Runnebaum v. NationsBank ( 1996 )

Rehearing en banc granted by order filed 12/3/96 --
published opinion of 9/19/96 is vacated
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
WILLIAM RUNNEBAUM,
Plaintiff-Appellant,
v. No. 94-2200
NATIONSBANK OF MARYLAND, N.A.,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Frederic N. Smalkin, District Judge.
(CA-93-3830-S)
Argued: March 10, 1995
Decided: September 19, 1996
Before MURNAGHAN, WILLIAMS, and MICHAEL,
Circuit Judges.
_________________________________________________________________
Reversed and remanded by published opinion. Judge Michael wrote
the majority opinion, in which Judge Murnaghan joined. Judge Wil-
liams wrote a dissenting opinion.
_________________________________________________________________
COUNSEL
ARGUED: Gerard Patrick Martin, MARTIN, JUNGHANS, SNY-
DER & BERNSTEIN, P.A., Baltimore, Maryland, for Appellant. Eva
Susan Tashjian-Brown, MCGUIRE, WOODS, BATTLE &
BOOTHE, Richmond, Virginia, for Appellee. ON BRIEF: Gregg L.
Bernstein, MARTIN, JUNGHANS, SNYDER & BERNSTEIN, P.A.,
Baltimore, Maryland, for Appellant. Donald F. Burke, MCGUIRE,
WOODS, BATTLE & BOOTHE, Baltimore, Maryland, for Appellee.
_________________________________________________________________
OPINION
MICHAEL, Circuit Judge:
William Runnebaum, who is infected with human immunodefi-
ciency virus (HIV), the virus which causes acquired immune defi-
ciency syndrome (AIDS), appeals an order of the district court
granting summary judgment in favor of NationsBank of Maryland,
N.A. on Runnebaum's claims of discriminatory treatment under the
Americans with Disabilities Act (ADA) and the Employee Retirement
Income Security Act (ERISA). See 42 U.S.C.§ 12112 et seq.; 29
U.S.C. § 1140 et seq. We reverse and remand for trial because we
find that issues of material fact preclude summary judgment.
I.
Because this case comes before us after a grant of summary judg-
ment, we must construe the facts in the light most favorable to the
non-moving party, here Runnebaum, and we must draw all justifiable
inferences in his favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
255 (1986); Smith v. Virginia Commonwealth University, 84 F.3d
672, 675 (4th Cir. 1996) (en banc); Amirmokri v. Baltimore Gas &
Elec. Co., 60 F.3d 1126, 1134 & n.3 (4th Cir. 1995). This is because
"at the summary judgment stage the judge's function is not himself
to weigh the evidence and determine the truth of the matter but to
determine whether there is a genuine issue for trial." Anderson, 477
U.S. at 249 (quoted in American Metal Forming Corp. v. Pittman, 52
F.3d 504, 507 (4th Cir. 1995)). Read in the light most favorable to
Runnebaum, the record discloses the following.
In June 1991 NationsBank in Baltimore hired Runnebaum away
from First American Bank, where he had worked in private banking
and had been a branch manager. In his first year at NationsBank Run-
nebaum worked in the private banking department, where he served
as marketing coordinator. When NationsBank's Baltimore operation
2
opened a new trust department, Runnebaum applied for a sales posi-
tion in the new department. Under NationsBank policy Runnebaum
could be considered for another position only if he was "performing
at a satisfactory level or above in [his] current position." Runne-
baum's supervisor in private banking, Michael Kines, recommended
Runnebaum for the new job in the trust department. Kines said that
Runnebaum had "good skills and is a valuable member of the PB [pri-
vate banking] team." In particular, Kines said that Runnebaum had
"[g]ood calling skills and planning ability" and that he did especially
well on "marketing oriented" projects. After a series of interviews
Ann Pettit, the trust department supervisor, hired Runnebaum in June
1992. At the same time Pettit hired Clifford Andersson to work in an
identical position at NationsBank's Bethesda, Maryland, office. Pettit
required both men to sign a "sales goal" letter that set sales targets for
the remaining months of 1992. Runnebaum and Andersson also
received a "Training Tasks" memorandum from Pettit, dated July 14,
1992 (the "July memorandum").
In August 1992 Runnebaum made his first sale, bringing to the
bank $2.55 million in assets to administer. In September Runnebaum
made a second sale that brought in nearly $500,000 in assets. In Octo-
ber the bank gave Runnebaum responsibility for planning a reception
for lawyers from McGuire, Woods, Battle & Boothe. This was an
important marketing event because lawyers (dubbed "external referral
sources" by Pettit) at times referred their clients to the bank's trust
department. The McGuire, Woods reception went well, and Michael
Brown, NationsBank's Baltimore city manager for the trust depart-
ment, sent Runnebaum a handwritten "note of thanks and congratu-
lations."1 On November 6, 1992, Pettit gave Runnebaum responsibil-
ity for planning and hosting the bank's "Greater Baltimore Holiday
Reception," scheduled for December 15. This was a major marketing
and customer relations undertaking, on which the bank spent more
than $10,000. Formal invitations were sent to clients, prospective cli-
ents, and those who could refer clients to the bank. In a memorandum
to Baltimore trust and private banking personnel, Pettit described the
_________________________________________________________________
1 Pettit, of course, was Runnebaum's supervisor. Pettit's office, how-
ever, was in Tyson's Corner, Virginia, so Runnebaum worked closely
with Brown, whose primary responsibility was to "take care of" existing
trust business in the Baltimore office.
3
task of planning the reception as "a large commitment for us during
an extremely busy time." Indeed, Pettit wanted to "make sure" it was
"one of the most successful events we have sponsored."
Sometime between the October 29 note from Brown and the
November 6 reception assignment from Pettit, Runnebaum and Pettit
had a meeting at which Pettit reduced (for the remainder of 1992)
Runnebaum's load of calls on "prospects" (potential clients) and "ex-
ternal referral sources." Petit also mentioned "that there was a lot of
jocular behavior going on" in staff meetings, "and she asked [Runne-
baum] [ ] to [stop] participat[ing] in it."
Runnebaum was diagnosed with HIV in 1988, but he was asymp-
tomatic at all times relevant to this case. Runnebaum told Brown in
September 1992 that he was infected with HIV, and Runnebaum
asked if the bank's employee health plan would pay for AIDS medi-
cation. Runnebaum asked Brown not to tell bank employees (except
for those who administered the health plan) that he was infected.
Brown said that he initially panicked when he learned that Runne-
baum was HIV-positive.
In November 1992 Runnebaum placed his first order for the pre-
scription drug azidothymidine (AZT), and the bank health plan paid
for the drug. AZT is well known to be one method of treating HIV
infection and AIDS. Because Runnebaum could not wait at home to
receive shipments of the drug, he had them delivered to the bank.
Packages containing AZT (and addressed to Runnebaum) were twice
inadvertently opened by bank personnel.
On December 9, 1992, Pettit sent Runnebaum a handwritten note
reading, "William -- I'm thrilled that you're a part of our group. I
look forward to seeing you shine." On December 15, 1992, Runne-
baum hosted the bank's holiday reception. He brought his gay lover
to the reception and introduced him to Pettit as his "boyfriend."
Five days later, Runnebaum made his third sale, this one involving
nearly $2 million in assets. The day before Christmas, Andersson
made his only sale of the year, involving $275,000 in assets. At year's
end Runnebaum had brought in nearly $5 million in assets. Runne-
baum's sales brought in $21,900 in fees to the bank, and Andersson's
4
sales brought in $2,750. Both fee totals fell below the $40,000 target
outlined in the sales goal letters.
On January 12, 1993, Pettit summoned Runnebaum to a meeting
with Phillip Cawley, NationsBank's personnel manager for the
Baltimore/Washington area. Pettit fired Runnebaum at that meeting.
According to Runnebaum, being fired
came as a total surprise. I had no verbal warnings, no writ-
ten warnings. I was called in and let go and told I would be
paid through the end of the month. And it totally blindsided
me.
According to Pettit, Runnebaum was fired for failing to complete the
assignments listed in the July memorandum and for failing to present
a professional image. Andersson was not fired, even though he
brought in only one-eighteenth as much business to the bank as did
Runnebaum. Pettit said in her deposition that she learned in late
November or early December that Runnebaum was infected with
HIV, but by then she had already decided to fire him. She claims that
Runnebaum's disease played no role in her decision to fire him.
Runnebaum promptly filed an administrative claim with the Equal
Employment Opportunity Commission and received a right-to-sue let-
ter. He then filed suit against NationsBank in the United States Dis-
trict Court for the District of Maryland. After discovery the district
court granted the bank's motion for summary judgment on the ground
that Runnebaum failed to establish a prima facie case under the ADA.
The court held in the alternative that Runnebaum did not forecast
enough evidence to prove that the bank's asserted rationale for firing
him was merely pretextual. The court also granted summary judgment
to the bank on the ERISA claim, saying that it decided the ERISA
issue "under the same analytical framework as[the] ADA claim."
Runnebaum appeals, and we reverse and remand for trial.
II.
Title I of the ADA, 42 U.S.C. § 12112, prohibits discriminatory
discharge of "a qualified individual with a disability because of the
5
disability." To prove a violation, a plaintiff must establish (1) that he
has a disability, (2) that he is otherwise qualified for the employment,
and (3) that he was fired solely on the basis of the disability. Doe v.
University of Maryland Medical System Corp., 50 F.3d 1261, 1264-65
(4th Cir. 1995).
A.
Under the ADA,
The term "disability" means, with respect to an individual
--
(A) a physical or mental impairment that substantially lim-
its one or more of the major life activities of such individ-
ual;
(B) a record of such an impairment; or
(C) being regarded as having such an impairment.
42 U.S.C. § 12102(2). The EEOC defines the term "regarded as hav-
ing [a disability]" to include persons who have "a physical or mental
impairment that substantially limits major life activities only as a
result of the attitudes of others toward such impairment." 29 C.F.R.
§ 1630.2(a)(2) (emphasis supplied).
Several courts have held that asymptomatic HIV infection is a dis-
ability per se. E.g., Gates v. Rowland, 39 F.3d 1439, 1446 (9th Cir.
