In the

United States Court of Appeals

For the Seventh Circuit

No. 98-4183

STEPHEN P. LENKER,

Plaintiff-Appellant,

v.

METHODIST HOSPITAL,

Defendant-Appellee.

Appeal from the United States District Court

for the Northern District of Indiana, Hammond Division.

No. 95 C 377--Theresa L. Springmann, Magistrate Judge. 

Argued September 23, 1999--Decided April 26, 2000

 Before POSNER, Chief Judge, MANION and ROVNER,

Circuit Judges.

 ROVNER, Circuit Judge. Stephen Lenker sued his

employer, Methodist Hospital, under the Americans

With Disabilities Act, for failing to accommodate

him. Lenker, a nurse, suffered from multiple

sclerosis ("MS"). After his doctor issued a

lifting restriction for him, the hospital removed

him from his job as a nurse because the hospital

considered lifting to be an essential part of the

job that could not be reasonably accommodated. A

jury found in favor of the hospital and Lenker

appeals. We affirm.

I.

 Lenker was diagnosed with MS while he was still

in nursing school, and Methodist Hospital knew he

had the condition when it hired him. At the time

of his hire, Lenker’s MS was in remission, he had

no restrictions on lifting and he was able to

fully perform all of his nursing duties. One of

Methodist’s job requirements for a staff nurse is

the ability "to manage, with assistance as

appropriate, approximately 200 lbs. weight." A

nurse’s duties include turning patients in bed,

assisting patients to and from the bathroom,

helping patients walk and assisting patients who

unexpectedly fall. Sometimes other staff members

are available to assist a nurse with lifting, and

sometimes because of staffing shortages or
because an emergency arises, a nurse may have to

engage in physically strenuous lifting without

assistance. 

 None of this was a problem for Lenker until he

had been on the job for approximately six months.

At that time, he suffered an MS episode that

resulted in a 10 day hospitalization. When he was

released, his doctor indicated that Lenker should

not engage in any lifting. Methodist’s policy at

the time was to require any employee who was sick

on the job or who missed more than three days of

work to obtain clearance from its Occupational

Health Department before being allowed to return

to work. Additionally, the policy stated that if

the employee was released to work by the

Occupational Health Department with restrictions,

the employee’s manager was to determine whether

the employee could return to work with that

restriction. As a result of the policy, a

physician from the Occupational Health Department

examined Lenker following his hospitalization.

That doctor concurred with the judgment of

Lenker’s personal physician that Lenker should

not engage in lifting. Thus, Lenker’s work

release contained a "no lifting" restriction.

Lenker’s manager subsequently determined that

Lenker could not return to work as a nurse with

that restriction because lifting was a necessary

part of the job. 

 Although the hospital’s policy required twelve

months of service before an employee was eligible

for a leave of absence, Methodist granted Lenker

a leave to give him time to have his lifting

restriction reevaluated and possibly removed. The

hospital also gave Lenker access to its job

posting board, which was not available to nonemployees. Lenker’s manager informed him of his

layoff status and these benefits by telephone,

and the two did not talk again about Lenker’s

employment status. During Lenker’s layoff, his

physical condition worsened, and after a year on

layoff status, the hospital terminated Lenker’s

employment. Lenker sued Methodist, claiming

violation of the Americans With Disabilities Act,

and violation of state defamation law. The

district court granted summary judgment on the

state law defamation claim, and the ADA claim

went to trial before a jury. The jury found in

favor of Methodist Hospital. Lenker appeals.

II.

 Lenker claims the district court erred when it

refused to grant his Rule 50 motion for judgment

as a matter of law, because Methodist failed to

show at trial that it engaged in an interactive

process to accommodate Lenker’s disability.

Lenker also protests the district court’s refusal
to give three of his proposed jury instructions.

