Filed: Jul. 26, 2010
Latest Update: Feb. 22, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-1913 JAMES SCHNEIDER, Plaintiff - Appellant, v. GIANT OF MARYLAND, LLC, Defendant – Appellee, and THE STOP & SHOP SUPERMARKET COMPANY LLC; BILL HOLMES, Defendants. Appeal from the United States District Court for the District of Maryland, at Greenbelt. Peter J. Messitte, Senior District Judge. (8:07-cv-01995-PJM) Argued: May 12, 2010 Decided: July 26, 2010 Before NIEMEYER, DAVIS and KEENAN, Circuit Judges. Affirmed by unpub
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-1913 JAMES SCHNEIDER, Plaintiff - Appellant, v. GIANT OF MARYLAND, LLC, Defendant – Appellee, and THE STOP & SHOP SUPERMARKET COMPANY LLC; BILL HOLMES, Defendants. Appeal from the United States District Court for the District of Maryland, at Greenbelt. Peter J. Messitte, Senior District Judge. (8:07-cv-01995-PJM) Argued: May 12, 2010 Decided: July 26, 2010 Before NIEMEYER, DAVIS and KEENAN, Circuit Judges. Affirmed by unpubl..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-1913
JAMES SCHNEIDER,
Plaintiff - Appellant,
v.
GIANT OF MARYLAND, LLC,
Defendant – Appellee,
and
THE STOP & SHOP SUPERMARKET COMPANY LLC; BILL HOLMES,
Defendants.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Peter J. Messitte, Senior District
Judge. (8:07-cv-01995-PJM)
Argued: May 12, 2010 Decided: July 26, 2010
Before NIEMEYER, DAVIS and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Orva Lee Boothby, Washington, D.C., for Appellant.
Lesley Pate Marlin, VENABLE, LLP, Washington, D.C., for
Appellee. ON BRIEF: Robert G. Ames, VENABLE, LLP, Washington,
D.C., for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
James Schneider (“Schneider”), who suffers from Type 1
diabetes, sued Giant of Maryland, LLC (“Giant”), under the
Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C.
§ § 12101, et seq., alleging disability employment
discrimination. The claims arose from Schneider’s employment at
Giant, first as a pharmacy supervisor and currently as a
pharmacy manager. Specifically, Schneider claimed that Giant
illegally failed to afford him reasonable accommodations when,
as a result a diabetes-related blackout he experienced while
driving, his driver’s license was suspended, and when it refused
to return him to his supervisory position after his license was
reinstated. The district court granted Giant’s motion for
summary judgment. For the reasons stated within, we affirm.
I.
Schneider was diagnosed with Type 1 diabetes mellitus in
1963. 1 The diabetes contributes to his peripheral neuropathy,
1
Type 1 diabetes mellitus, unlike Type 2, is characterized
by the loss of insulin-producing beta cells in the pancreas,
which leads to insulin deficiency. Type 1 diabetes generally
develops in childhood or adolescence, and is treated with diet,
exercise, and drugs that reduce glucose levels, including
insulin. Later complications of Type 1 diabetes include
vascular disease, peripheral neuropathy, and predisposition to
infection. No treatments definitely prevent the onset or
progression of type 1 diabetes. The Merck Manual of Diagnosis
and Therapy § 12.158 (Mark H. Beers et al. eds., 18th ed. 2006).
2
retinopathy, and foot ulcers. Schneider’s diabetes has affected
his ability to walk, stand, digest food, and his energy levels.
Since early 2001, Schneider has suffered from foot ulcers and
was advised by medical professionals to avoid weight-bearing
activities. Since 2002, he has been unable to stand for long
periods of time and has avoided recreational activities that
require the use of his feet. Schneider currently treats his
diabetes with insulin shots; he has had multiple surgeries for
his foot ulcers.
Schneider began working for Giant in 1979 as a staff
pharmacist. In April 2000, he was promoted to regional pharmacy
supervisor. As a regional pharmacy supervisor, Schneider was
responsible for all of the pharmacies in a district; among other
responsibilities, his duties included making sure that the
pharmacies complied with state and federal law, maintaining
inventory and proper records, maintaining proper staff levels,
and ensuring knowledge of pharmacy regulations. Regional
pharmacy supervisors were also responsible for the day-to-day
operations of the pharmacy departments in various stores,
including but not limited to hiring and firing personnel,
budgeting, and inventory. In carrying out these duties, the
pharmacy supervisor is required to travel — usually by driving —
from store-to-store within the specified district. Schneider
was also required to attend frequent meetings at Giant’s
3
headquarters in Landover, Maryland. Although the position of
pharmacy supervisor involved considerable travel, many of the
major duties required by the position, and perhaps a majority of
them, could be completed in an office. At the time of his
promotion, Schneider’s district covered an area from southern
Maryland to Fredericksburg, Virginia.
