[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 23-11291

Non-Argument Calendar

____________________

TIPTON D. SHOLES, 

M.D.,

Plaintiff-Appellant,

versus

ANESTHESIA DEPARTMENT, et al.,

Defendants,

BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF 

GEORGIA, 

d.b.a. Augusta University,

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2 Opinion of the Court 23-11291

Defendant-Appellee.

____________________

Appeal from the United States District Court

for the Southern District of Georgia

D.C. Docket No. 1:19-cv-00022-JRH-BKE

____________________

Before WILLIAM PRYOR, Chief Judge, and WILSON and LUCK, Circuit Judges.

PER CURIAM:

Tipton Sholes, M.D., a former resident anesthesiologist, appeals the summary judgment in favor of the Board of Regents of 

the University System of Georgia and its Augusta University and 

against his complaint of disability discrimination in violation of section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794. The district court ruled that although Sholes had a disability of narcolepsy, 

he failed to establish that he was a “qualified individual” under the 

Act and that the Board did not fail to accommodate his disability 

because his request to be transferred to a different program without engaging in the application process was untimely and unreasonable. We affirm.

I. BACKGROUND

On July 1, 2016, Sholes began his residency in the Augusta 

University Anesthesiology and Perioperative Medicine 

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Department. The anesthesiology program ordinarily requires 

three years to complete, and the American Board of Anesthesiology and an accreditation council oversee various aspects of the program, which consists of a defined academic schedule and work in 

the operating room. If a resident fails to attend at least 80 percent 

of the educational component, he receives an “unsatisfactory” evaluation in the core competency of professionalism, which is reported to the Anesthesiology Board. Residents are required to arrive at work no later than 6:30 a.m. and have their operating room 

set up and patient interviews completed by 7:00 a.m. Residents receive evaluations from faculty, providers, and senior residents, and 

these evaluations are provided to the Clinical Competency Committee. Every six months, the Committee evaluates each resident’s 

progress and shares its evaluation with the Anesthesiology Board. 

Any resident who receives an “unsatisfactory” report is placed on 

remediation, and two consecutive unsatisfactory reports require a 

residency extension of at least six months.

Within Sholes’s first three weeks of residency, the director 

of the anesthesiology program, Dr. Mary Arthur, and the chief resident met with Sholes after receiving complaints from faculty and 

senior residents about him arriving to work and coming back from 

breaks late, missing lectures, being unable to be in a room by himself, using his phone during a case, and failing to have his rooms 

and instruments ready before a case, which suggested he was unable to run anesthetic procedures safely at the level of his peers. On 

November 22, 2016, after Dr. Arthur continued receiving complaints about Sholes repeatedly arriving late to work and patient 

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safety concerns, she met with him again and implemented a plan 

for him to complete daily time logs. When Sholes mentioned that 

he had trouble waking up and hearing his pager, she suggested that 

he reach out to his primary care physician and consider an alarm 

clock with blinking lights. After this meeting, Dr. Arthur continued 

to receive complaints about Sholes.

After several months, the Committee issued Sholes an overall clinical competency grade of unsatisfactory. His deficiencies 

were “continued tardiness,” “lack of engagement” that “impact[ed] 

his peers and faculty alike,” and “lack of situational awareness, preparedness and an unwillingness to follow directions[, which] is an 

ongoing problem.” His performance was marked unsatisfactory in 

the following areas: “Demonstrates honesty, integrity, reliability, 

and responsibility,” “Learns from experience; knows limits,” and 

“Reacts to stressful situations in an appropriate manner.” In January 2017, Sholes took the Anesthesiology Knowledge Test and 

scored below 99 percent of test-takers.

In March 2017, the Committee held an emergency meeting 

and placed Sholes on a 90-day remediation plan to address the ongoing complaints. Under the plan, faculty members were to evaluate Sholes daily and closely supervise him in the operating room, 

and Sholes was to meet with his mentor weekly. The plan warned 

Sholes that “another serious complaint” by a department member

or patient “shall constitute possible grounds for dismissal,” and insufficient improvement at the end of the plan would result in “formal disciplinary action,” including non-renewal of his contract.

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The plan also required an evaluation of his fitness for duty, but the 

physician found no issues. After Sholes’s wife learned about the remediation plan, she scheduled additional medical evaluations. 

