                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 14-2079



WHITNEY C. STEPHENSON,

                Plaintiff – Appellant,

           v.

PFIZER, INCORPORATED,

                Defendant – Appellee.

------------------------------

DISABILITY RIGHTS NORTH CAROLINA; NATIONAL DISABILITY RIGHTS
NETWORK; NATIONAL EMPLOYMENT LAWYERS ASSOCIATION; EQUAL
EMPLOYMENT OPPORTUNITY COMMISSION,

                Amici Supporting Appellant,

EQUAL EMPLOYMENT ADVISORY COUNCIL; CHAMBER OF COMMERCE OF THE
UNITED STATES OF AMERICA; NATIONAL FEDERATION OF INDEPENDENT
BUSINESS SMALL BUSINESS LEGAL CENTER,

                Amici Supporting Appellee.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Thomas D. Schroeder,
District Judge. (1:13-cv-00147-TDS-LPA)


Argued:   October 27, 2015                    Decided:   March 2, 2016


Before NIEMEYER, KING, and SHEDD, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.


ARGUED: Robert Mauldin Elliot, ELLIOT MORGAN PARSONAGE, PLLC,
Winston-Salem, North Carolina, for Appellant. Stephanie E. Lewis,
JACKSON LEWIS P.C., Greenville, South Carolina, for Appellee.
Barbara L. Sloan, U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Washington, D.C. for Amicus Curiae.    ON BRIEF: Daniel C. Lyon,
ELLIOT MORGAN PARSONAGE, PLLC, Winston-Salem, North Carolina, for
Appellant. Jonathan A. Roth, JACKSON LEWIS P.C., Greenville, South
Carolina, for Appellee. P. David Lopez, General Counsel, Carolyn
L. Wheeler, Acting Associate General Counsel, Jennifer S.
Goldstein, Acting Assistant General Counsel, U.S. EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION, Washington, D.C., for Amicus U.S. Equal
Employment Opportunity Commission.     Lisa Grafstein, Katherine
Slager, DISABILITY RIGHTS NORTH CAROLINA, Raleigh, North Carolina,
for Amici Disability Rights North Carolina, National Disability
Rights Network and National Employment Lawyers Association.
Kathryn Comerford Todd, Warren Postman, U.S. CHAMBER LITIGATION
CENTER, INC., Washington, D.C., for Amicus Chamber of Commerce of
the United States of America; Rae T. Vann, NORRIS, TYSSE, LAMPLEY
& LAKIS, LLP, Washington, D.C., for Amicus Equal Employment
Advisory Council; Karen R. Harned, Elizabeth Milito, NATIONAL
FEDERATION OF INDEPENDENT BUSINESS SMALL BUSINESS LEGAL CENTER,
Washington, D.C. for Amicus National Federation of Independent
Business Small Business Legal Center.


Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

      Whitney C. Stephenson appeals from the district court’s award

of summary judgment to Pfizer, Incorporated, in an action under

the Americans with Disabilities Act (the “ADA”).               Stephenson —

who worked as a pharmaceutical sales representative for Pfizer

until November 2011, just after an eye disorder rendered her unable

to operate an automobile — contends that the company violated the

ADA   by   summarily    denying   her   request   for   a   driver.   Pfizer

maintains that driving an automobile is an essential function of

Stephenson’s job that she must perform personally, and the court

awarded summary judgment to Pfizer on that basis.               As explained

below, we vacate and remand because summary judgment was not

warranted.



                                        I.

                                        A.

      In February 2013, Stephenson filed her complaint in the Middle

District of North Carolina, alleging that Pfizer had contravened

the ADA by denying a reasonable accommodation that would have

allowed her to return to her position as a pharmaceutical sales

representative.        The summary judgment record — which includes




                                        3
depositions, affidavits, and exhibits — provides the factual

background of this dispute. 1

                                   1.

     Stephenson    began   her   career   as   a   pharmaceutical   sales

representative in 1984, after graduating from Duke University.

For nearly thirty years, Stephenson worked for Pfizer or its

predecessor Warner-Lambert as a sales representative in and around

Winston-Salem, North Carolina.     That position required her to make

in-person presentations about pharmaceutical products, with the

goal of convincing medical professionals — generally primary care

physicians — to prescribe those products for their patients. 2

     Stephenson was, by all accounts, an exemplary salesperson.

