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No. 12-1573_________________________________________________
IN THE UNITED STATES COURT OF APPEALSFOR THE FOURTH CIRCUIT
_________________________________________________
LAMONT WILSON,
Plaintiff-Appellant,
v.
DOLLAR GENERAL CORPORATION; DOLGENCORP, LLC; DOLGEN LLC,
Defendants-Appellees._________________________________________________
Appeal from the United States District Court For the Western District of Virginia
At Danville_________________________________________________
BRIEF OF APPELLEES_________________________________________________
Douglas D. HaloftisSlates C. VeazeyGardere Wynne Sewell LLP3000 Thanksgiving Tower1601 Elm StreetDallas, Texas 75201Tel: 214-999-3000Fax: 214-999-4667
Agnis C. ChakravortyWoods Rogers10 S. Jefferson St., Suite 1400 Roanoke, VA 24011Tel: 540.983.7600
Fax: 540.983.7711COUNSEL FOR APPELLEES
Table of Contents
Corporate Disclosure Statement
TABLE OF AUTHORITIES....................................................iii
Jurisdictional Statement........................................................1
Statement of the Issues.........................................................2
Statement of the Case...........................................................3
I. Nature of the Case................................................3
II. Proceedings Below................................................3
Statement of Facts................................................................4
I. Wilson’s Employment with DG..............................4
II. Wilson’s Vision Problems......................................4
III. DG Allowed Wilson Eight Weeks of Leave............5
IV. Wilson’s Vision Problems Worsened.....................7
Summary of Argument..........................................................8
Argument.............................................................................10
I. The District Court Properly Ruled that Wilson’s Request for Additional Leave Was Not a Request for Reasonable Accommodation and, Even if Granted, Would Not Have Enabled Wilson to Perform the Essential Functions of His Job........10
A. Wilson’s request for additional and indefinite leave was not a request for a reasonable accommodation...........................................10
B. Whether DG received a copy of Wilson's April 7 note from Danville Regional Hospital is irrelevant.................................................14
i
C. Even if DG had granted Wilson the leave he requested, he still could not demonstrate that he could have performed the essential functions of his job......................................16
D. The district court considered all of the summary judgment evidence when it determined that Wilson could not have performed all essential functions of his job at the time of termination...............................18
II. The District Court Properly Ruled that Wilson Failed, as a Matter of Law, to Meet His Burden to Show that DG Failed to Engage in the Interactive Process, Resulting in Wilson Not Receiving a Reasonable Accommodation that Would Have Allowed Him to Perform the Essential Functions of His Position.....................................................23
A. DG did not fail to engage in the interactive process........................................................24
B. No reasonable accommodation was available that would have enabled Wilson to perform the essential functions of his position.........27
Conclusion...........................................................................28
Certificate of Compliance....................................................30
Certificate of Service...........................................................30
ii
TABLE OF AUTHORITIESPage(s)
CASES
Aton v. Wackenhut Corp.,No. 01-598, 2002 WL 32502095 (D. Md. July 9, 2002), aff’d, 61 Fed. Appx. 96 (4th Cir. 2003).......................................................23
Barnett v. Uniformed Servs. Univ. of the Health Sci.,No. DKC 10 2681, 2011 WL 3511049 (D. Md. Aug. 9, 2011)....................................................................................................................................12
Crabhill v. Charlotte Mecklenburg Bd. Of Edu., 423 Fed. Appx. 314 (4th Cir. 2011)...............................................................24
Cray Comm., Inc. v. Novatel Computer Sys., Inc.,33 F.3d 390 (4th Cir. 1994)................................................................................22
Duda v. Bd. of Edu., 133 F.3d 1054 (7th Cir. 1998)..........................................................................16
Graves v. Finch Pruyn & Co., Inc.,457 F.3d 181 (2d Cir. 2006)...............................................................................12
Hamm v. Exxon Mobil Corp.,223 Fed. Appx. 506 (7th Cir. 2007)...............................................................16
Jackson v. City of Chicago,414 F.3d 806 (7th Cir. 2005).............................................................................24
Kitchen v. Summers Continuous Care Ctr., LLC,552 F. Supp. 2d 589 (S.D.W.Va. 2008).....................................12, 13, 14, 15
Lamb v. Qualex, Inc.,33 Fed. Appx. 49 (4th Cir. 2002)...............................................................16, 17
Lanier v. Branch Bank & Trust,No. 3:12-0416-MBS-SVH, 2012 WL 689275 (D.S.C. March 2, 2012)..............................................................................................................................21
iii
Lockhart v. Chao,No. 2:04CV00002, 2004 WL 2827018 (W.D. Va. Dec. 9, 2004)....................................................................................................................................13
McIntyre-Handy v. APAC Customer Servs., Inc.,No. 4:04CV83, 2005 WL 5369158 (E.D. Va. May 13, 2005)..............................................................................................................................12, 13
Myers v. Hose,50 F.3d 278 (4th Cir. 1995)..........................................................................12, 13
Pac. Ins. Co. v. Am. Nat’l Fire Ins. Co.,148 F.3d 396 (4th Cir. 1998).............................................................................21
Randolph v. ADT Sec. Servs., Inc.,No. NO. DKC 09-1790, 2012 WL 273722 (D. Md. Jan. 30, 2012)....................................................................................................................................21
Rhoads v. FDIC,257 F.3d 373 (4th Cir. 2001).............................................................................10
Richardson v. Friendly Ice Cream,594 F.3d 69 (1st Cir. 2010).................................................................................16
Rohrbaugh v. Wyeth Laboratories, Inc.,916 F.2d 970 (4th Cir.1990)........................................................................................23
Shin v. Univ. of Md. Med. Sys. Corp.,369 Fed. Appx. 472 (4th Cir. 2010)...............................................................17
Small v. Hunt,98 F.3d 789 (4th Cir. 1996)................................................................................22
Testerman v. Riddell, Inc.,161 Fed. Appx. 286 (4th Cir. 2006)...............................................................23
Tyndall v. Nat’l Edu. Ctrs., Inc. of Cal.,31 F.3d 209 (4th Cir. 1994)..........................................................................................27
Valdez v. McGill,462 Fed. Appx. 814 (10th Cir. 2012)......................................................11, 26
iv
Wells v. BAE Sys. Norfolk Ship Repair,483 F. Supp. 2d 497 (E.D. Va. 2007)............................................................24
Williams v. United Parcel Servs., Inc.,No. 2:10-1546-RMG, 2012 WL 601867 (D.S.C. Feb. 23, 2012)..............................................................................................................................17, 18
STATUTES
42 U.S.C. § 12111(8)......................................................................................................10
42 U.S.C. § 12112(b)(5)(A) (2012)........................................................................10
28 U.S.C.A. § 1291.....................................................................................................1, 3, 4
28 U.S.C.A. § 1331.............................................................................................................1
29 USC 2611(2)(A)(ii)................................................................................................5, 25
OTHER AUTHORITIES
29 C.F.R. § 1630.2(o)(ii) (2012)..............................................................................27
FED. R. APP. P. 4(a)(4)(A)...............................................................................................1
v
Jurisdictional Statement
Plaintiff Lamont Wilson filed this action in the district court
against defendants Dollar General Corporation, Dolgencorp,
LLC, and Dolgen, LLC alleging violations of the Americans with
Disabilities Act, 42 U.S.C. § 12101, et seq. (J.A. 7-12). The
district court had subject matter jurisdiction pursuant to 28
U.S.C.A. § 1331.