In April 2017, Dr. Vaughn McCall diagnosed Sholes with 

narcolepsy without cataplexy. On May 5, 2017, Sholes and his wife 

met with Dr. Arthur along with the anesthesiology department 

chairman, Dr. Steffen Meiler, and Assistant Dean of the Medical 

College, Dr. Walter Moore, about the diagnosis. After the meeting, 

Sholes was placed on a 90-day medical leave of absence to regulate 

his medications.

On July 17, 2017, Sholes informed Dr. Meiler and Dr. Arthur 

that Dr. McCall had cleared him to return to work with no restrictions effective August 1. But after Dr. Arthur contacted 

Dr. McCall with Sholes’s permission, Dr. McCall stated that he 

never cleared Sholes to return to work. Dr. McCall forwarded 

Dr. Meiler an e-mail in which Dr. McCall had asked a prominent 

sleep physician “whether a treated narcoleptic can be trusted to 

safely execute medical procedures when up all-night.” The physician responded that he was “not sure if there is a way to fully ensure 

safety.” As a result, Dr. McCall believed that he could not clear 

Sholes to take night calls or say with a reasonable degree of certainty whether Sholes would be able to function as an anesthesiologist during night calls without endangering his patients. The department held several meetings regarding Sholes’s diagnosis and 

the legal risk it posed to both Sholes and the department. Although 

the department planned to tell Sholes that his contract would not 

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be renewed due to patient safety and liability concerns, the university’s employment equity director, Glenn Powell, and in-house 

counsel advised them to wait to discuss possible accommodations.

On August 28, 2017, Dr. Arthur informed Sholes by e-mail 

that the program would “provide reasonable accommodations that 

will enable [him] to perform [his] essential work functions” and advised him to meet with Powell to discuss the accommodation process. Sholes testified that he met with Powell but “never really 

asked for any accommodations” or filed any formal accommodation requests but instead told Powell that his condition was “accommodated with medicine.” Powell testified that he did not recall 

Sholes requesting an accommodation. After Powell requested a list

of essential functions of a resident anesthesiologist, Dr. Arthur 

compiled a list including daily responsibilities such as arriving at the 

hospital no later than 6:30 a.m. each day and continuous on-site 

duty and in-house call up to 24 hours.

On September 1, 2017, Sholes returned from medical leave.

According to the department, Sholes still was required to successfully complete the remediation plan upon his return, and Sholes 

was not permitted to work certain rotations or night call. Over the 

next three months, Dr. Arthur received reports that Sholes was late 

or out sick at least 16 times, often waiting until several hours after 

his shift to notify anyone. Due to his unreliability, the department 

had a contingency plan for when Sholes was scheduled to work. 

Sholes’s evaluations after he returned stated, among other things, 

that he needed “to be more prepared and on time for his cases [and 

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that] he does not demonstrate readiness to progress,” was “missing 

the basic concepts of anesthesia,” and “has not shown the ability to 

think critically on his own.”

In December 2017, Dr. McCall initially certified that Sholes 

should be able to perform the list of essential functions of a resident 

anesthesiologist, but he rescinded that assessment after receiving a

summary evaluation report of Sholes’s performance since his return from medical leave. The report recorded Sholes’s performance issues, listing the 16 dates on which he was reported late or 

called out sick in the previous three months, and included evaluations from supervising doctors. Except for evaluations by Dr. Maria Bauer and Dr. Travis Hamilton, the evaluations reported that 

Sholes continued to be late to work, needed to improve his skills

and knowledge, and was unreliable and uncommunicative. Several 

evaluations stated that Sholes left to take a nap and did not wake 

up on time. Even positive evaluations from Dr. Bauer noted that 

Sholes had been late before and still “needs the help and attention 

most of our [first year residents] no longer need.” Another doctor

remarked that although other residents had some success with 

Sholes, he found Sholes sleeping in a call room for two and a half 

hours during a case, and he could not say that Sholes “is capable of 

improving enough to become a safe anesthesiologist. I hope that 

doesn’t sound too harsh, but I feel it is the truth.” The report concluded that Sholes was “[u]nable to consistently show up on time 

for lectures, grand rounds and the operating room”; “[c]annot be 

relied on to manage an [operating room] by himself (Room not set 

up and ready on a consistent basis)”; “[t]akes long breaks for naps”; 

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and “[c]annot be relied on to take call.” Dr. McCall explained to 

Dr. Arthur that his initial assessment about Sholes’s capabilities

“was lacking pertinent disclosure by Dr. Sholes of how he was performing his daily duties.” Dr. Arthur testified that if Dr. McCall had 

concluded that additional changes to Sholes’s medication could 

have caused Sholes to be timely and vigilant in caring for his patients, she would have considered allowing more time for medication adjustments.

