United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 20, 1999 Decided December 14, 1999
No. 99-7046
Virginia Flemmings,
Appellee
v.
Howard University,
Appellant
Appeal from the United States District Court
for the District of Columbia
(No. 97cv02137)
Squire Padgett argued the cause and filed the briefs for
appellant.
Jonathan G. Axelrod argued the cause and filed the brief
for appellee.
Before: Sentelle, Henderson and Garland, Circuit
Judges.
Opinion for the Court filed by Circuit Judge Sentelle.
Sentelle, Circuit Judge: Appellee Virginia Flemmings
filed suit against Howard University, her former employer,
for violating the Americans with Disabilities Act of 1990, 42
U.S.C. s 12101 et seq. (the "ADA"). Flemmings suffers from
vertigo and Meniere's disease, which in 1996 and 1997 first
substantially limited her ability to drive, then precluded her
from working at all. Although Flemmings was on medical
leave for most of the period in question, she claims that
Howard failed to reasonably accommodate her disability by
refusing her request for a revised schedule so that she could
car pool with her husband and son. Howard counters that,
for the time period at issue, Flemmings was not an otherwise
qualified individual with a disability as defined by the ADA,
and that even if she was, Howard did not fail to offer her a
reasonable accommodation.
The district court granted summary judgment for Flem-
mings and against Howard, finding that Flemmings was a
qualified individual as defined by the ADA and that the
revised schedule would not have presented an undue hardship
for Howard. Howard appeals that judgment. Because we
find that there was no date for which Flemmings has offered
evidence substantiating both an accommodatable disability
and a denial of accommodation, we vacate the district court's
grant of summary judgment for Flemmings, and order the
district court to issue an order granting summary judgment
for Howard.
I
Appellee was an administrative assistant to Dr. Janette
Dates, Dean of Howard's School of Communications. Her
responsibilities included making and screening phone calls,
writing and typing letters, handling the mail, filing, keeping
the Dean's appointment book, attending staff meetings, and
so forth. The Dean considered Flemmings a good employee,
although their relationship was strained after an incident in
September, 1996, when a visitor to the office accused Flem-
mings of rude behavior.
In early November, 1996, Flemmings orally informed the
Dean that she was suffering from vertigo, that the condition
left her unable to drive to work, and that she needed to
change her schedule--from 9:00 a.m. to 5:30 p.m., with a one-
hour lunch break, to 8:30 a.m. to 4:00 p.m., without a lunch
break--so that she could car pool with her son and husband.
In a memorandum dated December 1, 1996, Flemmings reit-
erated in writing her need for this revised schedule, and
indicated that the accommodation would be temporary. The
Dean permitted Flemmings to work the revised schedule
through November and December, although sometimes she
gave appellee assignments at or near 4:00 p.m. which re-
quired her to work late.
On January 7, 1997, the Dean initiated a meeting with
appellee and Donald Rainey, Howard's Director of Employee
and Labor Relations, to discuss appellee's revised work
schedule. Rainey claims to have told appellee that she could
not unilaterally change her hours and that Howard was not
obligated to accommodate her without medical documentation
substantiating her need to leave work at 4:00 p.m. Appellee
maintains that Rainey told her only that she had to work a
regular 8:30 a.m. to 5:00 p.m. schedule, and that Howard did
not request medical documentation at that time. Regardless,
the day after the meeting with the Dean and Rainey, appellee
provided Rainey with a letter from Dr. Richard Lewis dated
December 20, 1996. In the letter, Dr. Lewis described
appellee as experiencing headaches, vertigo, and a sense of
imbalance; diagnosed her as suffering potentially from Meni-
ere's syndrome; and suggested a course of treatment includ-
ing medication, dietary changes, and physical therapy. The
letter did not discuss any limitations on appellee's ability to
work or her need, if any, for an accommodation from Howard.
Friday, January 17, 1997, was the last day that Flemmings
physically worked at Howard. She took vacation leave from
January 20 through February 3, 1997. On January 27, 1997,
she forwarded to the Dean a letter from Dr. Jerelle Copeland
diagnosing her with vertigo and migraine headaches exacer-
bated by work related stress and recommending a ninety-day
leave of absence. Howard granted appellee's request for
medical leave. In April, 1997, Flemmings forwarded letters
from Drs. Lewis and Copeland documenting her continued
illness and recommending further medical leave through Au-
gust, 1997. Again, Howard granted appellee's request.
Throughout this period, until August 16, 1997, Howard contin-
ued to pay Flemmings her full salary, deducting from her
available sick leave until it was exhausted.
On May 30, 1997, the Dean sent Flemmings a letter
requesting further documentation of her disability and sug-
gestions for a reasonable accommodation. On June 9, 1997,
Flemmings provided Howard with another letter from Dr.