On March 5, 2012, the district court entered a final
judgment disposing of all parties’ claims (J.A. 681-708). On
March 22, 2012, Wilson filed a motion to reconsider (J.A. 710-
11). On April 5, 2012, the district court entered its order
denying that motion (J.A. 834). Wilson filed his notice of appeal
on April 30, 2012 (J.A. 835-36). The appeal was timely filed. See
FED. R. APP. P. 4(a)(4)(A). This Court has jurisdiction of this
appeal pursuant to 28 U.S.C.A. § 1291.
1
Statement of the Issues
The question in this appeal is whether the district court
properly granted summary judgment that Wilson take nothing on
his claim against the defendants, referred to below as “DG”,
because Wilson is not a “qualified individual with a disability”
under the ADA – the Americans with Disabilities Act. That
question raises the following issues:
1. First, Wilson argued that he was a “qualified
individual” because his request for additional leave would have
allowed him to perform the essential functions of his job within a
reasonable time. Did the district court correctly decide that (a)
Wilson’s request for additional leave was not a request for
reasonable accommodation; and (b) Wilson could not have
performed the essential functions of his job even if DG afforded
him the requested leave?
2. Second, Wilson argued that he was a “qualified
individual” because DG failed to engage in the interactive
process with him to determine the availablility of a reasonable
accomodation, thus constituting a per se violation of the ADA.
2
Was the district court correct in deciding that Wilson’s failure-to-
accommodate-claim fails as a matter of law because Wilson could
not meet his burden to show that DG failed to engage in the
interactive process, resulting in DG’s failure to find reasonable
and available accomodation that would have allowed Wilson to
perform the essential functions of his position?
3
Statement of the Case
I. NATURE OF THE CASE
This is an appeal of a final summary judgment, which
disposed of all of Wilson’s claims.
Wilson filed this suit against DG under the ADA, 42 U.S.C. §
12101, alleging that DG violated the ADA by terminating his
employment without affording him reasonable accommodation so
that he could perform the essential functions of his job (J.A. 7-
11). The court rendered summary judgment dismissing Wilson’s
complaint with prejudice (J.A. 681-709).
II. PROCEEDINGS BELOW
After his employment with DG terminated, Wilson contacted
the Equal Employment Opportunity Commission and filed his
Charge of Discrimination (J.A. 220-26). And, after receiving his
Notice of Suit Rights (J.A. 228), Wilson filed his complaint
pursuant to the ADA, 42 U.S.C. § 12101 (J.A. 7-11). He alleges
that DG violated the ADA by terminating his employment without
affording him reasonable accommodation so that he could
perform the essential functions of his job (J.A. 7-11). He sought
equitable and injunctive relief, compensatory and punitive
4
damages, including front and back pay with prejudgment
interest, attorneys’ fees, and costs. Id.
DG filed a summary judgment motion (J.A. 21-228).
The district court granted that motion (J.A. 681-709).
Wilson filed a motion to reconsider, and the district court
overruled it (J.A. 710-11, 823-34).
Statement of Facts
I. WILSON’S EMPLOYMENT WITH DG
Wilson began working at Dollar General’s South Boston,
Virginia Distribution Center in September 2009 (J.A. 68, 73-74
(29:17-22, 34:20-35:5)). He worked on the night shift as a loader
and later as a warehouse worker in the non-conveyables
department (J.A. 73, 76, 77-78 (34:22-24, 37:6-14, 38:25-39:3)).
These positions required that he load inventory for
transportation to DG’s retail outlets and to process, load, and
ship orders for various inventory (J.A. 73-77 (34:22-38:24)).
According to DG’s Human Resources manager, Nikki
Stinespring, Wilson’s duties also required that he be able to read
labels on various merchandise and lift heavy equipment (J.A. 375,
383 (29:1-16, 37:16-21)). Good vision, therefore, was essential to
Wilson’s job with DG. Id.
