UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

DAVID RAMSEY,
Plaintiff-Appellant,

v.

WHITE CONSOLIDATED INDUSTRIES,
INC., d/b/a Frigidaire Company;
                                                               No. 97-1383
LINDA BROCK,
Defendants-Appellees,

and

TONY ADAMS,
Defendant.

Appeal from the United States District Court
for the District of South Carolina, at Anderson.
William M. Catoe, Jr., Magistrate Judge.
(CA-95-3776-8-3AK)

Argued: March 2, 1998

Decided: July 17, 1998

Before ERVIN and NIEMEYER, Circuit Judges, and
BROADWATER, United States District Judge for the
Northern District of West Virginia, sitting by designation.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Julius C. Nicholson, Jr., EPPS, NICHOLSON &
STATHAKIS, Anderson, South Carolina, for Appellant. Ingrid
Blackwelder Erwin, OGLETREE, DEAKINS, NASH, SMOAK &
STEWART, P.C., Greenville, South Carolina, for Appellees. ON
BRIEF: Benjamin P. Glass, OGLETREE, DEAKINS, NASH,
SMOAK & STEWART, P.C., Greenville, South Carolina, for Appel-
lees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

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OPINION

PER CURIAM:

David Ramsey appeals from the district court's grant of summary
judgment against him on his claim that his employer, Frigidaire Com-
pany, violated the Americans with Disabilities Act ("ADA"), 42
U.S.C. § 12101 et seq. (1994), when it discharged him due to his
excessive absenteeism. We find that Ramsey failed to establish a
prima facie case of discrimination under the ADA and affirm.

I.

Plaintiff-appellant David Ramsey has been confined to a wheel-
chair since being shot in the back in 1986. In September 1986, Ram-
sey applied for and began receiving Social Security Disability
benefits based on a determination by the Social Security Administra-
tion ("SSA") that he was "totally disabled."

Frigidaire hired Ramsey for a full-time, regular position on the
assembly line in its Anderson, South Carolina plant in September
1993, after Ramsey had been working at the same plant as a tempo-
rary employee for approximately one year. Approximately 15 people
worked on the "divider line" with Ramsey, and he testified that the
workers would often rotate to different jobs on the line. He was
unable to do so, however, because pipes and electrical wires blocked
wheelchair access to part of the line. Ramsey claims he asked Frigi-

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daire for accommodations that would allow him to be able to work
different parts of the line, stand occasionally while working, and oth-
erwise make it easier to navigate a wheelchair on the premises.

Ramsey was aware of Frigidaire's attendance policy, which was
based on a ten-point system. Each employee would start with ten
points, and then have points subtracted if he or she were absent or
tardy. No points were deducted for approved medical leave, and
employees could have a half-point added for every thirty-day period
with perfect attendance. Employees reaching zero points were termi-
nated. For employees with chronic medical conditions, Frigidaire had
an "occurrence program" -- a modified, less-stringent version of its
attendance policy, in which five absences were allowed before a point
would be deducted. Ramsey, who had been working under the tradi-
tional attendance program, was approved for the occurrence program
after bringing in a note from his doctor. All the points Ramsey had
previously incurred were then recalculated according to the occur-
rence program.

Frigidaire kept a log of Ramsey's attendance throughout his
employment, and Ramsey testified that, as far as he knew, all the
entries in the log were correct. Ramsey was counseled about his atten-
dance on December 8, 1993, when he had 4.5 points remaining, and
May 3, 1994, when he had only 1.0 point left. On August 16, 1994,
Ramsey reached zero attendance points when he missed work to take
his wife to the doctor. A review of the attendance log shows that in
the eleven months he worked for Frigidaire, Ramsey was absent, on
leave, arrived late, or left early on a total of 92 days.

Ramsey returned to work on August 22, 1994. On that day he met
with Tony Adams, Frigidaire's employee relations manager, and
Linda Brock, the employee relations/benefits manager. Adams
reviewed Ramsey's attendance record with him and explained that he
was being terminated because he had reached zero points. After being
terminated by Frigidaire, Ramsey worked as a salesperson in an elec-
tronics store for a short time, but left that job in December 1994.

In early 1995, the SSA wrote Ramsey, inquiring about his disabil-
ity and noting that earnings had been reported to his Social Security
record. In response, Ramsey submitted a sworn report and letter in

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which he stated that he had "not worked since December of 1994,
because of illness related to my disability" and that he felt he was
"still eligible and entitled to disability benefits." Joint Appendix at
160.