Early in her career, in 1985, she was named “Rookie of the Year”

by her employer.    Fifteen years later, Pfizer inducted Stephenson


     1 Because we are reviewing an award of summary judgment to
Pfizer, we are obliged to accept and recite the relevant facts in
the light most favorable to Stephenson. See Rhoads v. FDIC, 257
F.3d 373, 386 (4th Cir. 2001).
     2 Pfizer’s Winston-Salem, North Carolina district, where
Stephenson worked, was bounded by the municipalities of Mount Airy,
Madison, Kernersville, and Mocksville, within Surry, Rockingham,
Forsyth, and Davie counties.       Approximately 2300 physicians
possess active licenses within those counties, and nearly ninety
percent of those doctors are in Forsyth County, predominately in
Winston-Salem.      See    N.C.   Med.   Bd.,   Licensee    Search,
http://www.ncmedboard.org/ (follow “Start Search” hyperlink; then
select “Physician” license type and “Active” license status; then
search by county) (last visited Feb. 16, 2016).      The two major
medical centers in the district — Wake Forest Baptist and Novant
Health Forsyth — are in Winston-Salem, where Stephenson resides.

                                    4
into its “Hall of Fame,” an honor bestowed on fewer than a hundred

sales    representatives      in    the    company’s      history.             Stephenson

subsequently earned recognition in national sales contests and was

named a “Pfizer Master” in honor of her sales and leadership

achievements.

        Stephenson     attributed        her   success    as     a     Pfizer       sales

representative to fastidious preparation for sales meetings.                          She

stayed on top of current medical research and developments in the

pharmaceutical industry.             Using her thorough understanding of

various diseases, her company’s products, and the products of

competitors, Stephenson prepared clear and concise presentations

that    accurately     conveyed      complex     information         to    physicians.

Stephenson’s dedication and know-how earned her credibility with

doctors,    who   in   turn   were    more     likely    to    prescribe         Pfizer’s

products.     As a result, Stephenson generated millions of dollars

in sales each year for Pfizer and consistently ranked as one of

its top sales representatives in North Carolina.

        Because her job required meetings with physicians in their

offices,    Stephenson     did     not    maintain   an       office      at    a   Pfizer

facility.    Instead, Pfizer provided her with a car to travel from

her home in Winston-Salem to sales meetings.                     Stephenson spent

most of the workday in meetings with doctors.                   She usually worked

about ten hours a day, with eight of those away from home and “on



                                           5
the road.”    See J.A. 78. 3   Although Stephenson could not perform

her job without meeting with medical professionals in person, she

understood her job to require travelling, and driving an automobile

was her method of doing so.

     Stephenson’s job description says nothing about driving an

automobile or even possessing a driver’s license. 4          It does,

however,     outline   Stephenson’s    position   with   Pfizer   with

substantial specificity, including the following:

     [Sales representatives] may have a variety of roles,
     such as the responsibility for sales targets and
     physician relationships within a specific geography
     . . . [;] must demonstrate a strong understanding of
     necessary disease states and possess a solid ability to
     communicate necessary technical, scientific, and product
     and disease management information to customers . . .
     [;] [and] will provide the most current information
     pertaining to Pfizer products and their approved
     indications in a manner which will ensure the
     appropriate use of these products and achieve the
     business potential of the territory.

J.A. 521. According to her job description, a sales representative

must possess business savvy, be familiar with sales reporting

software, and have a college degree or equivalent experience in

pharmaceutical sales.     A Pfizer sales representative must also



     3 Citations herein to “J.A. __” refer to the contents of the
Joint Appendix filed by the parties in this appeal.
     4 Stephenson’s direct supervisor, district manager Thomas
Rulon, produced and authenticated Stephenson’s job description.
His affidavit explained that the job description was “accurate as
to the qualifications and essential functions required of sales
representatives” from 2004 through 2011. See J.A. 515.

                                   6
demonstrate     several     “core       competencies”:       good    judgment;

accountability; self-motivation; effective problem solving; other

sales-related     skills    focused      on   building    relationships   with

physicians     and    executing     effective      sales    strategies;    and

commitment to Pfizer’s “culture, values and mission.”               See id. at

521-22.

                                         2.

       In October 2008, Stephenson developed an eye disorder called

Non-Arteritic Anterior Ischemic Optic Neuropathy (“NAION”), which

affects the flow of blood to one or both of the optic nerves.               As

a result, Stephenson lost sixty percent of the vision in her left

eye.      She was nevertheless able to continue working, without

accommodations,      for   the   next    three   years.    By   October   2011,

however, Stephenson developed NAION in her right eye and lost sixty

percent of the vision in that eye.               Due to her combined vision

loss, Stephenson could no longer drive an automobile.                  Shortly

thereafter, in November 2011, Stephenson went on disability leave,

which is her present status with Pfizer.