On June 2, 2005, Schneider was involved in a car accident
when he blacked out while driving in Virginia during work hours.
At the hospital, it was determined he had had a hypoglycemic
reaction, a not uncommon occurrence among patients with
diabetes. 2 On July 7, 2005, the Virginia Department of Motor
Vehicles (“the DMV”) notified Schneider that he was required to
complete a medical report, and on August 12, 2005, the DMV
notified him that his driving privileges would be suspended for
at least six months in accordance with the DMV’s
Seizure/Blackout policy.
On August 14, 2005, Schneider informed Russell Fair
(“Fair”), his supervisor, of the suspension of his driving
2
Hypoglycemia is the most common complication of insulin
treatment, and occurs when the blood glucose levels drop below
normal levels. Symptoms of mild hypoglycemia include headaches,
light-headedness, blurred vision, and confusion. Symptoms of
severe hypoglycemia include seizures and loss of consciousness.
Type 1 diabetics who have suffered from the disease for a long
period may be unaware of hypoglycemic episodes because they no
longer experience autonomic symptoms. The Merck Manual of
Diagnosis and Therapy, § 12.158.
4
privileges at a meeting at the Landover headquarters (but not of
the reason for the suspension). Schneider drove to Landover
with another pharmacy supervisor, John Colella (“Colella”) and
during the drive to the meeting, Colella offered to take
responsibility for the stores that were farther away from
Schneider’s home and for Schneider to take over the stores that
were closer to his residence. At the meeting with Fair and
Colella, Schneider suggested that he could keep his supervisory
position during the period of his license suspension by having
one of his family members drive him to a store, and then taking
taxis from store-to-store to carry out his responsibilities. He
offered to pay the cab fare and to seek reimbursement only for
mileage, as he did before the license suspension. Schneider
also proposed that: (1) as Colella had agreed to switch stores
with him, he could assume responsibility for all the central
Virginia stores, thus narrowing his area of travel; and (2) he
would work nights and weekends, when his family members could
drive him from store-to-store. In this case, Schneider asserts
the proposals he offered during this meeting constituted a
request for reasonable accommodation under the ADA.
Fair told Schneider that his proposed alternatives were not
acceptable, would not work, and would not be approved.
Ultimately, Schneider and Fair agreed that Schneider would be
reassigned to work as a pharmacy manager at a pharmacy near his
5
home, but with the same pay as a pharmacy supervisor. Another
employee was reassigned as a pharmacy supervisor to take over
Schneider’s stores in an official announcement.
The DMV reinstated Schneider’s driving privileges on
December 28, 2005. In the meantime, even before his driving
privileges had been reinstated, Schneider began having increased
problems with weight-bearing activities while on his feet.
These problems worsened in the fall of 2005, when his doctor
advised him to reduce weight-bearing activities. Unlike his
position as pharmacy supervisor, Schneider’s position as
pharmacy manager required him to stand on his feet most of the
day. In any event, it is undisputed that he never asked for any
assistance in reducing the amount of time spent on his feet at
work during the fall of 2005.
By January 2006, Schneider was in constant pain whenever he
had to stand, but continued to stand at work for long periods of
time. On January 19, 2006, Schneider’s friend and podiatrist,
Dr. Stuart Kramer (“Dr. Kramer”) sent a letter to Fair
recommending that Schneider return to his previous position as a
pharmacy supervisor because the change in his job position had
severely exacerbated Schneider’s diabetic foot problems. After
Giant received the letter, Colella met with Schneider to discuss
the letter and his work situation. At the meeting, Schneider
told Colella that “he was fine, that he was going to be fine.”
6
J.A. 248. Schneider then had foot surgery in May 18, 2006, as a
result of his exacerbated foot condition.
