Ferguson v. Western Carolina Reg

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

NATALIE J. FERGUSON,
Plaintiff-Appellant,

v.

WESTERN CAROLINA REGIONAL SEWER
No. 96-1277
AUTHORITY,
Defendant-Appellee,

EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION,
Amicus Curiae.

Appeal from the United States District Court
for the District of South Carolina, at Greenville.
Henry M. Herlong, Jr., District Judge.
(CA-94-3404-6-20AK)

Argued: October 28, 1996

Decided: December 30, 1996

Before WIDENER and ERVIN, Circuit Judges, and BULLOCK,
Chief United States District Judge for the Middle District of
North Carolina, sitting by designation.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Julie Michaels Bondura, HARMON LAW FIRM, P.A.,
Greenville, South Carolina, for Appellant. Dori Kay Bernstein,
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Wash-
ington, D.C., for Amicus Curiae. Thomas Allen Bright, HAYNS-
WORTH, BALDWIN, JOHNSON & GREAVES, P.A., Greenville,
South Carolina, for Appellee. ON BRIEF: Roy F. Harmon, III, HAR-
MON LAW FIRM, P.A., Greenville, South Carolina, for Appellant.
C. Gregory Stewart, General Counsel, Gwendolyn Young Reams,
Associate General Counsel, Carolyn L. Wheeler, Assistant General
Counsel, EQUAL EMPLOYMENT OPPORTUNITY COMMIS-
SION, Washington, D.C., for Amicus Curiae. Susan Eglin Sykes,
HAYNSWORTH, BALDWIN, JOHNSON & GREAVES, P.A.,
Greenville, South Carolina; Stephen H. Brown, HILL, WYATT,
BANNISTER & BROWN, Greenville, South Carolina, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Plaintiff appeals the district court's granting of her former employ-
er's motion for summary judgment in her action alleging employment
discrimination in violation of the Americans with Disabilities Act
(ADA), 42 U.S.C. § 12101 et seq. The district court found that her
alleged impairments--hypothyroidism, irritable bowel syndrome, and
diverticulosis--did not, either alone or in combination, constitute a
disability under the ADA. Because we find that the undisputed facts
show that Plaintiff was terminated for legitimate, non-discriminatory
reasons unrelated to her alleged disability we do not find it necessary
to consider Plaintiff's arguments concerning the proper definition of
the term "disability" under the ADA. See McMahan v. International
Ass'n of Bridge, Structural and Ornamental Iron Workers, 964 F.2d
1462, 1467 (4th Cir. 1992) ("We of course have the power to affirm
a judgment for any reason appearing on the record, notwithstanding
that the reason was not addressed below.") (citing Blum v. Bacon, 457
U.S. 132, 137 n.5 (1982)).

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I.

Plaintiff was hired by Defendant in October 1973, and at the time
of her termination performed the duties of clerk/typist/receptionist
under the supervision of administrative assistant Beverly Gunter.
Plaintiff suffers from hypothyroidism, irritable bowel syndrome, and
diverticulosis. In May 1992, soon after Plaintiff's hypothyroidism was
diagnosed, Defendant's executive director offered to let her work a
three-day week. Plaintiff declined the offer at that time. In
August 1992, Plaintiff was allowed, at her request, to work a three-
day work week, the first of which ended on August 9, 1992. She
worked the first day of the next week and was out for the remainder
of the week. A doctor's note indicated that she was sick on
August 12, 13, and 14.

On August 19, 1992, Plaintiff met with Gunter and Ray Orvin,
Defendant's assistant director, for a performance evaluation. The
review was critical of Plaintiff's absenteeism, and her medical prob-
lems were discussed. Plaintiff became upset. Plaintiff was told that
she needed to be evaluated by a doctor to determine whether she was
physically able to work the 37-1/2 hour normal work week or should
take a leave of absence. Plaintiff did not want to take a leave of
absence. Shortly after the meeting Plaintiff left her job and went
home. According to Plaintiff, she was given permission to leave, but
this is disputed. Regardless, Gunter called Plaintiff approximately
three hours later and directed her to return to work. Plaintiff stated
that she was sick with a migraine headache and that Orvin had given
her permission to leave work. Orvin then spoke with Plaintiff and told
her that she did not have permission and that she must return to work
that day. Plaintiff refused, stating that she was too sick and had taken
medication. However, she did drive back later to pick up her husband
who was also employed by Defendant.

The next day Plaintiff saw her doctor, but did not go to work after
her doctor's appointment. She attempted to call Gunter to report that
she still had a headache and would not be at work, but was unable to
speak with her. That afternoon Orvin contacted Plaintiff and directed
her to come to the office to discuss her situation and her behavior the
previous day. Plaintiff refused, stating that she was not well enough
to drive to work, although she had driven to the doctor that morning.

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Plaintiff was terminated for abandoning her job during working hours
and for insubordination for her refusal to return to work. Plaintiff then
filed the instant lawsuit, alleging that Defendant wrongfully termi-
nated her employment because of her disabilities and failed to provide
reasonable accommodation in violation of the Americans with Dis-
abilities Act.

Following discovery, the district court granted Defendant's motion
for summary judgment, finding that "no reasonable jury could find
that Ferguson's impairments, either alone or in combination, consti-
tute a disability under the ADA." Defendant contends that the district
court's decision can be upheld on any of three grounds: (1) that Plain-
tiff is not disabled within the meaning of the Act; (2) that if she was
disabled Defendant fulfilled its legal obligation to reasonably accom-
modate her; and (3) that she was terminated for legitimate, non-
discriminatory reasons.

II.

It is beyond dispute that an employee may be discharged for violat-
ing a workplace rule and for insubordination. See Little v. FBI, 1 F.3d
255, 259 (4th Cir. 1993) (employer may terminate employee because
of misconduct even though employee is handicapped). Even assuming
that Plaintiff initially believed she had permission to leave work on
August 19, she refused her supervisor's subsequent direction to return
to the office, contending that she was sick. Yet she admitted in her
deposition that she later drove to pick up her husband from work. Fur-
thermore, Plaintiff was insubordinate again on August 20 when she
refused to heed Orvin's instruction to return to the office to discuss
her situation. Again, Plaintiff gave the excuse that she was too sick
to drive, but admitted that she had driven to the doctor that morning.

The record is clear that Defendant was sympathetic and accommo-
dating to Plaintiff's condition, literally allowing her to work when
able. When Defendant finally sought to reach some understanding
with her which would allow her job to be covered she became insub-
ordinate and disobeyed her supervisor's orders to return to work on
two separate days. Thus, even if Plaintiff is a person with a disability
within the meaning of the ADA, she was terminated for legitimate,
non-discriminatory reasons.

AFFIRMED

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