The district court declined to give Lenker’s

proposed instruction regarding the interactive

process in which an employer must engage to

determine what accommodations might exist for the

disabled employee, instead giving instructions

proposed by Methodist Hospital on this same

subject. The court also declined to instruct the

jury that Methodist’s "100% healed" policy

violated the ADA, or that the jury could consider

whether Methodist’s stated reason for terminating

Lenker was pretextual. We review the denial of a

motion for judgment as a matter of law de novo,

determining whether the evidence presented and

the reasonable inferences drawn from the evidence

are sufficient to support the verdict when viewed

in a light most favorable to the party against

whom the motion is directed. Emmel v. Coca-Cola

Bottling Co. of Chicago, 95 F.3d 627, 629-30 (7th

Cir. 1996). We review the jury instructions to

determine if, as a whole, they were sufficient to

inform the jury correctly of the applicable law,

reversing only if a particular instruction

misguides the jury to a party’s prejudice. Maltby

v. Winston, 36 F.3d 548, 560 (7th Cir. 1994),

cert. denied, 515 U.S. 1141 (1995).

A.

 Lenker believes he is entitled to judgment as a

matter of law because the hospital engaged in a

directed rather than an interactive process with

him once it learned of his disability. Lenker

contends that Methodist failed to establish that

lifting was an essential element of a nurse’s

job, and that he could not be accommodated. He

protests Methodist’s failure to assess the job of

nurse and his abilities with an eye toward

accommodating him. He maintains that uncontested

evidence supports his view that the hospital

refused to even consider an accommodation.

Following a trial, we are limited in our review

to assessing whether no rational jury could have

found for Methodist. Emmel, 95 F.3d at 630. 

 In determining whether a particular job function

is essential, we are guided by the federal

regulations:

Evidence of whether a particular function is

essential includes, but is not limited to:

(i) The employer’s judgment as to which

functions are essential;

(ii) Written job descriptions prepared before

advertising or interviewing applicants for the

job;

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

(iv) The consequences of not requiring the

incumbent to perform the function;

(v) The terms of a collective bargaining

agreement;

(vi) The work experience of past incumbent in

the job; and/or

(vii) The current work experience of incumbents

in similar jobs.

See 29 C.F.R. sec. 1630.2(n)(3). See also R. 67,

Court’s Instruction No. 16 (detailing these

factors for the jury). The jury heard evidence

that Methodist considered lifting an essential

function of the job, that it was part of the job

description for staff nurses, that at times,

staff shortages or emergencies left a nurse

without assistance in a lifting task, and that

the need for lifting was not always predictable

because patients sometimes fell or needed

assistance unexpectedly. Lenker protests that

lifting comprised at most two percent of a

nurse’s day, that devices were available to

assist in lifting patients, and that all nurses

were allowed to use their judgment to determine

whether they needed assistance in a particular

situation and call for other staff to help. The

jury was free to find, however, that those times

of the work day when lifting was required were

essential to the nurse’s job, that a device to

assist in lifting a patient out of bed would not

help a patient walk down the hall or to the

bathroom, and that at times other staff would not

be available to assist. In short, based on

evidence presented by the hospital, the jury was

certainly entitled to find that lifting was an

essential function of a nurse’s job.

 The remaining question is whether Lenker could

be accommodated, and whether the hospital engaged

in an interactive process with him to determine

appropriate accommodations. The hospital offered

evidence that Lenker could not always be assisted

in carrying out this function because of staff

shortages and emergencies. Thus, not only was the

lifting function essential, but Lenker could not

be accommodated as a nurse. This did not relieve

the hospital of its duty to accommodate Lenker in

other ways if possible./1 Because Lenker could

not be accommodated as a nurse, the hospital made

its internal job postings available to him so

that he could apply for other jobs in the

hospital more suited to his abilities. See

Hendricks-Robinson v. Excel Corp., 154 F.3d 685,

694 (7th Cir. 1998) (reasonable accommodation

includes reassignment to a vacant position for
which the employee is qualified); Dalton v.