5
II. WILSON’S VISION PROBLEMS
Since adolescence, Wilson has suffered from complete and
permanent blindness in his right eye due to a retinal detachment
(J.A. 89-90 (50:25-51:7)). In February 2010, he began to suffer
from the onset of iritis in his left eye, causing him to take
medical leave (J.A. 88-89, 94-95 (49:1-50:20, 55:8-56:25)). Iritis
refers to inflammation of the iris and the anterior chamber of the
eye and is the cause for approximately 10 percent of the
blindness in the United States. See Sergio Schwartzman,
Inflammatory Eye Disease: An Expert Interview with Sergio
Schwartzman, MD Medscape Rheumatology (2007) (see Brief of
Appellant at 14 n.3). This disorder caused Wilson to experience
blurred vision and ultimately the loss of nearly all vision in his
left eye for an approximate seven-and-a-half week period (J.A. 90-
91 (51:22-52:22)). During this time, Wilson testified that he
“couldn’t see to drive, so [he] knew [he] couldn’t work.” (J.A. 92-
93 (53:21-54:4)).
Later that month, he began undergoing medical treatment
for this condition at Dominion Eye Center, where his doctors
provided him with multiple notes stating that DG should provide
6
him leave from work due to this condition (J.A. 94-104 (55:4-
65:20); (J.A. 308-13)).
III. DG ALLOWED WILSON EIGHT WEEKS OF LEAVE.
Adhering to these doctors’ notes, from February 2010 to
April 7, 2010, DG granted Wilson a total of eight weeks medical
leave – six weeks of which were pursuant to DG’s employee
medical leave policy, and the additional two weeks of which were
to allow him further recovery from his condition (J.A. 94-96, 96-
109, 120-21 (55:8-57:3, 57:10-70:1, 81:23-82:25)). At this time,
he was ineligible for FMLA leave because he had only been a DG
employee for approximately five months. See 29 USC 2611(2)(A)
(ii) (employee only eligible for leave under FMLA if he has been
employed for at least 12 months and given at least 1,250 hours of
service during that time).
Further, even though Wilson’s primary doctor – Dr. Terry
Odom – released him to return to work on April 6, 2010, DG
agreed that he could return the following day – April 7, 2010 (J.A.
102-105 (63:16-66:1)). Dr. Odom’s note stated: “[Wilson] is
under my care for the following: glaucoma and iritis. He may
return to work as of today 4-6-10.” (J.A. 313).
7
Wilson, however, did not return to work on April 7, 2010;
instead, he claimed that he delivered an additional doctor’s note
from an emergency room physician who took him out of work for
two additional days (J.A. 105-106, 110-14, 122-24 (66:2-67:16,
71:14-75:25, 83:16-85:14)). He further claims that DG’s
Stinespring reminded him that Dr. Odom released him to work
on April 6, 2010, and that DG gave him an additional day off, but
Wilson insisted that he could not return to work (J.A. 112 (73:2-
17)). Stinespring testified that she “explained to Mr. Wilson that
he had used his leave time . . . and that again [she] had a return
to work note, and that it was his decision whether he wanted to
maintain his employment at Dollar General, but at that point he
was expected to return to work.” (J.A. 384 (38:14-24)). Wilson
claims that when he told Stinespring that he could not return to
work, she told him that his employment with DG was terminated
– effective April 7, 2010 (J.A. 110, 111-13, 114 (71:10-13, 72:25-
74:25, 75:5-10)). The termination paperwork to administratively
terminate Wilson after he failed to return to work (after being
released by his physician) indicates that he was not terminated
until April 14, 2010 (J.A. 652).
8
Even though Wilson now claims that his accommodation
request includes these two additional days noted on the ER
doctor’s note, he admitted that he could not have returned after
two additional days off from work and was unsure of when he
would have been able to return to work (J.A. 114-15, 122, 144
(75:20-76:8, 83:1-6, 105:1-14) (testifying that he continued to
have problems with his left eye for at least two weeks following
his termination). In other words, Wilson conceded that he was
essentially seeking an indefinite period of leave until he could
sufficiently recover (J.A. 121-22 (82:9-83:13)). Even more, DG’s
records undisputedly indicate that Wilson called its third-party
leave administrator, Matrix, on April 8, 2010, and stated that he
was not ready to return to work (J.A. 316, 781)). The undisputed
summary judgment record thus proves that Wilson expected DG
to keep his job open until he was well and physically able to
return to work, despite being given eight weeks of medical leave
(J.A. 121 (82:9-25)).
IV. WILSON’S VISION PROBLEMS WORSENED.
After Wilson’s employment with DG ended, his vision
problems in his left eye significantly worsened. He was
diagnosed with a retinal detachment in his left eye (J.A. 145-47
9
(106:6-108:13)). Ultimately, he underwent a surgery that
resulted in complete blindness for seven-and-a-half weeks (J.A.
146-47 (107:17-108:24)).
In March or April of 2011, Wilson finally began looking for
another job (J.A. 156-57 (117:23-118:7)). However, he believes
that if even if his job with DG had remained open for him, he
would not have been able to return to that job (J.A. 157-58
(118:8-119:16)). Indeed, Wilson would not have been able return
to any Dollar General Distribution Center job that required heavy
lifting, an activity required of all of the general warehouse
positions (J.A. 158-59 (119:19-120:24)). Although his only
request for accommodation was to keep his job open until he got
well, Wilson claims that he could have worked in other alleged
jobs that did not require heavy lifting (J.A. 121, 187-88, 188-89
(82:9-25, 148:9-149:9, 149:16-150:3)). Yet, he was not able to
return to work and/or start looking for a job until March or April
2011 (J.A. 156-57 (117:23-118:7)).
Summary of Argument
Under the ADA, only a “qualified individual” can maintain a
claim. To be a “qualified individual,” a plaintiff must show (1)
that with reasonable accommodation he could perform the
10
essential functions of the position and (2) the employer failed to
make such accommodation. The undisputed summary judgment
evidence before the district court proved, as a matter of law, that
Wilson could establish neither prerequisite to his ADA claim.
Summary judgment was thus proper and should now be affirmed.
Specifically, the material undisputed facts establish that (1)
DG granted Wilson’s accommodation request for a medical leave
of absence in excess of eight weeks (Wilson was not eligible for
FMLA leave); (2) upon being released to return to work, Wilson
could not work and/or refused to return to work; (3) Wilson did
not request reasonable accommodation but instead wanted DG to
retain his job for an indefinite amount of time; and (4) Wilson
was not a “qualified individual” because he was unable to
perform the essential functions of his position as of April 7, 2010
—the date he claims he was terminated—and for an indefinite
period of time thereafter.
