UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

THOMAS E. LUSBY,
Plaintiff-Appellant,

v.

METROPOLITAN WASHINGTON AIRPORTS
                                                                  No. 98-2162
AUTHORITY,
Defendant-Appellee.

UNITED STATES OF AMERICA,
Amicus Curiae.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Albert V. Bryan Jr., Senior District Judge.
(CA-97-1643-A)

Argued: May 5, 1999

Decided: August 9, 1999

Before NIEMEYER, MICHAEL, and TRAXLER,
Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Michael Gerard Kane, CASHDAN & GOLDEN, Wash-
ington, D.C., for Appellant. Morris Kletzkin, FRIEDLANDER, MIS-
LER, FRIEDLANDER, SLOAN & HERZ, Washington, D.C., for
Appellee. ON BRIEF: Vicki G. Golden, CASHDAN & GOLDEN,
Washington, D.C., for Appellant. Jerome Ostrov, Mark D. Crawford,
FRIEDLANDER, MISLER, FRIEDLANDER, SLOAN & HERZ,
Washington, D.C.; Edward S. Faggen, Joseph E. Kalet, METROPOL-
ITAN WASHINGTON AIRPORTS AUTHORITY, Alexandria, Vir-
ginia, for Appellee. Bill Lann Lee, Acting Assistant Attorney
General, Jessica Dunsay Silver, Rebecca K. Troth, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Amicus
Curiae.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Thomas E. Lusby ("Lusby") appeals from the district court's order
granting summary judgment in favor of the Metropolitan Washington
Airports Authority ("Airports Authority") on Lusby's claims under
the Americans with Disabilities Act ("ADA" or"Act"), 42 U.S.C.A.
§ 12101-12213 (West 1995 & Supp. 1998). For the reasons set forth
below, we affirm.

I.

Lusby worked for the Airports Authority for nearly a decade before
his discharge on July 17, 1995. At all times relevant to this action, he
held the position of Firefighter/Assistant Fire Marshal. The Airports
Authority supplied a written job description for this position:

          The incumbent's primary duty is to respond as an airport
          firefighter to all emergencies. The incumbent's daily routine
          is to conduct comprehensive fire safety inspections for all
          [Airports Authority] property, under the guidance of the Fire
          Marshal.

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(Emphasis added).

Because Lusby was always obligated to be on standby and avail-
able to respond to airport emergencies, the Airports Authority took
reasonable precautions to minimize the possibility that he might be
injured in the course of these duties. For instance, at the Airports
Authority's insistence, Lusby was required to carry protective gear in
his vehicle to be utilized during his response to crisis situations.
Moreover, Lusby was trained extensively with respect to:

          [A]ll aspects of firefighting, safety and rescue, including
          live firefighting, aircraft rescue firefighting, emergency
          medical training, ladder training, medivac operations . . .
          self-contained breathing apparatus ("SCBA"), water rescue,
          disaster and triage procedures, operation of emergency and
          rescue vehicles, equipment and apparatus, and physical fit-
          ness and other training.

The Airports Authority maintained Performance Evaluation and
Rating Forms assessing Lusby's effectiveness during training, and
also assessing Lusby's competence in responding to actual emergen-
cies. Incidences on which to evaluate Lusby in this regard were not
lacking. Indeed, Lusby responded to 32 documented emergencies dur-
ing his last three years of employment alone. In each instance, Lusby
responded in a standby capacity and was expected to"respond to fires
while on-duty and carry out firefighting tasks/duties if assigned to do
so. . . ." Thus, Lusby's required participation in emergency responses
potentially exposed him to intense physical exertion, environmental
extremes, and emotional stress.

In April 1995, Lusby was diagnosed as having severe coronary
artery disease.1 His treating cardiologist, Dr. Mahesh P. Shah ("Dr.
Shah"), remarked upon the threatening nature of this disease:

         Coronary artery disease is the number one disease affecting
         people in the industrialized nations. In the U.S., it happens
         to be the number one killer.
_________________________________________________________________
1 Lusby also suffers from high blood pressure, hypolipidemia, obesity,
and diabetes.

                    3
...