On January 24, 2018, after a meeting with Sholes and his 

mentor, Dr. Hamilton, Dr. Arthur stated in an e-mail to Powell 

that she advised Sholes that “it was in his best interest to reconsider 

a career in anesthesia” and that he had been reassigned to the preoperative clinic. She also stated that Sholes “was very receptive and 

we reassured him we will be available to help him transition to a 

new career path when he makes that decision.”

On February 1, 2018, six members of the Committee voted 

to non-renew Sholes’s contract, and one member abstained.

Dr. Meiler agreed with the recommendation. Dr. Meiler testified 

that his decision was based on the numerous complaints and evaluations about Sholes after he returned from medical leave, including his incomplete patient evaluations, inability to create a comprehensive treatment plan, and errors made when completing patients’ medical records. Dr. Meiler also testified that when he made 

the decision, he was unaware of any resident who had received as 

many complaints regarding his ability to practice anesthesiology.

On February 19, 2018, Sholes was informed that the department 

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would not renew his contract due to his “inability to perform the 

Essential Duties required of a House Officer/Resident. Specifically 

lack of dependability and reliability caused by continued tardiness.”

On February 27, 2018, Dr. Arthur met with Sholes and 

Dr. Hamilton. Sholes testified that he told Dr. Arthur that he 

would be eager to switch to another specialty and that “any program that would consider [him]” would be excellent, and he requested assistance with transferring to internal medicine. Dr. Hamilton attested that Sholes requested assistance with transferring and 

that he later wrote a letter of recommendation for Sholes. Dr. Arthur testified that although she and Sholes had “a couple of interactions” about how to facilitate a transfer, she understood that 

Sholes would continue to work in the preoperative clinic until the 

end of his contract, which would prevent a gap in training, help 

him improve his skills, and allow him to work on obtaining his letters of recommendation. Regarding a former anesthesiology resident who had transferred into the internal medicine program, 

Dr. Arthur testified that the former resident actively pursued the 

transfer by applying and going through the interview process.

Dr. Meiler testified that although the department could make a recommendation and support the transfer process, it was entirely up 

to the other program whether to accept Sholes based on its own 

selection criteria. Sholes testified that when he followed up with 

Drs. Meiler, Arthur, and Moore, he was directed to apply through 

the matching process, and Dr. Moore advised him to meet with the 

student director of the internal medicine program. 

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In April 2018, Dr. Arthur e-mailed the medical college office 

that Sholes failed to show up to work for two weeks. After she 

reached out to his family, Sholes explained that he thought he had 

been fired but later admitted that the letter stated that his last day

of employment was June 30, 2018. Dr. Arthur e-mailed the office 

and stated that Sholes had returned to the preoperative clinic and 

that the “understanding is that, if he is able to do well in the next 2 

months, both Dr[.] Hamilton and I would give him a letter of recommendation reflecting his performance in the preoperative 

clinic.” But a week later, Dr. Arthur sent another e-mail explaining 

that Sholes failed to show up to work two additional days, no one 

could reach him by phone, and he told her that he had retained 

counsel. Regarding the transfer, Dr. Arthur believed that Sholes 

had “dropped the ball” on starting another program based on the 

“inconsistencies from [him] in showing up in the pre-op clinic” and 

him failing to reach out to another program director after she encouraged him to gather his application materials.

Sholes filed a complaint against the Board, which moved for 

summary judgment. The Board argued that the undisputed facts 

established that Sholes could not perform the essential functions of 

the job and posed a risk to patient safety. The Board argued that it 

did not fail to accommodate Sholes’s disability because the alleged 

transfer request was untimely and unreasonable. Sholes opposed 

the Board’s motion and relied on declarations from Dr. Hamilton 

and Dr. Bauer about his ability to perform the job. 

