PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

RAYMOND PORTER,
Plaintiff-Appellant,

v.
                                                                   No. 96-1441
UNITED STATES ALUMOWELD
COMPANY, INCORPORATED,
Defendant-Appellee.

Appeal from the United States District Court
for the District of South Carolina, at Spartanburg.
Henry M. Herlong, Jr., District Judge.
(CA-95-675-20AK-7)

Argued: December 2, 1996

Decided: September 15, 1997

Before WILKINSON, Chief Judge, ERVIN, Circuit Judge, and
DAVIS, United States District Judge for the
District of Maryland, sitting by designation.

_________________________________________________________________

Affirmed by published opinion. Judge Ervin wrote the opinion, in
which Chief Judge Wilkinson and Judge Davis joined.

_________________________________________________________________

COUNSEL

ARGUED: Edwin Lake Turnage, Travelers Rest, South Carolina, for
Appellant. Jack Harding Tedards, Jr., LEATHERWOOD, WALKER,
TOOD & MANN, P.C., Greenville, South Carolina, for Appellee.

_________________________________________________________________
OPINION

ERVIN, Circuit Judge:

Raymond Porter brought this action alleging that his termination by
United States Alumoweld Company, Inc. (Alumoweld) violated the
Americans with Disabilities Act (ADA), 42 U.S.C.§ 12101 et seq.;
the Family and Medical Leave Act (FMLA), 29 U.S.C.§ 2601 et seq.;
and South Carolina Code Ann. § 41-1-80 (1976), prohibiting retalia-
tory discharge based on the filing of workers' compensation claims.
Subsequent to the case being referred to a magistrate judge, the dis-
trict court denied Porter's motion for summary judgment and granted
Alumoweld's motion for summary judgment. For the reasons herein-
after explored, we affirm.

I.

Summary judgment should be entered if there are no genuine dis-
putes of material fact and the moving party is entitled to judgment as
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 Por-
ter. Roe v. Doe, 28 F.3d 404, 406-07 (4th Cir. 1994).

II.

Porter was employed by Alumoweld as a BD machine operator
from August 6, 1991, until May 10, 1994. According to Porter, a BD
machine operator occasionally lifts and replaces dies weighing up to
15 pounds and picks up stems of wire weighing up to approximately
42 pounds two or three time per shift. Additionally, the operator must
occasionally pull metal wire, thread the machine, and roll a heavy reel
of wire.

Porter and Alumoweld stipulated to Porter's history of back inju-
ries and supporting medical records. In September 1992, Porter
injured his back, sustaining a ruptured disc. On October 11, 1993, he
again injured his back at work. He filed a workers' compensation
claim on October 25, 1993. Alumoweld and its carrier did not pay

                    2
him workers' compensation benefits during his absence from work.
Porter was then placed on a personal leave of absence from Novem-
ber 8-18, 1993. The company again put him on a leave of absence
effective February 14, 1994. Alumoweld's February 14 letter included
the following statement: "In order to return to an active status you
will have to provide sufficient documentation from all doctors and/or
physical therapists seen during this time clearly stating your sustained
physical ability to perform the functions necessary for your position
held at U.S. Alumoweld Company, Inc."

Porter underwent surgery on April 7, 1994. The operation was per-
formed by Dr. Marcelino I. Chavez, who wrote a note dated May 9,
1994, stating only: "This is to advise you that I saw the above patient
on April 29, 1994. At that time he was doing well. I feel that Mr. Por-
ter is able to return to work safely without any limitations." Alumo-
weld responded to Dr. Chavez that it needed more information in the
form of a functional capacity evaluation to determine whether Porter
would be physically able to return to work. Chavez's office called the
company to advise that the doctor did not perform that test and an
appointment would have to be made elsewhere. Alumoweld informed
Porter that he would be responsible for paying for the evaluation. Por-
ter never underwent the medical evaluation.

On June 8, 1994, Porter received a letter informing him that he was
fired, "freeing him up to explore new opportunities." The company
contends that he was fired because he did not undergo the functional
capacities examination.

III.

A.

