Martin Jakubowski v. THE CHRIST HOSPITAL , INC ., and PHILIP DILLER

1Asperger’s Disorder is characterized by “severe and sustained impairment in social interaction
. . . and the development of restricted, repetitive patterns of behavior, interests, and activities.” AMERICAN
PSYCHIATRIC A SSOCIATION , D IAGNOSTIC AND STATISTICAL M ANUAL OF M ENTAL D ISORDERS 80 (4th ed.
2000). “The disturbance must cause clinically significant impairment in social, occupational, or other
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 10a0369p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
M ARTIN J AKUBOWSKI,
Plaintiff-Appellant,
v.
THE CHRIST HOSPITAL , I NC ., and PHILIP
DILLER ,
Defendants-Appellees.
X---->
,--
N
No. 09-4097
Appeal from the United States District Court
for the Southern District of Ohio at Cincinnati.
No. 08-00141—S. Arthur Spiegel, District Judge.
Argued: October 21, 2010
Decided and Filed: December 8, 2010
Before: MARTIN, COLE, and CLAY, Circuit Judges.
_________________
COUNSEL
ARGUED: Richard C. Haber, HABER POLK LLP, Cleveland, Ohio, for Appellant.
Michael A. Roberts, GRAYDON HEAD & RITCHEY LLP, Cincinnati, Ohio, for
Appellees. ON BRIEF: Richard C. Haber, HABER POLK LLP, Cleveland, Ohio, for
Appellant. Michael A. Roberts, Katherine M. Lasher, GRAYDON HEAD & RITCHEY
LLP, Cincinnati, Ohio, for Appellees.
MARTIN, J., delivered the opinion of the court, in which CLAY, J., joined.
COLE, J. (pp. 13–16), delivered a separate opinion concurring in the judgment.
_________________
OPINION
_________________
BOYCE F. MARTIN, JR., Circuit Judge. Plaintiff-appellant Martin Jakubowski
suffers from Asperger’s Disorder1 and was formerly employed as a family practice
1

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important areas of functioning . . . .” Id. “The impairment in reciprocal social interaction is gross and
sustained. There may be marked impairment in the use of multiple nonverbal behaviors . . . to regulate
social interaction and communication . . . .” Id.
medical resident at The Christ Hospital, Inc. in Cincinnati, Ohio. He filed suit against
Christ Hospital and the director of his program there, Dr. Philip Diller, after he was
terminated from his position. Jakubowski claims that Christ Hospital and Diller
terminated him because of his Asperger’s and failed to reasonably accommodate this
disability, in violation of the Americans with Disabilities Act, 42 U.S.C. § 12112, the
Rehabilitation Act, 29 U.S.C. § 794, and Ohio Revised Code § 4112.02. Christ Hospital
and Diller moved for summary judgment, which the district court granted. Jakubowski
now appeals. We AFFIRM.
I. BACKGROUND
In 2003, Jakubowski graduated from the University of Medical Sciences in
Poznan, Poland. He unsuccessfully attempted to obtain a medical residency in the
United States through the “match” process, by which hospitals and residency prospects
choose each other. However, he obtained a residency position at St. Elizabeth Hospital
in Youngstown, Ohio through the “scramble” process, which allows applicants who were
unsuccessful in the match process to find remaining residency positions. In July 2005,
he began his residency, but struggled and did not perform well. He was placed in a
remediation program in October to improve his areas of weakness, but at the end of his
first year, he was informed that St. Elizabeth would not renew his contract for a second
year.
Recognizing that his clinical and patient skills were weak compared to graduates
of American medical schools, Jakubowski enrolled at the New York Medical College
for a year-long program of supervised clinical training. There, he received mixed
reviews, with the negative evaluations focused on his lack of communication skills.
After this program, Jakubowski looked for a second residency. He again
participated in the match process with no success, but found a residency through the
scramble process at Christ Hospital in Cincinnati. He began his residency there in July