On September 25, 2006, Schneider was admitted to the
hospital after he blacked out at work. On October 3, 2006,
Colella and Schneider had a meeting with Guy Mullins
(“Mullins”), the HR representative of Giant. Mullins discussed
a note from Schneider’s doctor requiring limited duty and wanted
to know what that meant. Schneider explained that the doctor
just wanted to make sure he was able to work his shift. Mullins
asked Schneider if he needed any special accommodations and
Schneider replied that he was just concerned about standing on
his feet all day. Mullins replied that Giant would need a note
from Schneider’s doctor stating what his limited duties were,
and Schneider replied he would get that note to Mullins.
II.
On July 26, 2007, Schneider filed a pro se employment
discrimination complaint in federal district court
(misidentifying his employer as Stop & Shop Supermarket Co.,
LLC). On March 31, 2008, Schneider, now represented by counsel,
filed a second amended complaint naming the correct defendant,
Giant. In the second amended complaint, Schneider asserted two
claims: a state law discrimination claim and a claim that Giant
had violated the ADA, 42 U.S.C. § 12101, et seq., in
7
discriminating against Schneider and by failing and refusing to
make a reasonable accommodation.
After the completion of discovery, Giant moved for summary
judgment and the district court held a hearing. Schneider
withdrew his state law claim at that time, leaving only his ADA
claims for consideration by the district court. At the
conclusion of the hearing, the district court, ruling from the
bench, granted Giant’s motion for summary judgment. The
district court concluded that Schneider did not project
sufficient evidence to meet his burden of showing that he had a
disability cognizable under the ADA at the time he was
reassigned after his driver’s license was suspended.
Furthermore, the district court concluded, Schneider did not
communicate that he had a “disability” at that time. The
district court also determined that the only accommodation
sought by Schneider at the time his driving privileges were
restored (and after his condition had worsened) was a request
for a transfer to his prior supervisory position, which, having
been filled by another employee, Giant had no obligation to
grant under the ADA.
Schneider has timely appealed from the district court’s
adverse judgment.
III.
A.
8
We review the district court’s grant of summary judgment de
novo, viewing the facts in the light most favorable to the non-
movant. Waller ex rel. Estate of Hunt v. Danville, VA, 556 F.3d
171, 174 (4th Cir. 2009). Summary judgment is not appropriate
unless “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); Celotex Corp. v. Catrett,
477 U.S.
317, 322 (1986).
B.
The Americans with Disabilities Act of 1990 3, 104 Stat. 328,
42 U.S.C. § 12101 et seq., prohibits discrimination by covered
entities, including private employers, against qualified
individuals with a disability. Under the Act, “disability” is
defined as:
3
The ADA was amended effective January 1, 2009, after this
suit was filed. See ADA Amendments Act of 2008, Pub. L. No.
110-325, 122 Stat. 3553. Congress did not expressly intend for
these changes to apply retroactively, and so we must decide this
appeal based on the law in place prior to the amendments.
Landgraf v. USI Film Prods., 511 U.S. 244, 270-71 (1994); Shin
v. University of Maryland Medical System Corp., No. 09-1126,
2010 WL 850176 at *5 n. 14 (4th Cir. Mar. 11, 2010)
(unpublished) (“Our sister circuits have found that the 2008 ADA
amendments are not retroactive . . . and we see no reason to
disagree with their conclusion”).
9
(A) a physical or mental impairment that substantially
limits one or more of the major life activities of
such individual;
(B) a record of such an impairment; or
(C) being regarded as having such an impairment.
42 U.S.C. § 12102(2). Discrimination under the ADA includes a
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), and “denying employment opportunities to a job
applicant or employee” where the denial of the employment
opportunity is based on the need “to make reasonable
accommodation,”
id. § 12112(b)(5)(B).
In a failure to accommodate case, 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. F.D.I.C., 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)).
To assess a claim for disability employment discrimination,
the first question is whether the plaintiff is disabled and is
an “otherwise qualified individual.” Rhoads, 257 F.3d at 387.
10
A qualified individual with a disability is defined by the ADA
as “an individual with a disability who, with or without
reasonable accommodation, can perform the essential functions of
the employment position that such individuals holds or desires.”
42 U.S.C. § 12111(8). 4 In order to survive summary judgment,
Schneider was required to produce evidence showing that he is
both qualified and disabled.
Diabetes is not per se a disability under the ADA because a
“person whose physical or mental impairment is corrected by
medication or other measures does not have an impairment that
presently ‘substantially limits’ a major life activity.” Sutton
v. United Air Lines, Inc., 527 U.S. 471, 482-83 (1999). Whether
a person is disabled under the ADA “depends on whether the
limitations an individual with an impairment actually faces are
in fact substantially limiting.”
