UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

DIETER HUPPENBAUER,
Plaintiff-Appellant,

v.
                                                                     No. 95-1032
THE MAY DEPARTMENT STORES
COMPANY,
Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Claude M. Hilton, District Judge.
(CA-94-635)

Argued: December 4, 1995

Decided: October 23, 1996

Before WIDENER, ERVIN, and WILKINS, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished opinion. Judge Ervin wrote the opinion, in
which Judge Widener and Judge Wilkins joined.

_________________________________________________________________

COUNSEL

ARGUED: John Wyeth Griggs, GRIGGS & ADLER, Reston, Vir-
ginia, for Appellant. Ronald John Dolan, THE MAY DEPARTMENT
STORES COMPANY, St. Louis, Missouri, for Appellee. ON
BRIEF: Debra B. Adler, GRIGGS & ADLER, Reston, Virginia, for
Appellant. Mary V. Schmidtlein, Office of Legal Counsel, THE MAY
DEPARTMENT STORES COMPANY, St. Louis, Missouri; David
D. Hudgins, Jacqueline E. Bennett, HUDGINS, CARTER & COLE-
MAN, Alexandria, Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

ERVIN, Circuit Judge:

Deiter Huppenbauer, a former shoe salesperson in the Hecht's
Department Store ("Hecht's") (owned by the May Department Stores
Company), claims that Hecht's failed to honor his request for reason-
able accommodation, in violation of the Americans with Disabilities
Act ("ADA"), 42 U.S.C. § 12101 et seq. He also claims that Hecht's
did not pay him what he was owed under his employee compensation
contract. At trial, after Huppenbauer's case-in-chief, the district court
found insufficient evidence to support a reasonable jury verdict in his
favor and entered judgment against him on both claims. Huppenbauer
now challenges that dismissal and certain related evidentiary rulings.
We affirm.

I.

Deiter Huppenbauer, in his late 50's, suffers from a number of
health problems, including coronary artery disease, cirrhosis of the
liver, gout, and arthritis. In 1984, he had a heart attack and underwent
coronary artery bypass surgery. After the surgery, the heavy trays and
late nights of his restaurant job became too taxing, and Huppenbauer
found a job as a furniture salesman. He was later fired by the furniture
store and remained unemployed for a time before being hired to work
in the ladies' shoe department of Hecht's in July 1990.

At the outset, Huppenbauer assured the Hecht's interviewer that his
"health was good," and that he was able to do the job. He also signed
an application form stating that he had no condition which would

                     2
impede his job performance. However, Huppenbauer found the posi-
tion strenuous. As many as 200 times per day, Hecht's shoe salespeo-
ple must go in and out of the stock room to retrieve shoe samples,
often from high or low shelves, and must get on their knees to try
shoes on customers. The salespeople spend most of their day on their
feet and must walk quickly on busy sales days. In addition to serving
customers on the sales floor, Hecht's requires the sales associates to
spend about an hour per day performing "normal stock work," that is,
carrying shipping cartons into the stock room, unpacking them, orga-
nizing and stocking the shelves, and cleaning the stock room. At
times, the commissioned salespeople are assigned"special stock
work," which takes them away from the sales floor for extended peri-
ods.

Huppenbauer claims to have spent an inordinate amount of time
doing stock room duties, which he found to be very demanding. He
carried heavy cartons of shoes to his assigned section on the stock
room's second floor and often had to reach up high or get on his
knees to restock the shelves. He claims that "expediters," employees
assigned to assist with heavy lifting, were generally not available to
help him.1 He describes the stock room as poorly ventilated and per-
meated with chemical and other foul odors.

Huppenbauer claims that, although his health was good when he
came to Hecht's, the stock room work made him sick. During the
early period of employment, Huppenbauer performed well, even earn-
ing the company's highest "diamond star" sales award. During 1992,
however, his performance declined and his absences increased. Hup-
penbauer claims that the heavy lifting and fumes caused him chest
pain, headaches, dizziness, and difficulty breathing. He began visiting
doctors more frequently, and was diagnosed with arthritis, gout, and
cirrhosis of the liver. In April 1992, he was admitted to Reston Hospi-
tal with chest pain. During June, July and August of 1993, he missed
a significant amount of work. In September 1993, he was threatened
with termination for low sales and his "diamond star" commendation
pin was taken from him.
_________________________________________________________________
1 There is no evidence that Huppenbauer ever sought increased access
to or special assistance from these "expediters."