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No. 09-4097 Jakubowski v. The Christ Hospital, et al. Page 3
2007. During an initial month-long orientation, he again received mixed reviews. While
he placed in the ninetieth percentile nationally on a medical knowledge exam, he
performed poorly on an emotional intelligence exam, and supervising physicians noted
his weak communication skills with patients. Supervisors identified self-awareness,
social competence, and relationship management as areas of deficiency for Jakubowski.
Additionally, an attending physician, Dr. Jeffrey Morgeson, observed that when working
with patients, Jakubowski had poor organizational skills, skipped standard procedures
in his examinations, and performed procedures incorrectly.
At the conclusion of orientation, Diller suspected that Jakubowski suffered from
a cognitive disorder. Diller referred him to Dr. Linda Hartmann for a psychological
evaluation, and specifically to determine if he had Asperger’s. Diller did not make his
suspicions known to other attending physicians at Christ Hospital.
During Jakubowski’s first night on call after orientation, he was unable to keep
up the necessary pace in seeing patients. His supervising physician had to relieve him,
and noted that Jakubowski could not properly relay instructions between healthcare
professionals. During the first week of August, one attending physician, Dr. Ellis,
criticized his performance and recommended that he be placed on remediation. He noted
that Jakubowski had an average to below average medical knowledge, had difficulty
exploring possible diagnoses, did not communicate with the nurses well, and had
difficulty answering, and communicating on, the phone. Another attending physician,
Dr. Bernheisel, remarked that Jakubowski could not be trusted and had given dangerous
orders that would have harmed patients if not caught by other physicians. In another
instance, Jakubowski wrote an unclear order for medication for a patient that, if
interpreted and administered literally, would have killed the patient. Jakubowski never
actually harmed a patient during his residency.
On August 8, Hartmann sent a letter to Diller explaining that she suspected that
Jakubowski had Asperger’s, but she could not be sure without speaking to Jakubowski’s
family about his past.

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On August 24, Bernheisel informed Jakubowski that he had failed his inpatient
rotation and he would have to repeat it.
On August 25, Hartmann formally diagnosed Jakubowski and informed him that
he had Asperger’s. That same day, Jakubowski received a letter from Diller informing
him that he would be terminated from his residency on September 30. At that time,
Diller had not yet received Hartmann’s letter explaining her potential diagnosis because
it had been lost in office mail. Jakubowski met with Diller, Bernheisel, and another
attending physician, Dr. Jeffrey Schlaudecker, that same day and informed them that he
had been diagnosed with Asperger’s.
On September 11, Jakubowski’s attorney sent a letter to Christ Hospital
proposing that it accommodate Jakubowski’s disability with “knowledge and
understanding.” The letter explained that Jakubowski could successfully continue his
residency if the other physicians and nurses were made aware of his condition and the
symptoms and triggers of Asperger’s. Jakubowski conceded he would have to improve
his communication skills with patients, but insisted that he could do this alone. The
parties then met to discuss the proposed accommodation, at which time Diller informed
Jakubowski that Christ Hospital did not have sufficient resources to comply with the
proposal. However, Diller offered to assist Jakubowski in finding a residency in
pathology, a field that requires little or no patient interaction.
Jakubowski appealed his termination to the graduate medical education
committee at Christ Hospital. On December 18, the committee affirmed his termination.
Lynda Geller, Ph.D. presented expert testimony during discovery that there are
many ways Christ Hospital could have accommodated Jakubowski’s Asperger’s. She
also presented evidence of a remediation program that Christ Hospital had previously
offered a struggling resident. The previous resident had difficulty following instructions
from other physicians for treatment, adjusting treatment plans as new information was
obtained, applying medical knowledge to clinical interactions with patients, and making
timely diagnoses. As part of his remediation program, Christ Hospital paused his
rotation for four months, assigned an attending physician to monitor him while he saw

