Lamb v. Qualex Incorporated

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
DAVID G. LAMB, 
Plaintiff-Appellant,
v.

QUALEX, INCORPORATED, a Delaware
corporation, No. 99-1188
Defendant-Appellee.
EQUAL EMPLOYMENT ADVISORY
COUNCIL,
Amicus Curiae.

Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
Richard L. Williams, Senior District Judge.
(CA-98-413)
Argued: January 24, 2000
Decided: April 3, 2002
Before MICHAEL and TRAXLER, Circuit Judges, and
John T. Copenhaver, Jr., United States District Judge
for the Southern District of West Virginia,
sitting by designation.
Affirmed by unpublished opinion. Judge Copenhaver wrote the opin-
ion, in which Judge Michael and Judge Traxler joined.
COUNSEL
COUNSEL: Bradley Phipps Marrs, MEYER, GOERGEN &
MARRS, Richmond, Virginia, for Appellant. Paul Michael Thomp-
2 LAMB v. QUALEX, INC.
son, HUNTON & WILLIAMS, Richmond, Virginia, for Appellee.
ON BRIEF: Robert L. Wise, MEYER, GOERGEN & MARRS,
Richmond, Virginia, for Appellant. Edwin F. Farren, HUNTON &
WILLIAMS, Richmond, Virginia, for Appellee. Ann Elizabeth Ress-
man, Corrie L. Fischel, MCGUINESS, NORRIS & WILLIAMS,
Washington, D.C., for Amicus Curiae.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
COPENHAVER, District Judge:
This is an appeal from an order entered December 16, 1998, by the
United States District Court for the Eastern District of Virginia, grant-
ing summary judgment in favor of appellee, Qualex, Inc., and against
appellant, David G. Lamb, on all four counts of appellant’s complaint,
each of which alleges a violation of the Americans with Disabilities
Act ("ADA"), 42 U.S.C. § 12101 et seq., and from an order entered
by the district court on January 12, 1999, denying appellant’s motion
for reconsideration.
The primary question in this case is whether the appellee violated
the ADA by discharging Lamb, a disabled employee, who requested
that he be allowed to work on a part-time basis. Because Lamb was
unable to perform the essential functions of his job, we hold that he
was not a "qualified individual with a disability" protected by the
ADA. In addition, we find that Lamb did not establish a claim of
retaliatory discharge under the ADA because he failed to show that
the reason articulated by his employer for his discharge was pretext.
We accordingly affirm the district court’s grant of summary judgment
to the employer.
I.
Defendant, Qualex, Inc. ("Qualex"), a subsidiary of Kodak Corpo-
ration, is in the business of leasing film development equipment to
LAMB v. QUALEX, INC. 3
retail drug and discount stores. Qualex’s retailers operate the leased
equipment with their own employees. Qualex provides training, oper-
ation and technical support to its retailers and their employees.
Qualex manages these retail sites through the use of Account Devel-
opment Specialists ("ADS") who are responsible for an assigned geo-
graphic territory. Inasmuch as each ADS is expected to respond to
customer support requests promptly, all ADSs employed by Qualex
are full-time employees.
Qualex hired plaintiff, David Lamb, as an ADS on December 2,
1996. Qualex assigned Lamb a geographic territory comprised of the
state of Virginia, except for the northern suburban area, and a small
portion of West Virginia. Lamb’s territory initially included thirty-
eight retail stores, but within five months rapidly grew to fifty stores.
Because of the increase in the number of stores in Lamb’s territory,
Lamb and his supervisor, Lisa Rice, discussed in early June, 1997, the
possibility of dividing his territory in half and hiring another ADS.
Lamb’s health suffered throughout his employment with Qualex.
As a result, Lamb missed about one-half of his work-time during the
ten month period between his date of hire on December 2, 1996, and
his date of termination on September 26, 1997. In particular, Lamb
missed a few days of work in early January, 1997, to undergo and
recover from a root canal. He was then off work with the flu from
February 4, 1997, to February 10, 1997. Lamb was later hospitalized
from April 2, 1997, to April 6, 1997, for treatment of kidney stones
and renal failure. Lamb remained off work recuperating as a result of
his kidney problems through May 6, 1997, except for a few days
attending Qualex meetings. As discussed more particularly below,
Lamb subsequently took a medical leave of absence beginning on
June 17, 1997, from which he never returned.
Prior to being hired by Qualex, Lamb sought treatment from a
licensed clinical social worker, Marion Brown, for depression. Lamb
had occasional office visits with Brown from August, 1995, to Janu-
ary, 1997, and then regular visits beginning in February, 1997.
According to Brown, Lamb’s mental condition began to deteriorate
after he was released from the hospital on April 6, 1997, due in part
to the side effects of his medication. Lamb resumed his work duties
at Qualex on May 7, 1997.
