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Roth v. Lutheran General Hospital

June 27, 1995

STEPHEN N. ROTH, M.D.,

PLAINTIFF-APPELLANT,

v.

LUTHERAN GENERAL HOSPITAL, JEROME KRAUT, M.D., SEYMOUR METRICK, M.D., ET AL.,

DEFENDANTS-APPELLEES.



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division.

No. 93 C 3234--James F. Holderman, Judge.

Before ESCHBACH, COFFEY, and RIPPLE, Circuit Judges.

COFFEY, Circuit Judge.

ARGUED JANUARY 10, 1995

DECIDED JUNE 27, 1995

Dr. Stephen N. Roth appeals from the district court's denial of his motion for a preliminary injunction seeking admission to Lutheran General Hospital's pediatric residency program. Dr. Roth, who has strabismus, *fn1 had filed a lawsuit under the Rehabilitation Act of 1973, 42 U.S.C. sec. 794, et seq. and the Americans with Disabilities Act (ADA), 42 U.S.C. sec. 12101, et seq., alleging, among other things, that the hospital and various members of the resident selection committee discriminated against him in their selection process because of his eye disability, and also retaliated against him for exercising his rights to obtain legal redress under the Acts. We affirm.

I. Background

Dr. Roth has had a history of medical problems relating to his eyes. According to Roth, he was diagnosed as legally blind in his right eye when he was 12 years of age. Despite his visual condition, Dr. Roth earned a degree in pharmacy in 1979 from the University of Illinois, and became a registered pharmacist. That same year, he entered DePaul Law School as a full-time student, spending approximately 25 hours per week studying and attending classes, and during this same period working 15 to 35 hours per week as a pharmacist. While in law school, Dr. Roth experienced eyestrain and was fitted with a contact lens that improved the visual acuity in his right eye. According to Roth, during the years following the adjustment, he "perceived no problems with his vision and functioned very well both as a registered pharmacist and an attorney."

Between 1982 and 1987, Dr. Roth worked as an attorney/consultant and as a pharmacist. From 1987 to 1989, he was employed as a "prosecutor/medical attorney" for the Illinois Department of Professional Regulation. In 1988 Dr. Roth also applied and obtained a position as a faculty lecturer at the University of Illinois. Although the application asked the applicant to specify whether he had a handicap, Dr. Roth failed to list his visual condition, much less characterizing it as a handicap, on his application and described his health as "good." The record reflects that Dr. Roth did not receive any accommodation with regard to his visual condition while pursuing either his pharmacy or law degree, or while employed in any of the positions he held before 1989. In 1989 Dr. Roth applied and was admitted to the University of Illinois at Chicago Medical School (UIC). In his medical school application, Roth referred to his visual condition as a "former" problem, stating that the condition "no longer confronts [him]" and "ha[s] been cured." Specifically, he stated that vision in his right eye was restored in 1981.

In the first quarter of his medical school career, Dr. Roth allegedly experienced eye strain and had some difficulty while using a binocular microscope. He was examined by Dr. Paul Parmet, an ophthalmologist, who diagnosed that Roth suffered from strabismus, minor anisometropia, *fn2 and mild amblyopia. *fn3 Dr. Parmet's findings were confirmed by examinations performed at the University of Illinois as well as the University of Chicago eye clinics. Dr. Parmet opined that Roth's visual condition was congenital, and that his ability to fuse images and achieve stereopsis *fn4 is poor. Thus, according to Dr. Parmet, any laboratory tasks requiring fine perception of depth, such as viewing through a binocular microscope, would be difficult for Roth. Dr. Parmet stated, however, that while Roth's condition is not completely correctable by glasses or other means, Roth has "adapted well to daily activities and he should have the visual capacity to function well in most medical specialties." Additionally, Dr. Parmet opined that Roth is subject to eye strain and eye fatigue faster than a person with normal (nonstrabismic) eyesight, and the possible manifestations include sleepiness, double vision, headaches and diminished visual acuity. Dr. Parmet further noted that when Roth's eyes are not strained, his visual acuity is good.

Apparently based upon Dr. Parmet's recommendation that "flexibility in [Roth's] educational requirements, specifically his laboratory requirements, is called for," and at Dr. Roth's own requests, UIC made several accommodations for him. They include modifying Roth's laboratory examinations, relieving him from "night call" and surgical-type procedures which required him to look downward for prolonged periods of time, and allowing him to select hospital clerkship sites that had lighter duty schedules. In spite of his eye problem and the accommodations made for his condition, Dr. Roth continued to serve as a faculty lecturer at the University of Illinois, College of Public Health and a defense attorney/consultant during medical school. According to Roth's resume (which was submitted as part of Roth's application to various residency programs), Roth also continued to be gainfully employed as a pharmacist and published several law related articles during medical school. However, at the preliminary injunction hearing, Roth testified under oath that the representation that he worked as a pharmacist during medical school was incorrect. He also testified that he was not directly responsible for one of the articles listed on his resume but was merely a participant in a roundtable discussion, which was taped and published.

