UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

FRANK D. SHIFLETT,
Plaintiff-Appellant,

v.

GE FANUC AUTOMATION
CORPORATION; GE FANUC
                                                                        No. 97-1687
AUTOMATION NORTH AMERICA,
INCORPORATED; DONALD BORWHAT;
LAWRENCE PEARSON; THOMAS
MCGINNIS; KEITH CHAMBERS; SHERON
LAMB,
Defendants-Appellees.

Appeal from the United States District Court
for the Western District of Virginia, at Charlottesville.
James H. Michael, Jr., Senior District Judge.
(CA-95-73-C)

Argued: March 5, 1998

Decided: June 19, 1998

Before MURNAGHAN, Circuit Judge, KEELEY, United States
District Judge for the Northern District of West Virginia, sitting by
designation, and MOON, United States District Judge for the
Western District of Virginia, sitting by designation.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Hope B. Eastman, PALEY, ROTHMAN, GOLDSTEIN,
ROSENBERG & COOPER, CHARTERED, Bethesda, Maryland, for
Appellant. Robert Craig Wood, MCQUIRE, WOODS, BATTLE &
BOOTHE, L.L.P., Charlottesville, Virginia, for Appellees. ON
BRIEF: David M. Rothenstein, Daniel S. Koch, PALEY, ROTH-
MAN, GOLDSTEIN, ROSENBERG & COOPER, CHARTERED,
Bethesda, Maryland, for Appellant. James M. Johnson, MCQUIRE,
WOODS, BATTLE & BOOTHE, L.L.P., Charlottesville, Virginia,
for Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Frank D. Shiflett appeals the district court's grant of summary
judgment in favor of GE Fanuc Automation Corporation, ("Fanuc")
and several individual employees of Fanuc, on his claims pursuant to
the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq.
("ADA"). He argues that the district court erred in finding (1) that the
defendants did not fail to reasonably accommodate his disability;
(2) that the workplace was not intolerably hostile and abusive, and
did not constitute disability based harassment under the ADA;
(3) that there were no issues of material fact as to the misconduct for
which he was terminated; (4) that the reason for the termination was
not pretextual and was not premised on his disability; and (5) that
individual employees are not liable for violations of the ADA.

We agree that there are no genuine issues of material fact and
affirm the judgment of the district court.

I.

Beginning in 1980 and continuing until his termination in 1994,
Shiflett was employed at Fanuc as a printer and, later, as a computer
operator. He has suffered from a severe sensorineural hearing loss in

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both ears since childhood, and wore hearing aids during the entire
period of his employment. Fanuc knew of this disability since at least
1984, when Shiflett's performance review included the statement that
"Frankie is very willing to assist all users in solving their problems,
though he is somewhat less effective with his hearing impairment."
Shiflett, however, did not self-identify as having a disability until
March 12, 1991.

In his work in the print shop and as a computer operator, Shiflett
worked for several years without problems. He received good perfor-
mance evaluations, and had limited interaction with others. Then, in
1988, he was moved from the first shift to the second shift to learn
a different system, a move he believed would be temporary. Because
of training needs and the needs of the business, however, all of the
first shift positions were filled, leaving no openings except in Product
Development, an opportunity that Shiflett declined. The employment
relationship deteriorated after that, with Shiflett believing that Fanuc
had denied him the first shift position because of his hearing loss. He
also believed that he had not been given the option of using the com-
pany's appeals process.

On April 27, 1990, Fanuc warned Shiflett about actions described
as disorderly conduct and insubordination. He was told that any recur-
rence of the use of demeaning language, yelling and physically intim-
idating a supervisor, would result in immediate suspension, even
discharge. Shortly afterward, Shiflett received a performance evalua-
tion which was satisfactory, but later that summer he was suspended
for a day for inappropriate behavior with female colleagues and sev-
eral incidents of working unapproved overtime. He was warned that
recurrence of either problem would result in termination.

In the summer of 1992, Shiflett was given an unsatisfactory perfor-
mance rating, and told that he needed to correct his attitude, behavior,
professionalism, and willingness to follow directions. He was put on
90-day performance reviews and reassigned temporarily to first shift.

