UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

DIETER HUPPENBAUER,

Plaintiff-Appellant,

v.

No. 95-1032

THE MAY DEPARTMENT STORES

COMPANY,

Defendant-Appellee.

Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

Claude M. Hilton, District Judge.

(CA-94-635)

Argued: December 4, 1995

Decided: October 23, 1996

Before WIDENER, ERVIN, and WILKINS, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished opinion. Judge Ervin wrote the opinion, in

which Judge Widener and Judge Wilkins joined.

_________________________________________________________________

COUNSEL

ARGUED: John Wyeth Griggs, GRIGGS & ADLER, Reston, Virginia, for Appellant. Ronald John Dolan, THE MAY DEPARTMENT

STORES COMPANY, St. Louis, Missouri, for Appellee. ON

BRIEF: Debra B. Adler, GRIGGS & ADLER, Reston, Virginia, for

Appellant. Mary V. Schmidtlein, Office of Legal Counsel, THE MAY

DEPARTMENT STORES COMPANY, St. Louis, Missouri; David
D. Hudgins, Jacqueline E. Bennett, HUDGINS, CARTER & COLEMAN, Alexandria, Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

ERVIN, Circuit Judge:

Deiter Huppenbauer, a former shoe salesperson in the Hecht's

Department Store ("Hecht's") (owned by the May Department Stores

Company), claims that Hecht's failed to honor his request for reasonable accommodation, in violation of the Americans with Disabilities

Act ("ADA"), 42 U.S.C. § 12101 et seq. He also claims that Hecht's

did not pay him what he was owed under his employee compensation

contract. At trial, after Huppenbauer's case-in-chief, the district court

found insufficient evidence to support a reasonable jury verdict in his

favor and entered judgment against him on both claims. Huppenbauer

now challenges that dismissal and certain related evidentiary rulings.

We affirm.

I.

Deiter Huppenbauer, in his late 50's, suffers from a number of

health problems, including coronary artery disease, cirrhosis of the

liver, gout, and arthritis. In 1984, he had a heart attack and underwent

coronary artery bypass surgery. After the surgery, the heavy trays and

late nights of his restaurant job became too taxing, and Huppenbauer

found a job as a furniture salesman. He was later fired by the furniture

store and remained unemployed for a time before being hired to work

in the ladies' shoe department of Hecht's in July 1990.

At the outset, Huppenbauer assured the Hecht's interviewer that his

"health was good," and that he was able to do the job. He also signed

an application form stating that he had no condition which would

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impede his job performance. However, Huppenbauer found the position strenuous. As many as 200 times per day, Hecht's shoe salespeople must go in and out of the stock room to retrieve shoe samples,

often from high or low shelves, and must get on their knees to try

shoes on customers. The salespeople spend most of their day on their

feet and must walk quickly on busy sales days. In addition to serving

customers on the sales floor, Hecht's requires the sales associates to

spend about an hour per day performing "normal stock work," that is,

carrying shipping cartons into the stock room, unpacking them, organizing and stocking the shelves, and cleaning the stock room. At

times, the commissioned salespeople are assigned"special stock

work," which takes them away from the sales floor for extended periods.

Huppenbauer claims to have spent an inordinate amount of time

doing stock room duties, which he found to be very demanding. He

carried heavy cartons of shoes to his assigned section on the stock

room's second floor and often had to reach up high or get on his

knees to restock the shelves. He claims that "expediters," employees

assigned to assist with heavy lifting, were generally not available to

help him.1 He describes the stock room as poorly ventilated and permeated with chemical and other foul odors.

Huppenbauer claims that, although his health was good when he

came to Hecht's, the stock room work made him sick. During the

early period of employment, Huppenbauer performed well, even earning the company's highest "diamond star" sales award. During 1992,

however, his performance declined and his absences increased. Huppenbauer claims that the heavy lifting and fumes caused him chest

pain, headaches, dizziness, and difficulty breathing. He began visiting

doctors more frequently, and was diagnosed with arthritis, gout, and

cirrhosis of the liver. In April 1992, he was admitted to Reston Hospital with chest pain. During June, July and August of 1993, he missed

a significant amount of work. In September 1993, he was threatened

with termination for low sales and his "diamond star" commendation

pin was taken from him.