1994); Abbott v. Bragdon, 912 F. Supp. 580, 585-86 (D. Me. 1995);
Doe v. Kohn Nast & Graf, P.C., 862 F. Supp. 1310, 1321 (E.D. Pa.
1994); Support Ministries for Persons With AIDS, Inc. v. Village of
Waterford, 808 F. Supp. 120, 132 (N.D.N.Y. 1992); Cain v. Hyatt,
734 F. Supp. 671, 679 (E.D. Pa. 1990); Benjamin R. v. Orkin Extermi-
nating Co., 390 S.E.2d 814, 818 (W. Va. 1990). Several federal agen-
cies have reached the same conclusion. E.g., 29 C.F.R. § 34.2(Department of Labor); 28 C.F.R. § 35.104 (Department of Justice);
24 C.F.R. Ch. I, Subch. A, App. I (Department of Housing and Urban
Development); 34 C.F.R. § 1200.103 (National Council on Disabil-
6
ity); 7 C.F.R. § 15e.103 (Department of Agriculture); 5 C.F.R.
§ 1636.103 (Federal Retirement Thrift Investment Board); 22 C.F.R.
§ 1701.103 (Institute of Peace); 45 C.F.R.§ 2301.103 (Arctic
Research Commission). We rejected this approach in Ennis v.
National Ass'n of Business & Educational Radio, 53 F.3d 55, 59 (4th
Cir. 1995), where we concluded that § 12102(2) "requires that a find-
ing of disability be made on an [individualized] basis." More particu-
larly, we said "the statute [ ] contemplates case-by-case determin-
ations of whether a given impairment substantially limits a major life
activity, whether an individual has a record of such a substantially
limiting impairment, or whether an individual is being perceived as
having such a substantially limiting impairment." Id. at 60.
Runnebaum, though asymptomatic, has forecast sufficient evidence
here to qualify under 42 U.S.C. § 12102(2)(C), which protects those
who are regarded as having a disability. 2 Bank employees knew Run-
nebaum was HIV-positive and knew he was taking AZT to treat the
condition. Upon learning of Runnebaum's condition, a bank supervi-
sor, Michael Brown, felt "panicky" and "uncontrolled" and believed
death might be imminent for Runnebaum.3 This is enough to show at
_________________________________________________________________
2 The dissent says that it is significant and important, see post at 23 &
30, that Runnebaum checked a box indicating that he was not handi-
capped when he applied for the job in the trust department. This over-
looks the fact that the attitudes of others determine whether a person has
a disability within the meaning of subsection (C). Moreover, it is settled
that an employee may not prospectively waive his right to be protected
under the ADA. Alexander v. Gardner-Denver Co. , 415 U.S. 36, 51
(1974); Riley v. Weyerhaeuser Paper Co., 898 F. Supp. 324, 326
(W.D.N.C. 1995), appeal dismissed in part, aff'd in part, 77 F.3d 470(4th Cir. 1996) (table); H. Rep. No. 485(III), 101st Cong., 2d Sess. 76-
77 (1990), reprinted in 1990 U.S.C.C.A.N. 445, 499-500.
3 The dissent, examining other statements Brown made, says that
Brown simply viewed himself as Runnebaum's "protector," which (the
dissent argues) does not show that Brown regarded Runnebaum as hav-
ing a disability. See post at 31. This analysis, however, begs the question.
If Brown did not regard Runnebaum as having a disability, why did he
regard Runnebaum as needing his protection? Brown's reaction shows
his firm belief that bank officials and employees would respond nega-
tively to the news that Runnebaum was infected.
7
the summary judgment stage that the bank perceived Runnebaum as
having an impairment that substantially limits a major life activity.
B.
The bank does not contest the second Doe element, that Runne-
baum was otherwise qualified for his employment, but argues that
Runnebaum has not met his burden with respect to the third element,
causation. When a plaintiff seeks to prove causation by means of cir-
cumstantial evidence, as Runnebaum does here, the familiar
McDonnell Douglas method is applied. See McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973) (Title VII case); Ennis, 53 F.3d
at 57-58 (ADA case; McDonnell Douglas applied). Runnebaum has
come forward with no direct evidence that he was fired solely on the
basis of his disability, but the circumstantial case he has forecast is
sufficient to avoid summary judgment.
1.
The plaintiff first must establish a prima facie case of discrimina-
tion. A prima facie case under the ADA is established if the plaintiff
proves that he is in the class protected by the Act and: (1) he was fired
or demoted when (2) performing his job at a level which met his
employer's legitimate expectations and (3) his discharge occurred
under circumstances indicating "that it is more likely than not that the
adverse employment action was the product of discrimination." Ennis,
53 F.3d at 58. The plaintiff's burden of establishing a prima facie case
is merely a threshold burden and "is not onerous." Texas Dep't of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).
The bank argues that Runnebaum has not established a prima facie
case because he was not performing his job at a level meeting the
bank's legitimate expectations. We believe that Runnebaum has fore-
cast sufficient evidence to permit a jury to find that he was indeed
performing at an adequate level.
A performance review completed by the bank's private banking
department in March 1992, before Runnebaum transferred to the trust
department, rated him on a scale of one to seven. Seven is the highest
8
rating; one is the lowest. A "four" indicates that the employee "consis-
tently meets job requirements." In the six categories completed, Run-
nebaum received a five, four fours, and a single three. The review
therefore showed that Runnebaum "consistently" met his job require-
ments in five out of six performance categories. Notwithstanding
some criticism, the numerical evaluation was amply supported by nar-
rative praise. In the "Sales/Sales Management" category Kines said
that Runnebaum was "very diligent at following through on several
very trying situations. He maintains his composure as well as the
bank's position in difficult circumstances, which provides balance to
negotiations." In commenting on the areas of "Personnel Manage-
ment" and "Leadership Skills," Kines said that Runnebaum, as mar-
keting coordinator, did "an admirable job" in developing "a unique
and innovative marketing plan for 1991 . . . . This was an unusual
responsibility for a new [officer], but William has the personal skills
and apparent confidence to do well in these activities." Finally, Kines
said that Runnebaum "has shown great resourcefulness during his ten-
ure at [NationsBank]." Kines' follow-up review (relied upon heavily
by the dissent, see post at 21-22 & 34-35) in May 1992 also indicates
satisfactory performance overall. Again, despite some criticism, Kines
continued to praise Runnebaum for providing "us with a good, strong
marketing plan. Coordination has been done tactfully and less heavy-
handedly than in the past." Kines said that Runnebaum had made
strides in the area of interpersonal skills, "buil[ding] bridges with
peers that have enhanced his credibility."
It is, however, Kines' other evaluation in May 1992, when Runne-
baum applied for a transfer to the trust department, that shows he was
meeting the bank's expectations at that time. Runnebaum could only
apply for a transfer if he was "performing at a satisfactory level or
above in [his] current position." Kines, as Runnebaum's supervisor in
private banking, recommended him for the sales position in trusts.
Specifically, Kines told the trust department that Runnebaum had
"good skills and is a valuable member of the PB[private banking]
team." In recommending Runnebaum for the new job, Kines thus cer-
tified that Runnebaum was doing his current job at a satisfactory level
or above.
Runnebaum's supervisors continued to praise him after he began
working in the trust department. Brown, NationsBank's senior trust
9
officer in Baltimore, sent Runnebaum a handwritten "note of thanks
and congratulations" on October 29, 1992, for planning the bank's
reception for a major client referral source, a law firm. A jury could
reasonably conclude on the basis of this note that bank officials val-
ued Runnebaum's ability to plan successful social events that helped
develop and maintain good relationships with referral sources and
made them feel confident about steering potential clients to the bank.
A little more than a month after the successful reception, Pettit,
Runnebaum's immediate supervisor, wrote that she was "thrilled" to
have Runnebaum in her group and looked forward to seeing him
"shine." And, in apparent recognition of Runnebaum's success with
the prior event, Pettit assigned him the important job of planning the
bank's "Greater Baltimore Holiday Reception." Four hundred of the
bank's most important clients, most desired potential clients, and
most significant "centers of influence" for business referrals were
invited. The bank spent more than $10,000 on the event, which was
held at the Center Club of Baltimore. Pettit personally asked Runne-
baum to plan all aspects of the event, and she testified that "any func-
tion you plan correctly for clients takes effort." In a three-page
memorandum to bank managers, Pettit described the reception as "a
large commitment for us at an extremely busy time." To encourage
other managers to get involved in the advance work, Pettit said that
Runnebaum and she would put $1 million in "Sweat equity" into
planning the event. Pettit's goal, as she said in the memorandum, was
to make the reception "one of the most successful events we have
sponsored."4
Even with the time Runnebaum spent to ensure that the event was
successful, he still outsold Andersson 18 to 1. Indeed, just a few days
_________________________________________________________________
4 Although the dissent tries to belittle Runnebaum by saying that he got
too involved in the "minutiae" and "inconsequentia" of the reception, see
post at 33 & 25-26, it was Pettit herself, in her memorandum to bank
managers, who emphasized the importance of seeing to every last detail.
To dismiss Runnebaum's attention to detail as "squandered" time is to
misread completely what Pettit expected of him on this project. Indeed,
even if Pettit had not been so detailed in her instructions, it would have
been irresponsible of Runnebaum to oversee a $10,000 marketing event
and not to pay close attention to the particulars of making it successful.
10
after the reception (which went well), Runnebaum made a $2 million
sale. Andersson, on the other hand, had not yet brought in a single
dollar in sales. Andersson did not make his only sale of the year (for
$275,000) until a few days later.
A jury could reasonably infer that Runnebaum met the bank's legit-
imate expectations.
2.
Once the prima facie case has been established, the employer must
then advance some legitimate, nondiscriminatory reason for the
adverse employment action.
