United States Court of Appeals,

                            Eleventh Circuit.

                                No. 96-8395.

                Lynda L. WILLIS, Plaintiff-Appellant,

                                     v.

 CONOPCO, INC., a.k.a. Lever Brothers Company, a.k.a. Unilever,
Defendant-Appellee.

                               March 25, 1997.

Appeal from the United States District Court for the Northern
District of Georgia. (No. 4:94-cv-200-HLM), Harold L. Murphy,
District Judge.

Before EDMONDSON and BLACK, Circuit Judges, and HILL, Senior
Circuit Judge.

      PER CURIAM:

      Plaintiff   appeals   the    district     court's    grant   of    summary

judgment on her claim under the Americans with Disabilities Act

("ADA").      Plaintiff   argues   that   the    district    court      erred    in

requiring her to produce evidence sufficient to establish a triable

issue on the existence of a reasonable accommodation for her

disability.     We hold that an ADA plaintiff (1) as part of her

burden of production, must identify an accommodation that would

allow her to perform her job duties and (2) as a part of her burden

of proving her case, must establish that such an accommodation is

reasonable. As Plaintiff has failed to produce evidence of such an

accommodation, we affirm the district court's judgment.

                                     I.

      Plaintiff   Lynda   Willis    was   employed    by    Defendant      Lever

Brothers in its Carterville plant.        Plaintiff initially worked in

the   packing   area   where    laundry   detergents      are   packaged        for
distribution     and   sale.        In   March   1992,   Plaintiff   reported

experiencing a persistent cough and skin rash. The plant physician

prescribed treatment, and Plaintiff was placed on restricted duty

to limit her exposure to the detergent.            When blood tests revealed

that Plaintiff was sensitive to certain enzymes contained in the

detergent, the employer temporarily reassigned Plaintiff to an

administrative    position     in    the   plant's   safety   office.    Upon

confirming Plaintiff's sensitivity, the employer monitored the air

quality of its warehouse and spare part areas to determine where

Plaintiff could safely work.

     After determining that the spare parts area had reduced levels

of enzymes which it considered to be safe, the employer reassigned

Plaintiff to the spare parts area.               In addition to reassigning

Plaintiff, the employer (1) directed her to wear a mask when

crossing the packing area floor (which had relatively higher levels

of enzymes), (2) gave her a pass to park her car near a door which

allowed her to avoid the packing area floor, (3) excused her from

performing housekeeping audits in areas with greater levels of

enzymes, (4) excused her from meetings in higher enzyme areas and

(5) continued to monitor—as it had since Plaintiff first reported

a persistent cough and skin rash—Plaintiff's pulmonary functions.

     In October 1993, Plaintiff began a medical leave of absence

for foot surgery—a condition unrelated to this lawsuit. In January

1994, Plaintiff's foot surgeon released her to return to work

without restriction.     The next day she notified her employer that
she had seen another physician, Dr. Edelson, 1 who advised her not

to return to work due to the possibility of enzyme exposure.

Edelson provided to Defendant a letter saying as follows:

           [Plaintiff] has been exposed to various chemicals in the
      work environment at [Defendant' plant].... She definitely has
      immune system abnormalities and I think, she should stop
      working at this [ ] plant.     There is nowhere within that
      building that she would be safe.... I reiterate: She should
      not be working in that building.

At this point, Plaintiff refused to return to work in the spare

parts area and requested her employer either (1) to reassign her to

a "safe work area" or (2) to enclose and to air condition the spare

parts area. Defendant then arranged (and paid for) Plaintiff to be

examined by a pulmonologist, Dr. Duffell.

      In February 1994, Duffell sent Defendant a report in which he

concluded that Plaintiff "was fully capable of continuing to work

in the plant."          Shortly thereafter, Defendant sent Plaintiff a

letter directing her to return to work on her next scheduled shift

or   to   be   deemed    to   have   abandoned   her   job   and   to   have   her

employment terminated.         In response, Plaintiff had Edelson send a

letter, via facsimile, to Defendant indicating "she is not to come

into contact with any toxic chemical substances....                My suggestion

is that she find some legal way to attain disability because of the

current circumstances."          When Plaintiff did not return to work,

Defendant terminated her employment.

