PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

LINDA WILLIAMS,
Plaintiff-Appellant,

v.

CHANNEL MASTER SATELLITE
SYSTEMS, INCORPORATED; CHANNEL
MASTER COMMUNICATIONS,
                                                                     No. 96-1072
INCORPORATED; AVNET,
INCORPORATED,
Defendants-Appellees.

EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION; EQUAL EMPLOYMENT
ADVISORY COUNCIL,
Amici Curiae.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
Terrence W. Boyle, District Judge.
(CA-95-108-5-BO)

Argued: September 23, 1996

Decided: November 27, 1996

Before HALL, WILLIAMS, and MOTZ, Circuit Judges.

_________________________________________________________________

Affirmed by published per curiam opinion. Judge Williams concurred
in part and wrote a separate concurring opinion.

_________________________________________________________________
COUNSEL

ARGUED: Burton Craige, PATTERSON, HARKAVY & LAW-
RENCE, L.L.P., Raleigh, North Carolina, for Appellant. Robert John
Gregory, EQUAL EMPLOYMENT OPPORTUNITY COMMIS-
SION, Washington, D.C., for Amicus Curiae EEOC. Martin Nesbitt
Erwin, SMITH, HELMS, MULLISS & MOORE, L.L.P., Greensboro,
North Carolina, for Appellees. ON BRIEF: John J. Korzen, SMITH,
HELMS, MULLISS & MOORE, L.L.P., Greensboro, North Carolina,
for Appellees. C. Gregory Stewart, General Counsel, Gwendolyn
Young Reams, Associate General Counsel, Vincent Blackwood,
Assistant General Counsel, EQUAL EMPLOYMENT OPPORTU-
NITY COMMISSION, Washington, D.C., for Amicus Curiae EEOC.
Douglas S. McDowell, Ann Elizabeth Reesman, Ellen Duffy McKay,
MCGUINNESS & WILLIAMS, Washington, D.C., for Amicus
Curiae Advisory Council.

_________________________________________________________________

OPINION

PER CURIAM:

Linda Williams appeals the district court's grant of summary judg-
ment to her employer on her claims for employment discrimination
under the Americans With Disabilities Act (ADA), 42 U.S.C.
§§ 12101 - 12213 (1995), and the North Carolina Handicapped Per-
sons Protection Act (NCHPPA), N.C.G.S. § 168A (Michie 1987), and
for wrongful discharge under state common law. See Williams v.
Avnet, 910 F. Supp. 1124 (E.D.N.C. 1995). We affirm, albeit on nar-
rower grounds than those on which the district court relied.

I.

The facts in this case are largely undisputed. In 1985, Linda Wil-
liams began working for Avnet, Inc.'s subsidiary, Channel Master
Communications, in its Smithfield, North Carolina plant. In March
1992, Williams injured her neck and back in an automobile accident
unrelated to work. Following the accident, Williams was unable to
work for several months. During this period she visited her doctor

                   2
every three to four weeks, each time receiving a note excusing her
from work until the next appointment. After each visit, Williams sub-
mitted the doctor's note to the plant nurse, who extended her disabil-
ity leave accordingly.

In September 1992, Williams' orthopedist told her that she could
return to work, with the restrictions that she refrain from lifting more
than 25 pounds and pushing or pulling heavy objects. The doctor
rated her impairment as a 5% permanent partial disability of the back.
Despite her doctor's rating, it appears that neither Williams nor her
employer knew at that time that her disability would be permanent.

When Williams received medical permission to work, she asked
her employer, Channel Master, if she could return to the plant in any
job position that fit her medical restrictions, even in a job at less pay.
A personnel coordinator informed her that she would not be permitted
to return to work until her doctor released her from"any and all
restrictions" and she could perform all the duties she had before the
accident. Later, discovery revealed that there were several job vacan-
cies at the plant during this period of time that would have satisfied
Williams' medical restrictions. After her employer refused to reassign
her to lighter duty work, Williams suggested other accommodations
that Channel Master could make that would enable her to continue to
perform the job she had held at the time of the accident. Channel
Master refused to accommodate Williams' condition in any way, and
on October 2, 1992, after she had received six months of disability
leave, the company terminated her.

Williams then filed a timely charge of disability discrimination
with the Equal Employment Opportunity Commission (EEOC). The
EEOC investigated her claim and determined that Channel Master
had violated the ADA by refusing to accommodate Williams' disabil-
ity, by discharging her due to that disability, and by its policy of ter-
minating temporarily disabled employees who can not return to work
after six months.

The district court granted summary judgment to Channel Master
finding that as a matter of law, Williams was not entitled to relief
under the ADA, NCHPPA, or on her common law claim of wrongful
termination. The appeal followed.