During all of this time, Shiflett was working in the computer room,
which housed four printers and was very noisy. These conditions
made it difficult for him to hear the telephone ring and to answer
users' questions over the telephone. In spite of this, by January, 1993,

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he had improved his performance to satisfactory in many areas; by
April, 1993, he had improved to satisfactory in all areas.

On March 1, 1994, however, Shiflett approached his supervisor,
Sheron Lamb, about a problem with his hourly schedule and pay. Ms.
Lamb states that Shiflett's behavior on this occasion was "abusive,
intimidating, threatening and generally insubordinate." Consequently,
he was suspended on March 2, and, after investigation, terminated on
March 8, 1994.

Shiflett then brought suit against Fanuc and several of its individual
employees under the Americans with Disabilities Act as well as sev-
eral state causes of action. His complaint sought equitable and mone-
tary relief to redress unlawful harassment and other employment
discrimination in the workplace based on his disability. Specifically,
Shiflett alleged that the defendants (1) subjected him to a hostile
environment on the basis of his disability; (2) failed to make reason-
able accommodation for his disability; (3) adversely limited and clas-
sified him on the basis of his disability; and (4) terminated his
employment for alleged "misconduct" that resulted directly from its
failure to accommodate his disability in violation of the ADA.

Early on, the district court affirmed in part the Magistrate Judge's
Recommended Disposition, dismissing certain of the state law claims,
including wrongful termination, intentional infliction of emotional
distress and breach of contract, and dismissing Shiflett's ADA claims
against the individual defendants. Shiflett then pursued his remaining
claims under the ADA against the corporate defendant, and also liti-
gated his claim for negligent infliction of emotional distress against
all defendants.

Following discovery, the district court affirmed the Magistrate
Judge's Recommended Disposition and granted summary judgment
on the remaining claims.

II.

Summary judgment should be granted if there are no genuine dis-
putes of material fact and the moving party is entitled to judgment as

                    4
a matter of law. Fed.R.Civ.P. 56. This Court reviews the district
court's grant of summary judgment de novo, drawing reasonable
inferences and taking all evidence in the light most favorable to Shi-
flett. Porter v. U.S. Alumoweld Co., 125 F.3d 243 (4th Cir. 1997). The
party bearing the burden of proof on a specific issue must provide
"significant probative evidence tending to support the complaint" or
provide "specific facts showing that there is a genuine issue for trial."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

III.

A. Failure to Accommodate

Shiflett asserts that he sought accommodations for his disability,
including a louder telephone ringer and adequate telephone amplifier
for the printer room. He also requested that each person should get his
attention before speaking, and speak slowly and that each person
should tell him when he was speaking too loudly. He acknowledges
that an amplifier was provided, although he now claims it was not
sufficient, but he asserts that none of the other accommodations were
provided.

In his deposition, Shiflett testified that, when he first was hired at
Fanuc, he told individuals named Thurston and Lotts that they would
need to get his attention when they spoke to him, but since he worked
"pretty much" by himself on the press and bindery, there was no prob-
lem. When he was moved to the computer room, he requested a better
telephone amplifier than the one already available. The old one was
cleaned, and Shiflett did not complain again until the litigation.

Indeed, in his self-identification form, in which he asked to be con-
sidered under the affirmative action program for the handicapped, he
answered the request for suggestions for accommodations as follows:
"I use a telephone with an amplifier on it to help understand calls bet-
ter, especially in a noisy area such as the computer area. I wear a
hearing aid to correct my hearing loss." In his affidavit supporting his
EEOC complaint, he stated that he made no other requests for accom-
modation, and he confirmed that fact in his deposition.

                    5
Shiflett did not self-identify as disabled until March, 1991. Prior to
that date, the company knew that he wore a hearing aid, but had no
duty to inquire further after Shiflett had declined to go to the Health
Center to participate in the interactive process of identifying reason-
able accommodations. Further inquiry would have come dangerously
close to violating the ADA, which directs that an employer "shall not
make inquiries of an employee as to whether ... an employee is an
individual with a disability, unless such examination or inquiry is
shown to be job related and consistent with business necessity," 42
U.S.C. § 12112(d)(4)(a).