The bank principally relies on a "Memo to Personnel File" ("the
Pettit/Cawley memo") dated January 7, 1993, that Pettit drafted with
the assistance of the personnel manager, Cawley. 5 The Pettit/Cawley
_________________________________________________________________
5 The dissent relies heavily on Runnebaum's behavior when he worked
in the private banking department. See post at 21-23. The Pettit/Cawley
memo does not suggest that Runnebaum's performance in private bank-
ing justifies his discharge from his job in the trust department. The dis-
sent puts far too much weight on negative events that occurred early in
Runnebaum's tenure in private banking, even though those events are, by
the dissent's later admission, "too temporally remote" to be taken seri-
ously. See id. at 33. As we have said, according to the bank's own policy,
Runnebaum could not have been hired by the trust department if his per-
formance in private banking was not "at a satisfactory level or above."
Runnebaum's private banking supervisor, Michael Kines, was on the
whole pleased with Runnebaum's performance. Although Kines recog-
nized that Runnebaum was not without weaknesses, he noted that Runne-
baum "has shown a willingness to take action and develop in the right
direction." Considering everything, Kines believed that Runnebaum's
strengths justified his promotion to trusts.
The dissent also faults Runnebaum for spending "a great deal of time
to advancing his acting career." See post at 26. The record reveals that
most of Runnebaum's efforts in the acting arena took place while he
worked in private banking and that his boss (Kines) encouraged those
efforts. Kines viewed Runnebaum's theatrical work as a creative way to
get involved in the community, to improve the bank's image, and to
11
memo says that Runnebaum was fired primarily for (1) failing to
complete all of the "training tasks" Pettit outlined in the July memo-
randum and (2) failing to present a professional image inside and out-
side the bank. These assertions constitute legitimate, nondiscrim-
inatory explanations for the bank's action and satisfy the bank's bur-
den of production.6
3.
Even though the bank met its burden of production under step two
of the McDonnell Douglas analysis, Runnebaum still has come for-
ward at step three with sufficient evidence to survive summary judg-
ment.
To prevail ultimately at trial, Runnebaum must prove (1) that the
bank's explanation is pretextual and (2) that the bank intentionally
discriminated against him because of his disability. See St. Mary's
Honor Ctr. v. Hicks, 113 S.Ct. 2742, 2748-49 (1993). When this final
burden of persuasion is factored into the summary judgment analysis,
it means that a plaintiff is required to forecast evidence showing a
genuine issue of material fact on the ultimate question of pretext and
discrimination. Mitchell v. Data General Corp. , 12 F.3d 1310, 1316
(4th Cir. 1993); see also Tomka v. Seiler Corp. , 66 F.3d 1295, 1308-
10 (2d Cir. 1995); Collier v. Budd Co., 66 F.3d 886, 892 (7th Cir.
1995); Waldron v. SL Indus., Inc., 56 F.3d 491, 492-93 (3d Cir.
_________________________________________________________________
develop contacts with potential clients. Kines, for example, encouraged
the entire private banking staff to attend Runnebaum's performance as
Tom Joad in Grapes of Wrath. Indeed, Runnebaum testified that "numer-
ous clients" attended his performances and that he got business referrals
as a result of his avocation as an actor. Finally, Kines himself occasion-
ally sang opera and was a member of various church choirs and the opera
guild. At no time did anyone at the bank tell Runnebaum that his extra-
curricular activities were unacceptable; indeed, it appears that those
activities were encouraged.
6 As we discuss below, however, Runnebaum offers specific evidence
to challenge the credibility of the bank's asserted rationale for terminat-
ing him and to demonstrate that the justification asserted was merely a
pretext for discrimination.
12
1995); Torre v. Casio, Inc., 42 F.3d 825, 829-30 (3d Cir. 1994);
Durham v. Xerox Corp., 18 F.3d 836, 839-40 (10th Cir.), cert. denied,
115 S. Ct. 80 (1994); Washington v. Garrett, 10 F.3d 1421, 1433 (9th
Cir. 1994); Hairston v. Gainesville Sun Publishing Co., 9 F.3d 913,
921 (11th Cir. 1994); Developments in the Law--Employment
Discrimination, 109 Harv. L. Rev. 1568, 1599-1601 (1996).
Because an employer's true motive for firing an employee may be
difficult to determine, and because the facts indicating that motive
vary widely from case to case, a plaintiff is not required to show pre-
text and discrimination by any particular kind of evidence at the sum-
mary judgment stage, so long as there is some evidence in the
summary judgment record showing that he could prevail at trial.
Patterson v. McLean Credit Union, 491 U.S. 164, 187-88 (1989).
Runnebaum has met his burden, and the district court erred in grant-
ing the bank summary judgment.
Runnebaum could rely on the following facts to convince a rational
trier of fact that the bank's asserted justifications are pretextual and
that Runnebaum was discriminated against because he was regarded
as having a disability. We do not hold that any one fact alone would
preclude summary judgment. Taken together, however, they demon-
strate the existence of a genuine issue of material fact on the ultimate
question of pretext and discrimination.
a.
Runnebaum's and the bank's respective versions of the facts lead-
ing up to his discharge are in stark contrast. Runnebaum has forecast
specific evidence that would allow a reasonable finder of fact to dis-
believe the bank's version of events and to find the bank's witnesses
not credible.
The factfinder's disbelief of the reasons put forward by the
defendant (particularly if disbelief is accompanied by a sus-
picion of mendacity) may, together with the elements of the
prima facie case, suffice to show intentional discrimination.
Thus, rejection of the defendant's proffered reasons, will
13
permit the trier of fact to infer the ultimate fact of inten-
tional discrimination.
St. Mary's Honor Ctr., 113 S. Ct. at 2749 (emphasis in original).
The main charge against Runnebaum in the Pettit/Cawley memo is
that he failed to attend a sufficient number of "prospect" sales calls.
According to the dissent, see post at 32-33, this shows Runnebaum's
"utter failure to attend to his assigned duties." But a careful look at
the summary judgment record belies this claim. When the record is
viewed in the light most favorable to Runnebaum, it is evident that
Pettit denied him prospect call credit he should have been granted.
Runnebaum was denied credit for all nine such calls he made with
Brown on the ground that Brown was not officially a sales officer,
even though Pettit admitted that Brown was "expected to be interested
in sales" as the trust department's Baltimore city manager. Runne-
baum also was denied credit for a prospect call he made with Sara
Tapiero, a portfolio manager, and for eight calls he made alone.
Ironically, Runnebaum was not given any sales call credit for the
three calls he made that resulted in actual sales . Andersson, by con-
trast, who was not HIV-positive and who was not fired, was given
credit for calls he made with Brown and Tapiero, as well as for four
calls he made alone.
The Pettit/Cawley memo also charges Runnebaum with failing to
make a sufficient number of "external referral source" calls, meetings
with people (such as lawyers and accountants) who could potentially
refer business to the bank. Runnebaum made twelve external referral
source calls. But again, Runnebaum was denied credit for nine of ten
such calls he made with Brown and for one call he made alone.
Runnebaum also creates a factual dispute about the legitimacy of
other reasons assigned for his discharge in the Pettit/Cawley memo.
For example, he was faulted for attending no Baltimore Estate Plan-
ning Council meetings. However, Runnebaum joined the council
(along with Brown), but no meetings were scheduled between the
time he joined and the time he was fired. Similarly, Runnebaum was
faulted for failing to send Pettit blind carbon copies of his correspon-
dence. But all correspondence on Runnebaum's matters went out over
14
Brown's signature, and Runnebaum "feel[s] certain" he told Pettit
about this arrangement.
Another contention of the bank is that Runnebaum did not always
make a timely submission of activity and call reports to Pettit.
Andersson, however, had the same deficiency. According to Pettit,
"both of them had slacked off." Although she put nothing in either's
personnel file, Pettit counseled both men. The conduct of both men
in the reporting area then improved. Nevertheless, this earlier short-
coming was used as a reason to fire Runnebaum, while Andersson,
who had the same "failure to attend to his assigned duties," see post
at 32-33, was not fired.
In response to the charge that he failed to present a professional
image, Runnebaum contends that the bank now overstates the signifi-
cance of the incidents cited. Runnebaum's joking around, for exam-
ple, seems to have been common behavior for many members of the
Baltimore office. According to Runnebaum, internal meetings "got
out of hand from time to time with all members of the sales staff," pri-
marily because the bank's salespeople were "highly energized" and
prone to "a lot of horseplay." Similarly, Pettit wrote off the "inappro-
priate behavior" Runnebaum allegedly engaged in at a presentation to
a law firm shortly after joining the trust department, see post at 24-25,
to his inexperience. According to Brown, Pettit simply said "he is
young," and "he has got to learn it is okay not to say anything." More-
over, the bank has not explained why Runnebaum was allowed (near
the end of his tenure) to be co-host with Pettit of the holiday recep-
tion, to which 400 clients, potential clients, and "referral sources"
were invited, if his behavior could not be trusted. Thus, Runnebaum
claims that his behavior did not seriously trouble the bank until it
learned he was infected with HIV and needed an after-the-fact ratio-
nalization to fire him.
The Pettit/Cawley memo's questionable reliability, then, weighs
against summary judgment. Runnebaum's evidence, if believed at
trial, supports reasonable "disbelief of the reasons put forward by the
defendant" and "rejection of the defendant's proffered reasons,"
which would permit a reasonable finder of fact to "infer the ultimate
fact of intentional discrimination." St. Mary's Honor Ctr., 113 S. Ct.
at 2749.
15
b.
The timing of Runnebaum's termination also raises a sufficient
question of pretext and discrimination to weigh against summary
judgment. See EEOC v. Ackerman, Hood & McQueen, Inc., 956 F.2d
944, 949 (10th Cir.), cert. denied, 506 U.S. 817 (1992). Runnebaum
was given additional marketing responsibilities relatively early in his
tenure with the trust department, and he even received a note of praise
from his supervisor, Pettit. Just a short time later, though, Runnebaum
was fired. The record thus presents an unresolved material question:
what caused the bank's attitude toward Runnebaum to change so sud-
denly.
Runnebaum argues that the change came with Pettit's discovery
that Runnebaum was HIV-positive or with her learning that he was
receiving medication to treat his condition. The bank claims, how-
ever, that Pettit had already made the decision to fire Runnebaum
before she learned of his disability and that the bank employees who
opened Runnebaum's medicine packages never told Pettit that Runne-
baum was taking AZT. Whether Pettit resolved to fire Runnebaum
before or after she learned he was HIV-positive and whether she
knew Runnebaum was taking AZT, however, are questions of fact
that must be resolved at trial. More particularly, these questions center
on Pettit's credibility, and questions of witness credibility must be left
to the trier of fact. Tuck v. Henkel Corp., 973 F.2d 371, 376 (4th Cir.
