Petition for Writ of Certiorari — Henson v. City of Greensboro

Supreme Court, U.S.

FILED

961797 may | 2 1997;

UTFICE OF THE CLERK

No.

ae

IN THE

UNITED STATES SUPREME COURT

OCTOBER TERM 1996

ROBERT C. HENSON, Petitioner,

Vv.

THE CITY OF GREENSBORO

NORTH CAROLINA, Respondent.

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Fourth Circuit

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

NORMAN B. SMITH

Smith, Follin & James, L.L.P.

PO Box 990

Greensboro NC 27402-0990

(910) 274-2992

Counsel of Record for Petitioner

QUESTION PRESENTED

Does the Americans with Disabilities Act require a

determination of whether or not an employee with a

disability can perform the essential functions of the job with

reasonable accommodation?

TABLE OF CONTENTS

QUESTION PRESENTED ..........i |

TABLE OF CONTENTS .........-. ii |

TABLE OF AUTHORITIES ........ iv

OPINIONS BEIOW .... 162s es ee oe

Cs | a a er eer | |

STATUTE AND REGULATION INVOLVED... . 2 |

STATEMENT OF THE CASE .........- 3 |

REASONS FOR GRANTING THE WRIT

I. THE FOURTH CIRCUIT’S DECISION

CONFLICTS WITH THE LANGUAGE OF

THE STATUTE AND ITS MANIFEST

INTENT .« «-+ © © © © © © «© « ©

II. THE FOURTH CIRCUIT’S DECISION

CONFLICTS WITH LEADING DECISIONS

IN ALL OTHER CIRCUITS THAT HAVE

CONSIDERED THE QUESTION ... 9

CONCLUSION .. +. « « « «© © © © © © © LW |

APPENDIX

DISTRICT COURT OPINION ....... Awl

FOURTH CIRCUIT OPINION ...... . A-8

ii

TABLE OF AUTHORITIES

CASES

nson v. Northwest Airlines, Inc.,

62 F.3d 1108 (8th Cir. 1995) ..............., 9

Borkowski v. Valley Central School District,

oe Bk ee Ce a.) 9

Chandler v. City of Dallas,

2 Woe ideo OM Cis. 1994)... ww wk cc ce 9

Feliberty v. Kemper ,

98 F.3d 274 (7th Cir. 1996) ................ 9

n Electr v. Gilbert,

LE A Fo. 7

Gnggs v. Duke Power Co.,

ss 7

Langon v. Health and Human Services Department,

vay wae Was (D.C. Cir. 1992) ............. 9

Lowe v. Angelo’s Italian Foods,

87 F.3d 1170 (10th Cir. 1996) .............., 9

Mentor Savings Bank v. Vinson,

i 7

Reynolds v. Brock,

815 F.2d 571 (9th Cir. 1987) ............... )

iii

Shiring v. Runyon,

a Fe et Ce Gs TOD 4s 6a 6 Se 9

Tuck v. HCA Health Services of Tennessee, Inc.,

(2k Fe fe ee . . ) rn 4

STATUTES AND REGULATIONS

MUA BI, og ye ee ee eee eae l

is ee oe l

Be os 6 ee l

Wee Ome. ee hea 7

Oe a, ooo cy eackee ees 7

Use £0... ee 2,

OSG 5S. oe eee ees 2,7

2 0908 ee... 2 oo ks rk Oh se

42 U.S.C. § 2000(e)-5(f)(3) . 2... eee ee ee l

29 C.F.R. § 1630.2(0) ... 0... ee te ee 3

29 C.F.R. § 1630.2(0)(1)(ii),(2)(ii) . 2... ee ee 7

29 C.P.R. § 1614.203(g) ... ee ee -

ee re eee 7

iv

Petitioner Robert C. Henson respectfully prays that

the Court issue a writ of certiorari to review the judgment

and opinion of the United States Court of Appeals for the

Fourth Circuit, entered in the above-entitled proceedings on

February 24, 1997.

