UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ELIZABETH CRAWFORD,
Plaintiff-Appellant,

v.

UNION CARBIDE CORPORATION,
                                                                    No. 98-2448
Defendant-Appellee,

and

AETNA U. S. HEALTHCARE,
Party in Interest.

Appeal from the United States District Court
for the Southern District of West Virginia, at Charleston.
John T. Copenhaver, Jr., District Judge.
(CA-96-281-2)

Argued: October 26, 1999

Decided: December 14, 1999

Before MURNAGHAN, WILKINS, and TRAXLER, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Daniel Mark Press, CHUNG & PRESS, P.C., McLean,
Virginia, for Appellant. Victoria Jean Sopranik, JACKSON &
KELLY, Lexington, Kentucky, for Appellee. ON BRIEF: Frederick
S. Mittelman, Arlington, Virginia, for Appellant. Roger A. Wolfe,
Erin Magee Condaras, JACKSON & KELLY, P.L.L.C., Charleston,
West Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Elizabeth Crawford appeals an order of the district court granting
summary judgment in favor of Union Carbide Corporation (Union
Carbide) on her claims of discrimination brought pursuant to Title I
of the Americans with Disabilities Act (ADA), see 42 U.S.C.A.
§§ 12111-12117 (West 1995), and § 504 of the Rehabilitation Act of
1973, as amended, see 29 U.S.C.A. § 794 (West 1999).1 Because we
conclude that the district court correctly determined that Crawford is
not entitled to relief, we affirm.

I.

Crawford began working for Union Carbide at its facility in the
Kanawha Valley of West Virginia in 1980. In the early 1980s, Craw-
ford assumed the position of environmental laboratory technician. She
developed skin allergies in 1983, and as a result could no longer work
in an environment in which she would be directly exposed to chemi-
cals. Union Carbide accommodated Crawford by transferring her to
a senior engineering information technician position, the particular
responsibilities of which the company tailored for Crawford. As a
senior engineering information technician, Crawford spent most of
her time working on material safety data sheets (MSDSs). Her other
_________________________________________________________________
1 For ease of reference, and because the two statutes generally are con-
strued to impose the same requirements, see Baird v. Rose, No. 98-2064,
1999 WL 739413, at *4 (4th Cir. Sept. 22, 1999), we refer to the ADA
and Rehabilitation Act collectively as "the ADA."

                    2
responsibilities included managing the chemical data sheets system
and assigning fire and stability ratings for Union Carbide chemicals.

In 1986, Crawford developed asthma. There is no indication in the
record that either her allergies or her asthma interfered with her job
performance or that she received any unsatisfactory job performance
evaluations.

At some point in late 1993 or very early 1994, Union Carbide
decided to alter the way in which the MSDSs were developed. Rather
than have employees at different Union Carbide facilities work on
discrete sections of an MSDS for a single chemical, the company cre-
ated an MSDS/Label Skill Center at its Bound Brook, New Jersey
site. At the new Skill Center, one employee would be responsible for
all of the information on the MSDS for a single chemical. The change
was pursued for reasons of efficiency and economy.

Because the primary responsibilities of her job would be performed
at the new Skill Center and because her other duties were insufficient
to support a full-time job, Crawford's department lost funding for her
position. Crawford was informed on January 27, 1994 that her job
was being eliminated.2 She offered to transfer to New Jersey, but
Union Carbide rejected the offer.3 The company attempted to find
_________________________________________________________________
2 Union Carbide wrote a letter to Crawford dated March 31, 1994, for-
mally notifying her that her position had been "designated as surplus."
J.A. 251. The letter stated that "if you are not placed in another job by
May 31, 1994, you will be laid off for lack of work as of that date." Id.
The letter described the company's Enhanced Separation Program. To be
eligible for the Program, Crawford would have had to have signed a
release stating that she would not sue the company for any employment-
related claims, including discrimination. Crawford refused to sign the
release.
3 The parties do not dispute that Crawford was unable to work at the
Bound Brook facility due to her disabilities. However, although Union
Carbide appeared to concede at oral argument that Crawford would have
been transferred to New Jersey but for her disabilities, the record indi-
cates that all of the Skill Center positions were filled with individuals
already working at the New Jersey site. Resolution of this factual ques-
tion is not necessary to our disposition of this appeal, however.

