PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

HENRY K. MARTIN,
Plaintiff-Appellant,

v.
                                                                     No. 96-1243
SOUTHWESTERN VIRGINIA GAS
COMPANY,
Defendant-Appellee.

Appeal from the United States District Court
for the Western District of Virginia, at Danville.
James C. Turk, District Judge.
(CA-95-12-D)

Argued: October 2, 1997

Decided: January 30, 1998

Before MICHAEL, Circuit Judge, BUTZNER,
Senior Circuit Judge, and MAGILL, Senior Circuit Judge of the
United States Court of Appeals for the Eighth Circuit,
sitting by designation.

_________________________________________________________________

Affirmed by published opinion. Senior Judge Magill wrote the opin-
ion, in which Judge Michael and Senior Judge Butzner joined.

_________________________________________________________________

COUNSEL

ARGUED: Garrett Minor Smith, MICHIE, HAMLETT, LOWRY,
RASMUSSEN & TWEEL, P.C., Charlottesville, Virginia, for Appel-
lant. Paul Douglas Henson, II, THE CENTER FOR EMPLOYMENT
LAW, P.C., Roanoke, Virginia, for Appellee. ON BRIEF: Peter
McIntosh, MICHIE, HAMLETT, LOWRY, RASMUSSEN &
TWEEL, P.C., Charlottesville, Virginia, for Appellant.

_________________________________________________________________

OPINION

MAGILL, Senior Circuit Judge:

Henry Martin, a former employee of Southwestern Virginia Gas
Company (Southwestern), appeals the district court's grant of sum-
mary judgment in favor of Southwestern on Martin's claim of dis-
criminatory treatment under the Americans with Disabilities Act
(ADA), 42 U.S.C. §§ 12101-12213. Because we find that Martin fails
to state a claim upon which relief can be granted, we affirm.

I.

The facts are largely undisputed. Southwestern employed Martin as
a service technician between November 1965 and September 1992.
For a few months during the mid-1970s, Martin performed sales work
for Southwestern. In September 1990 Martin was employed as a Ser-
viceman II and his essential job functions required"heavy lifting,
bending, overhead work, kneeling, crawling, stooping, lying down,
squatting, twisting and climbing on a regular and consistent basis."
Appellant's Br. at 3.

On September 6, 1990, Martin was injured in a motor vehicle acci-
dent while he was performing his job as a Serviceman II. Martin's
injuries rendered him unable to perform the essential functions of a
Serviceman II and he took unpaid leave of absence through January
1991. In January 1991 Martin returned to Southwestern and was
assigned to light-duty work. These light-duty assignments were tem-
porary and were solely designed to allow Martin to regain the ability
to perform the essential functions of a Serviceman II. Martin failed
to recover and remained unable to resume his former duties.

In November 1991 Southwestern terminated Martin's light-duty
status and placed him on unpaid leave of absence through June 1992.

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On the critical date of June 30, 1992, Southwestern sent Martin a let-
ter notifying him that his employment would terminate ninety days
after July 1, 1992, i.e., on September 29, 1992. On September 27,
1992, Martin wrote Southwestern and requested "reasonable accom-
modation" for his disability in accordance with the ADA. Southwest-
ern did not respond to Martin's request and terminated Martin's
employment on September 29, 1992.

On December 30, 1992, Martin filed a complaint with the Equal
Employment Opportunity Commission (EEOC), alleging that South-
western had refused to reasonably accommodate him and had termi-
nated him because of his disability, in violation of the ADA. The
EEOC's investigation concluded that the evidence did not support a
finding that Southwestern violated the ADA. After receiving his right-
to-sue letter, Martin commenced the present lawsuit.

Martin concedes that he presently is unable to perform the Service-
man II position. However, he argues that sales positions became
available at Southwestern between November 1991 and September
1992, and that he was qualified to fill such positions. Martin also
argues that to reasonably accommodate his disability, Southwestern
was obligated to reassign him to one of the available sales positions.
Southwestern denies that any sales positions became available
between November 1991 and September 1992, and contends that the
ADA does not require Southwestern to even consider reassigning
Martin to a different position within the company.

The district court granted summary judgment to Southwestern,
holding that Southwestern, as an employer, did not have the duty to
consider reassigning Martin to a different position as a reasonable
accommodation under the ADA because Martin was unable to per-
form the essential functions of the Serviceman II position. Martin
appeals.

II.

We may affirm a district court's grant of summary judgment "on
any legal ground supported in the record." Bowling v. Wellmore Coal
Corp., 114 F.3d 458, 460 (4th Cir. 1997).

