In the
United States Court of Appeals
For the Seventh Circuit

Nos. 99-1215 & 99-1218

STEPHANIE BEKKER,

Plaintiff-Appellant,

v.

HUMANA HEALTH PLAN, INCORPORATED,

Defendant-Appellee.



Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
Nos. 97 C 4643 and 97 C 6771--David H. Coar, Judge.


Argued January 5, 2000--Decided September 27, 2000



  Before POSNER, EASTERBROOK and RIPPLE, Circuit Judges.

  RIPPLE, Circuit Judge. Dr. Stephanie Bekker
worked as a physician for Humana Health Plan,
Inc. ("Humana") until Humana discharged her
because it had received numerous reports that Dr.
Bekker had smelled of alcohol and had exhibited
other signs of alcohol use when seeing her
patients. After her discharge, Dr. Bekker filed
this action against Humana; she alleged that
Humana discriminated against her on account of
her perceived disability of alcoholism in
violation of the Americans with Disabilities Act
("ADA"), 42 U.S.C. sec. 12101 et seq. The
district court granted summary judgment for
Humana. For the reasons set forth in the
following opinion, we affirm the judgment of the
district court.
I
BACKGROUND
A. Facts/1

  Dr. Stephanie Bekker began practicing as an
internist at Humana’s Lincoln Park Center in
1983./2 She worked weekdays and every other
Saturday. She also had on-call duty, which
required her to work 24-hour shifts three to five
times a month. At times, she was the only
physician on the premises at the Lincoln Park
Center.

1.
  In 1990, a nurse at Humana informed the Clinical
Director for the Lincoln Park Center, Dr. Thomas,
that a rumor was circulating that Dr. Bekker
smelled of alcohol while working. Dr. Thomas
discussed the rumor with Dr. Bekker. That
discussion led to the conclusion that the odor
probably was Dr. Bekker’s mouthwash.

  In 1995, a patient reported that she had smelled
alcohol on Dr. Bekker during her appointment. Dr.
Bekker, at Humana’s request, thereafter agreed to
undergo an independent clinical evaluation to
determine whether she suffered from an alcohol
disorder. This evaluation was conducted at Rush-
Presbyterian-St. Luke’s Medical Center ("Rush")
and was headed by Dr. Paul Feldman, a physician
who specializes in the diagnosis and treatment of
substance abuse, particularly substance abuse by
physicians. At the completion of the evaluation,
Dr. Feldman did not diagnose Dr. Bekker with
alcohol abuse or dependence. He did, however,
find "indicators suggestive of problematic
alcohol usage." R.56 at 4. One of these
indicators was a report from another physician
who worked with Dr. Bekker. In this report, Dr.
Bekker’s colleague had stated that, while Dr.
Bekker was working, he had smelled alcohol on Dr.
Bekker’s breath three or four times in the past
five years; two of those occasions had occurred
in the previous four months. Having found
problematic alcohol usage, Dr. Feldman
recommended that Dr. Bekker refrain from alcohol
for one year and submit to random urine or blood
testing to check for the presence of alcohol. Dr.
Bekker agreed to the recommended program,
refrained from alcohol for one year, and
submitted to the random alcohol testing 13 times
during that year; all the test results were
negative. After the year ended, Dr. Bekker
resumed social drinking.

2.

  In 1996, another patient complained that Dr.
Bekker had smelled of alcohol during her
appointment. When advised of the complaint,
Humana’s Director of Employee Health
Services/Risk Management, Diane Dusek, initiated
an investigation and suspended Dr. Bekker pending
the resolution of the investigation.

  In her investigation, Dusek spoke first with the
patient who had made the complaint. The patient
confirmed that Dr. Bekker had smelled of alcohol
during her appointment. Also, the patient stated
that Dr. Bekker may have smelled of alcohol on a
previous visit. Dusek then spoke with Dr. Bekker.
In their conversation, Dr. Bekker denied drinking
before or during working hours or while she was
on call.

