PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

LAMONT WILSON, 

Plaintiff-Appellant,

v.  No. 12-1573

DOLLAR GENERAL CORPORATION;

DOLGENCORP, LLC; DOLGEN, LLC,

Defendants-Appellees. 

Appeal from the United States District Court

for the Western District of Virginia, at Danville.

Jackson L. Kiser, Senior District Judge.

(4:11-cv-00024-JLK-RSB)

Argued: March 22, 2013

Decided: May 17, 2013

Before NIEMEYER, AGEE, and THACKER,

Circuit Judges.

Affirmed by published opinion. Judge Thacker wrote the

opinion, in which Judge Niemeyer and Judge Agee joined.

COUNSEL

ARGUED: Terry Neill Grimes, GRIMES & WILLIAMS,

PC, Roanoke, Virginia, for Appellant. Douglas D. Haloftis,

GARDERE, WYNNE & SEWELL, LLP, Dallas, Texas, for
Appellees. ON BRIEF: Stacy R. Obenhaus, Slates C.

Veazey, GARDERE, WYNNE & SEWELL, LLP, Dallas,

Texas; Agnis C. Chakravorty, WOODS ROGERS, Roanoke,

Virginia, for Appellees.

OPINION

THACKER, Circuit Judge:

In the present case, Lamont Wilson ("Appellant" or "Wilson") filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") against his

employer, Dollar General Corporation ("Appellee" or "Dollar

General"). Wilson alleged Dollar General failed to provide a

reasonable accommodation for his disability in violation of

the Americans with Disabilities Act of 1990, 42 U.S.C.

§§ 12101–12213 ("ADA").

While awaiting the EEOC’s notice of his right to sue,

Appellant Wilson filed for Chapter 13 bankruptcy. He then

filed the present suit in district court, and Dollar General

moved for summary judgment. Dollar General argued, unsuccessfully, that the filing of Wilson’s Chapter 13 bankruptcy

petition deprived Wilson of standing to maintain his ADA

claim. Dollar General also argued, and the district court

agreed, that Wilson’s claim failed on the merits. Wilson

appealed the district court’s determination that although he

had standing to maintain his claim, his claim failed on the

merits. 

We align ourselves with our sister circuits and conclude

that because of the powers vested in the Chapter 13 debtor

and trustee, a Chapter 13 debtor may retain standing to bring

his pre-bankruptcy petition claims. We also conclude that

because Appellant was unable to show he could perform the

essential functions of his position with a reasonable accom2 WILSON v. DOLLAR GENERAL CORPORATION
modation, the district court properly granted summary judgment in Dollar General’s favor. Accordingly, we affirm the

judgment of the district court.

I.

Wilson is a former employee of Dollar General. In his

youth, long before his employment with Dollar General, Wilson suffered a detached retina in his right eye, causing complete and permanent blindness in his right eye. 

In September 2009, Wilson began working at one of Dollar

General’s distribution centers, located in South Boston, Virginia. Wilson worked the night shift, processing inventory and

loading merchandise for transportation to Dollar General’s

many retail locations. His responsibilities included sorting

smaller products as well as lifting and loading heavier products. By all accounts, Wilson was an excellent employee. He

was chosen to serve in an unpaid capacity as Head Employee

Safety Representative, acting as a liaison between employees

and management on matters of employee safety and working

conditions. His work ethic is unchallenged — a testament to

his industriousness, perseverance, and good nature, despite his

physical limitation. 

Unfortunately, within five months of gaining employment

with Dollar General, in February 2010, Wilson developed a

serious inflammatory condition in his left eye. Threatened

with the prospect of losing his vision entirely, Wilson sought

immediate treatment at the Dominion Eye Center in Danville,

Virginia. Dr. Crews of the Dominion Eye Center diagnosed

Wilson with iritis.1 Dr. Crews initially prescribed eye drops

and advised that Wilson refrain from strenuous activities. As

a side effect of the prescription eye drops, Wilson’s vision

became blurred, further limiting his abilities.

1

Iritis is a medical condition characterized by inflammation of the iris.

Its symptoms may include redness, pain, diminished visual acuity, and

even blindness. See Stedman’s Medical Dictionary 1000 (28th ed. 2006).