1992), cert. denied, 507 U.S. 918 (1993); see also Beardsley v. Webb,
30 F.3d 524, 530 (4th Cir. 1994); Gray v. Spillman, 925 F.2d 90, 95
(4th Cir. 1991).
Pettit's inconsistent behavior supports a finding of discriminatory
intent. Pettit claims she decided to fire Runnebaum sometime in
November 1992, but she never warned him that he was in danger of
losing his job. Furthermore, on December 9 she praised him, sending
him a handwritten note reading, "William -- I'm thrilled that you're
a part of our group. I look forward to seeing you shine." This cuts
against the bank because bosses generally do not praise employees
they have decided to sack. Pettit's conduct sheds doubt on her claim
16
that she resolved to fire Runnebaum before she learned he was
infected with HIV.7
Finally, we mention again that Pettit trusted Runnebaum to plan
and host the most important bank social event of the year. Would a
reasonable bank official budget $10,000 for her most important mar-
keting event of the year, only to entrust the event's planning and exe-
cution to a person who posed a risk of alienating those who would
attend? The answer is obvious and suggests that a reasonable finder
of fact could disbelieve the bank's asserted rationale for terminating
Runnebaum.
From the foregoing, a jury could find that Pettit decided to fire
Runnebaum after she sent him the December 9 note and soon after
she learned that he was HIV-positive. This finding would support
Runnebaum's claim that the bank discriminated against him solely
because he was infected with the AIDS virus.
c.
Brown's reaction upon learning that Runnebaum was infected with
HIV could also lend support for a finding of pretext and discrimina-
tion.
_________________________________________________________________
7 The dissent, see post at 36, fails to recognize the importance timing
plays in this case. The dissent says that the December 9 note "is cast in
anticipation of future achievements," "speaks in terms of future hope,"
and "merely . . . hop[es] for a profitable future" for Runnebaum. Id.(emphasis in original). Pettit claims, however, that she sent the note a
month after she had "resolved conclusively to discharge Runnebaum." Id.
at 25. The dissent fails to explain this glaring inconsistency between Pet-
tit's purported intent and her undisputed conduct. If Pettit had conclu-
sively resolved to fire Runnebaum before she sent the note, what
"profitable future" did she foresee for him? The finder of fact could con-
clude that Pettit's claim that she resolved to fire Runnebaum before she
learned he was infected with HIV lacks the ring of truth. Thus, the ques-
tion of Pettit's credibility is squarely in issue and militates against sum-
mary judgment. See St. Mary's Honor Ctr., 113 S. Ct. at 2749; Mitchell,
12 F.3d at 1316.
17
Many disabilities are apparent to a casual observer. An employer
can see a wheelchair, a guide dog, or a hearing aid. Other disabilities,
however, are invisible to the naked eye. Runnebaum's alleged disabil-
ity, being HIV-positive, falls into the latter category. When a disabil-
ity is not readily apparent, an employer's reaction upon learning of
the disability can be relevant to a finding of discrimination. Specifi-
cally, an employer's immediate reaction often can provide insight into
his motives for later firing a disabled employee. 8
When Brown learned that Runnebaum was HIV-positive, he imme-
diately felt
panic, panic because I was thinking how am I going to
work, you know, and be a friend to somebody who is HIV
positive. I've educated myself a lot since then. But, you
know, suppose he dies on me. Should I tell Ann[Pettit] at
this point, should I tell the bank? I remember feeling pan-
icky, uncontrolled.
(Emphasis supplied.)
The finder of fact could view this statement as evidence that Pettit
learned from Brown that Runnebaum was HIV-positive before she
decided to fire him. This evidence also lends support for a finding that
Runnebaum was not fired because of poor performance, but because
_________________________________________________________________
8 Our analysis of this issue is guided by cases interpreting the Preg-
nancy Discrimination Act of 1978. See Lempres v. CBS Inc., 916 F.
Supp. 15, 23 n.37 (D.D.C. 1996) (Pregnancy Discrimination Act plaintiff
must meet requirements similar to those imposed on ADA plaintiffs).
Pregnancy is not observable at first. Yet an employer's reaction upon
learning that an employee is pregnant can be relevant in proving that he
later fired her with discriminatory intent. EEOC v. Ackerman, Hood &
McQueen, Inc., 758 F. Supp. 1440, 1453 (W.D. Okla. 1991), aff'd, 956
F.2d 949 (10th Cir.), cert. denied, 113 S. Ct. 60 (1992); accord Metz v.
Merrill Lynch, Pierce, Fenner & Smith, Inc., 39 F.3d 1482, 1485 &
1491-92 (10th Cir. 1994); Thompson v. La Petite Academy, Inc., 838 F.
Supp. 1474, 1477-78 (D. Kan. 1993); cf. McDonnell Douglas, 411 U.S.
at 804 (employer's "reaction, if any" upon learning of plaintiff's civil
rights activities is relevant to show pretext).
18
supervisors at the bank panicked at the thought of having an AIDS
patient on the payroll.9
d.
Runnebaum has also come forward with comparative evidence in
support of his claim of pretext. "Comparative evidence is that which
shows employees who were not members of the protected class were
treated differently." Reeves v. Thigpen, 879 F. Supp. 1153, 1176
(M.D. Ala. 1995). A plaintiff may use comparative evidence to show
the existence of a genuine issue of material fact on the question of
pretext and thereby defeat a defense summary judgment motion. Id.
at 1175-76; see also Alvarado v. Bd. of Trustees of Montgomery Com-
munity College, 928 F.2d 118, 122 (4th Cir. 1991) (affirming judg-
ment, after bench trial, on basis of comparative evidence).
Runnebaum outsold Andersson (who was not regarded as having
a disability) by a factor of 18 ($5 million to $275,000), but Anders-
son was not fired even though Andersson and Runnebaum were hired
at the same time and were given identical sales goals. Brown testified
that the key goal of salesmen like Runnebaum and Andersson was "to
bring in new business." In addition, another bank employee, David
Kutch, said that Runnebaum, like Andersson, was "there to produce
volume." Finally, the record does not disclose that Andersson spent
large amounts of time (as did Runnebaum) organizing important mar-
keting events at the bank's request. We recognize that Runnebaum
may have had shortcomings, as the bank claims, justifying his firing.
But given the bank's overriding emphasis on sales, a question is
_________________________________________________________________
9 Improperly reading Brown's statement in the light most favorable to
the bank, the dissent claims that it proves Brown's lack of discriminatory
motive toward Runnebaum and that Brown's motive always was to be
Runnebaum's "protector." See post at 39. Yet Brown admitted in his
deposition that there was occasionally bad blood between him and Run-
nebaum, that sometimes their discussions had been "combative or argu-
mentative," and that Runnebaum believed Brown had a "vendetta"
against him. Because on summary judgment all facts and reasonable
inferences must be construed in the light most favorable to the non-
moving party, the finder of fact must be allowed to determine at trial the
true nature of the relationship between Runnebaum and Brown.
19
raised when the salesman who was fired brought in 18 times as much
business as the salesman who was not fired. Moreover, as we dis-
cussed above, Pettit was much more lenient with Andersson on grant-
ing credit for sales calls and on excusing his tardiness in turning in
activity and call reports. A jury could reasonably see these inconsis-
tencies as evidence of pretext and discrimination. 10
III.
The dissent's criticisms largely boil down to a factual attack. And
while the dissent does a good job of arguing that the facts may rea-
sonably be read in the bank's favor, that argument is not enough to
establish the bank's right to summary judgment. Although a factfinder
could reasonably choose to believe the bank, the same factfinder
could also reasonably determine on the basis of the record before us
that the bank's explanation for firing Runnebaum is not worthy of
credence and that discrimination was the true motivation for his ter-
mination.
In sum, Runnebaum has forecast evidence of all the elements of a
prima facie case and evidence to support a finding of pretext and dis-
crimination. Runnebaum's ADA claim must survive summary judg-
ment because there is a genuine issue of material fact as to whether
he was fired because he was regarded as having a disability.11 We
reverse and remand for trial.
REVERSED AND REMANDED
_________________________________________________________________
10 The bank currently employs other HIV-infected persons. The bank
may not, however, be granted summary judgment simply because it has
a few employees within the protected class. See O'Connor v. Consoli-
dated Coin Caterers Corp., 116 S. Ct. 1307 (1996); Carson v. Bethlehem
Steel Corp., 82 F.3d 157, 158-59 (7th Cir. 1996).
11 Because the district court granted summary judgment on Runne-
baum's ERISA claim for precisely the same reasons summary judgment
was granted on the ADA claim, and because the relevant elements of the
prima facie case are the same, see Conkwright v. Westinghouse Elec.
Corp., 933 F.2d 231, 239 (4th Cir. 1991), Runnebaum's ERISA claim
must survive as well.
20
WILLIAMS, Circuit Judge, dissenting:
The majority holds that Runnebaum not only succeeded in estab-
lishing a prima facie case of discrimination under the ADA and
ERISA, but also demonstrated sufficiently to survive summary judg-
ment, that NationsBank's reasons for discharging him were pretex-
tual. Concluding that the majority's holdings cannot be squared with
the facts of this case or the law of this circuit, I cannot subscribe to
either holding. The undisputed, material facts establish that Runne-
baum cannot prove a prima facie case of discrimination. Even assum-
ing that Runnebaum established a prima facie case, I would hold that
NationsBank's articulated reasons for his discharge were not pretex-
tual as a matter of law. Accordingly, I dissent.
I.
I recite the facts that the majority necessarily ignores in order to
reach its conclusions. While the parties do not dispute that Runne-
baum, when he so chose, performed well, he failed to perform well
consistently; and just as consistently, he engaged in conduct that justi-
fied his termination from employment. Moreover, even stellar perfor-
mance in some areas cannot overcome an overarching failure to fulfill
professional responsibilities. In my view, the majority loses sight of
these two precepts.
