UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

MICHAEL HOLLESTELLE,
Plaintiff-Appellant,

v.
                                                                 No. 97-1465
METROPOLITAN WASHINGTON AIRPORTS
AUTHORITY,
Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Albert V. Bryan, Jr., Senior District Judge.
(CA-96-989-A)

Argued: December 1, 1997

Decided: May 8, 1998

Before ERVIN and HAMILTON, Circuit Judges, and
WILSON, Chief United States District Judge
for the Western District of Virginia,
sitting by designation.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Diana Johnson Veilleux, SHAW, BRANSFORD &
O'ROURKE, Washington, D.C., for Appellant. Morris Kletzkin,
FRIEDLANDER, MISLER, FRIEDLANDER, SLOAN & HERZ,
Washington, D.C., for Appellee. ON BRIEF: Christopher M. Okay,
Alicicia A. Simolunas, SHAW, BRANSFORD & O'ROURKE,
Washington, D.C., for Appellant. Jerome Ostrov, Mark D. Crawford,
Phillippa T. Gasnier, FRIEDLANDER, MISLER, FRIEDLANDER,
SLOAN & HERZ, Washington, D.C.; Edward S. Faggen, Joseph E.
Kalet, Office of Legal Counsel, METROPOLITAN WASHINGTON
AIRPORTS AUTHORITY, Alexandria, Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Michael Hollestelle appeals the entry of judgment as a matter of
law for his employer, Metropolitan Washington Airports Authority
("the Authority") on his claims under the Americans with Disabilities
Act, 42 U.S.C. §§ 12111 et seq. ("ADA"), and Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq. ("Title
VII"). Hollestelle claims that the Authority violated the ADA by fail-
ing to accommodate his depression when it discharged him for habit-
ual tardiness and that the Authority violated Title VII by discharging
him in retaliation for filing a charge of discrimination under the ADA.
The district court concluded that Hollestelle could not perform the
essential job function of arriving at work on time despite the fact that
the Authority had reasonably accommodated him, and that the
Authority discharged him for that tardiness. We fully agree and
affirm.

I.

The Authority employed Hollestelle as a "property disposal techni-
cian" from May, 1988, until January, 1996. The position required
Hollestelle to assist in the disposal of the Authority's excess property
and to serve as the Authority's licensing agent for motor vehicle tags
and licenses. Hollestelle consistently failed to arrive on time for work

                    2
during his employment with the Authority. In 1992, the Authority
adjusted Hollestelle's hours twice in an effort to cure his tardiness and
sent him a warning letter in February, 1993. Hollestelle continued to
arrive late, however, and the Authority officially reprimanded him in
June of 1993, following his forty-fourth late arrival since the February
warning. Between the June 1993, reprimand and October 22, 1993,
Hollestelle was late fifty more times.

Hollestelle's tardiness continued unabated, and on June 17, 1994,
the Authority proposed a five day suspension because Hollestelle had
been late ninety-six times since October 22, 1993. In response, Hol-
lestelle notified the Authority that he was being treated for depression
and that this condition was affecting his ability to arrive at work on
time. The Authority then held disciplinary action in abeyance pending
the receipt of medical information about Hollestelle's condition. Hol-
lestelle's submitted medical documentation failed to address any con-
nection between his depression and tardiness, however, and
Hollestelle continued to arrive late after the proposed suspension. As
a result, the Authority suspended Hollestelle for two days on August
17, 1994.

Hollestelle requested in January of 1995 that he be afforded a flexi-
ble starting time--a window of time in which to arrive at the begin-
ning of the day--and that he be allowed to extend his workday
accordingly in order to work his full shift. The Authority agreed in
March of 1995 to allow Hollestelle a ten-minute window for reporting
to work. Nevertheless, in April of 1995, Hollestelle filed a complaint
with the Alexandria Office of Human Rights, alleging that the
Authority had discriminated against him on the basis of his disability
by disciplining him for his tardiness and by failing to accommodate
him. That office subsequently transferred Hollestelle's complaint to
the United States Equal Employment Opportunity Commission in
September of 1995.

The Authority further modified Hollestelle's schedule in May of
1995 by expanding the flex-time window to fifteen minutes. Holles-
telle's tardiness continued, however. He was late forty-two times

                    3
between May 12, 1995, and July 24, 1995, and his tardiness averaged
twenty-seven minutes.1

As a last resort, the Authority informed Hollestelle on July 24,
1995, that it was changing his starting time from 8:15 A.M. to 9:30
A.M. in order to assist him in his efforts to "get into gear" in the
morning and to arrive at work promptly. Again, Hollestelle was late
no fewer than fifty-five times over the next sixty-six days. Having
exhausted its options, the Authority discharged Hollestelle, effective
January 12, 1996.

