EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. KINNEY SHOE CORPORATION, Defendant-Appellee.
Nos. 96-1555, 96-1556
United States Court of Appeals, Fourth Circuit
Decided Jan. 21, 1997
104 F.3d 683
Argued Dec. 2, 1996.
Moreover, if Seminole Tribe made anything clear, it is that Eleventh Amendment immunity is a function of a State’s sovereign status, not Congress’ Article I constitutional powers. See id. at —, 116 S.Ct. at 1131-32 (“The Eleventh Amendment restricts the judicial power under Article III, and Article I cannot be used to circumvent the constitutional limitations placed upon federal jurisdiction”). Accordingly, Congress’ enactments under Article I are irrelevant to whether a state retains its Eleventh Amendment immunity because Congress lacks power to affect that immunity in the exercise of its Article I powers.2
Thus, by analyzing Texas’ immunity only in terms of Congress’ Article I еnactments, I believe that the majority has committed the very error identified in Seminole Tribe. By analyzing the question as it has, the majority suggests that states are amenable to suits in federal courts when Congress, acting pursuant to its Article I bankruptcy power, deems it so. Congress, I respectfully suggest, lacks such power in our system оf federalism.
III
Instead of interpreting an Article I enactment of Congress, I believe we must apply the constitutional doctrine of Eleventh Amendment waiver. To find a waiver of Eleventh Amendment immunity, “we require an unequivocal indication that the state intends to consent to federal jurisdiction that otherwise wоuld be barred by the Eleventh Amendment.” Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 238 n. 1, 105 S.Ct. 3142, 3145 n. 1, 87 L.Ed.2d 171 (1985). Since there is no such unequivocal indication here, I would agree with the majority that Texas has not waived its sovereign immunity.
In approaching the question without regard to
Harald E. MARTINSON, II, Plaintiff-Appellant, and Equal Employment Opportunity Commission, Plaintiff, v. KINNEY SHOE CORPORATION, Defendant-Appellee.
Epilepsy Foundation of America; Disability Rights Council of Greater Washington, D.C., Amici Curiae.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, and Harald E. Martinson, II, Plaintiff, v. KINNEY SHOE CORPORATION, Defendant-Appellee.
Epilepsy Fоundation of America; Disability Rights Council of Greater Washington, D.C., Amici Curiae.
Nos. 96-1555, 96-1556.
United States Court of Appeals, Fourth Circuit.
Argued Dec. 2, 1996.
Decided Jan. 21, 1997.
ON BRIEF: C. Gregory Stewart, General Counsel, Gwendolyn Young Reams, Associate General Counsel, Vincent J. Blackwood, Assistant General Counsel, Office of General Counsel, Equal Employment Opportunity Commission, Washington, DC, for Appellant EEOC. E. Eugene Gunter, Winchester, Virginia, for Appellant Martinson. Thomas J. Flaherty, David A. Walsh, Elizabеth C. Smith, Hunton & Williams, McLean, Virginia, for Appellee. Robert A. Long, Jr., Covington & Burling, Washington, DC; Alexandra K. Finucane, Vice President for Legal Affairs, The Epilepsy Foundation of America, Landover, Maryland; Marc Fiedler, President, The Disability Rights Council Of Greater Washington, D.C., Washington, DC, for Amici Curiae.
Affirmed by published opinion. Judge MOTZ wrote the opinion, in which Judge RUSSELL and Judge MICHAEL joined.
OPINION
DIANA GRIBBON MOTZ, Circuit Judge:
The district court concluded that an employer did not violate the Americans with Disabilities Act,
I.
Because the district court fully set forth the facts, id. at 422-24, we relate here only those necessary to understand our holding.
Harald Martinson worked for Kinney as a shoe salesman in a Winchester, Virginia shopping mall at various times between 1989 and 1992. In January 1992, Kinney rehired Martinson as a full-time salesperson. Martinson suffers from epileрsy, which was first diagnosed in 1967. During previous periods of employment with Kinney, Martinson had experienced seizures at work, and Kinney rehired him with the knowledge that seizures could occur. The seizures that Martinson experienced during the work day were usually similar to fainting spells; his body would collapse to the ground and hе would appear to be sleeping. He would remain in this state for five to ten minutes, after which he would “awake” and take a twenty to forty-five minute break from work to compose himself. Other than “a bump or a scratch,” Martinson has never injured himself or anyone else during any of his seizures over the past twenty-nine years. Furthermore, Martinson has not requested any accommodation other than tolerance of his seizures.
Kinney supervisors acknowledged that Martinson was a good salesman; he received two “Employee of the Month” awards, one just before his final dismissal. They also admitted that his “sales book” was “better than average.” One of his managers testified that but for the seizures, Martinson was fully capable of performing his job; he was a reliable employee and had very good knowledge of the merchandise. Moreover, although Martinson’s supervisors disagreed about this, one cоnceded that Martinson’s seizures did not cause Kinney to lose customers.
Between January and July 1992, Martinson “guess[ed]” that he had approximately five seizures at work but he explained that he did not remember his seizures and so had to rely on others as to their occurrence; Kinney maintained that he had approximately sixteen. In July 1992, a Kinney manager warned Martinson that he would be fired if he “had another seizure.” When Martinson did have another seizure, Kinney discharged him. On Martinson’s employee separation report, Kinney District Sales Manager, Allen Bosworth, wrote that Martinson’s discharge was attributable to “[s]еizures in store, sales floor, and stockroom. Inability to control timing of same.”1
The EEOC initiated this suit against Kinney on Martinson’s behalf, and Martinson intervened. The district court held that while there were material issues of fact with regard to whether Martinson was qualified to do his job, Kinney was entitled to summary judgment because it had not engaged in “unlawful discrimination.” Id. at 430.