NationsBank hired Runnebaum in May 1991 as an assistant vice
president in the private banking division, and from the inception of
his brief, nineteen-month stint at NationsBank, Runnebaum experi-
enced difficulty in satisfying his professional responsibilities. In a
March 20, 1992, written evaluation of Runnebaum (March Memoran-
dum) -- from which the majority selectively culls sterile numerical
ratings to conclude that Runnebaum's performance was satisfactory,
see ante at 8-9 -- Department Manager Michael Kines, Runnebaum's
first supervisor at NationsBank, detailed Runnebaum's difficulty in
meeting NationsBank's standards. For instance, while Kines stated
that Runnebaum "demonstrated rudimentary . . . credit analysis tech-
niques," performed "a good job on simple . . . credits," and demon-
strated "the personal skills and apparent confidence to do well" in
banking, Kines also observed that Runnebaum's "production has been
minimal" and that his "[e]ffectiveness was hampered by communica-
21
tion problems, but this could have been corrected with extra effort."
(J.A. at 54-55.) Additionally, Kines concluded that Runnebaum was
"heavy-handed" in dealing with his peers, and his unorthodox behav-
ior was unpredictable, causing his colleagues and clients to question
his credibility. (J.A. at 54-55.) Kines's evaluation also noted that Run-
nebaum failed to familiarize himself with bank procedures and policy
and to see tasks through to completion, finally concluding that "[a]t
this point in [Runnebaum's] career, close monitoring by management
should never be necessary." (J.A. at 55.) Thus, in his first evaluation
by NationsBank, Runnebaum was apprised that his employer was less
than fully satisfied with his performance.
Two months later, on May 18, 1992, Kines again evaluated Runne-
baum, reiterating many of his past criticisms. Kines observed that
Runnebaum had progressed regarding his personnel management,
interpersonal skills, and completion of duties, specifically recognizing
that Runnebaum orchestrated a successful marketing plan for a corpo-
rate client. Equally, however, Kines reasoned that because Runne-
baum maintained so few clients, there was no reason not to handle
their needs meticulously. While acknowledging Runnebaum's suc-
cesses, Kines also noted his failures. For instance, in the "Negative
events" category, Runnebaum was censured for "[m]anicky behavior
in meetings," "[c]redibility of out-of-office time," two botched loans,
and a complaint lodged against him. (J.A. at 97.) In the category
described as "Jury Still Out" events, Runnebaum's "[d]evelopment of
new business and credible leads" and "[d]ay-to-day productivity"
were questioned. (J.A. at 97.) With respect to Runnebaum's credit
management, Kines expressed dismay over business development and
timeliness in completing duties, noting that "no significant credits
have been presented, either for preliminary discussion or approval,"
"[t]ime is fleeting on meeting personal and unit goals," and "[d]elays
in credits, such as those [concerning the two botched loans] will not
be tolerated." (J.A. at 97-98.) With respect to Runnebaum's interper-
sonal skills, Kines noted that Runnebaum must check nervous behav-
ior and the tendency to blame others for mishaps. The majority's
mischaracterization of this evaluation as "continued praise" for Run-
nebaum's performance is simply wrong. See ante at 9. This evaluation
specifically cites five failures, two undecideds, and one positive
aspect of Runnebaum's performance. A fair reading of this evaluation
22
establishes beyond cavil that Runnebaum's performance was not lau-
datory.
Runnebaum's professional and personal conduct continued to
decline. Michael Brown, NationsBank's Senior Managing Officer in
Baltimore, and David Kutch, another of Runnebaum's supervisors,
testified that Runnebaum's professional career was plagued by unex-
plained absenteeism, tardiness, and lengthy lunch periods. Kutch
stated that Runnebaum enjoyed shocking colleagues and clients by
recounting racially and sexually offensive jokes at conference meet-
ings. According to Kutch, Runnebaum's forays into dubious humor
were "disastrous." (J.A. at 79.) For instance, at a meeting, Runnebaum
flippantly speculated about the estate of a client whose mother had
recently died and improperly attempted to goad a potential client into
allowing NationsBank to handle his financial affairs. Also, on solicit-
ing a client, he impersonated the chairman of another bank, and after
executing the charade for a few minutes, identified himself, advising
the client -- in scatological terms -- to let NationsBank handle his
banking needs. Exhibiting a penchant for acting, Runnebaum enjoyed
mimicking persons whose native language was not English, doing so
loudly enough to be heard by NationsBank clients, even if the butt of
the jest was a NationsBank customer. The majority's attempt to write
this conduct off as "jocular" is disingenous at best, particularly when
it attributes to Pettit what is actually Runnebaum's view of her criti-
cism. (J.A. at 91.)
Kines and Kutch were not surprisingly relieved by Runnebaum's
request to transfer to the Trusts/New Business Development Balti-
more Division (Trust Department), which was effective July 8, 1992.
A fact ignored by the majority, but of significance to this appeal, is
that in completing the paperwork to effectuate his transfer, Runne-
baum unequivocally represented that he was not handicapped, thereby
signifying that he suffered no disability. Furthermore, Runnebaum
never once requested that NationsBank implement accommodations
regarding any disability pursuant to the ADA.
Simultaneous with Runnebaum's transfer to the Trust Department
in Baltimore, NationsBank also hired Clifford Andersson to perform
the same work in its Bethesda, Maryland, office. In connection with
their new positions, Ann Pettit, Runnebaum's supervisor in the Trust
23
Department, articulated NationsBank's expectations of Runnebaum
and Andersson in a memorandum dated July 14, 1992 (July Memo-
randum). According to the July Memorandum, Runnebaum and
Andersson were instructed that:
Each of you should arrange with each sales officer to join
them on 3 initial and/or follow-up prospect meetings. (Total
of 18 joint prospect calls each)
Each of you should arrange with each sales officer to join
them on 2 external referral source calls (Total of 12 joint
external referral source calls)
Note: For [these items], these should be the sales officer's
prospects or referral sources in order for you to observe their
interactions, style and sales skills.
You should not go on any prospect or referral source calls
on your own at this time. If you do, you must include either
another sales officer, me or, in [Runnebaum's] case, Mike
Brown. These calls will be in addition to the requirements
listed [above]. At the end of September, we will review to
determine your progress.
(J.A. at 106-07.) (emphasis added). That Runnebaum failed to comply
with the July Memorandum is not disputed. In the memorandum
memorializing Runnebaum's discharge dated January 7, 1993 (Janu-
ary Memorandum), Pettit observed that Runnebaum: (1) completed
only one of the eighteen required joint sales calls; when this number
later was reduced to five, he completed none;1 (2) completed only two
of the twelve required joint external referral source calls; (3) failed to
attend any of the required Baltimore Estate Planning Council func-
tions; (4) failed to submit required call reports, which were necessary
in order for NationsBank to determine whether there was follow-up
with the customer; (5) failed to take suggested training classes or
attend manager's meetings; and (6) failed to comport himself profes-
sionally.
_________________________________________________________________
1 Indeed, during his deposition Runnebaum testified that he had not
intended to make these required sales calls.
24
In addition to failing in his duties, Runnebaum continued to engage
in inappropriate behavior. In two presentations to two separate law
firms whose business NationsBank was courting, Runnebaum pres-
ented the trust and estate information in a condescending manner to
attorneys who were skilled in that area of the law. Additionally, Run-
nebaum provided to one law firm a trust and estate manual prepared
by another law firm, and in doing so, implied that the recipient of this
manual would not otherwise comprehend trust and estate law. At yet
another meeting with a major client, NationsBank officers were
"committed that [Runnebaum] not be there, because they were afraid
of what he might say or do." (J.A. at 549.) Brown cautioned Runne-
baum regarding this unprofessional conduct. In addition, Pettit found
Runnebaum's joking "inappropriate." (J.A. at 79.) Even Runnebaum
admitted in his own sworn testimony that Pettit counseled him twice
concerning his unprofessional conduct at meetings. The record belies,
therefore, Runnebaum's bald assertions that he was not apprised of
NationsBank's dissatisfaction with his employment performance and
that there was no record of his deficient performance.
Not surprisingly, NationsBank decided to terminate Runnebaum.
Indeed, while counseling Runnebaum on November 3, 1992, concern-
ing his untoward conduct and dereliction in meeting sales goals, Pettit
decided Runnebaum would not be able to complete his assigned activ-
ities and should be discharged. Despite Pettit's decision to terminate
Runnebaum, Pettit decided to give him an opportunity to redeem him-
self. Accordingly, Pettit reduced his sales goals and attempted to
inspire him to satisfy them by writing him a note dated December 9,
1992, stating "I'm thrilled that you're a part of our group. I look for-
ward to seeing you shine." (J.A. at 431.) Lesser goals and inspiration
were for naught. Pettit resolved conclusively to discharge Runne-
baum, stating that she reached this decision November 3, 1992.
While many considerations entered the calculus to discharge Run-
nebaum, Pettit focused on the fact that he had failed to meet his sales
goals, despite the fact that his goals had been reduced in the illusory
hope that Runnebaum might be able to satisfy them, as well as failed
to perform required duties and exhibit proper decorum. In addition,
Runnebaum wasted inordinate amounts of time planning Nations-
Bank's Christmas party. While undeniably NationsBank asked Run-
nebaum to plan this affair, equally so, NationsBank did not sanction
25
the time he squandered on making these plans. By his own admission,
Runnebaum testified in his deposition that "[o]verall, I know I spent
several hours each day dealing with details leading up to that party
from approximately the beginning or to the end of November to the
December 15th date." (J.A. at 92.) (emphasis added). Despite
employing an administrative assistant to handle the trivialities of
planning the Christmas party, Runnebaum abjured his professional
responsibilities to attend to such trifles as
designing the invitations, compiling a guess [sic] list, wrap-
ping host gifts, ordering handmade truffles, preparing the
menu items, preparing the name tags, procuring supplies
needed for the event, procuring a pianist, renting a piano
....