WILSON v. DOLLAR GENERAL CORPORATION 3
With the onset of his medical condition in February 2010,

Wilson took leave from his position with Dollar General. During his leave, Wilson continued to receive treatment from

doctors at the Dominion Eye Center, including his primary

physician, Dr. Odom. Wilson also continuously provided Dollar General with notes from Drs. Odom and Crews dated February 12, February 14, February 15, February 19, February

26, and March 5, indicating he was still receiving treatment

and was unable to return to work. Dollar General initially

granted Wilson six weeks of leave pursuant to its medical

leave policy, followed by two weeks of additional medical

leave.2 At the conclusion of Wilson’s treatment, Wilson again

received eye drops and Dr. Odom cleared Wilson to "return

to work as of today 4-6-10." J.A. 313.3 Dr. Odom’s April 6

note did not indicate whether Wilson’s return should have

been subject to any restrictions. 

The night of April 6, 2010, however, Wilson’s vision did

not fully return and instead remained blurred. That night, Wilson called Dollar General’s human resource officer Niki

Stinespring to inform Dollar General of his condition. Wilson

explained to Stinespring that although earlier in the afternoon

he had been cleared to return to work by his doctor, he was

still having significant problems with his vision that prevented

his return to work that night. Dollar General then granted Wilson an additional day of leave and permitted him to return to

work on April 7.

Wilson’s condition worsened, and on April 7, he sought

treatment from Dr. Hoang at the emergency room of the Danville Regional Medical Center. Dr. Hoang treated Wilson with

additional eye drops and prescription pain medication, but

Wilson’s vision problems did not subside.

2Not having worked for Dollar General for at least 12 months with at

least 1,250 hours of service, Wilson was ineligible for leave under the

Family and Medical Leave Act. See 29 U.S.C. § 2611(2)(A). 

3Citations to the "J.A." refer to the Joint Appendix filed by the parties

in this appeal. 

4 WILSON v. DOLLAR GENERAL CORPORATION
Immediately after receiving treatment at Danville Regional

Medical Center on April 7, Wilson traveled to Dollar General’s facility. Wilson informed Stinespring that he would be

unable to return to work that evening as he had previously

indicated. Wilson provided Stinespring with Dr. Hoang’s

Patient Discharge Instructions note, which read: "This notice

verifies that your employee, Lamont Wilson was seen in this

facility on _040710_[.] He/she may return to work on

_040910_. . . ." J.A. 218. Dr. Hoang’s note left blank a section identifying whether or not Wilson’s return to work was

subject to any restrictions. The note concluded with the following boilerplate instruction: "If symptoms continue and the

employee is unable to perform the full duties of their job by

this date, please advise the employee to return to this facility

or make an appointment with the referral physician for further

evaluation." Id. Wilson also informed Stinespring that he had

additional upcoming medical appointments with the Duke

Medical Center to help treat his condition.

According to Wilson, Stinespring responded by offering

him an ultimatum: return to work that evening on April 7 as

he previously indicated he would; or be terminated and reapply after his condition improved. Wilson then admitted that he

was unable to return to work that evening. At this point, it

became clear to Wilson that he had been terminated.4

Following his termination, Wilson’s vision did not immediately improve. Wilson testified that he was unable to "specifically give you a date" as to when he would have been able to

return to work at Dollar General. J.A. 144. He did, however,

begin making other job contacts, as a condition to receive

state unemployment benefits, approximately "a week [or a]

week and a half later," after his termination on April 7. Id.

4Dollar General’s records indicate, that for its own administrative purposes, Wilson’s termination was officially processed on April 14, 2010.

Wilson alleges, however, that Dollar General made its decision to fire him,

and thus effectively terminated his employment, on April 7. 

WILSON v. DOLLAR GENERAL CORPORATION 5
Shortly after his termination, Wilson contacted the EEOC

and inquired about his options for legal recourse. On June 10,

2010, Wilson filed a charge of discrimination. Later that

month, on June 27, Wilson filed for Chapter 13 bankruptcy in

the Western District of Virginia. 

During the course of his bankruptcy proceeding, Wilson

filed an amended Schedule B with the bankruptcy court, identifying his personal property. The schedule included as Wilson’s personal property, a "Potential Claim against Dollar

General related to termination of Debtor’s employment,

value, if any unknown." Amended Schedule B – Pers. Prop.,

In re Wilson, No. 10-61863 (Bankr. W.D. Va. Oct. 19, 2010),

ECF No. 31. On November 10, 2010, Wilson’s Chapter 13

bankruptcy plan was confirmed.5

Around the same time, Wilson suffered a second medical

setback; he was diagnosed with a detached retina in his left

eye that required surgery. On November 22, 2010, Wilson

underwent surgery at the University of Virginia Medical Center to repair his detached retina. The surgery left Wilson blind

for seven weeks, and required months of rest and recovery

thereafter. Eventually, Wilson’s vision returned, he recovered

from the surgery, and in March 2011 he began looking for

employment.