In the meantime, on September 19, 1995, the EEOC issued a deter-
mination in the matter, finding that there was reasonable cause to
believe that the Authority had violated the ADA by failing to provide
Hollestelle with a reasonable accommodation.2 Conciliation efforts
failed, and Hollestelle filed suit against the Authority on July 23,
1996. At the conclusion of Hollestelle's case-in-chief, the district
court granted the Authority's motion for judgment as a matter of law
on all of Hollestelle's claims, and this appeal ensued.

II.

Hollestelle first claims that the district court erred in granting the
Authority's motion for judgment as a matter of law on his claim that
the Authority wrongfully terminated him on the basis of his disability.
We agree with the district court that Hollestelle could not perform the
essential functions of his job, even with the Authority's reasonable
accommodation. Hollestelle, therefore, was not a"qualified individ-
ual" under the ADA. Accordingly, we affirm the ruling of the district
court.
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1 At the Authority's request, Dr. Christopher Holland examined Holles-
telle in May of 1995. Dr. Holland's report, submitted to the Authority in
June of 1995, recommended that the Authority provide Hollestelle with
a forty-five minute flex-time arrival period.
2 Hollestelle states in his brief that the EEOC also issued a determina-
tion on May 12, 1996, in which it found reasonable cause to believe the
Authority had discriminated against him. The record, however, contains
only the determination dated September 9, 1995.

                    4
The ADA prohibits discrimination against "a qualified individual
because of the disability of such individual." 42 U.S.C. § 12112(a).
The statute defines a "qualified individual" as "an individual with a
disability who, with or without reasonable accommodation, can per-
form the essential functions of the employment position that such
individual holds or desires." 42 U.S.C. § 12111(8). In order to deter-
mine whether an employee is a "qualified individual" under the ADA,
the court first must determine whether the employee can perform the
essential functions of the job in question. Tyndall v. Nat'l Educ. Cen-
ters, Inc., 31 F.3d 209, 213 (4th Cir. 1994). The essential functions
of a job are those "that bear more than a marginal relationship to the
job at issue." Id. (quoting Chandler v. City of Dallas, 2 F.3d 1385,
1393 (5th Cir. 1993)). If the person cannot perform these functions,
the court next must decide whether a reasonable accommodation by
the employer would have enabled the individual to do so. Id. Addi-
tionally, the "[p]laintiff bears the burden of demonstrating that [he]
could perform the essential functions of [his] job with reasonable
accommodation." Id. (citation omitted).

We held in Tyndall that "[a]n employee who cannot meet the atten-
dance requirements of the job at issue cannot be considered a `quali-
fied' individual protected by the ADA." Id. This conclusion is based
on the common-sense notion that "an employee`who does not come
to work cannot perform any of his job functions, essential or other-
wise.'" Id. (quoting Wimbley v. Bolger, 642 F. Supp. 481, 485 (W.D.
Tenn. 1986), aff'd, 831 F.2d 298 (6th Cir. 1987)); see also Halperin
v. Abacus Tech. Corp., 128 F.3d 191, 199 (4th Cir. 1997) (finding that
an employee was not a qualified individual under the ADA because
his failure to come to work on a regular basis prevented him from per-
forming "any of the functions of the job in question, much less the
essential ones"). The notion that regular and predictable attendance is
an essential function of almost every job finds ample support in the
decisions of other courts. See, e.g., Carr v. Reno, 23 F.3d 525, 530
(D.C. Cir. 1994) ("[A]n essential function of any government job is
an ability to appear for work . . . ."); Law v. United States Postal
Serv., 852 F.2d 1278, 1279-80 (Fed. Cir. 1988) ("[A]n agency is
inherently entitled to require an employee to be present during sched-
uled work times and, unless an agency is notified in advance, an
employee's absence is disruptive to the agency's efficient opera-
tion."); Walders v. Garrett, 765 F. Supp. 303, 310 (E.D. Va. 1991)

                    5
("What is clear . . . is that some degree of regular, predictable atten-
dance is fundamental to most jobs."), aff'd , 956 F.2d 1163 (4th Cir.
1993); see also Hypes v. First Commerce Corp. , 134 F.3d 721, 727
(5th Cir. 1998) (citing additional cases).