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patients three mornings a week, assigned a medical faculty member to monitor him one
morning a week, assigned Bernheisel to work with him and fifteen patients a month,
gave him a full day every week to study, and assigned him a personal mentor to improve
his medical knowledge. If the resident did not improve in the initial four months, he
would be able to continue the remediation for an additional four months. Geller opined
that this resident’s shortcomings were similar to Jakubowski’s, and that Christ Hospital
could have offered a similar remediation program to Jakubowski. Geller testified that
her recommendations had nothing to do with patient safety. She did not purport to have
any expertise in patient safety, and had no opinion regarding how Jakubowski’s
Asperger’s would affect patient safety. Geller’s testimony and observations regarding
the previous resident were not available when Jakubowski and Diller met to discuss
accommodations as she was an expert witness obtained later for litigation purposes.
Jakubowski did not propose a remediation program as part of his proposed
accommodation at the meeting with Diller.
Jakubowski described his condition during discovery, saying that he has trouble
communicating his thoughts to people and processing what people communicate to him.
He also said he could have trouble gathering data.
A medical expert, Dr. Jeffery Chaudhari, who had previously worked with
Jakubowski in New York, testified during discovery for Christ Hospital. He opined that
being a physician requires excellent skills in relating to patients and co-workers. He also
rated Jakubowski’s performance as “sub-par,” and remembered that Jakubowski had
difficulty relating to colleagues and gathering information from a patient and integrating
it. Another medical expert who had experience with Jakubowski at St. Elizabeth, Dr.
Rudolph Krafft, also testified during discovery for Christ Hospital. He stated that
“getting information from patients accurately” is “very important” for a physician, and
that a physician would be “unqualified” if he had “no ability” to pick up on the subtleties
of human interaction.
Two other physicians at Christ Hospital, Drs. Vasyl and Martin, evaluated
Jakubowski with the following descriptions: “clueless, reports data incorrectly, not
trusted, has no concept of his patients, leaves out outpatient information, says yes to

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things but has not done [them], lack of insight, lack of organization, unable to
communicate, lack of attention,” and “presents untruth [sic].”
Dr. Donald Swikert, director of the Family Medicine Residency Program at St.
Elizabeth, worked with Jakubowski there and also testified during discovery for Christ
Hospital. He recalled that Jakubowski exhibited deficiencies that put patients in danger.
He also opined that the accommodations recommended by Geller would be unreasonable
for the following reasons: (1) “[Christ Hospital] would be responsible for freeing up
significant time from educational and patient care training for an indefinite period of
time and for an indefinite frequency;” (2) “these recommendations would require
significant patient care coverage issues by faculty and residents;” (3) “the
recommendations would have a significant adverse impact on the Program, particularly
the training of other residents because they would be pulled from their usual
responsibilities and educational opportunities;” (4) “the Program would have to free-up
significant physician time so as to effectively work with Martin Jakubowski;”
(5) “patients would have to be actively recruited who would be willing to participate in
such a remediation program;” and (6) “sixty observed patient evaluations and the
subsequent analysis, review and work with Martin Jakubowski to address the broad
scope of deficiencies would take, at a minimum, months to accomplish and would
significantly impact the resources available for the training of other residents in the
Program.” Furthermore, Swikert added “that the accommodations proposed by Lynda
Geller, Ph.D. and Martin Jakubowski do not consider the significant patient care and
patient safety concerns.”
II. STANDARD OF REVIEW
“The Sixth Circuit reviews de novo a district court’s grant of summary
judgment.” Hamilton v. Starcom Mediavest Group, Inc., 522 F.3d 623, 627 (6th Cir.
2008). “Summary judgment is proper where no genuine issue of material fact exists and
the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). The
party seeking summary judgment bears the initial burden of showing the absence of a
genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). After
the moving party has met its burden, the burden shifts to the nonmoving party, who must