OPINIONS BELOW

The opinion of the United States District Court for

the Middle District of North Carolina (Erwin, J.) is not

Officially reported. The opinion is reprinted in the appendix,

p. A-1, infra.

The opinion of the United States Court of Appeals for

the Fourth Circuit (per curiam) is not yet reported. The

opinion is reprinted in the appendix, p. A-8, infra.

JURISDICTION

The United States Court of Appeals for the Fourth

Circuit rendered its opinion on February 24, 1997, affirming

the district court’s decision granting summary judgment for

respondent.

This Court has jurisdiction to review the judgment

below pursuant to 28 U.S.C. § 1254(i).'

'The court of appeals had jurisdiction pursuant to 28 U.S.C. § 1291. The

jurisdiction of the district court was by removal pursuant to 28 U.S.C. § 1441, with

the underlying jurisdictional basis being 42 U.S.C. § 12117(a), incorporating by

reference 42 U.S.C. § 2000(e)-5(f)(3).

ON TR ET TP ERT mg

STATUTE AND REGULATION INVOLVED

42 U.S.C. § 12111(8) and (9):

(8) Qualified individual with a disabil

The term "qualified individual with a

disability" means 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. For

the purposes of this subchapter, consideration shall be

given to the employer’s judgment as to what

functions of a job are essential, and if an employer

has prepared a wnitten description before advertising

or interviewing applicants for the job, this description

shall be considered evidence of the essential functions

of the job.

(9) Reasonable accommodation

The term "reasonable accommodation" may

include --...

(B) job restructuring, part-time or modified

work schedules, reassignment to a vacant position,

acquisition or modification of equipment or devices,

appropriate adjustment or modifications of

examinations, training materials or policies, the

provision of qualified readers or interpreters, and

other similar accommodations for individuals with

disabilities.

29 C.F.R. § 1630.2(0):

(0) Reasonable accommodation.

(1) The term reasonable accommodation means:. . .

(ii) Modifications or adjustments to the work

environment, or to the manner or circumstances

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; ...

(2) Reasonable accommodation may include but is

not limited to: . .

(ii) Job restructuring; part-time or modified

work schedules; reassignment to a vacant position;

STATEMENT OF THE CASE

Petitioner has a permanent back impairment that

prevents him from lifting more than 15 to 20 pounds, from

doing extensive pushing or pulling, from sitting two or three

hours without having to stand, and from being on his feet for

two or three hours without having to rest. (A.220-21, 223).

Plaintiff was dismissed on October 31, 1993, from a

position he had held for 13 1/2 years, as lake warden or park

ranger at respondent’s city lakes. Petitioner’s job duties

included teaching classes to school children, maintaining

grounds, renting boats, cleaning out boats, providing

assistance to members of the public, mowing grass and

3

trimming leaves, signing fishermen in and out, writing lake

permits, selling fishing licenses, opening and closing the

lakes, enforcing safety rules, weighing fish for contests,

using a patrol boat, and cleaning the office and restrooms.

(A.62, 74-81).

Petitioner injured his back in an automobile wreck

not connected with work on February 10, 1993. He

continued to work for a time, but when his condition

worsened, he was ordered off the job and to bed rest by his

physician beginning June 2, 1993. (A.103-04, 107-08, 114-

16, 116a).

Petitioner and his physician agreed on July 2, 1993,

that he should try going back to work with minimized

bending and lifting for the time being. This proposal was

communicated to respondent. (A.198, 201, A.35-36).

Respondent replied that before petitioner could be returned

to work, he would have to be evaluated by the city medical

services. However, respondent never scheduled an

independent medical examination and ultimately dismissed

petitioner. (A.37, 231-36, 238-40, 253).