On March 31, 2011, the EEOC issued Wilson a notice of

his right to sue Dollar General. On June 15, 2011, Wilson

filed the suit underlying this appeal in the Western District of

Virginia. Wilson alleged Dollar General had unlawfully discriminated against him by failing to provide a reasonable

accommodation for his disability, resulting in his discharge,

in violation of the ADA. 

5After Wilson initially fell into default, the bankruptcy court confirmed

his Modified Chapter 13 plan on September 15, 2011. 

6 WILSON v. DOLLAR GENERAL CORPORATION
On February 7, 2012, Dollar General moved in district

court for summary judgment on Wilson’s ADA claim. Dollar

General argued Wilson, as a Chapter 13 debtor, lacked standing to maintain his pre-petition claim and, therefore, the district court lacked subject matter jurisdiction to hear Wilson’s

claim. Dollar General also argued Wilson failed to establish

genuine issues of material fact as to his underlying ADA

claim. On March 5, 2012, the district court by memorandum

opinion, denied Dollar General’s motion with respect to

standing. The district court granted summary judgment, however, in Dollar General’s favor as to the underlying ADA

claim. Wilson filed a motion to reconsider, which was denied

on April 5, 2012. Wilson then timely filed this appeal.

II.

As the district court’s grant of summary judgment was a

final order disposing of Wilson’s claims, we possess jurisdiction over his appeal pursuant to 28 U.S.C. § 1291.

We review de novo the legal question of whether a plaintiff

has standing to maintain his cause of action. Clatterbuck v.

City of Charlottesville, 708 F.3d 549, 553 (4th Cir. 2013); see

Smith v. Rockett, 522 F.3d 1080, 1081 (10th Cir. 2008)

(reviewing de novo Chapter 13 debtor’s standing to maintain

claims under the Fair Debt Collections Practices Act, 15

U.S.C. §§ 1692–1692p, and various state laws). 

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

judgment, viewing all the evidence and reasonable inferences

drawn therefrom in the light most favorable to the nonmovant.

Halpern v. Wake Forest Univ. Health Scis., 669 F.3d 454, 460

(4th Cir. 2012). Summary judgment is appropriate if there are

no genuine disputes of material fact and the moving party is

entitled to judgment as a matter of law. Id.

III.

First, given that Appellant’s standing was challenged

below, the district court addressed standing in its opinion

WILSON v. DOLLAR GENERAL CORPORATION 7
granting summary judgment, and because this court has not

yet considered to what extent a Chapter 13 debtor may possess standing to assert an independent cause of action, we find

it appropriate to lay the issue to rest here. Second, because we

conclude Wilson retained standing, once he filed for Chapter

13 bankruptcy, to file his pre-petition ADA claim for unlawful discrimination, we then consider whether the district court

erred in concluding Dollar General was entitled to summary

judgment on Wilson’s ADA claim.

A.

1.

The threshold issue here is whether Wilson, as a Chapter 13

debtor, retained standing to file his cause of action under the

ADA.

We begin our analysis by acknowledging a few basic bankruptcy principles. The filing of a bankruptcy petition creates

a bankruptcy estate. 11 U.S.C §§ 301, 541(a). The bankruptcy

estate is comprised of a broad range of both tangible and

intangible property interests. Id. § 541(a). Such property interests include non-bankruptcy causes of action that arose out of

events occurring prior to the filing of the bankruptcy petition.

See Wissman v. Pittsburgh Nat’l Bank, 942 F.2d 867, 869 (4th

Cir. 1991). While the bankruptcy code is silent as to the debtor’s capacity to maintain these non-bankruptcy causes of

action, the bankruptcy trustee, as representative of the estate,

11 U.S.C. § 323(a), generally "has capacity to sue and be

sued." Id. § 323(b). 