  The next day, Dr. Bekker again spoke with Dusek
and suggested three possible reasons why she may
have smelled of alcohol: (1) her face wash
contained traces of alcohol, (2) her air
freshener may have resembled the scent of
alcohol, or (3) when she had recycled some beer
bottles, the scent had lingered on her. Dr.
Bekker offered to undergo daily alcohol testing
to prove that she was not working while under the
influence of alcohol. She also volunteered to pay
for the cost of the breathalyser equipment needed
to conduct the alcohol testing. Dusek refused her
offer but continued her investigation into Dr.
Bekker.

  Dusek interviewed other staff members at Humana
during the course of her investigation. A medical
assistant reported that she had smelled alcohol
on Dr. Bekker at least once a week, that Dr.
Bekker had glassy eyes when the odor was present,
and that both patients and employees had
commented to her about the odor. A nurse reported
that she had smelled alcohol on Dr. Bekker two or
three times a week over the previous two years
and that patients had commented to her that Dr.
Bekker or her examination room had smelled of
alcohol. Another employee also reported that Dr.
Bekker had smelled of alcohol on at least a
weekly basis, that Dr. Bekker’s face was flushed
and her eyes were dilated when the odor was
present, and that a patient had commented to her
that Dr. Bekker smelled of alcohol. Two triage
nurses confirmed that they had smelled alcohol on
Dr. Bekker and that other employees had spoken of
the situation. Another physician reported that a
week or two before the investigation, she had
smelled an unusual odor on Dr. Bekker and had
wondered if it was alcohol.

  Humana did not test Dr. Bekker on any of the
occasions when she allegedly smelled of alcohol,
although testing is the only conclusive means to
determine whether the substance that people
reported smelling was in fact alcohol. Dusek
stated that she found no evidence that Dr. Bekker
consumed alcohol while at work, that she reported
to work while impaired by alcohol, or that her
professional care was diminished as a result of
alcohol impairment. Dusek also admits that she
never found evidence that Dr. Bekker actually
provided poor patient care or exercised poor
medical judgment. Also, Dr. Bekker’s colleague,
Dr. Thomas, stated that she did not think that
Dr. Bekker ever drank alcohol at work.

  Humana’s Vice-President and Medical Director for
Chicago, Dr. Ernest Weis, determined that,
although Dr. Bekker could be discharged under her
employment contract for cause, he would continue
her employment if she agreed to certain terms.
Under his proposed agreement, Dr. Bekker must (1)
submit to a clinical evaluation, (2) attend a
prescribed formal recovery program, (3) undergo
random alcohol testing for two years, (4) submit
all test results and treatment plans to Humana’s
Employee Health Services, and (5) if she resigned
during any treatment, agree to advise any future
employer of her condition and to provide reports
to Humana regarding her treatment. The agreement
also stated that Dr. Bekker would be discharged
if she failed to comply with the terms of the
agreement, if Humana received any further
complaints about Dr. Bekker’s smelling of
alcohol, or if Humana determined that Dr. Bekker
was using any mood-altering chemicals.

  In a meeting on December 6, 1996, Dr. Weis
informed Dr. Bekker of these conditions and told
her that he believed that she had a drinking
problem that required treatment. He advised her
that her employment would be continued only if
she agreed to his conditions. During the meeting,
Dr. Bekker again denied drinking on the job or
reporting to work under the influence of alcohol.
She offered to undergo daily testing, but Dr.
Weis declined her offer. She told Dr. Weis that
she would seek a second independent evaluation to
prove that she was not under the influence of
alcohol while at work. Finally, Dr. Bekker stated
that she wanted to seek the advice of counsel
before agreeing to Dr. Weis’ conditions. Dr. Weis
agreed. He did not set, at that time, a deadline
by which Dr. Bekker needed to accept his
conditions before he would discharge her.
  On Monday, December 9, Dr. Bekker visited Dr.
Feldman at Rush for her second evaluation. Prior
to the appointment, Dr. Feldman received a
communication from Dusek at Humana. Dr. Feldman
did not disclose to Dr. Bekker the contents of
Dusek’s communication nor did he perform a
clinical evaluation of Dr. Bekker that day.
Instead, he recommended to Dr. Bekker that she
check herself into Rush’s residential treatment
program. Dr. Bekker declined and stated that she
wished to discuss the situation with counsel.
Although Dr. Bekker never authorized Dr. Feldman
to communicate with Humana, after her
appointment, Dr. Feldman called Dusek to tell her
that he had recommended treatment for Dr. Bekker
so he could ascertain whether Dr. Bekker had a
problem with alcohol.