                    3
Huppenbauer claims that the Hecht's management knew about his
condition and his difficulties with stock room work. He claims that
his condition was common knowledge and that he discussed his
health problems and his need for accommodation with Hecht's man-
agement. In contrast, Hecht's denies that it was aware of Huppen-
bauer's claimed disability.

From September 15, 1993, through October 7, 1993, and from
October 14, 1993, to October 20, 1993, Huppenbauer was excused
from work by his medical clinic. On October 14, 1993, Huppen-
bauer's physician diagnosed a hernia, purportedly caused by lifting
heavy boxes in the stock room. After that visit and upon the doctor's
recommendation, Huppenbauer filed an application for extended med-
ical leave. Huppenbauer never returned to work after October 12,
1993; however, according to Hecht's, Huppenbauer was never fired
and is still considered an employee.2

On October 20, 1993, Huppenbauer brought eight causes of action
against Hecht's in the district court. After two of those claims were
dismissed, he filed an amended complaint alleging six causes of
action. In addition to the ADA and contract claims, he alleged Fair
Labor Standards Act violations, national origin discrimination, age
discrimination, and intentional infliction of emotional distress. The
national origin discrimination claim was dropped before trial. At trial,
the district court excluded evidence of Huppenbauer's hernia and evi-
dence pertaining to a front pay remedy. At the conclusion of Huppen-
bauer's case-in-chief, the May Company moved for a judgment as a
matter of law under Fed. R. Civ. P. 50(a). The court granted the
motion as to all five active claims, and dismissed the case. This
appeal followed.
_________________________________________________________________
2 Paragraph 16 of Huppenbauer's Amended Complaint conceded his
total disability: "Mr. Huppenbauer has been rendered totally disabled and
has been unable to work in any capacity." (J.A. at 38). On February 7,
1994, his attending physician [Dr. Nguyen] wrote a letter stating that in
his opinion "Mr. Huppenbauer is no longer capable to carry out the cur-
rent physical activities that were required for his job as a shoe salesman"
at Hecht's. (J.A. at 436). He has not worked anywhere since taking his
medical leave in mid-October, 1993.

                   4
II.

The granting of motions under Fed. R. Civ. P. 50(a)(1) is reviewed
de novo. Malone v. Microdyne Corp., 

, 475 (4th Cir.
1994). The reviewing court must examine--viewing the evidence in
the light most favorable to the non-moving party--whether the record
as a whole presents a sufficient evidentiary basis for a reasonable jury
to find in favor of the non-moving party. Anderson v. Liberty Lobby,
Inc., 

, 250 (1986).

III.

Huppenbauer claims that Hecht's violated the ADA by denying his
request for reasonable accommodation that would have allowed him
to continue working as a salesman. The ADA prohibits discrimination

          against a qualified individual with a disability because of the
          disability of such individual in regard to job application pro-
          cedures, the hiring, advancement, or discharge of employ-
          ees, employee compensation, job training, and other terms,
          conditions, and privileges of employment.

42 U.S.C. § 12112(a). As construed in the ADA,"discrimination"
includes:

          not making reasonable accommodations to the known physi-
          cal or mental limitations of an otherwise qualified individual
          with a disability who is an applicant or employee . . . .

42 U.S.C. § 12112(5)(A) (emphasis added). After Huppenbauer pres-
ented his evidence, the district court concluded that he had failed to
show that he made an actual claim for accommodation, so that his dis-
ability and need for accommodation fairly could be said to be
"known" by Hecht's. We agree.

When asked if he had ever supplied any documentation to Dorsey
Lilley, the Director of the Human Resources Department, or to any-
one else in that Department, specifically explaining his health prob-
lems, Huppenbauer conceded that he had not. Huppenbauer also

                    5
concedes that, although his main treating physician was aware of his
stock room work, over his three years of employment no doctor ever
wrote a note for him to give to Hecht's that said that he could not per-
form his duties at work until his final leave of absence. In fact, notes
written from his doctors stated that he could resume participation in
work and placed no restrictions on his activities. Nevertheless Hup-
penbauer argues that he gave sufficient notice to Hecht's of his "dis-
ability" on a number of occasions. We address each of his assertions
to this effect in turn.