          What happens is those that are lucky get warnings in terms
          of chest pain, known as angina, and people do come down
          with [sic] very first chest pain with a heart attack, without
          any prior warnings, and also it is equally common that that
          very first pain, heart attack, people do drop dead, and as a
          matter of fact, despite all the knowledge, all the advances,
          intervention, one person still dies every minute of a sudden
          death.

Dr. Shah also observed specifically of Lusby that"[b]ecause of his
medical condition, Mr. Lusby is at risk of suffering an acute myocar-
dial infarction (heart attack) and sudden death. As a result, I have
advised Mr. Lusby to avoid extreme physical exertion as well as
extreme environmental conditions." Even Lusby himself candidly
stated to the Airports Authority that "I am medically disqualified for
my current position as a Firefighter/Assistant Fire Marshal with the
Authority."

Notwithstanding his medical condition, Lusby did not intend to
relinquish his employment with the Airports Authority. After the Air-
ports Authority notified him of its intention to end his employment,
Lusby requested in writing that the Airports Authority "reasonably
accommodate" him "by restructuring [his] current job to accommo-
date [his] physical limitations, modifying his work schedule, and/or
. . . reassigning [him] to another position within the Authority."
Because of his poor health, the Airports Authority denied Lusby's
accommodation request. At that time, Fire Chief Donny Cherry, writ-
ing for the Airports Authority, stated as follows:

          In a public safety environment, the criticality of certain
          tasks, not how often you perform them, determines whether
          they are essential to a position. [Y]our ADA accommoda-
          tion request asks that we eliminate many of the essential
          functions related to your position as Firefighter/Assistant
          Fire Marshal. To accommodate your request would drasti-
          cally alter the duties of your position to the point[that] we
          would essentially be creating a new job for you. Under the

                    4
          ADA, employers are not required to create new jobs as a
          form of reasonable accommodation.

Thereafter, Lusby filed for disability retirement, which the Airports
Authority approved.2

Lusby then filed this action alleging discrimination under the ADA.3
The district court granted summary judgment in favor of the Airports
Authority, however, finding that Lusby was not a"qualified individ-
ual with a disability" under the ADA. Lusby appeals.

II.

The ADA prohibits discrimination against a "qualified individual
with a disability . . . in regard to application procedures, the hiring,
advancement, or discharge of employees, employee compensation,
job training, and other terms, conditions, and privileges of employ-
ment." 42 U.S.C.A. § 12112(a). The Act defines a "qualified individ-
ual with a disability" as "an individual with a disability who, with or
without reasonable accommodation, can perform the essential func-
tions of the employment position that such individual holds or
desires." 42 U.S.C.A. § 12111(8). "Accordingly, to determine whether
[Lusby] was qualified for the [Firefighter/Assistant Fire Marshal]
position, we must decide (1) whether [ ]he could perform the essential
_________________________________________________________________
2 After learning of Lusby's heart condition, the Airports Authority did
offer him a temporary dispatcher position. Lusby declined this position.
Because Lusby has not raised the issue of reassignment on appeal, we
address only his arguments regarding his fitness to perform the essential
functions of the Firefighter/Assistant Fire Marshal position.
3 Lusby also filed for disability with the Virginia Workers' Compensa-
tion Commission and the United States Civil Service Commission, alleg-
ing that he contracted coronary artery disease due to his work for the
Airports Authority. According to the Airports Authority, Lusby is estop-
ped -- in his ADA claim -- from asserting his ability to perform the
essential functions of the Firefighter/Assistant Fire Marshal position
since he denied the ability to perform them in his claim for workers'
compensation. Because we find that Lusby was not a"qualified individ-
ual with a disability" under the ADA, the Airports Authority prevails for
that reason, and we need not address their argument on judicial estoppel.

                    5
functions of the job, i.e., functions that bear more than a marginal
relationship to the job at issue, and (2) if not, whether any reasonable
accommodation by the [Airports Authority] would enable [him] to
perform those functions." Tyndall v. Nat'l Educ. Centers, Inc., 31
F.3d 209, 213 (4th Cir. 1994) (internal quotation marks omitted).
Lusby "bears the burden of demonstrating that[ ]he could perform the
essential functions of [his] job with reasonable accommodation." Id.

A.