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II.

To establish a cause of action under the ADA, a plaintiff must
demonstrate: "(1) that [s]he has a disability; (2) that [s]he is otherwise
qualified for the employment or benefit in question; and (3) that [s]he
was excluded from the employment or benefit due to discrimination
solely on the basis of the disability." Doe v. University of Maryland
Medical Sys. Corp., 50 F.3d 1261, 1265 (4th Cir. 1995); Tyndall v.
National Educ. Ctrs., 31 F.3d 209, 212 (4th Cir. 1994); White v. York
Int'l Corp., 45 F.3d 357, 360-61 (10th Cir. 1995).1

The ADA defines "disability" as "a physical or mental impairment
that substantially limits one or more of the major life activities of such
individual; a record of such an impairment; or being regarded as hav-
ing such an impairment." 42 U.S.C. § 12102(2). The ADA regulations
and EEOC interpretive guidelines list a number of major life activi-
ties. See 29 C.F.R. § 1630.2(i) (1996) (caring for oneself, performing
manual tasks, walking, seeing, hearing, speaking, breathing, learning
and working); 29 C.F.R. Pt. 1630, App. § 1630.2(i) (1996) (above
activities plus sitting, standing, lifting and reaching).2 Williams
_________________________________________________________________
1 The district court improperly relied, Williams, 910 F. Supp. at 1131,
on a proof scheme based on the approach that the Supreme Court took
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). By re-
adjusting burdens between the plaintiff and defendant, the McDonnell
Douglas test is designed to circumvent a factual dispute over the reasons
for discharge, and is therefore most appropriate when "the defendant dis-
avows any reliance on discriminatory reasons for its adverse employment
action." Ennis v. National Ass'n of Bus. and Educ. Radio, Inc., 53 F.3d
55, 57-58 (4th Cir. 1995); Barth v. Gelb, 2 F.3d 1180, 1185-87 (D.C. Cir.
1993), cert. denied, 114 S.Ct. 1538 (1994). Here, the parties do not dis-
pute that the reason that Channel Master did not permit Williams to
return to her job was that her back injury prevented her from performing
her assigned tasks without accommodation. The McDonnell Douglas "in-
ferential proof scheme" is not appropriate when, as here, the reason for
discharge is undisputed.
2 The EEOC interpretive guidelines, "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 guidance." Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65 (1986)
(citations and internal quotation marks omitted).

                     4
asserted that both lifting and working constituted major life activities
that her impairment substantially limited.

The district court erred in two respects in analyzing whether Wil-
liams had established that she was disabled for purposes of the ADA.
First, the court erred in failing even to address Williams' asserted lift-
ing limitation. Secondly, and perhaps more fundamentally, it erred in
suggesting that working is not a major life activity, and that the gen-
eral foreclosure test must be used to determine if any other major life
activity is "substantially limited." See Williams, 910 F. Supp. at 1131-
33, 1136-37. The district court improperly described the regulatory
language discussing working as a major life activity as "superfluous"
and thus declared that "[w]hile some courts might entertain claims
under the `major life activity' of `working,' this Court does not." Id.
at 1136. In fact, working is a major life activity, see Gupton v.
Virginia, 14 F.3d 203, 205 (4th Cir. 1994) (Rehabilitation Act);
Dutcher v. Ingalls Shipbuilding, 53 F.3d 723, 724-27 (5th Cir. 1995),
and the general foreclosure test applies only to claims brought under
the major life activity of working. See Gupton , 14 F.3d at 205 (apply-
ing general foreclosure test only to the major life activity of working);
29 C.F.R. § 1630.2(j)(3) ("With respect to the major life activity of
working, the term substantially limits means significantly restricted in
the ability to perform either a class of jobs or a broad range of jobs
in various classes . . . .") (emphasis in original).

However, Williams nonetheless failed to establish that she had a
disability sufficient to trigger the ADA. To determine if an employee
is disabled under the ADA, a court must evaluate not just whether an
employee is restricted but whether she is "[s]ignificantly restricted" in
performing a major life activity "as compared to the condition, man-
ner, or duration under which the average person in the general popula-
tion can perform that same major life activity." 29 C.F.R.
§ 1630.2(j)(1)(ii). A court may also consider the "nature and severity
of the impairment," its "duration or expected duration" and any "per-
manent or long term impact." 29 C.F.R. § 1630.2(j)(2). Moreover,
when the major life activity at issue is working, the "inability to per-
form a single, particular job does not constitute a substantial limita-
tion;" in this circumstance "substantially limits means significantly
restricted in the ability to perform either a class of jobs or a broad

                     5
range of jobs in various classes . . . ." 29 C.F.R. § 1630.2(j)(3)
(emphasis omitted).

