Harris v. H & W Contracting Company ( 1996 )

United States Court of Appeals,
Eleventh Circuit.
No. 95-8526.
Ellen T. HARRIS, Plaintiff-Appellant,
v.
H & W CONTRACTING COMPANY, Defendant-Appellee.
Dec. 31, 1996.
Appeal from the United States District Court for the Middle
District of Georgia. (No. 94-CV-23-COL), J. Robert Elliott, Judge.
Before BIRCH and CARNES, Circuit Judges, and MICHAEL*, Senior
District Judge.
CARNES, Circuit Judge:
In this Americans with Disabilities Act ("ADA") case, Ellen T.
Harris appeals from the district court's entry of summary judgment
in favor of the defendant, H & W Contracting Company (the
"Company"). The district court granted summary judgment in favor
of the Company on the grounds that Harris, who has been diagnosed
with and receives ongoing treatment for Graves' disease, cannot
show that she has a "disability" within the meaning of the ADA. We
reverse, because we find that genuine issues of material fact do
exist about whether Harris has a disability within the meaning of
the ADA, and there is no other basis in the record for affirming
the grant of summary judgment.
In addition to her ADA claim, Harris brought a state law tort
claim against the Company for intentional infliction of emotional
distress. We agree with the district court that Harris' emotional
*
Honorable James H. Michael, Senior U.S. District Judge for
the Western District of Virginia, sitting by designation.
distress claim lacks evidentiary support in the record, and we
affirm the entry of summary judgment in favor of the Company as to
that claim.
I. BACKGROUND FACTS AND PROCEDURAL HISTORY
In 1973, approximately sixteen years before joining the
Company, Harris was diagnosed as having active Graves' disease, an
endocrine disorder affecting the thyroid gland. Since that time,
Harris has continuously taken medication, "Synthroid," to control
her condition. In general, the ongoing treatment of Harris'
medical condition has been successful. Since 1973, with one
notable exception, Harris' thyroid problems have not seriously
interfered with her work or other life activities, because her
thyroid condition has been fully controlled with medication.
In December 1989, the Company hired Harris as its comptroller,
making her responsible for the maintenance of the Company's
financial records and for certain other financial activities of the
Company. While she was employed there, the Company was entirely
satisfied with Harris' performance as comptroller. Although Harris
made some "mistakes" as comptroller, the Company considered them to
be "minor." When questioned about Harris' performance, the
Company's president, Aldric Hayes, stated that up until the time
Harris left the Company "[a]s far as I was concerned Ellen had done
a real good job," although some additional problems with her work
did come to light after that time.
In December 1992, Harris experienced a "panic attack."
Thereafter, in January 1993, Harris was hospitalized for eight days
in the psychiatric ward. According to Harris, she learned during
her hospitalization that she had been overdosed with her thyroid
medication, due to a change in the manufacture of the drug. There
is no dispute that this overdose caused Harris' panic attack and
subsequent illness, and that once her dosage was corrected, Harris'
thyroid condition did not limit Harris' ability to work or perform
other normal activities. Harris' doctor certified her as able to
return to her normal job duties beginning on February 1, 1993.
In January 1993, while Harris was on sick leave, the Company
hired another individual, Fred Sanders, to be comptroller. When
Harris began to return to work on a gradual basis in January 1993,
she was at first unaware that Sanders had assumed her job title.
However, on February 12, 1993, Harris questioned Hayes about the
status of her responsibilities. In response to those questions,
Hayes told Harris that Sanders was "in charge" and was now the
comptroller. Moreover, according to Harris, Hayes told her that
she would need to seek other employment when she was feeling better
or "within the next several months." Upon learning that she had
been removed from her position as comptroller, and that Sanders had
taken her place, Harris left the workplace. Three days later, on
February 15, 1993, Hayes wrote Harris a letter in which he denied
terminating Harris, but acknowledged that he had removed her from
the position of comptroller and that her employment with the
Company had come to an end.
