UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

DAVID G. LAMB, 

Plaintiff-Appellant,

v.

QUALEX, INCORPORATED, a Delaware

corporation,  No. 99-1188

Defendant-Appellee.

EQUAL EMPLOYMENT ADVISORY

COUNCIL,

Amicus Curiae. 

Appeal from the United States District Court

for the Eastern District of Virginia, at Richmond.

Richard L. Williams, Senior District Judge.

(CA-98-413)

Argued: January 24, 2000

Decided: April 3, 2002

Before MICHAEL and TRAXLER, Circuit Judges, and

John T. Copenhaver, Jr., United States District Judge

for the Southern District of West Virginia,

sitting by designation.

Affirmed by unpublished opinion. Judge Copenhaver wrote the opinion, in which Judge Michael and Judge Traxler joined. 

COUNSEL

COUNSEL: Bradley Phipps Marrs, MEYER, GOERGEN &

MARRS, Richmond, Virginia, for Appellant. Paul Michael Thomp-
son, HUNTON & WILLIAMS, Richmond, Virginia, for Appellee.

ON BRIEF: Robert L. Wise, MEYER, GOERGEN & MARRS,

Richmond, Virginia, for Appellant. Edwin F. Farren, HUNTON &

WILLIAMS, Richmond, Virginia, for Appellee. Ann Elizabeth Ressman, Corrie L. Fischel, MCGUINESS, NORRIS & WILLIAMS,

Washington, D.C., for Amicus Curiae. 

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 

OPINION

COPENHAVER, District Judge: 

This is an appeal from an order entered December 16, 1998, by the

United States District Court for the Eastern District of Virginia, granting summary judgment in favor of appellee, Qualex, Inc., and against

appellant, David G. Lamb, on all four counts of appellant’s complaint,

each of which alleges a violation of the Americans with Disabilities

Act ("ADA"), 42 U.S.C. § 12101 et seq., and from an order entered

by the district court on January 12, 1999, denying appellant’s motion

for reconsideration. 

The primary question in this case is whether the appellee violated

the ADA by discharging Lamb, a disabled employee, who requested

that he be allowed to work on a part-time basis. Because Lamb was

unable to perform the essential functions of his job, we hold that he

was not a "qualified individual with a disability" protected by the

ADA. In addition, we find that Lamb did not establish a claim of

retaliatory discharge under the ADA because he failed to show that

the reason articulated by his employer for his discharge was pretext.

We accordingly affirm the district court’s grant of summary judgment

to the employer. 

I.

Defendant, Qualex, Inc. ("Qualex"), a subsidiary of Kodak Corporation, is in the business of leasing film development equipment to

2 LAMB v. QUALEX, INC.
retail drug and discount stores. Qualex’s retailers operate the leased

equipment with their own employees. Qualex provides training, operation and technical support to its retailers and their employees.

Qualex manages these retail sites through the use of Account Development Specialists ("ADS") who are responsible for an assigned geographic territory. Inasmuch as each ADS is expected to respond to

customer support requests promptly, all ADSs employed by Qualex

are full-time employees. 

Qualex hired plaintiff, David Lamb, as an ADS on December 2,

1996. Qualex assigned Lamb a geographic territory comprised of the

state of Virginia, except for the northern suburban area, and a small

portion of West Virginia. Lamb’s territory initially included thirtyeight retail stores, but within five months rapidly grew to fifty stores.

Because of the increase in the number of stores in Lamb’s territory,

Lamb and his supervisor, Lisa Rice, discussed in early June, 1997, the

possibility of dividing his territory in half and hiring another ADS. 

Lamb’s health suffered throughout his employment with Qualex.

As a result, Lamb missed about one-half of his work-time during the

ten month period between his date of hire on December 2, 1996, and

his date of termination on September 26, 1997. In particular, Lamb

missed a few days of work in early January, 1997, to undergo and

recover from a root canal. He was then off work with the flu from

February 4, 1997, to February 10, 1997. Lamb was later hospitalized

from April 2, 1997, to April 6, 1997, for treatment of kidney stones

and renal failure. Lamb remained off work recuperating as a result of

his kidney problems through May 6, 1997, except for a few days

attending Qualex meetings. As discussed more particularly below,

Lamb subsequently took a medical leave of absence beginning on

June 17, 1997, from which he never returned. 

Prior to being hired by Qualex, Lamb sought treatment from a

licensed clinical social worker, Marion Brown, for depression. Lamb

had occasional office visits with Brown from August, 1995, to January, 1997, and then regular visits beginning in February, 1997.

According to Brown, Lamb’s mental condition began to deteriorate

after he was released from the hospital on April 6, 1997, due in part

to the side effects of his medication. Lamb resumed his work duties

at Qualex on May 7, 1997. 