As a result, in the Chapter 7 bankruptcy context — which

requires liquidation and distribution of assets by the trustee —

we have recognized, "[i]f a cause of action is part of the estate

of the bankrupt then the trustee alone has standing to bring

that claim." Nat’l Am. Ins. Co. v. Ruppert Landscaping Co.,

187 F.3d 439, 441 (4th Cir. 1999). We have applied this prin8 WILSON v. DOLLAR GENERAL CORPORATION
ciple to causes of action that are part of the estate when

brought by creditors and by Chapter 7 debtors alike. See id.;

Tignor v. Parkinson, 729 F.2d 977, 981 (4th Cir. 1984),

superseded by statute, Va. Code Ann. § 34-28.1 (West 2012),

as recognized in In re Cassell, 1994 WL 177416 at *2, 23

F.3d 400 (4th Cir. 1994) (unpublished table decision); see

also In re Richman, 104 F.3d 654, 657 (4th Cir. 1997) (citing

Stanley v. Sherwin-Williams Co., 156 B.R. 25, 26 (W.D. Va.

1993)).6

But the breadth of our precedent has been limited. We have

only considered the abilities of Chapter 7 debtors and trustees

to maintain non-bankruptcy causes of action that are part of

the estate. We have not yet considered to what extent the

Chapter 13 debtor — who, unlike the Chapter 7 debtor,

retains possession of the bankruptcy estate — may also possess standing to assert a cause of action, either exclusive of,

or concurrent with, the authority vested in the trustee.

All of the five circuit courts to have considered the question

have concluded that Chapter 13 debtors have standing to

bring causes of action in their own name on behalf of the

estate. See Smith v. Rockett, 522 F.3d 1080, 1082 (10th Cir.

2008); Crosby v. Monroe Cnty., 394 F.3d 1328, 1331 n.2

(11th Cir. 2004); Cable v. Ivy Tech State College, 200 F.3d

467, 472–74 (7th Cir. 1999); Olick v. Parker & Parsley

Petroleum Co., 145 F.3d 513, 515–16 (2d Cir. 1998); Mar.

Elec. Co. v. United Jersey Bank, 959 F.2d 1194, 1209 n.2 (3d

Cir. 1992) (Opinion Sur Panel Rehearing), reinstating Mar.

Elec. Co. v. United Jersey Bank, 959 F.2d 1194 (3d Cir.

1991); see also Love v. Tyson Foods, Inc., 677 F.3d 258, 269

& n.6 (5th Cir. 2012) (Haynes, J., dissenting) (rejecting the

majority’s equitable estoppel analysis). 

6

See also Miller v. Pac. Shore Funding, 92 F. App’x 933, 937 (4th Cir.

2004). 

WILSON v. DOLLAR GENERAL CORPORATION 9
We find the authority of our sister circuits persuasive and

conclude that, unlike a Chapter 7 debtor, a Chapter 13 debtor

possesses standing — concurrent with that of the trustee — to

maintain a non-bankruptcy cause of action on behalf of the

estate. The nature of Chapter 13 bankruptcy when compared

to Chapter 7 supports this conclusion.

2.

Chapter 7 and Chapter 13 provide two distinct methods for

an individual to cure his indebtedness. Chapter 7 adopts the

"much more radical solution," Cable, 200 F.3d at 472, of

requiring the debtor to relinquish possession of the estate to

the trustee for liquidation and distribution to creditors. See 11

U.S.C. § 704. To effectuate this purpose, the trustee’s management of the estate — including causes of action that are

part of the estate — must necessarily be free from interference

by the debtor. Cable, 200 F.3d at 472. Thus, under Rule 17’s

real-party-in-interest requirement, it is the Chapter 7 trustee,

but not the Chapter 7 debtor, who may possess standing on

behalf of the estate to bring a pre-petition claim. See, e.g.,

Auday v. Wet Seal Retail, Inc., 698 F.3d 902, 904–06 (6th Cir.

2012) (concluding Chapter 7 debtor lacked standing to maintain age discrimination suit against her former employer but

remanding to district court to determine whether Rule 17 permitted the Chapter 7 trustee to join or substitute itself into the

action); Dunmore v. United States, 358 F.3d 1107, 1111–13

(9th Cir. 2004) (concluding the Chapter 7 estate was the real

party in interest and thus Chapter 7 debtor lacked prudential

standing to maintain action for refund of federal taxes, but

remanding to the district court to determine whether debtor

could cure his Rule 17 defect). 

Chapter 13, however, provides a different framework.