In April 1993, Harris filed a charge with the Equal Employment
Opportunity Commission ("EEOC"), alleging that the Company had
discriminated against her in violation of the ADA. After receiving
her right-to-sue letter from the EEOC, Harris filed this lawsuit,
alleging a claim for discrimination in violation of the ADA and a
pendent Georgia state law claim for intentional infliction of
emotional distress.
On April 6, 1995, the district court entered an order granting
summary judgment to the Company on both the ADA claim and the state
law claim. In granting summary judgment on the ADA claim, the
district court held that Harris could not show that she has a
"disability" within the meaning of the ADA. Turning to the state
law claim for intentional infliction of emotional distress, the
district court found that claim to be "completely lacking in
evidentiary support."1 This appeal followed.
II. STANDARD OF REVIEW
We review de novo a district court's grant of summary
judgment, applying the same standards as the district court. E.g.,
Jones v. Firestone Tire & Rubber Co., 977 F.2d 527, 535-36 (11th
Cir.1992), cert. denied, 508 U.S. 961, 113 S.Ct. 2932, 124 L.Ed.2d
682 (1993). Summary judgment is appropriate if the pleadings,
1
We agree with the district court's characterization of the
state of the record concerning Harris' intentional infliction of
emotional distress claim. While, as we discuss hereafter, the
Company's decision to replace Harris as comptroller may have
violated the ADA, there is no basis in the record for concluding
that the Company's behavior was sufficiently extreme and
outrageous to support a claim for intentional infliction of
emotional distress under the standards of Georgia law. See,
e.g., Yarbray v. Southern Bell Telephone & Telegraph Co., 261 Ga.
703, 706, 409 S.E.2d 835, 837 (1991) ("The conduct complained of
must have been extreme and outrageous to support a claim under
this theory."); Cornelius v. Auto Analyst, Inc., 222 Ga.App.
759, 476 S.E.2d 9, 11 (1996) ("The conduct must be so extreme in
degree, as to go beyond all possible bounds of decency, and to be
regarded as atrocious, and utterly intolerable in a civilized
community.") (citation and internal quotation marks omitted). We
affirm without further discussion the district court's grant of
summary judgment as to that claim.
depositions, and affidavits show that there is no genuine issue of
material fact and that the moving party is entitled to judgment as
a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106
S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). In reviewing a grant of
summary judgment, we view all the evidence in the light most
favorable to the party opposing the motion. E.g., Pritchard v.
Southern Co. Servs., 92 F.3d 1130, 1132 (11th Cir.1996).
III. ANALYSIS
A. The Americans with Disabilities Act
In 1990, Congress enacted the ADA "to provide a clear and
comprehensive national mandate for the elimination of
discrimination against individuals with disabilities." 42 U.S.C.A.
§ 12101(b)(1) (West 1995). To accomplish that purpose, the ADA
provides that "[n]o covered entity shall discriminate against a
qualified individual with a disability because of the disability of
such individual in regard to job application procedures, the
hiring, advancement, or discharge of employees, employee
compensation, job training, and other terms, conditions, and
privileges of employment." Id. § 12112(a). The statute further
operates to create an affirmative duty for employers to reasonably
accommodate individuals with disabilities. In ADA parlance, the
word "discriminate" is defined broadly to include "not making
reasonable accommodations to the known physical or mental
limitations of an otherwise qualified individual with a disability
... unless such covered entity can demonstrate that the
accommodation would impose an undue hardship on the operation of
the business." Id. § 12112(b)(5)(A). "Disability" is defined as:
(A) a physical or mental impairment that substantially limits
one or more of the major life activities of such individual;
(B) a record of such impairment; or
(C) being regarded as having such an impairment.
Id. § 12102(2).
In order to establish a prima facie case under the ADA,
Harris must show that: (1) she has a disability; (2) she is a
qualified individual; and (3) she was discriminated against
because of her disability. See 42 U.S.C. § 12132; see also, e.g.,
Pritchard v. Southern Co. Servs., 92 F.3d 1130, 1132 (11th
Cir.1996). In granting summary judgment on Harris' ADA claim, the
district court held that Harris had failed to demonstrate that any
genuine issues of material fact existed as to whether Harris has a
disability within the meaning of the ADA—the first element of her
prima facie case. In view of that holding, the district court was
not required to, and did not, consider whether Harris had
established the second and third elements of her prima facie
case—whether she is a qualified individual, and whether she was
discriminated against because of her disability.