                    3
Crawford another suitable position at the Kanawha Valley facility, but
the parties dispute the intensity of this effort.

Union Carbide officials first considered Crawford for a position as
a process group assistant. She interviewed for the position with
Thomas Maliszewski on March 4, 1994. However, Maliszewski
determined that Crawford was not qualified for the position and there-
fore did not offer it to her. Although Crawford asserts in her brief that
she was qualified for the position, she admitted in district court that
she was not so qualified.4

The company also identified a Grade 4 polyolefins records clerk
position as a possibility for Crawford. This position "involved strictly
office work consisting of looking up records, changing manuals, coor-
dinating records and creating and shipping out manuals." J.A. 124.
During an interview for the position, Crawford "voiced concerns
about the lifting aspect of the job" and indicated her belief that she
was overqualified for the position. Id. Craig Morkert, an employee of
Union Carbide's Human Resources Department, offered Crawford the
position, and the company even offered to maintain Crawford's then-
present salary although the new position otherwise would have
entailed a decrease in pay. The company claims that it advised Craw-
ford it would accommodate her lifting restrictions.

On March 28, 1994, Crawford; her physician, Dr. L. Blair Thrush;
and Union Carbide's Kanawha Valley Medical Director, Dr. Donald
F. Teter, participated in a brief conference call in which they dis-
cussed the records clerk position. Thrush concluded, based on that
call and statements made to him by Crawford, that she "probably
could not" perform the records clerk duties. J.A. 138. However,
Thrush subsequently admitted that he had not inspected the worksite,
that he "didn't know that much about the job," J.A. 139, and that in
order to render an authoritative medical opinion regarding Crawford's
ability to perform the duties of the position he would have had to have
known more about the situation. Teter, in contrast, had examined the
_________________________________________________________________
4 Crawford failed to respond to Union Carbide's request for her to
admit that she was not qualified for the process group assistant position.
By failing to respond, Crawford is deemed to have admitted that she was
not qualified. See Fed. R. Civ. P. 36(a).

                     4
worksite and duties and determined that Crawford"was medically
capable of performing the job with appropriate accommodations."
J.A. 126.

On April 12, 1994, Crawford wrote to Morkert expressing her frus-
tration over the elimination of her position and the offer of the records
clerk position. Crawford wrote that the records clerk position was "ut-
terly beneath [her] qualifications" and that the offer "deeply offend-
[ed]" her. J.A. 146. She further stated that"[u]ntil you can answer my
concerns more fully or demonstrate to my reasonable satisfaction that
there is no other position within Union Carbide that better suits my
talents, education and skills, I simply decline to accept your degrading
offer." J.A. 147.

Also on April 12, 1994, Thrush wrote a letter to Teter in which
Thrush stated that Crawford's asthma was worsening, and that

          [i]t is certainly my IMPRESSION that from an occupational
          point of view she is extremely limited. She needs to be in
          an environment that is essentially free of air pollutants such
          as heavy dust, chemicals or heavy dirt, including paper dust.
          I also think that any physical exertion other than desk work
          would be a problem for her.

J.A. 131. Thrush did not refer to any particular employment position
or duties. He mentioned that he had urged Crawford to apply to Social
Security for disability benefits.

Crawford formally rejected Union Carbide's offer of the records
clerk position on April 18, 1994 in a memo that stated, in its entirety,
"At the recommendation of my physician, L. Blair Thrush, and as
explained in my correspondence to C. Morkert dated April 12, 1994,
I decline to accept the position of Grade 4 Polymers Engineering
Records Center Clerk." J.A. 230.

In a subsequent letter to Morkert, dated May 18, 1994, Crawford
described the rejection as follows:

          As you know I have turned down the [records clerk] posi-
          tion as I have been advised by my physician that such

                     5
            employment would be detrimental to my health. In essence,
            the ... job offer is to me no offer at all as it fails to accom-
            modate my health much less my skill.

J.A. 128.

In spite of her assertion that the position was beneath her, Crawford
maintains that she would have accepted the records clerk position if
Union Carbide had agreed to accommodate her disabilities by not
requiring her to lift heavy boxes and by equipping the worksite with
air filters. She contends, however, that the company effectively
denied her requests for such accommodations by failing to respond to
them.