Accordingly, because there is no dispute over the material
facts relating to whether Wilson was a “qualified individual”
under the ADA, the district court properly dismissed his claims.
11
Argument
I. THE DISTRICT COURT PROPERLY RULED THAT WILSON’S REQUEST FOR ADDITIONAL LEAVE WAS NOT A REQUEST FOR REASONABLE ACCOMMODATION AND, EVEN IF GRANTED, WOULD NOT HAVE ENABLED WILSON TO PERFORM THE ESSENTIAL FUNCTIONS OF HIS JOB.
The district court properly held that Wilson’s one claim
against DG fails as a matter of law because he is not a “qualified
individual” with a disability – a perquisite to his ADA claim. 42
U.S.C. § 12112(b)(5)(A) (2012). The ADA defines the term
“qualified individual” as “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) (emphasis added). Thus, to
establish his claim, Wilson had to establish (1) that with
reasonable accommodation he could perform the essential
functions of the position and (2) DG failed to make such
accommodation. Rhoads v. FDIC, 257 F.3d 373, 387 n.11 (4th
Cir. 2001). He established neither element.
A. Wilson’s request for additional and indefinite leave was not a request for a reasonable accommodation.
The district court properly dismissed Wilson’s claim
because his request for additional and indefinite leave was, as a
12
matter of law, not a request for reasonable accommodation.
Despite what he now argues,1 Wilson requested no
accommodation other than additional and indefinite medical
leave time beyond the eight weeks of leave DG had already
provided to him; in fact, he readily admitted that he could not
return to work after the eight-week leave concluded – on April 7,
April 9, or any date in the immediate future (J.A. 121, 114-15,
122, 144 (82:9-25, 75:20-76:8, 83:1-6, 105:1-14)) (explaining that
he could not return to work after eight weeks of leave and was
unsure when he would have been able to return at all).
Specifically, at the time of his alleged termination, Wilson was
unsure of his ability to return to work and, in fact, was not able
to look for a new job until March or April 2011—more than one
year after the start of his medical leave (which began in
February 2010) (J.A. 156-57 (117:23-118:7)). See Valdez v.
McGill, 462 Fed. Appx. 814, 818-19 (10th Cir. 2012) (when an
1 As discussed below, Wilson argued for the first time at the hearing on DG’s motion for summary judgment, and argues now, that an April 7, 2010 note from a doctor shows that he requested only two additional days of leave to recover from his eye disorder. For the reasons discussed below and in the district court’s memorandum opinions (J.A. 681-708, 823-33), this evidence, even if considered, does not support reversal of the district court’s ruling.
13
employee seeks leave and is uncertain if or when he will be able
to return to work, it is deemed an indefinite leave of absence and
is not a reasonable accommodation). It is evident that he
wanted DG to hold his job open until he was well (which was
more than a year after his leave began); he even admitted that he
could not have predicted, nor did he know, how long he would
need before he could return to work (J.A. 121-22, 144 (82:9-83:6,
105:1-4)). Wilson’s request and the inherent uncertainty
surrounding it establish that the request was unreasonable,
demonstrate that he desired indefinite leave, and prove as a
matter of law that he was not a qualified individual under the
ADA.
Courts have consistently found that requests for medical
leaves longer than a year in duration or for indefinite periods of
time are unreasonable as a matter of law. See, e.g., Barnett v.
Uniformed Servs. Univ. of the Health Sci., No. DKC 10 2681,
2011 WL 3511049, at *11-12 (D. Md. Aug. 9, 2011) (expecting
the employer to wait six months to have a task completed while
employee was on leave was unreasonable) (collecting cases);
Kitchen v. Summers Continuous Care Ctr., LLC, 552 F. Supp. 2d
589, 596 (S.D.W.Va. 2008) (“Although in some instances
14
additional medical leave may be a reasonable accommodation, it
is only reasonable where ‘it is finite and will be reasonably likely
to enable the employee to return to work.’”) (quoting Graves v.
Finch Pruyn & Co., Inc., 457 F.3d 181, 186 n.6 (2d Cir. 2006)).
Because a reasonable accommodation under the ADA is one that
allows the employee to perform the job functions in the
immediate future, DG was not required to grant Wilson
unpredictable, indeterminate or indefinite leave as requested or
desired. See, e.g., McIntyre-Handy v. APAC Customer Servs.,
Inc., No. 4:04CV83, 2005 WL 5369158, at *8 (E.D. Va. May 13,
2005).
Faced with similar facts, this Court held that a request for
indefinite medical leave, without any assurance that the
employee will be able to fulfill the position’s essential functions
upon return, is unreasonable as a matter of law. See Myers v.
Hose, 50 F.3d 278, 283 (4th Cir. 1995) (explaining that the ADA
does not require that an employer wait indefinitely until an
employee is well enough to work and establishing limitations on
an employee’s request for additional leave). In particular, this
Court rejected the plaintiff’s argument that his employer should
allow him time to improve his health, because “[h]e sets no
15
temporal limit on the advocated grace period.” Id. at 282, 283
(further holding that “reasonable accommodation does not
require the County to wait indefinitely for Myers’ medical
conditions to be corrected, especially in light of the uncertainty
of cure”).
And, following this Court’s lead, lower courts in this circuit
have proclaimed that the reasonable accommodation provision
does not require an employer to wait an indefinite amount of
time for an accommodation to achieve its intended effect. See,
e.g., Kitchen, 552 F. Supp. 2d at 596-97; Lockhart v. Chao, No.