On appeal, the parties devote the bulk of their attention to
whether Harris has a disability within the meaning of the ADA, and
so do we. Finding that genuine issues of material fact exist as to
that element of Harris' prima facie case, we will also consider
whether the record concerning the remaining two elements of Harris'
prima facie case nonetheless supports affirming the district
court's grant of summary judgment. See, e.g., Jaffke v. Dunham,
352 U.S. 280, 281, 77 S.Ct. 307, 308, 1 L.Ed.2d 314 (1957) ("A
successful party in the District Court may sustain its judgment on
any ground that finds support in the record.").
B. Whether Harris Has a Disability
Harris contends that her circumstances meet the ADA's
definition of disability in two ways. First, she contends that her
medical condition fits within the definition of disability provided
by 42 U.S.C. § 12102(2)(A), in that she has an impairment that
substantially limits one or more of her major life activities.
Second, she contends that the Company has regarded her as having
such an impairment, as provided by § 12102(2)(C), even if she does
not have one in fact. Harris does not contend, and we do not
address, whether she has a "record of such impairment" sufficient
to bring her condition within the alternative definition of
disability provided by § 12102(2)(B).
Turning to Harris' first theory, the evidence in the record
would be sufficient to permit a jury to find that Harris has an
impairment within the meaning of the ADA. Harris has come forward
with evidence that she has a thyroid problem, and that she was
diagnosed in 1973 as having active Graves' disease. The Company
has not come forward with any evidence to the contrary. The
applicable federal regulations, the validity of which the Company
does not challenge, define "impairment" to include:
[a]ny physiological disorder, or condition, cosmetic
disfigurement, or anatomical loss affecting one or more of the
following body systems: neurological, musculoskeletal,
special sense organs, respiratory (including speech organs),
cardiovascular, reproductive, digestive, genito-urinary, hemic
and lymphatic, skin, and endocrine.
29 C.F.R. § 1630.2(h)(1) (1996) (emphasis added).
It is common knowledge that the thyroid gland is an integral
part of the endocrine system, as can be verified by turning to an
ordinary dictionary. See, e.g., Random House Unabridged Dictionary
1980 (Stuart B. Flexner & Leonore C. Hauck eds., 2d ed.1993)
(defining the thyroid gland as "a two-lobed endocrine gland,
located at the base of the neck that secretes two hormones that
regulate the rates of metabolism, growth, and development").
Therefore, disorders of the thyroid gland fit squarely within the
meaning of impairment, as that term is defined by the applicable
federal regulations. However, establishing the existence of an
impairment is only half of Harris' burden in demonstrating that she
has a disability within the meaning of § 12102(2)(A). In order to
for Harris to demonstrate that her impairment rises to the level of
a disability, she must also show that her impairment substantially
limits one or more of her major life activities.
The Company contends that Harris cannot meet the second prong
of the definition of disability found in § 12102(2)(A), because
Harris has not been substantially limited in any of her major life
activities due to her thyroid problem. The Company points out that
the symptoms Harris experienced in late 1992 and early 1993 were
but a temporary episode associated with an overdose of Harris'
thyroid medication and that Harris has otherwise been unimpeded in
her life activities since first experiencing thyroid problems in
1973. According to the Company, the transitory nature of Harris'
symptoms should preclude a finding that her impairment
substantially limits her in any of her life activities. Harris
counters that the Company's interpretation of § 12102(2)(A) fails
to recognize that, as Harris puts it, the manifested symptoms of
"an underlying disability may be episodic or temporary in nature
while the impairment itself is both chronic and permanent."
The Company's position regarding the interpretation of §
12102(2)(A) is not a frivolous one. At first glance, it is
difficult to perceive how a condition that is completely controlled
by medication can substantially limit a major life activity.