LAMB v. QUALEX, INC. 3
By the beginning of June, 1997, Lamb reported to Brown that he

felt extremely fatigued and he reported other symptoms typical of the

onset of an episode of major depression. Although Lamb indicated to

Brown that he was pressing on, fully performing his job, and trying

to overcome his difficulties, Brown advised Lamb to seek a medical

disability leave from his job with Qualex. Lamb initially refused

Brown’s advice on the subject. However, during the month of June,

1997, Lamb’s symptoms of depression worsened. On June 17, 1997,

during an office visit with Brown, Lamb reported suicidal ideations.

At Brown’s urging, Lamb agreed to seek a medical leave of absence

from work in order to undergo intensive therapy for his depression

and allow his body to adjust to his prescription medication. 

Lamb met with Sheryl Johnson, Human Resources Officer for

Qualex, on the afternoon of June 17, 1997, to discuss his desire to

apply for medical leave. During that meeting, Johnson told Lamb that

he was eligible for a medical leave of absence under Qualex’s shortterm disability plan. Johnson asked Lamb to provide a statement from

his physician to support his request. Lamb promptly provided Johnson

with a written request for a medical leave of absence along with a certificate from his physician regarding the necessity for his taking such

leave. In Lamb’s request for leave, he stated that the expected duration of his leave would be 60 to 90 days, depending on his improvement. Lamb also provided a letter from his primary care physician,

Philip Rizk, M.D, which stated that Lamb was "medically disabled

from any type of gainful employment," and that the duration of his

disability was "unknown but expected to last on the order of 60-90

days." In response to this letter, Qualex placed Lamb on short-term

disability leave effective June 17, 1997. At that time, Qualex

informed Lamb that it could not guarantee his position would be held

open while he was on leave and that Lamb could not return to work

without first providing Qualex with a medical release.

During his leave, Lamb communicated with Brown regarding his

progress and recovery. Brown, in turn, communicated with Johnson

on Lamb’s behalf. During the month of July, 1997, Brown spoke with

Johnson on three occasions, during which she apprised Johnson of

Lamb’s progress and requested that he be allowed to return to work

on a part-time basis for thirty days, after which Lamb was expected

to be able to resume full-time work. During these calls, Brown

4 LAMB v. QUALEX, INC.
informed Johnson that stress would have an impact on Lamb’s condition and that readjustments to his medication would necessitate the

part-time schedule for the one month period. Johnson sought the

approval of Rice for Lamb to return to work on a part-time basis,

which Rice refused on the ground that the ADS position required fulltime work and that Qualex had no part-time ADS positions. In the

meantime, Rice scrambled about to bring in a number of ADSs from

other states in the southeast region in an effort to cover temporarily

Lamb’s area. 

Soon after granting Lamb short-term disability leave on June 17,

1997, Qualex divided Lamb’s territory into two parts and hired Steven Duffy as the ADS to handle the Richmond market area. This put

into effect the earlier discussions between Lamb and Rice of the need

to divide Lamb’s geographical territory between two ADSs. On July

7, 1997, Qualex hired the second ADS, Sara Steele, as the ADS for

the Norfolk market area. Steele began her employment with Qualex

on July 21, 1997, completed her training in August and was servicing

29 stores in September, 1997. 

On September 3, 1997, Brown telephoned Rice to discuss Lamb’s

situation. During that conversation, Rice told Brown that she would

talk to Johnson further about Lamb’s return to work. Rice additionally

agreed to contact Lamb personally to discuss his return to work. Rice

contacted Johnson and informed Johnson that no part-time work

could be offered to Lamb. Having not heard from Rice as of September 9, 1997, Lamb wrote a letter to Rice that same day requesting that

Qualex allow him to return to work as a part-time ADS managing

some of the accounts from his former territory, to which Rice never

responded. This letter was copied to both Johnson and Robert Golian,

Senior Director of Human Resources. According to Golian, this was

the first he heard of Lamb’s desire to return to work on a part-time

basis. On September 12, 1997, Lamb spoke with Johnson concerning

his return. At that time, Johnson informed Lamb, as she had in June,

that he needed a medical release in order to return to work. On September 22, 1997, Lamb’s psychiatrist, Sultan Lakhani, M.D., provided to Qualex a letter that stated "Mr. Lamb has been advised to

resume his job on a part-time basis only." That letter was circulated

within Qualex for a few days before reaching the desk of Golian on

LAMB v. QUALEX, INC. 5
September 25, 1997. Golian decided to terminate Lamb that same

day. Golian terminated Lamb by letter dated September 26, 1997. 

