UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

FAITH G. WITCHER,

Plaintiff-Appellant,

v. No. 96-2053

WACKENHUT SERVICES, INCORPORATED,

Defendant-Appellee.

Appeal from the United States District Court

for the District of South Carolina, at Aiken.

Charles E. Simons, Jr., Senior District Judge.

(CA-94-3430-1-6BC)

Submitted: May 15, 1997

Decided: June 2, 1997

Before RUSSELL, HALL, and HAMILTON, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

James E. Goodman, Norman Lee Smith, PERSONS WITH DISABILITIES LAW CENTER, P.C., Atlanta, Georgia, for Appellant.

David S. Shankman, Craig L. Berman, ALLEY & ALLEY/FORD &

HARRISON, Tampa, Florida, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).
OPINION

PER CURIAM:

Faith G. Witcher appeals from the district court's order adopting in

part the magistrate judge's report and recommendation and granting

summary judgment to Defendant in Witcher's suit under the Americans with Disabilities Act ("ADA"), 42 U.S.C.A. §§ 12101-12213

(West 1995 & Supp. 1997). Witcher asserts that she was a qualified

person with a disability as defined by the ADA. We affirm the judgment of the district court.

Witcher suffered a ruptured disk in her back for which she underwent surgery in 1989. In September of 1993, Witcher applied for temporary secretarial or clerical work with Mr./Ms. Temps. The agency

found Witcher a temporary assignment with Wackenhut Services, Inc.

On September 21, she began work in the Logistics Department where

she assigned codes to inventory. On October 13, when her services

were no longer required in Logistics, she was offered work in the

Compensation and Benefits Department ("C&B").

Witcher's job assignment in C&B had two components. First, she

was required to file in Jane Wright's office. Second, she was to take

files from Carolyn Meeks' office, condense the files, and put them in

boxes for storage. Combined, both components would take three to

five days.

On October 13, Witcher stood and filed in Wright's office for

approximately five hours causing her considerable back pain. On the

following day, Witcher requested and was given a chair enabling her

to continue Wright's filing, even though she still suffered pain

throughout the day. Sometime during that day, Wackenhut became

aware of Witcher's condition, and after considering alternatives

including letting Witcher work in a vacant office, Wackenhut terminated Witcher at the end of the work day on October 14.

Witcher testified at her deposition that she could not have done the

job in Meeks' office due to the bending and lifting involved. She

stated that the job would cause her considerable pain that she could

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not have tolerated after a while. While Witcher testified that she could

perform Wright's filing with the accommodation of a chair and/or a

desk and that she was willing to work through the pain, she never

asserted that such accommodations would enable her to complete the

more physically demanding filing for Meeks.

The ADA provides: "The term `qualified individual with a disability' means an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the

employment position that such individual holds or desires." 42

U.S.C.A. § 12111(8). Because Witcher failed to show either that her

back condition would permit her to complete the filing for Meeks or

that a reasonable accommodation was possible, we find that she was

not a qualified person with a disability as defined by the ADA. See

Tyndall v. National Educ. Ctrs., 31 F.3d 209, 213 (4th Cir. 1994)

(plaintiff bears burden to establish that she could perform the essential

functions of her job).

For the foregoing reasons, we affirm the order of the district court.

We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and

argument would not aid the decisional process.

AFFIRMED

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