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present some “specific facts showing that there is a genuine issue for trial.” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When considering a motion for
summary judgment, the district court must view the evidence in the light most favorable
to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 587 (1986).
III. DISCUSSION
Jakubowski claims that the district court improperly granted summary judgment
in favor of Christ Hospital. Specifically, he argues that the district court erred by:
(1) concluding that he was not an “otherwise qualified” individual pursuant to the
Disabilities Act, the Rehabilitation Act, and Ohio’s discrimination laws;
(2) impermissibly weighing evidence and deciding that the proposed accommodations
were not reasonable; (3) finding that no genuine issue of material fact existed as to
whether Christ Hospital engaged in a good faith interactive process to accommodate his
disability; (4) failing to afford reasonable inferences in his favor and incorrectly
concluding that Christ Hospital satisfied its burden of proof regarding the “direct threat”
defense; and (5) concluding that the proposed accommodations created an undue
hardship. In response, Christ Hospital claims that: (1) no reasonable accommodation
existed; (2) Jakubowski’s proposed accommodations posed an undue hardship for Christ
Hospital and a direct threat to Jakubowski’s patients; (3) Christ Hospital engaged in the
interactive accommodation process in good faith with Jakubowski; (4) Christ Hospital’s
decision to terminate Jakubowski was based on his poor performance and patient safety;
and (5) Jakubowski’s concealment of his past, failed residencies at other hospitals was
reason enough for him to be terminated.
A. The Americans with Disabilities Act
As an initial matter, analysis of claims made pursuant to the Americans with
Disabilities Act applies to claims made pursuant to Ohio Revised Code § 4112.02 and
the Rehabilitation Act. Kleiber v. Honda of Am. Mfg., Inc., 485 F.3d 862, 872 (6th Cir.
2007) (citation omitted) (applying Americans with Disabilities Act analysis to claims
made pursuant to Ohio Revised Code § 4112.02); Doe v. Woodford Cnty. Bd. of Educ.,

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213 F.3d 921, 925 (6th Cir. 2000) (the Sixth Circuit discusses claims under the American
with Disabilities Act and the Rehabilitation Act concurrently “because the purpose,
scope, and governing standards of the ‘acts are largely the same, cases construing one
statute are instructive in construing the other’” (quoting McPherson v. Michigan High
School Athletic Ass’n, Inc., 119 F.3d 453, 460 (6th Cir. 1997))). Therefore, the
following discussion of the Americans with Disabilities Act applies to all of
Jakubowski’s claims.
Pursuant to section 12112(a) of the Act, an employer may not discriminatorily
terminate an otherwise qualified individual on the basis of his disability. One form of
discrimination occurs when an employer fails to make “reasonable accommodations” to
an employee’s known disability, unless those accommodations would cause “undue
hardship” to the employer. 42 U.S.C. § 12112(b)(5)(A) (2006). “To recover on a claim
of discrimination under the Act, a plaintiff must show that: 1) he is an individual with
a disability; 2) he is ‘otherwise qualified’ to perform the job requirements, with or
without reasonable accommodation; and 3) he was discharged solely by reason of his
handicap.” Monette v. Elec. Data Sys. Corp., 90 F.3d 1173, 1178 (6th Cir. 1996).
The district court found that Jakubowski’s Asperger’s was a disability for
purposes of the Act. This conclusion is not disputed by Christ Hospital. Therefore, the
issues on appeal concern whether Jakubowski was an otherwise qualified individual for
purposes of the Act, which, in turn, depends on the interactive accommodation process
between him and Christ Hospital.
B. Reasonable Accommodations and Otherwise Qualified Individuals
Jakubowski claims the district court erred by concluding that he was not an
“otherwise qualified” individual. “The term ‘qualified individual’ means an individual
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)
(2008). Essential functions are “fundamental job duties of the employment position the
individual with a disability holds.” 29 C.F.R. § 1630.2(n)(1) (2010). “[C]onsideration