Porter claims that Alumoweld violated Title I of the ADA which
prohibits discriminatory discharge of "a qualified individual with a
disability because of the disability." 42 U.S.C.§ 12112(a). We find,
rather, that the ADA allowed Alumoweld to request a medical exami-
nation from Porter and, therefore, the company's decision to termi-
nate him did not violate the ADA.

                    3
The ADA provides that an employer is prohibited from requiring
a medical examination or making inquiries of an employee as to
whether he is an "individual with a disability or as to the nature or
severity of the disability unless such examination or inquiry is shown
to be job-related and consistent with business necessity." 42 U.S.C.
§ 12112(d)(4). To determine whether a medical examination meets
these requirements, the Equal Employment Opportunity Commission
(EEOC) regulations provide clarification. "This provision permits
employers to make inquiries or require medical examinations (fitness
for duty exams) when there is a need to determine whether an
employee is still able to perform the essential functions of his or her
job." 29 C.F.R. Part 1630, App. § 1630.14(c).1 Further, Section 9.4 of
the EEOC Technical Assistance Manual on the Employment Provi-
sions of the ADA provides the following: "If a worker has an on-the-
job injury which appears to affect his/her ability to do essential job
functions, a medical examination or inquiry is job-related and consis-
tent with business necessity."

Administrative interpretations of the ADA by the enforcing agency
(here, the EEOC), "while not controlling upon the courts by reason
of their authority, do constitute a body of experience and informed
judgment to which courts and litigants may properly resort for guid-
ance." Meritor Sav. Bank v. Vinson, 477 U.S. 57, 65 (1986). Accord-
ing to the EEOC, an employer's request for a fitness for duty exam
after an on-the-job injury is clearly job-related and a business neces-
sity under § 12112(d)(4) of the Code, and we agree with the EEOC's
assessment. We conclude that the exam in this case meets this stan-
dard. Further, the facts that Porter's job required lifting and pulling,
and that he had encountered problems carrying out his job due to back
problems even before the surgery, indicate that the requested fitness
for duty exam was indeed job-related and necessary to determine if
he could carry out his duties.
_________________________________________________________________
1 Porter argues that the additional language of Section 1630.14(c)
requires that the medical examinations be "required by medical standards
or requirements established by Federal, State, or local law . . . ." Porter
ignores the plain language of the regulation which states, after the lan-
guage allowing for fitness for duty exams, that"[t]his provision also per-
mits periodic physicals . . . required by medical standards or
requirements established by Federal, State, or local law . . . ." (emphasis
added).

                    4
The reasoning of several of our sister circuits is consistent with our
endorsement of the plain language of the EEOC regulations. See
Grenier v. Cyanimid Plastics, Inc., 70 F.3d 667, 676 (1st Cir. 1995)
(finding that if the plaintiff were "treated as an existing employee
returning from disability leave, . . . the employer would be able to
demand medical certification of ability to return to work"); Hogan v.
Bangor and Aroostook R.R. Co., 61 F.3d 1034, 1036 (1st Cir. 1995)
(concluding that an employee was entitled to reinstatement after suf-
fering collapsed lung as soon as medical evidence indicated he was
fit to return); Pesterfield v. Tennessee Valley Auth., 941 F.2d 437, 438
(6th Cir. 1991) (holding that an employee who was hospitalized for
psychiatric treatment was required to provide medical certification as
to ability to return to work). We concur in the reasoning of these cir-
cuits.

Two additional aspects of ADA analysis require a brief mention.
First, we note that, by not consenting to a functional capacity evalua-
tion, Porter was unable to prove disability, the first step required for
a showing of discriminatory discharge under the ADA. To prove a
violation of the ADA, Porter must establish that 1) he was disabled,
2) that he was otherwise qualified for his position and 3) that he was
fired solely on the basis of disability. 42 U.S.C.A.§ 12112; Doe v.
Univ. of Maryland Med. Sys. Corp., 50 F.3d 1261, 1264-65 (4th Cir.
1995); Tyndall v. National Educ. Ctrs., 31 F.3d 209, 212 (4th Cir.
1994). Porter offers no other evidence of disability.2