Subaru-Isuzu Automotive, Inc., 141 F.3d 667, 677-

78 (7th Cir. 1998) (same). Lenker testified that

he would have taken any job, but the hospital

claimed Lenker refused to take any non-nursing

jobs. For whatever reason, Lenker did not obtain

another permanent position at the hospital.

Whether the hospital tried to reasonably

accommodate Lenker with these steps, and whether

Lenker cooperated in the hospital’s attempts to

accommodate him are classic fact questions for

the jury to resolve. The jury appears to have

resolved the issues in the hospital’s favor. We

will not supplant our view of the evidence for

that of a jury in its verdict. Emmel, 95 F.3d at

630 (quoting Hybert v. Hearst Corp., 900 F.2d

1050, 1054 (7th Cir. 1990)). We therefore affirm

the district court’s denial of Lenker’s motion

for judgment as a matter of law.

B.

 The district court rejected Lenker’s proposed

jury instruction regarding the interactive

process. The controversial part of Lenker’s

instruction states that "if you find the

interactive process was one directed by the

defendant and not truly interactive, then this is

a violation of the ADA on the part of the

defendant." Lenker relied on Excel in support of

this instruction. In Excel, the court found that

an employer’s procedure for accommodation was

directive as opposed to interactive where, in

part, the plant nurse unilaterally determined

that employees could not be accommodated in

certain positions. 154 F.3d at 699. Here, the

court declined the instruction because other

instructions already accurately and fully advised

the jury as to what constitutes an interactive

process: 

With regard to this court’s other instructions

that fully advise the jury as to what constitutes

an interactive review process, the court believes

that the language contained in its instructions

does properly reflect the language in the

statute; that the statute specifically does not

reference in this context a directive process as

opposed to an interactive process as being a

violation forbidden. For that reason, the court

declined to use the plaintiff’s tendered

Instruction 17.

Tr. at 784. Although this explanation is somewhat

cryptic, we believe the court was declining the

instruction because the statute says nothing

about a directed versus an interactive process,

and other instructions adequately addressed the

requirement for an interactive process. 
 Our review of the other instructions reveals

that they did, in fact, adequately address the

interactive process. The remaining instructions

informed the jury of the employer’s duty to

analyze the job involved, determine its purpose

and essential functions, as well as the duty to

consult with the employee to determine the

precise job-related limitations imposed by the

disability and how those limitations could be

overcome with a reasonable accommodation. The

court also instructed the jury that the employer

was obliged to identify, in consultation with the

employee, potential accommodations, and to assess

the effectiveness each would have in enabling the

individual to perform the essential functions of

the position. The jury was also instructed that

the employer was to consider the preference of

the individual to be accommodated and then select

the accommodation most appropriate for both the

employee and the employer. Based on this Court’s

decisions, the court also advised the jury that

making these determinations is a cooperative

process, and both the employer and the employee

must make reasonable, good faith efforts:

Neither party should be able to cause a breakdown

in the process for the purpose of either avoiding

or inflicting liability. A party that obstructs

or delays the interactive process is not acting

in good faith. A party that fails to communicate,

by way of initiation or response, may also be

acting in bad faith.

R. 67, Court’s Instruction No. 22. See Feliberty

v. Kemper Corp., 98 F.3d 274, 280 (7th Cir.

1996); Beck v. University of Wisconsin Bd. of

Regents, 75 F.3d 1130, 1135-36 (7th Cir. 1996).

These instructions are accurate statements of the

law, and the jury was not therefore misled by

them. Lenker’s complaint that the concept of

"good faith" was not adequately addressed is

belied by the language we just quoted. As for

Lenker’s insistence on the "directed process"

language, we have repeatedly held that a party is

not entitled to any particular wording, and the

court adequately addressed the interactive

process concept with its instructions on the need

for a cooperative process. See e.g. Russell v.

National R.R. Passenger Corp., 189 F.3d 590, 594

(7th Cir. 1999). We therefore affirm the district

court’s refusal to give Lenker’s alternate

instruction.

C.