Under Chapter 13, the debtor remains in possession of the

property of the estate and cures his indebtedness, under the

supervision of the trustee, by way of regular payments to

10 WILSON v. DOLLAR GENERAL CORPORATION
creditors from his earnings through a court approved payment

plan. See 11 U.S.C. §§ 1306(b), 1322; Olick, 145 F.3d at 516.

Chapter 13 also modifies other powers generally given to

the debtor and trustee. For example, not only does the Chapter

13 debtor retain possession of the property of the estate, the

Chapter 13 debtor also assumes "exclusive of the trustee, the

rights and powers of a trustee[,]" 11 U.S.C. § 1303, found in

many of the provisions of § 363 regarding the general administration of bankruptcy estates. In other words, in addition to

his power to possess property, the Chapter 13 debtor is explicitly given the authority, exclusive of the trustee, to use, sell,

or lease property of the estate in certain circumstances. As the

Seventh Circuit recognized, "[i]t would frustrate the essential

purpose of § 1306 to grant the debtor possession of the chose

in action yet prohibit him from pursuing it for the benefit [of]

the estate." Cable, 200 F.3d at 473. 

Implicit in that act of possession, as authorized by statute,

is the right of the Chapter 13 debtor — unlike the Chapter 7

debtor — to sue in his own name in such actions pursuant to

Rule 17(a) of the Federal Rules of Civil Procedure. See Fed.

R. Civ. P. 17(a)(1)(G) (permitting "a party authorized by statute" to sue in his or her own name without joining the person

for whose benefit the action is brought). Accordingly, because

the Chapter 13 debtor is explicitly given the power to possess

and use the property, and implicit within that use is the permissible maintenance of a cause of action that is part of the

estate, the Chapter 13 debtor has standing to maintain a prepetition claim.

Federal Rule of Bankruptcy Procedure 6009 envisions the

same result. Under Rule 6009 "the trustee or debtor in possession may prosecute or may enter an appearance and defend

any pending action or proceeding by or against the debtor

. . . ." Fed. R. Bankr. P. 6009; see Smith, 522 F.3d at 1082 &

n.2 (recognizing that although "debtor in possession" is a term

of art in the Chapter 11 context, a Chapter 13 debtor possesses

WILSON v. DOLLAR GENERAL CORPORATION 11
the Chapter 13 estate and has thus been considered analogous

to a Chapter 11 debtor due to their enhanced representative

and operational capacities); Cable, 200 F.3d at 472 (same). In

this sense, the Chapter 13 debtor "steps into the role of trustee

and exercises concurrent authority to sue and be sued on

behalf of the estate." Cable, 200 F.3d at 473 (citing Fed. R.

Bankr. P. 6009).

Therefore, we find Wilson had standing in the district court

to bring his pre-Chapter 13 claim for violation of the ADA.

B.

We now turn to the merits of Wilson’s appeal. The ADA

performs a number of laudatory functions, not the least of

which is to protect disabled individuals from insidious discrimination by requiring employers to reasonably accommodate their disability. The law, however, cannot remedy every

misfortune. It can only correct that which it prescribes to correct. 

Under the ADA, an employer is prohibited from "discriminat[ing] against a qualified individual on the basis of disability . . . ." 42 U.S.C. § 12112(a). Such unlawful

discrimination can include the failure to make "reasonable

accommodations to the known physical or mental limitations

of an otherwise qualified individual with a disability who is

an applicant or employee . . . ." Id. § 12112(b)(5)(A).

For purposes of the ADA, "reasonable accommodations"

may comprise "job restructuring, part-time or modified work

schedules," 42 U.S.C. § 12111(9)(B), and "permitting the use

of accrued paid leave or providing additional unpaid leave for

necessary treatment . . . ." 29 C.F.R. § 1630.2(o) (Appendix)

(2011).

A "qualified individual" is "an individual who, with or

without reasonable accommodation, can perform the essential

12 WILSON v. DOLLAR GENERAL CORPORATION
functions of the employment position . . . ." 42 U.S.C.

§ 12111(8).

Accordingly, in order for a plaintiff to establish a prima

facie case against his employer for failure to accommodate

under the ADA, the plaintiff must show: "‘(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.’" Rhoads

v. Fed. Deposit Ins. Corp., 257 F.3d 373, 387 n.11 (4th Cir.