(J.A. at 93.) Notwithstanding that his sales goals were reduced and he
was counseled twice immediately prior to the Christmas party to con-
duct himself professionally, Runnebaum spent hours each day
immersing himself in this inconsequentia, and he took the opportunity
to introduce his homosexual partner to colleagues and clients at the
Christmas party. Runnebaum also devoted a great deal of time to
advancing his acting career and his own corporation, Wilmarc Pro-
ductions, while ostensibly working for NationsBank, and wrote
numerous personal letters and invitations on company time and with
company equipment. The majority attempts to characterize Nations-
Bank as condoning this conduct by noting that Kines encouraged
NationsBank employees to attend Runnebaum's performance in
Grapes of Wrath. See ante at 11-12 n.5. There is no evidence, how-
ever, that Kines encouraged Runnebaum to advance his acting career
on NationsBank time and utilizing NationsBank equipment. While
Kines may have encouraged Runnebaum's acting pursuits, Kines did
not encourage such conduct at NationsBank's expense.
Pettit catalogued Runnebaum's unacceptable performance and
memorialized her decision to terminate Runnebaum in the January
Memorandum, but failed to record this memorandum in his personnel
file. On January 12, 1993, Runnebaum, Pettit, and Philip Cawley, Per-
sonnel Manager for NationsBank, convened to effectuate the termina-
tion, and as of that date, Runnebaum ceased to be employed by
NationsBank.
26
Runnebaum filed suit against NationsBank, bringing two claims.
First, he claimed that he was terminated in violation of the ADA
because he is HIV-positive, contending that this affliction renders him
disabled.2 Second, he alleged that his termination violated ERISA by
preventing him from receiving payments for his AZT treatment. Con-
cluding that Runnebaum failed to establish a prima facie case under
either the ADA or ERISA, and even if he had, he failed to prove
NationsBank's articulated reasons for his discharge were pretextual,
the district court granted NationsBank's motion for summary judg-
ment.
II.
Federal Rule of Civil Procedure 56(c) squarely places on Runne-
baum the burden to proffer competent evidence of each element of his
claim following NationsBank's well-supported motion for summary
judgment based on Runnebaum's failure to establish a prima facie
case, and alternatively, his failure to prove NationsBank's articulated
reasons for his discharge were pretextual. The language of Rule 56(c)
is compulsory, mandating that the district court enter judgment
against Runnebaum if, "after adequate time for discovery . . . [he]
fails to make a showing sufficient to establish the existence of an ele-
ment essential [of his] case, and on which[he] will bear the burden
of proof at trial." See Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). Prevailing on its motion for summary judgment, NationsBank
demonstrated to the district court that: (1) there was no genuine issue
with respect to any material fact; and (2) it was entitled to judgment
as a matter of law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248-52 (1986). In determining whether a genuine issue of material
fact has been raised, we must construe all reasonable inferences in
favor of Runnebaum. See id. at 255. Because the onus is on Runne-
baum to advance competent evidence establishing each element of his
claim, he "cannot create a genuine issue of material fact through mere
speculation or the building of one inference upon another." Beale v.
Hardy, 769 F.2d 213, 214 (4th Cir. 1985). Expounding on this pre-
_________________________________________________________________
2 Runnebaum's complaint may also be read to allege that he was dis-
abled on account of his homosexuality. As the district court correctly
noted, the ADA specifically excludes homosexuality as a disability. See
42 U.S.C.A. § 12211(a) (West 1995).
27
cept, Anderson explained that "[t]he mere existence of a scintilla of
evidence in support of [Runnebaum's] position will be insufficient;
there must be evidence on which the jury could reasonably find for
[him]." Anderson, 477 U.S. at 252. Thus, "[m]ere unsupported specu-
lation . . . is not enough to defeat a summary judgment motion." Ennis
v. National Ass'n of Bus. & Educ. Radio, Inc., 53 F.3d 55, 62 (4th Cir.
1995). To defeat NationsBank's motion for summary judgment, there-
fore, Runnebaum must demonstrate that specific, material facts exist
that give rise to a genuine issue. See Celotex Corp., 477 U.S. at 324.
In my view, the majority has lost sight of these principles in revers-
ing the grant of summary judgment in favor of NationsBank. Rather
than adhere to these precepts, the majority has given credence to Run-
nebaum's speculative support for his contention that a genuine issue
of material fact existed regarding the reasons for his discharge. More-
over, the majority holds that Runnebaum advanced sufficient evi-
dence that his discharge was pretextual. Because neither of these
holdings can be squared with our jurisprudence regarding summary
judgment or discrimination law, I cannot subscribe to the majority
opinion. I address first Runnebaum's failure to satisfy the elements of
a prima facie case, then his failure to establish that NationsBank's
articulated reasons for his discharge were pretextual.
A.
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." 42 U.S.C.A. § 12112(a) (West 1995). To
establish a prima facie case under the ADA, Runnebaum must prove
that:
(1) [he] was in the protected class; (2) [he] was discharged;
(3) at the time of the discharge, [he] was performing [his]
job at a level that met [NationsBank's] legitimate expecta-
tions; and (4) [his] discharge occurred under circumstances
that raise a reasonable inference of unlawful discrimination.
See Ennis, 53 F.3d at 58. The burden of establishing a prima facie
case rests with Runnebaum, and if he failed to establish every element
of his claim, summary judgment was properly granted in favor of
28
NationsBank. See Tyndall v. National Educ. Ctrs. , 31 F.3d 209, 212
(4th Cir. 1994) (sustaining a grant of summary judgment in favor of
an employer in an ADA claim because the plaintiff could not prove
that she was qualified for her position). If, however, Runnebaum suc-
ceeds in establishing a prima facie case, the burden shifts to Nations-
Bank to articulate a legitimate, nondiscriminatory reason for the dis-
charge that supports a finding that unlawful discrimination did not
cause the challenged action. See Ennis, 58 F.3d at 58. Provided
NationsBank satisfies this burden, "the McDonnell Douglas paradigm
of presumption created by establishing a prima facie case `drops from
the case,' and `the factual inquiry proceeds to a new level of specific-
ity,'" Jiminez v. Mary Washington College, 57 F.3d 369, 377 (4th
Cir.) (quoting Texas Dep't of Community Affairs v. Burdine, 450 U.S.
248, 256 n.10, 255 (1981)), cert. denied, 116 S. Ct. 380 (1995), which
requires that Runnebaum shoulder "the ultimate burden of persuading
the court that [he] has been the victim of intentional discrimination,"
Burdine, 450 U.S. at 256. The ultimate issue in this suit is whether
NationsBank intentionally, unlawfully discriminated against Runne-
baum because of any alleged disability, and proving this burden rests
with Runnebaum. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502,
516 (1993). Here, the parties do not dispute that Runnebaum was dis-
charged, so I address the remaining three elements of the prima facie
case.
1.
The first element that Runnebaum must satisfy in establishing his
prima facie case is that he was in the protected class, specifically, that
he was "disabled" under the ADA. Pursuant to the ADA, a "disabil-
ity" is:
(A) a physical or mental impairment that substantially lim-
its one or more of the major life activities of such individ-
ual;
(B) a record of such impairment; or
(C) being regarded as having such an impairment.
29
42 U.S.C.A. § 12102(2) (West 1995). Because the ADA qualifies dis-
ability by requiring that it impose a "substantial limitation" respecting
a "major life activity," the "impairment must be a significant one," not
a trivial impairment. Byrne v. Board of Educ. , 979 F.2d 560, 564 (7th
Cir. 1992).
According to Runnebaum, he is disabled for purposes of the ADA
because of his HIV-positive status. The majority accepts this asser-
tion, concluding that Runnebaum satisfied this element because he
was regarded as being disabled, even though he was asymptomatic,
and more importantly, affirmatively represented to NationsBank that
he was not handicapped. As support for this holding, the majority
relies on the fact that Brown, who was also homosexual, became
"panicky" and "uncontrolled" on learning that Runnebaum was
seropositive.3 There is no merit to this consideration. Simply put, the
majority has mischaracterized Brown's statement beyond recognition.
Runnebaum revealed his seropositivity exclusively to Brown in their
capacity as friends under the following circumstances:
Again, I think that it was like a weekend night or some-
thing, and [Runnebaum] was down around the harbor with
friends or something, and called me and said, come on down
and join us or something like that. . . . I ended up coming
down, picking [Runnebaum] up standing on the street. . . .
[W]e went to a bar . . . . And my recollection is he just told
me.
....
William was sharing with me something that was you know,
deep, very personal, known by very few. . . . In fact, his
lover, John, didn't even know [he was HIV-positive], he
told me. And I can remember just thinking -- I remember
being in a state of panic, panic because I was thinking how
am I going to work, you know and be a friend to somebody
who is HIV[-]positive. . . . But, you know, suppose he dies
_________________________________________________________________
3 Seropositive means "serologically positive; showing positive results
on serological examination; showing a high level of antibody."
Dorland's Illustrated Medical Dictionary 1511 (28th ed. 1994).
30
on me. Should I tell [Pettit] at this point, should I tell
[NationsBank]? I remember feeling panicky, uncontrolled.
But at the same time[,] I remember thinking I cannot let
him think that it bothers me a bit. I felt like that I was there
to protect him.
(J.A. at 506-08 (emphasis added).) Brown, therefore, was not "pan-
icky" and "uncontrolled" as a result of his regarding Runnebaum as
disabled, but was disheartened on learning that his friend was HIV-
positive. Properly considered in context, Brown acted anything but
"panicky" and "uncontrolled," as his testimony demonstrates, but
which the majority ignores. Far from being aloof or panicked as a
result of Runnebaum's seropositivity, Brown was solicitous of Run-
nebaum and sympathetic to his needs, styling himself as Runne-
baum's "protector,"4 as indeed he was because shortly thereafter,
Brown arranged for Runnebaum to receive AZT through Nations-
Bank's insurer; this is not the conduct of a "panicky," "uncontrolled"
man. Indeed, the fact that Runnebaum chose to confide his seroposi-
tivity solely to Brown on personal time demonstrates that Runnebaum
considered Brown a confidant, and one does not entrust to a confidant
information adverse to one's interests. Even accepting the majority's
mischaracterization, that Brown felt "panicky" or "uncontrolled" at
the time Runnebaum confided in him is simply insufficient under
Celotex and Ennis to create a genuine issue of material fact: here,
there is no proof that the "panicky," "uncontrolled" feeling meant that
Brown regarded Runnebaum as "disabled," much less disabled as a
result of his seropositivity.