Respondent had an extended sick leave policy, which

may have been applicable to petitioner. The policy required

that a request for sick leave be initiated by the employee’s

department head. Instead of pursuing the sick leave policy,

petitioner’s department head falsely certified that petitioner

had voluntarily resigned (A.179-81).

Respondent admitted that it could have designed a

light duty job for petitioner at one of the city lakes. Because

petitioner’s totally incapacitating disability extended only for

a short duration, it was a virtual certainty that a job could

'

have been provided to fit his long term work limitations.

Respondent clearly understood petitioner’s request in July,

1993, to be for temporary light duty until his recovery.

Also respondent could have accommodated petitioner’s

permanent limitations on lifting, standing, stooping, and

bending. Respondent acknowledges that the Americans with

Disabilities Act requires accornmodation in the form of light

duty for employees who have temporary limitations, and also

disabilities of longer duration. Respondent acknowledges

that there would have been no problem reasonably to

accommodate petitioner's disabilities, and that there certainly

would have been no health or safety threat as a result of

accommodating petitioner’s needs. (A.182-83, 252, 261,

263-64, 265a).

Petitioner believes he could have done fully half of

his duties at one of the city lakes upon completion of his

recovery. Had he been put back on the job, he would have

tried to take on more and more duties as time went on.

(A. 163-64).

Petitioner brought an action for discrimination in

employment under the Americans with Disabilities Act. The

district court granted respondent’s motion for summary

judgment.

In a per curiam opinion, the United States Court of

Appeals for the Fourth Circuit affirmed. The court held that

petitioner could no longer perform the essential functions of

his job and, therefore, was not a qualified individual under

the act. The court made no determination, and did not

discuss, whether or not petitioner could have performed the

essential functions of his job with reasonable

accommodation.

REASONS FOR GRANTING THE WRIT

I. THE FOURTH CIRCUIT’S DECISION

CONFLICTS WITH THE LANGUAGE OF THE

STATUTE AND ITS MANIFEST INTENT.

The court of appeals has attempted to read out of the

Statute, the requirement that an employee’s ability to perform

the essential functions of the job be considered in light of

reasonable accommodation by the employer.

The requirement of reasonable accommodation, which

is the very core of the Americans with Disabilities Act, is set

forth in the definition of persons who are subject to the

protection of the statute. “The term ‘qualified individual

with a disability’ means 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. § 12111(8)

[emphasis added].

The court of appeals stated that after his injury

petitioner could "no longer perform the essential job

functions of lake ranger and therefore, he is not a qualified

individual." (Appendix, p. A-9, infra). That ended the

court’s inquiry.

The court of appeals did not take into account in any

way the unrebutted testimony, consisting of admissions by

respondent’s management personnel, that petitioner’s

disability easily could have been accommodated; that this

accommodation would have been consistent with

respondent’s existing policies and practices; and that there

would have been no health or safety threat as a result of

accommodating petitioner’s needs. (A.182-83, 252, 261,

263-64, 265a).

Reasonable accommodation is statutorily defined, as

relevant to this case, to include "job restructuring, part-time

or modified work schedules, reassignment to a vacant

position, . . . and other similar accommodations for

individuals with disabilities." 42 U.S.C. § 12111(9)(B).