  The next day, December 10, Dr. Bekker called
Dusek to inform her that she had contacted
counsel regarding Dr. Weis’ conditions. She told
Dusek that her attorney would not be available
until Monday, December 16; Dusek did not object
to the delay.
  On December 12, after hearing from Dusek that
Dr. Bekker was not reviewing the proposed
conditions with counsel until December 16, Dr.
Weis sent a letter to Dr. Bekker by messenger. In
the letter, he told her that she needed to accept
his conditions by 9 a.m. on December 16 or her
employment would be terminated.

  In response to Dr. Weis’ demand for an answer,
Dr. Bekker met with alternative counsel on
Friday, December 13. Counsel faxed a letter to
Dr. Weis to request both information from Humana
and a meeting with Dr. Weis. Nobody at Humana
responded; indeed, Humana denies receiving this
letter.

  Dusek did not hear from Dr. Bekker on December
16, and she therefore informed Dr. Weis that Dr.
Bekker had not contacted her. That same day, Dr.
Weis called Dr. Feldman and requested information
about Dr. Bekker’s condition so that he could
confront her. In a letter to Dusek dated December
16, Dr. Feldman wrote that he believed Dr. Bekker
met the criteria for alcohol abuse. He wrote
that, although Dr. Bekker did not appear to drink
in the workplace, she drank heavily the night
before and that the odor lingered into the next
day. He also recommended that Dr. Bekker refrain
from practicing medicine and enter a treatment
program for chemically dependent healthcare
professionals. Neither Dusek nor Dr. Weis spoke
with Dr. Feldman after receiving this letter.

  Dr. Weis sent a letter to Dr. Bekker on December
17 that informed her of her discharge. Dr. Weis
later stated that he had terminated Dr. Bekker
because he believed that she was an alcoholic and
because she would not agree to the conditions he
proposed at the December 6 meeting. He stated
that Dr. Bekker presented a risk to her patients
because, as an alcoholic, she might make bad
clinical decisions. He also stated that she was a
business threat because patients would not like
seeing a physician who smelled of alcohol. He
admitted that he did not know of any bad clinical
decisions that she had made or of any patients
who had stopped coming to her because of her
problem.

3.

  After Dr. Bekker’s termination, Humana revoked
her credentials. Dr. Bekker appealed, and the
Appeals Committee recommended that she and Dr.
Weis discuss the situation. He refused.

  Humana has a policy against alcohol and drug use
in the workplace. It states that "Employees shall
be prohibited from working while under the
influence of alcohol and/or drugs. . . .
Compliance with this policy is a condition of
continued employment. Violation of any aspect of
this policy may subject the employee to
disciplinary action, up to and including
discharge." Ptf. Ex.8.

  In Humana’s view, alcohol use and perceived
alcohol use by its physicians can have many
adverse effects. Primarily, a physician under the
influence of alcohol may provide poor patient
care and exercise poor medical judgment. However,
even if patient care is not compromised, Humana’s
view is that it is unprofessional for a physician
to attend patients while smelling of alcohol; the
patient may not have the appropriate respect for
a physician smelling of alcohol, and this lack of
respect could discourage the patient from
following the physician’s advice. Finally, Humana
believes that, when one of its physicians smells
of alcohol, she projects an unprofessional image,
which harms the reputation of Humana and Humana’s
other physicians.