More important, there is no indication that Pettit, the relevant deci-
sionmaker regarding Runnebaum's termination, regarded Runnebaum
as being disabled. Although Pettit knew that Runnebaum was HIV-
_________________________________________________________________
4 The dissent posits that Brown's styling himself as Runnebaum's "pro-
tector" implies that Runnebaum needed protection from NationsBank's
alleged discrimination. See ante at 7 n.3. On the contrary, properly read
in context, Brown's desire to protect Runnebaum is wholly personal and
springs from the desire to console a friend. Also, Brown's use of the term
"protection," in no way can be construed as attributing to NationsBank
invidious discrimination because of Runnebaum's alleged disability.
31
positive when she discharged him, she did not possess this knowledge
when she decided to fire him on November 3, 1992. Pettit's testimony
on this point was corroborated by Brown, who stated that he did not
disclose his knowledge of Runnebaum's seropositivity until after Pet-
tit informed Brown that she planned to discharge Runnebaum. See
Ennis, 53 F.3d at 60 (discussing evidence to support claim that "rele-
vant decisionmakers" knew of an employee's disability). Accord-
ingly, I would conclude that Runnebaum failed to show that he was
regarded as having a disability.5
2.
Next, in my view even the most cursory review of the undisputed,
material facts proves beyond cavil that Runnebaum failed to establish
the third element of the prima facie case, that he was meeting
NationsBank's legitimate expectations at the time of his discharge.
NationsBank does not dispute the fact that Runnebaum enjoyed quali-
fied success, and the record amply supports this conclusion. The ran-
kle, however, arises from the fact that Runnebaum's performance
degenerated over his term of employment, and despite his occasional
successes, he consistently failed to perform required duties and to
amend his unseemly conduct.
The record is replete with indications that Runnebaum did not meet
NationsBank's legitimate expectations for his employment. First,
Runnebaum failed to satisfy his employment duties as set forth in the
July Memorandum. Specifically, Runnebaum completed only one of
eighteen required joint sales calls and only two of twelve required
_________________________________________________________________
5 Runnebaum does not appear to assert that he satisfies the first element
of the prima facie case by virtue of suffering an actual physical or mental
impairment as a result of his seropositivity, nor could he credibly do so.
The parties do not dispute that Runnebaum has been asymptomatic since
1988 and suffers no affliction arising from his seropositivity. In fact,
Runnebaum's own physician, Dr. Michael Pistole, testified that Runne-
baum "had no ill effects from the disease or the medications." (J.A. at
154-55.) Comporting with Dr. Pistole's testimony, Runnebaum has con-
sistently maintained that he endures no impairment that substantially lim-
its a major life activity, thereby proving that he is not disabled under the
first prong of the ADA's definition of a disability.
32
joint external referral source calls. Runnebaum also failed to submit
required reports, to attend certain functions, and to take training
classes or attend manager's meetings. Runnebaum's utter failure to
attend to his assigned duties -- which, significantly, Runnebaum does
not contend were unreasonable -- conclusively establishes that he
was not meeting NationsBank's expectations for his performance. See
Ennis, 53 F.3d at 61-62 (concluding that an ADA plaintiff could not
prove that she satisfied her employer's legitimate expectations in part
because her work was substandard); Ang v. Procter & Gamble Co.,
932 F.2d 540, 548-49 (6th Cir. 1991) (ruling that failure to perform
reasonable tasks at an employer's demand constitutes not satisfying
legitimate employment expectations); Kephart v. Institute of Gas
Tech., 630 F.2d 1217, 1223 (7th Cir. 1980) (per curiam) (holding that
if an employee is not doing as he is told to do, then he is not perform-
ing his job), cert. denied, 450 U.S. 959 (1981).
Second, during his tenure at NationsBank Runnebaum engaged in
a pattern of unprofessional behavior. For example, Runnebaum was
frequently tardy or altogether absent without explanation, and bought
a pager to use instead of curbing his absenteeism. When he was in the
office, he devoted large portions of his time to personal matters and
to the minutiae of NationsBank's Christmas party-- the latter con-
sisting of tasks more properly delegated to his administrative assis-
tant. See Ennis, 53 F.3d at 61-62 (holding that tardiness, disruptive
conduct, errors in work, and devoting work hours to personal matters
indicate a failure to satisfy an employer's legitimate expectations);
Ang, 932 F.2d at 549 (holding that devoting work hours to personal
pursuits and tardiness comprise failure to meet an employer's legiti-
mate expectations). Moreover, Runnebaum's conduct frequently
veered from the merely unprofessional to the grossly inappropriate
and offensive. Runnebaum's penchant for racial and sexual slurs and
his improper conduct at business meetings and toward NationsBank
clients certainly cannot be considered to fall within the scope of
NationsBank's legitimate expectations for his employment.
The majority largely ignores these facts, choosing instead to focus
on Kines's March Memorandum and the notes from Brown and Pettit.
Neither Kines's March Memorandum, nor Brown's nor Pettit's notes
can defeat NationsBank's motion for summary judgment. Even disre-
garding Kines's negative comments in the March Memorandum and
33
focusing exclusively on Runnebaum's accomplishments as does the
majority, this evaluation is not dispositive for purposes of a January
12, 1993 termination because it is too temporally remote. See Ennis,
53 F.3d at 61 (noting that an ADA plaintiff initially achieved a
"good" performance rating in 1990, but at the time of her termination
in 1992, her counsel conceded that her performance was lacking);
Anderson v. Stauffer Chem., 965 F.2d 397, 401 (7th Cir. 1992) (hold-
ing that a 1984 evaluation, even if given in December 1984, and a
merit-based pay raise implemented at the start of 1985 were not rele-
vant to a discharge on May 1, 1985, because the situation had
changed significantly in the intervening months). Runnebaum steadily
declined in performance, and this decline was duly noted, since incep-
tion, by NationsBank supervisors. See Ennis, 53 F.3d at 61 (noting the
importance of tracking an employee's deteriorating performance in
determining evaluation at time of discharge). Here, the majority relies
too heavily on an evaluation that predated the challenged action by
nearly nine and one-half months, while ignoring Runnebaum's pro-
gressively deteriorating performance. In light of this deterioration, the
March Memorandum is temporally too tenuous to reflect Runne-
baum's performance at the time of termination.
Not only is the March Memorandum not dispositive of pretext, but
the majority does not even consider the document in its entirety. As
I explained earlier, see ante at 22, this evaluation concluded that Run-
nebaum failed to familiarize himself with NationsBank policy and
procedure, fulfill marketing goals, and work consistently well with
others. The majority focuses on the numerical ratings to the exclusion
of these negative written comments, dropping the latter from its sum-
mary judgment calculation.
Yet another flaw in focusing on the March Memorandum is the fact
that the majority disregards the more pertinent , subsequent evalua-
tions that prove conclusively that Runnebaum was not satisfying
NationsBank's legitimate employment expectations. For instance, a
scant two months later, Kines reevaluated Runnebaum on May 18,
1992, and while observing that Runnebaum did well in many respects,
noted that he continued to exhibit poor performance. Most notably,
Runnebaum bungled two loans, failed to present significant credits,
delayed unreasonably in completing work, behaved unprofessionally,
and blamed others for his own mistakes. Two more months demon-
34
strated that Runnebaum failed to improve his professional goals, as
memorialized in the July Memorandum. The downward spiral contin-
ued, for on the heels of the July Memorandum came Pettit's counsel-
ing Runnebaum twice about his professional failures and coarse
conduct. Planning the Christmas party likewise vividly depicted Run-
nebaum's inability to concentrate on substantive matters and to com-
port himself with decorum. Considered against this bulwark of
progressively deteriorating evaluations, the March Memorandum
becomes makeweight to say the least.
The notes from Brown and Pettit are also of no moment. The hand-
written note from Brown dated October 29, 1992, provided in
entirety:
Just a note of thanks and congratulations for your efforts
in arranging our social with McGuire Woods.
Please see me about attending a staff meeting.
Thanks--Mike
(J.A. at 432.) Unlike the majority, I can assign no value to this note
because it does not address Runnebaum's employment performance,
but merely thanks him for planning a party. See Aungst v. Westing-
house Elec. Corp., 937 F.2d 1216, 1223 (7th Cir. 1991) (explaining
that an employer's letter of recommendation did not prove discrimi-
nation because it failed to respond to the precise reason for the plain-
tiff's termination). Indeed, this note is arguably read as telling
Runnebaum that he must attend staff meetings. Even if this note could
be transmuted into an employment evaluation, it has no probative
value because it fails to address Runnebaum's specific duties, such as
sales goals and marketing strategies and professional conduct. Suc-
cinctly put, Brown's note simply provides no insight into this case,
let alone defeats NationsBank's motion for summary judgment.
On December 9, 1992, Pettit wrote a note to Runnebaum stating in
its entirety:
William --
I'm thrilled that you're a part of our group. I look forward
to seeing you shine.
Ann
35
(J.A. at 431.) This note is of even lesser probative value than the note
from Brown. First, this note does not express satisfaction with Runne-
baum's performance, but is cast in anticipation of future achieve-
ments. Unlike Brown's note, therefore, this note does not even
express thanks for performing some duty. Second, this note is simply
not an evaluation, nor does it have the force and effect of an evalua-
tion, but is merely an isolated statement hoping for a profitable future.
As such, it lacks probative value because it does not address the rea-
sons for Runnebaum's termination. In my view, this note is insuffi-
cient to demonstrate any form of discrimination.
In sum, analyzed separately or collectively, the March Memoran-
dum and the two notes are insufficient to show that Runnebaum's per-
formance met NationsBank's legitimate expectations. At most, the
March Memorandum demonstrates that Runnebaum displayed posi-
tive and negative performance, while the Brown note expresses
thanks for a tangential matter, and the Pettit note speaks in terms of
future hope. I therefore conclude that Runnebaum has not established
the third element of the prima facie case.