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shall be given to the employer’s judgment as to what functions of a job are essential
. . . .” Id.
Christ Hospital identified communicating with professional colleagues and
patients in ways that ensure patient safety as an essential function that Jakubowski must
be able to perform. Based on the uncontroverted evidence in the record, it appears that
many healthcare professionals work together to care for a single patient. The ultimate
success of that care requires the patient, physicians, nurses, and technicians to
communicate clearly with each other, or else, patients could be harmed or even die.
Furthermore, as the employer, Christ Hospital’s identification of these functions as
essential should be given some consideration. See 42 U.S.C. § 12111(8). Accordingly,
we agree that there is no dispute that these functions are essential to the work of a family
practice physician residency training program. Because Jakubowski admittedly had
difficulty performing these functions, some kind of accommodations would be necessary
for him to continue his work. See id. § 12112(b)(5)(A). Thus, whether Jakubowski was
a qualified individual depends on whether he proposed a reasonable accommodation to
account for his disability.
C. Jakubowski’s Proposed Accommodations and the Essential Functions of His
Position
If a disabled employee requires an accommodation, the employee is saddled with
the burden of proposing an accommodation and proving that it is reasonable. Monette,
90 F.3d at 1183. Furthermore, the plaintiff has the burden of proving that he will be
“capable of performing the essential functions of the job with the proposed
accommodation.” Id. at 1184. Reasonable accommodations may include
making existing facilities used by employees readily accessible to and
usable by individuals with disabilities, 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. § 12111(9).

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The accommodations that Jakubowski proposed were for “knowledge and
understanding” of the hospital physicians and staff. He argued that he would be capable
of communicating with them effectively if they knew of his condition and its symptoms
and triggers. However, he did not address how this accommodation would improve his
communication and interaction with patients, which are parts of the essential function
of a family practice resident. Instead, he explained that he would work individually to
improve his clinical skills with patients without going into detail as to how he would
accomplish this feat. A physician must be able to talk to patients, discern their ailments,
and describe treatments to them. Jakubowski’s performance evaluations often rated his
abilities to communicate with patients and gather information from them as deficient.
Because the accommodations—that Jakubowski had the burden to propose—do not
address a key obstacle preventing him from performing a necessary function of a
medical resident, he has not met his burden under the Act of proving he is an otherwise
qualified individual for the position. See Monette, 90 F.3d at 1184.
D. The Interactive Accommodation Process
“To determine the appropriate reasonable accommodation it may be necessary
for the [employer] to initiate an informal, interactive process with the [employee].”
29 C.F.R. § 1630.2(o)(3) (2010). “This process should identify the precise limitations
resulting from the disability and potential reasonable accommodations that could
overcome those limitations.” Id. Both parties must participate in this process and do so
in good faith. Kleiber, 485 F.3d at 871. Parties should not obstruct the process, or
refuse to participate. Id. An employee has the burden of proposing an initial
accommodation, and the employer has the burden of showing how the accommodation
would cause an undue hardship, but the employer is not required to propose a counter
accommodation in order to participate in the interactive process in good faith. See, e.g.,
Talley v. Family Dollar Stores of Ohio, Inc., 542 F.3d 1099, 1108, 1110 (6th Cir. 2008)
(discussing the interactive process but not requiring that the employer make a counter
proposal after rejecting the employee’s proposed accommodations). Of course, taking
the extra step of proposing counter accommodations may be additional evidence of good
faith. See Kleiber, 485 F.3d at 872 (noting that the employer’s visits to the

