UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


FLEMMINGS, VIRGINIA

v.

HOWARD UNIVERSITY


99-7046a

D.C. Cir. 1999


*	*	*


Sentelle, Circuit Judge: Appellee Virginia Flemmings  filed suit
against Howard University, her former employer,  for violating the
Americans with Disabilities Act of 1990, 42  U.S.C. s 12101 et seq.
(the "ADA"). Flemmings suffers from  vertigo and Meniere's disease,
which in 1996 and 1997 first  substantially limited her ability to
drive, then precluded her  from working at all. Although Flemmings was
on medical  leave for most of the period in question, she claims that 
Howard failed to reasonably accommodate her disability by  refusing
her request for a revised schedule so that she could  car pool with
her husband and son. Howard counters that,  for the time period at
issue, Flemmings was not an otherwise  qualified individual with a
disability as defined by the ADA,  and that even if she was, Howard
did not fail to offer her a  reasonable accommodation.


The district court granted summary judgment for Flem- mings and against
Howard, finding that Flemmings was a  qualified individual as defined
by the ADA and that the  revised schedule would not have presented an
undue hardship  for Howard. Howard appeals that judgment. Because we 
find that there was no date for which Flemmings has offered  evidence
substantiating both an accommodatable disability  and a denial of
accommodation, we vacate the district court's  grant of summary
judgment for Flemmings, and order the  district court to issue an
order granting summary judgment  for Howard.


I


Appellee was an administrative assistant to Dr. Janette  Dates, Dean of
Howard's School of Communications. Her  responsibilities included
making and screening phone calls,  writing and typing letters,
handling the mail, filing, keeping  the Dean's appointment book,
attending staff meetings, and  so forth. The Dean considered Flemmings
a good employee,  although their relationship was strained after an
incident in  September, 1996, when a visitor to the office accused
Flem- mings of rude behavior.


In early November, 1996, Flemmings orally informed the  Dean that she
was suffering from vertigo, that the condition  left her unable to
drive to work, and that she needed to  change her schedule--from 9:00
a.m. to 5:30 p.m., with a one- hour lunch break, to 8:30 a.m. to 4:00
p.m., without a lunch  break--so that she could car pool with her son
and husband.  In a memorandum dated December 1, 1996, Flemmings reit-
erated in writing her need for this revised schedule, and  indicated
that the accommodation would be temporary. The  Dean permitted
Flemmings to work the revised schedule  through November and December,
although sometimes she  gave appellee assignments at or near 4:00 p.m.
which re- quired her to work late.


On January 7, 1997, the Dean initiated a meeting with  appellee and
Donald Rainey, Howard's Director of Employee  and Labor Relations, to
discuss appellee's revised work  schedule. Rainey claims to have told
appellee that she could  not unilaterally change her hours and that
Howard was not  obligated to accommodate her without medical
documentation  substantiating her need to leave work at 4:00 p.m.
Appellee  maintains that Rainey told her only that she had to work a 
regular 8:30 a.m. to 5:00 p.m. schedule, and that Howard did  not
request medical documentation at that time. Regardless,  the day after
the meeting with the Dean and Rainey, appellee  provided Rainey with a
letter from Dr. Richard Lewis dated  December 20, 1996. In the letter,
Dr. Lewis described  appellee as experiencing headaches, vertigo, and
a sense of  imbalance; diagnosed her as suffering potentially from
Meni- ere's syndrome; and suggested a course of treatment includ- ing
medication, dietary changes, and physical therapy. The  letter did not
discuss any limitations on appellee's ability to  work or her need, if
any, for an accommodation from Howard.


Friday, January 17, 1997, was the last day that Flemmings  physically
worked at Howard. She took vacation leave from  January 20 through
February 3, 1997. On January 27, 1997,  she forwarded to the Dean a
letter from Dr. Jerelle Copeland  diagnosing her with vertigo and
migraine headaches exacer- bated by work related stress and
recommending a ninety-day  leave of absence. Howard granted appellee's


medical leave. In April, 1997, Flemmings forwarded letters  from Drs.
Lewis and Copeland documenting her continued  illness and recommending
further medical leave through Au- gust, 1997. Again, Howard granted
appellee's request.  Throughout this period, until August 16, 1997,
Howard contin- ued to pay Flemmings her full salary, deducting from
her  available sick leave until it was exhausted.


On May 30, 1997, the Dean sent Flemmings a letter  requesting further
documentation of her disability and sug- gestions for a reasonable
accommodation. On June 9, 1997,  Flemmings provided Howard with
another letter from Dr.  Copeland indicating that Flemmings was "not
medically sta- ble to return to work," and that Dr. Copeland could not
 determine how long she would be so disabled. Flemmings  concedes
that, as of June 9, her health had deteriorated to  such a degree that
she was completely unable to work even  with an accommodation.