2:04CV00002, 2004 WL 2827018, at *4 (W.D. Va. Dec. 9, 2004)
(“Rather, a reasonable accommodation should be construed as
that which presently, or in the immediate future, enables the
employee to perform the essential functions of the job in
question.”) (quoting Myers, 50 F.3d at 283); see also McIntyre-
Handy, 2005 WL 5369158, at *6 (“An accommodation that allows
plaintiff to take leave is not one that allows her to perform her
job functions in the immediate future, it is one that excuses her
from performing job functions in the future. Defendant is not
required by the ADA to grant plaintiff the unpredictable and
indeterminate leave that she desires.”).
16
Based on the undisputed summary judgment record,
Wilson failed to demonstrate that any reasonable accommodation
existed and that his request for leave was finite or would have
allowed him to return to work to perform the essential functions
of his job within a reasonable amount of time. Summary
judgment was thus proper.
B. Whether DG received a copy of Wilson's April 7 note from Danville Regional Hospital is irrelevant.
For the first time during the hearing on DG’s motion for
summary judgment, Wilson argued that his request for additional
leave was reasonable because it had a finite end date (J.A. 675,
677 (19:13-14, 21:21-22:5). To support this argument, which he
now presents to this Court, a copy of that note, Wilson
nonetheless wanted indefinite leave and admitted that he could
not have returned to work on April 9th (as requested by the
note). See supra, pp. 6-7, 10-11. Moreover, neither the note nor
Wilson “establish[ed] that the leave was reasonably likely or
foreseeable to enable Plaintiff to perform the essential duties” of
his job. See, e.g., Kitchen, at 596-97.
Indeed, the district court’s ruling in Kitchen conclusively
defeats Wilson’s argument. As in the present case, the plaintiff
17
there argued that a doctor’s note stating that the plaintiff
“need[ed] ninety (90) days off from work” shows that she may
have been able to perform the essential functions of her job with
such an accommodation. 552 F. Supp. 2d at 591, 594. The court
disagreed, stating that:
Dr. Shammaa’s note to Summers asking that Plaintiff be given more time off does not show that the leave would have been a reasonable accommodation because the note does not establish that the leave was reasonably likely or foreseeable to enable Plaintiff to perform the essential duties of an ESS, it was merely a request for the maximum duration of discretionary leave under Summers' policy.
Id. at 596-97 (further stating that, “[a]s of the time [the note]
was written, there was absolutely no basis to conclude that at the
end of the extended medical leave Plaintiff would have been able
to perform her essential job functions”).
As in Kitchen, Wilson’s doctor’s note offered only a
conclusory and unsupported opinion that Wilson could return to
work on April 9, 2010; it did “not establish that the leave was
reasonably likely or foreseeable to enable Plaintiff to perform the
essential duties” of his job. Id. at 597. Moreover, this note
expressly considered that Wilson’s condition may not sufficiently
improve by April 9, 2010: “If symptoms continue and the
18
employee is unable to perform the full duties of their job by this
date, please advise the employee to return to this facility or make
an appointment with the referral physician for further
evaluation.” (J.A. 315). Combine the foregoing facts with (a)
Wilson’s history of repeatedly requiring additional leave and not
showing any sign of improvement during this time; (b) the
worsening of his condition, which led to a surgery and seven-and-
a-half weeks of complete blindness; and (c) Wilson’s inability to
search for work until March or April of 2011, and it is established
that DG had no reason to believe that Wilson could return to
work to perform the essential functions of his job.
Wilson, thus, was not a qualified individual as defined by the
ADA because he could not have performed the essential
functions of his job at the time of his termination (J.A. 114-15,
121-22, 156-57 (75:20-76:8, 82:9-83:6, 117:8-118:7)).
C. Even if DG had granted Wilson the leave he requested, he still could not demonstrate that he could have performed the essential functions of his job.
To have shown that he was a “qualified individual” under
the ADA, Wilson had to prove that would have been able to
19
perform the essential functions of his job2 at the time of his
termination, not at some future point. See Lamb v. Qualex, Inc.,
33 Fed. Appx. 49, 57 (4th Cir. 2002) (noting that an individual
“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.” Rather, he “must show that he can perform the essential
functions of the job at the time of the employment decision or in
the immediate future.”); see also Richardson v. Friendly Ice
Cream, 594 F.3d 69, 78 (1st Cir. 2010); Hamm v. Exxon Mobil
Corp., 223 Fed. Appx. 506, 508 (7th Cir. 2007); Duda v. Bd. of
Edu., 133 F.3d 1054, 1059-60 (7th Cir. 1998). This, Wilson failed
to do before the district court and now before this Court.
Indeed, not only did Wilson admit that he could not have
performed the essential functions of his job at the time of his
2 It is not necessary to list the essential functions of Wilson’s position at the time of his termination because he readily admitted that he could not perform the essential functions at that time or even at the time during which DG’s motion for summary judgment was briefed, responded to, and considered by the district court. See J.A. 156-58 (117:8-119:16) (explaining that he could not have returned to the particular job he had prior to his alleged termination); J.A. 188-89 (149:16-150:25). More specifically, Wilson stated that there was no position at the Dollar General Distribution Center, at the time of his termination, that he could have performed (J.A. 156-58, 188-89 (117:8-119:16, 149:16-150:25)).
20
termination and during the district court proceedings, he
presented no evidence that any accommodation – including
extended leave – would have allowed him to perform the
essential functions of his position at the time of his termination
(J.A. 121, 114-15, 122, 144 (82:9-25, 75:20-76:8, 83:1-6, 105:1-14
(explaining that he could not return to work after eight weeks of
leave and was unsure when he would have been able to return at
all)). The record further shows that Wilson could not have
returned to work on April 9, 2010, or within a reasonable time
thereafter (J.A. 144-47 (105:1-108:24)). Indeed, according to
Wilson, he could not have returned to full time work with DG
until March or April 2011 at the earliest – nearly a full year after
his alleged termination (J.A. 155-57 (116:3-118:15)). Moreover,
he presented no competent summary judgment evidence showing
that he requested a transfer to any such open position as an
accommodation.