A. Initial Employment Interview

Huppenbauer claims that he informed Hecht's about his disability
during his job interview.

          I told Miss King that I left the restaurant business because
          of my heart condition, I could not any longer do heavy lift-
          ing, trays and so forth and work until 2 and 3 and 4 in the
          morning, and that's why I changed and went first into sales
          as a furniture salesperson and that's why I was looking at
          this point for a sales position.

(J.A. at 103).

          It was my belief that at the time when I talked to Miss King
          that I mentioned, because of my heart, because of my heart
          surgery, it wouldn't prevent me from working. In fact, the
          doctor recommended certain movements, which doesn't
          mean heavy lifting. I don't know if I faced this the right
          way, but I thought I told Miss King that I had a heart condi-
          tion five years ago. And I was under the impression that
          Miss King had somebody in her family who had a similar
          problem. Miss King apparently denies it. It was just my
          impression. I put a little bit heart and feeling in and said, I
          have been a year unemployed, I can work, I performed a
          nice, excellent job as a salesperson, I don't see much differ-
          ence between selling larger items as furniture or selling
          beautiful small shoes.

                    6
(J.A. at 118-119). Huppenbauer alleges that King failed to adequately
explain the job requirements to him. Eager to be employed again, he
assured King that he was willing and able to do the job, and he signed
an application form stating that he had no disabling condition that
would impede his job performance. Had he known of the strenuous
stock room duties involved, Huppenbauer claims, he would not have
applied for the job.

Huppenbauer cannot reasonably be found to have made his disabil-
ity known to Hecht's during the interview. Most obviously, such a
finding conflicts with Huppenbauer's testimony that his "health was
good" and he "did not have anything that prevented [him] from taking
th[e] job at Hecht's." (J.A. at 117). Huppenbauer's theory of the case
is that the stock room work caused him to require accommodation.
His description of the interview reveals that he was eager to be hired
and to convince the interviewer that he would be able to do the job.
In that context, the mere statement that he "had a heart condition five
years ago" cannot constitute notice that he had a disability requiring
accommodation.

B. General Knowledge Among Hecht's Employees and
         Management

Huppenbauer contends his "heart condition" was common knowl-
edge at Hecht's:

          At one point or the other I am sure that 100 percent of the
          people that worked over there, unless they were only there
          one or two days or one week, I am sure that everybody
          knew that I had a heart condition.

(J.A. at 119). Of course, even if "everyone" knew that Huppenbauer
"had a heart condition," such knowledge would not equal notice to
Hecht's that the condition imposed limitations on Huppenbauer
requiring special accommodation.

C. Emergency Room Incident

Huppenbauer contends that Hecht's was put on notice of his dis-
ability when, in 1991, he collapsed on duty and was rushed to the hos-

                    7
pital. In support, Huppenbauer submitted emergency room records.
(J.A. 490-92). But those records do not support Huppenbauer's argu-
ment. In fact, they indicated that he had no chest pain, that he smelled
strongly of alcohol, and that he had a blood alcohol level of .12. Hup-
penbauer denied that he had been drinking that day. (J.A. at 122). He
does not dispute that he was released and returned to work the same
day. Certainly, the incident did not constitute valid notice to Hecht's
that Huppenbauer had heart disease requiring accommodation.

D. Requests to Kofteci

Huppenbauer claims that he went to his immediate supervisor,
Serra Kofteci, and asked her to lighten or alter his stock room duties.

           Some times in 1993 I showed Miss Kofteci a letter from
          Dr. Schufler (sic) from Reston Hospital . . . . I went to Miss
          Kofteci, and to her office and I told her, Miss Kofteci, I am
          not feeling well, this stock room is killing me. I said, I got
          a letter here, I don't think you are interested in all four
          pages, why don't you read just this here. And then maybe
          you give me a part-time job or easier job where I can do
          that. And I showed her specifically, five, six lines, here . . . .
          He (Dr. Shukla) attributes this dizzy spells and angina to
          this work environment.