  The relationship between Humana and Dr. Bekker
was governed by a written employment contract.
This contract stated that the agreement "shall
automatically terminate, effective immediately,
upon notification by Medical Director . . . upon
one or more of the following occurrences: . . .
[Humana] reasonably believes that the health or
safety of patients is endangered by PHYSICIAN."
R.1-1, Ex.A at 4-5.

   After her discharge and the revocation of her
credentials, Dr. Bekker filed this action against
Humana. She alleged that Humana discriminated
against her in violation of the ADA because it
perceived her as disabled by alcoholism.
B. District Court Proceedings
1.

  The district court determined that Dr. Bekker
was not a "qualified individual with a
disability" under the ADA. The court stated first
that Dr. Bekker had offered enough evidence to
show that Humana perceived her as having the
disability of alcoholism. Dr. Bekker proffered
statements of Dr. Weis, the decision maker, that
showed that he perceived her as an alcoholic
incapable of working as a physician. Moreover,
noted the court, when an employer offers an
employee a choice between a treatment program and
termination, the court reasonably may conclude
that the employer perceived the employee as
disabled by chemical dependence.

  In determining whether Dr. Bekker was a
"qualified" individual with a disability, the
court stated that Dr. Bekker bore the burden of
establishing that she was not a direct threat to
the health or safety of her patients and that she
therefore was qualified. Being a direct threat,
the court stated, meant that Dr. Bekker presented
a significant risk of substantial harm to the
health or safety of others that could not be
reduced or eliminated by reasonable
accommodation. A conclusion that Dr. Bekker was a
direct threat required an individualized
assessment, based on reasonable medical judgment,
of her present ability to perform safely the
essential functions of her job. According to the
court, the assessment should examine (1) the
duration of the risk, (2) the nature and severity
of the potential harm, (3) the likelihood that
the potential harm will occur, and (4) the
imminence of the potential harm.

  The court determined that ample evidence existed
to show that Dr. Bekker was a direct threat to
her patients’ health or safety, as demonstrated
by the numerous reports of people smelling
alcohol on her while at work and by the reports
of several employees who had observed her with
glassy eyes. Reports of Dr. Bekker’s smelling of
alcohol were filed in 1990, 1995, and 1996. Thus,
the court concluded, her drinking was of long
duration with no clear end in sight. As well, the
number of reports were substantial and appeared
to be increasing. These facts, stated the court,
indicated that there was an increasing likelihood
of harm and that the harm was imminent.
Therefore, the court held, Humana possessed
sufficient evidence to show that Dr. Bekker was
reasonably likely to be a direct threat to her
patients. The court discounted Dr. Bekker’s
attempts to show she was not a direct threat. The
court acknowledged that Dr. Bekker met
professional standards and that she had not
actually made any poor medical judgments.
However, the court reasserted that the applicable
assessment examined her present ability to
perform safely the essential functions of her job
and the likelihood she would cause future harm.
The court also rejected Dr. Bekker’s contention
that her assessment had not been based on
objective medical evidence. In the court’s view,
employee and patient reports of her smelling of
alcohol constituted sufficiently objective
evidence.

  If a disabled employee is a direct threat, the
court continued, it must determine whether that
threat can be reduced or eliminated by reasonable
accommodation. The court rejected Dr. Bekker’s
argument that she would not have been a direct
threat if Humana had adopted her suggestion of
daily testing as a reasonable accommodation to
her perceived disability. Humana did not need to
adopt Dr. Bekker’s suggestion of daily testing,
the court reasoned, because the costs were
excessive in relation to the benefits of such a
regimen. Although daily testing would show
whether Dr. Bekker was under the influence of
alcohol, its costs outweighed the need for such
daily information. Such testing, the district
court continued, would not determine whether Dr.
Bekker had used alcohol after she was tested, and
Humana could not be expected to monitor her 24
hours a day. Also, noted the court, the burden on
Humana to test Dr. Bekker daily would be
unreasonable because it would place her co-
workers in an awkward position when testing her
and because there would be times when no one was
available to administer the test to her. The
court also stated that, even if daily testing
were reasonable, Humana was not required to
provide Dr. Bekker with the accommodation she
requested or preferred but only with "some
reasonable accommodation"; prospective treatment
for an alcoholic is a reasonable accommodation.
The court therefore held that Dr. Bekker was not
a qualified individual with a disability under
the ADA.