The applicable regulations state that reasonable

accommodation means “modifications or adjustments . . . to

the manner or circumstances under which the position held

. 1s customarily performed, . . . " The regulations also

State that reasonable accommodation may include but is not

limited to "job restructuring; part-time or modified work

schedules; reassignment to a vacant position; . . . and other

similar accommodations for individuals with disabilities." 29

C.F.R. § 1630.2(0)(1)(ii),(2)(ii)2

This Court, interpreting language in the Rehabilitation

Act and its regulations, 29 U.S.C. §§ 706, 794, and 45

C.F.R. § 84, which is similar to the provisions of the

Americans with Disabilities Act here in issue, has ruled that,

"When handicapped person is not able to perform the

essential functions of the job, the court must also consider

whether any ‘reasonable accommodation’ by the employer

would enable the handicapped person to perform those

functions." School Board of Nassau County v. Arline, 480

>The regulations or guidelines, "’while not controlling upon courts by

reason of their authority, do constitute a body of experience and informed

judgment to which the courts and litigants may properly resort to

guidance.’ Meritor Savings Bank v. Vinson, 477 U.S. 57, 65 (1986),

quoting General Electric Co. v. Gilbert, 429 U.S. 125, 141-42 (1976), and

that Griggs v. Duke Power Co., 401 U.S. 424, 423, 433-34 (1971).

U.S. 273, 288, n.17 (1987). This Court has made it clear

that the decision is to whether essential job functions can be

performed with reasonable accommodation requires

individualized inquiry and a factual determination. 480 U.S.

at 287.°

If an employee with a disability is protected by law

only when he can perform the essential functions of the job

without accommodation, as the court of appeals decided in

the present case, the Americans with Disabilities Act would

provide no protection whatever to persons who are actually

handicapped to the extent that they cannot perform some

essential job functions. Under this reading, the statute would

only provide protection to those employees, whose

disabilities were incorrectly perceived as limiting their

abilities to carry out all essential job functions. This reading

of the act is plainly at odds with its clear language and

manifest intent.

*Formerly the Rehabilitation Act did not require a consideration of

reassignment of the handicapped employee to a more suitable position. The

Americans with Disabilities Act, on the other hand, expressly requires that

reassignment be considered. The Rehabilitation Act was amended in 1992

to incorporate this and other Americans with Disabilities Act standards. 29

U.S.C. § 794(d). Accordingly, the regulations were amended effective

October 31, 1992, to provide that an offer must be made to reassign an

employee who becomes unable to perform the essential functions of his job.

29 C.F.R. § 1614.203(g).

IT. THE FOURTH CIRCUIT’S DECISION

CONFLICTS WITH LEADING DECISIONS IN

ALL OTHER CIRCUITS THAT HAVE

CONSIDERED THE QUESTION.

The District of Columbia, Second, Third, Fifth,

Sixth, Seventh, Eighth, Ninth, and Tenth Circuits have all

made it clear that under the Americans with Disabilities Act,

if the employee cannot perform essential job functions by

reason of disability without accommodation, it is necessary

to make a further and fact specific inquiry as to whether or

not he can perform these job functions with reasonable

accommodation. ngon_v. Health and Human Services

Department, 959 F.2d 1053, 1060-61(D.C. Cir. 1992);

Borkowski v. Valley Central School District, 63 F.2d 131,

140-41 (2d Cir. 1995); Shiring v. Runyon, 90 F.3d 827,

831-32 (3d Cir. 1996); Chandler v. City of Dallas, 2 F.3d

1385, 1393-94 (Sth Cir. 1994); Tuck v. HCA Health

Services of Tennessee, Inc., 7 F.3d 465, 471-74 (6th Cir.

1993); Feliberty v. Kemper Corp., 98 F.3d 274, 280-81 (7th

Cir. 1996); Benson v. Northwest Airlines, Inc., 62 F.3d

1108, 1114 (8th Cir. 1995); Reynolds v. Brock, 815 F.2d

571, 574-75 (9th Cir. 1987) (Rehabilitation Act); Lowe v.

Angelo’s Italian Foods, 87 F.3d 1170, 1174 (10th Cir.

1996).

In the present case, the Fourth Circuit stands alone

among all the courts of appeals which are on record on the

point, holding that the question of reasonable accommodation

need not be considered, once it is determined that a disabled

employee cannot perform one or more essential functions of

the job. This decision of the Fourth Circuit, not only is in

conflict with the other courts of appeals, but also is wholly

inconsistent with this Court’s decision in School Board of

Nassau County v. Arline, supra.

