UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ALICE STAFFORD,
Plaintiff-Appellant,

v.

THE RADFORD COMMUNITY HOSPITAL,
INCORPORATED, d/b/a Radford
Community Hospital; CARILION
HEALTH SYSTEM,                                                      No. 96-1186
Defendants-Appellees,

and

VHA, INCORPORATED, formerly
known as Voluntary Hospitals of
America, Inc.,
Defendant.

Appeal from the United States District Court
for the Western District of Virginia, at Roanoke.
Samuel G. Wilson, Chief District Judge.
(CA-94-1096-R)

Argued: May 7, 1997

Decided: July 30, 1997

Before MURNAGHAN and MOTZ, Circuit Judges, and
STAMP, Chief United States District Judge for the
Northern District of West Virginia, sitting by designation.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Helen Jean Spence, BELLER & SPENCE, P.C., Chris-
tiansburg, Virginia, for Appellant. John Lester Cooley, Jr., WOOTEN
& HART, P.C., Roanoke, Virginia, for Appellees. ON BRIEF: Kath-
erine C. Londos, WOOTEN & HART, P.C., Roanoke, Virginia, for
Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Alice Stafford appeals the district court's order granting defen-
dants' motion for summary judgment. Stafford asserts that a genuine
issue of fact existed concerning whether she was unlawfully termi-
nated from her position at Radford Community Hospital because of
her age and disability. Finding no reversible error, we affirm.

Stafford, a 50 year old female, worked for Radford Community
Hospital in various nursing positions from 1966 until 1993. In 1991,
Stafford injured her back and, thereafter, was limited to lifting no
more than 35 pounds. Radford reassigned Stafford to nursing posi-
tions that accommodated her weight restrictions.

From September 1992 until July 1993, Stafford was assigned to the
temporary task of completing a feasibility study for Radford's occu-
pational health department. When that task was complete, Radford
informed Stafford that she could apply for another position which
could accommodate her weight restrictions. Stafford unsuccessfully
applied for the only available position, IV therapy nurse, which was
filled by a younger nurse. In August 1993, Stafford stopped working
due to her back injury, and in November 1993, Stafford received
notice of her discharge.

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Stafford then applied for long term disability benefits stating that
her back injury was permanent and that she was terminated from her
job due to her weight lifting restrictions. In support of her disability
application, Stafford's physician stated that Stafford had continued
lower back pain, could not lift, could not return to work, could not
perform any work duties and could not function as a nurse. Addition-
ally, Stafford's physician stated that no job modifications would per-
mit Stafford to return to work. Based upon this information, Stafford
received long term disability benefits. Stafford later discovered that
a substantially younger person had been hired to fill the position of
occupational health nurse at Radford.

Stafford asserted that because Radford hired younger persons to fill
the positions of IV therapy nurse and occupational health nurse, Rad-
ford unlawfully discriminated against Stafford because of her age in
violation of the Age Discrimination in Employment Act ("ADEA"),
29 U.S.C. §§ 621 - 634 (1990 & Supp. 1997). Stafford further
asserted that she was discharged due to her weight restrictions in vio-
lation of the Americans with Disabilities Act ("ADA"), 42 U.S.C.
§§ 12101 - 12213 (Supp. 1997), the Rehabilitation Act of 1991, 29
U.S.C. §§ 701 - 796i (1990 & Supp. 1997), and Virginians with Dis-
abilities Act ("VDA"), Va. Code §§ 51.5-40 - 46 (1997). The district
court granted defendants' motion for summary judgment on Staf-
ford's ADEA, ADA, Rehabilitation Act and VDA claims.

Summary judgment is appropriate where there is "no genuine issue
of material fact," given the parties' burdens of proof at trial. Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (italics in origi-
nal); Fed. R. Civ. P. 56(c). In determining whether the moving party
has shown that 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. Ross v. Commu-
nications Satellite Corp., 759 F.2d 355, 364 (4th Cir. 1985). The
appellate court reviews a grant of summary judgment de novo.
Higgins v. E.I. DuPont de Nemours & Co., 863 F.2d 1162, 1167 (4th
Cir. 1988). In this case, we find that the district court properly granted
the defendants' motion.