Prior to his termination, Lamb applied to the Social Security

Administration ("SSA") on September 19, 1997, for total disability

benefits. In his SSA application, Lamb claimed that "[I] became

unable to work because of my disabling condition on April 2, 1997."

He further noted that "I am still disabled." The SSA denied his application for benefits on November 18, 1997. Lamb submitted a request

for reconsideration to the SSA on December 11, 1997, in which he

stated that "I believe that I am disabled because of my depression

which is major and severe and is affecting everything in my life. I am

unable to work." Pursuant to Lamb’s Request for Reconsideration, the

SSA reversed its initial denial and, finding him disabled as of April

2, 1997, awarded Lamb disability benefits. 

II.

We review a district court’s grant of summary judgment de novo.

Higgins v. E.I. DuPont de Nemours & Co., 863 F.2d 1162, 1167 (4th

Cir. 1988). Summary judgment shall be rendered if 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). Material facts are those

necessary to establish the elements of a party’s cause of action.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A genuine

issue of material fact exists if, in viewing the record and all reasonable inferences drawn therefrom in a light most favorable to the nonmoving party, a reasonable fact-finder could return a verdict for the

non-movant. Id. The moving party has the burden of showing — "that

is, pointing out to the district court — that there is an absence of evidence to support the non-moving party’s case." Celotex Corp. v.

Catrett, 477 U.S. 317-325 (1986). If the movant satisfies this burden,

then the non-movant must set forth specific facts as would be admissible in evidence that demonstrate the existence of a genuine issue of

fact for trial. Fed. R. Civ. P. 56(e). A party is entitled to summary

judgment if the record as a whole could not lead a rational trier of fact

to find in favor of the non-moving party. Williams v. Griffin, 952 F.2d

820, 823 (4th Cir. 1991). 

6 LAMB v. QUALEX, INC.
Conversely, summary judgment is not appropriate if the evidence

is sufficient for a reasonable jury to return a verdict in favor of the

plaintiff. Anderson, 477 U.S. at 248. Even if there is no dispute as to

the evidentiary facts, summary judgment is also not appropriate where

the ultimate factual conclusions to be drawn from them are in dispute.

Overstreet v. Kentucky Cent. Life Ins. Co., 950 F.2d 931, 937 (4th Cir.

1991). 

In reviewing the evidence, a court must neither resolve disputed

facts or weigh the evidence, Russell v. Microdyne Corp., 65 F.3d

1229, 1239 (4th Cir. 1995), nor make determinations of credibility,

Sosebee v. Murphy, 797 F.2d 179, 182 (4th Cir. 1986). Rather, the

party opposing the motion is entitled to have his or her version of the

facts accepted as true and, moreover, to have all internal conflicts

resolved in his or her favor. Charbonnages de France v. Smith, 597

F.2d 406, 414 (4th Cir. 1979). Inferences that are "drawn from the

underlying facts . . . must be viewed in the light most favorable to the

party opposing the motion." United States v. Diebold, Inc., 369 U.S.

654, 655 (1962). 

III.

On July 2, 1998, Lamb filed a four count complaint against Qualex

in the district court which alleged that: (1) Qualex terminated Lamb

because of his disability in violation of § 102(a) of the ADA which

provides that it is unlawful for an employer to "discriminate against

a qualified individual with a disability because of the disability of

such individual," see 42 U.S.C.A. § 12112(a); (2) Qualex discriminated against Lamb by failing to reasonably accommodate his disability in violation of § 102(b)(5)(A) of the ADA which provides that it

is unlawful for an employer to fail to make "reasonable accommodations to the known physical or mental limitations of an otherwise

qualified individual with a disability . . . unless such [employer] can

demonstrate that the accommodation would impose an undue hardship on the operation of the business of such [employer]," see 42

U.S.C.A. § 12112(b)(5)(A); (3) Qualex terminated Lamb in an effort

to avoid making reasonable accommodations in violation of

§ 102(b)(5)(B) of the ADA which prohibits an employer from "denying employment opportunities . . . if such denial is based on the need

. . . to make reasonable accommodations to the physical or mental

LAMB v. QUALEX, INC. 7
impairments of the employee," see 42 U.S.C.A. § 12112(b)(5)(B);

and (4) Qualex terminated Lamb in retaliation for his request of reasonable accommodation in violation of § 503(a) of the ADA which

makes it unlawful to "discriminate against any individual because

such individual has opposed any act or practice made unlawful by this

chapter or because such individual made a charge, testified, assisted,

or participated in any manner in an investigation, proceeding, or hearing to enforce this chapter." See 42 U.S.C.A. § 12203(a). 