9

CONCLUSION

For the foregoing reasons, this Court should issue a

writ of certiorari to review the decision of the court of

appeals.

This lst day of May, 1997.

NORMAN B. SMITH

Smith, Follin, & James, L.L.P.

Post Office Box 990

Greensboro, N.C. 27402-0990

Telephone: (910) 274-2992

Counsel of Record for Petitioner

10

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

GREENSBORO DIVISION

ROBERT C. HENSON,

Plaintiff,

2:95CV00022

Vv.

CITY OF GREENSBORO,

ee a ee ee a

Defendant.

MEMORANDUM OPINION

ERWIN, Senior Judge

This matter is before the Court on Defendant’s

Motion for Summary Judgment. Plaintiff has responded to

the motion, and the Court is now ready to rule. Defendant’s

summary judgment motion is GRANTED.

Statement of Facts

From March 17, 1980 to October 31, 1993, Plaintiff

Henson was employed by Defendant City of Greensboro

(City) as a lake warden at the city lakes, working primarily

at Lake Brandt. His official job responsibilities included

selling permits, selling fishing licenses, opening and closing

the lakes, mowing and keeping up the grounds, keeping the

boats clean and in good repair, enforcing safety rules,

weighing fish for contests, using the patrol boat, and

cleaning the office and rest rooms.

On February 10, 1993, the Plaintiff was involved in

an automobile accident. Within four or five days, he was

treated for back pain by an internist who prescribed muscle

relaxers and pain medication. When the back pain persisted,

Henson consulted an orthopedic specialist on April 21, 1993,

who issued a report stating that he was able to return to light

work that involved no frequent bending, stooping, or

squatting and no lifting of objects over fifteen pounds.

Plaintiff continued to work for the City until June 2,

1993 when intensified pain in the back and numbness in the

left leg sent him to his orthopedist for a second time. The

orthopedist ordered him off his job and to bed rest until June

21, 1993. The Plaintiff never returned to work for the City.

On June 23, 1993, the attorney who represented

Henson in connection with his automobile accident, wrote

letters to various city employees. Enclosed with the letters,

was a report from Plaintiff's orthopedist, dated June 22,

1993 that ordered two more weeks out of work with bed

rest. By letters dated July 7 and 8, 1993, the attorney

furnished the City with additional reports from the

orthopedist stating that Henson was still unable to return to

carry out his regular job duties and inquired about the

possibility of the Plaintiff's returning to work during his

recovery period in a capacity different from the one

previously held.

The City’s personnel director responded in writing

explaining that it would be necessary for the Plaintiff to be

evaluated by the City’s Medical Services Department, who

would confer with Plaintiff's doctors and make arrangements

A-2

—————————eo

for him to return to work if a suitable position could be

found. Neither the Plaintiff nor the City made any effort to

schedule an appointment, and there was no further discussion

about trying to find suitable employment. Two months

elapsed thereafter with no contact between the Plaintiff and

the City.

Henson came under the care of a family practice

physician on September 17, 1993, who opined that although

the Plaintiff was improving, he was still unable to work in

any capacity as of that date. The physician expressed the

same opinion again on October 25, 1993. The family

practice physician could not determine precisely when the

Plaintiff might be able to return to work.

As a result of Plaintiff's failure to inform the City of

a prognosis for his return to work and because of an acute

manpower shortage within the work unit, the City released

the Plaintiff from his position on October 31, 1993.

Plaintiff filed a Complaint on December 8, 1994,

alleging that the City discriminated against him and

wrongfully terminated him in violation of the Americans

with Disabilities Act (ADA). Defendant subsequently filed

a Motion for Summary Judgment, which is presently before

this Court.

Analysi

The Court will grant summary judgment when no

genuine dispute of material facts exist and the moving party

is entitled to judgment as a matter of law. Anderson v.

Liberty Lobby, Inc., 477 U.S. 242 (1986). In considering

Defendant’s motion, the Court views the underlying facts

and all reasonable inferences drawn therefrom in the light

am 3

most favorable to the party opposing the summary judgment.