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In the district court, Southwestern pleaded as an affirmative
defense that Martin failed to state a claim upon which relief could be
granted because Martin's cause of action accrued prior to the effective
date of the ADA. J.A. at 19 (Southwestern's Ninth Defense). While
the district court did not address this issue, we agree.1

The ADA provisions concerning employment discrimination
became effective on July 26, 1992. See 42 U.S.C. § 12111 note--
Effective Date; see also Graehling v. Village of Lombard, Ill., 58 F.3d
295, 296 (7th Cir. 1995); Burfield v. Brown, Moore & Flint, Inc., 51
F.3d 583, 588 (5th Cir. 1995) (per curiam). "The ADA is not retroac-
tive and it does not apply to actions allegedly taken prior to the effec-
tive date of the Act." Burfield, 51 F.3d at 588. Accordingly, an
employer may not be liable under the ADA for discriminatory con-
duct occurring before July 26, 1992. See Morrison v. Carleton
Woolen Mills, Inc., 108 F.3d 429, 443 (1st Cir. 1997).

A disabled plaintiff's employment discrimination cause of action
accrues on the date that the alleged unlawful employment practice
occurs. See Graehling, 58 F.3d at 296; see also Chardon v.
Fernandez, 454 U.S. 6, 8 (1981) (per curiam) (§ 1983 action);
Delaware State College v. Ricks, 449 U.S. 250, 258 (1980) (Title VII
and § 1981 action); English v. Whitfield , 858 F.2d 957, 962 (4th Cir.
1988) (Employee Protection Section of the Energy Reorganization
Act of 1974 action); Price v. Litton Bus. Sys., Inc., 694 F.2d 963, 965
(4th Cir. 1982) (ADEA action). Martin's discrimination cause of
action accrued on June 30, 1992, when Southwestern informed him
that his discharge--though not to take effect until September 29, 1992
--was imminent. See Graehling, 58 F.3d at 297 ("a discharge with a
deferred effective date entails only one discriminatory decision,"
which occurs when employee receives notice of the discharge);
Burfield, 51 F.3d at 589 (statute of limitations begins to run when
_________________________________________________________________
1 This defense is preserved even though not ruled upon by the trial
court. See Romstadt v. Allstate Ins. Co., 59 F.3d 608, 610-11 (6th Cir.
1995); see also Daingerfield Island Protective Soc'y v. Lugan, 797 F.
Supp. 25, 29 (D.D.C. 1992) (if defense of failure to state a claim is raised
in defendant's Answer, the defense is not subject to waiver and may be
asserted in any subsequent motion for summary judgment) (citing Fed.
R. Civ. P. 12(h)(2)), aff'd, 40 F.3d 442 (D.C. Cir. 1995).

                     4
employee receives unequivocal notice of termination); see also
Chardon, 454 U.S. at 8 (statute of limitations starts on date employee
receives notice of imminent discharge because "the proper focus is on
the time of the discriminatory act, not the point at which the conse-
quences of the act become painful") (emphasis omitted); Ricks, 449
U.S. at 258 (unlawful employment practice occurs on the date that
employee is given definite notice of the challenged employment deci-
sion, not the date that the effects of the notice are ultimately felt);
English, 858 F.2d at 961 (proper focus "is on the time of the chal-
lenged conduct and its notification rather than the time its painful
consequences are ultimately felt"). Accordingly, Martin's claim pre-
dates the ADA, and is thus not cognizable.

To avoid the above result, Martin contends that because the ADA
requires an employer to accommodate a disabled employee, and
because he requested reasonable accommodation on September 27,
1992--after the effective date of the ADA--then his ADA discrimi-
nation claim did not arise until Southwestern ignored his request for
reasonable accommodation and implemented its previous decision to
discharge Martin. We disagree.

Martin's argument is flawed because, as the Seventh Circuit
recently explained, "numerous cases hold that a separation at a time
established by an earlier decision is not a fresh act of discrimination.
Only the original decision to let the employee go is subject to analysis
under the anti-discrimination laws." Graehling, 58 F.3d at 296. "An
employer's refusal to undo a discriminatory decision is not a fresh act
of discrimination." Id. at 297 (quotations and citation omitted).
Accordingly, Martin's argument, if accepted, "would as a practical
matter eliminate the statute of limitations in ADA cases." Kennedy v.
Chemical Waste Management, Inc., 79 F.3d 49, 51 (7th Cir. 1996);
see also Conner v. Reckitt & Colman, Inc., 84 F.3d 1100, 1102 (8th
Cir. 1996) (noting that allowing an ADA claimant"to restart the stat-
ute of limitations by sending a letter requesting reasonable accommo-
dations after she has been unequivocally fired would destroy the
statute of limitations"). Southwestern's refusal to consider Martin's
request for reasonable accommodation was merely a consequence of
Southwestern's previous unequivocal decision to discharge Martin
and thus does not provide Martin with a separate cause of action

                    5
accruing after the effective date of the ADA. See Conner, 84 F.3d at
1102; Graehling, 58 F.3d at 297.

Because Martin's cause of action for disability discrimination
accrued prior to the effective date of the ADA, Martin has failed to
state a claim upon which relief can be granted. 2

III.

For the foregoing reasons, we affirm the district court's grant of
summary judgment to Southwestern.

AFFIRMED
_________________________________________________________________
2 The panel asked for and received supplemental briefs on this issue
post-argument. Because we conclude that Martin's claim predates the
ADA's effective date, we do not address the issues raised in Martin's
appeal.

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