On December 16, 1998, the district court granted summary judgment to Qualex on all four counts of Lamb’s complaint. In dismissing

each of the counts, the district court found that Lamb was not a "qualified individual with a disability"1

 for two reasons. First, the district

court found that Lamb was judicially estopped from claiming to be a

"qualified individual with a disability" inasmuch as he made representations to the Social Security Administration that he was not able to

work. Second, the district court found that Lamb was not a "qualified

individual with a disability" because no reasonable accommodation

would allow him to perform the essential functions of his job. Lamb

now appeals the district court’s summary judgment rulings on each

count. 

1As with Counts I, II, and III, the district court dismissed Lamb’s

Count IV retaliatory discharge claim on the ground that he was not a

"qualified individual with a disability." Following entry of the district

court’s order on December 16, 1998, dismissing each of his claims,

Lamb filed a motion for reconsideration in which he argued that the district court erred in dismissing Count IV on the ground that he was not

a "qualified individual with a disability," which is not a necessary element of an ADA retaliation claim. By memorandum opinion entered on

January 12, 1999, the district court agreed that it had misstated the law

when it granted summary judgment in favor of Qualex on Count IV

because Lamb was not a "qualified individual with a disability." The district court affirmed its earlier decision, however, on an alternate basis,

finding that Lamb had failed to come forward with sufficient evidence

from which a reasonable juror could conclude that he was terminated in

retaliation for seeking reasonable accommodations from his employer. 

8 LAMB v. QUALEX, INC.
A. Qualified Individual with a Disability

As a preliminary matter, to obtain relief under the ADA, Lamb

must demonstrate that he is a "qualified individual with a disability."

See 42 U.S.C.A. § 12112; see also Williams v. Channel Master Satellite Sys., Inc., 101 F.3d 346, 348 (4th Cir. 1996); Doe v. University

of Maryland Medical Sys. Corp., 50 F.3d 1261, 1265 (4th Cir. 1995).

The ADA defines a "qualified individual with a disability" as "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); Tyndall v. National Educ. Ctrs., Inc., 31 F.3d 209, 213

(4th Cir. 1994). 

1. Judicial Estoppel

The district court found that Lamb’s representation to the SSA that

he was unable to work estopped him from claiming to be a "qualified

individual with a disability" under the ADA. In so holding, the district

court relied on the decision of the United States Court of Appeals for

the Fifth Circuit in Cleveland v. Policy Management Sys. Corp., 120

F.3d 513 (5th Cir. 1997), in which that court held that the filing of

an application for, or the receipt of, social security disability benefits

judicially estops a claimant from asserting that he is a "qualified individual with a disability" under the ADA.2

2A disagreement among the circuit courts about the legal effect upon

an ADA suit of the application for, or receipt of, disability benefits

existed at the time Cleveland was decided by the Fifth Circuit. Compare,

e.g., Rascon v. U.S. West Communications, Inc., 143 F.3d 1324, 1332

(10th Cir. 1998) (application for, and receipt of, social security disability

benefits is relevant to, but does not estop plaintiff from bringing an ADA

claim); Griffith v. Wal-Mart Stores, Inc., 135 F.3d 376, 382 (6th Cir.

1998) (same); Swanks v. Washington Metro. Area Transit Auth., 116

F.3d 582, 586 (D.C. Cir. 1997) (same), with McNemar v. Disney Store,

Inc., 91 F.3d 610, 618-20 (3rd Cir. 1996) (applying judicial estoppel to

bar plaintiff who applied for disability benefits from bringing suit under

ADA), cert. denied, 519 U.S. 1115 (1997), and Kennedy v. Applause,

Inc., 90 F.3d 1477, 1481-82 (9th Cir. 1996) (declining to apply judicial

estoppel but holding that claimant who declared total disability in a benefits application failed to raise a genuine issue of material fact as to

whether she was a qualified individual with a disability). 

LAMB v. QUALEX, INC. 9
On writ of certiorari, the United States Supreme Court of Appeals,

in Cleveland v. Policy Management Sys. Corp., 526 U.S. 795, 119

S. Ct. 1597 (1999), vacated the holding of the Fifth Circuit and held

that pursuit and receipt of social security disability benefits does not

automatically estop a recipient from pursuing an ADA claim. The

Court recognized, however, that inasmuch as an ADA plaintiff’s

sworn assertion of total disability to the SSA is inconsistent with the

essential element of an ADA claim — namely, that he can perform

the essential functions of his job — summary judgment is appropriate

unless the plaintiff can come forward with an explanation for the

inconsistency from which a reasonable juror could conclude that "assuming the truth of, or the plaintiff’s good faith belief in, the earlier

statement [to the SSA], the plaintiff could nonetheless ‘perform the

essential functions’ of [his] job, with or without ‘reasonable accommodation.’" 119 S. Ct. at 1604. 