       On October 27, 2011, Stephenson asked Pfizer to accommodate

her vision problems.        More specifically, she sought a driver to

take her to sales meetings, asked for magnifying software for her

computer, and requested magnifying tools to assist her in reading

documents.    While awaiting Pfizer’s response, Stephenson and her

husband researched and received pricing estimates from potential

                                         7
drivers and shuttle services that could transport her to sales

meetings. Stephenson forwarded some of that information to Pfizer,

but for about a month heard nothing regarding her accommodations

request.

     By a November 28, 2011 email, Pfizer granted Stephenson’s

requests for computer software and reading tools but rejected her

request for a driver.      Pfizer did not suggest that the cost of

hiring or retaining a driver was a factor in the denial, but

maintained that the denial was based on Pfizer’s conclusions that

driving an automobile was an essential function of her sales

position    and   that   hiring    a       driver    would     be    “inherently

unreasonable.” See J.A. 593. Explaining those conclusions, Pfizer

pointed out that it would face “significant increased risk and

liability related to vehicular accidents, workers compensation,

and misappropriation of and/or lost drug samples.”                  Id.

     Over the next several months, Stephenson repeated her request

for a driver in phone calls and emails with Pfizer managers.                     Each

time, she received the same answer:                 driving is an essential

function of her sales position and providing a driver for her would

be an unreasonable accommodation.             Revealingly, Pfizer’s North

Carolina    regional   business   director,        Thomas    Salamone,        advised

Stephenson in early 2012 that Pfizer was concerned about “setting

precedent in case a future non-performing employee were to ask for

something    similar,”   explaining,        “Not    everyone    is        a   Whitney

                                       8
Stephenson.” See J.A. 481. Instead of discussing an accommodation

that could get Stephenson back to work meeting with doctors, Pfizer

directed her to other positions within the company that did not

require travelling.            Stephenson declined to pursue any other

positions, however, believing that her skills were best suited to

the sales representative job in which she had excelled for decades.

       On April 25, 2012, Stephenson filed a charge of disability

discrimination with the Equal Employment Opportunity Commission

(the “EEOC”). In November 2012, the EEOC issued a notice informing

Stephenson of her right to sue.             These court proceedings ensued.

                                          B.

       By memorandum opinion and order of September 8, 2014, the

district court awarded summary judgment to Pfizer.                   See Stephenson

v.    Pfizer,    Inc.,    49   F.   Supp.      3d    434   (M.D.N.C.    2014)    (the

“Opinion”).      The Opinion concluded that the essential functions of

Stephenson’s sales representative position with Pfizer were not

genuinely in dispute and that driving an automobile was essential

to her job.       The bases for those conclusions included:                  Pfizer’s

assertion that driving is essential; Stephenson’s statement that

she   spent     “the   bulk”   of   her   day       travelling     between   doctors’

offices; Stephenson’s acknowledgement that she could not perform

her job unless she was able to travel to doctors’ offices; and

Pfizer’s      statement    that     all       of    its    North    Carolina    sales

representatives drove themselves.                  See id. at 440.      The Opinion

                                          9
identified a number of statutory and regulatory factors that guide

an essential-function inquiry and concluded that the balance of

those factors favored Pfizer’s argument that driving was essential

to Stephenson’s position.

     Notably, the Opinion recited that “[t]here appears to be a

genuine dispute as to whether Pfizer’s posted job descriptions for

sales representative positions explicitly require a job candidate

to be able to drive.”     Stephenson, 49 F. Supp. 3d at 440.        The

Opinion did not, however, mention Stephenson’s job description,

which says nothing about driving. 5        In any event, the Opinion

discounted the dispute, reasoning that “the absence of a purported

essential   function   from   a   posted   job   description   is   not

dispositive.”   See id.

     The Opinion also explained that the ADA does not require an

employer to reassign, reallocate, or adjust essential functions.