_________________________________________________________________

1 There is no evidence that Huppenbauer ever sought increased access

to or special assistance from these "expediters."

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Huppenbauer claims that the Hecht's management knew about his

condition and his difficulties with stock room work. He claims that

his condition was common knowledge and that he discussed his

health problems and his need for accommodation with Hecht's management. In contrast, Hecht's denies that it was aware of Huppenbauer's claimed disability.

From September 15, 1993, through October 7, 1993, and from

October 14, 1993, to October 20, 1993, Huppenbauer was excused

from work by his medical clinic. On October 14, 1993, Huppenbauer's physician diagnosed a hernia, purportedly caused by lifting

heavy boxes in the stock room. After that visit and upon the doctor's

recommendation, Huppenbauer filed an application for extended medical leave. Huppenbauer never returned to work after October 12,

1993; however, according to Hecht's, Huppenbauer was never fired

and is still considered an employee.2

On October 20, 1993, Huppenbauer brought eight causes of action

against Hecht's in the district court. After two of those claims were

dismissed, he filed an amended complaint alleging six causes of

action. In addition to the ADA and contract claims, he alleged Fair

Labor Standards Act violations, national origin discrimination, age

discrimination, and intentional infliction of emotional distress. The

national origin discrimination claim was dropped before trial. At trial,

the district court excluded evidence of Huppenbauer's hernia and evidence pertaining to a front pay remedy. At the conclusion of Huppenbauer's case-in-chief, the May Company moved for a judgment as a

matter of law under Fed. R. Civ. P. 50(a). The court granted the

motion as to all five active claims, and dismissed the case. This

appeal followed.

_________________________________________________________________

2 Paragraph 16 of Huppenbauer's Amended Complaint conceded his

total disability: "Mr. Huppenbauer has been rendered totally disabled and

has been unable to work in any capacity." (J.A. at 38). On February 7,

1994, his attending physician [Dr. Nguyen] wrote a letter stating that in

his opinion "Mr. Huppenbauer is no longer capable to carry out the current physical activities that were required for his job as a shoe salesman"

at Hecht's. (J.A. at 436). He has not worked anywhere since taking his

medical leave in mid-October, 1993.

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II.

The granting of motions under Fed. R. Civ. P. 50(a)(1) is reviewed

de novo. Malone v. Microdyne Corp., 26 F.3d 471, 475 (4th Cir.

1994). The reviewing court must examine--viewing the evidence in

the light most favorable to the non-moving party--whether the record

as a whole presents a sufficient evidentiary basis for a reasonable jury

to find in favor of the non-moving party. Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 250 (1986).

III.

Huppenbauer claims that Hecht's violated the ADA by denying his

request for reasonable accommodation that would have allowed him

to continue working as a salesman. The ADA prohibits discrimination

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.

42 U.S.C. § 12112(a). As construed in the ADA,"discrimination"

includes:

not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual

with a disability who is an applicant or employee . . . .

42 U.S.C. § 12112(5)(A) (emphasis added). After Huppenbauer presented his evidence, the district court concluded that he had failed to

show that he made an actual claim for accommodation, so that his disability and need for accommodation fairly could be said to be

"known" by Hecht's. We agree.

When asked if he had ever supplied any documentation to Dorsey

Lilley, the Director of the Human Resources Department, or to anyone else in that Department, specifically explaining his health problems, Huppenbauer conceded that he had not. Huppenbauer also

 5
concedes that, although his main treating physician was aware of his

stock room work, over his three years of employment no doctor ever

wrote a note for him to give to Hecht's that said that he could not perform his duties at work until his final leave of absence. In fact, notes

written from his doctors stated that he could resume participation in

work and placed no restrictions on his activities. Nevertheless Huppenbauer argues that he gave sufficient notice to Hecht's of his "disability" on a number of occasions. We address each of his assertions

to this effect in turn.