During her deposition, Crawford stated that she verbally communi-
cated her requests and that she thought she put them in writing to
R. D. Kennedy, the Chief Executive Officer of Union Carbide. The
record contains no evidence of such a written request; the record does
contain a copy of an April 12, 1994 letter from Crawford to Kennedy,
but in this written communication Crawford did not mention a request
for accommodations for her disabilities. In response to a deposition
question as to the specific accommodations verbally requested, Craw-
ford stated that "[t]he accommodations that were requested was [sic],
`I can't lift these heavy boxes, I need some help, and this room is
awfully dirty.'" J.A. 63. Crawford was also asked during her deposi-
tion, "[D]id you express ... that you would take this job if these spe-
cific accommodations that you had requested were granted?" J.A. 65.
Crawford answered, "I was asking for the accommodations, so that
was to be insinuated, that if the accommodations were made I would
do the job." Id. Crawford was also asked whether Union Carbide had
denied her request for accommodations; she replied,"They didn't do
it. There again, they were operating in a mode where if I'd ask ques-
tions or say something, they would ignore me." J.A. 64. Union Car-
bide maintains that the company told Crawford that it would
accommodate her need for assistance with lifting. The company
asserts, however, that Crawford failed to communicate a request for
an air filter.

April 21, 1994, was the last day Crawford actually performed work
at Union Carbide. Union Carbide maintains that it continued to look

                       6
for a suitable position for Crawford until May 31, 1994, when she was
removed from the payroll. However, the company asserts that nothing
within Crawford's range of qualifications and physical capabilities
became available. Crawford contends that there were positions for
which she was qualified and which she could have performed with
reasonable accommodations, but the company did not consider her for
them.

Crawford's health deteriorated after April 21, 1994. She maintains
that the stress related to her employment situation was a major factor
that exacerbated her asthma. In fact, Crawford's deposition testimony
was that she was not capable of working after April 21, 1994.

Crawford filed this action on March 29, 1996. As relevant to this
appeal, Crawford alleged: (1) that Union Carbide failed to agree to
her requests for reasonable accommodations which would have made
it possible for her to perform the duties of the records clerk position;
and (2) that the company failed to consider her for other positions that
were available during the relevant time period.

Upon completion of discovery, Union Carbide moved for summary
judgment. The district court granted the motion on the basis that
Crawford had failed to establish that she could perform the essential
functions of the records clerk position, or any other position, as of
May 31, 1994, "the date on which her employment was terminated."
J.A. 345. The court therefore concluded that Crawford was not a
"qualified individual with a disability" eligible for relief under the
ADA.

II.

On appeal, Crawford maintains that a genuine issue of material fact
exists as to whether she was a qualified individual with a disability
as of May 31, 1994. She also argues that the district court erroneously
selected May 31, 1994 as the relevant date for purposes of determin-
ing whether she was a qualified individual with a disability. We
review the grant of summary judgment de novo, viewing the disputed
facts in the light most favorable to Crawford and drawing all reason-
able inferences in her favor. See Figgie Int'l, Inc. v. Destileria Serral-
les, Inc., 190 F.3d 252, 255 (4th Cir. 1999).

                     7
The ADA prohibits discrimination against a "qualified individual
with a disability" with respect to "job application procedures, the hir-
ing, advancement, or discharge of employees, employee compensa-
tion, job training, and other terms, conditions, and privileges of
employment." 42 U.S.C.A. § 12112(a). A"qualified individual with
a disability" is defined as "an individual with a disability who, with
or without reasonable accommodation, can perform the essential
functions of the employment position that such individual holds or
desires." 42 U.S.C.A. § 12111(8). To establish a violation of the
ADA, Crawford must show (1) that she has a disability; (2) that she
is an otherwise qualified individual; and (3) that she has suffered
unlawful discrimination based on her disability. 5 See Tyndall v.
National Educ. Ctrs., Inc., 31 F.3d 209, 212 (4th Cir. 1994). One
form of discrimination prohibited by the ADA is failing to make a
reasonable accommodation. See 42 U.S.C.A.§ 12112(b)(5). How-
ever, "[a]n employer is not obligated to provide an employee the
accommodation he or she requests or prefers; the employer need only
provide some reasonable accommodation." Baert v. Euclid Beverage,
Ltd., 149 F.3d 626, 633 (7th Cir. 1998).

