Daye v. School Board of City of Norfolk , 18 F. App'x 125 ( 2001 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
AVA DAYE, 
Plaintiff-Appellant,
v.
 No. 00-2583
SCHOOL BOARD OF THE CITY OF
NORFOLK,
Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Henry C. Morgan, Jr., District Judge.
(CA-99-963-2)
Submitted: June 29, 2001
Decided: September 7, 2001
Before WILKINS and TRAXLER, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
COUNSEL
Beverly D. Crawford, Richmond, Virginia, for Appellant. Daniel R.
Hagemeister, Senior Deputy City Attorney, Norfolk, Virginia, for
Appellee.
2 DAYE v. SCHOOL BOARD OF THE CITY OF NORFOLK
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Ava Daye sued the City of Norfolk Public School Board (School
Board), alleging discriminatory treatment in violation of the Ameri-
cans with Disabilities Act, 42 U.S.C.A. §§ 12101-12213 (West 1995
& Supp. 2000) and the Rehabilitation Act, 29 U.S.C.A. §§ 701-796(West 1999 & Supp. 2000). The district court granted the School
Board’s motion for summary judgment. We affirm.
Daye claims a history of multiple strokes, which she alleges caused
left hemiplegia and some visual impairment.1 The only medical infor-
mation in the record is a 1993 letter from Dr. Victor Anglin stating
that because of Daye’s medical condition, lifting is contraindicated.
Daye began her employment with the School Board in 1978 as a
library aide. She began the 1992-93 school year as a kindergarten
teacher’s assistant, then was transferred to a special education class.
Because she complained of stress and physical inability to handle the
children, the School Board accommodated Daye by transferring her
to a position as an assistant in a pre-kindergarten, special education
class. In response to another complaint and the presentation of Dr.
Anglin’s letter in 1993, the School Board transferred Daye to a posi-
tion as a kindergarten teacher’s assistant. Thereafter, because the
School Board reduced class sizes and eliminated the position of kin-
dergarten teacher’s assistant system-wide, several individuals, includ-
ing Daye, were not offered contracts of employment for the 1994-95
school year.
Daye filed an EEOC claim and ultimately a lawsuit against the
1
In correspondence dated April 10, 1992, Daye states that she had a
stroke in 1981 and a knee operation in 1991, which left her with minor
physical and speech impairments.
DAYE v. SCHOOL BOARD OF THE CITY OF NORFOLK 3
School Board, alleging she was discriminated against because of her
disability when she was not offered a position as library assistant for
the 1994-95 school year.2 The School Board filed a motion for sum-
mary judgment, which the district court granted. Daye timely
appealed.
This Court reviews an award of summary judgment de novo. Hig-
gins v. E.I. Dupont de Nemours & Co., 863 F.2d 1162, 1167 (4th Cir.
1988). Summary judgment is appropriate when there is no genuine
issue of material fact, given the parties’ burdens of proof at trial. Fed.
R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-
49 (1986). In determining whether the moving party has shown that
there is no genuine issue of material fact, a court must assess the fac-
tual evidence and all inferences to be drawn therefrom in the light
most favorable to the non-moving party. Id. at 255; Smith v. Virginia
Commonwealth Univ., 84 F.3d 672, 675 (4th Cir. 1996).
To establish a violation of the ADA,3 Daye must show: (1) she had
a disability; (2) she is qualified for the job; and (3) her disability
played a motivating role in the employment decision. Baird v. Rose,
192 F.3d 462, 470 (4th Cir. 1999); Williams v. Channel Master Satel-
lite Sys., Inc., 101 F.3d 346, 348 (4th Cir. 1996).
First, we cannot conclude that Daye was disabled because of her
inability to lift objects weighing more than five pounds. See Williams,
101 F.3d at 349 (finding lifting limitations did not constitute disabil-
ity); Fitch v. Solipsys Corp., 94 F. Supp. 2d 670, 675 (D. Md. 2000)
(same). Moreover, even assuming Daye is disabled for purposes of
the ADA, the district court did not err in finding Daye was not quali-
fied for the library assistant position based upon her unsatisfactory
evaluations. See Tyndall v. National Educ. Ctrs., 31 F.3d 209, 213
2
Daye only appeals the School Board’s failure to offer her a position
as a library assistant, recognizing that she was not physically capable of
performing other available positions based on her qualifications and lift-
ing restrictions.
3
Daye’s claims under the Rehabilitation Act are encompassed within
the analysis of her ADA claim. See Baird, 192 F.3d at 468-69; Rogers
v. Department of Health & Envir. Control, 174 F.3d 431, 433-34 (4th
Cir. 1999).
4 DAYE v. SCHOOL BOARD OF THE CITY OF NORFOLK
(4th Cir. 1994) (considering performance evaluations in determining
whether plaintiff was qualified for teaching duties).
Further, Daye failed to prove that the School Board discriminated
against her because of disability. Instead, the record evidences the
School Board’s attempts to promptly accommodate Daye’s alleged
disabling condition. Finally, we reject Daye’s argument that the
School Board discriminated against her when it hired Sharonje Dhil-
lon instead of her for the library assistant position for the 1994-95
school year because of Sharonje Dhillon’s significantly superior eval-
uations for the 1991-1994 school years.
We find that Daye has failed to prove discriminatory treatment
based on disability. Accordingly, we affirm the district court’s order
granting summary judgment to the School Board. We dispense with
oral argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would not
aid in the decisional process.
AFFIRMED