PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

HARALD E. MARTINSON, II,
Plaintiff-Appellant,

and

EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION,
Plaintiff,

                                  No. 96-1555
v.

KINNEY SHOE CORPORATION,
Defendant-Appellee.

EPILEPSY FOUNDATION OF AMERICA;
DISABILITY RIGHTS COUNCIL OF
GREATER WASHINGTON, D.C.,
Amici Curiae.

EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION,
Plaintiff-Appellant,

and

HARALD E. MARTINSON, II,
Plaintiff,

                                  No. 96-1556
v.

KINNEY SHOE CORPORATION,
Defendant-Appellee.

EPILEPSY FOUNDATION OF AMERICA;
DISABILITY RIGHTS COUNCIL OF
GREATER WASHINGTON, D.C.,
Amici Curiae.
Appeals from the United States District Court
for the Western District of Virginia, at Harrisonburg.
James H. Michael, Jr., Senior District Judge.
(CA-94-69-H)

Argued: December 2, 1996

Decided: January 21, 1997

Before RUSSELL, MICHAEL, and MOTZ, Circuit Judges.

_________________________________________________________________

Affirmed by published opinion. Judge Motz wrote the opinion, in
which Judge Russell and Judge Michael joined.

_________________________________________________________________

COUNSEL

ARGUED: Karen Marie Moran, Office of General Counsel, EQUAL
EMPLOYMENT OPPORTUNITY COMMISSION, Washington,
D.C., for Appellant EEOC; Jesse James Richardson, Jr., LAW
OFFICES OF JESSE J. RICHARDSON, JR., P.C., Winchester, Vir-
ginia, for Appellant Martinson. Alexander Neal Barkus, HUNTON &
WILLIAMS, Washington, D.C., for Appellee. ON BRIEF: C. Greg-
ory Stewart, General Counsel, Gwendolyn Young Reams, Associate
General Counsel, Vincent J. Blackwood, Assistant General Counsel,
Office of General Counsel, EQUAL EMPLOYMENT OPPORTU-
NITY COMMISSION, Washington, D.C., for Appellant EEOC.
E. Eugene Gunter, Winchester, Virginia, for Appellant Martinson.
Thomas J. Flaherty, David A. Walsh, Elizabeth C. Smith, HUNTON
& WILLIAMS, McLean, Virginia, for Appellee. Robert A. Long, Jr.,
COVINGTON & BURLING, Washington, D.C.; Alexandra K. Finu-
cane, Vice President for Legal Affairs, THE EPILEPSY FOUNDA-
TION OF AMERICA, Landover, Maryland; Marc Fiedler, President,
THE DISABILITY RIGHTS COUNCIL OF GREATER WASHING-
TON, D.C., Washington, D.C., for Amici Curiae.

_________________________________________________________________

                    2
OPINION

DIANA GRIBBON MOTZ, Circuit Judge:

The district court concluded that an employer did not violate the
Americans with Disabilities Act, 42 U.S.C. #8E8E # 12101-12213 (1994),
when it discharged a shoe salesman who suffered from epilepsy.
EEOC v. Kinney Shoe Corp., 917 F. Supp. 419 (W.D. Va. 1996). The
district court's analysis was flawed in some respects but much of its
reasoning and the court's ultimate holding were correct. Accordingly,
we affirm.

I.

Because the district court fully set forth the facts, id. at 422-24, we
relate here only those necessary to understand our holding.

Harald Martinson worked for Kinney as a shoe salesman in a Win-
chester, Virginia shopping mall at various times between 1989 and
1992. In January 1992, Kinney rehired Martinson as a full-time sales-
person. Martinson suffers from epilepsy, which was first diagnosed in
1967. During previous periods of employment with Kinney, Martin-
son had experienced seizures at work, and Kinney rehired him with
the knowledge that seizures could occur. The seizures that Martinson
experienced during the work day were usually similar to fainting
spells; his body would collapse to the ground and he would appear to
be sleeping. He would remain in this state for five to ten minutes,
after which he would "awake" and take a twenty to forty-five minute
break from work to compose himself. Other than "a bump or a
scratch," Martinson has never injured himself or anyone else during
any of his seizures over the past twenty-nine years. Furthermore, Mar-
tinson has not requested any accommodation other than tolerance of
his seizures.

Kinney supervisors acknowledged that Martinson was a good
salesman; he received two "Employee of the Month" awards, one just
before his final dismissal. They also admitted that his "sales book"
was "better than average." One of his managers testified that but for
the seizures, Martinson was fully capable of performing his job; he

                     3
was a reliable employee and had very good knowledge of the mer-
chandise. Moreover, although Martinson's supervisors disagreed
about this, one conceded that Martinson's seizures did not cause Kin-
ney to lose customers.