Given the decision of the United States Supreme Court in Cleveland, Lamb contends that the district court erred in applying judicial

estoppel to find as a matter of law that he was not a "qualified individual with a disability." According to Lamb, the record contains sufficient evidence explaining the inconsistency, if any, between the

statements he made as part of his SSA application and those made as

part of this action from which a reasonable juror could conclude that,

notwithstanding what he told the SSA, he could still perform the

essential functions of his job as an ADS with reasonable accommodation. 

Qualex argues that inasmuch as the district court found that Lamb

could not claim to be a "qualified individual with a disability" not

only on the basis of judicial estoppel but also on the alternative

ground that he failed to produce evidence showing that he could perform the essential functions of his job with reasonable accommodation, the Supreme Court’s decision in Cleveland does not warrant

reversal here but merely renders moot the issue of judicial estoppel

on appeal. 

We agree with Qualex in this regard. As discussed more particularly below, the district court properly concluded that Lamb was not

a "qualified individual with a disability" inasmuch as he could not

perform the essential functions of his job with reasonable accommo10 LAMB v. QUALEX, INC.
dation. Consequently, even if Lamb could come forward with a sufficient explanation of the inconsistencies between statements he made

to the SSA and statements he made during the course of this action,

he would still be unable to produce sufficient evidence from which a

reasonable juror could conclude that he could perform the essential

functions of his job with reasonable accommodation. 

2. Essential Functions of the Job

Under the ADA, only individuals who are qualified for the job they

seek may state a claim for discrimination. As noted previously, the

ADA defines "qualified individual with a disability" as "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). A qualified person must be "able to meet all of a program’s requirements in spite of

his handicap." Southeastern Community College v. Davis, 442 U.S.

397, 406, 99 S. Ct. 2361 (1979). To prove that he was qualified for

the ADS position, Lamb must produce evidence that: (1) he could

"‘perform the essential functions of the job’" or (2) if not, whether

"‘any reasonable accommodation by [his] employer would enable

[him] to perform those functions.’" Tyndall, 31 F.3d at 213 (quoting

Chandler v. City of Dallas, 2 F.3d 1385, 1393-94 (5th Cir. 1993)).

Essential functions of a job include "fundamental job duties of the

employment position the individual holds or desires," 29 C.F.R.

§ 1630.2(n), which "bear more than a marginal relationship to the job

at issue." Martinson v. Kinney Shoe Corp., 104 F.3d 683, 686 (4th

Cir. 1997) (quoting Southeastern Community College, 442 U.S. at

406). 

A regular and reliable level of attendance is an essential function

of one’s job. Halperin v. Abacus Tech Corp., 128 F.3d 191, 199 (4th

Cir. 1997), abrogated on other ground by Baird ex rel. Baird v. Rose,

192 F.3d 462 (4th Cir. 1999); Tyndall, 31 F.3d at 213. Indeed, an

employee "who does not come to work cannot perform any of his job

functions, essential or otherwise." Tyndall, 31 F.3d at 213 (quoting

Wimbley v. Bolger, 642 F. Supp. 481, 485 (W.D. Tenn. 1986), aff’d,

831 F.2d 298 (6th Cir. 1987)). An employee who cannot meet the

attendance requirements of the job at issue cannot be considered a

"qualified" individual protected by the ADA. Tyndall, 31 F.3d at 213.

LAMB v. QUALEX, INC. 11
Consequently, a plaintiff who can work only on a part-time basis cannot be a "qualified individual with a disability" if the ability to work

full-time is essential to his job. 

A plaintiff may not prevail by demonstrating that he might have

been able to perform the essential functions of the job at some time

in the future. Myers v. Hose, 50 F.3d 278, 283 (4th Cir. 1995). A

plaintiff must show that he can perform the essential functions of the

job at the time of the employment decision or in the immediate future.

Id.

Qualex argues that Lamb was not qualified for the ADS position

because he was unable to work full-time. The validity of this argument turns on whether or not full-time work is an essential function

of the job of ADS. An ADS provides "in-the-field" training and sales

support to retail one-hour photo processing sites in an assigned geographic territory. One of the primary responsibilities of an ADS is to

build and maintain a strong working relationship between Qualex and

its retailers. In order to do so, an ADS is expected to make at least

one sales call per month on each of its retail stores. If, in a given

month, an ADS has called on each store within the territory, he or she

is then expected to make repeat calls to each account because training

and service are expected to be performed continually. The amount of

time spent on a sales call varies depending on the skills of the

employees of a particular store and can range anywhere from two to

as long as five or even eight hours. 