2001) (quoting Mitchell v. Washingtonville Cent. Sch. Dist.,

190 F.3d 1, 6 (2d Cir. 1999)).

In this case, the district court found, and Dollar General has

not disputed on appeal, that Wilson satisfied the first two elements of his prima facie case — that is, (1) he had a disability

within the meaning of the statute, and (2) Dollar General was

on notice of his disability. This case turns, then, on whether

Wilson satisfied the third element: that he was a qualified

individual under the ADA, such that had he been given a reasonable accommodation, he could have "perform[ed] the

essential functions of the employment position . . . ." 42

U.S.C. § 12111(8).

1.

Here, as indicated by Dr. Hoang’s note, Wilson requested

two days of additional leave from April 7, 2010, to April 9,

2010. According to Wilson, the vast majority of Dr. Hoang’s

note is mere boilerplate language of little value. But importantly, at a minimum, the information clearly specific to Wilson’s medical discharge includes the date Dr. Hoang stated

Wilson could return to work: April 9, 2010.

Because the crux of this case is whether or not Appellant

Wilson was a qualified individual, we assume, without decidWILSON v. DOLLAR GENERAL CORPORATION 13
ing, that Wilson’s two-day leave request was not unreasonable on its face, in accordance with our holdings in Halpern

v. Wake Forest University Health Sciences, 669 F.3d 454 (4th

Cir. 2012), and Myers v. Hose, 50 F.3d 278 (4th Cir. 1995).7

2.

The reasonableness of Wilson’s request is but part of our

inquiry. Wilson must also show that with this accommodation

he was a qualified individual — that is, he could have performed the essential functions of his position. See 42 U.S.C.

§ 12111(8). 

A reasonable accommodation request for prospective leave

to alleviate an intermittent disability presents unique challenges for the employee. There is an inherent tension between

the accommodation and the employee’s ability to later show

he could have performed the essential functions of his position with such accommodation. This is in part because the

accommodation itself is fleeting, and, thus, the inquiry is necessarily limited and retrospective. The employee must show

that had he been granted leave, at the point at which he would

have returned from leave, he could have performed the essential functions of his job.8

7Under Halpern and Myers, a leave request will not be unreasonable on

its face so long as it (1) is for a limited, finite period of time; (2) consists

of accrued paid leave or unpaid leave; and (3) is shown to be likely to

achieve a level of success that will enable the individual to perform the

essential functions of the job in question. See Halpern, 669 F.3d at

465–66; Myers, 50 F.3d at 283. 

8

In determining whether leave would or would not have enabled an

individual to perform the essential functions of a position, it is improper

to consider, as the district court did here, evidence of the individual’s abilities beyond his or her proposed return date. In leave cases, the accommodation must be for a finite period of leave. See Halpern, 669 F.3d at

465–66. Once that period lapses, it then becomes apparent whether the

withheld accommodation would have been successful or futile. Evidence

indicating that weeks or even months after the individual’s proposed

14 WILSON v. DOLLAR GENERAL CORPORATION
Here, Wilson has not identified a possible reasonable

accommodation, other than leave, that would have enabled

him to perform the essential functions of his position; nor has

Wilson produced evidence that had he been granted such

leave, he could have performed the essential functions of his

position on his requested return date, April 9, 2010. Indeed,

Wilson conceded that he was unable to return to work on

April 9. 

At most, Wilson testified that he was eventually able to

begin to look for work approximately "a week, week and a

half later" because he was able to go out in public and locate

his prior job contacts, at least in part, to maintain eligibility

for unemployment benefits. J.A. 144. But as the district court

noted, an ability to contact prior employers at a later date is

not probative of an ability to perform the essential functions

of one’s specific job with one’s current employer at the time

the accommodation would have expired. Wilson did not provide any evidence that on April 9 he was able to lift and load

objects of various weights, as would have been required by

his position at Dollar General. Wilson also did not provide

any medical or other evidence, indicating that on April 9 he

was cleared and able to perform these tasks. Indeed, Dr.

Hoang’s note was silent in this regard. In sum, there is simply

no evidence to conclude that had Wilson been accommodated

with his two-day leave request, he would have been able to

perform the essential functions of his job at the conclusion of

the leave period.

3.

With respect to the fourth element of Wilson’s prima facie

case — that Dollar General refused to provide a reasonable

return date, the individual became able or unable to work, is untethered to

the initial request. Accordingly, evidence Wilson later suffered an additional medical setback and could not return to work until a year later, is

irrelevant to the question of whether he could have performed the essential

functions of his position if given two days of leave. 