2.

  The district court also held that, even if Dr.
Bekker was a qualified individual with a
disability, Humana had a legitimate
nondiscriminatory reason for terminating her. An
employer may discharge an alcoholic employee for
conduct it would not tolerate in a sober employee
or an intoxicated employee who is not an
alcoholic. Humana was justified in discharging
Dr. Bekker, the court concluded, because the
reports that she smelled of alcohol were
sufficient to find that she was under the
influence of alcohol, and Humana could have
discharged a worker who was not an alcoholic
under the same circumstances.

3.

  The court concluded that Humana could terminate
Dr. Bekker under the employment contract if
Humana reasonably believed that Dr. Bekker
endangered the health and safety of her patients.
Sufficient evidence existed, the court concluded,
for Humana to determine that she did present such
a danger to the health and safety of her
patients. Therefore, the court held that Humana
did not breach its employment contract with Dr.
Bekker.

II
DISCUSSION
A. Standard of Review

  We review de novo the district court’s decision
to grant summary judgment to Humana. See Wright
v. Illinois Dep’t of Corrections, 204 F.3d 727,
729 (7th Cir. 2000). Summary judgment is proper
when the "pleadings, depositions, answers to
interrogatories, and admissions on file, together
with the affidavits, if any, show that there is
no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a
matter of law." Fed. R. Civ. P. 56(c); see also
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23
(1986). In determining whether a genuine issue of
material fact exists, we must review the record
in the light most favorable to Dr. Bekker and
make all reasonable inferences in her favor. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
255 (1986); Robin v. Espo Eng’g Corp., 200 F.3d
1081, 1088 (7th Cir. 2000).

  To avoid summary judgment, Dr. Bekker was
required to set forth specific facts showing that
a genuine issue for trial existed. See Silk v.
City of Chicago, 194 F.3d 788, 798 (7th Cir.
1999). She had to produce, moreover, more than a
scintilla of evidence to support her position.
See id. "A genuine issue of fact ’exists only
when a reasonable jury could find for the party
opposing the motion based on the record as a whole.’"
Bellaver v. Quanex Corp., 200 F.3d 485, 492 (7th
Cir. 2000) (quoting Pipitone v. United States,
180 F.3d 859, 861 (7th Cir. 1999)).

B.   Discrimination

  The ADA prohibits an employer from
discriminating against a qualified individual
with a disability. See 42 U.S.C. sec.
12112(a)./3 The term "qualified individual with
a disability" "means 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. sec.
12111(8)./4 To establish disability
discrimination, therefore, Dr. Bekker must show
that (1) she is disabled within the meaning of
the ADA, (2) she is qualified to perform the
essential functions of her job either with or
without reasonable accommodation, and (3) she
suffered from an adverse employment decision
because of her disability. See Moore v. J.B. Hunt
Transp., Inc., No. 99-1853, 2000 WL 994327, *3
(7th Cir. July 19, 2000). In order to prevail,
Dr. Bekker must establish all three elements of
her claim.

   First, Dr. Bekker must establish that she is
disabled. To be disabled within the meaning of
the ADA, Dr. Bekker must demonstrate that she (1)
has "a physical or mental impairment that
substantially limits one or more of the major
life activities of such individual;" (2) has "a
record of such an impairment;" or (3) is
"regarded as having such an impairment." 42
U.S.C. sec. 12102(2); see also Schneiker v.
Fortis Ins. Co., 200 F.3d 1055, 1059-60 (7th Cir.
2000). Dr. Bekker claims, and Humana admits, that
she comes within the third definition of
disability because Humana regarded her as an
alcoholic.