4 LAMB v. QUALEX, INC.
By the beginning of June, 1997, Lamb reported to Brown that he
felt extremely fatigued and he reported other symptoms typical of the
onset of an episode of major depression. Although Lamb indicated to
Brown that he was pressing on, fully performing his job, and trying
to overcome his difficulties, Brown advised Lamb to seek a medical
disability leave from his job with Qualex. Lamb initially refused
Brown’s advice on the subject. However, during the month of June,
1997, Lamb’s symptoms of depression worsened. On June 17, 1997,
during an office visit with Brown, Lamb reported suicidal ideations.
At Brown’s urging, Lamb agreed to seek a medical leave of absence
from work in order to undergo intensive therapy for his depression
and allow his body to adjust to his prescription medication.
Lamb met with Sheryl Johnson, Human Resources Officer for
Qualex, on the afternoon of June 17, 1997, to discuss his desire to
apply for medical leave. During that meeting, Johnson told Lamb that
he was eligible for a medical leave of absence under Qualex’s short-
term disability plan. Johnson asked Lamb to provide a statement from
his physician to support his request. Lamb promptly provided Johnson
with a written request for a medical leave of absence along with a cer-
tificate from his physician regarding the necessity for his taking such
leave. In Lamb’s request for leave, he stated that the expected dura-
tion of his leave would be 60 to 90 days, depending on his improve-
ment. Lamb also provided a letter from his primary care physician,
Philip Rizk, M.D, which stated that Lamb was "medically disabled
from any type of gainful employment," and that the duration of his
disability was "unknown but expected to last on the order of 60-90
days." In response to this letter, Qualex placed Lamb on short-term
disability leave effective June 17, 1997. At that time, Qualex
informed Lamb that it could not guarantee his position would be held
open while he was on leave and that Lamb could not return to work
without first providing Qualex with a medical release.
During his leave, Lamb communicated with Brown regarding his
progress and recovery. Brown, in turn, communicated with Johnson
on Lamb’s behalf. During the month of July, 1997, Brown spoke with
Johnson on three occasions, during which she apprised Johnson of
Lamb’s progress and requested that he be allowed to return to work
on a part-time basis for thirty days, after which Lamb was expected
to be able to resume full-time work. During these calls, Brown
LAMB v. QUALEX, INC. 5
informed Johnson that stress would have an impact on Lamb’s condi-
tion and that readjustments to his medication would necessitate the
part-time schedule for the one month period. Johnson sought the
approval of Rice for Lamb to return to work on a part-time basis,
which Rice refused on the ground that the ADS position required full-
time work and that Qualex had no part-time ADS positions. In the
meantime, Rice scrambled about to bring in a number of ADSs from
other states in the southeast region in an effort to cover temporarily
Lamb’s area.
Soon after granting Lamb short-term disability leave on June 17,
1997, Qualex divided Lamb’s territory into two parts and hired Ste-
ven Duffy as the ADS to handle the Richmond market area. This put
into effect the earlier discussions between Lamb and Rice of the need
to divide Lamb’s geographical territory between two ADSs. On July
7, 1997, Qualex hired the second ADS, Sara Steele, as the ADS for
the Norfolk market area. Steele began her employment with Qualex
on July 21, 1997, completed her training in August and was servicing
29 stores in September, 1997.
On September 3, 1997, Brown telephoned Rice to discuss Lamb’s
situation. During that conversation, Rice told Brown that she would
talk to Johnson further about Lamb’s return to work. Rice additionally
agreed to contact Lamb personally to discuss his return to work. Rice
contacted Johnson and informed Johnson that no part-time work
could be offered to Lamb. Having not heard from Rice as of Septem-
ber 9, 1997, Lamb wrote a letter to Rice that same day requesting that
Qualex allow him to return to work as a part-time ADS managing
some of the accounts from his former territory, to which Rice never
responded. This letter was copied to both Johnson and Robert Golian,
Senior Director of Human Resources. According to Golian, this was
the first he heard of Lamb’s desire to return to work on a part-time
basis. On September 12, 1997, Lamb spoke with Johnson concerning
his return. At that time, Johnson informed Lamb, as she had in June,
that he needed a medical release in order to return to work. On Sep-
tember 22, 1997, Lamb’s psychiatrist, Sultan Lakhani, M.D., pro-
vided to Qualex a letter that stated "Mr. Lamb has been advised to
resume his job on a part-time basis only." That letter was circulated
within Qualex for a few days before reaching the desk of Golian on
6 LAMB v. QUALEX, INC.
September 25, 1997. Golian decided to terminate Lamb that same
day. Golian terminated Lamb by letter dated September 26, 1997.
