Tyndall v. National Educ. Centers, Inc. of California, 93-2511

• Decision Date: 03 August 1994
• Docket Number: No. 93-2511,93-2511
• Citation: 31 F.3d 209
• Parties: 93 Ed. Law Rep. 517, 3 A.D. Cases 868, 6 A.D.D. 20, 5 NDLR P 227 Mary M. TYNDALL, Plaintiff-Appellant, v. NATIONAL EDUCATION CENTERS, INCORPORATED OF CALIFORNIA, t/a Kee Business College Campus; National Education Centers, Incorporated, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 209

31 F.3d 209

93 Ed. Law Rep. 517, 3 A.D. Cases 868,

6 A.D.D. 20, 5 NDLR P 227

Mary M. TYNDALL, Plaintiff-Appellant, v. NATIONAL EDUCATION CENTERS, INCORPORATED OF CALIFORNIA, t/a

Kee Business College Campus; National Education

Centers, Incorporated, Defendants-Appellees.

No. 93-2511.

United States Court of Appeals,

Fourth Circuit.

Argued May 10, 1994.

Decided Aug. 3, 1994.

ARGUED: Blackwell Nixon Shelley, Jr., Manning, Davis & Kirby, Richmond, VA, for appellant. Donald Lester Creach, Hunton & Williams, Richmond, VA, for appellees.

Before RUSSELL and WILKINSON, Circuit Judges, and CHAPMAN, Senior Circuit Judge.

Affirmed by published opinion. Circuit Judge WILKINSON, wrote the opinion, in which Circuit Judge DONALD RUSSELL and Senior Circuit Judge CHAPMAN joined.

OPINION

WILKINSON, Circuit Judge:

The question in this case is whether an employer violated the Americans with Disabilities Act ("ADA"), 42 U.S.C. Sec. 12101 et seq., by discharging a disabled employee who was frequently absent from work due to her disability and the disability of a family member. Because plaintiff was unable to meet the attendance requirements of her job, despite her employer's efforts to accommodate her disabling condition, we hold that she was not a "qualified individual with a disability" protected by the ADA. See 42 U.S.C. Sec. 12112(a). In addition, we find that plaintiff failed to overcome the strong inference of nondiscrimination arising from the fact that the same individual who discharged her had hired her with full knowledge of her disability only two years earlier. We accordingly affirm the district court's grant of summary judgment to the employer.

I.

Plaintiff Mary Tyndall suffers from lupus erythematosus, an autoimmune system disorder that causes joint pain and inflammation, fatigue, and urinary and intestinal disorders. In 1989, Tyndall enrolled in a career training program in medical assisting at the Kee Business College Campus ("Kee"), a school in Richmond, Virginia owned by defendant National Education Centers ("NEC"). Tyndall successfully completed her coursework in January 1990. At that time, Dale Seay, the head of Kee's Allied Health Department, hired Tyndall as a parttime instructor in the medical assisting program. Seay and the other Kee staff members knew of Tyndall's disability when she was hired.

During Tyndall's tenure at Kee, the school made every effort to accommodate her lupus condition. Kee permitted Tyndall to take sick leave, to come into work late or leave early, and to take breaks from ongoing classes whenever she felt ill. If Tyndall became ill during the work day, Seay and other colleagues would accompany her to the rest room to help her, and would offer her a ride home. Indeed, Tyndall admitted that she never made a request for accommodation of her lupus condition that Kee refused.

In 1992, Tyndall began missing work with increasing frequency. From January until July 15, 1992, she missed nineteen days of work: one day to help a friend with legal work, ten days because of her lupus condition, and eight days to take care of her son, Kevin, who suffered from gastro-esophageal reflux disease. Kee approved each of those absences. However, Seay mentioned in a meeting with Tyndall that she had been missing a lot of work.

In mid-July, Tyndall submitted a request for a leave of absence from July 23 to August 17, 1992, because her son was undergoing surgery in Birmingham, Alabama. Again, Kee approved the leave of absence. On August 10, after returning home from Birmingham, Tyndall called Seay to confirm that she would return to work on August 17 as scheduled. However, she informed Seay that she would need to take off more time in order to take care of her son's post-operative problems. Seay responded by asking Tyndall to meet with her and Zoe Thompson, the Executive Director of Kee, regarding the additional leave of absence. That meeting took place on August 12.