However, the appendix to the applicable federal regulations
provides explicit guidance on this point, and that guidance is
directly contrary to the Company's position. The appendix to the
regulations provides:
[A]n impairment is substantially limiting if it significantly
restricts the duration, manner or condition under which an
individual can perform a particular major life activity as
compared to the average person in the general population's
ability to perform that same major life activity. Thus, for
example, an individual who, because of an impairment, can only
walk for very brief periods of time would be substantially
limited in the major life activity of walking. An individual
who uses artificial legs would likewise be substantially
limited in the major life activity of walking because the
individual is unable to walk without the aid of prosthetic
devices. Similarly, a diabetic who without insulin would
lapse into a coma would be substantially limited because the
individual cannot perform major life activities without the
aid of medication.
....
The determination of whether an individual is
substantially limited in a major life activity must be made on
a case by case basis, without regard to mitigating measures
such as medicines, or assistive or prosthetic devices.
29 C.F.R. app. § 1630.2(j) (1996) (emphasis added).
The Company acknowledges that its interpretation of §
12102(2)(A) is at odds with the foregoing language, but contends
that we should give effect to its interpretation of the statute
rather than that contained in the appendix to the federal
regulations. We disagree. While the "Interpretive Guidance"
provided by the EEOC in the appendix to the federal regulations is
not law, the Supreme Court has held:
[When] Congress has not directly addressed the precise
question at issue, the court does not simply impose its own
construction on the statute, as would be necessary in the
absence of an administrative interpretation. Rather, if the
statute is silent or ambiguous with respect to the specific
issue, the question for the court is whether the agency's
answer is based on a permissible construction of the statute.
Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc.,
467 U.S. 837, 843, 104 S.Ct. 2778, 2782, 81 L.Ed.2d 694 (1984)
(footnotes omitted). The Supreme Court has long recognized that an
agency's interpretation of a statute it is entrusted to administer
should be given "considerable weight" and should not be disturbed
unless it appears from the statute or legislative history that
Congress intended otherwise. Id. at 844-45, 104 S.Ct. at 2782-83.
Without discussing Chevron, the Company contends that
acceptance of the EEOC's interpretation of the statute would render
meaningless the statutory requirement that an impairment must
substantially limit a major life activity if it is to be considered
a disability. We disagree.
First, there is no direct conflict between the interpretation
contained in the appendix to the regulations and the language of
the statute itself. There is nothing inherently illogical about
determining the existence of a substantial limitation without
regard to mitigating measures such as medicines or assistive or
prosthetic devices, and there is nothing in the language of the
statute itself that rules out that approach. Therefore, the
question becomes one of congressional intent, and we look to the
ADA's legislative history for guidance.
A review of the relevant House and Senate reports reveals
that the interpretation of § 12102(2)(A) contained in the appendix
to the applicable federal regulations is firmly rooted in the ADA's
legislative history. See H.R.Rep. No. 101-485(II), 101st Cong.,
2nd Sess., at 52 (1990); H.R.Rep. No. 101-485(III), 101st Cong.,
2nd Sess., at 28-29 (1990); S.Rep. No. 116, 101st Cong., 1st
Sess., at 23 (1989) 1990 U.S.C.C.A.N. 267. We cannot disregard the
interpretive guidance contained in the appendix prepared by the
federal agency charged with enforcing the ADA, when that guidance
is based on a permissible construction of the statute and is
supported by the statute's legislative history. See Chevron,
U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S.
837, 841-45, 104 S.Ct. 2778, 2781-83, 81 L.Ed.2d 694 (1984).
The Company contends that, even if mitigating measures such as
medicines must be disregarded in the determination of whether an
individual is substantially limited in a major life activity,
Harris has failed to come forward with sufficient evidence to avoid
summary judgment. The Company argues that the mere use of a
mitigating measure does not automatically prove the presence of a
disability, because some persons may use such measures to alleviate
impairments that are not substantially limiting. We have no
quarrel with that argument, as far as it goes, and we note that the
Seventh Circuit recently held as much in Roth v. Lutheran Gen.
