1. No. 12-1573
_________________________________________________
IN THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
_________________________________________________
LAMONT WILSON,
Plaintiff-Appellant,
v.
DOLLAR GENERAL CORPORATION; DOLGENCORP, LLC; DOLGEN LLC,
Defendants-Appellees.
_________________________________________________
Appeal from the United States District Court
For the Western District of Virginia
At Danville
_________________________________________________
BRIEF OF APPELLEES
_________________________________________________
Douglas D. Haloftis
Slates C. Veazey
Gardere Wynne Sewell LLP
3000 Thanksgiving Tower
1601 Elm Street
Dallas, Texas 75201
Tel: 214-999-3000
Fax: 214-999-4667
Agnis C. Chakravorty
Woods Rogers
10 S. Jefferson St., Suite 1400
Roanoke, VA 24011
Tel: 540.983.7600
Fax: 540.983.7711
COUNSEL FOR APPELLEES

2. Table of Contents
Corporate Disclosure Statement
I.Nature of the Case.........................................................................................3
II.Proceedings Below........................................................................................3
I.Wilson’s Employment with DG...................................................................4
II.Wilson’s Vision Problems............................................................................4
III.DG Allowed Wilson Eight Weeks of Leave...........................................5
IV.Wilson’s Vision Problems Worsened.......................................................7
I.The District Court Properly Ruled that Wilson’s Request for Additional
Leave Was Not a Request for Reasonable Accommodation and,
Even if Granted, Would Not Have Enabled Wilson to Perform
the Essential Functions of His Job. .................................................10
II.The District Court Properly Ruled that Wilson Failed, as a Matter of
Law, to Meet His Burden to Show that DG Failed to Engage in
the Interactive Process, Resulting in Wilson Not Receiving a
Reasonable Accommodation that Would Have Allowed Him to
Perform the Essential Functions of His Position...........................23
i

3. TABLE OF AUTHORITIES
Page(s)
CASES
Aton v. Wackenhut Corp.,
No. 01-598, 2002 WL 32502095 (D. Md. July 9, 2002), aff’d, 61 Fed. Appx.
96 (4th Cir. 2003)......................................................................................................23
Barnett v. Uniformed Servs. Univ. of the Health Sci.,
No. DKC 10 2681, 2011 WL 3511049 (D. Md. Aug. 9, 2011)........................12
Crabhill v. Charlotte Mecklenburg Bd. Of Edu.,
423 Fed. Appx. 314 (4th Cir. 2011)......................................................................24
Cray Comm., Inc. v. Novatel Computer Sys., Inc.,
33 F.3d 390 (4th Cir. 1994).....................................................................................22
Duda v. Bd. of Edu.,
133 F.3d 1054 (7th Cir. 1998)................................................................................16
Graves v. Finch Pruyn & Co., Inc.,
457 F.3d 181 (2d Cir. 2006)....................................................................................12
Hamm v. Exxon Mobil Corp.,
223 Fed. Appx. 506 (7th Cir. 2007)......................................................................16
Jackson v. City of Chicago,
414 F.3d 806 (7th Cir. 2005)..................................................................................24
Kitchen v. Summers Continuous Care Ctr., LLC,
552 F. Supp. 2d 589 (S.D.W.Va. 2008)..............................................12, 13, 14, 15
Lamb v. Qualex, Inc.,
33 Fed. Appx. 49 (4th Cir. 2002).....................................................................16, 17
Lanier v. Branch Bank & Trust,
No. 3:12-0416-MBS-SVH, 2012 WL 689275 (D.S.C. March 2, 2012)...........21
Lockhart v. Chao,
No. 2:04CV00002, 2004 WL 2827018 (W.D. Va. Dec. 9, 2004)....................13
ii

4. McIntyre-Handy v. APAC Customer Servs., Inc.,
No. 4:04CV83, 2005 WL 5369158 (E.D. Va. May 13, 2005).....................12, 13
Myers v. Hose,
50 F.3d 278 (4th Cir. 1995)...............................................................................12, 13
Pac. Ins. Co. v. Am. Nat’l Fire Ins. Co.,
148 F.3d 396 (4th Cir. 1998)..................................................................................21
Randolph v. ADT Sec. Servs., Inc.,
No. NO. DKC 09-1790, 2012 WL 273722 (D. Md. Jan. 30, 2012)...............21
Rhoads v. FDIC,
257 F.3d 373 (4th Cir. 2001)..................................................................................10
Richardson v. Friendly Ice Cream,
594 F.3d 69 (1st Cir. 2010).....................................................................................16
Rohrbaugh v. Wyeth Laboratories, Inc.,
916 F.2d 970 (4th Cir.1990)...........................................................................................23
Shin v. Univ. of Md. Med. Sys. Corp.,
369 Fed. Appx. 472 (4th Cir. 2010)......................................................................17
Small v. Hunt,
98 F.3d 789 (4th Cir. 1996).....................................................................................22
Testerman v. Riddell, Inc.,
161 Fed. Appx. 286 (4th Cir. 2006)......................................................................23
Tyndall v. Nat’l Edu. Ctrs., Inc. of Cal.,
31 F.3d 209 (4th Cir. 1994)............................................................................................27
Valdez v. McGill,
462 Fed. Appx. 814 (10th Cir. 2012)..............................................................11, 26
Wells v. BAE Sys. Norfolk Ship Repair,
483 F. Supp. 2d 497 (E.D. Va. 2007)...................................................................24
Williams v. United Parcel Servs., Inc.,
No. 2:10-1546-RMG, 2012 WL 601867 (D.S.C. Feb. 23, 2012)...............17, 18
iii

