                   United States Court of Appeals
                         FOR THE EIGHTH CIRCUIT
                                 ___________

                                 No. 04-1695
                                 ___________

Darel E. Luechtefeld,                 *
                                      *
           Plaintiff-Appellant,       * Appeal from the United States
                                      * District Court for the Eastern
      v.                              * District of Missouri.
                                      *
Les Brownlee, Acting Secretary of     *
the Army,                             * [UNPUBLISHED]
                                      *
           Defendant-Appellee.        *
                                 ___________

                           Submitted: December 13, 2004
                              Filed: January 18, 2005
                               ___________

Before MELLOY, BRIGHT, and BENTON, Circuit Judges.
                            ___________

PER CURIAM.

      Appellant Darel Luechtefeld appeals from the district court’s1 grant of
summary judgment for the defendant in this discrimination case brought under the
Rehabilitation Act of 1973, as amended by the Rehabilitation Act Amendment of
1974, 29 U.S.C. § 794. This Act prohibits discrimination in federal employment
based on disability. We affirm.



      1
       The Honorable Stephen N. Limbaugh, United States District Judge for the
Eastern District of Missouri.
       Luechtefeld sued the Department of the Army, for which he worked as a
civilian computer programmer, for firing him because of his handicap of depression.
Luechtefeld claims the Army failed to make reasonable accommodations, consisting
of flexible work hours and occasional absences for three to six months, while he
adjusted to new medication and recuperated from a serious bout of depression.

       To prevail, Luechtefeld must make a prima facie case that he (1) has a covered
disability, (2) is qualified to perform the essential functions of the job, with or
without reasonable accommodations, and (3) suffered an adverse employment action.
Moysis v. DTG Datanet, 278 F.3d 819, 824-25 (8th Cir. 2002). The district court held
that Luechtefeld did not establish the second element of a prima facie case because,
with or without reasonable accommodations he could not perform the essential
functions of the job. The court held that the requested accommodation – flexible
work hours and occasional absences for some months – was unreasonable as a matter
of law.

      On appeal, Luechtefeld challenges the district court’s characterization of the
requested accommodation, and the court’s holding that the disputed request was
unreasonable. We find it unnecessary to address this issue, however, because
Luechtefeld nowhere addresses the vital question whether he was able to do the job,
with or without accommodation.

       The facts, taken in the light most favorable to Luechtefeld, are as follows: He
received a discharge from the United States Marines in 1991 with a 30% disability
rating because of his depression, which was first diagnosed in 1990 while he was in
the Marines. In March of 2000 Luechtefeld was hired by the Army’s Directorate of
Information Management as a Computer Specialist. Luechtefeld was given a
preference in hiring under the Veterans Readjustment Act (VRA). VRA
appointments have a probationary period of one year and a trial period of two years.



                                        -2-
       Before being hired, Luechtefeld had gone six years (1994 - 2000) without a
serious relapse. So his last serious relapse was four years after being diagnosed, and
three years after being discharged from the Marines. In that time Luechtefeld had
worked a variety of jobs, apparently satisfactorily. Having been hired in March 2000,
Luechtefeld suffered a serious bout of depression in August 2000 and was
hospitalized for at least a week. The effect of the depression left Luechtefeld often
unmotivated (sometimes to the point of being unable to get out of bed) and to have
difficulty focusing his mind on anything (and thus not being able to do his work of
computer programming).

       Luechtefeld returned to work in late August, not fully recovered, and adjusting
to new medication. His work attendance was, of course, poor in August. Upon his
return he was still absent too often. His attendance began improving in October and
November. From December until his termination in March 2001 his attendance was
not a significant problem. Apart from absences, Luechtefeld had a problem of
reporting to work late. The problem with tardiness continued after the problem of
day-long absences ended. From the time of Luechtefeld’s return in August 2000 until
his being fired in March 2001, Luechtefeld’s work performance was substandard. His
workload had been dramatically reduced, and his performance on that work was
seriously deficient.

       Luechtefeld was counseled four times concerning his performance, following
his August hospitalization. Attendance was not discussed in the third and fourth
sessions, in January and February 2001. The issue was Luechtefeld’s failure to
complete work at a satisfactory rate. The Army fired Luechtefeld in March 2001, a
couple weeks before the one-year anniversary of his employment. Luechtefeld's
supervisors admit that they thought Luechtefeld was employed on a one-year trial
basis – not a two-year trial – and they would have given him at least another thirty to
forty-five days if they had known he was on a two-year trial period.



                                         -3-
       On the record before us, and before the trial court at summary judgment, there
is no evidence that further accommodations would have enabled Luechtefeld to
perform the essential functions of his job. We are mindful that a depression handicap
presents questions of performance and the reasonableness of requested
accommodations differ than those presented by other handicaps. Here, the question
is essentially how long the employer could reasonably be expected to permit absences
or substandard performance.

       The time from the onset of Luechtefeld’s bout of depression in August 2000
to his firing in March 2001 was seven months. Throughout that time, Luechtefeld
could not perform adequately, and the Army fired him because of deficient
performance. No evidence in the record indicates whether or when Luechtefeld might
regain his ability to work at a standard level, but it had already been seven months in
which his work was deficient. However long the recuperation period would be, it
appears undisputed that during that time Luechtefeld’s work would be seriously
deficient. Luechtefeld does not argue that flexible hours would have enabled him to
perform the essential functions of his job.

       The Army made generous and extensive accommodations, by way of leave time
(including significant leave time donated to Luechtefeld by his co-workers, from their
own earned leave), adjustment of work conditions, and decreased workload. As
Luechtefeld notes, the Army would have been willing to give him another thirty to
forty-five days, had it not mistakenly believed Luechtefeld would by then be a non-
probationary employee (and thus harder to fire).

      We sympathize with Luechtefeld and note the difficult dilemma that his
condition creates for him in his efforts to hold down a job (which, of course, affects
every other aspect of Luechtefeld's life – including his ability to obtain treatment for
depression). Nonetheless, the law does not compel the Army to make further
accommodations than it had made as of March 2001.

                                         -4-
We affirm the district court’s grant of summary judgment for appellee.
                ______________________________




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