UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

FAITH G. WITCHER,
Plaintiff-Appellant,

v.                                                                    No. 96-2053

WACKENHUT SERVICES, INCORPORATED,
Defendant-Appellee.

Appeal from the United States District Court
for the District of South Carolina, at Aiken.
Charles E. Simons, Jr., Senior District Judge.
(CA-94-3430-1-6BC)

Submitted: May 15, 1997

Decided: June 2, 1997

Before RUSSELL, HALL, and HAMILTON, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

James E. Goodman, Norman Lee Smith, PERSONS WITH DIS-
ABILITIES LAW CENTER, P.C., Atlanta, Georgia, for Appellant.
David S. Shankman, Craig L. Berman, ALLEY & ALLEY/FORD &
HARRISON, Tampa, Florida, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

PER CURIAM:

Faith G. Witcher appeals from the district court's order adopting in
part the magistrate judge's report and recommendation and granting
summary judgment to Defendant in Witcher's suit under the Ameri-
cans with Disabilities Act ("ADA"), 42 U.S.C.A. §§ 12101-12213
(West 1995 & Supp. 1997). Witcher asserts that she was a qualified
person with a disability as defined by the ADA. We affirm the judg-
ment of the district court.

Witcher suffered a ruptured disk in her back for which she under-
went surgery in 1989. In September of 1993, Witcher applied for tem-
porary secretarial or clerical work with Mr./Ms. Temps. The agency
found Witcher a temporary assignment with Wackenhut Services, Inc.
On September 21, she began work in the Logistics Department where
she assigned codes to inventory. On October 13, when her services
were no longer required in Logistics, she was offered work in the
Compensation and Benefits Department ("C&B").

Witcher's job assignment in C&B had two components. First, she
was required to file in Jane Wright's office. Second, she was to take
files from Carolyn Meeks' office, condense the files, and put them in
boxes for storage. Combined, both components would take three to
five days.

On October 13, Witcher stood and filed in Wright's office for
approximately five hours causing her considerable back pain. On the
following day, Witcher requested and was given a chair enabling her
to continue Wright's filing, even though she still suffered pain
throughout the day. Sometime during that day, Wackenhut became
aware of Witcher's condition, and after considering alternatives
including letting Witcher work in a vacant office, Wackenhut termi-
nated Witcher at the end of the work day on October 14.

Witcher testified at her deposition that she could not have done the
job in Meeks' office due to the bending and lifting involved. She
stated that the job would cause her considerable pain that she could

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not have tolerated after a while. While Witcher testified that she could
perform Wright's filing with the accommodation of a chair and/or a
desk and that she was willing to work through the pain, she never
asserted that such accommodations would enable her to complete the
more physically demanding filing for Meeks.

The ADA provides: "The term `qualified individual with a disabil-
ity' means an individual with a disability who, with or without rea-
sonable accommodation, can perform the essential functions of the
employment position that such individual holds or desires." 42
U.S.C.A. § 12111(8). Because Witcher failed to show either that her
back condition would permit her to complete the filing for Meeks or
that a reasonable accommodation was possible, we find that she was
not a qualified person with a disability as defined by the ADA. See
Tyndall v. National Educ. Ctrs., 31 F.3d 209, 213 (4th Cir. 1994)
(plaintiff bears burden to establish that she could perform the essential
functions of her job).

For the foregoing reasons, we affirm the order of the district court.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.

AFFIRMED

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