WILSON v. DOLLAR GENERAL CORPORATION 15
accommodation — Wilson also argues Dollar General failed

to engage in an interactive process to identify a reasonable

accommodation. See Haneke v. Mid-Atlantic Capital Mgmt.,

131 F. App’x 399, 400 (4th Cir. 2005).

In defining "reasonable accommodation," the ADA regulations provide:

To determine the appropriate reasonable accommodation it may be necessary for the covered entity to

initiate an informal, interactive process with the individual with a disability in need of the accommodation. This process should identify the precise

limitations resulting from the disability and potential

reasonable accommodations that could overcome

those limitations.

29 C.F.R. § 1630.2(o)(3).

The duty to engage in an interactive process to identify a

reasonable accommodation is generally triggered when an

employee communicates to his employer his disability and his

desire for an accommodation for that disability. See EEOC v.

C.R. England, Inc., 644 F.3d 1028, 1049 (10th Cir. 2011)

("[B]efore an employer’s duty to provide reasonable accommodations — or even to participate in the "interactive process" — is triggered under the ADA, the employee must make

an adequate request, thereby putting the employer on

notice."); Dargis v. Sheahan, 526 F.3d 981, 988, (7th Cir.

2008) ("When . . . the disabled worker has communicated his

disability to his employer and asked for an accommodation so

that he can continue working, the employer has the burden of

exploring with the worker the possibility of a reasonable

accommodation.") (internal quotation marks omitted); Taylor

v. Phoenixville Sch. Dist., 184 F.3d 296, 313 (3d Cir. 1999)

("What matters under the ADA [is] . . . whether the employee

or a representative for the employee provides the employer

with enough information that, under the circumstances, the

16 WILSON v. DOLLAR GENERAL CORPORATION
employer can be fairly said to know of both the disability and

desire for an accommodation); Taylor v. Principal Fin.

Group, Inc., 93 F.3d 155, 165 (5th Cir. 1996) ("[I]t is the

employee’s initial request for an accommodation which triggers the employer’s obligation to participate in the interactive

process of determining one.").

But the interactive process "is not an end in itself; rather it

is a means for determining what reasonable accommodations

are available to allow a disabled individual to perform the

essential job functions of the position sought." Rehling v. City

of Chi., 207 F.3d 1009, 1015 (7th Cir. 2000) (internal quotation marks omitted). Therefore, even if an employer’s duty to

engage in the interactive process is triggered, the employer’s

liability for failing to engage in that process may collapse for

a number of reasons.

For example, an employer who fails to engage in the interactive process will not be held liable if the employee cannot

identify a reasonable accommodation that would have been

possible. See Barber ex rel. Barber v. Colorado Dep’t of Revenue, 562 F.3d 1222, 1231 (10th Cir. 2009) ("Prior cases

establish that a disabled plaintiff alleging that an employer

failed to properly engage in the interactive process must also

establish that the interactive process would have likely produced a reasonable accommodation."); see also Dargis, 526

F.3d at 988 ("The [employer] being able to make the required

showing that no reasonable accommodation was possible,

there was no further interactive process necessary.").

Likewise, "liability for failure to engage in an interactive

process depends on a finding that, had a good faith interactive

process occurred, the parties could have found a reasonable

accommodation that would enable the disabled person to perform the job’s essential functions." Jones v. Nationwide Life

Ins. Co., 696 F.3d 78, 91 (1st Cir. 2012) (internal quotation

marks omitted). In this regard, Wilson cannot escape the

WILSON v. DOLLAR GENERAL CORPORATION 17
requirements of his prima facie failure-to-accommodate

claim.

It is clear from the record that no reasonable accommodation could have enabled Wilson to perform the essential functions of his position the night of April 7. Nor could the

accommodation Wilson did request — two days of leave —

have enabled him to perform those functions on April 9. Wilson has failed to identify a possible reasonable accommodation that could have been discovered in the interactive process

and would have allowed him to perform the essential functions of his position. See Halpern, 669 F.3d at 466 (rejecting

medical student’s interactive process argument on the grounds

that no accommodation could have been identified that would

have erased his record of misconduct and rendered him qualified for the medical school’s program). Therefore, Dollar

General cannot be held liable for a failure to engage in the

interactive process.

IV.

Accordingly, the district court’s grant of summary judgment is

AFFIRMED.

18 WILSON v. DOLLAR GENERAL CORPORATION