Hollestelle's work record at the Authority shows without any doubt
that he was unable to perform the essential function of arriving to
work on time throughout his employment. His consistent lateness
caused the Authority to adjust his hours twice in 1992 and to repri-
mand him in 1993. During the period from October 22, 1993, to June
17, 1994, alone, Hollestelle was late ninety-six times. From May 12,
1995, until July 24, 1995, a period during which Hollestelle had a
fifteen-minute arrival flex period, Hollestelle was late forty-two
times, and his tardiness averaged twenty-seven minutes. We com-
pletely agree with the district court, on the basis of this overwhelming
and uncontroverted evidence, that Hollestelle was unable to perform
the essential function of attending work in a regular and predictable
manner.3

We also readily conclude, as did the district court, that the Author-
ity reasonably accommodated Hollestelle and that, despite that
_________________________________________________________________
3 Hollestelle argues that, although he arrived late to work, he nonethe-
less eventually showed up and that his case, therefore, substantially dif-
fers from cases involving absenteeism. We are not persuaded.

Nor are we persuaded by his implicit argument that his employer over-
valued punctuality. The ADA provides that "consideration shall be given
to the employer's judgment as to what functions of a job are essential."
42 U.S.C. § 12111(8). Moreover, Hollestelle's tardiness impacted his
job. For example, in February of 1992, Hollestelle's supervisor wrote
Hollestelle:

            I have also discussed with you previously that I do not want the
            moving contractor sitting around waiting for you to arrive before
            they can begin to work. This has occurred several times as
            recently as the past couple of weeks because of your failure to
            follow through to ensure that you arrive on time. When this does
            occur the Authority has to pay for three or four movers while
            they sit around waiting for you to arrive for their daily assign-
            ment.

J.A. 402.

                      6
accommodation, Hollestelle failed to arrive at work on time. Indeed,
we find the Authority's efforts to accommodate Hollestelle to be
extraordinary. We reject the EEOC's contrary determination as
wholly unfounded, if not corrosive to the ADA's policy of fostering
reasonable accommodations. The Authority attempted to work with
Hollestelle even before Hollestelle informed it of his alleged disabil-
ity in mid-1994.4 The Authority adjusted his work hours twice in
1992 and referred him to the company's Employee Assistance Pro-
gram coordinator to address his tardiness. After Hollestelle claimed
that his depression was the source of his lateness, the Authority
attempted to work with him further. In response to his request for a
flex-time arrival period, the Authority gave him a ten-minute window
in which to arrive without being considered late. After he continued
to be late, the Authority increased the flex-time period to fifteen min-
utes. Despite these changes, Hollestelle was late forty-two times
between May and mid-July of 1995. The Authority, however, did not
respond by discharging Hollestelle. It chose instead to work with him
once again. In July of 1995, when Dr. Holland recommended that
Hollestelle be given forty-five minutes of flex time, the Authority did
more. It extended Hollestelle's starting time from 8:15 A.M. to 9:30
A.M., giving him seventy-five additional minutes to get to work on
time. Yet, this effort failed as well, as Hollestelle was late no fewer
than fifty-five out of sixty-six days following the seventy-five minute
adjustment.5 It follows that Hollestelle was not a "qualified individ-
_________________________________________________________________
4 We note that the Authority was not required to accommodate Holles-
telle before it learned that he was disabled. See Hedberg v. Indiana Bell
Tel. Co., 47 F.3d 928, 932 (7th Cir. 1995). The Authority's voluntary
efforts in this regard, however, are probative of the Authority's goodwill
towards Hollestelle and its desire to keep him as an employee.
5 Hollestelle argues that the Authority should have allowed him the
forty-five minute flex-time period recommended by Dr. Holland. How-
ever, an employee does not have the right to select the accommodation
of his choice. See Gile v. United Airlines, Inc. , 95 F.3d 492, 499 (7th Cir.
1996) (citing Schmidt v. Methodist Hosp., 89 F.3d 342, 344-45 (7th Cir.
1996)); see also Stewart v. Happy Herman's Cheshire Bridge, Inc., 117
F.3d 1278, 1285-86 (11th Cir. 1997); cf. Ansonia Bd. of Educ. v.
Philbrook, 479 U.S. 60, 68-69 (1986) (Title VII religious discrimination
claim). Rather, his employer must make a reasonable accommodation.
See Gile, 95 F.3d at 499. Moreover, an employee bears the burden of

                  7
ual" under the ADA because he was unable to perform the essential
functions of his job even with the Authority's reasonable accommo-
dation. We, therefore, affirm the district court's grant of judgment as
a matter of law as to Hollestelle's claim of discrimination under the
ADA.

III.

Hollestelle also contends that the district court erred by granting
the Authority's motion for judgment as a matter of law on his claim
for retaliatory discharge. We find, even assuming that Hollestelle
established a prima facie case of retaliation, that Hollestelle failed to
show that the Authority's proffered legitimate nondiscriminatory rea-
son for his discharge was pretextual. Accordingly, we affirm the rul-
ing of the district court.