Second, we quickly address Porter's contention that Alumoweld
"should have analyzed whether Porter could be accommodated and
whether he could perform the essential functions of his job before
demanding the medical examination."3 Since Porter did not undergo
_________________________________________________________________
2 Oddly, Porter actually claims that he is not disabled while simulta-
neously attempting to prove an ADA violation.
3 To determine whether a person is qualified under the second prong,
a court must conduct the following analysis:

          First, we must determine whether the individual could perform
          the essential functions of the job, i.e., functions that bear more
          than a marginal relationship to the job at issue. Second, if (but
          only if) we conclude that the individual is not able to perform the

                     5
the requested medical examination and offered no other evidence, he
failed in his initial showing of disability, as noted above. The court
below therefore need not have examined whether Porter was "other-
wise qualified," the second prong of the discriminatory discharge test.

Alumoweld's request for a fitness for duty exam was job related
and consistent with business necessity and, thus, comports with the
requirements of the ADA. Further, by refusing to undergo the exam,
Porter precluded the disclosure of information necessary to an evalua-
tion of discriminatory discharge under the ADA.

B.

Porter next asserts that Alumoweld violated the FMLA by requir-
ing him to undergo the fitness for duty exam. Porter cites the govern-
ing regulations which state that a "fitness-for-duty certification" under
the FMLA "need only be a simple statement of an employee's ability
to return to work," 29 C.F.R. § 825.310(c), and says that Alumoweld
had no grounds to ask for more. Porter fails to recognize that the
FMLA certification is a health verification distinct from the ADA-
prescribed exam. In fact, the FMLA implies that an employee may be
required to meet the fitness requirements of that Act and the ADA:
"Similarly, the requirements under the Americans with Disabilities
Act (ADA) that any return-to-work physical be job-related must be
complied with." Id.

Under Porter's reading of the FMLA, that Act would be violated
every time an employer requested a fitness for duty exam under the
ADA, a request which requires the disclosure of more medical infor-
_________________________________________________________________
          essential functions of the job, we must determine whether any
          reasonable accommodation by the employer would enable him to
          perform those functions.

White v. York Int'l. Corp., 45 F.3d 357, 361-62 (10th Cir. 1995)
(quoting Chandler v. City of Dallas, 2 F.3d 1385, 1393-94 (5th Cir.
1993), cert. denied, ___ U.S. #6D6D 6D#, 114 S.Ct. 1386 (1994)); see also
School Bd. of Nassau County v. Arline, 480 U.S. 273, 287 n. 17 (1987);
Gilbert v. Frank, 949 F.2d 637, 640-42 (2d Cir. 1991); Chari v. City of
League City, 920 F.2d 311, 318 (5th Cir. 1991).

                     6
mation than would be available from the FMLA's "simple statement
of an employee's ability to return to work." We reject Porter's attempt
to so restrict the operation of the ADA.4

C.

Although Porter does not cite the applicable statute, he apparently
alleges that Alumoweld violated the South Carolina"Prohibition
against retaliation based upon employee's institution of, or participa-
tion in, proceedings under Workers' Compensation Law; civil
actions." S.C.Code Ann. § 41-1-80. The district court properly relied
on the determinative factor test under South Carolina law "which
requires the employee to establish that he would not have been dis-
charged `but for' the filing of the claim." Wallace v. Milliken & Co.,
406 S.E.2d 358, 360 (1991).

Porter's only evidence that he was fired due to his workers' com-
pensation claim is his own affidavit stating that Alumoweld told him
the company's workers' compensation carrier had required the fitness
for duty examination. Alumoweld denies that its employee made this
statement. Regardless, this factual dispute only refers to who made
the recommendation for the examination, and does not contradict the
finding of the magistrate judge that "the plaintiff was discharged for
failing to take the examination, not for filing a claim." Thus, even
when viewing the facts in the light most favorable to Porter, there is
no genuine issue of material fact about whether Porter would have
been fired but for his filing the claim.