Because it was Wilson’s burden to present such evidence,
and he cannot rely upon his own speculation and conjecture, this
Court should affirm the district court’s conclusion that he could
not have performed the essential functions of his job – even with
his requested accommodation. See Lamb, 33 Fed. Appx. at 59
21
(“The burden of identifying an accommodation that would allow a
qualified individual to perform the job rests with the plaintiff, as
does the ultimate burden of persuasion with respect to
demonstrating that such accommodation is reasonable.”); see
also Shin v. Univ. of Md. Med. Sys. Corp., 369 Fed. Appx. 472,
481 (4th Cir. 2010); Williams v. United Parcel Servs., Inc., No.
2:10-1546-RMG, 2012 WL 601867, at *2, *6 (D.S.C. Feb. 23,
2012).
Ultimately, there is no doubt that Wilson was not a
“qualified individual” under the ADA, as (1) he could not perform
any of the essential functions of his job at the time of his
termination and (2) his request for indefinite leave was not a
reasonable accommodation. As a result, the district court
properly granted DG’s motion for summary judgment and
dismissed Wilson’s claim as a matter of law.
D. The district court considered all of the summary judgment evidence when it determined that Wilson could not have performed all essential functions of his job at the time of termination.
Wilson now argues that the district court erred because it
“failed to consider all the evidence in the record and draw all
reasonable inferences in Wilson’s favor.” Brief of Appellant at
22
36. To support this argument, he points to two pieces of
evidence.
First, he relies on his deposition testimony where he
testified that he applied for unemployment benefits “probably a
week, week and a half” after his DG employment terminated. Id.
(J.A. 144-45 (105:5-106:5)). Wilson misrepresents this testimony
in his Brief to argue that he could have returned to DG “a week,
week and a half” after he was terminated and been able to
perform the essential functions of his job. Wilson, however, did
not testify that he could have returned to DG “a week, week and
a half” after his termination.” As the following complete
recitation of the rest of this line of testimony proves, (1) Wilson
pursued only “job contacts” outside of Dollar General a week or
week and half later for unemployment benefits purposes; (2) he
does not know when he could have returned to work; and (3) he
could never have returned to work in his position at the Dollar
General Distribution Center:
Q. How long after that April 7 date was it that you could actually go back to working?
A. I can’t accurate – I can’t specifically give you a date, okay?
Q. When did you start to look for another job.
23
A. Oh, it was a while. I was having problems from it. I was having – it was a while afterwards, because I – I was having problems with my eyes and everything. And even though I was having problems, I got fired, I went out and put my application in for unemployment, I had to find – to keep the job contacts. So I guess probably a week, week and a half later, I guess.
Q. Okay. So you filed for unemployment –
A. Yes.
Q. – and they required that you look for a number of jobs.
A. Yeah, that’s part of the requirement at least – in our area – in our area there was two job contacts. Our jobs rating was so bad they dropped down to one.
(J.A. 144 (105:1-23))3
…
3 Wilson further testified:
Q. Could you have returned two days later per this Exhibit number 10, the release from Dr. Hoang?
A. No, I couldn’t, because other than that, I still had problems with my eyes about two weeks later, so
I still couldn’t return.
Q. Okay. How long would it have been before you could have returned to work?
A. I don’t have - - I can’t answer that question because I had problems with that - - with that - - I had problems with my eye….beyond this April the 9th in question.
(J.A. 114-15 (75:20-76:8)).
24
Q. I understand that, although you couldn’t work, you continued to look for a job. Is that right? After your termination.
A. To a certain point, yes. To when I got so bad I couldn’t hardly see. Any that’s why I went to vocational rehab to get – not the VEC – the vocational rehab.
(J.A. 148 (109:13-19)).
…
Q. So, would it be fair to say that in March or April 2011, if you had your job at Dollar General, at that point you could have gone back to full-time work?
A. Yes, if I had a job, I could have probably – wait a minute. I probably could have went back to work. I probably could have gone back to full-time employment, if I had a job.
Q. Okay. If they were to give you your job back now, would you take it?
…
A. Well, to be honest with you, with all due respect, my job – I could probably take a job, but I don’t think I would be able to do the job – the particular job I had at the particular time. If they could provide me with a job that I could do, because I can’t do that lifting stuff I used to do. The reason I say that is because, that job, if you look at my performance and the production rate at the time that I was terminated, I would do – well, from – anywhere from sometimes 1800 to 2500 pounds of dog food weighing from three to 30 pounds, to 20 to 60 pounds and I’d do all those 60 pounds at a time, and I’d be doing the bending, stooping and lifting. I couldn’t do that lifting anymore because I had that eye problem. Then lifting is going to pull that down and I would risk going totally blind again, and go through surgery again. Any my – in my opinion, no.
25
(J.A. 157-58 (118:8-119:17)).
Viewing the evidence in the light most favorable to Wilson,
his testimony plainly and unambiguously states that he could
never have returned to his position at Dollar General’s
Distribution Center – much less one week later. Wilson was
unable to state that he could have returned to full-time
employment before March or April 2011, or that he was looking
for work beyond making the required unemployment job contacts
to qualify for unemployment benefits. That in no way
demonstrates that he could perform any of the jobs available at
DG at this time.
Second, Wilson argues that the district court erred by
refusing to consider a declaration that he proffered for the first
time in connection with his motion for reconsideration. The law
on this subject is clear, and the district court properly applied
this law in declining to consider this declaration: new evidence
that could have been adduced during the pendency of the prior
motion for summary judgment should not be considered when
deciding a motion for reconsideration. See, e.g., Lanier v.
Branch Bank & Trust, No. 3:12-0416-MBS-SVH, 2012 WL
689275, at *2 (D.S.C. March 2, 2012). To rely on such evidence,
26
Wilson had to demonstrate some legitimate justification for the
delay of submission, including why it was not attainable before
the court’s ruling on the motion for summary judgment. See,
e.g., Pac. Ins. Co. v. Am. Nat’l Fire Ins. Co., 148 F.3d 396, 403
(4th Cir. 1998); Randolph v. ADT Sec. Servs., Inc., No. NO. DKC
09-1790, 2012 WL 273722, at *3 (D. Md. Jan. 30, 2012) (citing
Semiconductor Energy Lab., Co. v. Samsung Elecs. Co., 24 F.