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manufacturing line to try to identify appropriate jobs for the employee was evidence of
participating in the interactive process in good faith). If an employer takes that step and
offers a reasonable counter accommodation, the employee cannot demand a different
accommodation. Hedrick v. W. Reserve Care Sys., 355 F.3d 444, 457 (6th Cir. 2004).
An employer has sufficiently acted in good faith when it readily meets with the
employee, discusses any reasonable accommodations, and suggests other possible
positions for the plaintiff. See Nance v. Goodyear Tire & Rubber Co., 527 F.3d 539, 557
(6th Cir. 2008).
Jakubowski contends that Christ Hospital did not act in good faith because it did
not offer him a remediation program similar to the one offered to the previous, unnamed
resident who exhibited similar deficiencies. Importantly, Jakubowski did not request a
remediation program at the accommodation meeting with Christ Hospital. Only as part
of this litigation did he contend that Christ Hospital should have volunteered this option.
Christ Hospital, through Diller, met with Jakubowski to discuss his proposed
accommodations, and told him that the hospital lacked sufficient resources to comply.
Diller also offered to help him find a pathology residency because it would involve less
patient contact, thus, accommodating what Diller saw as one of Jakubowski’s
weaknesses. Because Christ Hospital met with Jakubowski, considered his proposed
accommodations, informed him why they were unreasonable, offered assistance in
finding a new pathology residency, and never hindered the process along the way, we
agree that there is no dispute that Christ Hospital participated in the interactive
accommodation process in good faith.
IV. CONCLUSION
Jakubowski’s Asperger’s causes symptoms that are, in the very least, less than
ideal for the successful practice of medicine. Because of his disorder, he has extreme
difficulty communicating with colleagues and patients. This difficulty has led to
dangerous possibilities in the past, and multiple physicians that have worked with him
professionally have noted his shortcomings. Although he proposed accommodations to
help him overcome his disability, they did not address every essential function that a

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resident must be able to perform. Additionally, it appears that Christ Hospital acted in
good faith throughout the interactive accommodation process, thereby fulfilling its duty.
Therefore, we AFFIRM the district court’s grant of summary judgment in favor of
Christ Hospital and Diller.

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______________________________________
CONCURRING IN THE JUDGMENT
______________________________________
COLE, Circuit Judge, concurring. Though I concur in the majority’s judgment
I write separately because my view of a disability plaintiff’s burden under the Americans
with Disabilities Act (“ADA”) differs from that of my colleagues.
The majority finds that Jakubowski’s claim cannot proceed to trial because he
has not put forth evidence sufficient to show that he is qualified to be a family practice
resident with reasonable accommodation. While I agree with this conclusion, the
majority’s analysis incorrectly finds fault in Jakubowski’s failure to propose to Christ
Hospital an accommodation robust enough to address all of his Asperger’s related
deficiencies at a meeting between Jakubowski, his attorney and Christ Hospital, which
was held prior to his termination, a little less than three weeks after he was diagnosed
with Asperger’s, and before he filed suit. By evaluating and rejecting Jakubowski’s
claim based on his initial accommodation request for knowledge and understanding of
Jakubowski’s disability from his hospital coworkers, rather than the more comprehensive
accommodations Jakubowski set outs through expert testimony in opposition to
summary judgment, the majority holds that an ADA discrimination plaintiff must always
muster a trial-ready accommodation proposal for his employer prior to termination (or
any other adverse employment action) to prove that the employer unlawfully
discriminated against the employee based on his disability.
An employer violates the ADA by “not making reasonable accommodations to
the known physical or mental limitations of an otherwise qualified individual with a
disability who is an applicant or employee.” 42 U.S.C. § 12112(5)(A). We have
interpreted this language to require an ADA plaintiff to make a threshold showing that
he is qualified for the relevant position with reasonable accommodation. See Monette
v. Elec. Data Sys. Corp., 90 F.3d 1173, 1183 (6th Cir. 1996). As the ADA demands that
the employee’s disability be “known” to the employer for liability to attach, a plaintiff
must generally also have informed his employer of his disability and requested an
accommodation prior to the time at which an employer takes adverse action against a