(J.A. at 124-25).

Huppenbauer testified that shortly afterward, Kofteci assigned him
to "lighter, different janitorial work in the stock room and on the sales
floor since the cash registers are on the sales floor." However, about
eight or ten days later, Huppenbauer was returned to his regular stock
room work. (J.A. at 124-26).

In July 1993, after Huppenbauer returned one week late from a
vacation, Kofteci assigned him a larger section of the stock room.

          Well, I told her it keeps me away from the sales floor, it
          hurts my health, and I would really like to be transferred
          either to men's shoe department perhaps at the same store

                     8
          or to the furniture department. And I did this on two occa-
          sions. And my request was denied.

(J.A. at 127).

          So, I did more and more stock room work. And I com-
          plained to Miss Kofteci. And I told Miss Kofteci because of
          that stock room work, you know I am selling less. And it
          makes me more sick and I am taking more days off than I
          am supposed to be off that sales floor.

(J.A. at 130).

This testimony simply does not indicate that Huppenbauer made a
request for accommodation based on a disability. First, the statement
indicates Huppenbauer's primary concern with being taken from the
sales floor, rather than with the stock room's effect on his health. Sec-
ond, by asking to be transferred to the men's shoe department, Hup-
penbauer undermines his entire claim. Presumably, the men's shoe
department also has a stock room, filled with even heavier boxes of
shoes. An offhanded reference to his health cannot rescue this request
for Huppenbauer.

E. Conversations With Upper Management

Huppenbauer claims that he also approached Hecht's managers
about changing his job assignments, transfer or part-time status.

          One day I approached a manager who was above Miss
          Kofteci, her name was Andrea Rosenfeld. And I talked to
          one other person, but first I think I went to Miss Rosenfeld
          . . . . It was in September I think . . . . I asked her [Rosen-
          feld] if she could help perhaps being transferred or getting
          part-time job at the ladies' shoe department . . . . Her reply
          was since it was past 10 o'clock in the evening, I think the
          store was open until midnight that day, she said, Erich, I am
          too busy at this point, I ask you a favor, please, we are short
          already and I know you have problems, I showed her some
          medication I was taking that day, she said, I know you have

                     9
          problems, but please stay to the end and tomorrow or if
          Serra Kofteci is off tomorrow, the day after, I will talk to her
          and see if I can help you to get an easier position with this
          company. However, I never got any reply.

(J.A. at 131-32).

          I talked to Miss Lilley . . . Director of Human Resources . . .
          [a]round the same time. Everything must have happened in
          August, September or shortly before I was forced to leave.
          . . . I first explained the problems I was having with my
          health on a daily basis, especially chest pain and especially
          gout. And I explained that I, that more and more I have this
          gout and arthritis. And we had a quite friendly conversation.
          She recommended a medication, some shots that she proba-
          bly had before, it is called cortisone I think. You get it for
          muscle relations, for strong pain. I said maybe I do it, maybe
          I don't. I don't like needles and shots too much.

          And I said, what can I do to probably get a transfer. As far
          as I know, Miss Lilley informed me that it would mean a
          drop in salary to approximately $7.50. As far as I know, I
          said, I am going to think about it. When I talked about
          transfer--I mean, I talked about part-time, I again got
          referred to Miss Kofteci.

(J.A. at 132-33).

When asked if he ever presented any evidence to Lilley or the
Human Resources Department concerning his health, Huppenbauer
replied:

          Only documents which showed that I was excused for I
          think six or seven days or so forth to further evaluations
          were made, but not directly saying that -- . . . . No, just gen-
          eral excuses for some days I may have missed.

(J.A. at 134). Huppenbauer's testimony indicates that his conversa-
tions with the Hecht's managers cannot reasonably constitute notice

                    10
of his limitations and requests for accommodation. During their con-
versation at 10:00 p.m., Rosenfeld clearly indicated to Huppenbauer
that it was not a good time and she was unable to discuss the matter.
While Lilley discussed the possibility of transfer, Huppenbauer
admits that he told her that he would think about it. That conversation
cannot be considered an actual request for accommodation.