Between January and July 1992, Martinson "guess[ed]" that he had
approximately five seizures at work but he explained that he did not
remember his seizures and so had to rely on others as to their occur-
rence; Kinney maintained that he had approximately sixteen. In July
1992, a Kinney manager warned Martinson that he would be fired if
he "had another seizure." When Martinson did have another seizure,
Kinney discharged him. On Martinson's employee separation report,
Kinney District Sales Manager, Allen Bosworth, wrote that Martin-
son's discharge was attributable to "[s]eizures in store, sales floor,
and stockroom. Inability to control timing of same."1

The EEOC initiated this suit against Kinney on Martinson's behalf,
and Martinson intervened. The district court held that while there
were material issues of fact with regard to whether Martinson was
qualified to do his job, Kinney was entitled to summary judgment
because it had not engaged in "unlawful discrimination." Id. at 430.

II.

Title I of the Americans with Disabilities Act (ADA) provides that
"[n]o covered entity shall discriminate against a qualified individual
with a disability because of the disability of such individual in regard
to . . . discharge of employees . . . and other terms, conditions, and
privileges of employment." 42 U.S.C. § 12112(a) (1994). Therefore,
to establish a prima facie case of discriminatory firing, a plaintiff
_________________________________________________________________
1 While employed by Kinney, Martinson broke a display table and shoe
polish rack by falling on them during seizures. In addition, on one occa-
sion, a supervisor discovered him lying on the floor in the stockroom
with a lit cigarette on his chest and on another occasion, a supervisor
found him supine behind the sales counter holding a charge slip. How-
ever, when preparing Martinson's employee separation report at the time
of the discharge, District Sales Manager Bosworth did not state that Mar-
tinson was fired because of these incidents, or indeed even mention
them.

                    4
must prove: (1) he has a "disability;" (2) he is a "qualified individual;"
and (3) in "discharg[ing]" him, his employer "discriminate[d] against
[him] because of [his] disability." Id.; see also Doe v. University of
Maryland Med. Sys. Corp., 50 F.3d 1261, 1264-65 (4th Cir. 1995).

For purposes of summary judgment, the district court concluded
that Martinson had a disability and thus the first prong of this test had
been satisfied, a conclusion that Kinney does not contest at this stage.
Kinney, 917 F. Supp. at 425. Further, the court determined that the
EEOC and Martinson had met the second prong by producing suffi-
cient evidence at least to raise an issue of fact as to whether Martin-
son was qualified for his job despite his seizures. Id. at 425-29.
However, the district court concluded that the EEOC and Martinson
could not carry their burden on the third prong of the prima facie test.
Id. at 430-32. The court reasoned that since Kinney did not discharge
Martinson because he suffered from the "general disability" of epi-
lepsy but rather "because of the specific attributes of [Martinson's]
specific form of the disability," i.e., his seizures, Martinson could not
prevail on the third prong. Id. at 430-31.

The district court erred with regard to its conclusion as to the third
prong. When an employer concededly discharges an employee
because of a disability, the employee need prove nothing more to
meet the third prong of the prima facie test. See Rizzo v. Children's
World Learning Ctrs., 84 F.3d 758, 762 (5th Cir. 1996). Kinney con-
cededly discharged Martinson because of his "[s]eizures in store,
sales floor, and stockroom" and his "[i]nability to control timing of
same." To fire for seizures is to fire for a disability.2 Seizures are "a
_________________________________________________________________

2 Both a disease and its physical manifestations can constitute disabili-
ties. For example, both glaucoma and blindness, both Down's Syndrome
and mental retardation, and both cerebral palsy and impaired speech can
be disabilities. See H.R. Rep. No. 101-485(II), at 51 (1990), reprinted in
1990 U.S.C.C.A.N. 303, 333 (listing as impairments both diseases, like
brain cancer, and resulting conditions, like a hearing impairment). Cf.
School Bd. of Nassau County v. Arline, 480 U.S. 273, 282 (1987) ("We
do not agree . . . that, in defining a handicapped individual under [the
Rehabilitation Act], the contagious effects of a disease can be meaning-
fully distinguished from the disease's physical effects on a claimant
. . . .").

                     5
physical or mental impairment that substantially limits one or more
of [Martinson's] major life activities," i.e., a disability. See 42 U.S.C.
§ 12102(2)(A) (defining disability). Whether Kinney fired Martinson
because he suffered from epilepsy or because of the"specific attri-
butes" of his disease, i.e., his seizures, is immaterial -- both are dis-
abilities and an employer may not use either to justify discharging an
employee so long as that employee is qualified for the job.3 Thus, the
undisputed facts demonstrate that Kinney discharged Martinson
because of a disability. This is all the EEOC and Martinson must
prove to satisfy the third prong of the prima facie test.

Although the district court erred with regard to the third prong, we
can affirm if its decision was correct for any other reason. See, e.g.,
McMahan v. International Ass'n of Bridge, Structural & Ornamental
Iron Workers Local 601, 964 F.2d 1462, 1467 (4th Cir. 1992). Here,
we believe the district court was correct for another reason. Specifi-
cally, we believe the undisputed facts establish that Martinson was
not qualified to perform at least one essential function of his position
with Kinney.

