                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 04-2147



BETH M. HANEKE,

                                             Plaintiff - Appellant,

          versus


MID-ATLANTIC   CAPITAL   MANAGEMENT;   GLOBAL
EXCURSIONS, INCORPORATED; BRAD CALLAHAN,

                                            Defendants - Appellees.


Appeal from the United States District Court for the District of
Maryland, at Baltimore. William D. Quarles, Jr., District Judge.
(CA-03-2807-WDQ)


Submitted:   March 30, 2005                 Decided:   May 10, 2005


Before WILKINSON, TRAXLER, and GREGORY, Circuit Judges.


Affirmed in part; reversed and remanded in part by unpublished per
curiam opinion.


David M. Silbiger, Mark R. Millstein, Baltimore, Maryland, for
Appellant.   Louis R. Cohan, WEINSTOCK & SCAVO, P.C., Atlanta,
Georgia, for Appellees.


Unpublished opinions are not binding precedent in this circuit.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

           Beth M. Haneke appeals from the district court’s order

granting summary judgment in favor of her former employer on her

claims alleging failure to accommodate and wrongful discharge in

violation of the Americans with Disabilities Act (ADA), 42 U.S.C.

§§ 12101-12213 (2000).   We affirm in part and reverse and remand in

part.

           This court reviews an award of summary judgment de novo.

Higgins v. E.I. DuPont de Nemours & Co., 863 F.2d 1162, 1167 (4th

Cir. 1988).    Summary judgment is appropriate when there is no

genuine issue of material fact, given the parties’ respective

burdens of proof at trial.        See Fed. R. Civ. P. 56(c); Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).              In determining

whether the moving party has shown there is no genuine issue of

material fact, a court must assess the factual evidence and all

inferences to be drawn therefrom in the light most favorable to the

non-moving party.    Id. at 255.

           Haneke was diagnosed with familial polyposis or “Gardners

Syndrome” in 1993.    This condition is marked by the development of

numerous   benign   polyps   in    the   colon,   which   typically   become

malignant if left untreated.          The polyps grow in size, pushing

against organs and systems, necessitating the insertion of stents

in the ureter to pass bodily fluids.        These stents must be changed

approximately every eight weeks.         This procedure takes place on an


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outpatient    basis   and    usually     requires      two     to    three   days    of

recovery.     In addition, the polyps cause obstruction of renal

function and infections that can unexpectedly flare up and require

hospital    care.     Haneke’s       day-to-day    symptoms         and   limitations

include    restrictions     on   heavy   lifting       and   excessive       physical

activity, dehydration, fatigue, pain, and dietary restrictions. In

1993, physicians removed Haneke’s large intestine, necessitating

the use of a colostomy bag.              Haneke argues that her disease

substantially limits her ability to care for herself after surgical

procedures    and   during   “flare-ups”.          During      those      times,    she

describes herself as “bedridden” and “completely reliant” upon

others.

            To   establish       a   prima     facie    case        for   failure    to

accommodate, an employee must show: (1) she was an individual with

a disability within the meaning of the ADA; (2) the employer had

notice of her disability; (3) with reasonable accommodation, she

could perform the essential functions of the position; and (4) the

employer refused to make such accommodations.                Rhoads v. FDIC, 257

F.3d 373, 387 n.11 (4th Cir. 2001).            Implicit in the fourth element

is the ADA requirement that the employer and employee engage in an

interactive process to identify a reasonable accommodation.                         29

C.F.R. § 1630.2(o)(3).       We find that there is a disputed issue of

material fact as to whether both parties met their respective

burdens of engaging in the interactive process in good faith, and


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whether that caused a failure to accommodate.       Accordingly, we

reverse and remand to the district court for further proceedings on

this issue.

            To establish a prime facie case of wrongful discharge, a

plaintiff must show by a preponderance of the evidence that (1) she

is within the ADA’s protected class; (2) she was discharged; (3) at

the time of her discharge, she was performing the 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.     Haulbrook v. Michelin N.

Am., Inc., 252 F.3d 696, 702 (4th Cir. 2001) (internal citations

omitted).     We have reviewed the record and the opinion of the

district court and find no reversible error as to this claim.    We

therefore affirm   the award of summary judgment as to the wrongful

discharge claim on the reasoning of the district court.         See

Haneke v. Mid-Atlantic Capital Mgmt., No. CA-03-2807-WDQ (D. Md.

Aug. 10, 2004).

            We dispense with oral argument because the facts and

legal contentions are adequately presented in the materials before

the court and argument would not aid the decisional process.



                                         AFFIRMED IN PART; REVERSED
                                               AND REMANDED IN PART




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