UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

MICHAEL J. DUFFY,
Plaintiff-Appellant,

v.                                                             No. 96-1723

AL PACKER FORD, INCORPORATED,
Defendant-Appellee.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
John R. Hargrove, Senior District Judge.
(CA-95-2202-HAR)

Argued: January 30, 1997

Decided: March 11, 1997

Before LUTTIG and WILLIAMS, Circuit Judges, and CLARKE,
Senior United States District Judge for the
Eastern District of Virginia, sitting by designation.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Mark Edward McCaffrey, Baltimore, Maryland, for
Appellant. Margaret Brooke Murdock, FERGUSON, SCHETELICH,
HEFFERNAN & MURDOCK, P.A., Baltimore, Maryland, for Appel-
lee. ON BRIEF: Robert L. Ferguson, Jr., FERGUSON, SCHE-
TELICH, HEFFERNAN & MURDOCK, P.A., Baltimore, Maryland,
for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

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OPINION

PER CURIAM:

Michael J. Duffy appeals the ruling of the district court granting
summary judgment in favor of Al Packer Ford, Inc., on his claim that
Al Packer Ford discriminated against him in violation of the Ameri-
cans with Disabilities Act ("ADA"). 42 U.S.C. Sections 12101 et seq.
For the reasons stated below, we affirm the district court's grant of
summary judgment in favor of Al Packer Ford.

I.

Duffy was employed by Al Packer Ford as an auto-body technician
for nineteen years until his termination in March 1995. On May 6,
1994, Duffy suffered a stroke which weakened the left side of his
body. Although he suffered from fatigue, depression, and decreased
use of his left arm and leg, Duffy continued to work in Al Packer
Ford's body shop. Duffy's condition continued to worsen. Because of
Duffy's deteriorating condition, Al Packer Ford adjusted his work
schedule and duties. According to Duffy's physician, Duffy suffered
from another stroke sometime in February 1995.

In February 1995, Duffy informed John Hofmeister, Al Packer
Ford's body shop director, that he could not continue to work in the
body shop and that he had to resign. Hofmeister suggested that Duffy
consider selling cars instead of resigning. Duffy agreed. Duffy then
contacted Richard Sherry, General Manager, and Rick Coulson, Sales
Director, to discuss a possible transfer to the sales department. Duffy
was told that if he were to be hired as a salesman, he would have to
undergo training. Due to the trainer's illness, no training was sched-
uled during March or April 1995. On March 25, 1995, Duffy was
informed by a payroll employee with Al Packer Ford that he had been
terminated.

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Duffy signed a Group Disability Income Statement on April 17,
1995. With this statement, Duffy submitted an Attending Physician's
Statement of Disability, signed by his physician on April 19, 1995, in
which Duffy's physician stated that Duffy was continuously totally
disabled for life as of February 24, 1995. In his deposition, Duffy
stated that, following a third stroke, his physician declared him to be
permanently disabled on April 25, 1995.

Duffy filed a charge with the Equal Opportunity Employment
Commission ("EEOC") alleging that Al Packer Ford terminated him
because of his disability without attempting to make a reasonable
accommodation. On May 31, 1995, the EEOC issued a finding that
Duffy had failed to establish any violation of the ADA by Al Packer
Ford. Duffy then filed this action in United States District Court for
the District of Maryland in July 1995. On May 13, 1996, Senior Dis-
trict Judge John R. Hargrove granted summary judgment in favor of
Al Packer Ford. The district court found that Al Packer had fulfilled
its burden of showing no reasonable accommodation was possible
because Duffy was unable to perform the essential functions of a sales
position and that Duffy had failed to present any evidence to the con-
trary. The district court therefore concluded that Duffy had failed to
raise a genuine issue of material fact as to the issue of reasonable
accommodation. This appeal followed.

II.

We review the district court's finding of summary judgment de
novo. See Henson v. Liggett Group, Inc., 61 F.3d 270, 274 (4th Cir.
1995). Summary judgment should be granted pursuant to Federal
Rule of Civil Procedure 56(c)* "after adequate time for discovery and
_________________________________________________________________
*Rule 56 of the Federal Rules of Civil Procedure states in relevant
part:

          The judgment sought shall be rendered forthwith if the plead-
          ings, depositions, answers to interrogatories, and admissions on
          file, together with the affidavits, if any, show that there is no
          genuine issue as to any material fact and that the moving party
          is entitled to a judgment as a matter of law.

Fed. R. Civ. P. 56(c).

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upon motion, against a party who fails to make a showing sufficient
to establish the existence of an element essential to that party's case
. . . ." Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). On
motion for summary judgment, "`the non-moving party is entitled to
have his evidence as forecast assumed, his version of that in dispute
accepted, and the benefit of all favorable inferences.'" Henson, 61
F.3d at 275 (quoting Conkwright v. Westinghouse Elec. Corp., 933
F.2d 231, 233 (4th Cir. 1991)). Accordingly, we must determine
whether Duffy and Al Packer Ford have presented evidence sufficient
to create genuine issues of material fact with regard to each party's
respective burdens of proof, resolving all factual disputes in favor of
Duffy, the nonmovant.

III.

The ADA provides that "[n]o covered entity shall discriminate
against a qualified individual with a disability because of the disabil-
ity of such individual in regard to job application procedures, the hir-
ing, advancement, or discharge of employees, and privileges of
employment." 42 U.S.C. Section 12112(a). The term"discriminate"
includes the failure to make "reasonable accommodations to the
known physical or mental limitations of an otherwise qualified indi-
vidual with a disability who is an applicant or employee, unless such
covered entity can demonstrate that the accommodation would
impose an undue hardship on the operation of the business of such
covered entity." 42 U.S.C. Section 12112(b)(5)(A). A "qualified indi-
vidual with a disability" is "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. Section 12111(8).