Prior to his termination, Lamb applied to the Social Security
Administration ("SSA") on September 19, 1997, for total disability
benefits. In his SSA application, Lamb claimed that "[I] became
unable to work because of my disabling condition on April 2, 1997."
He further noted that "I am still disabled." The SSA denied his appli-
cation for benefits on November 18, 1997. Lamb submitted a request
for reconsideration to the SSA on December 11, 1997, in which he
stated that "I believe that I am disabled because of my depression
which is major and severe and is affecting everything in my life. I am
unable to work." Pursuant to Lamb’s Request for Reconsideration, the
SSA reversed its initial denial and, finding him disabled as of April
2, 1997, awarded Lamb disability benefits.
II.
We review a district court’s grant of summary judgment de novo.
Higgins v. E.I. DuPont de Nemours & Co., 863 F.2d 1162, 1167 (4th
Cir. 1988). Summary judgment shall be rendered if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue
as to any material fact and that the moving party is entitled to a judg-
ment as a matter of law. Fed. R. Civ. P. 56(c). Material facts are those
necessary to establish the elements of a party’s cause of action.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A genuine
issue of material fact exists if, in viewing the record and all reason-
able inferences drawn therefrom in a light most favorable to the non-
moving party, a reasonable fact-finder could return a verdict for the
non-movant. Id. The moving party has the burden of showing — "that
is, pointing out to the district court — that there is an absence of evi-
dence to support the non-moving party’s case." Celotex Corp. v.
Catrett, 477 U.S. 317-325 (1986). If the movant satisfies this burden,
then the non-movant must set forth specific facts as would be admis-
sible in evidence that demonstrate the existence of a genuine issue of
fact for trial. Fed. R. Civ. P. 56(e). A party is entitled to summary
judgment if the record as a whole could not lead a rational trier of fact
to find in favor of the non-moving party. Williams v. Griffin, 952 F.2d
820, 823 (4th Cir. 1991).
LAMB v. QUALEX, INC. 7
Conversely, summary judgment is not appropriate if the evidence
is sufficient for a reasonable jury to return a verdict in favor of the
plaintiff. Anderson, 477 U.S. at 248. Even if there is no dispute as to
the evidentiary facts, summary judgment is also not appropriate where
the ultimate factual conclusions to be drawn from them are in dispute.
Overstreet v. Kentucky Cent. Life Ins. Co., 950 F.2d 931, 937 (4th Cir.
1991).
In reviewing the evidence, a court must neither resolve disputed
facts or weigh the evidence, Russell v. Microdyne Corp., 65 F.3d
1229, 1239 (4th Cir. 1995), nor make determinations of credibility,
Sosebee v. Murphy, 797 F.2d 179, 182 (4th Cir. 1986). Rather, the
party opposing the motion is entitled to have his or her version of the
facts accepted as true and, moreover, to have all internal conflicts
resolved in his or her favor. Charbonnages de France v. Smith, 597
F.2d 406, 414 (4th Cir. 1979). Inferences that are "drawn from the
underlying facts . . . must be viewed in the light most favorable to the
party opposing the motion." United States v. Diebold, Inc., 369 U.S.
654, 655 (1962).
III.
On July 2, 1998, Lamb filed a four count complaint against Qualex
in the district court which alleged that: (1) Qualex terminated Lamb
because of his disability in violation of § 102(a) of the ADA which
provides that it is unlawful for an employer to "discriminate against
a qualified individual with a disability because of the disability of
such individual," see 42 U.S.C.A. § 12112(a); (2) Qualex discrimi-
nated against Lamb by failing to reasonably accommodate his disabil-
ity in violation of § 102(b)(5)(A) of the ADA which provides that it
is unlawful for an employer to fail to make "reasonable accommoda-
tions to the known physical or mental limitations of an otherwise
qualified individual with a disability . . . unless such [employer] can
demonstrate that the accommodation would impose an undue hard-
ship on the operation of the business of such [employer]," see 42
U.S.C.A. § 12112(b)(5)(A); (3) Qualex terminated Lamb in an effort
to avoid making reasonable accommodations in violation of
§ 102(b)(5)(B) of the ADA which prohibits an employer from "deny-
ing employment opportunities . . . if such denial is based on the need
. . . to make reasonable accommodations to the physical or mental
8 LAMB v. QUALEX, INC.
impairments of the employee," see 42 U.S.C.A. § 12112(b)(5)(B);
and (4) Qualex terminated Lamb in retaliation for his request of rea-
sonable accommodation in violation of § 503(a) of the ADA which
makes it unlawful to "discriminate against any individual because
such individual has opposed any act or practice made unlawful by this
chapter or because such individual made a charge, testified, assisted,
or participated in any manner in an investigation, proceeding, or hear-
ing to enforce this chapter." See 42 U.S.C.A. § 12203(a).