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475

U.S. 574 (1986). Where the Plaintiff is unable to produce

sufficient evidence beyond the bare allegations of the

Complaint to support an essential element of his case,

summary judgment is appropriate. Celotex Corp. v. Catrett,

477 U.S. 317 (1986).

In Ennis v. National Assn. of Bus. & Educ. Radio,

Inc., 53 F.3d 55 (4th Cir. 1995), the court established the

elements for a prima facie case of wrongful discharge in

violation of the ADA. Essentially, the plaintiff must prove

that (1) he was in the protected class; (2) he was discharged;

(3) at the time of the discharge, he was performing his job

at a level that met the employer’s legitimate expectations;

and (4) his discharge occurred under circumstances that raise

a reasonable inference of unlawful discrimination. Id. at 58.

The Defendant makes two argument in the Motion for

Summary Judgment in regard to the Ennis factors. The first

argument is that Henson was not in the protected class. The

second argument is that Henson cannot meet his burden of

proving that he met the City’s legitimate expectations with

his work performance or that the circumstances raise a

reasonable inference of unlawful discrimination.

The Court finds that Henson is not within the class of

people protected by the ADA. Even if Plaintiff could

demonstrate that he is "disabled" under the ADA in that he

suffers from an impairment that “substantially limits" a

major activity, he is unable to come forward with specific

facts showing that there is a genuine issue with respect to his

status as a qualified individual.'

Under the ADA, a "qualified individual" is "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) (West 1995). The Court’s chief

consideration then is whether Henson can perform the

essential functions of his job as a lake warden.

In determining which job functions are essential, the

ADA instructs that “consideration shall be given to the

employer’s judgment as to what functions of a job are

essential, and if an employer has prepared a written

description before advertising or interviewing applicants for

the job, this description shall be considered evidence of the

essential functions of the job." 42 U.S.C.A. § 12111(8)

(West 1995). A job function may be considered essential if,

inter alia, (1) the reason the position exists is to perform the

function; (2) there are a limited number of employees

available among whom the performance of the job function

can be distributed, or (3) the function is highly specialized

so that the incumbent in the position is hired for his ability

to perform the particular function. 29 C.F.R. § 1630.2(n)(2)

(1995).

The job at issue is known as "lake warden," "park

ranger," or “park specialist." A listing of the job duties and

responsibilities for full and part-time lake wardens is

included in the record. The description states that wardens

' Under the ADA, “disability” means "a physical or mental impairment

that substantially limits one or more of a person’s major life activities." 42

U.S.C.A. § 12102(2)(A) (West 1995).

A-5

must "do mowing, weed eating and keep up the grounds,"

“weigh fish," and “help keep boats pumped out, dipped,

cleaned and in good repair." The job description also

specifically notes that "trim must be cut with push mower"

and that the warden must “pick up litter on grounds as

required." (Smith Dep. Ex. 38.)

Although the position summary is not conclusive

evidence of the essential functions of a lake warden, the

duties and responsibilities listed in the document are

"functions that bear more than a marginal relationship to the

job at issue." Tyndall v. National Educ. Centers, 31 F.3d

209, 213 (4th Cir. 1994). Thus, the "plaintiff bears the

burden of demonstrating that [he] could perform the essential

functions of [his] job with reasonable accommodation." Id.

at 213 (citing Lucero v. Hart, 915 F.2d 1367, 1371 (9th Cir.

1990)).

