UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 23-1178

JAMES LEE KEITH,

Plaintiff - Appellant,

v.

VOLVO GROUP NORTH AMERICA, LLC, d/b/a Volvo Trucks North America,

Defendant - Appellee.

Appeal from the United States District Court for the Western District of Virginia, at 

Roanoke. Elizabeth Kay Dillon, District Judge. (7:20-cv-00521-EKD-RSB)

Submitted: February 22, 2024 Decided: March 20, 2024

Before GREGORY and HEYTENS, Circuit Judges, and MOTZ, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

ON BRIEF: Thomas E. Strelka, L. Leigh Rhoads, Brittany M. Haddox, Monica L. Mroz,

STRELKA EMPLOYMENT LAW, Roanoke, Virginia, for Appellant. Ellison F. McCoy, 

D. Randle Moody, II, JACKSON LEWIS PC, Greenville, South Carolina, for Appellee. 

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:

James Lee Keith appeals the district court’s order granting summary judgment to 

his employer, Volvo Group North America, LLC (“Volvo”), on his claims under the

Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101 to 12213. Finding no 

reversible error, we affirm the district court’s order.

We review a district court’s summary judgment ruling de novo, “applying the same 

legal standards as the district court and viewing all facts and reasonable inferences in the 

light most favorable to the nonmoving party.” Ballengee v. CBS Broad., Inc., 968 F.3d 

344, 349 (4th Cir. 2020). “Summary judgment is warranted ‘if the movant shows that there 

is no genuine dispute as to any material fact and the movant is entitled to judgment as a 

matter of law.’” Id. (quoting Fed. R. Civ. P. 56(a)). “A genuine question of material fact 

exists where, after reviewing the record as a whole, a court finds that a reasonable jury 

could return a verdict for the nonmoving party.” J.D. ex rel. Doherty v. Colonial 

Williamsburg Found., 925 F.3d 663, 669 (4th Cir. 2019) (internal quotation marks 

omitted). In conducting this inquiry, courts may not “weigh conflicting evidence or make 

credibility determinations.” Id. But “the nonmoving party must rely on more than 

conclusory allegations, mere speculation, the building of one inference upon another, or 

the mere existence of a scintilla of evidence.” Humphreys & Partners Architects, L.P. v. 

Lessard Design, Inc., 790 F.3d 532, 540 (4th Cir. 2015) (internal quotation marks omitted). 

And we may affirm “on any ground apparent on the record.” Moore v. Frazier, 941 F.3d 

717, 725 (4th Cir. 2019).

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We conclude that the district court did not err in finding that Keith was not a 

qualified individual under the ADA.*

 To establish a cognizable ADA claim—whether 

based on a failure to accommodate or other unlawful discrimination—a plaintiff must 

establish that they were a “qualified employee with a disability.” See Laird v. Fairfax 

Cnty., 978 F.3d 887, 892 (4th Cir. 2020). A “qualified individual” is one who “can perform 

the essential functions of the employment position they hold or desire, either with or 

without reasonable accommodation.” Wirtes v. City of Newport News, 996 F.3d 234, 238 

(4th Cir. 2021) (cleaned up). To determine whether a plaintiff satisfies this requirement, 

courts must consider: “(1) whether [they] could perform the essential functions of the job, 

i.e., functions that bear more than a marginal relationship to the job at issue, and (2) if not, 

whether any reasonable accommodation by the employer would enable [them] to perform 

those functions.” Tyndall v. Nat’l Educ. Ctrs., Inc. of Cal., 31 F.3d 209, 213 (4th Cir. 1994) 

(internal quotation marks omitted). “A job function is essential when ‘the reason the 

position exists is to perform that function,’ when there aren’t enough employees available

to perform the function, or when the function is so specialized that someone is hired 

specifically because of his or her expertise in performing that function.” Jacobs v. N.C. 

Admin. Off. of the Cts., 780 F.3d 562, 579 (4th Cir. 2015) (quoting 29 C.F.R. 

§ 1630.2(n)(2)(i)).

* For purposes of this analysis, we assume without deciding that the district court 

erred in concluding that Keith was judicially estopped from asserting that he was a 

qualified individual based on his representations in applying for long-term disability 

(“LTD”) benefits. See EEOC v. Stowe-Pharr Mills, Inc., 216 F.3d 373, 379 (4th Cir. 2000); 

Cleveland v. Pol’y Mgmt. Sys. Corp., 526 U.S. 795, 805-07 (1999).

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“[T]he decision about a position’s essential functions belongs, in the first instance, 

to the employer; it accordingly merits considerable deference from the courts.” Elledge v. 

Lowe’s Home Ctrs., LLC, 979 F.3d 1004, 1009 (4th Cir. 2020) (internal quotation marks 

omitted). “While the ADA identifies a position’s written job description as relevant to the 

employer’s judgment on this question, it does not posit that description as dispositive.” Id.

(citation omitted). Thus, courts “must consult the full range of evidence bearing on the 

employer’s judgment, including the testimony of senior officials and those familiar with 

the daily requirements of the job.” Id.