As a result, the Opinion concluded that Stephenson’s request for



     5  Apart from Stephenson’s job description, the discovery
process revealed several job postings for sales positions at
Pfizer.    At least five job postings in 2014 for Pfizer sales
positions say nothing about driving or possessing a driver’s
license. In contrast, two other 2014 postings for Pfizer sales
positions include requirements for job applicants to “have a valid
US driver’s license and a driving record in compliance with company
standards.” See J.A. 493, 496. Pfizer also relied on an undated
document titled “Essential job functions for a Pfizer Professional
Healthcare Representative.”    That document states that a sales
representative should “be able to safely operate a motor vehicle
in accordance with company policy and applicable driving rules and
regulations.” See id. at 454.

                                  10
a driver was unreasonable as a matter of law, and that the only

accommodation Stephenson could seek from Pfizer was reassignment

to a different position.      Because Stephenson had not identified

any vacant positions she was willing to accept, she had failed,

according to the Opinion, to show that Pfizer had contravened the

ADA.    The district court thus awarded summary judgment to Pfizer.

       Stephenson   timely   noted    this   appeal,   and   we   possess

jurisdiction pursuant to 28 U.S.C. § 1291.




                                     11
                                          II.

       We    review   de   novo    a    district       court’s   award       of   summary

judgment, viewing the evidence and the reasonable inferences drawn

therefrom in the light most favorable to the nonmoving party.                        See

Wilson v. Dollar Gen. Corp., 717 F.3d 337, 342 (4th Cir. 2013).

Summary judgment is not appropriate unless there is no genuine

dispute of material fact, such that the moving party is entitled

to judgment as a matter of law.                See Fed. R. Civ. P. 56(a).



                                          III.

                                              A.

                                              1.

       The ADA bars an employer from discriminating “against a

qualified individual on the basis of disability.”                      See 42 U.S.C.

§ 12112(a).        Such discrimination can occur when an employer fails

to accommodate the known disability of a qualified employee.                         See

id. § 12112(b)(5).         In order for an employee to be a “qualified

individual” under the ADA, she must be able to “perform the

essential functions of the employment position,” either “with or

without reasonable accommodation.”                  Id. § 12111(8).      A reasonable

accommodation,        in   turn,   “is        one    that   ‘enables     a    qualified

individual with a disability to perform the essential functions of

a position.’”         Jacobs v. N.C. Admin. Office of the Courts, 780

F.3d        562,    580    (4th        Cir.        2015)    (quoting     29       C.F.R.

                                              12
§ 1630.2(o)(1)(ii)).        Under the ADA, an employer has “a good-faith

duty to engage with [its employee] in an interactive process to

identify    a    reasonable    accommodation.”       Id.   at   581    (internal

quotation marks omitted).

     Crucially, the ADA does not require an employer to reassign

any of the essential functions of a disabled employee, nor does it

require an employer to hire additional employees to perform an

essential function.         See Martinson v. Kinney Shoe Corp., 104 F.3d

683, 687 (4th Cir. 1997).           Rather, the employer must accommodate

a disabled employee only when an accommodation “would enable the

employee    to    perform     all   of   the   essential   functions     of   her

position.”       Jacobs, 780 F.3d at 581.         Such an accommodation can

include    job    restructuring,     modifications    to   a    work   schedule,

reassignment to a different position, the use or modification of

equipment that enables the individual to perform her job, or even

“the provision of qualified readers or interpreters.”                    See 42

U.S.C. § 12111(9)(B).

     We have construed the ADA to require a plaintiff pursuing a

failure-to-accommodate claim to satisfy four elements:                 (1) that

she had a disability within the meaning of the statute; (2) that

her employer had notice of the disability; (3) that she could

perform the essential functions of her job with a reasonable

accommodation; and (4) that her employer declined to make such an

accommodation.      See Wilson v. Dollar Gen. Corp., 717 F.3d 337, 345

                                         13
(4th Cir. 2013).        If the plaintiff proves the elements of her

failure-to-accommodate claim, the employer can yet avoid liability

by showing “that the proposed accommodation will cause undue

hardship     in   the   particular     circumstances.”          Reyazuddin       v.

Montgomery Cty., 789 F.3d 407, 414 (4th Cir. 2015) (internal

quotation marks omitted).

                                       2.

     The third element of a failure-to-accommodate claim requires,

in part, an inquiry into the essential functions of the relevant

position.    In the context of the ADA, “[n]ot all job requirements

or functions are essential.”           Jacobs 780 F.3d at 579.           Instead,

the functions of a job that are essential include only those “that

bear more than a marginal relationship to the job at issue.”

