Lamont Wilson v. Dollar General Corporation , 717 F.3d 337 ( 2013 )

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
2 WILSON v. DOLLAR GENERAL CORPORATION
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 "Wil-
son") filed a charge of discrimination with the Equal Employ-
ment 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, unsuc-
cessfully, 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 accom-
WILSON v. DOLLAR GENERAL CORPORATION 3
modation, the district court properly granted summary judg-
ment 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, Wil-
son suffered a detached retina in his right eye, causing com-
plete 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, Vir-
ginia. 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 prod-
ucts. 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).
4 WILSON v. DOLLAR GENERAL CORPORATION
With the onset of his medical condition in February 2010,
Wilson took leave from his position with Dollar General. Dur-
ing his leave, Wilson continued to receive treatment from
doctors at the Dominion Eye Center, including his primary
physician, Dr. Odom. Wilson also continuously provided Dol-
lar General with notes from Drs. Odom and Crews dated Feb-
ruary 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, Wil-
son 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 Wil-
son 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 Dan-
ville Regional Medical Center. Dr. Hoang treated Wilson with
additional eye drops and prescription pain medication, but
Wilson’s vision problems did not subside.
2
Not 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).
3
Citations to the "J.A." refer to the Joint Appendix filed by the parties
in this appeal.
WILSON v. DOLLAR GENERAL CORPORATION 5
Immediately after receiving treatment at Danville Regional
Medical Center on April 7, Wilson traveled to Dollar Gener-
al’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 sec-
tion identifying whether or not Wilson’s return to work was
subject to any restrictions. The note concluded with the fol-
lowing 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 reap-
ply 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 immedi-
ately improve. Wilson testified that he was unable to "specifi-
cally 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.4
Dollar General’s records indicate, that for its own administrative pur-
poses, 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.
6 WILSON v. DOLLAR GENERAL CORPORATION
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, iden-
tifying his personal property. The schedule included as Wil-
son’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 Cen-
ter 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 dis-
criminated against him by failing to provide a reasonable
accommodation for his disability, resulting in his discharge,
in violation of the ADA.
5
After Wilson initially fell into default, the bankruptcy court confirmed
his Modified Chapter 13 plan on September 15, 2011.
WILSON v. DOLLAR GENERAL CORPORATION 7
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 stand-
ing to maintain his pre-petition claim and, therefore, the dis-
trict 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, how-
ever, 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 jurisdic-
tion 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
8 WILSON v. DOLLAR GENERAL CORPORATION
granting summary judgment, and because this court has not
yet considered to what extent a Chapter 13 debtor may pos-
sess 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 unlaw-
ful 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 bank-
ruptcy 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 inter-
ests 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 debt-
or’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 prin-
WILSON v. DOLLAR GENERAL CORPORATION 9
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 pos-
sess 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).
10 WILSON v. DOLLAR GENERAL CORPORATION
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 man-
agement 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 main-
tain age discrimination suit against her former employer but
remanding to district court to determine whether Rule 17 per-
mitted 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
WILSON v. DOLLAR GENERAL CORPORATION 11
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 admin-
istration of bankruptcy estates. In other words, in addition to
his power to possess property, the Chapter 13 debtor is explic-
itly 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 stat-
ute" 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 per-
missible maintenance of a cause of action that is part of the
estate, the Chapter 13 debtor has standing to maintain a pre-
petition claim.
Federal Rule of Bankruptcy Procedure 6009 envisions the
same result. Under Rule 6009 "the trustee or debtor in posses-
sion 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
12 WILSON v. DOLLAR GENERAL CORPORATION
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 dis-
crimination by requiring employers to reasonably accommo-
date their disability. The law, however, cannot remedy every
misfortune. It can only correct that which it prescribes to cor-
rect.
Under the ADA, an employer is prohibited from "dis-
criminat[ing] against a qualified individual on the basis of dis-
ability . . . ." 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
WILSON v. DOLLAR GENERAL CORPORATION 13
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 stat-
ute; (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 ele-
ments 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 rea-
sonable 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 impor-
tantly, at a minimum, the information clearly specific to Wil-
son’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 decid-
14 WILSON v. DOLLAR GENERAL CORPORATION
ing, that Wilson’s two-day leave request was not unreason-
able 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 per-
formed 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 chal-
lenges 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 posi-
tion with such accommodation. This is in part because the
accommodation itself is fleeting, and, thus, the inquiry is nec-
essarily 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 essen-
tial functions of his job.8
7
Under 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 abil-
ities beyond his or her proposed return date. In leave cases, the accommo-
dation 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
WILSON v. DOLLAR GENERAL CORPORATION 15
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 pro-
vide 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 addi-
tional 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.
16 WILSON v. DOLLAR GENERAL CORPORATION
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 regula-
tions provide:
To determine the appropriate reasonable accommo-
dation it may be necessary for the covered entity to
initiate an informal, interactive process with the indi-
vidual with a disability in need of the accommoda-
tion. 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 accom-
modations — or even to participate in the "interactive pro-
cess" — 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
WILSON v. DOLLAR GENERAL CORPORATION 17
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 trig-
gers 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 quota-
tion 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 inter-
active 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 Rev-
enue, 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 pro-
duced 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 per-
form 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
18 WILSON v. DOLLAR GENERAL CORPORATION
requirements of his prima facie failure-to-accommodate
claim.
It is clear from the record that no reasonable accommoda-
tion could have enabled Wilson to perform the essential func-
tions 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. Wil-
son has failed to identify a possible reasonable accommoda-
tion that could have been discovered in the interactive process
and would have allowed him to perform the essential func-
tions 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 quali-
fied 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 judg-
ment is
AFFIRMED.