We first address Lusby's argument that he could perform the essen-
tial functions of the Firefighter/Assistant Fire Marshal position
despite his disability. According to Lusby, these functions included
"conduct[ing] comprehensive fire safety inspections of [Airports
Authority] facilities to ensure compliance with all applicable regula-
tions and standards . . .[,] identify[ing] violations and recommending
corrective action . . .[,] investigat[ing] causes of fires to determine ori-
gin and responsibility . . .[,] perform[ing] interviews and prepar[ing]
documentation to substantiate the results of [his] investigations."
Lusby contends that he was not required to engage in emergency
response and, therefore, that emergency response was not an essential
function of his position.

In support of his argument, Lusby directs our attention to ADA
regulations providing a list of factors to be considered when determin-
ing which function(s) of a job are essential. The regulations state that
"[e]vidence 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;

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          (v) The terms of a collective bargaining 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).

Lusby maintains that a fair application of these factors to his per-
formance as a Firefighter/Assistant Fire Marshal reveals a genuine
issue of material fact as to whether emergency response was an essen-
tial function of his position. We disagree.

Clearly, in the Airports Authority's judgment, emergency response
was an essential function of the Firefighter/Assistant Fire Marshal
position. Indeed, the Airports Authority's job description for Fire-
fighter/Assistant Fire Marshals provided that "[t]he incumbent's pri-
mary duty is to respond as an airport firefighter to all emergencies.
. . ." Lusby, nevertheless, requests that we disregard the Airports
Authority's description of a Firefighter/Assistant Fire Marshal's "pri-
mary duty" since, according to Lusby, he never actually performed
emergency response duties. However, the record belies Lusby's claim
in this regard.

The Airports Authority cited 32 documented cases in which Lusby
responded to emergency calls during his last three years of service.
And Lusby conceded at deposition that he responded to emergencies
-- including fire emergencies -- while employed as a Fire-
fighter/Assistant Fire Marshal:

          Q. Did you respond to emergencies as the assistant fire
          marshal?

          A. Yes.

          Q, Tell me about the emergencies that you responded to?

          A. I don't recall exact dates.

                     7
          Q. Okay. Did you respond to fire emergencies, sir?

          A. Yes.

          Q. Did you do it more than once?

          A. Yes.

          Q. Did you respond to medical emergencies?

          A. As I was doing my inspections?

          Q. At any time while you were working for the Metropoli-
          tan Washington Airports Authority? --

          A. Yes.

Despite his deposition testimony, Lusby asserts that his presence at
such emergencies was merely happenstance and not the result of any
affirmative duty owed to the Airports Authority. In other words,
Lusby takes the position on appeal that he was not required to be
present at such emergencies, although he was in fact present. But,
during deposition, Lusby admitted to receiving "calls" to respond to
at least several of the emergencies. Thus, Lusby has made conflicting
representations. In his deposition, he refers to a number of "calls" in
which the Airports Authority summoned him to respond to emergen-
cies. On appeal, however, he reverses his ground and alleges that the
Airports Authority never requested that he attend emergencies.

While we note the conflict presented by Lusby's assertions, it is
insufficient to forestall summary judgment. It is well settled that "[a]
genuine issue of material fact is not created where the only issue of
fact is to determine which of the two conflicting versions of the plain-
tiff's testimony is correct." Barwick v. Celotex Corp., 736 F.2d 946,
960 (4th Cir. 1984).

Other evidence also compels the conclusion that emergency
response was an essential function of the Firefighter/Assistant Fire
Marshal position. Foremost is the fact that the Airports Authority rou-

                    8
tinely trained Firefighter/Assistant Fire Marshals (including Lusby) to
perform emergency response. It is undisputed that Lusby was exten-
sively trained to respond to all types of emergencies, including, of
course, fires. We perceive no logical reason why the Airports Author-
ity would have committed the resources to train Lusby in all aspects
of emergency response, unless it expected him to perform in a real
life emergency. Moreover, the fire-retardant clothing, protective hel-
met, and breathing tank which Lusby was required to carry on his
truck at all times -- and which he donned several times in the course
of his duties as a Firefighter/Assistant Fire Marshal -- support the
conclusion that Lusby was expected to engage in potentially life-
threatening activity. Also, the Firefighter/Assistant Fire Marshals
received performance evaluations based on, inter alia, their "re-
spon[se] to all emergencies (i.e. aircraft, structures, medical, fuel
spills, tankers, etc.) and [their] participat[ion] in fire/rescue operations
in full protective clothing." Thus, it is clear that no reasonable fact-
finder could conclude anything other than that Lusby's position
included the essential duty to engage in emergency response when
necessary, which potentially exposed him to intense physical exertion,
environmental extremes, and emotional stress, any of which could
fatally aggravate his heart condition.