F. Request for Medical Leave

From September 15, 1993, through October 7, 1993, and from
October 14, 1993, to October 20, 1993, Huppenbauer was excused
from work by his medical clinic. On October 14, Huppenbauer's phy-
sician diagnosed a hernia, purportedly caused by lifting heavy boxes
in the stock room. After that visit and upon the doctor's recommenda-
tion, Huppenbauer filed an application for extended medical leave. In
his opinion accompanying the request for medical leave, Dr. Nguyen
stated that Huppenbauer was still able to work, but"only as a sales
associate." Huppenbauer never returned to work after October 12,
1993. He claims that because his personal effects were cleared from
the stock room when he went to deliver his medical leave form, he
concluded that he had been terminated.

When Huppenbauer requested medical leave in October 1993, he
checked on the form that the purpose of the leave he was requesting
was because he was unable to perform the essential functions of his
job due to his own serious health condition.

He agreed that at that time he was unable to continue working.

          Yes. And I think so stated my doctor, because I could not
          any longer move upstairs. I could hardly get on public trans-
          portation. I could hardly get into a car. I could hardly move
          because I had a serious hernia, not a small thing that you can
          walk around with for years. That thing, I am sorry there are
          ladies here, so far this thing was showing, it was that big.

(J.A. at 183).

To establish a valid claim under the ADA, Huppenbauer was
required to submit evidence that (1) he had a recognized disability;

                    11
(2) that he was otherwise qualified for the job; and (3) that his
employer failed to reasonably accommodate his disability. Tyndall v.
National Educ. Ctrs., 

, 212 (4th Cir. 1994). Assuming
without deciding that Huppenbauer met his burdens of proof in estab-
lishing that he did have a recognized disability and that he was other-
wise qualified for the job, it is clear that he failed to show either that
he had made a request for an accommodation or that Hecht's had
actual or constructive knowledge of his disability or of his need for
an accommodation. "Vague or conclusory statements revealing an
unspecified incapacity are not sufficient to put an employer on notice
of its obligations under the ADA." Movisky v. Broward County, 

, 448 (llth Cir. 1996).

As the Seventh Circuit explained:

          However, unlike with 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. We think that an employer can-
          not be liable under the ADA for firing an employee when
          it indisputably had no knowledge of the disability. This is
          supported both by simple logic and by the conclusions of
          other courts that have considered analogous issues.

          At the most basic level, it is intuitively clear when viewing
          the ADA's language in a straightforward manner that an
          employer cannot fire an employee "because of" a disability
          unless it knows of the disability. If it does not know of the
          disability, the employer is firing the employee"because of"
          some other reason.

Hedberg v. Indiana Bell Telephone Co., Inc., 

, 932 (7th
Cir. 1995). The Sixth Circuit reached a similar result in Landefeld v.
Marion General Hospital, 

(6th Cir. 1993).

The same should be true where an employee failed to make a clear
request for an accommodation and communicate it to his employer.
Lyons v. Legal Aid Soc., 

, 1515 (2nd Cir. 1995). Morisky
v. Broward County, 

, 447, 448 (11th Cir. 1996). Bombard
v. Fort Wayne Newspapers, Inc., 

, 562 (7th Cir. 1996).

                     12
Larson v. Koch Refining Company, 

, 1004 (D.
Minn. 1996). (holding providing accommodation is only appropriate
where the employer knows that the Plaintiff is disabled and is in need
of accommodation).

For these reasons, the district court did not err in granting Hecht's
motion for judgment as a matter of law on Huppenbauer's ADA
claim.

IV.

Huppenbauer also contends that the district court erred in directing
a verdict against him on his breach of contract claim. We disagree.

Huppenbauer asserts that he worked over 2,000 hours in the stock
room for which he was unpaid. As a result, he lost time working on
the sales floor, which at the average hourly rate equals approximately
$21,000. He bases this figure on a log which he prepared in January
1994, three months after he stopped working at Hecht's. (J.A. at 187).
He admits that the log was prepared from "calendars from Hallmark,
United Virginia Bank, other banks, sales slips, piece of papers, [and]
cash register readings," all of which he subsequently destroyed. (J.A.
at 175-6).