Where the employee is performing the job satisfactorily, as was
Shiflett during most of his employment, and where the employee will
not acknowledge the need for or request an accommodation, or let the
employer know that an accommodation is insufficient, the employer
cannot be required to guess or read the employee's mind. As the dis-
trict court noted, "Defendants should not suffer ADA liability because
plaintiff was unduly reticent in communicating his problem, however
`natural' his timidity might be." This record reflects that Shiflett was
neither reticent nor timid about other issues with his employer and
certainly knew how to complain. The employer is entitled to notice
before becoming liable for failure to accommodate. See 29 C.F.R.
App. § 16309 ("[I]t is the responsibility of the individual with a dis-
ability to inform the employer that an accommodation is needed.").

B. Harassment and Hostile Workplace

To make out a claim of disability harassment, Shiflett must show
that the acts of Fanuc's employees were severe and pervasive enough
to create a hostile working environment, and that some basis exists
to impute liability to the employer. See Amirmokri v. Baltimore Gas
and Electric Co., 60 F.3d 1126, 1130 (4th Cir. 1995) (discussing
national origin harassment); Paroline v. Unisys Corp., 879 F.2d 100,
105 (4th Cir. 1989), vacated in part on other grounds, 900 F.2d 27
(4th Cir. 1990) (en banc) (sexual harassment); Dwyer v. Smith, 867
F.2d 184, 187 (4th Cir. 1989) (sexual harassment). Although the ques-
tion whether harassment is sufficiently severe or pervasive is quint-
essentially a question of fact, Beardsley v. Webb, 30 F.3d 524, 530
(4th Cir. 1994), where the conduct is neither sufficiently severe nor
pervasive to create an environment that a reasonable person would

                    6
find hostile or abusive, summary judgment is appropriate. See
Hopkins v. Baltimore Gas and Electric Co., 77 F.3d 745, 753 (4th Cir.
1996).

Shiflett complains that Sheron Lamb, his immediate supervisor in
the computer room, often made fun of his hearing loss by saying:
"You're not paying attention to me; you didn't hear what I said;" "Pay
attention;" "Didn't you hear the phone ring?" "Is your hearing aid
turned up?" "Do you need a new battery?""Why do you want to go
to meetings, you can't hear anyway?" He asserts Lamb made these
statements in a mean way, and accompanied them by stomping her
feet and making ugly faces.

The record is clear that Shiflett was having difficulty with his job
during the period after he was denied a return to first shift, and would
not listen to instruction, would not take the time to understand, would
not act as a team member and would not trouble shoot with the users.
All of these were tasks he was capable of doing, and Ms. Lamb's
comments were those of a supervisor trying to work with a recalci-
trant employee. To be sure, some remarks may have been insensitive,
particularly the remark about the meetings, but they were not so per-
vasive or severe and mean that a reasonable person would find the
workplace abusive. In fact, Shiflett could not remember a single inci-
dent of harassment after March, 1993, when his performance evalua-
tion had improved. Moreover, similar remarks had to be directed at
Shiflett by the attorney and the court reporter during his deposition,
when he was not listening or waiting for the whole question, or was
talking too fast to be understood. At best, as the district court pointed
out, the plaintiff established "conduct that sporadically wounds or
offends" but does not affect performance, citing Henry v. Guest Ser-
vices, Inc., 902 F.Supp. 245, 252 n.9 (D.D.C. 1995), quoting
DeAngelis v. El Paso Mun. Police Officers Ass'n, 51 F.3d 591, 593
(5th Cir.), cert. denied, 516 U.S. 974 (1995).

C. Termination

The plaintiff argues that the district court erred in applying the
proof scheme of Ennis v. National Assoc. of Business and Educa-
tional Radio, Inc., 53 F.3d 55, 58 (4th Cir. 1995), which is patterned
on the burden shifting framework established by McDonnell Douglas

                     7
Corp. v. Green, 411 U.S. 792, 802 (1973). He insists that the Court
should utilize the direct proof paradigm of Tyndall v. National Educa-
tion Centers, 31 F.3d 209, 212 (4th Cir. 1995), under which the plain-
tiff must establish 1) that he has a disability; 2) that he was qualified
for the job; and 3) that his termination constituted discrimination
based on disability.