A. Initial Employment Interview

Huppenbauer claims that he informed Hecht's about his disability

during his job interview.

I told Miss King that I left the restaurant business because

of my heart condition, I could not any longer do heavy lifting, trays and so forth and work until 2 and 3 and 4 in the

morning, and that's why I changed and went first into sales

as a furniture salesperson and that's why I was looking at

this point for a sales position.

(J.A. at 103).

It was my belief that at the time when I talked to Miss King

that I mentioned, because of my heart, because of my heart

surgery, it wouldn't prevent me from working. In fact, the

doctor recommended certain movements, which doesn't

mean heavy lifting. I don't know if I faced this the right

way, but I thought I told Miss King that I had a heart condition five years ago. And I was under the impression that

Miss King had somebody in her family who had a similar

problem. Miss King apparently denies it. It was just my

impression. I put a little bit heart and feeling in and said, I

have been a year unemployed, I can work, I performed a

nice, excellent job as a salesperson, I don't see much difference between selling larger items as furniture or selling

beautiful small shoes.

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(J.A. at 118-119). Huppenbauer alleges that King failed to adequately

explain the job requirements to him. Eager to be employed again, he

assured King that he was willing and able to do the job, and he signed

an application form stating that he had no disabling condition that

would impede his job performance. Had he known of the strenuous

stock room duties involved, Huppenbauer claims, he would not have

applied for the job.

Huppenbauer cannot reasonably be found to have made his disability known to Hecht's during the interview. Most obviously, such a

finding conflicts with Huppenbauer's testimony that his "health was

good" and he "did not have anything that prevented [him] from taking

th[e] job at Hecht's." (J.A. at 117). Huppenbauer's theory of the case

is that the stock room work caused him to require accommodation.

His description of the interview reveals that he was eager to be hired

and to convince the interviewer that he would be able to do the job.

In that context, the mere statement that he "had a heart condition five

years ago" cannot constitute notice that he had a disability requiring

accommodation.

B. General Knowledge Among Hecht's Employees and

Management

Huppenbauer contends his "heart condition" was common knowledge at Hecht's:

At one point or the other I am sure that 100 percent of the

people that worked over there, unless they were only there

one or two days or one week, I am sure that everybody

knew that I had a heart condition.

(J.A. at 119). Of course, even if "everyone" knew that Huppenbauer

"had a heart condition," such knowledge would not equal notice to

Hecht's that the condition imposed limitations on Huppenbauer

requiring special accommodation.

C. Emergency Room Incident

Huppenbauer contends that Hecht's was put on notice of his disability when, in 1991, he collapsed on duty and was rushed to the hos-

 7
pital. In support, Huppenbauer submitted emergency room records.

(J.A. 490-92). But those records do not support Huppenbauer's argument. In fact, they indicated that he had no chest pain, that he smelled

strongly of alcohol, and that he had a blood alcohol level of .12. Huppenbauer denied that he had been drinking that day. (J.A. at 122). He

does not dispute that he was released and returned to work the same

day. Certainly, the incident did not constitute valid notice to Hecht's

that Huppenbauer had heart disease requiring accommodation.

D. Requests to Kofteci

Huppenbauer claims that he went to his immediate supervisor,

Serra Kofteci, and asked her to lighten or alter his stock room duties.

 Some times in 1993 I showed Miss Kofteci a letter from

Dr. Schufler (sic) from Reston Hospital . . . . I went to Miss

Kofteci, and to her office and I told her, Miss Kofteci, I am

not feeling well, this stock room is killing me. I said, I got

a letter here, I don't think you are interested in all four

pages, why don't you read just this here. And then maybe

you give me a part-time job or easier job where I can do

that. And I showed her specifically, five, six lines, here . . . .

He (Dr. Shukla) attributes this dizzy spells and angina to

this work environment.

(J.A. at 124-25).

Huppenbauer testified that shortly afterward, Kofteci assigned him

to "lighter, different janitorial work in the stock room and on the sales

floor since the cash registers are on the sales floor." However, about

eight or ten days later, Huppenbauer was returned to his regular stock

room work. (J.A. at 124-26).