We are mindful of Lusby's claim that, even assuming he was
required to respond to emergencies, he was never required to actually
aid in the extinguishing of any fire, or to provide medical assistance,
such as C.P.R., to any victims of emergency conditions. We reject,
however, Lusby's contention that this demonstrates the non-essential
nature of emergency response to the Firefighter/Assistant Fire Mar-
shal position. The fact that Lusby rarely had to actually perform
(beyond responding) in an emergency situation cannot diminish the
importance of his being able to perform should the circumstances so
require. Indeed, "[m]uch like a police officer must have the skill
required to use a firearm yet might never actually draw his or her
weapon," Brickers v. Cleveland Bd. of Educ. , 145 F.3d 846, 850 (6th
Cir. 1998), a Firefighter/Assistant Fire Marshal charged primarily
with responding as an airport firefighter to all emergencies must be
able to perform in such capacity "in any foreseeable circumstance,
regardless of whether that circumstance actually arises," id.

Although it was fortunate that no emergency rose to such a level
that Lusby was forced to perform strenuous tasks in a crisis situation

                     9
during his tenure as a Firefighter/Assistant Fire Marshal, we agree
with the district court's determination that emergency response was
an essential function of Lusby's position and that he might be
required to perform such tasks. The record further reveals that Lusby
suffers from not one but several severe ailments which would prevent
him from performing in emergency circumstances if called upon to do
so. Thus, it is clear that Lusby has failed to establish that he could
perform the essential functions of the Firefighter/Assistant Fire Mar-
shal position.

B.

Although Lusby was unable to perform the essential functions of
the Firefighter/Assistant Fire Marshal position, we must nevertheless
determine whether he could do the job with reasonable accommoda-
tion. See Martinson v. Kinney Shoe Corp., 104 F.3d 683, 687 (4th Cir.
1997). Lusby contends that the Airports Authority could have reason-
ably accommodated him by relieving him of his obligation to perform
emergency response. Because the requested accommodation would
require the Airports Authority to eliminate an essential function of
Lusby's position, we find his claim without merit.

The ADA requires that an employer make a reasonable accommo-
dation to an otherwise qualified employee unless the employer can
show, inter alia, that the accommodation would require elimination
of an essential function. See Myers v. Hose, 50 F.3d 278, 284 (4th Cir.
1995). As previously determined, emergency response is a function
of paramount importance on the Airport Authority's premises. All
personnel must be able to fulfill their responsibilities any time a crisis
develops. This demands readiness at all times by everyone -- a
requirement Lusby simply could not meet.

Because Lusby can no longer perform under stressful circum-
stances, in order to retain Lusby and "[t]o accommodate [him] ade-
quately, [the Airports Authority] would need to hire an additional
person to perform the essential [emergency response] function of [his]
job. The ADA simply does not require an employer to hire an addi-
tional person to perform an essential function of a disabled employ-
ee's position." Martinson, 104 F.3d at 687. Nor does the ADA require
an employer "to restructure the essential functions of a position to fit

                     10
the skills of an individual with a disability who is not otherwise quali-
fied to perform the position," 29 C.F.R. Pt. 1630, App. § 1630.9
(1998), or to "exempt a disabled employee from an essential function
of the job as an accommodation," Brickers, 145 F.3d at 850. Here, as
in Brickers, "[w]hat [Lusby] requests is not an accommodation, but
rather an exemption and, as such, does not survive the threshold
determination of whether [he] is a `qualified individual with a disabil-
ity.'" Id.

III.

In sum, we find that Lusby is not a "qualified individual with a dis-
ability" under the ADA as he cannot perform the essential function
of emergency response with or without reasonable accommodation.
Accordingly, we affirm the district court's order granting summary
judgment in favor of the Airports Authority.

AFFIRMED

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