Supp. 2d 537, 539 n.3 (E.D. Va. 1998) (denying a motion for
reconsideration under Rule 59(e) where the new evidence “was
either in [the moving party's] possession ... or was attainable by
[that party] prior to trial”), aff'd, 204 F.3d 1368 (Fed. Cir. 2000));
see also Small v. Hunt, 98 F.3d 789, 798 (4th Cir. 1996). Wilson
advanced no reason for the delay in presenting this evidence
when it was perfectly available to him prior to the district court’s
hearing on the motion for summary judgment. The district court
thus properly declined to consider such evidence. See Cray
Comm., Inc. v. Novatel Computer Sys., Inc., 33 F.3d 390, 395
(4th Cir. 1994) (district court properly declined to consider new
affidavit where movant failed to offer justification for not
presenting the same during the summary judgment proceedings).
27
Even more, consideration of this evidence does not change
the outcome of the district court’s ruling on summary judgment,
because whether DG had a copy of Danville Regional Hospital’s
April 7 note, whether Wilson was looking for work prior to March
or April 2011, and whether he could perform another job at the
Distribution Center is all immaterial. It is undisputed that
plaintiff could not perform the essential functions of his job at
the time of his termination, could not return to his job at any
point, and cannot demonstrate that he could perform any other
jobs were open and available. See supra at pp. 16-18. Thus,
because the evidence does not and cannot change the outcome of
the prior ruling, the district court properly refused to consider
the evidence and/or grant Rule 59(e) relief to the Wilson. See,
e.g., Testerman v. Riddell, Inc., 161 Fed. Appx. 286, 291 (4th Cir.
2006).4
4 Wilson cites to a series of opinions from around the country to show that “a number of courts have held that leave is a form of reasonable accommodation in particular circumstances.” Brief of Appellant at 38-41. DG has never disputed this point. Indeed, DG gave Wilson at least eight weeks of leave. See supra at pp. 5-7. But, because the facts of the cited cases differ materially from those before the Court (e.g., Wilson essentially sought indefinite leave and could not have performed the essential functions of his job), those cases provide no support for Wilson.
28
The district court considered all of the timely summary
judgment evidence and determined that (a) Wilson could not
have returned to his job at the time of his termination or in the
immediate future, (b) he desired indefinite leave, and (c)
indefinite leave was not a reasonable accommodation. Summary
judgment was thus proper.5
II. THE DISTRICT COURT PROPERLY RULED THAT WILSON FAILED, AS A MATTER OF LAW, TO MEET HIS BURDEN TO SHOW THAT DG FAILED TO ENGAGE IN THE INTERACTIVE PROCESS, RESULTING IN WILSON NOT RECEIVING A REASONABLE ACCOMMODATION THAT WOULD HAVE ALLOWED HIM TO PERFORM THE ESSENTIAL FUNCTIONS OF HIS POSITION.
Wilson contends that DG did not engage in the interactive
process to find a reasonable accommodation that would allow
him to perform the essential functions of his job. Because Wilson
cannot show that he requested reasonable accommodation, this
argument necessarily fails. Moreover, the undisputed summary
5 Moreover, Wilson should be estopped from claiming now that he could work when he has already testified under oath that he could not. See Aton v. Wackenhut Corp., No. 01-598, 2002 WL 32502095, at *2 (D. Md. July 9, 2002), aff’d, 61 Fed. Appx. 96 (4th Cir. 2003) (a plaintiff “cannot change his story in a belated attempt to generate a triable dispute, under clear law of this Circuit”) (citing Rohrbaugh v. Wyeth Laboratories, Inc., 916 F.2d 970 (4th Cir.1990).
29
judgment record indicates that DG did engage in a sufficient
interactive process.
A. DG did not fail to engage in the interactive process.
Wilson correctly observes that a prerequisite to his ADA
claim is proving that DG’s “failure to engage in the interactive
process resulted in the failure to identify an appropriate
accommodation” for him. Brief of Appellant p. 42 (citing Crabhill
v. Charlotte Mecklenburg Bd. Of Edu., 423 Fed. Appx. 314, 323
(4th Cir. 2011)). Thus, a showing of a reasonable
accommodation is required before a court can find that the
employer’s failure to engage in the interactive process was
unlawful. See Wells v. BAE Sys. Norfolk Ship Repair, 483 F.
Supp. 2d 497, 511 (E.D. Va. 2007) (citing Jackson v. City of
Chicago, 414 F.3d 806, 813 (7th Cir. 2005)). Unless the
employer’s failure to engage in the interactive process resulted
in not identifying a reasonable accommodation, a plaintiff’s ADA
claim fails as a matter of law. Id.
Wilson’s reasonable accommodation argument is thus
premised on a finding that he requested reasonable
accommodation. As discussed above, Wilson did not request
30
reasonable accommodation. See supra at pp. 10-13. This
argument, therefore, must necessarily fail.
Nevertheless, Wilson contends that DG failed to engage in
the interactive process with him to find a reasonable
accommodation and that this establishes a violation of the ADA.
To advance this argument, he focuses on DG’s alleged failure to
communicate internally and externally with Wilson’s physicians
about Wilson’s condition. Brief of Appellant at 44-45. This new
theory ignores the overwhelming amount of evidence that: (1)
DG granted Wilson’s accommodation request for a medical leave
of absence in excess of eight weeks despite the fact that he was
ineligible for FMLA leave; (2) upon being released to return to
work, he could not work and/or refused to return to work; and (3)
he was not a “qualified individual,” as he was unable to perform
the essential functions of his position as of April 7, 2010 —the
date he claims he was terminated—and for an indefinite period of
time thereafter. See supra at pp. 10-17.