An ADS is also responsible for responding to photo lab emergencies experienced by its retailers. Consequently, customer service

demands can come up unexpectedly and must be acted upon promptly

and fulfilled quickly. The manual given to ADS employees sets out

multiple duties of an ADS that are to be performed at the site of the

retail stores. The duties and responsibilities of an ADS include not

only the making of routine store visits but being present when needed

on short notice or demand. The ADS is to conduct in-store sales training on a routine basis as turnover or the observed need dictates. If the

store employees in charge of the photo lab resign, the ADS must be

available promptly to train substitute employees. If the store is having

a grand opening the ADS must be there on that day for the entire day.

12 LAMB v. QUALEX, INC.
According to Lisa Rice, the position of ADS has to be filled on a

full-time basis in order to provide the requisite level of service to all

accounts in a sales territory. As she testified, if the retail store needs

the ADS to be present on a given day, as, for example, to train the

replacement for a resigned employee, it does not suffice to respond

that the ADS does not work on that particular day. Consequently,

Qualex has never employed an ADS on a part-time basis. 

Lamb concedes that at the time of the employment decision which

gave rise to this lawsuit, he could not perform full-time work. He also

agrees that Qualex maintained that it was not possible to fill the ADS

position on a part-time basis. In fact, Lamb contends that Qualex

refused to fill the position on a part-time basis as an accommodation

to him.

In an effort to rebut evidence produced by Qualex demonstrating

that full-time employment is essential to the ADS position, Lamb

contends that the ADS position could be performed on a part-time

basis. In support of this contention, Lamb points out that he was

replaced by an employee who was assigned only twenty-nine stores

in the Norfolk area, a geographic location much smaller than that

assigned to Lamb prior to his medical leave. Lamb claims that he

could have completed the work assigned to his replacement on a parttime basis inasmuch as it involved calling on approximately 60% of

the number of stores Lamb called on as a full-time employee. 

Lamb’s assertion is unfounded. Lamb’s replacement, Sara Steele,

testified that she worked approximately 50 to 60 hours per week calling on her twenty-nine stores during September. Prior to his medical

leave, Lamb had been unable to make the requisite number of sales

calls to each of his stores. Indeed, based upon required weekly reports

prepared by Lamb and submitted to his supervisor, some of which

were never received though requested, Lamb called on only 48 stores

in his territory during his ten months of employment. Excluding the

first two months of December and January while he was in training

and excluding the time thereafter that he was off work due to illness

or medical disability, Lamb was available for work for a total of about

three months. Those three months consist of some 1-2/3 months from

February and March after excluding a week’s illness in early February

and, following his hospitalization and recuperation from April 2 to

LAMB v. QUALEX, INC. 13
May 6, another 1-1/3 months that he worked between May 7 and June

17 when he took short-term medical disability. Coverage of only 48

stores during that three months indicates that Lamb, even while working full-time, was making only about one-third of the sales calls

expected of him. 

Lamb further contends that, even if he could not work full-time

upon his return to Qualex, the ability to work full-time may not be

considered by the court in determining whether he could perform the

essential functions of his job as an ADS. In support of this contention,

Lamb cites to the 1999 EEOC Guidance Statement which criticizes

the decisions of courts that have characterized attendance as an essential job function and states that "[a]ttendance . . . however, is not an

essential function as defined by the ADA because it is not one of ‘the

fundamental job duties of the employment position.’" See Enforcement Guidance: Reasonable Accommodation and Undue Hardship

Under the Americans with Disabilities Act, No. 915.002, at 16 n.61

(March 1, 1999). According to Lamb, the EEOC’s directive must be

given "controlling weight" and requires us to depart from the rationale

of Tyndall and Halperin in which we recognized that reliable attendance is an essential job function. 

Lamb overstates the consideration which must be afforded the

EEOC directive. See Shafer v. Preston Mem’l Hosp. Corp., 107 F.3d

274, 279 n.5 (4th Cir. 1997), abrogated on other grounds, Bailey ex

rel. Baird v. Rose, 192 F.3D 462 (4th Cir. 1999) ("‘[W]hile not controlling upon the courts by reason of their authority, the EEOC interpretive guidelines do constitute a body of experience and informed

judgment to which courts and litigants may properly resort for guidance.’") (quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65

(1986); Williams v. Channel Master Satellite Sys., 101 F.3d 346, 349

n.2 (4th Cir. 1996), cert. denied sub nom., Williams v. Avnet, Inc., 520

U.S. 1240 (1997) (although courts and litigants may resort to EEOC

interpretive guidelines for guidance, they are not controlling upon the

courts by reason of their authority); see also Shalala v. Guernsey

Mem. Hosp., 514 U.S. 87, 99 (1995) ("Interpretive rules . . . do not

have the force and effect of law, and are not accorded that weight in

the adjudicatory process."). 