Id. at 488 (emphasis in
4
Whether “driving” is an essential function of Schneider’s
former position is disputed. Giant contends that driving is an
essential function of the job as a pharmacy supervisor, and
therefore, Schneider was unable to perform an essential function
for the six months his driving privileges were suspended.
Schneider contends driving is not an essential function of the
job. The record shows that the job posting for pharmacy
supervisor does not include “driving” as one of the job
duties/functions, nor is it listed under the preferred
qualifications. Although under “Physical Demand Analysis,” the
description states “many hours in a car (approximately 30,000
miles yearly),” the description does not specifically state
“driving.” In the view we take of the case, we need not further
address this issue.
11
original). Therefore, although Type 1 diabetes is a chronic
illness, when successfully managed, it is not a disability under
the ADA until it causes a substantially limiting impairment of a
major life activity. See Kapche v. City of San Antonio, 176
F.3d 840, 847 (5th Cir. 1999) (finding that diabetes is not per
se a disability under the ADA); Baert v. Euclid Beverage, Ltd.,
149 F.3d 626, 631 (7th Cir. 1998) (same).
The Equal Employment Opportunity Commission (“E.E.O.C.”)
has promulgated regulations to implement the ADA and has
provided that “substantially limits” means: (i) unable to
perform a major life activity that the average person in the
general population can perform; or (ii) significantly restricted
as to the condition, manner or duration under which an
individual can perform a particular major life activity. 29
C.F.R. § 1630.2(j)(1). The regulations also list three factors
to consider when determining whether an individual is
substantially limited in a major life activity: (i) the nature
and severity of the impairment; (ii) the duration or expected
duration of the impairment; and (iii) the permanent or long term
impact, or the expected permanent or long term impact of or
resulting from the impairment. 29 C.F.R. § 1630.2(j)(2). See
Heiko v. Colombo Savings Bank, F.S.B., 434 F.3d 249, 256 (4th
Cir. 2006) (recognizing E.E.O.C. regulations as proper authority
for interpreting the ADA); Rohan v. Networks Presentations,
12
LLC, 375 F.3d 266, 277 (4th Cir. 2004) (same); Pollards v.
High’s of Baltimore, Inc.,
281 F.3d 462, 471 (4th Cir. 2002)
(same).
C.
Because the analysis of whether diabetes is a qualified
disability under the ADA is fact-specific, this court must
analyze the evidence bearing on Schneider’s diabetic condition
as of August 2005, when he claims he first asked for an
accommodation, and in January 2006, when he next asked for an
accommodation.
Schneider’s diabetic condition in August 2005
We agree with the district court that Schneider failed to
project probative evidence that he was disabled under the ADA in
August 2005 when he asked for an accommodation after his
driver’s license was suspended. Although Schneider has lived
with Type 1 diabetes since his diagnosis in 1963, the illness
did not significantly interfere with his daily life until 2001,
when he began to have peripheral neuropathy, retinopathy, and
chronic foot ulcers. The record shows, however, that his
deteriorating condition did not affect his job performance
before August 2005. Because of the nature of his job functions
as a pharmacy supervisor, Schneider was still able to perform
his duties without any problems.
13
There is no legal authority in this circuit that would
support the conclusion that Schneider had a disability, as
defined by the ADA, in August 2005. Although there were
physical impairments that were the result of his diabetes — such
as the inability to stand for long periods of time — these
impairments were controlled by both medication and lifestyle
choices. The Supreme Court has clarified that “[a] ‘disability’
exists only where an impairment ‘substantially limits’ a major
life activity, not where it ‘might’,‘could’, or ‘would’ be
substantially limiting if mitigating measures were not taken.”
Sutton, 527 U.S. at 482 (emphasis added).
In this case, Schneider had long been taking mitigating
measures: he administered insulin injections and he would
“regularly eat[] breakfast every morning and take many snacks
during the day to prevent hypoglycemia during the work day.”
