ACGME requires UMMSC to show that its

first year residents admit a minimum of 210 patients per year.

This    requirement       exists    to     provide      residents      with    “direct

clinical experience with progressive responsibility for patient

management.”       S.J.A.     67.        Moreover,      “any    reduction      in    [Dr.

Shin’s] workload for number of patients that [he] admit[s] or

care[s]    along      the     continuum         of    care     would    become        the

responsibility of supervising residents on the team.”                            S.J.A.

68.    As a consequence, Appellees argue that “[p]atient safety

and resident morale [would] be compromised since others [would]

be required to assume a greater role in managing those cases

that [Dr. Shin] would be routinely expected to manage, diluting

or delaying their routine responsibilities.”                    S.J.A. 68.

       Dr. Shin offers no evidence to rebut these facts.                       He also

fails to show how handling a reduced volume of patients would

satisfy his job’s essential functions.                       As the district court

                                           24
noted, “[t]he ADA does not require an employer to assign an

employee to ‘permanent light duty,’” J.A. 192 (quoting Carter v.

Tisch, 822 F.2d 465, 467 (4th Cir. 1987)); nor does it require

an employer to “reallocate job duties in order to change the

essential       functions    of     a       job,”   29    C.F.R.    Pt.    1630     App.

§ 1630.2(o),       or   “hire     an        additional    person    to    perform    an

essential function of a disabled employee’s position,” Martinson

v. Kinney Shoe Corp., 104 F.3d 683, 687 (4th Cir. 1997).                             See

also Laurin v. Providence Hosp., 150 F.3d 52, 60-61 (1st Cir.

1998); Milton v. Scrivner, Inc., 53 F.3d 1118, 1125 (10th Cir.

1995) (“An accommodation that would result in other employees

having     to     worker    [sic]       harder      or    longer    hours      is   not

required.”).

       More importantly, Dr. Shin has failed to provide evidence

showing that “light duty” was an option for medical interns and

residents at UMMSC.         The record shows the contrary.                 Dr. Thomas

C.     Goldman    opined    that        a     reduced     patient   load       is   “not

reasonable, in that [it] could not be offered without seriously

compromising the functions of the hospital, the needs of the

staff, and patient safety.”                 S.J.A. 423.       Similarly, Dr. Holly

J. Humphrey explained that Dr. Shin’s requested accommodations

are “not only unreasonable but in direct conflict with the goal

of residency education -- to build memory strength about patient

care    disease    presentations        in     order     to   develop    the   clinical

                                              25
judgment essential to being a physician.”                        S.J.A. 172.         She

further    explained     that   “[g]iven         that    the    goals    of   residency

training are to develop competency, the doctor must function at

a     level        allowing     complex          problem        solving       including

simultaneously       managing    multiple        patient       care   situations     and

dealing with ambiguity.”            S.J.A. 173.         Because Dr. Shin provided

no evidence to bring this fact into dispute, and we can find

none, we defer to the views of Appellees on the standards for

professional and academic achievement.                   See Doe v. Univ. of Md.

Med. Sys. Corp., 50 F.3d 1261, 1266 (4th Cir. 1995) (“We are

reluctant under these circumstances to substitute our judgment

for that of UMMSC.”); see also McGregor v. La. State Univ. Bd.

of Supervisors, 3 F.3d 850, 859 (5th Cir. 1993) (deferring to a

law   school’s      determinations      on      how     best    to    meet    the   ABA’s

accreditation requirement on attendance); Zukle v. Regents of

Univ. of Cal., 166 F.3d 1041, 1048 (9th Cir. 1999) (making a

similar finding in the medical school context).                         For the above

reasons,      we    reject    Dr.    Shin’s       alternative         argument.       No

reasonable jury could conclude that a reduced patient load was a

reasonable accommodation under these circumstances.

      Accordingly, we conclude that the district court did not

err in finding that Dr. Shin is not a qualified individual with

a disability under the ADA.             Dr. Shin was not able to perform

the    essential       functions      of        his     job    without        reasonable

                                           26
accommodation,   and   the   accommodations   he   identified   are

unreasonable in light of the circumstances.



                               III.

     For the reasons set forth above, the district court’s order

granting Appellees’ motion for summary judgment is

                                                         AFFIRMED.




                                27