In November 1995, after receiving a right-to-sue letter from the
EEOC, Ramsey filed suit against Frigidaire and Frigidaire's employ-
ees Adams and Brock alleging, inter alia, that his termination violated
the ADA. Frigidaire responded by filing a motion for summary judg-
ment, which the magistrate judge* granted on the ground that judicial
estoppel barred Ramsey from asserting an ADA claim when he had
represented to the SSA that he was totally disabled and, alternatively,
on the ground that Ramsey had failed to make a prima facie case
under the ADA because his poor attendance record showed that he
was not "otherwise qualified" for the job in question. After Ramsey's
subsequent motion to amend the judgment was denied by the district
court, he appealed.

II.

We review the district court's grant of summary judgment de novo;
if there is no genuine issue as to any material fact, the moving party
is entitled to summary judgment as a matter of law. See Fed. R. Civ.
P. 56(c); Henson v. Liggett Group, Inc., 61 F.3d 270, 274 (4th Cir.
1995). "An employer is entitled to summary judgment if the plaintiff
fails to establish a prima facie case of discrimination or fails to raise
a factual dispute regarding the employer's proffered reasons for the
alleged discriminatory act." Id. "[T]he mere existence of a scintilla of
evidence in support of the plaintiff's position will be insufficient;
there must be evidence on which the jury could reasonably find for
the plaintiff." Anderson v. Liberty Lobby, Inc., 447 U.S. 242, 252
(1986).
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*The parties consented to the jurisdiction of a magistrate judge to enter
a final order pursuant to 28 U.S.C. § 636(c)(1) (1994). For convenience,
we refer to the magistrate judge as "the district court" throughout the
opinion.

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III.

We affirm the district court's grant of summary judgment for Frigi-
daire on the ground that Ramsey failed to raise a genuine issue of
material fact over whether he was "otherwise qualified" for his posi-
tion at Frigidaire. In order to establish a prima facie case of employ-
ment discrimination, a plaintiff must prove that (1) he has a disability;
(2) he is otherwise qualified for the job in question; and (3) he was
discharged solely because of his disability. See Doe v. University of
Md. Med. Sys. Corp., 50 F.3d 1261, 1265 (4th Cir. 1995). Because of
his poor attendance record, Ramsey was not qualified for the position
from which he was terminated. "[A] regular and reliable level of
attendance is a necessary element of most jobs. . . . An employee who
cannot meet the attendance requirements of the job at issue cannot be
considered a `qualified' individual protected by the ADA." Tyndall v.
National Educ. Centers, Inc., 31 F.3d 209, 213 (4th Cir. 1994). The
record clearly shows that Ramsey had an attendance problem: he was
absent, on leave, late, or left early on 92 days out of 11 months, and
reached zero points even under Frigidaire's modified"occurrence
program" attendance policy.

Ramsey contends that Frigidaire's failure to accommodate him
contributed to his high number of absences. He maintains that on
some occasions he was tardy because an insufficient number of handi-
capped parking spaces available at the job site made parking difficult
for him. He also suggests that many of his absences were due to ill-
nesses which resulted from his inability to perform pressure releases
while working on the assembly line, and that Frigidaire failed to rea-
sonably accommodate him when it refused to build him a stand or
redesign the assembly line by moving pipes and wires.

Absent any further evidence to support them, however, these argu-
ments fail to meet the evidentiary standard necessary to create a genu-
ine issue of material fact. As this court has frequently stated, mere
assertions by the plaintiff are not enough to survive summary judg-
ment. See, e.g., Abcor Corp. v. AM Int'l, Inc., 916 F.2d 924, 929 (4th
Cir. 1990). Yet aside from the conclusory assertion that he would
have been absent or tardy less frequently if Frigidaire had made the
accommodations that he allegedly requested, Ramsey has presented
no evidence that his poor attendance record was the result of Frigi-

                     5
daire's failure to reasonably accommodate his disability. On the con-
trary, the record shows that Ramsey's last absence, which brought
him down to zero points and led directly to his termination, occurred
because he took his wife to the doctor and was totally unrelated to his
disabilities.

We find that Frigidaire reasonably accommodated Ramsey's needs
by placing him on the occurrence program. Even with this accommo-
dation, however, he was unable to show up for work in a reasonably
reliable fashion, and this inability shows that he was not therefore
"otherwise qualified" for the position.

IV.

Because we affirm the district court's grant of summary judgment
on the ground that Ramsey failed to establish a prima facie case of
discrimination under the ADA, we find it unnecessary to rely on the
doctrine of judicial estoppel.

AFFIRMED

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