Based upon the reasoning of Tyndall and Halperin, we find that the

district court properly concluded that Lamb was not able and thus not

14 LAMB v. QUALEX, INC.
"qualified" to perform the essential functions of his job inasmuch as

he could not return to work on a full-time basis as required to carry

out the duties and responsibilities of an ADS.

3. Reasonable Accommodation

Even if a plaintiff is unable to perform an essential function of the

job, the court "must nevertheless determine whether the person could

do the job with reasonable accommodation." Myers, 50 F.3d at 282;

Martinson, 104 F.3d at 687. The ADA specifically states that "‘reasonable accommodation’ may include . . . job restructuring, part-time

or modified work schedules, [and] reassignment to a vacant position."

42 U.S.C.A. § 12111(9)(B). An accommodation is reasonable "unless

[the employer] can demonstrate that the accommodation would

impose an undue hardship." 42 U.S.C.A. § 12112(b)(5)(A). The burden of identifying an accommodation that would allow a qualified

individual to perform the job rests with the plaintiff, as does the ultimate burden of persuasion with respect to demonstrating that such an

accommodation is reasonable. Halperin, 128 F.3d at 197. Once the

plaintiff has met his burden of proving that reasonable accommodations exist, the employer may present evidence that the plaintiff’s

requested accommodation imposes an undue hardship on the

employer. 42 U.S.C.A. § 12112(b)(5)(A); Willis v. Conopco, Inc., 108

F.3d 282, 284-86 (11th Cir. 1997). 

Lamb argues that his proposed return to work on a part-time basis

represents a reasonable accommodation that would have allowed him

to perform the essential functions of his job as an ADS. The district

court found, and we agree, that Lamb failed to show that the accommodation he requested was reasonable. 

For his accommodation, Lamb requested that Qualex create a third

ADS position in Virginia and carve out from another employee’s territory the Richmond area accounts for which Lamb had previously

been responsible. The ADA does not, however, require an employer

to create a new position as an accommodation to a disabled employee.

Barnett v. U.S. Air, Inc., 157 F.3d 744, 751 (9th Cir. 1998); Monette

v. Elec. Data Sys. Corp., 90 F.3d 1173, 1187 (6th Cir. 1996); White

v. York Int’l Corp., 45 F.3d 357, 362 (10th Cir. 1995). 

LAMB v. QUALEX, INC. 15
Lamb further requested that he be allowed to work in the newly

created position on a part-time basis. Where, however, an employer

has no part-time jobs available, a request for part-time employment

is not a reasonable one. Terrell v. US Air, 132 F.3d 621, 626 (11th

Cir. 1998) ("Although part-time work, as the statute and regulations

recognize, may be a reasonable accommodation in some circumstances (particularly where the employer has part-time jobs readily

available), we hold that [the employer] was not required to create a

part-time position for [p]laintiff. . . ."); Whitbeck v. Vital Signs, Inc.,

934 F. Supp. 9, 16 (D.D.C. 1996), rev’d on other grounds, 116 F.3d

588 (D.C. Cir. 1997) ("This type of accommodation by an employer,

providing an entirely new part-time position for a disabled employee,

courts have found is not required by the ADA."). It is clear that

Qualex had no part-time ADS positions. 

Lamb’s request that Qualex create a new part-time ADS job for

him was unreasonable and would impose an undue hardship on Qualex.3

Lamb has adduced no evidence to raise a geniune issue of material

fact that part-time work for him was a reasonable accommodation. In

light of this, Lamb failed to carry his burden of identifying a reasonable accommodation. 

B. Retaliation

Section 503(a) of the ADA prohibits retaliation by an employer

against an employee who enforces his rights under the ADA. See 42

U.S.C.A. § 12203(a). To prevail on a retaliation claim, the employee

must first establish a prima facie case of retaliation by a preponderance of the evidence. Ross v. Communications Satellite Corp., 759

F.2d 355, 365 (4th Cir. 1985), overruled on other grounds by Price

Waterhouse v. Hopkins, 490 U.S. 228 (1989). To do so, a plaintiff

must prove that (1) he engaged in protected activity; (2) his employer

took an adverse employment action against him; and (3) a causal connection exists between the protected activity and the adverse employment action. Id. If the plaintiff satisfies this burden, then his employer

3Moreover, the necessity of furnishing an automobile and a laptop

computer for an ADS who would use those items only on a part-time

basis would impose further substantial cost on Qualex for which it could

receive only a partial return. 