Like the Eighth Circuit, we hold, as a matter of law, that a twenty-
five pound lifting limitation -- particularly when compared to an
average person's abilities -- does not constitute a significant restric-
tion on one's ability to lift, work, or perform any other major life
activity. See Aucutt v. Six Flags Over Mid-America, 85 F.3d 1311,
1319 (8th Cir. 1996) (twenty-five pound lifting restriction did not
"significantly restrict" major life activities).3

Even if an individual demonstrates she is disabled, the ADA
requires her to establish that, "with or without reasonable accommo-
dation, [she] can perform the essential functions of the employment
position that [she] holds or desires." 42 U.S.C. § 12111(8). The
employer must arrange "reasonable accommodation" unless doing so
imposes an "undue hardship." 42 U.S.C. § 12112(b)(5). In determin-
ing whether the failure to accommodate Williams was reasonable, the
district court deferred almost entirely to Channel Master's judgment.
The court held, as a matter of law, that if a proposed accommodation
was not "obviously reasonable," or its reasonableness "is a matter of
some serious dispute, courts should defer to the employer's business
expertise." Williams, 910 F. Supp. at 1133. The employer's point of
view should define "reasonableness," the district court explained,
because otherwise the determination of what is reasonable would "au-
thorize[ ] the reviewing court to engage in a subjective, legislative
exercise." Id.

This approach was misguided. Courts are often asked to define rea-
sonableness in various contexts; the standard of"reasonableness" is
empty if "reasonable" means only "the employer's opinion." The dis-
trict court's approach is particularly inappropriate in the summary
judgment context, where a court must view evidence in the light most
favorable to the non-moving party. See Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citing United States
v. Diebold, Inc., 369 U.S. 654 (1962)). By definition, the determina-
_________________________________________________________________
3 Because we find that Williams does not qualify as a disabled individ-
ual under the ADA, we need not reach the district court's holding regard-
ing the legality of the asserted Avnet policy.

                     6
tion of reasonableness is an objective analysis, not a subjective one
dominated by either party's concerns. In assessing objective reason-
ableness, the governing statute provides guidance. See 42 U.S.C.
§ 12111(9). It provides that "`reasonable accommodation' may
include" a number of listed measures; obviously Congress considered
these types of accommodations to be reasonable. Examples in
§ 12111(9)(B) include "job restructuring, .. . reassignment to a vacant
position, [and] acquisition or modification of equipment or devices."
Thus, the district court also erred in suggesting that a qualified ADA
plaintiff can never rely on reassignment to a vacant position as a rea-
sonable accommodation.4

Although the district court erred in its mode of analyzing whether
Channel Master's failure to accommodate Williams was reasonable,
it nonetheless properly granted Channel Master summary judgment
on the ADA claim because Williams failed to establish that she was
disabled under the ADA.

III.

The district court also properly rejected Williams' two state law
claims.

We note that the standards under the NCHPPA are narrower than
under the ADA. See N.C. Gen. Stat. §168A (Michie 1987); Burgess
v. Your House of Raleigh, Inc., 388 S.E.2d 134, 138 (N.C. 1990)
("[T]he North Carolina Act has a more restrictive definition of a
`handicapped person' in that it defines `major life activities' more
narrowly than the federal act defines the term."). Since Williams is
not disabled for the purposes of the ADA, she similarly is not dis-
abled for the purposes of the NCHPPA.
_________________________________________________________________
4 The district court relied on Myers v. Hose, 50 F.3d 278, 284 (4th Cir.
1995), as supporting its conclusion that reassignment to a vacant position
can never be a reasonable accommodation in ADA cases. This conclu-
sion is contrary to congressional direction and is in no way required by
our Myers decision. Myers noted only that a particular accommodation
does not become federally mandated merely because an employer "elects
to establish it as a matter of policy." Id.

                    7
Finally, the district court concluded that Williams could not prevail
on her common law claim of wrongful discharge in violation of pub-
lic policy. The court found that without a legally cognizable disabil-
ity, Williams could not claim that she was a victim of disability
discrimination. We agree.

AFFIRMED

WILLIAMS, Circuit Judge, concurring:

I agree with the majority's reasoning and holding that Linda Wil-
liams is not disabled within the meaning of the Americans with Dis-
abilities Act (ADA) and that the district court properly rejected
Williams's state law claims. See Majority Op. at 4-6, 7. Having
reached those conclusions, I would not reach the issue of reasonable
accommodation as discussed in the majority's opinion in dicta on
pages 6-7. See Karsten v. Kaiser Foundation Health Plan, 36 F.3d 8,
11-12 (4th Cir. 1994) (per curiam) (stating that alternative holdings
should be avoided).

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