Of his listed official duties, Henson had many

physically demanding job assignments. His eight percent

disability of the back gave him notable limitations on lifting,

Standing, stopping and bending. Accommodating Plaintiff's

disabilities would require more than just the reassignment of

those peripheral tasks that Plaintiff is unable to perform; it

would require redefinition of the essential functions of his

job. "[T]he duty of reasonable accommodation does not

encompass a responsibility to provide a disabled employee

with alternative employment when the employee is unable to

meet the demands of his present position." Myers v. Hose,

50 F.3d 278, 283 (4th Cir. 1995). See also, Guillot v.

Garret, 970 F.2d 1320, 1326 (4th Cir. 1992). Reasonable

accommodation also does not mean that an employer must

allow an employee to miss work indefinitely. See Tyndall,

31 F.3d at 214.

:

The City held Henson’s job open for five months

after his last day of work. At the time Henson was removed

from the payroll, his doctor was of the opinion that he was

unable to work and could not say when he would be able to

return to work. These factors, taken as a whole, support the

conclusion that the Plaintiff was unable to perform the

essential functions of the position he then held, with or

without reasonable accommodation. Since the Court finds

that Henson is not a qualified individual under the ADA, it

need not address the second argument presented in

Defendant’s Motion.

Conclusion

The Defendant’s Motion for Summary Judgment is

granted. Plaintiff has failed to come forward with facts

sufficient to form a genuine issue that he is a qualified

individual and thus in the class of individuals protected under

the ADA.

Senior United States District Judge

December 12, 1995.

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

‘

Ropert C. Henson,

Plaintiff-Appellant,

v.

4 No. 96-1071

THe City oF Greensporo, NortTuH

CAROLINA,

Defendant-Appellee.

pa

Appeal from the United States District Court

for the Middle District of North Carolina, at Greensboro.

Richard C. Erwin. Senior District Judge.

(CA-95-22-2)

Submitted: January 31, 1997

Decided: February 24, 1997

Before HALL. WILLIAMS, and MOTZ, Circuit Judges.

Affirmed by unpublished per curiam opinion.

COUNSEL

Norman Barrett Smith. SMITH, FOLLIN & JAMES, Greensboro,

North Carolina, for Appellant. Martin N. Erwin, John J. Korzen,

SMITH, HELMS, MULLISS & MOORE, L.L.P., Greensboro, North

Carolina, for Appellee.

—_—-_

BEST AVAIL:

2 HENSON v. THE City oF GREENSBORO

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

OPINION

PER CURIAM:

Robert Henson appeals from the district court's order granting

summary judgment to the Defendants and dismissing Henson's ac-

tion under the Americans with Disabilities Act (ADA), 42 U.S.C.

S$ 12101-12213 (1994). We affirm.

Henson, a former lake ranger employed by the City of Greensboro

(City), claims that the City had the duty, under the ADA, to reason-

ably accommodate him when he injured his back in a non-work

related automobile accident. See 29 C.F.R. § 1630.9(a) (1995). To

bring a claim under the ADA, Henson must establish that he: (1) has

a disability, (2) is otherwise qualified for the employment or benefit

in question, and (3) was excluded for the employment or benefit due

to discrimination solely on the basis of the disability. See Tyndall! v.

National Educ. Ctrs., 31 F.3d 209, 212 (4th Cir. 1994).* The ADA

defines a qualified individual 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) (1995). Review of the record reveals

that Henson can no longer perform the essential job functions of lake

ranger and therefore, he is not a qualified individual. Accordingly, we

affirm the district court's order.

We dispense with oral argument because the facts and legal conten-

*The district court relied on the proof scheme established in

McDonnell Douglas Corp. v. Green. 411 U.S. 792 (1979). However.

because there is no factual dispute over the reasons for discharge, this

proof scheme is not appropriate. See Williams v. Channel Master Satel-

lite Sys., Inc., 101 F.3d 346, 348 n.1 (4th Cir. 1996). Regardless, under

the proof scheme of Tyndall, Henson fails to make out a prima facie case

of discrimination under the ADA.

A-9

Hevson Vv. THE City oF GREENSBORO 3

tions are a‘eguaiely presented in the materials before the court and

argument would not aid the decisional process.

AFFIRMED

A-10