On December 16, 1998, the district court granted summary judg-
ment to Qualex on all four counts of Lamb’s complaint. In dismissing
each of the counts, the district court found that Lamb was not a "qual-
ified individual with a disability"1 for two reasons. First, the district
court found that Lamb was judicially estopped from claiming to be a
"qualified individual with a disability" inasmuch as he made represen-
tations to the Social Security Administration that he was not able to
work. Second, the district court found that Lamb was not a "qualified
individual with a disability" because no reasonable accommodation
would allow him to perform the essential functions of his job. Lamb
now appeals the district court’s summary judgment rulings on each
count.
1
As with Counts I, II, and III, the district court dismissed Lamb’s
Count IV retaliatory discharge claim on the ground that he was not a
"qualified individual with a disability." Following entry of the district
court’s order on December 16, 1998, dismissing each of his claims,
Lamb filed a motion for reconsideration in which he argued that the dis-
trict court erred in dismissing Count IV on the ground that he was not
a "qualified individual with a disability," which is not a necessary ele-
ment of an ADA retaliation claim. By memorandum opinion entered on
January 12, 1999, the district court agreed that it had misstated the law
when it granted summary judgment in favor of Qualex on Count IV
because Lamb was not a "qualified individual with a disability." The dis-
trict court affirmed its earlier decision, however, on an alternate basis,
finding that Lamb had failed to come forward with sufficient evidence
from which a reasonable juror could conclude that he was terminated in
retaliation for seeking reasonable accommodations from his employer.
LAMB v. QUALEX, INC. 9
A. Qualified Individual with a Disability
As a preliminary matter, to obtain relief under the ADA, Lamb
must demonstrate that he is a "qualified individual with a disability."
See 42 U.S.C.A. § 12112; see also Williams v. Channel Master Satel-
lite Sys., Inc., 101 F.3d 346, 348 (4th Cir. 1996); Doe v. University
of Maryland Medical Sys. Corp., 50 F.3d 1261, 1265 (4th Cir. 1995).
The ADA defines a "qualified individual with a disability" as "an
individual with a disability who, with or without reasonable accom-
modation, can perform the essential functions of the employment
position that such individual holds or desires." 42 U.S.C.A.
§ 12111(8); Tyndall v. National Educ. Ctrs., Inc., 31 F.3d 209, 213
(4th Cir. 1994).
1. Judicial Estoppel
The district court found that Lamb’s representation to the SSA that
he was unable to work estopped him from claiming to be a "qualified
individual with a disability" under the ADA. In so holding, the district
court relied on the decision of the United States Court of Appeals for
the Fifth Circuit in Cleveland v. Policy Management Sys. Corp., 120
F.3d 513 (5th Cir. 1997), in which that court held that the filing of
an application for, or the receipt of, social security disability benefits
judicially estops a claimant from asserting that he is a "qualified indi-
vidual with a disability" under the ADA.2
2
A disagreement among the circuit courts about the legal effect upon
an ADA suit of the application for, or receipt of, disability benefits
existed at the time Cleveland was decided by the Fifth Circuit. Compare,
e.g., Rascon v. U.S. West Communications, Inc., 143 F.3d 1324, 1332
(10th Cir. 1998) (application for, and receipt of, social security disability
benefits is relevant to, but does not estop plaintiff from bringing an ADA
claim); Griffith v. Wal-Mart Stores, Inc., 135 F.3d 376, 382 (6th Cir.
1998) (same); Swanks v. Washington Metro. Area Transit Auth., 116
F.3d 582, 586 (D.C. Cir. 1997) (same), with McNemar v. Disney Store,
Inc., 91 F.3d 610, 618-20 (3rd Cir. 1996) (applying judicial estoppel to
bar plaintiff who applied for disability benefits from bringing suit under
ADA), cert. denied, 519 U.S. 1115 (1997), and Kennedy v. Applause,
Inc., 90 F.3d 1477, 1481-82 (9th Cir. 1996) (declining to apply judicial
estoppel but holding that claimant who declared total disability in a bene-
fits application failed to raise a genuine issue of material fact as to
whether she was a qualified individual with a disability).
10 LAMB v. QUALEX, INC.
On writ of certiorari, the United States Supreme Court of Appeals,
in Cleveland v. Policy Management Sys. Corp., 526 U.S. 795, 119
S. Ct. 1597 (1999), vacated the holding of the Fifth Circuit and held
that pursuit and receipt of social security disability benefits does not
automatically estop a recipient from pursuing an ADA claim. The
Court recognized, however, that inasmuch as an ADA plaintiff’s
sworn assertion of total disability to the SSA is inconsistent with the
essential element of an ADA claim — namely, that he can perform
the essential functions of his job — summary judgment is appropriate
unless the plaintiff can come forward with an explanation for the
inconsistency from which a reasonable juror could conclude that "as-
suming the truth of, or the plaintiff’s good faith belief in, the earlier
statement [to the SSA], the plaintiff could nonetheless ‘perform the
essential functions’ of [his] job, with or without ‘reasonable accom-
modation.’" 119 S. Ct. at 1604.