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disabled employee. See Monette, 90 F.3d at 1186 n.13 (requiring a plaintiff to show
“actual or constructive knowledge of the disability as part of a prima facie case”)
(internal quotation marks omitted); Crocker v. Runyon, 207 F.3d 314, 319-20 (6th Cir.
2000) (employer has no obligation to offer accommodation where employee never
requested one) (citing Kaltenberger v. Ohio College of Podiatric Med., 162 F.3d 432,
437 (6th Cir. 1998)).
But we have never squarely held, as the majority does today, that the sufficiency
of an ADA plaintiff’s showing that he is otherwise qualified must be analyzed
exclusively in light of the scope of the accommodation he requested from his employer
prior to his termination from his position, even where more ample evidence that a
plaintiff is otherwise qualified or that a defendant acted with discriminatory intent,
emerges through discovery. The onus to prove—as a matter of law—that an ADA
plaintiff can do the job with the right accommodation is triggered by the filing of a
discrimination lawsuit, not by the prospect of termination. See, e.g., Monette, 90 F.3d
at 1183 (describing a disability plaintiff’s burden to propose a reasonable
accommodation in the context of a discrimination lawsuit). To hold otherwise is counter
to the ADA, which forbids employers from discriminating “against a qualified individual
on the basis of disability.” 42 U.S.C. § 12112(a). The majority’s rule impliedly assumes
that if the plaintiff does not make an affirmative showing to the employer—prior to
termination—that he is a qualified individual with his proposed reasonable
accommodation, then the employer necessarily could not have acted with discriminatory
intent in violation of the ADA when it fired him. Yet the fact that an employee does not
perfectly convey to his employer the precise accommodation that would allow him to do
his job prior to termination does not mean, as a rule, that the employer did not know that
the employee could perform his work with a reasonable accommodation. If an employer
was aware of its own accord that a person was otherwise qualified, a jury could, given
other facts consistent with discrimination, permissibly infer that such an employer had
acted with discriminatory intent in terminating the employee.
Jakubowski’s case is just such an instance where the employer—a teaching
hospital—is likely to be in a better position to know what accommodations to his

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Asperger’s symptoms could make him otherwise qualified, than Jakubowski is. But the
majority’s rule would render whatever inferences of discriminatory intent a jury could
draw from any facts related to Christ Hospital’s knowledge irrelevant because
Jakubowski did not ask Christ Hospital for the right accommodations before he was
fired. Of course, such circumstantial evidence would not relieve the plaintiff of his
burden to show at trial that he is qualified for the position with reasonable
accommodation—whatever that proves to be—but nothing in the ADA or our prior
holdings shackles a plaintiff to his initial, pre-termination proposed accommodation as
he attempts to clear this significant evidentiary hurdle.
More pointedly, ADA regulations anticipate that an employee may not be in the
position to know what a reasonable accommodation to his condition is; they require that
the employee and the employer engage in an interactive process with the end of jointly
determining what accommodations are possible and adequate. See Kleiber, 485 F.3d at
871 (quoting 29 C.F.R. § 1630.2(o)(3)). The majority holding would undermine the
force of this mandatory interactive process by incentivizing employers to withhold
potential accommodations in the hopes that the employee will be held to his initial and
legally inadequate accommodation in subsequent litigation.
Setting these points of law aside, however, I agree with the majority’s conclusion
that Jakubowski has failed ultimately to show that he is otherwise qualified. In
opposition to summary judgment, Jakubowski attempted to meet that burden by
submitting evidence of Asperger’s accommodations beyond the “knowledge and
understanding” which he initially proposed to Christ Hospital prior to his termination.
Nonetheless, Jakubowski’s claim fails because even with those additional
accommodations (which do address all the essential job functions that a family practice
medical resident must perform) he has not shown that he was otherwise qualified to be
a family practice resident. The fatal flaw is Jakubowski’s expert testimony. Though the
expert report proposes accommodations that might remedy the performance problems
that Christ Hospital cited in its termination of Jakubowski, nothing in the report—or
elsewhere in the record—provides a reasonable jury with a basis to conclude that these
accommodations would actually succeed in remedying Jakubowski’s Asperger’s-related

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job deficiencies. Because the evidence of the proposed accommodations’ likelihood of
success is too attenuated for a jury to find in Jakubowski’s favor, summary judgment for
Christ Hospital is appropriate.

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