      Plaintiff brought the present suit alleging a cause of action


      1
      Dr. Edelson practices "environmental medicine." As the
district court noted, quoting Edelson's deposition,
"[e]nvironmental medicine is not considered mainstream medicine
and is not generally accepted as scientifically valid by
"mainstream' medical community."
under the ADA. After completing discovery, the parties filed

competing summary judgment motions.          The district court granted

Defendant's motion for summary judgment and denied Plaintiff's

motion for partial summary judgment as moot.              The district court

assumed that Plaintiff was an otherwise qualified individual with

a disability and then held that no triable issue of material fact

existed    on    whether   Defendant     could     have    made   reasonable

accommodations for Plaintiff's disability.

                                   II.

       We review the grant or denial of summary judgment de novo,

applying the same standard employed by the district court.               Parks

v. City of Warner Robins, GA, 

, 612-613 (11th Cir.1995).

An "accommodation" is "reasonable"—and, therefore, required under

the ADA—only if it enables the employee to perform the essential

functions of her job.      29 C.F.R. § 1630.2(o)(ii).        Reassignment to

another position is a required accommodation only if there is a

vacant position available for which the employee is otherwise

qualified.      42 U.S.C. § 12111(9)(B).

       According to Plaintiff, her employer failed even to attempt to

make   reasonable    accommodations    for   her   condition:      she   says

Defendant neither transferred her nor attempted to make the spare

parts area safe for her.       Plaintiff also says that the district

court erred by placing the burden on her to request a specific

accommodation.      Plaintiff says the ADA merely requires an employee

to request accommodation—as an abstract concept—after which the

employer becomes obligated to enter into a "flexible, interactive

process" involving both the employer and the employee.             Plaintiff
points us to Beck v. University of Wisconsin Bd. of Regents,       

, 1135 (7th Cir.1996) ("[T]he regulations envision an

interactive process that requires participation by both parties:

"[T]he employer must make a reasonable effort to determine the

appropriate   accommodation.        The    appropriate     reasonable

accommodation is best determined through a reasonable process that

involves both the employer and the [employee] with a disability.'

") (quoting 29 C.F.R. § 1630.2(o)(3) (1995)).

      Though the issue of which party has the burden of proposing

a concrete accommodation and establishing that the particular

accommodation is reasonable is one of first impression for us,

other circuits have ruled on the issue.      We also note that our

recent opinion in Moses v. American Nonwovens, Inc., 

,

448 (11th Cir.1996) (per curiam ), though not directly on point,

provides us with significant guidance in deciding the question.

     The D.C. Circuit, interpreting almost identical language in

regulations   promulgated   under   the   Rehabilitation   Act,   has

established the following approach to the reasonable accommodation

issue:

          These cases deal with objective claims that may be tested
     through the application of traditional burdens of proof....
     [A] plaintiff must establish that (a) he is handicapped but,
     (b) with reasonable accommodation (which he must describe), he
     is able to perform the "essential functions" of the position
     he holds or seeks. See 29 C.F.R. § 1613.702(f); see also 

(b). As in the usual case, it would then be up
     to the employing agency to refute that evidence. The burden,
     however, remains with the plaintiff to prove his case by a
     preponderance of evidence.

Barth v. Gelb, 

, 1186 (D.C.Cir.1993).      We agree that

this statement of an ADA plaintiff's burdens of production and

persuasion (which tests plaintiff's claim "through the application
of traditional burdens of proof") is the appropriate one.

     Even assuming an employer has an affirmative obligation—absent

an employee's suggestion for a specific accommodation—to engage in

the interactive process Plaintiff advocates, we have held that,

where a plaintiff cannot demonstrate "reasonable accommodation,"

the employer's lack of investigation into reasonable accommodation

is unimportant.       Moses v. American Nonwovens, Inc., 

,

448 (11th Cir.1996).       In Moses, we rejected an employee's claim

(under   the   ADA)    that   his   employer      not   only    failed   to    make

reasonable     accommodations        for    his     disability,       but      also

failed—before     terminating       the    employee's        employment—even    to

consider the available options for accommodating the disability.

arguments are that [the employer]

failed to investigate his condition and failed to consider possible

accommodations.")        We   acknowledged     that     we    were   troubled    by

evidence that the employer had failed to investigate accommodating

the plaintiff.     

more troubled by the evidence that

[the employer] failed to investigate possible accommodations.                   No

language in the ADA mandates a pretermination investigation, but

the EEOC advises that "the employer must determine whether a

reasonable accommodation would ... eliminate' the direct threat.