  Humana nevertheless posits that, even if Dr.
Bekker is an alcoholic, she is not a qualified
individual with a disability because she presents
a direct threat to the health and safety of her
patients. "The term ’direct threat’ means a
significant risk to the health or safety of
others that cannot be eliminated by reasonable
accommodation." 42 U.S.C. sec. 12111(3). The
district court agreed with Humana’s assessment
when it granted summary judgment to Humana. We
have no disagreement with the analysis of the
district court, which we already have set forth
at length. Nevertheless, even assuming that Dr.
Bekker is a qualified individual with a
disability, Humana was justified in discharging
her.

1.

  Under the ADA, an employee has available two
methods for establishing that her employer
discriminated against her based on her
disability. See Cheek v. Peabody, 97 F.3d 200,
203 (7th Cir. 1996). First, the employee "may
present direct or circumstantial evidence that
the employment decision was motivated by the
employer’s discriminatory animus." Bellaver, 200
F.3d at 492; see also DeLuca v. Winer Indus.,
Inc., 53 F.3d 793, 797 (7th Cir. 1995). Second,
the employee may use the burden-shifting method
set forth in McDonnell Douglas Corporation v.
Green, 411 U.S. 792 (1973), to prove by indirect
evidence that her employer intentionally
discriminated against her. See Robin, 200 F.3d at
1088; DeLuca, 53 F.3d at 797.

2.

  We focus for now on the first of these methods.
"Evidence of discrimination may be direct or
circumstantial." Sheehan v. Donlen Corp., 173
F.3d 1039, 1044 (7th Cir. 1999). Direct evidence
is evidence that "’in and of itself suggests’
that someone with managerial authority was
’animated by an illegal employment criterion.’"
Id. (quoting Venters v. City of Delphi, 123 F.3d
956, 972 (7th Cir. 1997)). "When the employee has
presented evidence that the employer was
motivated in part by discrimination, the
defendant may then avoid a finding of liability
by proving that it would have made the same
decision absent discrimination." Bellaver, 200
F.3d at 492 (emphasis added). To survive a motion
for summary judgment, therefore, Dr. Bekker must
present sufficient evidence to allow a rational
jury to reasonably conclude that, but for her
disability of alcoholism, Humana would not have
discharged her. See Robin, 200 F.3d at 1089.

  We note that an employer:

(1) may prohibit the illegal use of drugs and the
use of alcohol at the workplace by all employees;

(2) may require that employees shall not be under
the influence of alcohol or be engaging in the
illegal use of drugs at the workplace;

. . . .

(4) may hold an employee who engages in the
illegal use of drugs or who is an alcoholic to
the same qualification standards for employment
or job performance and behavior that such entity
holds other employees, even if any unsatisfactory
performance or behavior is related to the drug
use or alcoholism of such employee . . . .

42 U.S.C. sec. 12114.

  Dr. Bekker claims that Humana terminated her
because it believed she was an alcoholic and not
because it believed she was working while under
the influence of alcohol. Humana submits that it
was justified in terminating Dr. Bekker based on
the complaints it received about her. Humana
claims that it may hold an alcoholic employee to
the same standards as a non-alcoholic employee.
Because a non-alcoholic employee would be
terminated if Humana concluded she was under the
influence of alcohol while working, Humana
contends that Dr. Bekker could be terminated
under the same circumstances. Due to the serious
risks to patients of being treated by a physician
under the influence of alcohol, Humana states
that it would be justified in terminating Dr.
Bekker merely because she smelled of alcohol.

  The risks of harm when a patient is seen by a
physician under the influence of alcohol are many
and serious. A physician under the influence of
alcohol could prescribe the wrong medication or
an incorrect dosage of medication. She could
misdiagnose the patient’s condition or could miss
an important symptom indicative of a more serious
condition, possibly one needing immediate
attention or posing a threat to life. Moreover, a
physician under the influence of alcohol might be
clumsy with her instruments and cause serious
harm to the patient because of a slip of the hand
or a second of inattention. Furthermore, the
confidence of a patient in the capabilities of
the physician understandably would be undermined
if the patient became aware that the physician
was under the influence of alcohol.