Moreover, this argument is both untrue and immaterial. It
is untrue because DG engaged in the interactive process and
granted Wilson’s accommodation request to be off work for eight
weeks, even though he was not entitled to leave under the
31
Family and Medical Leave Act. See 29 USC 2611(2)(A)(ii). Also,
his very own testimony confirms that DG’s human resources
manager, Nikki Stinespring, and his direct supervisor, Shelly
Miller, were aware of his vision problems (J.A. 454-57, 465-66
(54:7-55:3, 55:23-57:3, 65:21-66:1)). Stinespring’s testimony is
consistent (J.A. 371, 372-73 (25:8-19, 26:20-27:14)).
And, the argument is immaterial because Wilson admits
that as of the date of his termination, and for an indefinite period
of time thereafter, he could not work at all:
Q. Could you have returned two days later per this Exhibit number 10, the release from Dr. Hoang?
A. No, I couldn’t, because other than that, I still had problems with my eyes about two weeks later, so I still couldn’t return.
Q. Okay. How long would it have been before you could have returned to work?
A. I don’t have - I can’t answer that question because I had problems with that - - with that - I had problems with my eye….beyond this April the 9th in question.
(J.A. 114-15 (75:20-76:8)).
Even as of the date of his deposition – nearly two years after
he first went on leave from his job at the South Boston
Distribution Center – Wilson admitted he was not qualified to
perform the essential functions of his job. Indeed, he testified
32
that his job required him to lift anywhere from 1800 to 2500
pounds of dog food in a day (in 30-60 pound increments) and that
his eye problem prevented him, and continues to prevent him,
from lifting:
A. …I can’t do the lifting stuff I used to do … I couldn’t do that lifting anymore because I had that eye problem. Then lifting is going to pull that down and I would risk going totally blind again, and go through surgery again.
(J.A. 157-58 (118:16-119:17)). As the district court correctly
observed, it would have futile for DG to engage in the interactive
process any further than it already had. See Valdez v. McGill,
462 Fed. Appx. 814, 819 (10th Cir. 2012) (“an employer is not
required to engage an employee in a futile interactive process
where, as we have concluded was the case here, no reasonable
accommodation was possible”). Indeed, Wilson’s disability and
the limitations it placed on his job were evident; DG, thus, was
fully aware of his condition. Also, the nature of Wilson’s
disability removed the availability of alternative accommodations
that may have allowed him to perform the essential functions of
his job. Specifically, not being able to see and lift heavy objects
precluded him from being able to return to work. As such, no
reasonable accommodation would have allowed Wilson to
33
perform the essential functions of his job. Thus, whether or not
DG engaged in the interactive process is of no consequence.
B. No reasonable accommodation was available that would have enabled Wilson to perform the essential functions of his position.
As discussed above, there simply was no reasonable
accommodation that was available to allow Wilson to perform the
lifting and other duties to become a qualified individual for his
position. “Reasonable accommodations” are “[m]odifications or
adjustments to the work environment, or to the manner or
circumstances under which the position held or desired is
customarily performed, that enable a qualified individual with a
disability to perform the essential functions of that position.” 29
C.F.R. § 1630.2(o)(ii) (2012). Moreover, Wilson presented no
admissible and competent evidence in the record that there were
any open positions that he could have performed, or that there
were any other accommodations (aside from indefinite leave)
that would have allowed him to perform his job, at the time of his
alleged termination or in the immediate future.6 See supra at pp.
16-18. As stated earlier, at his deposition nearly two years after
6 See Tyndall v. Nat’l Edu. Ctrs., Inc. of Cal., 31 F.3d 209, 213 (4th Cir. 1994) (plaintiff’s burden to show he can perform the essential functions of his job with reasonable accommodation).
34
his termination, Wilson admitted that he still could not do the
essential lifting functions of his former Dollar General position
(J.A. 156-58 (117:8-119:16); 188-89 (149:16-150:25); 156-58,
188-89 (117:8-119:16, 149:16-150:25)).
Accordingly, there is no dispute that Wilson only desired
indefinite—not temporary—leave. As discussed above, it is well
settled that indefinite leave is not a reasonable accommodation.
The district court, thus, properly dismissed Wilson’s claim.
Conclusion
DG asks this court to affirm the district court’s judgment
and dismiss Wilson’s claims because, as a matter of law, Wilson
is not a “qualified individual” under the ADA. DG also requests
that this court award it the appeal costs it has incurred pursuant
to rule 39 of the Federal Rules of Appellate Procedure.
35
Respectfully submitted, /s/ Stacy R. Obenhaus______________Douglas D. HaloftisSlates C. VeazeyGardere Wynne Sewell LLP3000 Thanksgiving Tower1601 Elm StreetDallas, Texas 75201Tel: 214.999.3000Fax: 214.999.4667
Agnis C. ChakravortyWoods Rogers10 S. Jefferson St., Suite 1400 Roanoke, VA 24011Tel: 540.983.7600Fax: 540.983.7711
ATTORNEYS FOR APPELLEES
36
Certificate of Compliance
This brief complies with the type-volume limitations of rule
32(a)(7)(B) of the Federal Rules of Appellate Procedure because
this brief contains 7,035 words, excluding the parts of the brief
exempted by rule 32(a)(7)(B)(iii).
This brief complies with the typeface requirements of rule
32(a)(5) of the Federal Rules of Appellate Procedure, and with
the type style requirements of rule 32(a)(6), because this brief
has been prepared in proportionally spaced typeface using
Microsoft Word 2010 in Garamond 14-point font.
/s/ Stacy R. ObenhausStacy R. Obenhaus
Certificate of Service
I certify that the final copies of this brief, in the numbers
shown below, were served and filed by first class mail as shown
below on October 8, 2012:
Terry N. GrimesGrimes & Williams, P.C.320 Elm Avenue, S.W.Roanoke, VA 24016
/s/ Stacy R. ObenhausStacy R. Obenhaus
