Kourianos v. Smith's Food & Drug Centers, Inc. ( 2003 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAY 6 2003
TENTH CIRCUIT
PATRICK FISHER
Clerk
CHRISTINA KOURIANOS,
Plaintiff - Appellant,
v. No. 02-4094
D.C. No. 2:00-CV-799-S
SMITH’S FOOD & DRUG (D. Utah)
CENTERS, INC.; ART HENRY,
Defendants - Appellees.
ORDER AND JUDGMENT *
Before HARTZ and McKAY, Circuit Judges, and BRORBY, Senior Circuit
Judge.
This Americans with Disabilities Act (“ADA”) hostile work environment
discrimination and retaliation claim stems from Plaintiff-Appellant’s former
employment with Smith’s Food & Drug Centers. The district court granted
summary judgment in favor of Smith’s, holding that there was insufficient
evidence in the record to demonstrate that Appellant was either disabled or
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
perceived as disabled for purposes of establishing that she was a qualified
individual with a disability pursuant to the ADA. The district court did not
address whether Appellant offered sufficient evidence of a hostile work
environment since she failed to meet ADA threshold requirements. The court also
dismissed Appellant’s retaliation claim.
On appeal, Appellant contends that the district court committed reversible
error in concluding that she had not offered sufficient evidence demonstrating
that her diagnosed depression and anxiety substantially limited the major life
activity of “emotional stability.” Appellant does not appeal the district court’s
holding that there is no evidence that she was regarded as being disabled by
Smith’s or that she had a record of disability as defined by the ADA. Appellant
does not appeal the dismissal of her claim for retaliation.
The issue we must address is whether the district court erred in granting
summary judgment to Smith’s and in concluding that Appellant’s deposition
testimony categorically refuted her ADA claim that she suffered a substantial
limitation of a major life activity arising out of her diagnosed depression and
anxiety. Appellant’s deposition testimony, relied on by the district court as
refuting her claim, was that Appellant perceived herself as functioning normally
in society and able to maintain good interpersonal relationships, care for herself
and her small child, attend college part-time, and perform all of her job
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requirements satisfactorily. Aplt. App. at 95-96, 100, 107-110, 132-37.
We review de novo a grant of summary judgment, viewing the evidence in a
light most favorable to the non-moving party and applying the same legal
standards as the district court. Steele v. Thiokol Corp., 241 F.3d 1248, 1252
(10th Cir. 2001); Charter Canyon Treatment Ctr. v. Pool Co., 153 F.3d 1132, 1135
(10th Cir. 1998).
An ADA claim requires a plaintiff, as a threshold matter, to show “that she
is a qualified individual with a disability” as defined by the ADA. Steele, 241
F.3d at 1252 (internal quotations omitted). A disability is “a physical or mental
impairment that substantially limits one or more of the major life activities of
such individual; a record of such an impairment; or being regarded as having such
an impairment.” 42 U.S.C. § 12102(2). Additionally, “the ADA demands that we
examine exactly how [a plaintiff’s] major life activities are limited by his [or her]
impairment.” Steele, 241 F.3d at 1253. We must determine the effect of the
impairment on the life of the individual–that is, the effect of Appellant’s alleged
anxiety and depression on one or more of Appellant’s major life activities.
We agree with the district court that Appellant’s deposition testimony
conclusively establishes that she did not suffer a substantial limitation in any
major life activity arising from her alleged depression and anxiety. The district
court stated:
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Plaintiff admits that she is able to meet all of the demands associated
with caring for herself and her daughter. Plaintiff has testified that
she generally is able to maintain friendships and interpersonal
relationships. Plaintiff generally perceives herself as able to function
normally in society. She is able to attend classes part time at College
of Eastern Utah. From January 1997 until she quit in May, 1999,
Plaintiff was able to perform her work as a checker and courtesy
clerk at Smith’s Price store, which included working with the public,
checking groceries, making change, handling money, remembering
codes, knowing departments, etc. Although Plaintiff gets anxiety
attacks, and as a result she has trouble breathing which forces her to
take a break from work, she testified that they only occur several
times a year.
Aplt. App. at 284 (internal citations omitted).
Appellant argues that the district court improperly gave greater weight to
the evidence of her overall functionality while ignoring the evidence of the
permanency and severity of her depression and anxiety. She argues that the
evidence reveals that she attempted suicide, washed her hands compulsively,
suffered two failed relationships, was only able to maintain a “D” average in
college, and was incapable of living independent from her parents. According to
Appellant, this is evidence that she has a severe disability which affects the major
life functions of forming conjugal relationships, socializing, and learning–in
short, the major life function of maintaining emotional stability.
However, Appellant’s counsel has offered no expert testimony that his
client was unable to accurately perceive her own level of functioning. As such, it
appears from the record that Appellant was capable of self-evaluation and that she
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was able to accurately perceive her own level of functioning. As the district court
noted, Appellant testified that she perceived herself as functioning normally in
society. She felt that she was able to maintain good interpersonal relationships,
care for herself and her small child, attend college part-time, and perform all of
her job requirements satisfactorily. Aplt. App. at 95-96, 100, 107-110, 132-37.
Additionally, Appellant’s psychologist, Dr. Manwill, testified that “to a large
extent . . . she was capable” of “describ[ing] how she felt or what she could do.”
Aple. Supp. App. at 14-15.
Even if the evidence offered by Appellant supports her assertion that she
had an impairment, it does not address the extent to which the alleged impairment
substantially limited her in performing a major life activity. It is not sufficient
for Appellant to demonstrate that she has an impairment and symptoms that arise
from the impairment; she must also demonstrate how her impairment and
symptoms substantially limit her in performing one or more major life activities.
Appellant has not done this. There is nothing in the record to demonstrate that
Appellant could not perform the functions and activities of daily life or that her
impairment and symptoms substantially limited her functions and activities.
Because Appellant has not established, as a threshold matter, that she was
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substantially limited in a major life activity, 2 we are not required to address the
novel question of whether emotional stability can be a recognized ADA major life
activity. We are also not required to address the effect of Appellant’s failure to
raise the major life activity of emotional stability argument at the district court
level. We are reluctant to categorically refute an entire class of plaintiffs that all
have distinctly different mental impairments that may or may not substantially
limit a major life activity. 3
For the foregoing reasons, the decision of the district court is AFFIRMED.
Entered for the Court
Monroe G. McKay
Circuit Judge
2
Even if we assume for the sake of argument that emotional stability is a
recognized major life activity, Appellant has not established that she was limited
in a substantial way as required by 42 U.S.C. § 12102(2).
3
“We have not decided whether ‘interacting with others’ is a major life
activity and there is a split among the circuits on the issue. Compare Soileau v.
Guilford of Maine, Inc., 105 F.3d 12, 15 (1st Cir. 1997), with McAlindin v.
County of San Diego, 192 F.3d 1226, 1234-1235 (9th Cir. 1999).” Steele, 241
F.3d at 1253.
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