This breach of contract claim is based solely on Hecht's Commis-
sion Compensation Information Sheet, which provides for payment
for "special stock work assigned by senior management." (J.A. at
393). Huppenbauer, however, offered no proof that his 2,000 hours
consisted of "special work" or that it was assigned by "senior manage-
ment." He simply says that the hours were for normal stock room
duties and that they caused him to be off the sales floor, thereby
adversely affecting his ability to earn more commissions. Hence,
Huppenbauer has failed to show that he was not paid precisely as he
should have been. There is no evidence to suggest that Hecht's did
not properly compensate Huppenbauer or that Hecht's breached any
employment contract with him. The district court acted correctly in
rejecting this cause of action.

V.

Finally, Huppenbauer challenges two of the district court's rulings
on evidence. These determinations are to be reviewed for abuse of

                     13
discretion. Martin v. Cavalier Hotel Corp., 

, 1357 (4th
Cir. 1995).

A.

Huppenbauer argues that the district court should have allowed evi-
dence concerning his hernia, which he says was caused by the strenu-
ous stock room duties. At trial, Huppenbauer argued that the hernia
showed that the stock room work was onerous and had adverse health
effects on him. The judge excluded the evidence, finding that it was
irrelevant to the issue of whether Huppenbauer had a disability requir-
ing accommodation. (J.A. at 195). The judge viewed the hernia as an
injury on the job, not a disability for which Huppenbauer was entitled
to relief on the ADA claim.

We agree that the hernia evidence was irrelevant to the ADA claim.
Huppenbauer never claimed that his hernia was a disability requiring
accommodation. Evidence concerning hernia might be relevant to a
negligence or worker's compensation claim, but does not assist in the
analysis of an ADA claim. The district court correctly ruled that:

          You have got to have a condition for which you put people
          on notice that they have to accommodate you. That is what
          the law is about. This is not a law that prevents you from
          being injured on the job.

(J.A. at 196).

In his brief, Huppenbauer newly argues that evidence pertaining to
his hernia--when it occurred and that it was surgically corrected--
should have been admitted as relevant to Huppenbauer's status as a
qualified individual prior to October 12, 1993. That argument, which
was never presented to the trial court, feebly supports the admission
of some hernia-related evidence. But because the connection is
extremely weak and because Huppenbauer did not focus on his status
as a qualified individual at trial, he could not possibly have been prej-
udiced by the exclusion of the evidence.

B.

Huppenbauer contends that the trial court improperly excluded the
testimony of Dr. Richard J. Lurito, an economic expert scheduled to

                     14
testify regarding Huppenbauer's future lost earnings. The equitable
remedy of front pay is generally available when an employer unlaw-
fully terminates an employee. Duke v. Uniroyal, Inc., 

(4th Cir. 1991). Front pay is awarded in place of reinstatement
because of residual hostility. The court correctly found that Huppen-
bauer had failed to establish any evidentiary basis for a front pay rem-
edy.

          I don't have any evidence of that in this case. I don't have
          any evidence of hostility. In fact, he testified as to how he
          was doing on the job. And I don't see any animosity or any
          problem of him going back to the job. I don't see any of that
          in this case. (J.A. at 271).

          . . . if somebody is now disabled and you are talking about
          front pay, he isn't entitled to front pay all through his dis-
          ability since they didn't assuming they didn't accommodate
          him back in whatever date you allege. I am not sure what
          date you allege in this whole process that they refused to
          accommodate him. But if they had accommodated him and
          now he comes up and he is disabled, you are only talking
          about pay between the date they didn't accommodate him
          and the time he became disabled, aren't you? (J.A. at 272).

          The ADA remedy is not a gift. It is to compensate some-
          body who is able to work and has been prevented from
          working. You have got evidence here that your man now
          can't work. You can't get pay when you can't work. (J.A.
          at 273).

          I don't think that you have got anything in this case right
          now that gives you pay except from the time that you allege
          that he was not accommodated and the time that he became
          disabled, because that's what you have shown as his work-
          ing period. I find that there is not evidence in the case that
          his working caused his disability. (J.A. at 264).

The district court did not abuse its discretion in excluding either the
hernia or the "front pay" evidence on the facts of this case.

                     15
VI.

The decision of the district court dismissing all of Huppenbauer's
causes of action should be and it is hereby

AFFIRMED.

                    16