Given the decision of the United States Supreme Court in Cleve-
land, Lamb contends that the district court erred in applying judicial
estoppel to find as a matter of law that he was not a "qualified indi-
vidual with a disability." According to Lamb, the record contains suf-
ficient evidence explaining the inconsistency, if any, between the
statements he made as part of his SSA application and those made as
part of this action from which a reasonable juror could conclude that,
notwithstanding what he told the SSA, he could still perform the
essential functions of his job as an ADS with reasonable accommoda-
tion.
Qualex argues that inasmuch as the district court found that Lamb
could not claim to be a "qualified individual with a disability" not
only on the basis of judicial estoppel but also on the alternative
ground that he failed to produce evidence showing that he could per-
form the essential functions of his job with reasonable accommoda-
tion, the Supreme Court’s decision in Cleveland does not warrant
reversal here but merely renders moot the issue of judicial estoppel
on appeal.
We agree with Qualex in this regard. As discussed more particu-
larly below, the district court properly concluded that Lamb was not
a "qualified individual with a disability" inasmuch as he could not
perform the essential functions of his job with reasonable accommo-
LAMB v. QUALEX, INC. 11
dation. Consequently, even if Lamb could come forward with a suffi-
cient explanation of the inconsistencies between statements he made
to the SSA and statements he made during the course of this action,
he would still be unable to produce sufficient evidence from which a
reasonable juror could conclude that he could perform the essential
functions of his job with reasonable accommodation.
2. Essential Functions of the Job
Under the ADA, only individuals who are qualified for the job they
seek may state a claim for discrimination. As noted previously, the
ADA defines "qualified individual with a disability" as "an individual
with a disability 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.A. § 12111(8). A qualified per-
son must be "able to meet all of a program’s requirements in spite of
his handicap." Southeastern Community College v. Davis, 442 U.S.
397, 406, 99 S. Ct. 2361 (1979). To prove that he was qualified for
the ADS position, Lamb must produce evidence that: (1) he could
"‘perform the essential functions of the job’" or (2) if not, whether
"‘any reasonable accommodation by [his] employer would enable
[him] to perform those functions.’" Tyndall, 31 F.3d at 213 (quoting
Chandler v. City of Dallas, 2 F.3d 1385, 1393-94 (5th Cir. 1993)).
Essential functions of a job include "fundamental job duties of the
employment position the individual holds or desires," 29 C.F.R.
§ 1630.2(n), which "bear more than a marginal relationship to the job
at issue." Martinson v. Kinney Shoe Corp., 104 F.3d 683, 686 (4th
Cir. 1997) (quoting Southeastern Community College, 442 U.S. at
406).
A regular and reliable level of attendance is an essential function
of one’s job. Halperin v. Abacus Tech Corp., 128 F.3d 191, 199 (4th
Cir. 1997), abrogated on other ground by Baird ex rel. Baird v. Rose,
192 F.3d 462 (4th Cir. 1999); Tyndall, 31 F.3d at 213. Indeed, an
employee "who does not come to work cannot perform any of his job
functions, essential or otherwise." Tyndall, 31 F.3d at 213 (quoting
Wimbley v. Bolger, 642 F. Supp. 481, 485 (W.D. Tenn. 1986), aff’d,
831 F.2d 298 (6th Cir. 1987)). An employee who cannot meet the
attendance requirements of the job at issue cannot be considered a
"qualified" individual protected by the ADA. Tyndall, 31 F.3d at 213.
12 LAMB v. QUALEX, INC.
Consequently, a plaintiff who can work only on a part-time basis can-
not be a "qualified individual with a disability" if the ability to work
full-time is essential to his job.
A plaintiff may not prevail by demonstrating that he might have
been able to perform the essential functions of the job at some time
in the future. Myers v. Hose, 50 F.3d 278, 283 (4th Cir. 1995). A
plaintiff must show that he can perform the essential functions of the
job at the time of the employment decision or in the immediate future.
Id.Qualex argues that Lamb was not qualified for the ADS position
because he was unable to work full-time. The validity of this argu-
ment turns on whether or not full-time work is an essential function
of the job of ADS. An ADS provides "in-the-field" training and sales
support to retail one-hour photo processing sites in an assigned geo-
graphic territory. One of the primary responsibilities of an ADS is to
build and maintain a strong working relationship between Qualex and
its retailers. In order to do so, an ADS is expected to make at least
one sales call per month on each of its retail stores. If, in a given
month, an ADS has called on each store within the territory, he or she
is then expected to make repeat calls to each account because training
and service are expected to be performed continually. The amount of
time spent on a sales call varies depending on the skills of the
employees of a particular store and can range anywhere from two to
as long as five or even eight hours.