The South Carolina Supreme Court, in addition to establishing a
but-for causation test to govern these cases, has determined that the
_________________________________________________________________
4 Alumoweld contends that Porter waived his right to appeal the issue
of the alleged FMLA violation when he failed to include this issue in his
objections to the magistrate judge's Report and Recommendation.
Because the FMLA claim is without merit, we neither address the ques-
tion of whether Porter waived his right to appeal the claim by not object-
ing to the magistrate judge's report nor, in the alternative, whether he
was excused for not objecting due to insufficient notice by the magistrate
judge of the mandatory nature of filing objections and the consequences
of failing to file them under Fed. R. Civ. P. 72.

                    7
plaintiff must provide evidence sufficient to support the conclusion
that the employer's proffered reason for discharging the employee
was pretext for retaliation. The South Carolina Supreme Court has
adopted the following analysis:

          The burden of persuasion never shifts and the employee
          bears the burden of persuasion that the reason given for ter-
          mination was pretextual. . . . The employee may succeed in
          this, either directly by persuading the court that the dis-
          charge was significantly motivated by retaliation for [his]
          exercise of statutory rights, or indirectly by showing that the
          employer's proffered explanation is unworthy of credence.

Wallace, 406 S.E.2d at 360 (quoting Buckner v. General Motors
Corp., 760 P.2d 803, 807 (Okla. 1988)).

Porter's argument that Alumoweld's claimed reason for firing him
was pretextual is not supported by the record. Porter alleges that "[a]t
some point around late October or early November 1993, very shortly
after Porter filed a workers' compensation claim, Alumoweld fired
[him]." Contrary to this claim, Alumoweld's November 10, 1993 let-
ter to Porter noted that his employment had, in fact, not been termi-
nated as of that date.5 Despite continued extended absences, Porter
was not fired at this point. Further, the parties stipulate that Porter had
sustained multiple injuries and filed numerous claims with Alumo-
weld's Workers' Compensation carrier between 1991, when he was
hired, and his termination; these previous filings had not resulted in
Porter being fired. Finally, Alumoweld's February 11, 1994, letter to
Porter did not foreclose the possibility of his returning to work; rather,
the letter placed him on "indefinite leave of absence" and stated that
he could not return to work before obtaining "documentation from all
doctors and/or physical therapists seen during this time clearly stating
your sustained physical ability to perform functions necessary for
your position . . . ." Porter was not terminated until June 6, 1994.
_________________________________________________________________
5 Alumoweld's letter stated in somewhat obscure language that Porter
was "not voluntarily quit (three days no word of notice) however, you
have been placed on personal leave of absence until November 19,
1993." (emphasis in original).

                    8
The record reveals that Alumoweld did not terminate Porter for his
numerous workers' compensation filings during his employment and
that the company only required documentation of his fitness for duty
after his October 11, 1993, back injury. Porter's April 7, 1994, sur-
gery made the need to determine his fitness for duty even more legiti-
mate. Additional evidence that the request for a functional capacity
exam was not pretextual is that the operating doctor (Dr. Chavez) was
not familiar with Porter's exact job duties, Dr. Chavez's memoran-
dum of Porter's fitness for work was extremely cursory, and two doc-
tors consulted by Alumoweld recommended a functional capacity
exam after the surgery.

There is almost no evidence to contradict a finding that, because
Porter would not undergo the tests necessary to establish his fitness
to resume his duties, he was fired. No reasonable jury could find that
Porter's filing his workers' compensation claims was the determina-
tive factor in his dismissal; nor could such a jury find that Alumo-
weld's reason for firing Porter was pretextual, based solely on
Porter's suspicions about the timing of the November 10, 1993, letter
requiring documentation of fitness and his claim that Alumoweld's
workers' compensation carrier was the source of this requirement.

IV.

Because Alumoweld's request for a fitness for duty examination
from Porter was job-related and consistent with business necessity,
the request did not violate the ADA. Also, because Porter's refusal to
submit to this exam precluded a determination of his disability, he
was unable to prove discriminatory discharge under the ADA. Fur-
ther, the FMLA is not implicated and the record does not support Por-
ter's claim of retaliatory discharge under South Carolina law for filing
a workers' compensation claim. Accordingly, the district court's judg-
ment is

AFFIRMED.

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