The plaintiff in Tyndall had been fired for missing too much work
due to her own disability and the disability of her son. Thus, the rea-
son for the discharge was directly related to the disability. Here, how-
ever, as in Ennis, the employer has offered a reason for the
termination unrelated to the disability, i.e., misconduct. Ennis held
that

          in a typical discharge case brought under the ADA, a plain-
          tiff must prove by a preponderance of the evidence that
          (1) she was in the protected class; (2) she was discharged;
          (3) at the time of the discharge, she was performing her job
          at a level that met her employer's legitimate expectations;
          and (4) her discharge occurred under circumstances that
          raise a reasonable inference of unlawful discrimination.

53 F.3d at 58.

The district court found that Shiflett is in the protected class, as a
disabled person under the ADA, and that he was discharged, thus
establishing the first two prongs of the Ennis test. The district court
then held that Shiflett was not meeting the reasonable expectations of
the employer in the performance of his job, because of the docu-
mented incidents of misconduct. Except for the March 1, 1994 inci-
dent, however, these incidents had all occurred in 1990 and 1991,
after which Shiflett was given satisfactory performance ratings, and
he had been disciplined or warned for these incidents, but not dis-
charged. Nevertheless, this Court affirms the district court's grant of
summary judgment because the plaintiff cannot establish the fourth
prong of Ennis, that is, that his discharge occurred under circum-
stances that raise a reasonable inference of unlawful discrimination.

Shiflett was discharged because, on March 1, 1994, he went into
his supervisor's office, upset because she would not approve one hour

                     8
of overtime pay. While there, he loudly requested that she explain her
denial, would not allow her to speak and approached her too closely.
Fanuc suspended Shiflett the next day, and its Manager of Human
Resources, Marybeth Sullivan-Rose, started an investigation.

The actual details of the confrontation are disputed, a classic "he
said . . . she said" situation. Ms. Sullivan-Rose reported that the super-
visor, Ms. Lamb, described Shiflett as "yelling, screaming, very irra-
tional, very angry, over talking," positioning himself to block her only
exit, pointing his finger at her, coming too close to her, not permitting
her to speak, and putting her in fear of being hit. According to other
witnesses, she was crying after the incident, and crying and upset the
next day. Shiflett denied that he acted like this and argues that, if he
was loud and pointed his finger, it was a result of his deafness, in that
he cannot hear his own voice to modulate it and uses his hands for
language.

An employer is free to discharge a disabled person for misconduct,
even if the misconduct is related to his disability. Martinson v. Kinney
Shoe Corp., 104 F.3d 683, 686 n.3 (4th Cir. 1997); Little v. F.B.I., 1
F.3d 255 (4th Cir. 1993). Shiflett had been given several opportunities
to correct inappropriate and insubordinate behavior, and had been
warned that further similar conduct would result in termination. The
actual decision to terminate him for the March 1 conduct was pre-
ceded by a two week investigation, including interviews of numerous
witnesses, by a human resources person with little prior knowledge
of Shiflett, and who was not in his operational line of authority. In
addition, there is no evidence that Sheron Lamb would have con-
cocted the story or exaggerated it, given the fact that she protected
and assisted Shiflett during 1991-92, when she had worked with him
to bring his performance back to his previously high levels.

In Ennis, the Fourth Circuit held that the plaintiff must present
affirmative evidence that disability was a determining factor in the
employer's decision. 53 F.3d at 59. Shiflett has presented only specu-
lation, and has not met his burden of rebutting the employer's stated,
legitimate reason for termination. See St. Mary's Honor Center v.
Hicks, 509 U.S. 502 (1993).

                     9
D. Individual Liability

Shiflett also sued Donald Borwhat, Lawrence Pearson, Thomas
McGinnis, Keith Chambers and Sheron Lamb, each of whom was in
a supervisory position or involved in employee relations. He argues
that, acting within the scope of their employment, they violated the
ADA. The district court dismissed these individuals, declining to
extend ADA liability to individuals, citing Mason v. Stallings, 82 F.3d
1007, 1009 (11th Cir. 1996), and U.S.E.E.O.C. v. AIC Security Inves-
tigations Ltd., 55 F.3d 1276, 1279-82 (7th Cir. 1995). Both of these
cases held that the ADA only provides for employer liability. Because
we have found that no violation of the ADA occurred, the individual
defendants cannot be liable, and dismissal was appropriate.

IV.

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

AFFIRMED.

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