At the meeting, Tyndall stated that she could teach for a week beginning August 17 before taking more time off to accompany her son on a post-operative trip to Birmingham. Tyndall said she was not sure how long she would be gone on that trip. Seay told Tyndall that she could return to work on August 17 as scheduled and continue to work, but that she could not take additional time off. Seay explained that the additional leave of absence would cause Tyndall to miss the beginning of an instructional cycle for the third time in a row. Because students in Tyndall's classes and teachers who had to work overtime to cover her classes had complained about her absences, Seay was concerned that another absence would further disrupt the operations of the school. When Tyndall insisted that she had to take her son to Birmingham, Seay suggested that Tyndall resign because of everything that was going on in her life. Seay prepared a report explaining that the separation was "mutual," and Tyndall signed it. Before Tyndall left the meeting, Thompson encouraged her to apply to Kee for re-employment when she was ready to return to work.

Later in August, Tyndall filed a claim with the EEOC contending that NEC and Kee violated the Americans with Disabilities Act ("ADA"), 42 U.S.C. Sec. 12101 et seq. The EEOC issued a determination that the evidence did not establish a violation of the ADA. In May 1993, Tyndall filed a four-count complaint against NEC in Virginia federal court. The complaint alleged that (1) NEC discriminated against her based on her known association with her disabled son, see 42 U.S.C. Sec. 12112(b)(4), (2) NEC failed to make reasonable accommodations for her disability prior to her termination, see 42 U.S.C. Sec. 12112(b)(5)(A), (3) NEC discriminated against her based on her own disability in terminating her, see 42 U.S.C. Sec. 12112(b)(5)(B), and (4) NEC violated the Virginians with Disabilities Act ("VDA"), VA. CODE Sec. 51.5-41, in terminating her and in failing to make reasonable accommodations for her disability.

In October 1993, the district court granted summary judgment to NEC on all four counts. With respect to Counts One and Three, the federal ADA discrimination claims, the court found that NEC articulated a nondiscriminatory reason for terminating Tyndall--namely, that her frequent absences were disruptive to Kee's operations--and that Tyndall could offer no proof that this articulated reason was a mere pretext for discrimination. The court dismissed Count Two, the reasonable accommodations claim, on the ground that Tyndall herself admitted that NEC had never refused any request for accommodation. Finally, the court dismissed Count Four on the ground that the VDA does not apply to NEC.

Tyndall now appeals the district court's summary judgment rulings on Counts One and Three, the federal ADA discrimination claims, and Count Four, the state VDA claim. We address each issue in turn.

II.

Tyndall first challenges her termination under the Americans with Disabilities Act, 42 U.S.C. Sec. 12101 et seq. The ADA provides that "[n]o covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual...." 42 U.S.C. Sec. 12112(a). In order to establish a violation of this section, three criteria must be met: first, Tyndall must have a "disability"; second, Tyndall must be "qualified" for the job; and third, Kee's termination of Tyndall must constitute an unlawful "discrimination" based on her disability. Because it is undisputed that Tyndall's lupus condition constituted a "disability" under the ADA, we need address only the latter two elements.

A.

Under the ADA, only persons who are "qualified" for the job in question may state a claim for discrimination. The ADA defines "qualified individual with a disability" as

an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.

42 U.S.C. Sec. 12111(8). ¹ The Supreme Court has interpreted this provision to mean that a "qualified" person must be "able to meet all of a program's requirements in spite of his handicap." Southeastern Community College v. Davis, 442 U.S. 397, 406, 99 S.Ct. 2361, 2367, 60 L.Ed.2d 980 (1979). Accordingly, to determine whether Tyndall was qualified for the teaching position, we must decide (1) whether she could "perform the essential functions of the job, i.e., functions that bear more than a marginal relationship to the job at issue," and (2) if not, whether "any reasonable accommodation by the employer would enable [her] to perform those functions." Chandler v. City of Dallas, 2 F.3d 1385, 1393-94 (5th Cir.1993). Plaintiff bears the burden of demonstrating that she could perform the essential functions of her job with reasonable accommodation. See Lucero v. Hart, 915 F.2d 1367, 1371 (9th Cir.1990).

Tyndall contends that she was qualified for her job because she could perform all of her teaching duties and received "excellent" and "good" performance evaluations at Kee. We agree, and NEC does not dispute, that the quality of Tyndall's performance when she was working was more than adequate. However, an evaluation of the quality of Tyndall's performance does not end our inquiry. In addition to possessing the skills necessary to perform the job in question, an employee must be willing and able to demonstrate these skills by coming to work on a regular basis. Except in the unusual case where an employee can effectively perform all work-related duties at home, an employee "who does not come to work cannot perform any of his job functions, essential or otherwise." Wimbley v. Bolger, 642 F.Supp. 481, 485 (W.D.Tenn.1986), aff'd, 831 F.2d 298 (6th Cir.1987). Therefore, a regular and reliable level of attendance is a necessary element of most jobs. See, e.g., Carr v. Reno, 23 F.3d 525, 529 (D.C.Cir.1994) (holding that "coming to work regularly" is an "essential function"); Law v....