5. STATUTES
42 U.S.C. § 12111(8)......................................................................................................10
42 U.S.C. § 12112(b)(5)(A) (2012)...............................................................................10
28 U.S.C.A. § 1291...................................................................................................1, 3, 4
28 U.S.C.A. § 1331...........................................................................................................1
29 USC 2611(2)(A)(ii)................................................................................................5, 25
OTHER AUTHORITIES
29 C.F.R. § 1630.2(o)(ii) (2012)...................................................................................27
FED. R. APP. P. 4(a)(4)(A)..............................................................................................1
iv

6. Jurisdictional Statement
Plaintiff Lamont Wilson filed this action in the district court against defendants
Dollar General Corporation, Dolgencorp, LLC, and Dolgen, LLC alleging violations
of the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq. (J.A. 7-12). The
district court had subject matter jurisdiction pursuant to 28 U.S.C.A. § 1331.
On March 5, 2012, the district court entered a final judgment disposing of all
parties’ claims (J.A. 681-708). On March 22, 2012, Wilson filed a motion to
reconsider (J.A. 710-11). On April 5, 2012, the district court entered its order denying
that motion (J.A. 834). Wilson filed his notice of appeal on April 30, 2012 (J.A. 835-
36). The appeal was timely filed. See FED. R. APP. P. 4(a)(4)(A). This Court has
jurisdiction of this appeal pursuant to 28 U.S.C.A. § 1291.
1

7. Statement of the Issues
The question in this appeal is whether the district court properly granted
summary judgment that Wilson take nothing on his claim against the defendants,
referred to below as “DG”, because Wilson is not a “qualified individual with a
disability” under the ADA – the Americans with Disabilities Act. That question raises
the following issues:
1. First, Wilson argued that he was a “qualified individual” because his
request for additional leave would have allowed him to perform the essential
functions of his job within a reasonable time. Did the district court correctly decide
that (a) Wilson’s request for additional leave was not a request for reasonable
accommodation; and (b) Wilson could not have performed the essential functions of
his job even if DG afforded him the requested leave?
2. Second, Wilson argued that he was a “qualified individual” because DG
failed to engage in the interactive process with him to determine the availablility of a
reasonable accomodation, thus constituting a per se violation of the ADA. Was the
district court correct in deciding that Wilson’s failure-to-accommodate-claim fails as a
matter of law because Wilson could not meet his burden to show that DG failed to
engage in the interactive process, resulting in DG’s failure to find reasonable and
available accomodation that would have allowed Wilson to perform the essential
functions of his position?
2

8. Statement of the Case
I. NATURE OF THE CASE
This is an appeal of a final summary judgment, which disposed of all of
Wilson’s claims.
Wilson filed this suit against DG under the ADA, 42 U.S.C. § 12101, alleging
that DG violated the ADA by terminating his employment without affording him
reasonable accommodation so that he could perform the essential functions of his job
(J.A. 7-11). The court rendered summary judgment dismissing Wilson’s complaint
with prejudice (J.A. 681-709).
II. PROCEEDINGS BELOW
After his employment with DG terminated, Wilson contacted the Equal
Employment Opportunity Commission and filed his Charge of Discrimination (J.A.
220-26). And, after receiving his Notice of Suit Rights (J.A. 228), Wilson filed his
complaint pursuant to the ADA, 42 U.S.C. § 12101 (J.A. 7-11). He alleges that DG
violated the ADA by terminating his employment without affording him reasonable
accommodation so that he could perform the essential functions of his job (J.A. 7-11).
He sought equitable and injunctive relief, compensatory and punitive damages,
including front and back pay with prejudgment interest, attorneys’ fees, and costs. Id.
DG filed a summary judgment motion (J.A. 21-228).
The district court granted that motion (J.A. 681-709). Wilson filed a motion to
reconsider, and the district court overruled it (J.A. 710-11, 823-34).
3

9. Statement of Facts
I. WILSON’S EMPLOYMENT WITH DG
Wilson began working at Dollar General’s South Boston, Virginia Distribution
Center in September 2009 (J.A. 68, 73-74 (29:17-22, 34:20-35:5)). He worked on the
night shift as a loader and later as a warehouse worker in the non-conveyables
department (J.A. 73, 76, 77-78 (34:22-24, 37:6-14, 38:25-39:3)). These positions
required that he load inventory for transportation to DG’s retail outlets and to
process, load, and ship orders for various inventory (J.A. 73-77 (34:22-38:24)).
According to DG’s Human Resources manager, Nikki Stinespring, Wilson’s duties
also required that he be able to read labels on various merchandise and lift heavy
equipment (J.A. 375, 383 (29:1-16, 37:16-21)). Good vision, therefore, was essential
to Wilson’s job with DG. Id.
II. WILSON’S VISION PROBLEMS
Since adolescence, Wilson has suffered from complete and permanent
blindness in his right eye due to a retinal detachment (J.A. 89-90 (50:25-51:7)). In
February 2010, he began to suffer from the onset of iritis in his left eye, causing him
to take medical leave (J.A. 88-89, 94-95 (49:1-50:20, 55:8-56:25)). Iritis refers to
inflammation of the iris and the anterior chamber of the eye and is the cause for
approximately 10 percent of the blindness in the United States. See Sergio
Schwartzman, Inflammatory Eye Disease: An Expert Interview with Sergio Schwartzman, MD
Medscape Rheumatology (2007) (see Brief of Appellant at 14 n.3). This disorder
caused Wilson to experience blurred vision and ultimately the loss of nearly all vision
4