J.A. 586. Though diabetic, Schneider was unable to show that as
of August 2005, the disease had become sufficiently serious to
have an effect on his major life activities. Schneider claimed
that the diabetes affected his walking, standing, and digestion,
but presented no evidence that those activities were
substantially limited in August 2005 such that his condition
became disabling within the ADA. In fact, at that time,
Schneider was not yet experiencing constant pain or foot ulcers
from the diabetic neuropathy. See e.g., Orr v. Wal-Mart Stores,
14
Inc., 297 F.3d 720, 724 (8th Cir. 2002) (finding that a diabetic
plaintiff failed to show he had a disability under the ADA
because he failed to explain how his diabetes substantially
affected his major life activities). In short, Schneider
produced no evidence that would create a genuine issue of
material fact as to whether his diabetic condition constituted a
disability in August 2005. See e.g., E.E.O.C. v. Sunbelt
Rentals, Inc.,
521 F.3d 306, 321 (4th Cir. 2008) (reversing the
district court’s grant of summary judgment because there was a
genuine issue of material fact).
Furthermore, even if we were persuaded that Schneider had
projected sufficient admissible evidence that he was disabled in
August 2005, Schneider’s claim for failure to accommodate his
loss of driving privileges would fail because he never made the
existence of any such disability known to his employer and did
not inform his employer that the reason he needed an
accommodation in August 2005 was because of his diabetes.
Unlike race or sex discrimination, “there are situations in
alleged disability discrimination cases where an employer
clearly did not know and could not have known of an employee’s
disability.” Hedberg v. Indiana Bell Telephone Co., Inc., 47
F.3d 928, 932 (7th Cir. 1995). When it worsens so as to
substantially limit one’s major activities, diabetes is often a
“hidden” or “invisible” disability — one that an employer can
15
not easily ascertain from daily interactions with an employee.
See also Harrison v. Benchmark Electronics Huntsville, Inc., 593
F.3d 1206, 1213-14 (11th Cir. 2010) (including diabetes in the
list of “so-called hidden disabilities”).
Although we do not suggest that a single occurrence of a
diabetes-induced black-out would render diabetes a statutorily-
cognizable “disability” as a matter of law, the record shows
that Giant never had notice of Schneider’s alleged disability in
August 2005 and was unaware that Schneider was asking for
“reasonable accommodations” for his “disability” as those terms
are used in the ADA. The burden to provide notice is not an
onerous one: the employee does not need to mention the ADA or
use the phrase “reasonable accommodation,” but need only inform
the employer of both the disability and the employee’s need for
accommodations for that disability. E.E.O.C. v. Federal Express
Corp., 513 F.3d 360, 369 (4th Cir. 2008).
Here, Schneider conceded on deposition that he never talked
to his supervisor specifically about his diabetes when seeking
alternatives to driving after the DMV suspended his driver’s
license:
Question: At any time during your conversation with
Mr. Fair on August 15th, 2005, did you tell Mr.
Fair that your car accident on June 2nd, 2005 was
because of a hypoglycemic episode?
Answer: I don’t remember even discussing the accident
itself with Russ.
16
Question: All you discussed was the loss of your
drivers license then?
Answer: That was the main — main focus of the
conversation.
Question: And it was the loss of your drivers license
that led to your reassignment, correct?
Answer: Correct.
Question: And your reassignment to the pharmacy
manager position had nothing to do with any
physical impairment that you may have had at that
time, correct?
Answer: Correct.
J.A. 150-51.
Schneider argues that at the time of the August 2005
meeting, management officials at Giant knew about Schneider’s
diabetes, so it could only be inferred that they knew he was
asking for an accommodation for his disability. This argument
is not persuasive for two reasons. First, because Schneider
never directly mentioned that he was suffering from acute
impairments, i.e., hypoglycemic episodes, caused by his diabetic
condition, management should not be held responsible for
guessing that the diabetes had progressed to a point where
Schneider was a disabled person under the ADA. See e.g.,
Huppenbauer v. May Dep’t Stores Co., 1996 WL 607087 at *4 (4th
Cir. Oct. 23, 1996) (unpublished table) (finding that even if
everyone knew that the plaintiff had a heart condition, such
17
knowledge would not equal notice that the condition imposed
limitations on the plaintiff requiring special accommodations).
Second, Schneider never requested the accommodation of allowing
him to keep his pharmacy supervisor position by taking taxis to
the different stores on his route because of his diabetic
condition and disability. Schneider never mentioned that his
license was suspended because of hypoglycemia caused by his
diabetic condition, and there was no reason for Giant’s
management to assume such a thing without Schneider’s informing
them. Giant cannot be faulted for failure to provide reasonable
accommodations under the ADA where it did not know of
Schneider’s disability. See Huppenbauer, 1996 WL 607087 at *7
(holding that “where an employee failed to make a clear request
for an accommodation and communicate it to his employer,” the
employer has not violated the ADA); Larson v. Koch Refining Co.,
920 F. Supp. 1000, 1004 (D. Minn. 1996) (holding that providing
accommodations is only appropriate where the employer knows that
plaintiff is both disabled and in need of accommodation).