Crawford argues that a genuine issue of material fact exists as to
whether she was a qualified individual with a disability as of May 31,
1994. We disagree. During her deposition, Crawford was asked by
her attorney whether she was capable of working after April 21, 1994.
Obviously, a witness giving deposition testimony is free to phrase an
accurate and truthful response as she desires; such freedom is proba-
bly most evident in an exchange between a party and her own attor-
ney. We therefore deem it critical that Crawford's response to this
question was a simple "[n]o." J.A. 224. Although Crawford now
argues that she meant that she was unable to work without reasonable
accommodations, she did not say that. By analogy to the "well estab-
lished" principle that a "genuine issue of material fact is not created
where the only issue of fact is to determine which of the two conflict-
_________________________________________________________________
5 The parties do not dispute that Crawford was disabled for ADA pur-
poses.

We note that although the standard for establishing liability under
§ 504 of the Rehabilitation Act is slightly different than under the ADA,
see Baird, 1999 WL 739413, at *4-*5, that difference is not relevant to
this appeal.

                    8
ing versions of the plaintiff's testimony is correct," Halperin v. Aba-
cus Tech. Corp., 128 F.3d 191, 198 (4th Cir. 1997) (internal quotation
marks omitted), we are unwilling to accept Crawford's invitation to
read into her own testimony something that simply is not there.6

Crawford also argues that the district court erred by assessing
whether she was a qualified individual with a disability as of May 31,
1994 because she contends that the acts of discrimination occurred
prior to that date. She suggests three alternative times for assessing
her status under the ADA: as of January 27, 1994, because that is
when she was informed that her position was being eliminated; after
the records clerk position was offered but prior to April 21, 1994,
because that is when Union Carbide effectively denied reasonable
accommodations; or as of April 21, 1994, because that is the last day
Crawford worked at Union Carbide and is therefore the actual date of
her termination.

Even if Crawford were correct that her status as a qualified individ-
ual with a disability should have been evaluated as of a date prior to
May 31, 1994, and even if she were adjudged to possess that status
as of some prior date, summary judgment is nevertheless appropriate
because no reasonable jury could find that Union Carbide's actions
with respect to the records clerk position violated Crawford's rights
under the ADA. First, there is no genuine issue of material fact as to
whether Union Carbide offered to accommodate Crawford's lifting
restrictions. Although the wiser course may have been for the com-
_________________________________________________________________
6 By reference to the same principle, we see no need to address Craw-
ford's contention that the district court erred in discounting her physi-
cian's May 12, 1994 letter because it was not sworn. Assuming arguendo
that we properly could consider the letter, it conflicts with Crawford's
own sworn statement. Accordingly, it is insufficient to create a genuine
issue of fact.

Crawford also argues that, in determining whether she was a qualified
individual with a disability as of May 31, 1994, the district court erred
in failing to take into account Crawford's assertion that the decline in her
health after April 21, 1994 was due to the stress of her employment situa-
tion. The cause of Crawford's physical condition on May 31, 1994 is not
relevant to a determination of whether she was then capable, with or
without reasonable accommodation, of working.

                    9
pany to document that its offer of the records clerk position included
a lifting accommodation, and although the parties do not agree that
the company clearly verbalized its agreement to Crawford, the chain
of events described in the record requires a conclusion as a matter of
law that the offer included the lifting accommodation: during the job
interview Crawford clearly stated the need for an accommodation in
the form of lifting assistance, and she subsequently was offered the
position. These circumstances do not support an inference that the
offer did not include the lifting accommodation.