Copeland indicating that Flemmings was "not medically sta-
ble to return to work," and that Dr. Copeland could not
determine how long she would be so disabled. Flemmings
concedes that, as of June 9, her health had deteriorated to
such a degree that she was completely unable to work even
with an accommodation.
Despite appellee's inability to work, in a letter dated July 8,
1997, her attorney requested the modified 8:30 a.m. to 4:00
p.m. schedule or disability retirement. On July 24, 1997,
appellee sent a memorandum to Dates requesting advance
sick leave through August 31, 1997. In a letter dated August
11, 1997, Howard offered Flemmings a schedule of 8:30 a.m.
to 5:00 p.m. and indicated that this schedule was the only
accommodation Howard would provide. On September 29,
1997, Howard's attorney wrote a letter to Flemmings reit-
erating the previous offers of retirement or the 8:30 a.m. to
5:00 p.m. schedule, but stating that her employment had been
terminated because she had not returned to work. In a
subsequent letter dated October 15, 1997, the Dean also
informed Flemmings that her employment had been termi-
nated effective September 29, 1997. In the only claim rele-
vant to this appeal, Flemmings sued Howard University
under the ADA for failing to reasonably accommodate her
disability--Meniere's disease and vertigo.
On cross motions for summary judgment, the district court
granted summary judgment in favor of the plaintiff. The
court found that Flemmings was a qualified individual: Her
job was not highly specialized, her job description did not
require a rigid 8:30 a.m. to 5:00 p.m. schedule, and she could
perform the essential functions of her job as an administra-
tive assistant with a modified work schedule. The court then
found that providing Flemmings with an 8:30 a.m. to 4:00 p.m.
work schedule would not have presented an undue hardship
for Howard: Granting Flemmings' request would not have
required additional financial resources or impacted the overall
operation of the Dean's office, and the Dean could have
assigned late day work to another of her administrative
assistants.
In a second order, the district court recognized appellee's
claim that she would have worked from January 27 through
June 9, 1997, if Howard had given her the requested revised
work schedule, and that she would have taken sick leave from
June 9 through October 15, 1997. On that basis, the court
entered judgment for the plaintiff in the amount of
$16,524.73, representing the aggregation of the salary Flem-
mings would have earned had she worked from January 27
through June 9, offset by the amount Howard actually paid
her from January 27 through August 16, plus pre-judgment
and post-judgment interest. The court also ordered Howard
to reinstate Flemmings so that she might retire and to take
the necessary steps to provide Flemmings with retirement
benefits due her. Howard appeals the district court's judg-
ment.
II
An appellate court reviews a grant of summary judgment
de novo, applying the same standard as governed the district
court's decision. See, e.g., Greene v. Dalton, 164 F.3d 671,
674 (D.C. Cir. 1999). Summary judgment is appropriate
when "the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact
and that the moving party is entitled to a judgment as a
matter of law." Fed. R. Civ. P. 56(c). In deciding whether
there is a genuine issue of material fact, the court must view
all evidence presented by the nonmovant as presumptively
valid and draw all reasonable inferences in its favor. See,
e.g., Smith-Haynie v. District of Columbia, 155 F.3d 575, 579
(D.C. Cir. 1998) (citing Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 255 (1986)).
III
The ADA does not cover every individual with an impair-
ment who suffers an adverse employment action. See, e.g.,
Sutton v. United Air Lines, Inc., 119 S. Ct. 2139 (1999).
Instead, the ADA more specifically prohibits discrimination
by an employer "against a qualified individual with a disabili-
ty because of" that disability. 42 U.S.C. s 12112(a). The
ADA explicitly defines "discrimination" as
not making reasonable accommodations to the known
physical or mental limitations of an otherwise qualified
individual with a disability who is an applicant or employ-
ee, unless such covered entity can demonstrate that the
accommodation would impose an undue hardship on the
operation of the business of such covered entity.
42 U.S.C. s 12112(b)(5)(A). Most pertinent for this case, the
ADA defines "disability" as "a physical or mental impairment
that substantially limits one or more of the major life activi-
ties of" an individual, 42 U.S.C. s 12102(2)(A); and "reason-
able accommodation" as including "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. s 12111(9). Far from protecting
all impaired individuals from any sort of adverse employment
action, the ADA protects a much more narrowly defined class
of persons from particular types of discriminatory acts by
employers. Endeavoring to fit her circumstances with the
various statutory requirements, appellee maintains that she
was disabled because she could not drive, and that by refus-
ing to give her a revised work schedule so that she could car
pool with her husband and son, Howard denied her a reason-
able accommodation which would have allowed her to contin-
ue working. Howard's position is that, for the time period at
issue, appellee was not an otherwise qualified individual with
a disability as defined by the ADA, and that even if she was,
Howard did not fail to offer her a reasonable accommodation.