In 1992 Dr. Roth filed a complaint with the U.S. Department of Education (DOE), the City of Chicago, and the State of Illinois, alleging that he received a below average grade in an obstetrics/gynecology clerkship program at the Illinois Masonic Hospital as a result of discrimination. On March 9, 1994, the DOE found that Roth is an individual with disabilities under the Rehabilitation Act and the ADA, and that Roth's grade and ratings in the clerkship were likely to have been tainted by bias. It concluded that UIC had violated the Acts, and that but for the discrimination, Roth would not have received a below average evaluation in the clerkship. In response to the DOE's finding, UIC reevaluated Roth's grade and ultimately gave Roth a passing grade.

Dr. Roth also filed other discrimination complaints against UIC relating to his failure to gain admission to an honor society, denial of his application for an independent study program, a negative evaluation in a surgery clerkship, and other alleged discriminatory conduct. None of those claims resulted in a finding of discrimination. With respect to his claim that the honor society violated its policies in denying him admission because of discrimination, Dr. Roth stated in the sworn complaint that his academic performance exceeded the objective criterion for admission (which requires an applicant to be in the top ten percent of the class). At the evidentiary hearing before the district court, Dr. Roth testified that he did not know whether he was in the top ten percent of the class. UIC's associate dean contradicted Dr. Roth's testimony, stating that Roth was not in the top ten percent of the class and that his objective academic performance did not exceed that of those students admitted to the honor society.

While in medical school, Dr. Roth participated in three clerkships at the Lutheran General Hospital (LGH), and did not request any accommodations for those clerkships. In one of the clerkships, Dr. Roth was under the supervision of defendant Dr. Jerome Kraut, who felt that Dr. Roth did a good job and would be a good candidate for the pediatric residency program. Dr. Kraut, the director of the pediatric residency program, encouraged Roth and a number of other students participating in LGH's pediatric clerkship to apply to LGH's pediatric residency program. He had no knowledge of Dr. Roth's visual condition at the time.

In December 1992, Dr. Roth applied to five pediatric residency programs, including LGH, and two psychiatry residency programs, all located in Chicago. *fn5 In his 1992 application to LGH, Roth stated that although he was born with strabismus, he "no longer considered this an obstacle to his medical education" because he had been fitted with a contact lens which "corrected his visual acuity." Roth neither requested nor indicated that he would need a part-time schedule or any other type of accommodation.

LGH invited Dr. Roth in for an interview. Roth was initially interviewed by Dr. Kraut. In the beginning of the interview, Dr. Kraut told Roth that "things looked very positive." Roth then informed Dr. Kraut during that same interview that he had strabismus which would cause him to develop a headache, blurred vision or to be dysfunctional if he were to work more than an eight to ten hour shift. Roth stated that he would require accommodation from LGH's alleged requirement that a resident be on call for 36 hours at a time "three times a week." *fn6 Specifically, Roth suggested that he could not take "night call." Dr. Kraut asked whether Roth had discussed his disability with other directors of pediatric residency programs at other hospitals. Roth responded that he did, and without specifying which program, Roth stated that one program director had suggested adding an extra position to accommodate him. According to Roth's own testimony, Dr. Kraut then stated that "it sounded like a good idea." During the course of conversation, Roth referred to the various disability laws. In response, Dr. Kraut asked Roth to explain these disability laws. Roth stated, however, that he could not give legal advice but would send Kraut a list of the laws. Dr. Kraut then asked Roth what he would do if he did not secure a residency position. Roth responded that he would have no alternative but to pursue legal action.

At the conclusion of the interview, Dr. Kraut advised Roth not to discuss his visual impairment or need for accommodation with any of the other interviewers. He stated that he would check with the administration concerning accommodating Roth, such as adding an extra residency position or half a position in an attempt to accommodate Roth's alleged inability to take night calls. Dr. Kraut did not give Roth a numerical rating, but noted on the interview evaluation sheet that Roth was "wellknown to [LGH]--BUT strabismus." Dr. Kraut also noted, "add a special slot," apparently as a reminder to pursue the possibility of adding another pediatric residency slot to accommodate Roth. Dr. Kraut did not submit his ...


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