In July 1993, after Huppenbauer returned one week late from a

vacation, Kofteci assigned him a larger section of the stock room.

Well, I told her it keeps me away from the sales floor, it

hurts my health, and I would really like to be transferred

either to men's shoe department perhaps at the same store

 8
or to the furniture department. And I did this on two occasions. And my request was denied.

(J.A. at 127).

So, I did more and more stock room work. And I complained to Miss Kofteci. And I told Miss Kofteci because of

that stock room work, you know I am selling less. And it

makes me more sick and I am taking more days off than I

am supposed to be off that sales floor.

(J.A. at 130).

This testimony simply does not indicate that Huppenbauer made a

request for accommodation based on a disability. First, the statement

indicates Huppenbauer's primary concern with being taken from the

sales floor, rather than with the stock room's effect on his health. Second, by asking to be transferred to the men's shoe department, Huppenbauer undermines his entire claim. Presumably, the men's shoe

department also has a stock room, filled with even heavier boxes of

shoes. An offhanded reference to his health cannot rescue this request

for Huppenbauer.

E. Conversations With Upper Management

Huppenbauer claims that he also approached Hecht's managers

about changing his job assignments, transfer or part-time status.

One day I approached a manager who was above Miss

Kofteci, her name was Andrea Rosenfeld. And I talked to

one other person, but first I think I went to Miss Rosenfeld

. . . . It was in September I think . . . . I asked her [Rosenfeld] if she could help perhaps being transferred or getting

part-time job at the ladies' shoe department . . . . Her reply

was since it was past 10 o'clock in the evening, I think the

store was open until midnight that day, she said, Erich, I am

too busy at this point, I ask you a favor, please, we are short

already and I know you have problems, I showed her some

medication I was taking that day, she said, I know you have

 9
problems, but please stay to the end and tomorrow or if

Serra Kofteci is off tomorrow, the day after, I will talk to her

and see if I can help you to get an easier position with this

company. However, I never got any reply.

(J.A. at 131-32).

I talked to Miss Lilley . . . Director of Human Resources . . .

[a]round the same time. Everything must have happened in

August, September or shortly before I was forced to leave.

. . . I first explained the problems I was having with my

health on a daily basis, especially chest pain and especially

gout. And I explained that I, that more and more I have this

gout and arthritis. And we had a quite friendly conversation.

She recommended a medication, some shots that she probably had before, it is called cortisone I think. You get it for

muscle relations, for strong pain. I said maybe I do it, maybe

I don't. I don't like needles and shots too much.

And I said, what can I do to probably get a transfer. As far

as I know, Miss Lilley informed me that it would mean a

drop in salary to approximately $7.50. As far as I know, I

said, I am going to think about it. When I talked about

transfer--I mean, I talked about part-time, I again got

referred to Miss Kofteci.

(J.A. at 132-33).

When asked if he ever presented any evidence to Lilley or the

Human Resources Department concerning his health, Huppenbauer

replied:

Only documents which showed that I was excused for I

think six or seven days or so forth to further evaluations

were made, but not directly saying that -- . . . . No, just general excuses for some days I may have missed.

(J.A. at 134). Huppenbauer's testimony indicates that his conversations with the Hecht's managers cannot reasonably constitute notice

 10
of his limitations and requests for accommodation. During their conversation at 10:00 p.m., Rosenfeld clearly indicated to Huppenbauer

that it was not a good time and she was unable to discuss the matter.

While Lilley discussed the possibility of transfer, Huppenbauer

admits that he told her that he would think about it. That conversation

cannot be considered an actual request for accommodation.