3.
The fourth element that Runnebaum must satisfy to establish a
prima facie case is that his termination transpired under circumstances
that raise a reasonable inference of unlawful discrimination. For many
of the same reasons that Runnebaum failed to establish the first and
third elements, I conclude that he fails to establish the fourth element.
Runnebaum was discharged for incompetent performance, lack of
performance, and gauche conduct. The undisputed facts establish
these reasons for his discharge, and Runnebaum attempts to ascribe
discrimination to NationsBank's conduct. Given his short employ-
ment tenure at NationsBank, the troubles he encountered from the
start, his deficient performance, and appalling conduct, no rational
trier of fact could conclude that his termination raised a reasonable
inference of unlawful discrimination. See Ennis , 53 F.3d at 62 (hold-
ing that because evidence of plaintiff's deficient performance was so
pervasive, no rational trier of fact could conclude that her discharge
occurred under circumstances giving rise to an inference of discrimi-
nation).
36
B.
Even assuming that Runnebaum established a prima facie case of
discrimination under the ADA, I conclude that NationsBank articu-
lated legitimate, nondiscriminatory reasons for his discharge, and
Runnebaum failed to prove that those reasons were pretextual. The
district court therefore properly granted summary judgment in favor
of NationsBank. See Hicks, 113 S. Ct. at 2572. NationsBank termi-
nated Runnebaum for failure to fulfill his sales goals and for failure
to amend his unprofessional conduct. As the majority recognizes, see
ante at 12, these are legitimate, nondiscriminatory reasons to dis-
charge Runnebaum. See Brewer v. Quaker State Oil Refining Corp.,
72 F.3d 326, 330 (3d Cir. 1995); Nitschke v. McDonnell Douglas
Corp., 68 F.3d 249, 250-52 (8th Cir. 1995); Ray v. Tandem Comput-
ers, Inc., 63 F.3d 429, 433 (5th Cir. 1995). The majority concludes,
however, that Runnebaum proffered sufficient evidence to prove that
NationsBank's rationale for terminating him was pretextual. In sup-
port of this conclusion, the majority implicitly recognizes the weak-
ness of its argument by stating that no single fact proves
Runnebaum's case, but relies on the combination of three consider-
ations to bolster its holding: (1) the timing of Runnebaum's discharge;
(2) Brown's reaction on learning of Runnebaum's seropositivity; and
(3) a comparison of Runnebaum's and Andersson's sales goals.
Again, none of these considerations, singly or collectively, evinces
pretext.
1.
First, the majority opines that the timing of Runnebaum's discharge
"raises a sufficient question of pretext," ante at 15. According to the
majority, this inference is raised because Runnebaum was given addi-
tional responsibilities early in his tenure, a NationsBank employee
opened his AZT, and Pettit wrote the December 9, 1992 note, but then
surprisingly, Runnebaum was discharged when Pettit learned that he
was HIV-positive. Concluding that these events create a disputed
issue regarding Pettit's motivation in terminating Runnebaum, the
majority reverses the district court's grant of summary judgment in
favor of NationsBank.
I am unpersuaded by this conclusion. I agree that the timing of the
discharge is important, but here, the majority focuses heavily on the
37
March Memorandum, failing to consider Runnebaum's deficient per-
formance from March until he was discharged. See Ennis, 53 F.3d at
61 (noting that plaintiff's initial good performances were not material
because her performance consistently eroded to the point of being
unsatisfactory). Since inception, NationsBank observed Runnebaum's
deficient performance and saw it deteriorate, culminating in the Janu-
ary 7, 1993 memorandum memorializing the reasons for his termina-
tion. Runnebaum had a consistent history of deteriorating perfor-
mance, and in view of this, the majority is incorrect in stating that
NationsBank's attitude changed "so suddenly." There was nothing
"sudden" about NationsBank's action; it was gradual and culminated
in Runnebaum's termination. Regarding Pettit's knowledge of Runne-
baum's seropositivity and her December 9, 1992 note, I have
explained why these instances are immaterial to this appeal. Accord-
ingly, the timing and circumstances surrounding the discharge dem-
onstrate no pretext.
2.
Second, the majority concludes that Brown's reaction on learning
of Runnebaum's seropositive status "could also lend support for a
finding of pretext and discrimination," ante at 17 (emphasis added).
There are several flaws in relying on this reaction to prove pretext.
Initially, that a conclusion could be true is insufficient for purposes
of overcoming a properly supported motion for summary judgment
because we have consistently eschewed building inferences in order
to defeat summary judgment. See, e.g., Harleysville Mut. Ins. v.
Packer, 60 F.3d 1116, 1120 (4th Cir. 1995); Ennis, 53 F.3d at 62;
Birkbeck v. Marvel Lighting Corp., 30 F.3d 507, 511-12 (4th Cir.),
cert. denied, 115 S. Ct. 666 (1994); Beale , 752 F.2d at 214. This con-
tention is further foreclosed because NationsBank employs individu-
als who are HIV-positive (assuming this is a disability) and has taken
pains to accommodate those employees who need accommodations.
Additionally, as demonstrated, consideration of the entirety of
Brown's testimony establishes that his reaction was not pejorative.
Brown never implied that Runnebaum should be terminated based on
his HIV-positive status; indeed, the record belies anything but benign
motivations respecting Brown: He considered himself Runnebaum's
"protector," was the sole recipient of Runnebaum's revelation, helped
Runnebaum procure AZT, advised Runnebaum to amend his conduct,
38
and informed Pettit of Runnebaum's seropositivity upon learning of
her decision to execute the discharge. Also, no one else at Nations-
Bank knew that Runnebaum was HIV-positive. Even disregarding
these insurmountable hurdles, I am not persuaded that pregnancy
cases are germane for comparing asymptomatic seropositivity to the
AIDS virus -- apparently, neither is the majority because it fails to
supply reasoning or authority for applying the Pregnancy Discrimina-
tion Act of 1978 to ADA claims.
3.
Third, the majority relies on ostensibly comparative evidence to
conclude that Runnebaum produced sufficient evidence for a jury to
conclude that NationsBank's articulated reasons for terminating Run-
nebaum are pretextual. To support this conclusion, the majority
opines that because "Runnebaum outsold Andersson . . . but Anders-
son was not fired," ante at 19, an inference of pretext can be drawn
because Andersson was not disabled and remained employed, despite
his seemingly inferior sales performance. The pitfalls of divining any
valid inferences from a comparison between Runnebaum and Anders-
son are manifold. As an initial matter, Runnebaum was not terminated
exclusively because he failed to meet sales goals; he was also termi-
nated for absenteeism, tardiness, and improper conduct, and there is
no evidence that Andersson exhibited similar shortcomings. Compar-
ing Andersson and Runnebaum, therefore, is improper. See Hutson v.
McDonnell Douglas Corp., 63 F.3d 771, 777 (8th Cir. 1995) (holding
that to prove racial discrimination based on comparisons of other
employees, the compared employees must be similarly situated in all
relevant respects); Smith v. Stratus Computers , 40 F.3d 11, 17 (1st
Cir. 1994) (stating in a disparate treatment case that the colleagues to
whom the plaintiff compares herself must be similar to the plaintiff
in every material respect and because the plaintiff could not demon-
strate the same flaws in her comparators, she could not prove pretext),
cert. denied, 115 S. Ct. 1958 (1995); Mitchell v. Toledo Hosp., 964
F.2d 577, 583 (6th Cir. 1992) (holding that before employees can be
viewed as comparable for purposes of invidious discrimination, they
must have the same standards, same supervisors, and engage in the
same conduct). Thus, Runnebaum's reliance on a comparison of his
own sales performance to Andersson's cannot prove pretext because
it fails to respond to NationsBank's contention that Runnebaum was
39
fired for reasons other than just his sales performance. See Nitschke,
68 F.3d at 252 (stating that statistical evidence demonstrating age dis-
crimination was immaterial for purposes of proving pretext because
the employer's articulated reason for the discharge was that plaintiff
was less competent than other employees); Anderson, 965 F.2d at 403(explaining that unless a discrimination plaintiff challenges specific
reasons for his discharge, he cannot prove pretext and holding that
ability to meet deadlines and produce written work does not vitiate
the fact that plaintiff was discharged for failure to relate well to subor-
dinates and follow superiors' suggestions for improvement and thus
affirming a grant of summary judgment). In addition, Andersson
worked in Washington, D.C., while Runnebaum worked in Baltimore,
and there is no evidence that these two markets are similar. Cf.
Hazelwood Sch. Dist. v. United States, 433 U.S. 299, 308 (1977)
(holding that the proper comparison for a claim of racial discrimina-
tion in teaching positions must be between the school's actual teach-
ing staff and the racial composition of qualified public school teachers
in the relevant market). Therefore, even assuming Runnebaum could
establish a prima facie case, I would hold that NationsBank articu-
lated legitimate, lawful reasons for his discharge that Runnebaum
cannot prove were pretextual.
III.
In Conkwright v. Westinghouse Electric Corp., 933 F.2d 231, 239
(4th Cir. 1991), we concluded that to prevail on a§ 510 ERISA claim,
a plaintiff may resort to the proof scheme articulated by McDonnell
Douglas. As goes Runnebaum's ADA claim, so goes his ERISA
claim. For the same reasons, Runnebaum cannot establish a prima
facie case under the ADA, he cannot establish a prima facie case
under § 510, nor, were the inquiry to proceed so far, can he prove pre-
text. Accordingly, I would affirm the grant of summary judgment in
favor of NationsBank on Runnebaum's § 510 ERISA claim.
IV.
I conclude that the district court properly granted summary judg-
ment in favor of NationsBank and thus would affirm. My colleagues,
however, despite the wake of contrary authority, have concluded that
Runnebaum established a prima facie case of discrimination and fore-
40
cast sufficient evidence to prove pretext. The evidence supports nei-
ther position. This case implicates broad ramifications respecting
procedural principles, substantive discrimination law, and the force of
precedent, and in my opinion, represents a sharp departure from
established precepts in all of these respects. Because the majority
opinion cannot be reconciled or harmonized with the undisputed,
material facts or the established law, I dissent.
41