10. in his left eye for an approximate seven-and-a-half week period (J.A. 90-91 (51:22-
52:22)). During this time, Wilson testified that he “couldn’t see to drive, so [he] knew
[he] couldn’t work.” (J.A. 92-93 (53:21-54:4)).
Later that month, he began undergoing medical treatment for this condition at
Dominion Eye Center, where his doctors provided him with multiple notes stating
that DG should provide him leave from work due to this condition (J.A. 94-104 (55:4-
65:20); (J.A. 308-13)).
III. DG ALLOWED WILSON EIGHT WEEKS OF LEAVE.
Adhering to these doctors’ notes, from February 2010 to April 7, 2010, DG
granted Wilson a total of eight weeks medical leave – six weeks of which were
pursuant to DG’s employee medical leave policy, and the additional two weeks of
which were to allow him further recovery from his condition (J.A. 94-96, 96-109, 120-
21 (55:8-57:3, 57:10-70:1, 81:23-82:25)). At this time, he was ineligible for FMLA
leave because he had only been a DG employee for approximately five months. See
29 USC 2611(2)(A)(ii) (employee only eligible for leave under FMLA if he has been
employed for at least 12 months and given at least 1,250 hours of service during that
time).
Further, even though Wilson’s primary doctor – Dr. Terry Odom – released
him to return to work on April 6, 2010, DG agreed that he could return the following
day – April 7, 2010 (J.A. 102-105 (63:16-66:1)). Dr. Odom’s note stated: “[Wilson] is
5

11. under my care for the following: glaucoma and iritis. He may return to work as of
today 4-6-10.” (J.A. 313).
Wilson, however, did not return to work on April 7, 2010; instead, he claimed
that he delivered an additional doctor’s note from an emergency room physician who
took him out of work for two additional days (J.A. 105-106, 110-14, 122-24 (66:2-
67:16, 71:14-75:25, 83:16-85:14)). He further claims that DG’s Stinespring reminded
him that Dr. Odom released him to work on April 6, 2010, and that DG gave him an
additional day off, but Wilson insisted that he could not return to work (J.A. 112
(73:2-17)). Stinespring testified that she “explained to Mr. Wilson that he had used his
leave time . . . and that again [she] had a return to work note, and that it was his
decision whether he wanted to maintain his employment at Dollar General, but at that
point he was expected to return to work.” (J.A. 384 (38:14-24)). Wilson claims that
when he told Stinespring that he could not return to work, she told him that his
employment with DG was terminated – effective April 7, 2010 (J.A. 110, 111-13, 114
(71:10-13, 72:25-74:25, 75:5-10)). The termination paperwork to administratively
terminate Wilson after he failed to return to work (after being released by his
physician) indicates that he was not terminated until April 14, 2010 (J.A. 652).
Even though Wilson now claims that his accommodation request includes
these two additional days noted on the ER doctor’s note, he admitted that he could
not have returned after two additional days off from work and was unsure of when he
would have been able to return to work (J.A. 114-15, 122, 144 (75:20-76:8, 83:1-6,
6

12. 105:1-14) (testifying that he continued to have problems with his left eye for at least
two weeks following his termination). In other words, Wilson conceded that he was
essentially seeking an indefinite period of leave until he could sufficiently recover (J.A.
121-22 (82:9-83:13)). Even more, DG’s records undisputedly indicate that Wilson
called its third-party leave administrator, Matrix, on April 8, 2010, and stated that he
was not ready to return to work (J.A. 316, 781)). The undisputed summary judgment
record thus proves that Wilson expected DG to keep his job open until he was well
and physically able to return to work, despite being given eight weeks of medical leave
(J.A. 121 (82:9-25)).
IV. WILSON’S VISION PROBLEMS WORSENED.
After Wilson’s employment with DG ended, his vision problems in his left eye
significantly worsened. He was diagnosed with a retinal detachment in his left eye
(J.A. 145-47 (106:6-108:13)). Ultimately, he underwent a surgery that resulted in
complete blindness for seven-and-a-half weeks (J.A. 146-47 (107:17-108:24)).
In March or April of 2011, Wilson finally began looking for another job (J.A.
156-57 (117:23-118:7)). However, he believes that if even if his job with DG had
remained open for him, he would not have been able to return to that job (J.A. 157-58
(118:8-119:16)). Indeed, Wilson would not have been able return to any Dollar
General Distribution Center job that required heavy lifting, an activity required of all
of the general warehouse positions (J.A. 158-59 (119:19-120:24)). Although his only
request for accommodation was to keep his job open until he got well, Wilson claims
7

13. that he could have worked in other alleged jobs that did not require heavy lifting (J.A.
121, 187-88, 188-89 (82:9-25, 148:9-149:9, 149:16-150:3)). Yet, he was not able to
return to work and/or start looking for a job until March or April 2011 (J.A. 156-57
(117:23-118:7)).
Summary of Argument
Under the ADA, only a “qualified individual” can maintain a claim. To be a
“qualified individual,” a plaintiff must show (1) that with reasonable accommodation
he could perform the essential functions of the position and (2) the employer failed
to make such accommodation. The undisputed summary judgment evidence before
the district court proved, as a matter of law, that Wilson could establish neither
prerequisite to his ADA claim. Summary judgment was thus proper and should now
be affirmed.
Specifically, the material undisputed facts establish that (1) DG granted
Wilson’s accommodation request for a medical leave of absence in excess of eight
weeks (Wilson was not eligible for FMLA leave); (2) upon being released to return to
work, Wilson could not work and/or refused to return to work; (3) Wilson did not
request reasonable accommodation but instead wanted DG to retain his job for an
indefinite amount of time; and (4) Wilson was not a “qualified individual” because he
was unable to perform the essential functions of his position as of April 7, 2010 —the
date he claims he was terminated—and for an indefinite period of time thereafter.
8

14. Accordingly, because there is no dispute over the material facts relating to
whether Wilson was a “qualified individual” under the ADA, the district court
properly dismissed his claims.
9

