UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

NAOMI S. ANDREWS,
Plaintiff-Appellant,

v.                                                                   No. 99-1783

COMMONWEALTH OF VIRGINIA,
Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
Richard L. Williams, Senior District Judge.
(CA-98-691)

Argued: June 8, 2000

Decided: September 29, 2000

Before NIEMEYER and KING, Circuit Judges, and
Irene M. KEELEY, United States District Judge
for the Northern District of West Virginia,
sitting by designation.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Kristin Downs Alden, PASSMAN & KAPLAN, P.C.,
Washington, D.C., for Appellant. Martha Murphey Parrish, Assistant
Attorney General, OFFICE OF THE ATTORNEY GENERAL, Rich-
mond, Virginia, for Appellee. ON BRIEF: Joseph V. Kaplan, Lisa
M. Klein, PASSMAN & KAPLAN, P.C., Washington, D.C., for
Appellant.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Naomi Andrews brought this action in the District Court for the
Eastern District of Virginia, alleging that the Virginia Department of
Corrections ("VDOC"), an agency of the Commonwealth of Virginia,
violated the Americans with Disabilities Act ("ADA"), 42 U.S.C.
§ 12112 et seq., because it failed to provide reasonable accommoda-
tion for her disability. The district court granted summary judgment
to the Commonwealth, and we affirm.

I.

After working for two years as a corrections officer with VDOC in
Greensville, Virginia, Andrews voluntarily transferred to its Mecklen-
berg Correctional Center, a maximum security facility, in 1994. She
had become partially fecal incontinent following surgery in Septem-
ber, 1992, but had not had any difficulties while working for VDOC
in Greensville. After her transfer to Mecklenberg, however, she
requested accommodation from VDOC in order to perform her work
as a corrections officer there because she did not want to work the
midnight shift or in posts that did not have immediate access to bath-
room facilities. Accordingly, her requested accommodation was to
work only two of the three shifts and in only a dozen or so of the
more than eighty posts staffed by corrections officers at Mecklenberg.

Meanwhile, in an application for disability benefits, Andrews
attached a sworn statement averring that her incontinence prevented
her from working as a corrections officer because she could not leave
inmates unsupervised while she used the restroom. She also noted that
her disability prevented her from being away from home for extended
periods, going to the grocery store, church, or eating out.

In her complaint, Andrews alleges that VDOC denied her request
for reasonable accommodation for her handicap by placing her on

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administrative leave without pay and discharging her, all in violation
of the ADA.

II.

We review a grant of summary judgment de novo. See, e.g., Coo-
per v. Laboratory Corp. of America Holdings, Inc. , 150 F.3d 376, 379
(4th Cir. 1998). Summary judgment is appropriate if"there is no gen-
uine issue as to any material fact and . . . the moving party is entitled
to judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986) (quoting Fed. R. Civ. P. 56(c)).

A.

The ADA prohibits discrimination against a "qualified individual
with a disability . . . in regard to job application procedures, the hir-
ing, advancement, or discharge of employees . . . and other terms,
conditions, and privileges of employment." 42 U.S.C. § 12112(a). In
order to prove a prima facie case of discrimination, a plaintiff must
establish: (1) she has a "disability"; (2) she is a "qualified individual";
and (3) the employer "discriminated against her because of her dis-
ability." See Martinson v. Kinney Shoe Corp. , 104 F.3d 683, 685 (4th
Cir. 1997); Doe v. University of Maryland Med. Sys. Corp., 50 F.3d
1261, 1264-65 (4th Cir. 1995).

Although the Commonwealth conceded before the trial court that
Andrews has a "disability," it has denied that she is a "qualified indi-
vidual with a disability" "who, with or without reasonable accommo-
dation, can perform the essential functions of the employment
position that such individual holds or desires." 42 U.S.C. § 12111(8).

To determine whether a disabled individual is "qualified," courts
consider: (1) whether the individual can perform the essential func-
tions of the job at issue; and (2) if not, whether any reasonable accom-
modation by the employer would enable the individual to perform
these functions. Tyndall v. National Educ. Ctrs. , 31 F.3d 209, 213
(4th Cir. 1994).