F. Request for Medical Leave

From September 15, 1993, through October 7, 1993, and from

October 14, 1993, to October 20, 1993, Huppenbauer was excused

from work by his medical clinic. On October 14, Huppenbauer's physician diagnosed a hernia, purportedly caused by lifting heavy boxes

in the stock room. After that visit and upon the doctor's recommendation, Huppenbauer filed an application for extended medical leave. In

his opinion accompanying the request for medical leave, Dr. Nguyen

stated that Huppenbauer was still able to work, but"only as a sales

associate." Huppenbauer never returned to work after October 12,

1993. He claims that because his personal effects were cleared from

the stock room when he went to deliver his medical leave form, he

concluded that he had been terminated.

When Huppenbauer requested medical leave in October 1993, he

checked on the form that the purpose of the leave he was requesting

was because he was unable to perform the essential functions of his

job due to his own serious health condition.

He agreed that at that time he was unable to continue working.

Yes. And I think so stated my doctor, because I could not

any longer move upstairs. I could hardly get on public transportation. I could hardly get into a car. I could hardly move

because I had a serious hernia, not a small thing that you can

walk around with for years. That thing, I am sorry there are

ladies here, so far this thing was showing, it was that big.

(J.A. at 183).

To establish a valid claim under the ADA, Huppenbauer was

required to submit evidence that (1) he had a recognized disability;

 11
(2) that he was otherwise qualified for the job; and (3) that his

employer failed to reasonably accommodate his disability. Tyndall v.

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

without deciding that Huppenbauer met his burdens of proof in establishing that he did have a recognized disability and that he was otherwise qualified for the job, it is clear that he failed to show either that

he had made a request for an accommodation or that Hecht's had

actual or constructive knowledge of his disability or of his need for

an accommodation. "Vague or conclusory statements revealing an

unspecified incapacity are not sufficient to put an employer on notice

of its obligations under the ADA." Movisky v. Broward County, 80

F.3d 445, 448 (llth Cir. 1996).

As the Seventh Circuit explained:

However, unlike with race or sex discrimination, there are

situations in alleged disability discrimination cases where an

employer clearly did not know and could not have known

of an employee's disability. We think that an employer cannot be liable under the ADA for firing an employee when

it indisputably had no knowledge of the disability. This is

supported both by simple logic and by the conclusions of

other courts that have considered analogous issues.

At the most basic level, it is intuitively clear when viewing

the ADA's language in a straightforward manner that an

employer cannot fire an employee "because of" a disability

unless it knows of the disability. If it does not know of the

disability, the employer is firing the employee"because of"

some other reason.

Hedberg v. Indiana Bell Telephone Co., Inc., 47 F.3d 928, 932 (7th

Cir. 1995). The Sixth Circuit reached a similar result in Landefeld v.

Marion General Hospital, 994 F.2d 1178 (6th Cir. 1993).

The same should be true where an employee failed to make a clear

request for an accommodation and communicate it to his employer.

Lyons v. Legal Aid Soc., 68 F.3d 1512, 1515 (2nd Cir. 1995). Morisky

v. Broward County, 80 F.3d 445, 447, 448 (11th Cir. 1996). Bombard

v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 562 (7th Cir. 1996).

 12
Larson v. Koch Refining Company, 920 F.Supp. 1000, 1004 (D.

Minn. 1996). (holding providing accommodation is only appropriate

where the employer knows that the Plaintiff is disabled and is in need

of accommodation).

For these reasons, the district court did not err in granting Hecht's

motion for judgment as a matter of law on Huppenbauer's ADA

claim.

IV.

Huppenbauer also contends that the district court erred in directing

a verdict against him on his breach of contract claim. We disagree.

Huppenbauer asserts that he worked over 2,000 hours in the stock

room for which he was unpaid. As a result, he lost time working on

the sales floor, which at the average hourly rate equals approximately

$21,000. He bases this figure on a log which he prepared in January

1994, three months after he stopped working at Hecht's. (J.A. at 187).

He admits that the log was prepared from "calendars from Hallmark,

United Virginia Bank, other banks, sales slips, piece of papers, [and]

cash register readings," all of which he subsequently destroyed. (J.A.

at 175-6).