16 LAMB v. QUALEX, INC.
must articulate a legitimate non-retaliatory reason for its action. Id.

Should the employer do so, then the plaintiff must prove by a preponderance of the evidence that the employer’s articulated reason is pretext and that the real reason for the employer’s action was to retaliate

against him for having taken the protected action of requesting an

accommodation. Id.

The district court found that Lamb’s request for part-time work and

his subsequent termination by Qualex fulfilled the first element, protected activity, and the second element, adverse action, of his prima

facie case of retaliation. Lamb, however, disputes the district court’s

finding that he failed to establish the third element of his prima facie

case, a causal connection between his request for part-time work and

his discharge. 

The district court concluded that Lamb failed to come forward with

sufficient proof of a causal connection inasmuch as the only evidence

offered by Lamb was to the effect that the decision by Robert Golian

to terminate Lamb was made the same day that Golian received the

letter of Dr. Lakhani that indicated that Lamb could return to work

only on a part-time basis. According to Lamb, this evidence alone is

sufficient to satisfy the causal connection element of his prima facie

case. A temporal connection between the protected conduct and the

adverse employment action may be sufficient to present a genuine

factual issue on retaliation. Kiel v. Select Artificials, Inc., 169 F.3d

1131, 1136 (8th Cir. 1999). Indeed, "[a] close temporal connection

between the two events ‘is generally enough to satisfy the third element of the prima facie test.’" McClendon v. Indiana Sugars, Inc.,

108 F.3d 789, 796-97 (7th Cir. 1997). The evidence here shows that

Golian first became aware of Lamb’s request to return to work on a

part-time basis on September 9, 1997, and that he decided to terminate Lamb on September 25, 1997, within hours of receiving Lamb’s

September 22, 1997, medical release which stated that he could work

only part-time. From this evidence, we find that Lamb sufficiently

demonstrated the causal connection needed to establish his prima

facie case. 

Having found that Lamb has established a prima facie case of retaliation, we next determine whether Qualex articulated a legitimate

non-retaliatory reason for Lamb’s discharge. Qualex asserts that it

LAMB v. QUALEX, INC. 17
fired Lamb for legitimate business purposes. We find that the evidence supports this assertion. Lamb’s territory was divided in half and

filled by two individuals while he was on leave. Lamb’s territory was

already suffering from inattention prior to June 17, 1997. With Lamb

expected to be on short-term medical disability as allowed up to 90

days, Qualex followed the patently prudent course of seeing that his

territory was covered and his customers served. At the end of that 90-

day period, Lamb remained unable to return to any level of work until

he was finally released on the 97th day by his doctor on September

22, 1997, but only for part-time work. In view of the absence of the

availability of a part-time job and the inadequacy of a part-timer to

handle the array of essential duties and responsibilities of an ADS,

coupled with the inability of Lamb to return to full-time work, Qualex

plainly articulated a legitimate non-retaliatory reason for Lamb’s discharge. 

Even during the overall three months when Lamb was understood

to be able to work his stores full-time, he was visiting them only on

a part-time basis. Qualex reacted responsibly when Lamb took medical disability in June by taking the measures necessary to maintain its

customer base in his territory. Qualex imposed upon its out of state

ADSs to leave their posts in an effort to take up the slack in Virginia

while it trained 2 new ADSs to serve in Lamb’s area. As already

established, Lamb, unable to resume full-time work, was, after 97

days off the job, released for part-time work only. The essential duties

of an ADS require one’s full-time availability in order to service and

retain the store accounts. With no realistic prospect that Lamb would

be able to resume work full-time, it was neither unreasonable nor

retaliatory for Qualex to terminate him. Lamb has simply failed to

produce relevant evidence to the contrary. Indeed, it was less than

candid of Lamb to offer to do part-time work when, without disclosure to Qualex, he had already asked the Social Security Administration to declare him disabled as of a date six months earlier. 

Lamb contends that the reasons proffered by Qualex for terminating him were pretext and that the record contains ample evidence to

create a genuine issue of fact as to whether the real reason he was terminated was in retaliation for seeking reasonable accommodation.

Viewing the evidence in the light most favorable to Lamb, we are

unable to conclude that Lamb created a question of fact on pretext.

18 LAMB v. QUALEX, INC.
Lamb offered no evidence from which a reasonable juror could conclude that the compelling reasons articulated by Qualex for terminating him, as outlined above, were pretext. 

Lamb having failed to raise a genuine issue of material fact, we

find that the district court properly granted summary judgment in

favor of Qualex on Lamb’s retaliation claim. 

IV.

For the stated reasons, the decision of the district court is 

AFFIRMED.

LAMB v. QUALEX, INC. 19