Despite appellee's inability to work, in a letter dated July 8,  1997,
her attorney requested the modified 8:30 a.m. to 4:00  p.m. schedule
or disability retirement. On July 24, 1997,  appellee sent a
memorandum to Dates requesting advance  sick leave through August 31,
1997. In a letter dated August  11, 1997, Howard offered Flemmings a
schedule of 8:30 a.m.  to 5:00 p.m. and indicated that this schedule
was the only  accommodation Howard would provide. On September 29, 
1997, Howard's attorney wrote a letter to Flemmings reit- erating the
previous offers of retirement or the 8:30 a.m. to  5:00 p.m. schedule,
but stating that her employment had been  terminated because she had
not returned to work. In a  subsequent letter dated October 15, 1997,
the Dean also  informed Flemmings that her employment had been termi-
nated effective September 29, 1997. In the only claim rele- vant to
this appeal, Flemmings sued Howard University  under the ADA for
failing to reasonably accommodate her  disability--Meniere's disease


On cross motions for summary judgment, the district court  granted
summary judgment in favor of the plaintiff. The  court found that
Flemmings was a qualified individual: Her 


job was not highly specialized, her job description did not  require a
rigid 8:30 a.m. to 5:00 p.m. schedule, and she could  perform the
essential functions of her job as an administra- tive assistant with a
modified work schedule. The court then  found that providing Flemmings
with an 8:30 a.m. to 4:00 p.m.  work schedule would not have presented
an undue hardship  for Howard: Granting Flemmings' request would not
have  required additional financial resources or impacted the overall 
operation of the Dean's office, and the Dean could have  assigned late
day work to another of her administrative  assistants.


In a second order, the district court recognized appellee's  claim that
she would have worked from January 27 through  June 9, 1997, if Howard
had given her the requested revised  work schedule, and that she would
have taken sick leave from  June 9 through October 15, 1997. On that
basis, the court  entered judgment for the plaintiff in the amount of 
$16,524.73, representing the aggregation of the salary Flem- mings
would have earned had she worked from January 27  through June 9,
offset by the amount Howard actually paid  her from January 27 through
August 16, plus pre-judgment  and post-judgment interest. The court
also ordered Howard  to reinstate Flemmings so that she might retire
and to take  the necessary steps to provide Flemmings with retirement 
benefits due her. Howard appeals the district court's judg- ment.


II


An appellate court reviews a grant of summary judgment  de novo,
applying the same standard as governed the district  court's decision.
See, e.g., Greene v. Dalton, 164 F.3d 671,  674 (D.C. Cir. 1999).
Summary judgment is appropriate  when "the pleadings, depositions,
answers to interrogatories,  and admissions on file, together with the
affidavits, if any,  show that there is no genuine issue as to any
material fact  and that the moving party is entitled to a judgment as
a  matter of law." Fed. R. Civ. P. 56(c). In deciding whether  there
is a genuine issue of material fact, the court must view  all evidence
presented by the nonmovant as presumptively 


valid and draw all reasonable inferences in its favor. See,  e.g.,
Smith-Haynie v. District of Columbia, 155 F.3d 575, 579  (D.C. Cir.
1998) (citing Anderson v. Liberty Lobby, Inc., 477  U.S. 242, 255


III


The ADA does not cover every individual with an impair- ment who
suffers an adverse employment action. See, e.g.,  Sutton v. United Air
Lines, Inc., 119 S. Ct. 2139 (1999).  Instead, the ADA more
specifically prohibits discrimination  by an employer "against a
qualified individual with a disabili- ty because of" that disability.
42 U.S.C. s 12112(a). The  ADA explicitly defines "discrimination"


not making reasonable accommodations to the known  physical or mental
limitations of an otherwise qualified  individual with a disability
who is an applicant or employ- ee, unless such covered entity can
demonstrate that the  accommodation would impose an undue hardship on
the  operation of the business of such covered entity.


42 U.S.C. s 12112(b)(5)(A). Most pertinent for this case, the  ADA
defines "disability" as "a physical or mental impairment  that
substantially limits one or more of the major life activi- ties of" an
individual, 42 U.S.C. s 12102(2)(A); and "reason- able accommodation"
as including "job restructuring, part- time or modified work
schedules, reassignment to a vacant  position, ... and other similar
accommodations for individuals  with disabilities." 42 U.S.C. s
12111(9). Far from protecting  all impaired individuals from any sort
of adverse employment  action, the ADA protects a much more narrowly
defined class  of persons from particular types of discriminatory acts
by  employers. Endeavoring to fit her circumstances with the  various
statutory requirements, appellee maintains that she  was disabled
because she could not drive, and that by refus- ing to give her a
revised work schedule so that she could car  pool with her husband and
son, Howard denied her a reason- able accommodation which would have
allowed her to contin- ue working. Howard's position is that, for the
time period at  issue, appellee was not an otherwise qualified


a disability as defined by the ADA, and that even if she was,  Howard
did not fail to offer her a reasonable accommodation.