This breach of contract claim is based solely on Hecht's Commission Compensation Information Sheet, which provides for payment

for "special stock work assigned by senior management." (J.A. at

393). Huppenbauer, however, offered no proof that his 2,000 hours

consisted of "special work" or that it was assigned by "senior management." He simply says that the hours were for normal stock room

duties and that they caused him to be off the sales floor, thereby

adversely affecting his ability to earn more commissions. Hence,

Huppenbauer has failed to show that he was not paid precisely as he

should have been. There is no evidence to suggest that Hecht's did

not properly compensate Huppenbauer or that Hecht's breached any

employment contract with him. The district court acted correctly in

rejecting this cause of action.

V.

Finally, Huppenbauer challenges two of the district court's rulings

on evidence. These determinations are to be reviewed for abuse of

 13
discretion. Martin v. Cavalier Hotel Corp., 48 F.3d 1343, 1357 (4th

Cir. 1995).

A.

Huppenbauer argues that the district court should have allowed evidence concerning his hernia, which he says was caused by the strenuous stock room duties. At trial, Huppenbauer argued that the hernia

showed that the stock room work was onerous and had adverse health

effects on him. The judge excluded the evidence, finding that it was

irrelevant to the issue of whether Huppenbauer had a disability requiring accommodation. (J.A. at 195). The judge viewed the hernia as an

injury on the job, not a disability for which Huppenbauer was entitled

to relief on the ADA claim.

We agree that the hernia evidence was irrelevant to the ADA claim.

Huppenbauer never claimed that his hernia was a disability requiring

accommodation. Evidence concerning hernia might be relevant to a

negligence or worker's compensation claim, but does not assist in the

analysis of an ADA claim. The district court correctly ruled that:

You have got to have a condition for which you put people

on notice that they have to accommodate you. That is what

the law is about. This is not a law that prevents you from

being injured on the job.

(J.A. at 196).

In his brief, Huppenbauer newly argues that evidence pertaining to

his hernia--when it occurred and that it was surgically corrected--

should have been admitted as relevant to Huppenbauer's status as a

qualified individual prior to October 12, 1993. That argument, which

was never presented to the trial court, feebly supports the admission

of some hernia-related evidence. But because the connection is

extremely weak and because Huppenbauer did not focus on his status

as a qualified individual at trial, he could not possibly have been prejudiced by the exclusion of the evidence.

B.

Huppenbauer contends that the trial court improperly excluded the

testimony of Dr. Richard J. Lurito, an economic expert scheduled to

 14
testify regarding Huppenbauer's future lost earnings. The equitable

remedy of front pay is generally available when an employer unlawfully terminates an employee. Duke v. Uniroyal, Inc., 928 F.2d 1413

(4th Cir. 1991). Front pay is awarded in place of reinstatement

because of residual hostility. The court correctly found that Huppenbauer had failed to establish any evidentiary basis for a front pay remedy.

I don't have any evidence of that in this case. I don't have

any evidence of hostility. In fact, he testified as to how he

was doing on the job. And I don't see any animosity or any

problem of him going back to the job. I don't see any of that

in this case. (J.A. at 271).

. . . if somebody is now disabled and you are talking about

front pay, he isn't entitled to front pay all through his disability since they didn't assuming they didn't accommodate

him back in whatever date you allege. I am not sure what

date you allege in this whole process that they refused to

accommodate him. But if they had accommodated him and

now he comes up and he is disabled, you are only talking

about pay between the date they didn't accommodate him

and the time he became disabled, aren't you? (J.A. at 272).

The ADA remedy is not a gift. It is to compensate somebody who is able to work and has been prevented from

working. You have got evidence here that your man now

can't work. You can't get pay when you can't work. (J.A.

at 273).

I don't think that you have got anything in this case right

now that gives you pay except from the time that you allege

that he was not accommodated and the time that he became

disabled, because that's what you have shown as his working period. I find that there is not evidence in the case that

his working caused his disability. (J.A. at 264).

The district court did not abuse its discretion in excluding either the

hernia or the "front pay" evidence on the facts of this case.

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VI.

The decision of the district court dismissing all of Huppenbauer's

causes of action should be and it is hereby

AFFIRMED.

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