In order to establish a prima facie case of discriminatory discharge

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under the ADA, Rehabilitation Act and VDA,* a plaintiff must prove
that (1) she has a "disability;" (2) she is a"qualified individual;" and
(3) "in discharg[ing]" her, her employer"discriminate[d] against [her]
because of [her] disability." Martinson v. Kinney Shoe Corp., 104
F.3d 683, 686 (4th Cir. 1997) (quoting 42 U.S.C.§ 12112(a) (Supp.
1997)); see also Doe v. University of Maryland Med. Sys. Corp., 50
F.3d 1261, 1264-65 (4th Cir. 1995). To determine if Stafford was a
"qualified individual," the court must decide"(1) whether she could
`perform the essential functions of the job['] . . . and (2) if not,
whether `any reasonable accommodation by the employer would
enable [her] to perform those functions.'" Tyndall v. National Educ.
Centers, Inc. of Cal., 31 F.3d 209, 213 (4th Cir. 1994) (citing
Chandler v. City of Dallas, 2 F.3d 1385, 1393-94 (5th Cir.), rehrg.
denied, 9 F.3d 105 (5th Cir. 1993), cert. denied, 511 U.S. 1011
(1994)); see also 42 U.S.C. § 12111(8) (Supp. 1997) (ADA plaintiff
must demonstrate that "with or without reasonable accommodation
[she] can perform the essential functions of the employment posi-
tion").

We agree with the district court and conclude that Stafford was not
qualified to perform the essential functions of the occupational health
nurse position even with a reasonable accommodation. The undis-
puted facts establish that the "essential functions" of an occupational
health nurse included lifting equipment and supplies and maintaining
competency in the use of emergency equipment and supplies. How-
ever, Stafford's physician indicated that Stafford's back injury was
permanent, that she could not perform any work duties, that she could
not function as a nurse and that no job modifications would permit her
to return to a nursing position. Accordingly, we agree with the district
court that Stafford's limitations were so severe that she could not per-
_________________________________________________________________
*As noted by the district court, the standards for establishing ADA and
Rehabilitation Act claims are the same. See 42 U.S.C. § 12117(b) (Supp.
1997) (expressly requiring that the provisions of the ADA be interpreted
in a way that "prevents imposition of inconsistent or conflicting stan-
dards for the same requirements [under] the Rehabilitation Act of 1973").
Further, "[t]he VDA standards for liability follow the standards estab-
lished in the federal Rehabilitation Act of 1973 and adopted in the
ADA." Tyndall v. Nat'l Educ. Centers, Inc. of Cal., 31 F.3d 209, 216
(4th Cir. 1994).

                     4
form the essential functions of the occupational health nurse position
and that no reasonable accommodation would permit Stafford to per-
form those essential functions.

In order to establish a prima facie case of unlawful age discrimina-
tion, a plaintiff must show that "(1) [s]he was in the protected age
group; (2) [s]he was discharged; (3) at the time of the discharge, [s]he
was performing [her] job at a level that met[her] employer's legiti-
mate expectations; and (4) following the discharge,[s]he was
replaced by an individual of comparable qualifications outside the
protected class." Mitchell v. Data Gen. Corp. , 12 F.3d 1310, 1315
(4th Cir. 1993). Once the plaintiff sets forth a prima facie case of dis-
crimination, the burden of articulating a legitimate, nondiscriminatory
explanation for the adverse employment decision shifts to the defen-
dant. Id. at 1314-15. If the defendant articulates a legitimate, nondis-
criminatory explanation for the termination, the presumption of
discrimination drops from the case and the plaintiff bears the ultimate
burden of proving that the defendant intentionally discriminated
against the plaintiff. Id. at 1315.

The district court found that the undisputed facts established that
at the time of her discharge Stafford was not performing her job at a
level that met Radford's legitimate expectations. We agree with that
conclusion. Stafford stopped working at Radford on August 9, 1993
--more than three months before her discharge--because of a back
injury that her physician found was permanent and kept her from per-
forming any nursing duties. Thus, we find that Stafford failed to show
that she was performing her job at her employer's legitimate expecta-
tions at the time of her discharge.

Even if Stafford established a prima facie case of age discrimina-
tion, we conclude that she failed to meet her burden of producing evi-
dence to show that Radford's reason for terminating her was
pretextual. In the termination letter, Radford informed Stafford that
there were no positions available that met her job requirements. Staf-
ford has come forth with no evidence to contradict the reason given
for her termination. Accordingly, we find that Stafford has failed to
create an issue of material fact on her age discrimination claim.

Because no genuine issue of material fact exists as to Stafford's
ADA, Rehabilitation Act, VDA, and ADEA claims, we affirm the

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summary judgment entered by the district court in favor of defen-
dants.

AFFIRMED

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