15. Argument
I. THE DISTRICT COURT PROPERLY RULED THAT WILSON’S REQUEST FOR
ADDITIONAL LEAVE WAS NOT A REQUEST FOR REASONABLE
ACCOMMODATION AND, EVEN IF GRANTED, WOULD NOT HAVE
ENABLED WILSON TO PERFORM THE ESSENTIAL FUNCTIONS OF HIS
JOB.
The district court properly held that Wilson’s one claim against DG fails as a
matter of law because he is not a “qualified individual” with a disability – a perquisite
to his ADA claim. 42 U.S.C. § 12112(b)(5)(A) (2012). The ADA defines the term
“qualified individual” as “an individual 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. § 12111(8) (emphasis added). Thus, to
establish his claim, Wilson had to establish (1) that with reasonable accommodation
he could perform the essential functions of the position and (2) DG failed to make
such accommodation. Rhoads v. FDIC, 257 F.3d 373, 387 n.11 (4th Cir. 2001). He
established neither element.
A. Wilson’s request for additional and indefinite leave was not a request for
a reasonable accommodation.
The district court properly dismissed Wilson’s claim because his request for
additional and indefinite leave was, as a matter of law, not a request for reasonable
accommodation. Despite what he now argues,1
Wilson requested no accommodation
1
As discussed below, Wilson argued for the first time at the hearing on DG’s motion
for summary judgment, and argues now, that an April 7, 2010 note from a doctor
shows that he requested only two additional days of leave to recover from his eye
disorder. For the reasons discussed below and in the district court’s memorandum
opinions (J.A. 681-708, 823-33), this evidence, even if considered, does not support
reversal of the district court’s ruling.
10

16. other than additional and indefinite medical leave time beyond the eight weeks of
leave DG had already provided to him; in fact, he readily admitted that he could not
return to work after the eight-week leave concluded – on April 7, April 9, or any date
in the immediate future (J.A. 121, 114-15, 122, 144 (82:9-25, 75:20-76:8, 83:1-6,
105:1-14)) (explaining that he could not return to work after eight weeks of leave and
was unsure when he would have been able to return at all). Specifically, at the time of
his alleged termination, Wilson was unsure of his ability to return to work and, in fact,
was not able to look for a new job until March or April 2011—more than one year
after the start of his medical leave (which began in February 2010) (J.A. 156-57
(117:23-118:7)). See Valdez v. McGill, 462 Fed. Appx. 814, 818-19 (10th Cir. 2012)
(when an employee seeks leave and is uncertain if or when he will be able to return to
work, it is deemed an indefinite leave of absence and is not a reasonable
accommodation). It is evident that he wanted DG to hold his job open until he was
well (which was more than a year after his leave began); he even admitted that he
could not have predicted, nor did he know, how long he would need before he could
return to work (J.A. 121-22, 144 (82:9-83:6, 105:1-4)). Wilson’s request and the
inherent uncertainty surrounding it establish that the request was unreasonable,
demonstrate that he desired indefinite leave, and prove as a matter of law that he was
not a qualified individual under the ADA.
Courts have consistently found that requests for medical leaves longer than a
year in duration or for indefinite periods of time are unreasonable as a matter of law.
11

17. See, e.g., Barnett v. Uniformed Servs. Univ. of the Health Sci., No. DKC 10 2681, 2011 WL
3511049, at *11-12 (D. Md. Aug. 9, 2011) (expecting the employer to wait six months
to have a task completed while employee was on leave was unreasonable) (collecting
cases); Kitchen v. Summers Continuous Care Ctr., LLC, 552 F. Supp. 2d 589, 596
(S.D.W.Va. 2008) (“Although in some instances additional medical leave may be a
reasonable accommodation, it is only reasonable where ‘it is finite and will be
reasonably likely to enable the employee to return to work.’”) (quoting Graves v. Finch
Pruyn & Co., Inc., 457 F.3d 181, 186 n.6 (2d Cir. 2006)). Because a reasonable
accommodation under the ADA is one that allows the employee to perform the job
functions in the immediate future, DG was not required to grant Wilson
unpredictable, indeterminate or indefinite leave as requested or desired. See, e.g.,
McIntyre-Handy v. APAC Customer Servs., Inc., No. 4:04CV83, 2005 WL 5369158, at *8
(E.D. Va. May 13, 2005).
Faced with similar facts, this Court held that a request for indefinite medical
leave, without any assurance that the employee will be able to fulfill the position’s
essential functions upon return, is unreasonable as a matter of law. See Myers v. Hose,
50 F.3d 278, 283 (4th Cir. 1995) (explaining that the ADA does not require that an
employer wait indefinitely until an employee is well enough to work and establishing
limitations on an employee’s request for additional leave). In particular, this Court
rejected the plaintiff’s argument that his employer should allow him time to improve
his health, because “[h]e sets no temporal limit on the advocated grace period.” Id. at
12

18. 282, 283 (further holding that “reasonable accommodation does not require the
County to wait indefinitely for Myers’ medical conditions to be corrected, especially in
light of the uncertainty of cure”).
And, following this Court’s lead, lower courts in this circuit have proclaimed
that the reasonable accommodation provision does not require an employer to wait an
indefinite amount of time for an accommodation to achieve its intended effect. See,
e.g., Kitchen, 552 F. Supp. 2d at 596-97; Lockhart v. Chao, No. 2:04CV00002, 2004 WL
2827018, at *4 (W.D. Va. Dec. 9, 2004) (“Rather, a reasonable accommodation should
be construed as that which presently, or in the immediate future, enables the
employee to perform the essential functions of the job in question.”) (quoting Myers,
50 F.3d at 283); see also McIntyre-Handy, 2005 WL 5369158, at *6 (“An accommodation
that allows plaintiff to take leave is not one that allows her to perform her job
functions in the immediate future, it is one that excuses her from performing job
functions in the future. Defendant is not required by the ADA to grant plaintiff the
unpredictable and indeterminate leave that she desires.”).
Based on the undisputed summary judgment record, Wilson failed to
demonstrate that any reasonable accommodation existed and that his request for leave
was finite or would have allowed him to return to work to perform the essential
functions of his job within a reasonable amount of time. Summary judgment was
thus proper.
13