29 C.F.R. § 1630.2(r), 1630.9, Interp. Guidance.") We determined,

however, that the ADA provides no cause of action for "failure to

investigate" possible accommodations, and that:

          We are persuaded that [the employer's] failure to
     investigate did not relieve [plaintiff] of his burden of
     producing probative evidence that reasonable accommodations
     were available.     A contrary holding would mean that an
     employee has an ADA cause even though there was no possible
     way for the employer to accommodate the employee's disability.
      Stated differently:    An employer would be liable for not
      investigating even though an investigation would have been
      fruitless. We are confident that although the ADA does not
      mandate a pretermination investigation, the possibility of an
      ADA lawsuit will, as a matter of practice, compel most
      employers   to  undertake   such  an   investigation   before
      terminating a disabled employee.

extent that the Seventh Circuit's Beck opinion can be

interpreted (as Plaintiff says) to require an "interactive process"

such that an employer can be held liable merely for failing to

engage in the process itself (regardless of whether a "reasonable

accommodation" could in reality have been made for the employee),

Moses holds otherwise.         And, to the extent that               Beck can be

interpreted as requiring that the "interactive process" envisioned

in the regulations carry over to a plaintiff's burden of production

in court (thus, relieving the plaintiff-employee of her "burden of

producing evidence that reasonable accommodations were available"),

Moses holds otherwise.

      We also do not believe an approach as punitive in nature as

Plaintiff's view of an "interactive process" requirement comports

with the basic goal of the ADA, which we understand to be remedial

in    nature—ensuring       that   those     with     disabilities    can   fully

participate in all aspects of society, including the workplace.

See e.g. 42 U.S.C. § 12101(a)(8) ("[T]he Nation's proper goals

regarding individuals with disabilities are to assure equality of

opportunity, full participation, independent living, and economic

self-sufficiency for such individuals;....") The ADA, as far as we

are   aware,    is   not    intended    to   punish   employers   for   behaving

callously      if,   in    fact,   no   accommodation     for   the   employee's
disability could reasonably have been made.

     We know that some courts have required the plaintiff (as part

of her initial burden of production) to introduce evidence of the

existence of an accommodation, but have combined the questions of

(a) whether the accommodation is reasonable and (b) whether it will

impose an undue hardship on the employer into one question.      Then

the burden of proof (or the "burden of nonpersuasion") on the one

question   has   been   put on the defendant-employer.     See   e.g.

Borkowski v. Valley Cent. School Dist., 

, 138 (2d

Cir.1995) ("[I]n practice meeting the burden of nonpersuasion on

the reasonableness of the accommodation and demonstrating that the

accommodation imposes an undue hardship amount to the same thing.")

(interpreting     regulations     promulgated   pursuant   to     the

Rehabilitation Act).     Such an approach confuses an element of the

plaintiff's case (reasonable accommodation) with an affirmative

defense (undue burden) and effectively relieves the plaintiff of

her obligation to prove her case.      See 42 U.S.C. § 12112(b) ("As

used in subsection (a) of this section, the term "discriminate'

includes—... (5)(A) 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,

unless such covered entity can demonstrate that the accommodation

would impose an undue hardship on the operation of the business of

such covered entity;     ...")

     We doubt that, in providing for a private right of action to

enforce the rights created by the ADA, Congress intended such a

departure from the traditional rules and norms of litigation. This
doubt is especially strong where an established body of civil

rights    jurisprudence      (which    employed    conventional    burdens   of

production and proof for plaintiffs and defendants) existed, and

Congress expressly relied on existing civil right laws in creating

the pertinent private right of action.             See generally 42 U.S.C. §

12117(a) ("The powers, remedies, and procedures set forth in

sections 2000e-4, 2000e-5, 2000e-6, 2000e-8, and 2000e-9 of this

title shall be the powers, remedies, and procedures this subchapter

provides to the Commission, to the Attorney General, or to any

person alleging discrimination on the basis of disability in

violation    of    any    provision    of   this   chapter,   or   regulations

promulgated       under   section     12116   of   this   title,   concerning

employment."). See also St. Mary's Honor Center v. Hicks, 

, 506-07, 

, 2747, 

(1993) ("It is

important to note, however, that although the              McDonnell-Douglas

presumption shifts the burden of production to the defendant,

"[t]he ultimate burden of persuading the trier of fact that the

defendant intentionally discriminated against remains at all times

with the plaintiff.' ") (quoting Texas Dept. of Community Affairs

v. Burdine, 

, 253, 

, 1093, 

(1981)).