Hosp., 57 F.3d 1446, 1454 (7th Cir.1995). However, Harris does not
contend that her use of a mitigating measure automatically proves
that she has a disability. Instead, she contends that the facts of
this case, together with the materials the court may consider on a
motion for summary judgment, when viewed in the light most
favorable to her, are sufficient to create a genuine issue of
material fact about whether she is substantially limited in a major
life activity once the ameliorative effects of her medication are
disregarded.
A plaintiff is not required to prove her case in order to
withstand a motion for summary judgment. At the summary judgment
stage, a plaintiff need only show the existence of genuine issues
of material fact that should be decided by the trier of fact. In
determining whether a genuine issue of material fact exists, the
court "may consider pleadings, depositions, answers to
interrogatories, admissions on file, affidavits, oral testimony,
matters subject to judicial notice, stipulations and concessions,
and other materials admissible in evidence or otherwise usable at
trial." Clay v. Equifax, Inc., 762 F.2d 952, 956 (11th Cir.1985)
(dicta) (emphasis added); see also 6 James W. Moore et al.,
Moore's Federal Practice § 56.15[7] (2d ed.1996) (same); 10A
Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal
Practice and Procedure § 2723 (2d ed. 1983) ("The doctrine of
judicial notice applies to motions under Rule 56.").
We take judicial notice that Graves' disease is a condition
that is capable of substantially limiting major life activities if
left untreated by medication. It is appropriate for us to
judicially notice that fact, because it is not subject to
reasonable dispute, and it is "capable of accurate and ready
determination by resort to sources whose accuracy cannot reasonably
be questioned," see Fed.R.Evid. 201(b)(2). For example, The Merck
Manual of Diagnosis and Therapy (Robert Berkow et al. eds., 15th
ed.1987) states:
Graves' disease consists of hyperthyroidism, but also is
characterized by one or more of the following: goiter,
exophthalmos, and pretibial myxedema. ...
Many symptoms and signs are associated with
hyperthyroidism. They are the same for all hyperthyroidism
with some exceptions ... which are confined to Graves'
disease. The clinical presentation may be dramatic or subtle.
The more common signs are: (1) goiter; (2) tachycardia; (3)
widened pulse pressure; (4) warm, fine, moist skin; (5)
tremor; (6) eye signs ...; and (7) atrial fibrillation. The
most frequent symptoms are: (1) nervousness and increased
activity, (2) increased sweating, (3) hypersensitivity to
heat, (4) palpitations, (5) fatigue, (6) increased appetite,
(7) weight loss, (8) tachycardia, (9) insomnia, (10) weakness,
and (11) frequent bowel movements (occasionally diarrhea).
Id. at 1038-39 (emphasis in original) (bold face type omitted).
Moreover, in extreme cases, hyperthyroidism can lead to "thyroid
storm," which is characterized by symptoms such as "fever; marked
weakness and muscle-wasting; extreme restlessness with wide
emotional swings; confusion, psychosis, or even coma," id. at
1039. In such a case, "[t]he patient may present with
cardiovascular collapse and shock," id. "Thyroid storm ... results
from untreated or inadequately treated thyrotoxicosis and ... is a
life-threatening emergency requiring prompt and specific treatment
...." Id. (emphasis in original). Accord 3A Roscoe N. Gray &
Louise J. Gordy, Attorneys' Textbook of Medicine §§ 77.23 (1996)
(discussing the symptomatic effects of Graves' disease and
hyperthyroidism).
Understandably, the Company makes no effort to show that
Graves' disease is incapable of substantially limiting the life
activities of those affected by it. Instead, the Company asserts
that the record is completely devoid of any evidence Harris'
particular thyroid problem would substantially limit her life
activities if left untreated. In making that assertion, the
Company overlooks important evidence in the record.
First, it is undisputed that Harris has received ongoing
treatment for her thyroid condition for more that twenty years.