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The district court granted the Board summary judgment. 

The district court ruled that Sholes could not establish that he was 

an otherwise qualified individual because he could not perform the 

essential functions of the job consistently and dependably. The district court ruled that Sholes could not establish that the only reason 

for the adverse action was his diagnosis because of the pattern of 

negative performance evaluations and reports of patient safety concerns that occurred before and after his diagnosis. The district court

also ruled that Sholes could not prove that the Board failed to reasonably accommodate his disability because regardless of whether 

his transfer request was sufficiently specific, he conceded that he 

did not ask to be transferred until his contract was not renewed, 

and there was no evidence that the department could “automatically” transfer Sholes without effort on his part.

II. STANDARD OF REVIEW

We review the grant of summary judgment de novo, drawing 

all factual inferences in the light most favorable to the nonmoving 

party. Johnson v. Bd. of Regents of Univ. of Ga., 263 F.3d 1234, 1242–

43 (11th Cir. 2001). Summary judgment is appropriate when “there 

is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

III. DISCUSSION

The Rehabilitation Act prohibits discrimination on the basis

of disability by recipients of federal financial assistance. 29 U.S.C. 

§ 724; see Garrett v. Univ. of Ala. at Birmingham Bd. of Trs., 507 F.3d 

1306, 1310 (11th Cir. 2007). Because of its textual similarities with 

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Title II of the Americans with Disabilities Act, “the same standards 

govern claims under both, and we rely on cases construing Title II 

and section 504 interchangeably.” Ingram v. Kubik, 30 F.4th 1241, 

1256 (11th Cir. 2022) (alteration adopted).

To succeed on his claim, Sholes had to establish “(1) that he 

is a qualified individual with a disability; (2) that he was either excluded from participation in or denied the benefits of a public entity’s services, programs, or activities, or was otherwise discriminated against by the public entity; and (3) that the exclusion, denial 

of benefit, or discrimination was by reason of his disability.” Id. at 

1256–57 (alteration adopted). To be “otherwise qualified,” Sholes 

must “show either that he can perform the essential functions of 

his job without accommodation, or, failing that, show that he can 

perform the essential functions of his job with a reasonable accommodation.” Davis v. Fla. Power & Light Co., 205 F.3d 1301, 1305 (11th 

Cir. 2000). “‘Essential functions’ are the fundamental job duties of 

a position that an individual with a disability is actually required to 

perform.” Earl v. Mervyns, Inc., 207 F.3d 1361, 1365 (11th Cir. 2000). 

“[C]onsideration shall be given to the employer’s judgment as to 

what functions of a job are essential . . . .” 42 U.S.C. § 12111(8); 

Holly v. Clairson Indus., L.L.C., 492 F.3d 1247, 1257 (11th Cir. 2007). 

The district court did not err in ruling that Sholes failed to 

establish that he was “otherwise qualified.” The evidence established that Sholes could not perform the essential functions of a 

resident anesthesiologist. After returning from medical leave and 

receiving several warnings about the importance of being on time 

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to procedures and lectures, supervising doctors documented that 

he was late or a no-show, often without any advance notice or arranging for coverage, 16 times in less than three months. Supervising doctors documented their frustrations and “disappoint[ment]” 

with Sholes for frequently showing up late, taking unauthorized 

breaks, and sleeping for several hours during the day when the supervising physician was counting on him to work on his case. Supervising doctors recorded their concerns about patient safety and 

whether Sholes could be trusted. And other supervising doctors, 

including the chief resident, reported that they would not be able 

to rely on him and “will always need a backup plan” when Sholes 

was on the schedule.

Sholes contends that other residents had performance issues

too, but Dr. Meiler testified—and Sholes does not dispute—that he

received more complaints than any other resident. Sholes asserts

that he was unfairly scrutinized. But his remediation plan, which 

was implemented before his diagnosis and lasted 90 days, specifically required faculty members to complete daily evaluations and 

to closely supervise him both to ensure patient safety and to allow 

the Committee to determine whether to non-renew his contract 

based on his performance, not his diagnosis. 