19. B. Whether DG received a copy of Wilson's April 7 note from Danville
Regional Hospital is irrelevant.
For the first time during the hearing on DG’s motion for summary judgment,
Wilson argued that his request for additional leave was reasonable because it had a
finite end date (J.A. 675, 677 (19:13-14, 21:21-22:5). To support this argument, which
he now presents to this Court, a copy of that note, Wilson nonetheless wanted
indefinite leave and admitted that he could not have returned to work on April 9th (as
requested by the note). See supra, pp. 6-7, 10-11. Moreover, neither the note nor
Wilson “establish[ed] that the leave was reasonably likely or foreseeable to enable
Plaintiff to perform the essential duties” of his job. See, e.g., Kitchen, at 596-97.
Indeed, the district court’s ruling in Kitchen conclusively defeats Wilson’s
argument. As in the present case, the plaintiff there argued that a doctor’s note
stating that the plaintiff “need[ed] ninety (90) days off from work” shows that she
may have been able to perform the essential functions of her job with such an
accommodation. 552 F. Supp. 2d at 591, 594. The court disagreed, stating that:
Dr. Shammaa’s note to Summers asking that Plaintiff be given more
time off does not show that the leave would have been a reasonable
accommodation because the note does not establish that the leave was
reasonably likely or foreseeable to enable Plaintiff to perform the
essential duties of an ESS, it was merely a request for the maximum
duration of discretionary leave under Summers' policy.
Id. at 596-97 (further stating that, “[a]s of the time [the note] was written, there was
absolutely no basis to conclude that at the end of the extended medical leave Plaintiff
would have been able to perform her essential job functions”).
14

20. As in Kitchen, Wilson’s doctor’s note offered only a conclusory and unsupported
opinion that Wilson could return to work on April 9, 2010; it did “not establish that
the leave was reasonably likely or foreseeable to enable Plaintiff to perform the
essential duties” of his job. Id. at 597. Moreover, this note expressly considered that
Wilson’s condition may not sufficiently improve by April 9, 2010: “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.” (J.A. 315). Combine the foregoing facts
with (a) Wilson’s history of repeatedly requiring additional leave and not showing any
sign of improvement during this time; (b) the worsening of his condition, which led to
a surgery and seven-and-a-half weeks of complete blindness; and (c) Wilson’s inability
to search for work until March or April of 2011, and it is established that DG had no
reason to believe that Wilson could return to work to perform the essential functions
of his job.
Wilson, thus, was not a qualified individual as defined by the ADA because he
could not have performed the essential functions of his job at the time of his
termination (J.A. 114-15, 121-22, 156-57 (75:20-76:8, 82:9-83:6, 117:8-118:7)).
C. Even if DG had granted Wilson the leave he requested, he still could not
demonstrate that he could have performed the essential functions of his job.
To have shown that he was a “qualified individual” under the ADA, Wilson
had to prove that would have been able to perform the essential functions of his job2
2
It is not necessary to list the essential functions of Wilson’s position at the time of
his termination because he readily admitted that he could not perform the essential
15

21. at the time of his termination, not at some future point. See Lamb v. Qualex, Inc., 33
Fed. Appx. 49, 57 (4th Cir. 2002) (noting that an individual “may not prevail by
demonstrating that he might have been able to perform the essential functions of the
job at some time in the future.” Rather, he “must show that he can perform the
essential functions of the job at the time of the employment decision or in the
immediate future.”); see also Richardson v. Friendly Ice Cream, 594 F.3d 69, 78 (1st Cir.
2010); Hamm v. Exxon Mobil Corp., 223 Fed. Appx. 506, 508 (7th Cir. 2007); Duda v.
Bd. of Edu., 133 F.3d 1054, 1059-60 (7th Cir. 1998). This, Wilson failed to do before
the district court and now before this Court.
Indeed, not only did Wilson admit that he could not have performed the
essential functions of his job at the time of his termination and during the district
court proceedings, he presented no evidence that any accommodation – including
extended leave – would have allowed him to perform the essential functions of his
position at the time of his termination (J.A. 121, 114-15, 122, 144 (82:9-25, 75:20-76:8,
83:1-6, 105:1-14 (explaining that he could not return to work after eight weeks of
leave and was unsure when he would have been able to return at all)). The record
further shows that Wilson could not have returned to work on April 9, 2010, or
functions at that time or even at the time during which DG’s motion for summary
judgment was briefed, responded to, and considered by the district court. See J.A.
156-58 (117:8-119:16) (explaining that he could not have returned to the particular job
he had prior to his alleged termination); J.A. 188-89 (149:16-150:25). More
specifically, Wilson stated that there was no position at the Dollar General
Distribution Center, at the time of his termination, that he could have performed (J.A.
156-58, 188-89 (117:8-119:16, 149:16-150:25)).
16

22. within a reasonable time thereafter (J.A. 144-47 (105:1-108:24)). Indeed, according to
Wilson, he could not have returned to full time work with DG until March or April
2011 at the earliest – nearly a full year after his alleged termination (J.A. 155-57 (116:3-
118:15)). Moreover, he presented no competent summary judgment evidence
showing that he requested a transfer to any such open position as an accommodation.
Because it was Wilson’s burden to present such evidence, and he cannot rely
upon his own speculation and conjecture, this Court should affirm the district court’s
conclusion that he could not have performed the essential functions of his job – even
with his requested accommodation. See Lamb, 33 Fed. Appx. at 59 (“The burden of
identifying an accommodation that would allow a qualified individual to perform the
job rests with the plaintiff, as does the ultimate burden of persuasion with respect to
demonstrating that such accommodation is reasonable.”); see also Shin v. Univ. of Md.
Med. Sys. Corp., 369 Fed. Appx. 472, 481 (4th Cir. 2010); Williams v. United Parcel Servs.,
Inc., No. 2:10-1546-RMG, 2012 WL 601867, at *2, *6 (D.S.C. Feb. 23, 2012).
Ultimately, there is no doubt that Wilson was not a “qualified individual” under
the ADA, as (1) he could not perform any of the essential functions of his job at the
time of his termination and (2) his request for indefinite leave was not a reasonable
accommodation. As a result, the district court properly granted DG’s motion for
summary judgment and dismissed Wilson’s claim as a matter of law.
17