An ADS is also responsible for responding to photo lab emergen-
cies experienced by its retailers. Consequently, customer service
demands can come up unexpectedly and must be acted upon promptly
and fulfilled quickly. The manual given to ADS employees sets out
multiple duties of an ADS that are to be performed at the site of the
retail stores. The duties and responsibilities of an ADS include not
only the making of routine store visits but being present when needed
on short notice or demand. The ADS is to conduct in-store sales train-
ing on a routine basis as turnover or the observed need dictates. If the
store employees in charge of the photo lab resign, the ADS must be
available promptly to train substitute employees. If the store is having
a grand opening the ADS must be there on that day for the entire day.
LAMB v. QUALEX, INC. 13
According to Lisa Rice, the position of ADS has to be filled on a
full-time basis in order to provide the requisite level of service to all
accounts in a sales territory. As she testified, if the retail store needs
the ADS to be present on a given day, as, for example, to train the
replacement for a resigned employee, it does not suffice to respond
that the ADS does not work on that particular day. Consequently,
Qualex has never employed an ADS on a part-time basis.
Lamb concedes that at the time of the employment decision which
gave rise to this lawsuit, he could not perform full-time work. He also
agrees that Qualex maintained that it was not possible to fill the ADS
position on a part-time basis. In fact, Lamb contends that Qualex
refused to fill the position on a part-time basis as an accommodation
to him.
In an effort to rebut evidence produced by Qualex demonstrating
that full-time employment is essential to the ADS position, Lamb
contends that the ADS position could be performed on a part-time
basis. In support of this contention, Lamb points out that he was
replaced by an employee who was assigned only twenty-nine stores
in the Norfolk area, a geographic location much smaller than that
assigned to Lamb prior to his medical leave. Lamb claims that he
could have completed the work assigned to his replacement on a part-
time basis inasmuch as it involved calling on approximately 60% of
the number of stores Lamb called on as a full-time employee.
Lamb’s assertion is unfounded. Lamb’s replacement, Sara Steele,
testified that she worked approximately 50 to 60 hours per week call-
ing on her twenty-nine stores during September. Prior to his medical
leave, Lamb had been unable to make the requisite number of sales
calls to each of his stores. Indeed, based upon required weekly reports
prepared by Lamb and submitted to his supervisor, some of which
were never received though requested, Lamb called on only 48 stores
in his territory during his ten months of employment. Excluding the
first two months of December and January while he was in training
and excluding the time thereafter that he was off work due to illness
or medical disability, Lamb was available for work for a total of about
three months. Those three months consist of some 1-2/3 months from
February and March after excluding a week’s illness in early February
and, following his hospitalization and recuperation from April 2 to
14 LAMB v. QUALEX, INC.
May 6, another 1-1/3 months that he worked between May 7 and June
17 when he took short-term medical disability. Coverage of only 48
stores during that three months indicates that Lamb, even while work-
ing full-time, was making only about one-third of the sales calls
expected of him.
Lamb further contends that, even if he could not work full-time
upon his return to Qualex, the ability to work full-time may not be
considered by the court in determining whether he could perform the
essential functions of his job as an ADS. In support of this contention,
Lamb cites to the 1999 EEOC Guidance Statement which criticizes
the decisions of courts that have characterized attendance as an essen-
tial job function and states that "[a]ttendance . . . however, is not an
essential function as defined by the ADA because it is not one of ‘the
fundamental job duties of the employment position.’" See Enforce-
ment Guidance: Reasonable Accommodation and Undue Hardship
Under the Americans with Disabilities Act, No. 915.002, at 16 n.61
(March 1, 1999). According to Lamb, the EEOC’s directive must be
given "controlling weight" and requires us to depart from the rationale
of Tyndall and Halperin in which we recognized that reliable atten-
dance is an essential job function.
Lamb overstates the consideration which must be afforded the
EEOC directive. See Shafer v. Preston Mem’l Hosp. Corp., 107 F.3d
274, 279 n.5 (4th Cir. 1997), abrogated on other grounds, Bailey ex
rel. Baird v. Rose, 192 F.3D 462 (4th Cir. 1999) ("‘[W]hile not con-
trolling upon the courts by reason of their authority, the EEOC inter-
pretive guidelines do constitute a body of experience and informed
judgment to which courts and litigants may properly resort for guid-
ance.’") (quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65
(1986); Williams v. Channel Master Satellite Sys., 101 F.3d 346, 349
n.2 (4th Cir. 1996), cert. denied sub nom., Williams v. Avnet, Inc., 520
U.S. 1240 (1997) (although courts and litigants may resort to EEOC
interpretive guidelines for guidance, they are not controlling upon the
courts by reason of their authority); see also Shalala v. Guernsey
Mem. Hosp., 514 U.S. 87, 99 (1995) ("Interpretive rules . . . do not
have the force and effect of law, and are not accorded that weight in
the adjudicatory process.").