To satisfy the second prong of the prima facie test, an ADA plain-
tiff must demonstrate that "with or without reasonable accommoda-
tion, [he] can perform the essential functions of the employment
position." 42 U.S.C. § 12111(8) (defining"qualified individual with
a disability"). The Kinney managers repeatedly testified that main-
taining store security was an essential function of a Kinney salesper-
son's job. Martinson offered no evidence to the contrary. Thus, the
undisputed evidence demonstrated and the district court properly rec-
ognized that this was "an inherent part of a shoe salesperson's job
given that Kinney does not hire security guards." Kinney, 917 F.
Supp. at 426. See 29 C.F.R. § 1630.2(n)(2)(ii) (explaining that a job
"function may be essential because of the limited number of employ-
_________________________________________________________________
3 By contrast, misconduct--even misconduct related to a disability--is
not itself a disability, and an employer is free to fire an employee on that
basis. See, e.g., Tyndall v. National Educ. Ctrs., 31 F.3d 209, 214-15 (4th
Cir. 1994) (finding no discrimination when firing because of disability-
related absences); Little v. FBI, 1 F.3d 255, 259 (4th Cir. 1993) (finding
no discrimination when firing for disability-related intoxication on duty).

                     6
ees available among whom the performance of that job function can
be distributed").

Just as the evidence was uncontroverted that providing security
was an "essential function" of a Kinney salesperson's job, so too the
evidence was uncontroverted that Martinson was not qualified to per-
form this function. Kinney offered uncontradicted evidence that nor-
mally the Winchester store was manned by only two or three
employees and that at least on some occasions, Martinson was the
sole employee in the public areas of the store -- and so the only one
available to provide security to the store and its merchandise. More-
over, Kinney District Sales Manager Bosworth testified that even
when another employee was present on the sales floor, Martinson's
seizures would attract the other employee's concern and attention and
thus distract that employee from "maintaining a vigilance on the floor
to make sure that" a thief did not "come in, take something . . . and
walk off with it."

In view of the involved factual record, it is perhaps unsurprising
that in finding a material factual dispute as to whether Martinson
could perform the "essential functions" of his position, the district
court apparently did not focus on the significance of this undisputed
evidence. Instead, the court remarked "[a] shoe salesman . . . is
charged with selling shoes, a task which if compromised, simply
leaves customers without shoes for a brief period." Id. at 426. How-
ever, in light of the uncontroverted fact that Martinson was, at times,
solely responsible for the security of the store and its merchandise, it
is clear that when a seizure compromised Martinson's tasks as a shoe
salesman, one of the tasks compromised was the provision of store
security. Safeguarding the store and its goods is a task that cannot rea-
sonably be abandoned for even "a brief period."

Even if a person is unable to perform the essential functions of the
job in question, a "court must nevertheless determine whether the per-
son could do the job with reasonable accommodation." Myers v.
Hose, 50 F.3d 278, 281-82 (4th Cir. 1995) (citations omitted); see
also Doe, 50 F.3d at 1264-66. Martinson never requested any accom-
modation (other than tolerance of his seizures), perhaps recognizing,
as we conclude, that no reasonable accommodation was possible here.
To accommodate Martinson adequately, Kinney would need to hire

                     7
an additional person to perform the essential security function of Mar-
tinson's job. The ADA simply does not require an employer to hire
an additional person to perform an essential function of a disabled
employee's position. See 29 C.F.R. Pt. 1630, App. at § 1630.2(o)
("An employer or other covered entity is not required to reallocate
essential functions.").

Our holding is a narrow one, quelling the fears of the district court
as to the "natural consequence" of a conclusion that Martinson was
not qualified for his position with Kinney, i.e. , that such a conclusion
would render "Martinson . . . unqualified as a matter of law to hold
any position because Martinson obviously cannot discharge the
`essential functions' of any job during the time he is unconscious." Id.
at 427. This is not the "consequence" of our holding here.

Certain jobs do require uninterrupted vigilance for discrete periods
of time. Martinson, as his counsel acknowledged at oral argument, is
not qualified to perform such jobs. The security function of the Kin-
ney salesperson position places it in that category. However, Martin-
son may well be qualified for a range of other jobs, including jobs in
retail sales, so long as store security did not depend exclusively on
Martinson's vigilance. Cf. Overton v. Reilly, 977 F.2d 1190, 1195 (7th
Cir. 1993) (finding issue of fact as to whether disability-related naps
at work disqualified the employee from his administrative job at the
Environmental Protection Agency).

III.

In sum, the undisputed facts demonstrate that Martinson's disabil-
ity left him unable to perform the essential security function of his
position with Kinney. For this reason, he could not establish the sec-
ond prong of his prima facie ADA case, i.e., that he was a "qualified
individual." Accordingly, the district court's order granting summary
judgment to Kinney is

AFFIRMED.

                     8