         That the evidence probative of the issue of whether an

accommodation for the employee is reasonable will often be similar

(or identical) to the evidence probative of the issue of whether a

resulting hardship for the employer is undue, does not change the

fact that establishing that a reasonable accommodation exists is a

part of an ADA plaintiff's case, whereas undue hardship is an
affirmative defense to be pled and proven by an ADA defendant.2

         Turning to the evidence before the district court in this

case,     Plaintiff    presented     no       competent     evidence   that    any

alternative position existed (vacant or otherwise)—regardless of

whether she was qualified for it.              In fact, Plaintiff's physician

indicated that "[t]here is nowhere within that building that she

would be safe."       The only evidence Plaintiff offered that a vacant

position existed at all was a hearsay statement, contained in her

affidavit,    that    she   ran   into    a    "temporary    service   girl"   who

informed her that "she was hired into the vacant office position

[Plaintiff] had [temporarily] had [in the plant's safety office]

after [Defendant] had terminated me."               The district court struck

the statement as inadmissible hearsay, and Plaintiff does not

appeal this evidentiary ruling.               The district court also pointed

out that Plaintiff's own testimony contradicted her claim that such

a position would have accommodated her condition.                      Also, the

affidavit does not show that the vacancy (if there was a vacancy)

existed when Plaintiff was let go.

     As for Plaintiff's claim that it would have been a reasonable

accommodation for Defendant to enclose and to air-condition the


     2
      These two issues are not exactly the same: the question of
whether an accommodation is reasonable (though it must be
determined within a given set of specific facts) is more of a
"generalized" inquiry than the question of whether an
accommodation causes a "hardship" on the particular employer that
is undue. See 

("As a general matter, a
reasonable accommodation is one employing a method of
accommodation that is reasonable in the run of cases, whereas the
undue hardship inquiry focuses on the hardships imposed by the
plaintiff's preferred accommodation in the context of the
particular agency's operations.") (interpreting Rehabilitation
Act regulations) (emphasis in original) (citations omitted).
spare parts area, she testified, in her deposition, that she "still

[would] have been exposed to powder" and that no way existed that

she "could work in the spares department and not be exposed to

enzymes."    She submitted no evidence to contradict her testimony

(or that of her doctor) on this point.

       Plaintiff says that, as an employee, she was in no position to

know what specific accommodations were available or how reasonable

they were.   Whatever may be said of her "burden" as an employee in

the    day-to-day    workplace    seeking      an     accommodation    for    her

condition, Plaintiff—as a litigant bringing an ADA action—has

failed to produce evidence (after the completion of discovery) of

the existence of any "accommodation" at all, "reasonable" or

otherwise.

         Plaintiff    also   says      that     she    was   subjected   to     a

discriminatory      termination       in   that     she   was    discharged   in

retaliation for requesting an accommodation or for seeking to file

for worker's compensation benefits.            The district court held that

Defendant had articulated a legitimate, nonretaliatory reason for

the discharge—Plaintiff refused to report to work—and that her

failure to present evidence that Defendant's proffered reason was

pretextual requires summary judgment. See e.g. Jackson v. Veterans

Admin., 

, 279 (11th Cir.1994) ("one who does not come to

work   cannot   perform   any    of    his    job   functions,    essential   or

otherwise") (quotation marks and citation omitted).

       Plaintiff seeks to distinguish Jackson by pointing out that

the disability involved there resulted in the employee being absent

from the office in an unpredictable way.              Plaintiff also says that
Defendant's failure in this case to provide her with worker's

compensation forms (despite three requests to do so) and the fact

that she sought such benefits shortly before being terminated,

raises a triable issue of fact.       Assuming for the sake of argument

that Defendant's failure to provide such forms does raise a triable

issue in the first instance (that is, assuming that Plaintiff has

met   her   burden   of   coming   forward   with   evidence   to   raise   an

inference of retaliation), Plaintiff fails to offer evidence to

raise an inference that Defendant's offered explanation for the

termination (Plaintiff refused to come to work) was mere pretext.

      When an employee refuses to show up for work after being

informed that her failure to do so will result in the loss of her

job, the employer has presented a valid, nonretaliatory reason for

terminating that employee.         

("The [employer] does not

dispute that [the employee] performs these tasks satisfactorily

when he is at work.        ... [The employee's] presence on a routine

basis is also an essential element of the job that he has failed to

satisfy.") (emphasis in original).

      AFFIRMED.