 The district court also declined to give

Lenker’s "100% healed" instruction, which reads,

in relevant part:

Additionally, if you find that the Plaintiff has

proven by a preponderance of the evidence that
the Defendant Hospital has a policy that required

the Plaintiff to be "100% healed" or that he must

be "cured" of his disability before he could

return to work as a nurse, then you shall find

that this is a per se violation of the ADA and

should find for the Plaintiff and against the

Defendant.

R. 66, Plaintiff’s Proposed Jury Instruction No.

37. The district court rejected the instruction

because it was unnecessary in light of other

instructions given and because it did not

accurately reflect the law as it related to the

issues presented in this case. Lenker relies on

Excel in support of this instruction. Excel cited

favorably a district of Minnesota case for the

proposition that a policy that requires an

employee to be 100% healed before returning to

work is a per se violation of the ADA because it

does not allow a case-by-case assessment of an

individual’s ability to perform the essential

functions of the job, with or without

accommodation. See Heise v. Genuine Parts Co.,

900 F. Supp. 1137, 1154 n.10 (D. Minn 1995). 

 Lenker claims there was testimony that Methodist

Hospital had such a policy. He cites statements

from hospital personnel that an employee with a

lifting restriction would not be allowed to

return to work until the restriction was removed

because lifting was an essential function of the

job that could not be accommodated. This is a far

cry from saying that Lenker’s MS must be 100%

healed before being allowed to return to work.

The district court was correct that the "100%

healed" instruction was not an accurate

reflection of the law as applied to the facts of

this case. Instead, Lenker’s real objection to

the hospital’s policy was that it decided,

without consulting Lenker, that lifting was an

essential job function that could not be

reasonably accommodated. Other instructions

addressed this issue, and it was for the jury to

decide whether Methodist was justified in its

blanket assessment that nurses who could not lift

could not be accommodated as nurses. It was also

for the jury to decide whether the hospital

adequately accommodated Lenker in other ways,

such as giving him access to internal job

postings, and placing him on layoff status to

give him time to recover his ability to lift.

D.

 The district court also rejected Lenker’s

proposed instruction on the issue of pretext.

Lenker’s instruction tracked the language of the

McDonnell Douglas case, using a burden shifting

analysis. See McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973). The instruction explained
that Lenker believed the actions taken against

him were the result of unlawful discrimination in

violation of the ADA, but that the hospital had

advanced non-discriminatory reasons for its

actions. Lenker’s instruction explained that if

this non-discriminatory explanation was not the

true reason for the hospital’s actions, then the

explanation was pretextual. If the jury decided

the explanation was pretextual, they were free to

conclude that the real reason for the hospital’s

action was unlawful discrimination. The district

court rejected this instruction because it found

that a McDonnell Douglas burden-shifting analysis

was inappropriate and unnecessary for an ADA case

under our decision in Bultemeyer v. Fort Wayne

Community Schools, 100 F.3d 1281 (7th Cir. 1996).

 In Bultemeyer, we explained that in a disparate

treatment claim under the ADA, the plaintiff

could use either direct proof or rely on the

burden-shifting method defined in McDonnell

Douglas. 100 F.3d at 1283. However, when a

plaintiff brings a claim under the reasonable

accommodation part of the ADA, the burdenshifting method of proof is both unnecessary and

inappropriate. We held in Bultemeyer that if the

plaintiff demonstrated that the employer should

have reasonably accommodated the plaintiff’s

disability and did not, the employer has

discriminated under the ADA and is liable. Id.

See also Weigel v. Target Stores, 122 F.3d 461,

464 (7th Cir. 1997). There is no need at that

point for indirect proof or burden shifting.

Because Lenker’s claim was based on reasonable

accommodation and not disparate treatment, the

district court was correct to reject Lenker’s

proposed pretext instruction.

AFFIRMED.

/1 The hospital also tried to accommodate Lenker by

allowing him to go on layoff status so that he

would have time to possibly regain his ability to

lift if his MS went into remission.