Based upon the reasoning of Tyndall and Halperin, we find that the
district court properly concluded that Lamb was not able and thus not
LAMB v. QUALEX, INC. 15
"qualified" to perform the essential functions of his job inasmuch as
he could not return to work on a full-time basis as required to carry
out the duties and responsibilities of an ADS.
3. Reasonable Accommodation
Even if a plaintiff is unable to perform an essential function of the
job, the court "must nevertheless determine whether the person could
do the job with reasonable accommodation." Myers, 50 F.3d at 282;
Martinson, 104 F.3d at 687. The ADA specifically states that "‘rea-
sonable accommodation’ may include . . . job restructuring, part-time
or modified work schedules, [and] reassignment to a vacant position."
42 U.S.C.A. § 12111(9)(B). An accommodation is reasonable "unless
[the employer] can demonstrate that the accommodation would
impose an undue hardship." 42 U.S.C.A. § 12112(b)(5)(A). The bur-
den of identifying an accommodation that would allow a qualified
individual to perform the job rests with the plaintiff, as does the ulti-
mate burden of persuasion with respect to demonstrating that such an
accommodation is reasonable. Halperin, 128 F.3d at 197. Once the
plaintiff has met his burden of proving that reasonable accommoda-
tions exist, the employer may present evidence that the plaintiff’s
requested accommodation imposes an undue hardship on the
employer. 42 U.S.C.A. § 12112(b)(5)(A); Willis v. Conopco, Inc., 108
F.3d 282, 284-86 (11th Cir. 1997).
Lamb argues that his proposed return to work on a part-time basis
represents a reasonable accommodation that would have allowed him
to perform the essential functions of his job as an ADS. The district
court found, and we agree, that Lamb failed to show that the accom-
modation he requested was reasonable.
For his accommodation, Lamb requested that Qualex create a third
ADS position in Virginia and carve out from another employee’s ter-
ritory the Richmond area accounts for which Lamb had previously
been responsible. The ADA does not, however, require an employer
to create a new position as an accommodation to a disabled employee.
Barnett v. U.S. Air, Inc., 157 F.3d 744, 751 (9th Cir. 1998); Monette
v. Elec. Data Sys. Corp., 90 F.3d 1173, 1187 (6th Cir. 1996); White
v. York Int’l Corp., 45 F.3d 357, 362 (10th Cir. 1995).
16 LAMB v. QUALEX, INC.
Lamb further requested that he be allowed to work in the newly
created position on a part-time basis. Where, however, an employer
has no part-time jobs available, a request for part-time employment
is not a reasonable one. Terrell v. US Air, 132 F.3d 621, 626 (11th
Cir. 1998) ("Although part-time work, as the statute and regulations
recognize, may be a reasonable accommodation in some circum-
stances (particularly where the employer has part-time jobs readily
available), we hold that [the employer] was not required to create a
part-time position for [p]laintiff. . . ."); Whitbeck v. Vital Signs, Inc.,
934 F. Supp. 9, 16 (D.D.C. 1996), rev’d on other grounds, 116 F.3d
588 (D.C. Cir. 1997) ("This type of accommodation by an employer,
providing an entirely new part-time position for a disabled employee,
courts have found is not required by the ADA."). It is clear that
Qualex had no part-time ADS positions.
Lamb’s request that Qualex create a new part-time ADS job for
him was unreasonable and would impose an undue hardship on Qualex.3
Lamb has adduced no evidence to raise a geniune issue of material
fact that part-time work for him was a reasonable accommodation. In
light of this, Lamb failed to carry his burden of identifying a reason-
able accommodation.
B. Retaliation
Section 503(a) of the ADA prohibits retaliation by an employer
against an employee who enforces his rights under the ADA. See 42
U.S.C.A. § 12203(a). To prevail on a retaliation claim, the employee
must first establish a prima facie case of retaliation by a preponder-
ance of the evidence. Ross v. Communications Satellite Corp., 759
F.2d 355, 365 (4th Cir. 1985), overruled on other grounds by Price
Waterhouse v. Hopkins, 490 U.S. 228 (1989). To do so, a plaintiff
must prove that (1) he engaged in protected activity; (2) his employer
took an adverse employment action against him; and (3) a causal con-
nection exists between the protected activity and the adverse employ-
ment action. Id. If the plaintiff satisfies this burden, then his employer
3
Moreover, the necessity of furnishing an automobile and a laptop
computer for an ADS who would use those items only on a part-time
basis would impose further substantial cost on Qualex for which it could
receive only a partial return.