We agree that Keith was not a qualified individual because he failed to create a 

genuine dispute of material fact that lifting 50 pounds or bending were not essential 

functions of the Engineering Technician position he sought. In his deposition, Keith agreed 

that lifting 50 pounds was one of the essential functions. A Volvo nurse also explained 

that she personally observed work in the BIW department and concluded that Keith could 

not perform the job functions because of his significant bending restrictions. And although 

the written job description was created after this litigation began, it provided a specific 

lifting requirement (just under 40 pounds) that was well above Keith’s 20-pound 

restriction. See Stephenson v. Pfizer, Inc., 641 F. App’x 214, 220 (4th Cir. 2016) (No. 14-

2079) (argued but unpublished) (recognizing “a written job description prepared after 

advertising or interviewing applicants for the job could be relevant evidence of whether a 

particular function is essential”). While Keith tried to counter this evidence with his 

coworker’s deposition testimony that Keith could perform the essential functions of the 

position, his coworker relied on Keith’s assertions contradicting the limitations provided 

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by Keith’s doctor—limitations Keith agreed were necessary. A plaintiff cannot create a 

genuine dispute of material fact by contradicting his own statements. See Erwin v. United 

States, 591 F.3d 313, 325 n.7 (4th Cir. 2010). The district court thus correctly found that 

Keith was not a qualified individual under the ADA.

Most aspects of Keith’s failure-to-accommodate claim fail because Keith could not 

perform the essential functions of the Engineering Technician position. But Keith also 

contends that Volvo’s offer to place him in his old position shows that it did not engage in 

a meaningful interactive process. To prove a failure-to-accommodate claim under the 

ADA, a plaintiff must establish: “(1) that he was an individual who had a disability within 

the meaning of the statute; (2) that the employer had notice of his disability; (3) that with 

reasonable accommodation he could perform the essential functions of the position; and 

(4) that the employer refused to make such accommodations.” Wilson v. Dollar Gen. 

Corp., 717 F.3d 337, 345 (4th Cir. 2013) (cleaned up). The applicable collective 

bargaining agreement required Volvo to return Keith to his prior position if possible. 

Reassignment is also “an accommodation of last resort.” Elledge, 979 F.3d at 1014 

(internal quotation marks omitted). Thus, Volvo’s offer to return Keith to his prior position 

when he claimed he had no work restrictions was not made in bad faith.

While employers have “a good-faith duty to engage with their employees in an 

interactive process to identify a reasonable accommodation,” Jacobs, 780 F.3d at 581 

(cleaned up), “[a]n employer may reasonably accommodate an employee without 

providing the exact accommodation that the employee requested” and “may provide an 

alternative reasonable accommodation,” Reyazuddin v. Montgomery Cnty., 789 F.3d 407, 

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415 (4th Cir. 2015). In other words, “the employer has the ultimate discretion to choose 

between effective accommodations.” Hannah P. v. Coats, 916 F.3d 327, 337 (4th Cir. 

2019) (internal quotation marks omitted). Moreover, a failure to engage in the interactive 

process, without more, cannot support an independent ADA claim. Jacobs, 780 F.3d 581; 

see also Wilson, 717 F.3d at 347.

When Keith first expressed interest in returning to work, Volvo began the interactive 

process. But it was clear from the beginning that Keith wanted only one thing—the 

Engineering Technician position. All of his actions, including having his doctor fill out 

multiple medical forms with shifting restrictions, was to shoehorn his way into the position. 

Volvo considered Keith’s limitations and determined it had no positions for him. And it 

continued to allow him to accrue LTD benefits after considering his return. Thus, we 

discern no cognizable breakdown in the interactive process.

Finally, we agree that Keith failed to exhaust his administrative remedies as to his 

interference claim. A plaintiff must exhaust their administrative remedies before filing a 

lawsuit raising an ADA claim. Syndor v. Fairfax Cnty., 681 F.3d 591, 593 (4th Cir. 2012). 

A plaintiff does so by first filing a charge of discrimination with the EEOC or equivalent 

state agency. See id.

The ADA’s exhaustion requirements are identical to those applied to Title VII 

claims. See id. Accordingly, an EEOC charge must be “sufficiently precise to identify the 

parties, and to describe generally the action or practices complained of.” Chacko v. 

Patuxent Inst., 429 F.3d 505, 508 (4th Cir. 2005) (internal quotation marks omitted). In 

other words, “[o]nly those discrimination claims stated in the initial charge, those 

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reasonably related to the original complaint, and those developed by reasonable 

investigation of the original complaint may be maintained in a subsequent . . . lawsuit.” 

Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 963 (4th Cir. 1996).

Although the EEOC form did not have a box labeled “interference,” the narrative 

portion of Keith’s charge solely relates to his failure-to-accommodate claim. The charge 

said nothing about Volvo threatening to terminate his employment. See Miles v. Dell, Inc., 

429 F.3d 480, 492 (4th Cir. 2005) (holding plaintiff failed to exhaust retaliation claim 

where the charge did “not remotely allege that [a manager] retaliated against [the plaintiff] 

because she had complained of his discriminatory conduct to his supervisor, and it d[id] 

not otherwise allege facts that would have put [the employer] or the EEOC on notice that 

she was charging [the employer] with retaliation”). And Keith’s pro se status cannot 

excuse his failure to allege any facts suggesting an interference claim. See Rodriguez v. 

Airborne Express, 265 F.3d 890, 897 (9th Cir. 2001); Shannon v. Ford Motor Co., 72 F.3d 

678, 685 (8th Cir. 1996).

Therefore, we affirm the district court’s order. We dispense with oral argument 

because the facts and legal contentions are adequately presented in the materials before this 

court and argument would not aid the decisional process.

AFFIRMED

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