UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JOSEPH H. WALTON,
Plaintiff-Appellant,

v.

CITY OF MANASSAS,
Defendant-Appellee,                                                 No. 97-2702

and

DONALD I. ECHOLS; WADE WHETZEL;
JERI HUGGINS,
Defendants.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Albert V. Bryan, Jr., Senior District Judge.
(CA-97-531-A)

Submitted: July 28, 1998

Decided: August 14, 1998

Before NIEMEYER and HAMILTON, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Robert L. Cunningham, LAW OFFICES OF ROBERT L. CUN-
NINGHAM, White Stone, Virginia, for Appellant. Francis J. Prior,
Jr., SICILIANO, ELLIS, DYER & BOCCAROSSE, Fairfax, Vir-
ginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

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OPINION

PER CURIAM:

Joseph Walton appeals from the district court's grant of summary
judgment in favor of the City of Manassas in Walton's action filed
under the Americans with Disabilities Act of 1990, 42 U.S.C.A.
§§ 12101-12213 (West 1995 & Supp. 1998), and from the district
court's denial of Walton's motion to alter or amend the judgment. We
affirm.

Walton was hired by the City of Manassas as a waterworks opera-
tor in 1986. Manassas considered Walton a good employee until
1992, when his performance began to decline. Walton became unreli-
able and would abandon his job post; his supervisors were forced to
assign him basic chores rather than the duties of a waterworks opera-
tor. Even though Walton's duties were decreased, he became unwill-
ing to perform the simple tasks assigned to him. His behavior became
increasingly bizarre, and he began to speak incessantly of Lorena
Bobbitt. In one incident, Walton became upset when one of his super-
visors suggested that he see a doctor, and he threatened to sue and
then to kill the supervisor. Overall, Walton's supervisors believed that
he presented a potential threat to the safety of himself and the proper
operation of the water plant, which could jeopardize the water supply
for Manassas.

On March 21, 1994, Walton met with Wade Whetzel, the water
plant supervisor, and Don Echols, the water and sewer superintendent.
Echols and Whetzel agreed to let Walton take paid vacation time from
March 21 to March 26. Due to the concern over Walton's behavior

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and his deteriorating job performance, Echols and Whetzel told Wal-
ton that if he wished to retain his position, he should contact Echols
by March 28 with a decision on whether he wished to return to work,
and then report to the Employee Assistance Program (EAP). Rather
than contacting his superiors, on March 28 Walton had a co-worker
deliver a letter to Echols and Whetzel, in which Walton stated that he
refused to attend the EAP.

Walton then instructed a fellow employee to remove all personal
items from his locker at work and take them to Culpeper, where Wal-
ton lived. Walton did not contact his superiors during this time, and
he remained absent from work. On April 1, Echols forwarded Walton
a letter stating that Walton's refusal to communicate with manage-
ment staff, his request to have all his items removed from his work
locker, and his continued absence without approved leave from work
were interpreted as job abandonment. Accordingly, Manassas
accepted these actions as Walton's resignation, effective March 31,
1994.

Walton filed this action under the Americans with Disabilities Act.
Walton contended that he did not in fact suffer from a disability, but
that Manassas regarded him as having a disability, thus bringing him
within the protection of the Act. Walton claimed that Manassas termi-
nated Walton due to this perceived mental disability. The district
court granted Manassas' motion for summary judgment, holding that
Manassas offered a legitimate reason for terminating Walton, miscon-
duct, which Walton failed to show was pretextual. Walton subse-
quently moved to alter or amend the judgment, and the district court
denied the motion. Walton appeals from both orders.

We review the district court's grant of summary judgment de novo,
see Chisolm v. TranSouth Fin. Corp., 95 F.3d 331, 334 (4th Cir.
1996), and the district court's denial of Walton's motion to alter or
amend the judgment under Fed. R. Civ. P. 59(e) for an abuse of dis-
cretion. See Collison v. International Chem. Workers Union, 34 F.3d
233, 236 (4th Cir.1994).

Even assuming Walton could make out a prima facie case of dis-
crimination, he fails to rebut Manassas' legitimate, non-
discriminatory reasons for terminating his employment. Walton

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agreed on March 21 that he would notify Manassas on March 28
whether he agreed to attend EAP and thus retain his position. Rather
than contact Manassas, Walton had an intermediary deliver a letter to
Manassas which stated that he refused to attend EAP. Walton also had
a fellow employee remove all his belongings from his work locker
and take them to Walton's home. Walton remained absent from work
for the next four days without leave and without contacting his superi-
ors. On the fourth day, Manassas determined that Walton had aban-
doned his position, and thus terminated his employment effective
March 31. Walton offers no evidence that Manassas' legitimate, non-
discriminatory reason for terminating him, misconduct relating to his
unexcused absence from work and apparent abandonment of his posi-
tion, was pretextual. See Halperin v. Abacus Technical Corp, 128
F.3d 191, 196 (4th Cir. 1997); Ennis v. National Ass'n of Bus. &
Educ. Radio, Inc., 53 F.3d 55, 58 (4th Cir. 1995). Accordingly, Wal-
ton failed to meet his burden of showing that he was the victim of
intentional discrimination. See Ennis, 53 F.3d at 59; see also
Martinson v. Kinney Shoe Corp., 104 F.3d 683, 686 n.3 (4th Cir.
1997) (noting that employer is free to discharge employee for miscon-
duct even when related to disability).* The district court likewise did
not abuse its discretion in denying Walton's motion to alter or amend
the judgment. See Collison, 34 F.3d at 236; Hutchinson v. Staton, 994
F.2d 1076, 1081-82 (4th Cir. 1993).

We affirm the district court's grant of summary judgment to
Manassas, and affirm the district court's denial of Walton's motion
to alter or amend the judgment. We dispense with oral argument
because the facts and legal contentions are adequately set forth in the
materials before the court and argument would not aid the decisional
process.

AFFIRMED
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*To the extent that Walton contends that requiring him to attend EAP
as a condition of keeping his employment violated the ADA, such condi-
tioning is not itself a violation of the ADA. See Cody v. Cigna
Healthcare, 139 F.3d 595, 598-99 (8th Cir. 1998); Duda v. Board of
Educ., 133 F.3d 1054, 1060 (7th Cir. 1998).

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