23. D. The district court considered all of the summary judgment evidence
when it determined that Wilson could not have performed all essential
functions of his job at the time of termination.
Wilson now argues that the district court erred because it “failed to consider all
the evidence in the record and draw all reasonable inferences in Wilson’s favor.”
Brief of Appellant at 36. To support this argument, he points to two pieces of
evidence.
First, he relies on his deposition testimony where he testified that he applied
for unemployment benefits “probably a week, week and a half” after his DG
employment terminated. Id. (J.A. 144-45 (105:5-106:5)). Wilson misrepresents this
testimony in his Brief to argue that he could have returned to DG “a week, week and
a half” after he was terminated and been able to perform the essential functions of his
job. Wilson, however, did not testify that he could have returned to DG “a week,
week and a half” after his termination.” As the following complete recitation of the
rest of this line of testimony proves, (1) Wilson pursued only “job contacts” outside of
Dollar General a week or week and half later for unemployment benefits purposes; (2)
he does not know when he could have returned to work; and (3) he could never have
returned to work in his position at the Dollar General Distribution Center:
Q. How long after that April 7 date was it that you could actually go
back to working?
A. I can’t accurate – I can’t specifically give you a date, okay?
Q. When did you start to look for another job.
A. Oh, it was a while. I was having problems from it. I was having – it
was a while afterwards, because I – I was having problems with my eyes
18

24. and everything. And even though I was having problems, I got fired, I
went out and put my application in for unemployment, I had to find – to
keep the job contacts. So I guess probably a week, week and a half later,
I guess.
Q. Okay. So you filed for unemployment –
A. Yes.
Q. – and they required that you look for a number of jobs.
A. Yeah, that’s part of the requirement at least – in our area – in our
area there was two job contacts. Our jobs rating was so bad they
dropped down to one.
(J.A. 144 (105:1-23))3
…
Q. I understand that, although you couldn’t work, you continued to
look for a job. Is that right? After your termination.
A. To a certain point, yes. To when I got so bad I couldn’t hardly see.
Any that’s why I went to vocational rehab to get – not the VEC – the
vocational rehab.
(J.A. 148 (109:13-19)).
…
3
Wilson further testified:
Q. Could you have returned two days later per this Exhibit
number 10, the release from Dr. Hoang?
A. No, I couldn’t, because other than that, I still had problems
with my eyes about two weeks later, so I still couldn’t return.
Q. Okay. How long would it have been before you could have
returned to work?
A. I don’t have - - I can’t answer that question because I had
problems with that - - with that - - I had problems with my
eye….beyond this April the 9th in question.
(J.A. 114-15 (75:20-76:8)).
19

25. Q. So, would it be fair to say that in March or April 2011, if you had
your job at Dollar General, at that point you could have gone back to
full-time work?
A. Yes, if I had a job, I could have probably – wait a minute. I probably
could have went back to work. I probably could have gone back to full-
time employment, if I had a job.
Q. Okay. If they were to give you your job back now, would you take
it?
…
A. Well, to be honest with you, with all due respect, my job – I could
probably take a job, but I don’t think I would be able to do the job – the
particular job I had at the particular time. If they could provide me with
a job that I could do, because I can’t do that lifting stuff I used to do.
The reason I say that is because, that job, if you look at my performance
and the production rate at the time that I was terminated, I would do –
well, from – anywhere from sometimes 1800 to 2500 pounds of dog
food weighing from three to 30 pounds, to 20 to 60 pounds and I’d do
all those 60 pounds at a time, and I’d be doing the bending, stooping and
lifting. I couldn’t do that lifting anymore because I had that eye
problem. Then lifting is going to pull that down and I would risk going
totally blind again, and go through surgery again. Any my – in my
opinion, no.
(J.A. 157-58 (118:8-119:17)).
Viewing the evidence in the light most favorable to Wilson, his testimony
plainly and unambiguously states that he could never have returned to his position at
Dollar General’s Distribution Center – much less one week later. Wilson was unable
to state that he could have returned to full-time employment before March or April
2011, or that he was looking for work beyond making the required unemployment job
contacts to qualify for unemployment benefits. That in no way demonstrates that he
could perform any of the jobs available at DG at this time.
20

26. Second, Wilson argues that the district court erred by refusing to consider a
declaration that he proffered for the first time in connection with his motion for
reconsideration. The law on this subject is clear, and the district court properly
applied this law in declining to consider this declaration: new evidence that could have
been adduced during the pendency of the prior motion for summary judgment should
not be considered when deciding a motion for reconsideration. See, e.g., Lanier v.
Branch Bank & Trust, No. 3:12-0416-MBS-SVH, 2012 WL 689275, at *2 (D.S.C.
March 2, 2012). To rely on such evidence, Wilson had to demonstrate some
legitimate justification for the delay of submission, including why it was not attainable
before the court’s ruling on the motion for summary judgment. See, e.g., Pac. Ins. Co. v.
Am. Nat’l Fire Ins. Co., 148 F.3d 396, 403 (4th Cir. 1998); Randolph v. ADT Sec. Servs.,
Inc., No. NO. DKC 09-1790, 2012 WL 273722, at *3 (D. Md. Jan. 30, 2012) (citing
Semiconductor Energy Lab., Co. v. Samsung Elecs. Co., 24 F. Supp. 2d 537, 539 n.3 (E.D.
Va. 1998) (denying a motion for reconsideration under Rule 59(e) where the new
evidence “was either in [the moving party's] possession ... or was attainable by [that
party] prior to trial”), aff'd, 204 F.3d 1368 (Fed. Cir. 2000)); see also Small v. Hunt, 98
F.3d 789, 798 (4th Cir. 1996). Wilson advanced no reason for the delay in presenting
this evidence when it was perfectly available to him prior to the district court’s hearing
on the motion for summary judgment. The district court thus properly declined to
consider such evidence. See Cray Comm., Inc. v. Novatel Computer Sys., Inc., 33 F.3d 390,
395 (4th Cir. 1994) (district court properly declined to consider new affidavit where
21