II.
Title I of the Americans with Disabilities Act (ADA) provides that “[n]o covered
For purposes of summary judgment, the district court concluded that Martinson had a disability and thus the first prong of this test had been satisfied, a conclusion that Kinney does not contest at this stage. Kinney, 917 F.Supp. at 425. Further, the court determined that the EEOC and Martinson had met the second prong by producing sufficient evidence at least to raise an issue of fact as to whether Martinson was qualified for his job despite his seizures. Id. at 425-29. However, the district court concluded that the EEOC and Martinson could not carry their burden on the third prong of the prima facie test. Id. at 430-32. The court reasoned that since Kinney did not discharge Martinson because he suffered from the “general disability” of epilepsy but rather “because of the specific attributes of [Martinson’s] specific form of the disability,” i.e., his seizures, Martinson could not prevail on the third prong. Id. at 430-31.
The district court erred with regard to its conclusion as to the third prong. When an employer concededly discharges an employee because of a disability, the employee need prove nothing more to mеet the third prong of the prima facie test. See Rizzo v. Children’s World Learning Ctrs., 84 F.3d 758, 762 (5th Cir. 1996). Kinney concededly discharged Martinson because of his “[s]eizures in store, sales floor, and stockroom” and his “[i]nability to control timing of same.” To fire for seizures is to fire for a disability.2 Seizures are “a physical or mental impairment that substantially limits one or more of [Martinson’s] major life activities,” i.e., a disability. See
Although the district court erred with regard to the third prong, we can affirm if its deсision was correct for any other reason. See, e.g., McMahan v. International Ass’n of Bridge, Structural & Ornamental Iron Workers Local 601, 964 F.2d 1462, 1467 (4th Cir. 1992). Here, we believe the district court was correct for another reason. Specifically, we believe the undisputed facts establish that Martinson was not qualified to perform at least one essential function of his position with Kinney.
Tо satisfy the second prong of the prima facie test, an ADA plaintiff must demonstrate that “with or without reasonable accommodation, [he] can perform the essential functions
Just as the evidence was uncontroverted that providing security was an “essential function” of a Kinney salesperson’s job, so too thе evidence was uncontroverted that Martinson was not qualified to perform this function. Kinney offered uncontradicted evidence that normally the Winchester store was manned by only two or three employees and that at least on some occasions, Martinson was the sole employеe in the public areas of the store —and so the only one available to provide security to the store and its merchandise. Moreover, Kinney District Sales Manager Bosworth testified that even when another employee was present on the sales floor, Martinson’s seizures would attract the other employee’s concern and attention and thus distract that employee from “maintaining a vigilance on the floor to make sure that” a thief did not “come in, take something ... and walk off with it.”
In view of the involved factual record, it is perhaps unsurprising that in finding a material factual dispute as to whether Martinson could perform the “essential functions” of his position, the district court apparently did not focus on the significance of this undisputed evidence. Instead, the court remarked “[a] shoe salesman ... is charged with selling shoes, a task which if compromised, simply leaves customers withоut shoes for a brief period.” Id. at 426. However, in light of the uncontroverted fact that Martinson was, at times, solely responsible for the security of the store and its merchandise, it is clear that when a seizure compromised Martinson’s tasks as a shoe salesman, one of the tasks compromised was the рrovision of store security. Safeguarding the store and its goods is a task that cannot reasonably be abandoned for even “a brief period.”
Even if a person is unable to perform the essential functions of the job in question, a “court must nevertheless determine whether the person could do thе job with reasonable accommodation.” Myers v. Hose, 50 F.3d 278, 281-82 (4th Cir. 1995) (citations omitted); see also Doe, 50 F.3d at 1264-66. Martinson never requested any accommodation (other than tolerance of his seizures), perhaps recognizing, as we conclude, that no reasonable accommodation was possible here. To accommodate Mаrtinson adequately, Kinney would need to hire an additional person to perform the essential security function of Martinson’s job. The ADA simply does not require an employer to hire an additional person to perform an essential function of a disabled employee’s position. See
Our holding is a narrow one, quelling the fears of the district court as to the “natural consequence” of a conclusion that Martinson was not qualified for his position with Kinney, i.e., that such a conclusion would render “Mаrtinson ... unqualified as a matter of law to hold any position because Martinson obviously cannot discharge the ‘essential functions’ of any job during the time he is unconscious.” Id. at 427. This is not the “consequence” of our holding here.
Certain jobs do require uninterrupted vigilance for discrete periods of time. Martinson, as his counsel acknowledged at oral argument, is not qualified to perform such jobs. The security function of the Kinney salesperson position places it in that category. However, Martinson may well be qualified for a range of other jobs, including jobs in retail sales, so long as store security did not depend exclusively on Martinson’s vigilance. Cf. Overton v. Reilly, 977 F.2d 1190, 1195 (7th Cir. 1993) (finding issue оf fact as to whether disability-related naps at work disqualified the employee from his administra-
III.
In sum, the undisputed facts demonstrate that Martinson’s disability left him unable to perform the essential security function of his position with Kinney. For this reason, he could not establish the second prong of his prima facie ADA сase, i.e., that he was a “qualified individual.” Accordingly, the district court’s order granting summary judgment to Kinney is
AFFIRMED.
DIANA GRIBBON MOTZ
UNITED STATES CIRCUIT JUDGE