Tyndall v. Nat’l Educ. Ctrs., Inc. of Cal., 31 F.3d 209, 213 (4th

Cir. 1994) (internal quotation marks omitted).                 Identifying the

essential functions of a job requires a factual inquiry that is

guided by several statutory and regulatory factors.                   See Jacobs,

780 F.3d at 579.

     The    ADA   identifies     two    factors       that   inform    whether    a

particular    function   is    essential    to    a    position.      First,   the

employer’s judgment of the essential functions must be considered.

See 42 U.S.C. § 12111(8).        Second, if a written job description

has been prepared ahead of advertising or interviewing candidates



                                       14
for a position, that description “shall be considered evidence of

the essential functions of the job.”         See id. 6

     The applicable regulations provide additional guidance on an

essential-function inquiry.           First, the regulations define the

essential     functions   as   “the    fundamental   job   duties   of   the

employment position the individual with a disability holds or

desires,” excluding “the marginal functions of the position.”            See

29 C.F.R. § 1630.2(n)(1).      Second, the regulations identify seven

factors that are “evidence of whether a particular function is

essential”:

     •      “the employer’s judgment as to which functions are
            essential”;

     •      “written   job      descriptions  prepared   before
            advertising or     interviewing applicants for the
            job”;

     •      “the amount of time spent on the job performing the
            function”;

     •      “the consequences of not requiring the incumbent to
            perform the function”;



     6 In pertinent part, the applicable ADA provision concerning
the employer’s judgment and the job description specifies that

     consideration shall be given to the employer’s judgment
     as to what functions of a job are essential, and if an
     employer has prepared a written description before
     advertising or interviewing applicants for the job, this
     description shall be considered evidence of the
     essential functions of the job.

See 42 U.S.C. § 12111(8).



                                       15
     •       “the terms of a collective bargaining agreement”;

     •       “the work experience of past incumbents in the
             job”;

     •       “the current work     experience     of    incumbents     in
             similar jobs.”

See id. § 1630.2(n)(3)(i)-(vii). 7        None of those seven factors is

dispositive, and not all of them will be relevant in every case.

See, e.g., Jacobs, 780 F.3d at 579 (considering some but not all

regulatory     factors);     Martinson,    104   F.3d     at    687    (same).

Furthermore, the list of factors is not exhaustive. See 29 C.F.R.

§ 1630.2(n)(2)(3) (explaining that proof of essential functions

includes,    “but   is   not   limited    to,”   evidence      identified   by

regulatory factors).       Thus, for example, a written job description

prepared after advertising or interviewing applicants for the job

could be relevant evidence of whether a particular function is

essential.     See Basith v. Cook Cty., 241 F.3d 919, 928 (7th Cir.




     7 The regulations also provide three examples of situations
where a function can be essential:

     •      the job      exists   specifically     to    perform      the
            function;

     •      the small size of the workforce requires                  all
            employees to be able to perform the function;

     •      the employee is hired for her expertise                    in
            performing the highly specialized function.

See 29 C.F.R. § 1630.2(n)(2)(i)-(iii).

                                    16
2001) (using job description created after hiring as evidence of

essential functions).

                                      B.

       With respect to the third and fourth elements of Stephenson’s

failure-to-accommodate claim — whether she could perform her

position’s essential functions with a reasonable accommodation and

whether Pfizer declined to make such an accommodation — the

parties dispute whether the ability to drive an automobile is an

essential function of Stephenson’s sales position with Pfizer.

Pfizer    contends   that   driving   is   essential,   while   Stephenson

maintains that travelling — not driving — is the function at

issue.     Resolving that dispute is critical to Stephenson’s ADA

claim because, under the statute, an employer must accommodate

only an employee who is “qualified,” that is, able to perform her

position’s essential functions with or without an accommodation.

See 42 U.S.C. § 12111(8).

       If driving is an essential function of her sales position,

Stephenson — who cannot drive no matter the accommodation — is

not qualified under the ADA and her claim fails as a matter of

law.     On the record before us, however, summary judgment is not

warranted because there is a genuine dispute of material fact as




                                      17
to   whether   the   essential   function   at   issue   is   driving   or

travelling.    That factual dispute is for a jury to resolve. 8



                                   IV.

     Pursuant to the foregoing, we vacate the district court’s

award of summary judgment and remand for such other and further

proceedings as may be appropriate.



                                                   VACATED AND REMANDED




     8 There is also a genuine dispute of material fact as to the
alternative basis proffered by Pfizer for upholding the judgment
in its favor: that, even if driving a car is not essential to
Stephenson’s job, hiring or retaining a driver would be an
unreasonable accommodation.

                                   18