We emphasize that the following chain of events is not presented
by this record: employee interviews for position, employee is offered
position, employee then requests accommodation, employer is silent.
In such a situation liability may attach to the employer's failure to
respond to the request for an accommodation. See, e.g., Hunt-
Golliday v. Metropolitan Water Reclamation Dist., 104 F.3d 1004,
1012 (7th Cir. 1997) (stating that "[a]fter an employee's request, both
parties bear responsibility for determining what accommodation is
necessary" (emphasis omitted)); Taylor v. Principal Fin. Group, Inc.,
93 F.3d 155, 165 (5th Cir. 1996) (explaining that"the employee's ini-
tial request for an accommodation ... triggers the employer's obliga-
tion to participate in the interactive process of determining one"). We
simply hold that when, as here, the company is aware of an accommo-
dation request when it extends an offer of employment, the only rea-
sonable inference is that the offer includes the accommodation. Here,
Crawford admits that the company never expressly refused to accom-
modate her lifting restrictions, and the record does not indicate that
she made any attempt to clarify that the offer did not include the
accommodation requested. Especially given the surrounding
circumstances--that Union Carbide had accommodated Crawford's
disabilities for the preceding ten years, had attempted to find her a
replacement job when hers was eliminated for reasons completely
unrelated to her disability, and even had offered to maintain her salary
at its then-present level--we conclude that the record does not sup-
port a reasonable inference that the lifting accommodation was
denied. See Beck v. University of Wis. Bd. of Regents, 75 F.3d 1130,
1135-37 (7th Cir. 1996) (affirming summary judgment in favor
of employer when facts indicated that employer had history of
accommodating employee's disability and employee was primarily

                    10
responsible for breakdown in communications concerning reasonable
accommodation).

Second, with respect to the air filter accommodation, there is no
more than a scintilla of evidence that Crawford ever requested such
an accommodation. See Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 252 (1986) (stating that "[t]he mere existence of a scintilla of
evidence in support of the plaintiff's position will be insufficient [to
defeat summary judgment]; there must be evidence on which the jury
could reasonably find for the plaintiff"). As support for her assertion
that she requested an air filter accommodation, Crawford points to her
comment that "this room is awfully dirty," J.A. 63 (internal quotation
marks omitted), and the April 12, 1994 letter from Thrush to Teter.
We conclude that neither of these pieces of evidence is adequate to
create a genuine issue of material fact.

Crawford's comment that "this room is awfully dirty" is so vague
that no reasonable jury could conclude that it was a request for an
accommodation.7 Nor does the April 12, 1994 letter from Thrush to
Teter constitute a request for an air ventilation accommodation. While
the letter did state that Crawford needed "to be in an environment that
is essentially free of air pollutants such as heavy dust, chemicals or
heavy dirt, including paper dust," J.A. 131, it did not mention the
records clerk position or worksite (or any other employment position,
worksite, or duties), nor did it identify any mechanism, such as an air
filter, that would be necessary to assure a dust-free environment. In
fact, Crawford's deposition testimony was that she had never dis-
cussed the possibility of accommodations for the records clerk posi-
tion with Thrush, and Thrush admitted during his deposition that he
had not inspected the worksite, "didn't know that much about the
job," J.A. 139, and could not render an authoritative medical opinion
on whether Crawford would be able to perform the duties of the posi-
tion without additional information. As Crawford never communi-
cated a request for an air filter accommodation, Union Carbide cannot
_________________________________________________________________
7 Although the record makes abundantly clear that Crawford was will-
ing and able to communicate other concerns to company officials in writ-
ing, there is no evidence that she requested any accommodations in
writing.

                    11
be responsible for failing to provide one.8 See Taylor, 93 F.3d at 165
(stating that "[i]f the employee fails to request an accommodation, the
employer cannot be held liable for failing to provide one").

III.

In sum, we conclude that the district court correctly determined
that Crawford was not a qualified individual with a disability as of
May 31, 1994. And, even if Crawford was a qualified individual with
a disability for purposes of the records clerk position, Union Carbide
satisfied its obligations under the ADA by offering her the records
clerk position with the only accommodation requested--lifting assis-
tance. Accordingly, we affirm the order of the district court granting
summary judgment to Union Carbide.

AFFIRMED
_________________________________________________________________
8 Because we conclude that Union Carbide satisfied any duty it may
have had to accommodate Crawford by offering her the records clerk
position with the lifting accommodation, we need not address Crawford's
allegation that the company violated her rights under the ADA by failing
to consider her for other positions. See Baert , 149 F.3d at 633.

                    12