"Essential functions" are defined as "the fundamental job duties of
the employment position the individual with a disability holds or

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desires." 29 C.F.R. § 1630.2(n)(1). Evidence of whether a particular
function is essential includes, but is not limited to:

          (i) The employer's judgment as to which functions are
          essential; (ii) Written job descriptions prepared before
          advertising or interviewing applicants for the job; (iii) The
          amount of time spent on the job performing the function;
          (iv) The consequences of not requiring the incumbent to
          perform the function; (v) The terms of a collective bargain-
          ing agreement; (vi) The work experience of past incumbents
          in the job; and/or (vii) The current work experience of
          incumbents in similar jobs.

29 C.F.R. § 1630.2(n)(3) (1998).

Essential functions of the job of corrections officer at Mecklenberg
include the ability to work "all shifts/or posts" and to supervise
inmates from assigned posts in order to maintain security, custody,
control and safety. The employer states that the"all posts/all shifts"
requirement enhances programmatic and fiscal efficiency and encour-
ages high morale. According to the Commonwealth, Andrews is
unable to meet these job requirements because other corrections offi-
cers and inmates would be placed in danger if she had to leave her
post unmanned to gain immediate access to a restroom as a result of
her disability. Restrooms are not readily accessible from many of the
posts, and Andrews' disability precludes her from using the restroom
only at scheduled break times.

Even if Andrews could not perform the essential functions of the
job without accommodation, she would still be a qualified individual
with a disability if she could perform the essential functions of the job
with a reasonable accommodation. "Reasonable accommodation" is
defined as: "Modifications or adjustments to the work environment,
or to the manner or circumstances under which the position is 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)(1)(ii).

In providing accommodation, an employer has the"ultimate discre-
tion to choose between effective accommodations, and may choose

                     4
the accommodation that is easier for it to provide." 29 C.F.R.
§ 1630.9, Appendix III. The reasonableness of an accommodation is
assessed objectively, and is not viewed subjectively from the concerns
of either party. See Williams v. Channel Master Satellite Sys., Inc.,
101 F.3d 346, 350 (4th Cir. 1996).

Andrews argues that the Commonwealth's proposed accommoda-
tions of her disability were unacceptable. These proposals included
suggestions that she wear Depends undergarments (as worn by other
incontinent employees at VDOC), apply for a non-security position
with VDOC, or work the least demanding security post and shift.
Andrews rejected the first two proposals but attempted the third,
working the midnight shift in an unlocked control room with immedi-
ate access to a restroom. She subsequently rejected this accommoda-
tion on the ground that it exacerbated her medical condition. The
Commonwealth denied Andrews' request to work either the day or
evening shift in any one of the dozen or so corrections officer posts
at the institution that she had selected, on the basis that it could not
provide her with immediate back-up coverage in such posts so she
could use the restroom at a moment's notice.

In assessing whether an offered accommodation is reasonable, the
ADA itself provides guidance, listing illustrative measures such as
modifying work schedules and reassigning disabled employees to
vacant positions. 42 U.S.C. § 12111(9)(B). See also Williams, 101
F.3d at 350. We find that the accommodations offered by the Com-
monwealth were objectively reasonable and, therefore, Andrews'
rejection of the proposed accommodations removes her from the cate-
gory of "qualified individuals with a disability." Accordingly, we
affirm the district court's determination that Andrews was not "other-
wise qualified" to perform the essential functions required of a correc-
tions officer.

B.

Relying on the decision of the United States Supreme Court in
Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795 (1999), Andrews
further argues that the district court erred when it ruled that her appli-
cation for disability retirement disqualifies her as an individual with
a disability under the ADA. In Cleveland, the Supreme Court held

                     5
that a disabled employee was entitled to an opportunity to explain the
discrepancy between her statement that she was totally disabled when
seeking SSI benefits, and her claim that she could perform the essen-
tial functions of her job in pursuing her ADA claim.

In light of Cleveland, we find that the district court's holding that
Andrews was estopped from altering the position she had advanced
under oath in her application for disability benefits was erroneous.
However, we further find that such error was harmless in light of the
district court's additional finding that Andrews was also not "other-
wise qualified" to perform the essential job functions of a corrections
officer.

III.

For the foregoing reasons, the judgment of the district court is

AFFIRMED.

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