LAMB v. QUALEX, INC. 17
must articulate a legitimate non-retaliatory reason for its action. Id.Should the employer do so, then the plaintiff must prove by a prepon-
derance of the evidence that the employer’s articulated reason is pre-
text and that the real reason for the employer’s action was to retaliate
against him for having taken the protected action of requesting an
accommodation. Id.The district court found that Lamb’s request for part-time work and
his subsequent termination by Qualex fulfilled the first element, pro-
tected activity, and the second element, adverse action, of his prima
facie case of retaliation. Lamb, however, disputes the district court’s
finding that he failed to establish the third element of his prima facie
case, a causal connection between his request for part-time work and
his discharge.
The district court concluded that Lamb failed to come forward with
sufficient proof of a causal connection inasmuch as the only evidence
offered by Lamb was to the effect that the decision by Robert Golian
to terminate Lamb was made the same day that Golian received the
letter of Dr. Lakhani that indicated that Lamb could return to work
only on a part-time basis. According to Lamb, this evidence alone is
sufficient to satisfy the causal connection element of his prima facie
case. A temporal connection between the protected conduct and the
adverse employment action may be sufficient to present a genuine
factual issue on retaliation. Kiel v. Select Artificials, Inc., 169 F.3d
1131, 1136 (8th Cir. 1999). Indeed, "[a] close temporal connection
between the two events ‘is generally enough to satisfy the third ele-
ment of the prima facie test.’" McClendon v. Indiana Sugars, Inc.,
108 F.3d 789, 796-97 (7th Cir. 1997). The evidence here shows that
Golian first became aware of Lamb’s request to return to work on a
part-time basis on September 9, 1997, and that he decided to termi-
nate Lamb on September 25, 1997, within hours of receiving Lamb’s
September 22, 1997, medical release which stated that he could work
only part-time. From this evidence, we find that Lamb sufficiently
demonstrated the causal connection needed to establish his prima
facie case.
Having found that Lamb has established a prima facie case of retal-
iation, we next determine whether Qualex articulated a legitimate
non-retaliatory reason for Lamb’s discharge. Qualex asserts that it
18 LAMB v. QUALEX, INC.
fired Lamb for legitimate business purposes. We find that the evi-
dence supports this assertion. Lamb’s territory was divided in half and
filled by two individuals while he was on leave. Lamb’s territory was
already suffering from inattention prior to June 17, 1997. With Lamb
expected to be on short-term medical disability as allowed up to 90
days, Qualex followed the patently prudent course of seeing that his
territory was covered and his customers served. At the end of that 90-
day period, Lamb remained unable to return to any level of work until
he was finally released on the 97th day by his doctor on September
22, 1997, but only for part-time work. In view of the absence of the
availability of a part-time job and the inadequacy of a part-timer to
handle the array of essential duties and responsibilities of an ADS,
coupled with the inability of Lamb to return to full-time work, Qualex
plainly articulated a legitimate non-retaliatory reason for Lamb’s dis-
charge.
Even during the overall three months when Lamb was understood
to be able to work his stores full-time, he was visiting them only on
a part-time basis. Qualex reacted responsibly when Lamb took medi-
cal disability in June by taking the measures necessary to maintain its
customer base in his territory. Qualex imposed upon its out of state
ADSs to leave their posts in an effort to take up the slack in Virginia
while it trained 2 new ADSs to serve in Lamb’s area. As already
established, Lamb, unable to resume full-time work, was, after 97
days off the job, released for part-time work only. The essential duties
of an ADS require one’s full-time availability in order to service and
retain the store accounts. With no realistic prospect that Lamb would
be able to resume work full-time, it was neither unreasonable nor
retaliatory for Qualex to terminate him. Lamb has simply failed to
produce relevant evidence to the contrary. Indeed, it was less than
candid of Lamb to offer to do part-time work when, without disclo-
sure to Qualex, he had already asked the Social Security Administra-
tion to declare him disabled as of a date six months earlier.
Lamb contends that the reasons proffered by Qualex for terminat-
ing him were pretext and that the record contains ample evidence to
create a genuine issue of fact as to whether the real reason he was ter-
minated was in retaliation for seeking reasonable accommodation.
Viewing the evidence in the light most favorable to Lamb, we are
unable to conclude that Lamb created a question of fact on pretext.
LAMB v. QUALEX, INC. 19
Lamb offered no evidence from which a reasonable juror could con-
clude that the compelling reasons articulated by Qualex for terminat-
ing him, as outlined above, were pretext.
Lamb having failed to raise a genuine issue of material fact, we
find that the district court properly granted summary judgment in
favor of Qualex on Lamb’s retaliation claim.
IV.
For the stated reasons, the decision of the district court is
AFFIRMED.