Just last year, in Aka v. Washington Hospital Center, 156  F.3d 1284
(D.C. Cir. 1998) (en banc), this court addressed the  protocol for
evaluating reasonable accommodation claims un- der the ADA. In that
case, we held that a reasonable  accommodation claim is not subject to
the familiar three-part  analysis of McDonnell-Douglas Corporation v.
Green, 411  U.S. 792 (1973), "but has its own specialized legal
standards."  Id. at 1288 (citing Barth v. Gelb, 2 F.3d 1180, 1186
(D.C. Cir.  1993). Aka adopted for ADA claims Barth's thorough analy-
sis of the applicability of McDonnell-Douglas to such claims  in the
Rehabilitation Act context. See Aka, 156 F.3d at 1288,  1300-03;
Barth, 2 F.3d at 1185-87. Barth, in turn, recog- nized three types of
handicap discrimination claims, with  special standards of evaluation
for each: (1) where the em- ployer claims non-discriminatory reasons
for its adverse em- ployment action; (2) where the employer maintains
that the  employee is not an otherwise qualified individual with a 
disability, or that no reasonable accommodation is available,  so that
the plaintiff falls outside the scope of ADA protection;  and (3)
where the employer offers the affirmative undue  hardship defense for
its actions. See id. at 1186.


The present case resembles both the second and third  Barth scenarios,
in that Howard challenges appellee's claim  that she is protected by
the ADA as a qualified individual  with a disability, and maintains
that the revised schedule she  requested would have imposed an undue
hardship. Applying  traditional burden of proof standards to the ADA's
statutory  elements, as advocated by Aka and Barth for such cases, 
appellee carries the burden of proving by a preponderance of  the
evidence that she has a disability, but with a reasonable 
accommodation (which she must describe), she can perform  the
essential functions of her job. See Aka, 156 F.3d at 1300- 01; Barth,
2 F.3d at 1186. Since Howard has invoked the  affirmative defense of
undue hardship, Howard bears the  burden of establishing hardship
based on several factors,  including the nature and cost of the
proposed accommodation,  and the resources and circumstances of the


question. See 42 U.S.C. s 12111(10)(B) (listing the relevant  factors
to be considered in evaluating undue hardship). Thus,  for appellee to
prevail, she must prove her case, and Howard  must fail in its
defense.


Appellee's case relies on a combination of two arguments of  law which
give us pause. First, she claims that she was  disabled because
vertigo and Meniere's disease prevented her  from driving, which she
suggests is a major life activity.  Second, she contends that an
employer's ADA accommodation  obligation extends to helping a
qualified disabled employee  get to work in the first place. Driving
was not one of her job  duties. Indeed, she does not dispute, and in
fact adamantly  maintains, that she was fully capable of performing
the duties  of her job once she got to work, despite her condition. 
Instead, she only requested the revised schedule so that she  could
car pool with her son and husband at times convenient  to them, rather
than find some other means of getting to  work or prevail upon her
family to make the change in  commuting schedule necessary to


While appellee's reading of the ADA is questionable, we  need not
resolve these issues her case has raised, as her claim  lacks an even
more fundamental element. An underlying  assumption of any reasonable
accommodation claim is that  the plaintiff-employee has requested an
accommodation which  the defendant-employer has denied. See Mole v.
Buckhorn  Rubber Products, Inc., 165 F.3d 1212, 1217-18 (8th Cir.
1999);  Taylor v. Principal Financial Group, Inc., 93 F.3d 155, 164-
65 (5th Cir. 1996). In the case before us, the parties have  agreed
that the relevant time period is January 27 through  June 9, 1997;
that is beginning with the date Flemmings  provided Howard with Dr.
Copeland's letter, which she claims  substantiated her need for an
accommodation, and ending  with the date at which Flemmings concedes
that she was  wholly unable to work either with or without an
accommoda- tion, and thus fell beyond the scope of the ADA's
protection.  During that period of time, the only accommodation Flem-
mings requested was a medical leave of absence, which  accommodation
Howard readily granted. Flemmings main- tains that she only requested


denied her a revised work schedule, but nothing in the record  supports
that allegation. The January 27 letter from Dr.  Copeland, as well as
the April letters from Drs. Copeland and  Lewis, are explicit in
recommending a medical leave of ab- sence so that Flemmings could
pursue treatment for her  condition, and say nothing about a revised
work schedule.  Flemmings' requests for a revised work schedule were
made  prior to January 27, when she had not substantiated her need 
for any accommodation, and after June 9, when she concedes  she could
not have worked anyway. Thus, even reading all  submitted evidence in
the light most favorable for Flem- mings, no reasonable jury could
find that Howard denied her  a reasonable accommodation after she
provided documenta- tion substantiating her need for one.


Conclusion


The decision of the district court is reversed, and the case  remanded
for the entry of summary judgment in favor of  Howard.