  Humana has presented sufficient evidence to show
that it had good reason to believe that Dr.
Bekker was under the influence of alcohol while
seeing patients. During Dusek’s investigation,
she received reports from employees and patients
who had smelled alcohol on Dr. Bekker while she
was working. Moreover, several of the employees
had observed her with glassy or dilated eyes and
a flushed face, signs of alcohol use. Reports
stating that Dr. Bekker smelled of alcohol were
filed in 1990, 1995, and 1996; the number of
reports regarding Dr. Bekker were substantial and
appeared to be increasing. In short, all of the
reports indicating that Dr. Bekker was seeing her
patients while under the influence of alcohol
substantiate Humana’s decision to discharge Dr.
Bekker.

  Furthermore, the persistent nature of the
problem, despite Humana’s intervention,
substantiates the need for concern on the part of
Humana. After the first patient reported that she
had smelled alcohol on Dr. Bekker, Humana
required her to undergo treatment, but, despite
this treatment, Dr. Bekker continued to appear at
work smelling of alcohol. The large number of
reports of Dr. Bekker’s symptoms also indicate
the repetitious and long-term nature of Dr.
Bekker’s problem. With a suggestion of such
pervasive alcohol use while Dr. Bekker was seeing
patients, Humana was justified in terminating Dr.
Bekker. A physician in such a patient-oriented
practice, whether or not she is an alcoholic,
justifiably could be discharged by her employer
if the employer received numerous reports that
suggested that the doctor was seeing patients
under the influence of alcohol./5 Moreover,
Humana has, and the ADA explicitly allows for, a
policy prohibiting the use of alcohol in the
workplace. Dr. Bekker, therefore, failed to
present direct proof of intentional
discrimination by Humana on account of a
perceived disability of alcoholism. Indeed,
Humana has offered substantial proof that it was
justified in discharging her on the ground that
she posed an immediate risk to patients.

3.

  Dr. Bekker’s case would fare no better under the
McDonnell Douglas burden-shifting approach. See
Cheek, 97 F.3d at 203. The Supreme Court
established the burden-shifting method of proving
intentional discrimination "[b]ecause employers
usually are careful not to offer smoking gun
remarks indicating intentional discrimination. .
. ." Robin, 200 F.3d at 1088. Under this method,
a plaintiff first must establish a prima facie
case of discrimination by her employer, which
creates a presumption of intentional
discrimination. See id.; Bellaver, 200 F.3d at
493. The burden of production then shifts to the
employer to articulate a legitimate,
nondiscriminatory reason for the adverse
employment action. See DeLuca, 53 F.3d at 797.
Once the employer has proffered a legitimate
reason, the inference of discrimination
disappears, and the plaintiff must prove by a
preponderance of the evidence that the employer’s
proffered reason was a pretext for intentional
discrimination. See Robin, 200 F.3d at 1088;
Bellaver, 200 F.3d at 493. The ultimate burden to
prove intentional discrimination remains with the
plaintiff. See St. Mary’s Honor Ctr. v. Hicks,
509 U.S. 502, 507-08 (1993); Bellaver, 200 F.3d
at 493.

  Assuming for the sake of argument that Dr.
Bekker could establish a prima facie case of
discrimination, Humana has proffered a legitimate
nondiscriminatory reason for her discharge: the
belief that she was under the influence of
alcohol while seeing patients. Dr. Bekker has not
presented any evidence to show that Humana’s
legitimate reason for her discharge was
pretextual. By failing to rebut Humana’s
legitimate, nondiscriminatory reason, Dr. Bekker
cannot meet her burden to show that she was a
victim of intentional discrimination by Humana.