27. movant failed to offer justification for not presenting the same during the summary
judgment proceedings).
Even more, consideration of this evidence does not change the outcome of the
district court’s ruling on summary judgment, because whether DG had a copy of
Danville Regional Hospital’s April 7 note, whether Wilson was looking for work prior
to March or April 2011, and whether he could perform another job at the
Distribution Center is all immaterial. It is undisputed that plaintiff could not perform
the essential functions of his job at the time of his termination, could not return to his
job at any point, and cannot demonstrate that he could perform any other jobs were
open and available. See supra at pp. 16-18. Thus, because the evidence does not and
cannot change the outcome of the prior ruling, the district court properly refused to
consider the evidence and/or grant Rule 59(e) relief to the Wilson. See, e.g., Testerman
v. Riddell, Inc., 161 Fed. Appx. 286, 291 (4th Cir. 2006).4
The district court considered all of the timely summary judgment evidence and
determined that (a) Wilson could not have returned to his job at the time of his
termination or in the immediate future, (b) he desired indefinite leave, and (c)
4
Wilson cites to a series of opinions from around the country to show that “a number
of courts have held that leave is a form of reasonable accommodation in particular
circumstances.” Brief of Appellant at 38-41. DG has never disputed this point.
Indeed, DG gave Wilson at least eight weeks of leave. See supra at pp. 5-7. But,
because the facts of the cited cases differ materially from those before the Court (e.g.,
Wilson essentially sought indefinite leave and could not have performed the essential
functions of his job), those cases provide no support for Wilson.
22

28. indefinite leave was not a reasonable accommodation. Summary judgment was thus
proper.5
II. THE DISTRICT COURT PROPERLY RULED THAT WILSON FAILED, AS A
MATTER OF LAW, TO MEET HIS BURDEN TO SHOW THAT DG FAILED
TO ENGAGE IN THE INTERACTIVE PROCESS, RESULTING IN WILSON
NOT RECEIVING A REASONABLE ACCOMMODATION THAT WOULD HAVE
ALLOWED HIM TO PERFORM THE ESSENTIAL FUNCTIONS OF HIS
POSITION.
Wilson contends that DG did not engage in the interactive process to find a
reasonable accommodation that would allow him to perform the essential functions
of his job. Because Wilson cannot show that he requested reasonable
accommodation, this argument necessarily fails. Moreover, the undisputed summary
judgment record indicates that DG did engage in a sufficient interactive process.
A. DG did not fail to engage in the interactive process.
Wilson correctly observes that a prerequisite to his ADA claim is proving that
DG’s “failure to engage in the interactive process resulted in the failure to identify an
appropriate accommodation” for him. Brief of Appellant p. 42 (citing Crabhill v.
Charlotte Mecklenburg Bd. Of Edu., 423 Fed. Appx. 314, 323 (4th Cir. 2011)). Thus, a
showing of a reasonable accommodation is required before a court can find that the
employer’s failure to engage in the interactive process was unlawful. See Wells v. BAE
5
Moreover, Wilson should be estopped from claiming now that he could work when
he has already testified under oath that he could not. See Aton v. Wackenhut Corp., No.
01-598, 2002 WL 32502095, at *2 (D. Md. July 9, 2002), aff’d, 61 Fed. Appx. 96 (4th
Cir. 2003) (a plaintiff “cannot change his story in a belated attempt to generate a
triable dispute, under clear law of this Circuit”) (citing Rohrbaugh v. Wyeth Laboratories,
Inc., 916 F.2d 970 (4th Cir.1990).
23

29. Sys. Norfolk Ship Repair, 483 F. Supp. 2d 497, 511 (E.D. Va. 2007) (citing Jackson v. City
of Chicago, 414 F.3d 806, 813 (7th Cir. 2005)). Unless the employer’s failure to engage
in the interactive process resulted in not identifying a reasonable accommodation, a
plaintiff’s ADA claim fails as a matter of law. Id.
Wilson’s reasonable accommodation argument is thus premised on a finding
that he requested reasonable accommodation. As discussed above, Wilson did not
request reasonable accommodation. See supra at pp. 10-13. This argument, therefore,
must necessarily fail.
Nevertheless, Wilson contends that DG failed to engage in the interactive
process with him to find a reasonable accommodation and that this establishes a
violation of the ADA. To advance this argument, he focuses on DG’s alleged failure
to communicate internally and externally with Wilson’s physicians about Wilson’s
condition. Brief of Appellant at 44-45. This new theory ignores the overwhelming
amount of evidence that: (1) DG granted Wilson’s accommodation request for a
medical leave of absence in excess of eight weeks despite the fact that he was
ineligible for FMLA leave; (2) upon being released to return to work, he could not
work and/or refused to return to work; and (3) he was not a “qualified individual,” as
he was unable to perform the essential functions of his position as of April 7, 2010 —
the date he claims he was terminated—and for an indefinite period of time thereafter.
See supra at pp. 10-17.
24

