UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 21-1471

DANTE MURPHY,

Plaintiff - Appellant,

v.

COUNTY OF NEW HANOVER,

Defendant - Appellee.

Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. Louise W. Flanagan, District Judge. (7:17-cv-00229-FL)

Submitted: September 17, 2021 Decided: October 8, 2021

Before HARRIS and QUATTLEBAUM, Circuit Judges, and SHEDD, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

Michael Confusione, HEGGE & CONFUSIONE, LLC, Mullica Hill, New Jersey, for Appellant. Scott C. Hart, SUMRELL SUGG, P.A., New Bern, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. PER CURIAM:

Dante Murphy appeals the district court’s order granting summary judgment to his

former employer, the County of New Hanover (“the County”), on his failure to

accommodate claim raised pursuant to the Americans with Disabilities Act (ADA),

to 12213. Finding no reversible error, we affirm.

We “review[] de novo the district court’s order granting summary judgment.”

Jacobs v. N.C. Admin. Off. of the Cts.,

, 565 n.1 (4th Cir. 2015). “A district

court ‘shall grant summary judgment if the movant shows that there is no genuine dispute

as to any material fact and the movant is entitled to judgment as a matter of law.’”

at

568 (quoting Fed. R. Civ. P. 56(a)). “A dispute is genuine if a reasonable jury could return

a verdict for the nonmoving party.”

(internal quotation marks omitted). In determining

whether a genuine dispute of material fact exists, “we view the facts and all justifiable

inferences arising therefrom in the light most favorable to . . . the nonmoving party.”

at 565 n.1 (internal quotation marks omitted). However, “the nonmoving party must rely

on more than conclusory allegations, mere speculation, the building of one inference upon

another, or the mere existence of a scintilla of evidence.” Humphreys & Partners

Architects, L.P. v. Lessard Design, Inc.,

(4th Cir. 2015) (internal

quotation marks omitted).

The ADA prohibits employers from “discriminat[ing] against a qualified individual

on the basis of disability in regard to . . . the hiring, advancement, or discharge of

employees, . . . and other terms, conditions, and privileges of employment.”

(a). This “includes . . . not making reasonable accommodations.” 42 U.S.C.

2 § 12112(b)(5)(A). To establish a claim for a failure to accommodate, a plaintiff must show

that (1) he suffers a disability; (2) his employer had notice of the disability; (3) with

reasonable accommodations, he is otherwise qualified to perform the employment position

in question; and (4) his employer refuses to make such reasonable accommodations.

Wilson v. Dollar Gen. Corp.,

(4th Cir. 2013).

We conclude that Murphy failed to establish the fourth prong of his claim. After an

employee establishes he has a “disability” requiring accommodation, an employer has a

duty to engage in an “interactive process” to determine an appropriate accommodation.

See

(o)(3). While employers have “a good-faith duty to engage with

their employees in an interactive process to identify a reasonable accommodation,” Jacobs,

(cleaned up), “[a]n employer may reasonably accommodate an employee

without providing the exact accommodation that the employee requested” and “may

provide an alternative reasonable accommodation,” Reyazuddin v. Montgomery Cnty.,

(4th Cir. 2015). In other words, “the employer has the ultimate discretion to

choose between effective accommodations.” Hannah P. v. Coats,

(4th

Cir. 2019) (internal quotation marks omitted).

“In some circumstances, an unreasonable delay may constitute a denial of an

accommodation.” Smith v. CSRA, F.4th , , No. 20-1377,

, at *12

(4th Cir. Sept. 1, 2021) (internal quotation marks omitted). However, “a relatively short

delay of a few weeks (or even a few months) in approving a request typically does not

support such a claim.”

(cleaned up). It took less than two months from when Murphy

first requested an accommodation until the County moved his workstation to an enclosed

3 office. Two weeks passed between Murphy’s meeting with a County human resources

employee and the email in which she neglected to attach the necessary forms for Murphy

to complete. While Murphy argues that her neglect shows bad faith, he offers nothing more

than conclusory assertions to counter the employee’s testimony that this was just an

oversight on her part. Notably, Murphy himself did not follow-up with human resources

for nearly three weeks after receiving this email, and he only contacted her after his

supervisor informed him that she was going to recommend his termination. And once

Murphy turned in the paperwork, the County moved him into the private office in just under

two weeks. Thus, we conclude that Murphy failed to establish a bad faith failure to engage

in the interactive process.

We further conclude that the County offered a reasonable accommodation for

Murphy’s disability by offering an enclosed office, albeit shared. While Murphy now

argues that this accommodation was not effective and that he sought a private office, the

medical documentation and his reasonable accommodation request asked only for an

enclosed office, not a private one. The ADA only “requires a reasonable accommodation,

not a perfect one.” Adams v. Anne Arundel Cnty. Pub. Schs.,

(4th Cir.

2015) (internal quotation marks omitted). To the extent that it was not an effective

accommodation, at the November 2 meeting that Murphy recorded, he informed his

supervisor that the accommodation was working. While he has since backtracked from

that statement during litigation, “[a] genuine issue of material fact is not created where the

only issue of fact is to determine which of the two conflicting versions of the plaintiff’s

testimony is correct.” Barwick v. Celotex Corp.,

(4th Cir. 1984); see

4 also Stevenson v. City of Seat Pleasant,

(4th Cir. 2014). And to the

extent that the accommodation was not working, it appears to be for reasons unrelated to

Murphy’s disability. While Murphy also sought the ability to telework, the fact that he

teleworked—without his supervisor’s knowledge—for several weeks before requesting an

accommodation, yet was unable to keep up with the demands of his position, shows that

this likely would not have been an effective accommodation. Finally, the fact that the

County terminated Murphy less than two months after implementing the accommodations

when it became apparent that Murphy’s performance was not improving does not show a

failure to accommodate. See Myers v. Hose,

(4th Cir. 1995) (“Nothing

in the text of the reasonable accommodation provision requires an employer to wait an

indefinite period for an accommodation to achieve its intended effect.”).

Therefore, we affirm the district court’s order. We dispense with oral argument

because the facts and legal contentions are adequately presented in the materials before this

court and argument would not aid the decisional process.

AFFIRMED

5