Tipton Sholes v. Board of Regents of the University System of Georgia

[DO NOT PUBLISH]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 L UCK , Cir-
cuit Judges.
PER CURIAM:
Tipton Sholes, M.D., a former resident anesthesiologist, ap-
peals 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 sec-
tion 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794. The dis-
trict 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 with-
out engaging in the application process was untimely and unrea-
sonable. We affirm.
I. BACKGROUND
On July 1, 2016, Sholes began his residency in the Augusta
University Anesthesiology and Perioperative Medicine
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23-11291 Opinion of the Court 3
Department. The anesthesiology program ordinarily requires
three years to complete, and the American Board of Anesthesiol-
ogy and an accreditation council oversee various aspects of the pro-
gram, 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” eval-
uation in the core competency of professionalism, which is re-
ported to the Anesthesiology Board. Residents are required to ar-
rive 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 re-
ceive evaluations from faculty, providers, and senior residents, and
these evaluations are provided to the Clinical Competency Com-
mittee. 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 res-
ident 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 him-
self, using his phone during a case, and failing to have his rooms
and instruments ready before a case, which suggested he was una-
ble to run anesthetic procedures safely at the level of his peers. On
November 22, 2016, after Dr. Arthur continued receiving com-
plaints about Sholes repeatedly arriving late to work and patient
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4 Opinion of the Court 23-11291
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 over-
all 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, pre-
paredness 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 Janu-
ary 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 on-
going complaints. Under the plan, faculty members were to evalu-
ate 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 in-
sufficient improvement at the end of the plan would result in “for-
mal disciplinary action,” including non-renewal of his contract.
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23-11291 Opinion of the Court 5
The plan also required an evaluation of his fitness for duty, but the
physician found no issues. After Sholes’s wife learned about the re-
mediation 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 re-
strictions 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 physi-
cian 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 cer-
tainty whether Sholes would be able to function as an anesthesiol-
ogist during night calls without endangering his patients. The de-
partment 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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6 Opinion of the Court 23-11291
be renewed due to patient safety and liability concerns, the univer-
sity’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 ad-
vised him to meet with Powell to discuss the accommodation pro-
cess. Sholes testified that he met with Powell but “never really
asked for any accommodations” or filed any formal accommoda-
tion requests but instead told Powell that his condition was “ac-
commodated 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 success-
fully 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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23-11291 Opinion of the Court 7
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 re-
turn from medical leave. The report recorded Sholes’s perfor-
mance issues, listing the 16 dates on which he was reported late or
called out sick in the previous three months, and included evalua-
tions from supervising doctors. Except for evaluations by Dr. Ma-
ria 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 con-
cluded 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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8 Opinion of the Court 23-11291
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 per-
forming 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 pa-
tients, she would have considered allowing more time for medica-
tion 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 pre-
operative 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 eval-
uations about Sholes after he returned from medical leave, includ-
ing his incomplete patient evaluations, inability to create a compre-
hensive treatment plan, and errors made when completing pa-
tients’ 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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23-11291 Opinion of the Court 9
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 pro-
gram that would consider [him]” would be excellent, and he re-
quested assistance with transferring to internal medicine. Dr. Ham-
ilton attested that Sholes requested assistance with transferring and
that he later wrote a letter of recommendation for Sholes. Dr. Ar-
thur testified that although she and Sholes had “a couple of inter-
actions” 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 let-
ters of recommendation. Regarding a former anesthesiology resi-
dent 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 rec-
ommendation 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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10 Opinion of the Court 23-11291
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 rec-
ommendation 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 en-
couraged 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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23-11291 Opinion of the Court 11
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 dis-
trict 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 con-
cerns that occurred before and after his diagnosis. The district court
also ruled that Sholes could not prove that the Board failed to rea-
sonably 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 “automati-
cally” 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 en-
titled 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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12 Opinion of the Court 23-11291
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 ex-
cluded from participation in or denied the benefits of a public en-
tity’s services, programs, or activities, or was otherwise discrimi-
nated 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 accom-
modation.” 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 estab-
lished 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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23-11291 Opinion of the Court 13
to procedures and lectures, supervising doctors documented that
he was late or a no-show, often without any advance notice or ar-
ranging for coverage, 16 times in less than three months. Supervis-
ing 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 su-
pervising physician was counting on him to work on his case. Su-
pervising 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, specifi-
cally 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 quali-
fied. But both doctors conceded that Sholes had issues with tardi-
ness, and Sholes does not dispute that timeliness is an essential
function of the job of a resident anesthesiologist. Moreover,
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14 Opinion of the Court 23-11291
Dr. Hamilton did not state that Sholes was qualified to be an anes-
thesiologist 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 per-
formed better with accommodations,” her declaration fails to pro-
vide 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 per-
form 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 consti-
tute direct evidence that he was unlawfully discriminated against,
we disagree. To establish that he was discriminated against in vio-
lation of the Rehabilitation Act, he must prove that the discrimina-
tion 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 employ-
ment 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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23-11291 Opinion of the Court 15
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 perfor-
mance issues did not abate. The evidence establishes that the deci-
sion to not renew Sholes’s contract was not based solely on his di-
agnosis.
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.” Lucas v.
W.W. Grainger, Inc., 257 F.3d 1249, 1255 (11th Cir. 2001). But the
“burden of identifying an accommodation that would allow a qual-
ified 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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16 Opinion of the Court 23-11291
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 rea-
sonable 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 depart-
ment transferred a resident to a different specialty without that res-
ident 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 poten-
tial accommodations, such as additional leave to adjust his medica-
tions 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 accommo-
dation for daytime naps, Dr. Arthur testified that naps would not
have been possible to accommodate because of Sholes’s well-doc-
umented “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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