To establish a prima facie case of retaliatory discharge under Title
VII, a plaintiff must prove that he engaged in protected activity, that
the employer took adverse employment action against him, and that
"a causal connection existed between the protected activity and the
adverse action." Williams v. Cerberonics, Inc., 871 F.2d 452, 457 (4th
Cir. 1989). Once the plaintiff establishes a prima facie case, the bur-
den switches to the employer to articulate a legitimate, nondiscrimina-
tory reason for the adverse action. Id. After the employer has done so,
the burden switches back to the plaintiff to prove that the employer's
proffered reason is pretextual. Id.

Even assuming that Hollestelle established a prima facie case of
retaliation, he failed to prove that the Authority's legitimate, nondis-
criminatory reason for its action was pretextual. Hollestelle's evi-
dence of retaliation essentially consists of the fact that the Authority
terminated him after it learned that he had filed a complaint of dis-
crimination. We have held, however, that "`mere knowledge on the
_________________________________________________________________
showing that he could perform the job's essential functions with a rea-
sonable accommodation, Tyndall, 31 F.3d at 213, and there is no reason
to believe that Hollestelle's proposed accommodation would have cured
his tardiness. In fact, Dr. Holland subsequently admitted at trial that he
could not explain why it would have proved successful. J.A. 307.

                     8
part of an employer that an employee . . . has filed a discrimination
charge is not sufficient evidence of retaliation to counter substantial
evidence of legitimate reasons' for adverse personnel action against
that employee." Carter v. Ball, 33 F.3d 450, 460 (4th Cir. 1994)
(quoting Willliams, 871 F.2d at 457). In Carter, we affirmed the dis-
trict court's dismissal of a retaliation claim at the end of the plaintiff's
case where, despite the fact that the plaintiff had established a prima
facie case of retaliation, the evidence indicated that defendant had
"substantial reasons" for termination. Id.

In the instant case, the Authority maintained that it terminated Hol-
lestelle because of his consistent tardiness, and the uncontradicted
evidence proved precisely that. Furthermore, the fact that the Author-
ity made considerable efforts to accommodate Hollestelle even after
it knew Hollestelle had filed a discrimination complaint completely
undercuts Hollestelle's claim. Accordingly, based on the uncontra-
dicted evidence supporting the Authority's proffered nondiscrimina-
tory reason for termination and its efforts to reasonably accommodate
Hollestelle after it learned of Hollestelle's discrimination filing, we
hold that Hollestelle "has not met his ultimate burden of proving retal-
iatory discharge." Id.6
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6 Hollestelle also complains about the district court's exclusion of the
EEOC's findings and a document containing opinions of an examining
physician. We find that the district court properly excluded the evidence.
We also find that the excluded evidence had little or no probative value
and, even if it had been admitted, would not have raised a triable issue
of fact.

Hollestelle complains initially that the district court abused its discre-
tion by excluding from evidence two EEOC determinations and related
documents. Hollestelle argues that these materials were admissible to
show that the Authority had knowledge of Hollestelle's discrimination
filing when it made its decision to discharge him. We need not reach the
issue, however, because our conclusion that Hollestelle failed to show
that the Authority's proffered reason for discharging him was pretextual
assumes that the Authority knew about his charge of discrimination when
it discharged him.

Hollestelle complains secondly that the district court abused its discre-
tion by excluding the report of Dr. Holland. We affirm the decision of
the district court because the report contains more legal than medical

                      9
IV.

For the reasons stated above, the judgment of the district court is
affirmed.

AFFIRMED
_________________________________________________________________
opinions. See Fed. R. Evid. 704 advisory committee notes ("[Rules 701,
702 and 403] stand ready to exclude opinions phrased in terms of inade-
quately explored legal criteria."); Hygh v. Jacobs, 961 F.2d 359, 363-64
(2d Cir. 1992); Phillips v. Calhoun, 956 F.2d 949, 952 (10th Cir. 1992);
Hermitage Indus. v. Schwerman Trucking Co., 814 F. Supp. 484, 485-86
(D.S.C. 1993). The report states that Hollestelle's depression "clearly
represents a substantial impairment in many areas of his daily living, and
is therefore a disability within the meaning of the ADA. The Authority
is therefore obliged, in my opinion, to provide reasonable accommoda-
tion to this employee." J.A. 493. The report continues: "allowing [Holles-
telle] 45 minutes (up to 9:00 A.M.) to commence work, represents a
reasonable accommodation by the Authority." Id.

We note additionally that we fail to see how Hollestelle was harmed
by the decision to exclude the report since Dr. Holland was able to testify
at trial concerning the facts surrounding his examination and the medical
opinions he formed based on that examination.

                    10