C.   Breach of Employment Contract

  The relationship between Humana and Dr. Bekker
was governed by a written employment contract.
This contract stated that the agreement "shall
automatically terminate, effective immediately,
upon notification by Medical Director . . . upon
one or more of the following occurrences: . . .
[Humana] reasonably believes that the health or
safety of patients is endangered by PHYSICIAN."
R.1-1, Ex.A at 5.

  Dr. Bekker states that enough evidence exists to
demonstrate that a material fact question exists
about whether Dr. Bekker was a threat to patient
safety and that summary judgment therefore should
not have been entered for Humana. Humana asserts
that it did not breach her employment contract.
The employment contract stated that, when Humana
reasonably believed that Dr. Bekker was
endangering the health or safety of her patients,
she would automatically be discharged. The
evidence shows that, based on the numerous
reports of its employees and patients, Humana
reasonably believed Dr. Bekker to be a threat to
her patients’ health or safety. Humana therefore
did not breach her employment contract.

Conclusion

  For the foregoing reasons, the judgment of the
district court is affirmed.

AFFIRMED



/1 The district court, acting at the request of the
parties, placed the record in this case under
seal. Although appellate proceedings can be
sealed only by order of this court, see Union Oil
Co. v. Leavell, No. 99-3084, 2000 WL 987701 (7th
Cir. July 18, 2000) (publication page references
not available), no such request has been made in
this court. Moreover, the parties have proceeded
with unsealed briefs and presented oral argument
in open court. In any event, the facts disclosed
here are no more intrusive than those found in
similar disability cases, and their presentation
is necessary to afford a clear understanding of
our holding to those who rely on our precedents.

/2 Dr. Bekker originally started working for
Humana’s predecessor in 1983; however, because
Humana is the party to this action, we shall
refer only to Humana.

/3 The ADA prescribes that:

No covered entity shall discriminate against a
qualified individual with a disability because of
the disability of such individual in regard to
job application procedures, the hiring,
advancement, or discharge of employees, employee
compensation, job training, and other terms,
conditions, and privileges of employment.

42 U.S.C. sec. 12112(a).

/4 The term "reasonable accommodation" may include:

job restructuring, part-time or modified work
schedules, reassignment to a vacant position,
acquisition or modification of equipment or
devices, appropriate adjustment or modifications
of examinations, training materials or policies,
the provision of qualified readers or
interpreters, and other similar accommodations
for individuals with disabilities.

42 U.S.C. sec. 12111(9).

/5 Before the district court, Dr. Bekker moved to
strike her Rush medical records under the federal
confidentiality of records statute, 42 U.S.C.
sec. 290dd-2, the Illinois statute on medical
privileges, 735 ILCS sec. 5/8-802, and the bar to
hearsay in the Federal Rules of Evidence. The
district court denied her motion and allowed
Humana to submit the documents in support of its
motion for summary judgment. The district court’s
evidentiary rulings are reviewed for an abuse of
discretion. See Rehling v. City of Chicago, 207
F.3d 1009, 1017 (7th Cir. 2000).

  Even if we were to determine that the district
court abused its discretion in making its
evidentiary ruling, we still would affirm the
district court. "[A] trial court’s erroneous
rulings may be deemed harmless if the record
indicates that the trial court would have
rendered the same judgment regardless of the
error." Barber v. Ruth, 7 F.3d 636, 641 (7th Cir.
1993). We do not need to ascertain whether the
district court incorrectly considered Dr.
Bekker’s medical records because we believe that,
even without Dr. Bekker’s medical records,
sufficient evidence exists in the record to
support Humana’s decision to discharge Dr.
Bekker. As we have noted in the text, Humana
collected numerous reports from a variety of
employees that documented the employees’ repeated
exposure to Dr. Bekker while she smelled of
alcohol and exhibited other physical symptoms of
alcohol use. The reports indicated that this
problem occurred frequently and over a long
period of time. Moreover, the problem was blatant
enough that numerous employees as well as several
patients commented on it. Based on these reports,
even without Dr. Bekker’s medical records, Humana
had sufficient evidence to discharge Dr. Bekker.