Just last year, in Aka v. Washington Hospital Center, 156
F.3d 1284 (D.C. Cir. 1998) (en banc), this court addressed the
protocol for evaluating reasonable accommodation claims un-
der the ADA. In that case, we held that a reasonable
accommodation claim is not subject to the familiar three-part
analysis of McDonnell-Douglas Corporation v. Green, 411
U.S. 792 (1973), "but has its own specialized legal standards."
Id. at 1288 (citing Barth v. Gelb, 2 F.3d 1180, 1186 (D.C. Cir.
1993). Aka adopted for ADA claims Barth's thorough analy-
sis of the applicability of McDonnell-Douglas to such claims
in the Rehabilitation Act context. See Aka, 156 F.3d at 1288,
1300-03; Barth, 2 F.3d at 1185-87. Barth, in turn, recog-
nized three types of handicap discrimination claims, with
special standards of evaluation for each: (1) where the em-
ployer claims non-discriminatory reasons for its adverse em-
ployment action; (2) where the employer maintains that the
employee is not an otherwise qualified individual with a
disability, or that no reasonable accommodation is available,
so that the plaintiff falls outside the scope of ADA protection;
and (3) where the employer offers the affirmative undue
hardship defense for its actions. See id. at 1186.
The present case resembles both the second and third
Barth scenarios, in that Howard challenges appellee's claim
that she is protected by the ADA as a qualified individual
with a disability, and maintains that the revised schedule she
requested would have imposed an undue hardship. Applying
traditional burden of proof standards to the ADA's statutory
elements, as advocated by Aka and Barth for such cases,
appellee carries the burden of proving by a preponderance of
the evidence that she has a disability, but with a reasonable
accommodation (which she must describe), she can perform
the essential functions of her job. See Aka, 156 F.3d at 1300-
01; Barth, 2 F.3d at 1186. Since Howard has invoked the
affirmative defense of undue hardship, Howard bears the
burden of establishing hardship based on several factors,
including the nature and cost of the proposed accommodation,
and the resources and circumstances of the employer in
question. See 42 U.S.C. s 12111(10)(B) (listing the relevant
factors to be considered in evaluating undue hardship). Thus,
for appellee to prevail, she must prove her case, and Howard
must fail in its defense.
Appellee's case relies on a combination of two arguments of
law which give us pause. First, she claims that she was
disabled because vertigo and Meniere's disease prevented her
from driving, which she suggests is a major life activity.
Second, she contends that an employer's ADA accommodation
obligation extends to helping a qualified disabled employee
get to work in the first place. Driving was not one of her job
duties. Indeed, she does not dispute, and in fact adamantly
maintains, that she was fully capable of performing the duties
of her job once she got to work, despite her condition.
Instead, she only requested the revised schedule so that she
could car pool with her son and husband at times convenient
to them, rather than find some other means of getting to
work or prevail upon her family to make the change in
commuting schedule necessary to accommodate her.
While appellee's reading of the ADA is questionable, we
need not resolve these issues her case has raised, as her claim
lacks an even more fundamental element. An underlying
assumption of any reasonable accommodation claim is that
the plaintiff-employee has requested an accommodation which
the defendant-employer has denied. See Mole v. Buckhorn
Rubber Products, Inc., 165 F.3d 1212, 1217-18 (8th Cir. 1999);
Taylor v. Principal Financial Group, Inc., 93 F.3d 155, 164-
65 (5th Cir. 1996). In the case before us, the parties have
agreed that the relevant time period is January 27 through
June 9, 1997; that is beginning with the date Flemmings
provided Howard with Dr. Copeland's letter, which she claims
substantiated her need for an accommodation, and ending
with the date at which Flemmings concedes that she was
wholly unable to work either with or without an accommoda-
tion, and thus fell beyond the scope of the ADA's protection.
During that period of time, the only accommodation Flem-
mings requested was a medical leave of absence, which
accommodation Howard readily granted. Flemmings main-
tains that she only requested medical leave because Howard
denied her a revised work schedule, but nothing in the record
supports that allegation. The January 27 letter from Dr.
Copeland, as well as the April letters from Drs. Copeland and
Lewis, are explicit in recommending a medical leave of ab-
sence so that Flemmings could pursue treatment for her
condition, and say nothing about a revised work schedule.
Flemmings' requests for a revised work schedule were made
prior to January 27, when she had not substantiated her need
for any accommodation, and after June 9, when she concedes
she could not have worked anyway. Thus, even reading all
submitted evidence in the light most favorable for Flem-
mings, no reasonable jury could find that Howard denied her
a reasonable accommodation after she provided documenta-
tion substantiating her need for one.
Conclusion
The decision of the district court is reversed, and the case
remanded for the entry of summary judgment in favor of
Howard.