Sholes also argues that the declarations by Dr. Bauer and 

Dr. Hamilton establish a genuine issue whether Sholes was qualified. But both doctors conceded that Sholes had issues with tardiness, and Sholes does not dispute that timeliness is an essential 

function of the job of a resident anesthesiologist. Moreover, 

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Dr. Hamilton did not state that Sholes was qualified to be an anesthesiologist but instead that he believed Sholes was qualified to be 

a “resident in internal medicine” because that specialty would “be 

a better fit for him given the restrictions placed on him due to his 

narcolepsy.” And although Dr. Bauer stated that Sholes was as 

qualified as any other resident anesthesiologist and that, despite not 

being his treating physician, she “believe[d] he could have performed better with accommodations,” her declaration fails to provide any evidence based on personal knowledge that Sholes could 

have performed his job duties. In the light of the evidence of 

Sholes’s serious performance deficiencies that were recorded by 

over a dozen doctors and began during his first month of residency, 

more than nine months before his diagnosis, these two declarations 

fail to create a genuine dispute about whether Sholes could perform the essential functions of the job. 

Insofar as Sholes argues that the discussions held during his 

medical leave about the potential legal risks of his diagnosis constitute direct evidence that he was unlawfully discriminated against, 

we disagree. To establish that he was discriminated against in violation of the Rehabilitation Act, he must prove that the discrimination occurred “solely by reason of [] his disability.” 29 U.S.C. 

§ 794(a); see Ellis v. England, 432 F.3d 1321, 1326 (11th Cir. 2005) (“It 

is not enough for a plaintiff to demonstrate that an adverse employment action was based partly on his disability.” (emphasis added)).

Sholes was warned in March 2017, before he was diagnosed, that 

“another serious complaint” by a department member or patient 

“shall constitute possible grounds for dismissal” and that 

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insufficient improvement at the end of the remediation period

would result in formal disciplinary action, including non-renewal 

of his contract. After more than three months of leave to regulate 

his medications and after he insisted that he was ready to return to 

work without any accommodation besides medication, his performance issues did not abate. The evidence establishes that the decision to not renew Sholes’s contract was not based solely on his diagnosis.

Next, Sholes argues that the Board failed to accommodate 

him by facilitating his transfer into another specialty. He argues 

that the district court erred in ruling that his request was untimely

because he remained in the program for several months after the 

decision was made, and he insists that he did everything he was 

required to do to obligate the Board to transfer him. 

We disagree. “An employer unlawfully discriminates against 

a qualified individual with a disability when the employer fails to 

provide ‘reasonable accommodations’ for the disability—unless 

doing so would impose undue hardship on the employer.” Lucasv. 

W.W. Grainger, Inc., 257 F.3d 1249, 1255 (11th Cir. 2001). But the

“burden of identifying an accommodation that would allow a qualified employee to perform the essential functions of h[is] job rests 

with that employee, as does the ultimate burden of persuasion with 

respect to showing that such accommodation is reasonable.” Earl, 

207 F.3d at 1367.

The district court correctly ruled that the department did 

not fail to accommodate Sholes with a transfer. The undisputed 

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evidence establishes that although Dr. Arthur offered him support

with the transfer process, neither she nor anyone else promised 

him that the department would or could obtain a transfer for him. 

Moreover, Sholes failed to present any evidence from which a reasonable jury could find that it was feasible for the department to 

unilaterally transfer him with only a phone call and without him 

submitting the necessary application materials, interviewing, and 

being accepted based on the requirements of the other program.

See id. Sholes failed to identify any instance in which the department transferred a resident to a different specialty without that resident taking responsibility for compiling his application materials 

and meeting the selection criteria of the other program. Although 

Sholes argues that the district court failed to consider other potential accommodations, such as additional leave to adjust his medications or daytime naps, these requests either were not made or were 

unreasonable. Dr. Arthur testified that she would have considered 

additional leave for medication adjustments if Dr. McCall believed 

it would make a difference, but neither he nor Sholes requested 

more leave. And even if Sholes specifically requested an accommodation for daytime naps, Dr. Arthur testified that naps would not 

have been possible to accommodate because of Sholes’s well-documented “inability to [] wake up when he took a nap” and to be 

alert when things “change on a dime.”

IV. CONCLUSION

We AFFIRM the summary judgment in favor of the Board.

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