concurring separately.
I concur with the opinion of my colleagues and agree that summary judgment of dismissal against Mr. Perkins was entirely warranted on the record in this case. I write separately, however, in order to emphasize two points.
First, the employer in this case, Saint Louis County, maintained a generous policy on absenteeism. The policy provided for reasonable but escalating punishment for excessive absences and even went so far as to provide counseling services in order to modify unsuitable behavior. In return, the policy required common sense, good faith efforts by employees to notify their supervisors of impending absences and, where appropriate, to provide documentation of alleged illness.
Even if we assume, arguendo, that Mr. Perkins is a “qualified individual” and suffers under a “disability” — within the meaning ascribed to those terms under the ADA — he failed to show, in any fashion, that St. Louis County “discriminate[d] against [him] because of the disability” as he was required to do in order to make out a prima facie ease under the statute.2
The facts of this case show plaintiff guilty of truly excessive absences. He had dozens of well chronicled absences, none of which may be explained by Meniere’s disease. His poor attendance led, progressively, from verbal warnings to written warnings; then from written warnings to four separate counseling sessions; then from counseling to independent periods of suspension. He was suspended for three days. Then more absences. He was suspended for five days. More absences. He was suspended for ten days. Finally, the Meniere’s-related absence which broke the camel’s back became unexcused— and therefore grounds for his prompt termination — when he failed to properly notify his employer, as he was required to do.'
The record establishes that Mr. Perkins abused St. Louis County’s absenteeism policy. Under these circumstances, the employer has established a separate cause for discharge wholly apart from the incidents related to Meniere’s disease. Perkins was fired because of unreliability as a general matter, not because of his disability. I would affirm on these grounds.
Second, I observe that this court’s opinion should not be read to imply that Meniere’s disease is outside the bounds of disability per se. Under other circumstances, periodic dizzy spells attributed to Meniere’s disease might well require an employer to make reasonable accommodation under the ADA. This, however, is not that case.
. The statute, 42 U.S.C. § 12112(a), creates the baseline prohibition of the ADA by stating that "fn]o covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.” (emphasis added).