30. Moreover, this argument is both untrue and immaterial. It is untrue because
DG engaged in the interactive process and granted Wilson’s accommodation request
to be off work for eight weeks, even though he was not entitled to leave under the
Family and Medical Leave Act. See 29 USC 2611(2)(A)(ii). Also, his very own
testimony confirms that DG’s human resources manager, Nikki Stinespring, and his
direct supervisor, Shelly Miller, were aware of his vision problems (J.A. 454-57, 465-
66 (54:7-55:3, 55:23-57:3, 65:21-66:1)). Stinespring’s testimony is consistent (J.A. 371,
372-73 (25:8-19, 26:20-27:14)).
And, the argument is immaterial because Wilson admits that as of the date of
his termination, and for an indefinite period of time thereafter, he could not work at
all:
Q. Could you have returned two days later per this Exhibit number
10, the release from Dr. Hoang?
A. No, I couldn’t, because other than that, I still had problems with
my eyes about two weeks later, so I still couldn’t return.
Q. Okay. How long would it have been before you could have
returned to work?
A. I don’t have - I can’t answer that question because I had problems
with that - - with that - I had problems with my eye….beyond this April
the 9th in question.
(J.A. 114-15 (75:20-76:8)).
Even as of the date of his deposition – nearly two years after he first went on
leave from his job at the South Boston Distribution Center – Wilson admitted he was
not qualified to perform the essential functions of his job. Indeed, he testified that his
25

31. job required him to lift anywhere from 1800 to 2500 pounds of dog food in a day (in
30-60 pound increments) and that his eye problem prevented him, and continues to
prevent him, from lifting:
A. …I can’t do the lifting stuff I used to do … I couldn’t do that
lifting anymore because I had that eye problem. Then lifting is going to
pull that down and I would risk going totally blind again, and go through
surgery again.
(J.A. 157-58 (118:16-119:17)). As the district court correctly observed, it would have
futile for DG to engage in the interactive process any further than it already had. See
Valdez v. McGill, 462 Fed. Appx. 814, 819 (10th Cir. 2012) (“an employer is not
required to engage an employee in a futile interactive process where, as we have
concluded was the case here, no reasonable accommodation was possible”). Indeed,
Wilson’s disability and the limitations it placed on his job were evident; DG, thus, was
fully aware of his condition. Also, the nature of Wilson’s disability removed the
availability of alternative accommodations that may have allowed him to perform the
essential functions of his job. Specifically, not being able to see and lift heavy objects
precluded him from being able to return to work. As such, no reasonable
accommodation would have allowed Wilson to perform the essential functions of his
job. Thus, whether or not DG engaged in the interactive process is of no
consequence.
B. No reasonable accommodation was available that would have enabled
Wilson to perform the essential functions of his position.
As discussed above, there simply was no reasonable accommodation that was
available to allow Wilson to perform the lifting and other duties to become a qualified
26

32. individual for his position. “Reasonable accommodations” are “[m]odifications or
adjustments to the work environment, or to the manner or circumstances under
which the position held or desired is customarily performed, that enable a qualified
individual with a disability to perform the essential functions of that position.” 29
C.F.R. § 1630.2(o)(ii) (2012). Moreover, Wilson presented no admissible and
competent evidence in the record that there were any open positions that he could
have performed, or that there were any other accommodations (aside from indefinite
leave) that would have allowed him to perform his job, at the time of his alleged
termination or in the immediate future.6
See supra at pp. 16-18. As stated earlier, at
his deposition nearly two years after his termination, Wilson admitted that he still
could not do the essential lifting functions of his former Dollar General position (J.A.
156-58 (117:8-119:16); 188-89 (149:16-150:25); 156-58, 188-89 (117:8-119:16, 149:16-
150:25)).
Accordingly, there is no dispute that Wilson only desired indefinite—not
temporary—leave. As discussed above, it is well settled that indefinite leave is not a
reasonable accommodation. The district court, thus, properly dismissed Wilson’s
claim.
Conclusion
DG asks this court to affirm the district court’s judgment and dismiss Wilson’s
claims because, as a matter of law, Wilson is not a “qualified individual” under the
6
See Tyndall v. Nat’l Edu. Ctrs., Inc. of Cal., 31 F.3d 209, 213 (4th Cir. 1994) (plaintiff’s
burden to show he can perform the essential functions of his job with reasonable
accommodation).
27

33. ADA. DG also requests that this court award it the appeal costs it has incurred
pursuant to rule 39 of the Federal Rules of Appellate Procedure.
28

34. Respectfully submitted,
/s/ Stacy R. Obenhaus______________
Douglas D. Haloftis
Slates C. Veazey
Gardere Wynne Sewell LLP
3000 Thanksgiving Tower
1601 Elm Street
Dallas, Texas 75201
Tel: 214.999.3000
Fax: 214.999.4667
Agnis C. Chakravorty
Woods Rogers
10 S. Jefferson St., Suite 1400
Roanoke, VA 24011
Tel: 540.983.7600
Fax: 540.983.7711
ATTORNEYS FOR APPELLEES
29

35. Certificate of Compliance
This brief complies with the type-volume limitations of rule 32(a)(7)(B) of the
Federal Rules of Appellate Procedure because this brief contains 7,035 words,
excluding the parts of the brief exempted by rule 32(a)(7)(B)(iii).
This brief complies with the typeface requirements of rule 32(a)(5) of the
Federal Rules of Appellate Procedure, and with the type style requirements of rule
32(a)(6), because this brief has been prepared in proportionally spaced typeface using
Microsoft Word 2010 in Garamond 14-point font.
/s/ Stacy R. Obenhaus
Stacy R. Obenhaus
Certificate of Service
I certify that the final copies of this brief, in the numbers shown below, were
served and filed by first class mail as shown below on October 8, 2012:
Terry N. Grimes
Grimes & Williams, P.C.
320 Elm Avenue, S.W.
Roanoke, VA 24016
/s/ Stacy R. Obenhaus
Stacy R. Obenhaus