The McDonnell Douglas burden-shifting paradigm provides the
primary analysis for determining if an ADA claim should proceed and
ultimately if a plaintiff has proven a violation of the act. See Ennis
v. National Ass'n of Bus. and Educ. Radio, Inc., 53 F.3d 55, 57 (4th
Cir. 1995). Under this analysis, a plaintiff has the initial burden of
demonstrating a prima facie case of discrimination by a preponder-
ance of the evidence. Id. at 58. If the plaintiff succeeds, the burden
of proof shifts to the defendant to articulate some legitimate, nondis-
criminatory reason for its actions against the plaintiff which would

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support a finding by the trier of fact that unlawful discrimination did
not lead to the adverse action. Id. If the defendant meets this burden
of proof, the "presumption created by the prima facie case `drops out
of the picture,'" and the plaintiff then carries the ultimate burden to
prove that he has been the victim of intentional discrimination. Id.
(quoting St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993)). The
district court found that the plaintiff was disabled and had met his ini-
tial burden of presenting a prima facie case. See Duffy v. Al Packer
Ford, Inc., Civil No. HAR 95-2202 at 9 (D. Md. May 13, 1995). The
parties have not disputed these findings.

The issue now before this Court is whether Al Packer Ford fulfilled
its burden to articulate a legitimate, nondiscriminatory reason for not
transferring Duffy to the sales department. Al Packer Ford presented
evidence to the district court of the essential functions required of a
car salesman and argued that Duffy did not meet these qualifications.
Duffy now argues that the district court erred in agreeing with the
essential functions presented by Al Packer and that the court improp-
erly shifted the burden back to Duffy to prove his ultimate case.

The term "essential functions" refers to "the fundamental job duties
of the employment position" and does not include"the marginal func-
tions of the position." 29 C.F.R. Section 1630.2(n)(1). The ADA fur-
ther requires that "consideration shall be given to the employer's
judgment as to what functions of a job are essential. . . ." 42 U.S.C.
Section 12111(8); see also 29 C.F.R. Section 1630.2(n)(3)(I). Al
Packer Ford introduced to the district court answers to interrogatories
by its General Manager which stated that the functions considered
essential for a sales position are as follows: experience in auto sales,
energy level, assertiveness, individualistic, personality which is com-
patible with a sales position, ability to take risks, and communication
skills.

Duffy argues that genuine issues of fact remain regarding whether
these functions are in fact essential to a sales position and whether or
not Duffy could perform these functions. In support of his argument,
he cites the deposition of Duffy's doctor which states that Duffy
could communicate and evidence that Al Packer Ford has hired sales
personnel without experience. Duffy argues that the remaining func-
tions cited by Al Packer are too unwieldy to analyze in a factual

                     5
inquiry and that reasonable persons could differ as to whether these
qualities are desirable in sales personnel.

Duffy presents no evidence to create issues of fact regarding the
essential functions other than communication skills and sales experi-
ence. As stated, we are required to consider the employer's judgment
as evidence of the essential functions of a position. See 42 U.S.C.
Section 12111(8); 29 C.F.R. Section 1630.2(n)(3)(I). Al Packer Ford
presented such evidence in the form of answers to interrogatories
which can be properly considered at the summary judgment stage.
Fed. R. Civ. P. 56(c). Al Packer Ford's evidence with regard to assert-
iveness, energy level, and the ability to take risks is undisputed by
evidence. We must therefore accept Al Packer Ford's list of essential
functions for sales personnel. See Martinson v. Kinney Shoe Corp,
___ F.3d ___, ___, No. 96-1555, Slip Op. at 6-7, 1997 WL 18986 (4th
Cir. Jan. 21, 1997) (accepting employer's evidence of essential func-
tions of shoe sales position when uncontroverted by employee).

Further, the facts of this case clearly demonstrate that at the time
Duffy was seeking a transfer to a sales position, he was not assertive,
was depressed, had difficulty making decisions, and found it difficult
even to pick up a paper and pen. The district court correctly recog-
nized that Duffy therefore could not perform the essential functions
of a sales position at Al Packer Ford. Further, Duffy's disabilities pre-
cluded any reasonable accommodation which would have allowed
Duffy to carry out these essential functions. Duffy is therefore not
qualified under the ADA to sell cars.

It must be remembered that the McDonnell Douglas scheme of bur-
den shifting is not to be followed with rigid precision, U.S. Postal
Serv. Bd. of Govs. v. Aikens, 460 U.S. 711, 715 (1983), but is instead
meant to "fine-tune the presentation of proof and, more importantly,
to sharpen the focus on the ultimate question -- whether the plaintiff
successfully demonstrated that the defendant intentionally discrimi-
nated against [him]." Ennis, 53 F.3d at 59. Once Al Packer Ford pres-
ented uncontroverted evidence of the essential functions of a sales
position and of Duffy's inability to perform those functions with or
without an accommodation, whatever presumptions were created by
Duffy's prima facie case disappeared and it became incumbent upon
him to present evidence that Al Packer Ford intentionally discrimi-

                     6
nated against him. No evidence of intentional discrimination has been
presented. Duffy has therefore failed to meet his ultimate burden of
proof.

IV.

Accordingly, we find that Duffy failed to raise any genuine issues
of fact sufficient to survive summary judgment and that Al Packer
Ford was entitled to summary judgment in its favor. The opinion and
order of the district court below is therefore

AFFIRMED.

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