In sum, at no time on or before August 2005 did Giant know
that Schneider had a disability that required accommodation, and
the evidence in the record does not support the conclusion that
Schneider was disabled under the ADA. Thus, Giant had no
obligation to provide reasonable accommodations for Schneider
because of his diabetic condition. Therefore, the district
18
court’s grant of summary judgment on Schneider’s claim that
Giant violated the ADA in August 2005 must be affirmed.
Schneider’s diabetic condition in January 2006
Schneider also claims that Giant violated the ADA in
January 2006 because he requested, but was refused, the
reasonable accommodation of being transferred from his pharmacy
manager position back to the pharmacy supervisor position so
that his diabetic foot ulcers would not worsen. It seems
largely undisputed that by January 2006, Schneider was disabled
because of his diabetic condition, and that Giant knew about his
diabetes. Schneider’s foot ulcers, a condition resulting from
his diabetes, were exacerbated from the prolonged standing and
excessive weight-bearing activities required for his pharmacy
manager position. Additionally, his supervisors knew that
Schneider’s diabetic condition was causing him pain since by
January 2006, Schneider had spoken to his supervisors about his
diabetes and submitted a letter from his podiatrist.
At the same time as his doctor’s letter, Schneider also
sought an accommodation from Giant for his disability.
Schneider’s doctor requested in a letter that Schneider be
returned to his previous position as a pharmacy supervisor,
which did not require standing for 8-12 hours a day. Schneider
also sent a letter to the Director of Human Resources at Giant
19
seeking to be reassigned to his previous position, but he never
received a response to the letter.
Despite this evidence, Giant’s refusal to approve
Schneider’s request to be restored to his previous position as a
pharmacy supervisor does not mean that Giant failed to provide
reasonable accommodations in violation of the ADA.
Under the ADA, an employer must make “reasonable
accommodations” for a disabled employee, unless the company can
demonstrate that the accommodation “would impose an undue
hardship on the operation of the business.” 42 U.S.C.
§ 12112(b)(5)(A). The ADA does not require that the employer go
out of his way to provide an accommodation for a disabled
employee, but only requires that accommodations are
“reasonable.” See Vande Zande v. State of Wis. Dep’t of Admin.,
44 F.3d 538, 542 (7th Cir. 1995) (“To ‘accommodate’ a disability
is to make some change that will enable the disabled person to
work . . . [and] at the very least, the cost could not be
disproportionate to the benefit.”). This court has found that
the ADA does not require reassignment “when it would mandate
that the employer bump another employee out of a particular
position.” E.E.O.C. v. Sara Lee Corp.,
237 F.3d 349, 355 (4th
Cir. 2001). An employer is not required to violate another
employee’s rights in favor of an employee with a disability in
order to give the disabled employee a reasonable accommodation.
20
Id. at 353-54; see also Daugherty v. City of El Paso,
56 F.3d
695, 700 (5th Cir. 1995) (“[W]e do not read the ADA as requiring
affirmative action in favor of individuals with disabilities, in
the sense of requiring that disabled persons be given priority
in hiring or reassignment over those who are not disabled”).
In January 2006, however, Schneider had not asked for any
accommodation other than to be re-assigned as a pharmacy
supervisor. Giant was not required, though, to place Schneider
back into his old position. In fact, Giant had since replaced
Schneider with another employee because management was unsure
when Schneider driver’s license would be restored and could not
leave the position unfilled. Furthermore, Schneider had not
requested any other accommodations for his current position to
alleviate the pain in his foot from standing for hours.
Although there may be other alternatives and options that
will not require Schneider to be on his feet for his entire work
shift in the pharmacy manager position, Schneider neither
requested such alternatives, nor requested to discuss any other
potential accommodations with his supervisors. The record
further reflects that Giant’s management knew about and were
concerned about Schneider’s diabetic neuropathy and the effect
that standing would have on his feet, and provided a stool for
Schneider to sit on during his shifts. In any event, the mere
fact that Giant refused to reassign Schneider to the position of
21
pharmacy supervisor does not show that Giant failed to give
Schneider a reasonable accommodation for his disability.
IV.
For the reasons set forth herein, the judgment of the
district court is
AFFIRMED.
22