While receiving this ongoing treatment, Harris has been able to
function without any significant problems, so long as the
medication is maintained at a proper dosage. Additionally, we know
that if Harris receives too much of her thyroid medication, she may
experience a panic attack and find herself hospitalized in the
psychiatric ward, as happened in January 1993. We need not decide
if that evidence by itself would be sufficient to raise a genuine
issue of fact about whether, without her medication, Harris would
be substantially limited in her major life activities. There is
more evidence in the record.
At her deposition, Harris was questioned about what she knew
about her medical condition, and the purpose of the medication she
takes to control it. During her direct examination, the following
exchange took place:
Q. I think you have testified that you have a thyroid disorder,
endocrine disorder.
A. Yes.
Q. And you have been on medication for how long for that?
A. Since 1973.
Q. Do you understand what the medication is for, the purpose of the
medication?
A. To replace what the thyroid doesn't produce anymore.
Q. Do you know what would happen if you didn't take the medication?
A. Sure.
Q. What?
A. I would go into a coma and die.
Deposition of Ellen T. Harris 89 (Aug. 2, 1994). We are satisfied
that the evidence in this case, including Harris' deposition
testimony and matters subject to judicial notice, is sufficient to
create a genuine issue of material fact about whether Harris'
medical condition, in the absence of mitigating measures, would
substantially limit her major life activities. The district court
erred when it concluded that Harris cannot show that she has a
cognizable disability under the ADA.
Turning to Harris' alternative theory, we find that Harris
has also demonstrated the existence of a genuine issue of material
fact about whether the Company regarded her as having a
substantially limiting impairment, even if she does not actually
have one, as contemplated by 42 U.S.C. § 12102(2)(C). While Harris
was away on sick leave, the Company's president, Aldric Hayes,
hired another person to take over permanently as comptroller, even
though Hayes had previously been satisfied with Harris' performance
in that position. That alone would not be enough, but according to
a report taken by the Georgia Department of Labor Field Office in
connection with Harris' claim for unemployment insurance benefits,
Hayes gave the following explanation for that action:
In my opinion, she did work for me good for a long time, and
I do not feel I had to put my company on the line, and I felt
that the company was being put in jeopardy, at a disadvantage
due to her type illness and I wanted to give her time to fully
recover before advising her of my decision to put someone else
as comptroller, in an effort to take some of the stress of the
job off her. Had I had the opportunity to tell her of this,
I could have explained why I was doing this, but I felt that
was not the time, due to the type illness she had....
Georgia Department of Labor, Statement of Interested Parties (March
4, 1993) (emphasis added). Viewing that evidence in the light most
favorable to Harris, as we are required to do at this stage, we are
persuaded that a genuine issue of material fact exists as to
whether Hayes decided to permanently replace Harris as comptroller
because he regarded her as having a substantially limiting
impairment. The district court erred when it reached the opposite
conclusion in granting summary judgment in favor of the Company.
C. Whether Material Fact Questions Exist Regarding the Other
Elements of Harris' Prima Facie Case
In order to prevail on her ADA claim, Harris must do more than
show that she has a disability. She must also prove the other two
elements of her prima facie case—that she was a qualified
individual and that she was discriminated against because of her
disability. At the summary judgment stage, Harris bears the burden
of coming forward with sufficient evidence to create genuine issues
of material fact regarding each of those elements. We readily
conclude that she has.
On the qualification issue, there is evidence that Hayes
admitted to the Georgia Department of Labor representative that
Harris "did work for me good for a long time." That is consistent
with his deposition testimony that he did not have any real
problems with Harris' performance as comptroller "until the end"
and that "[a]s far as I was concerned Ellen had done a real good
job." Deposition of Aldric M. Hayes 17, 18 (August 2, 1994). In
view of the fact that Harris held her job with the Company for over
three years, and that Hayes had no real problems with her
performance "until the end" (which was around the time of her
hospitalization), we are satisfied that Harris has demonstrated the
existence of a genuine issue of material fact as to whether she was
qualified for the position she held.
Turning to the discrimination issue, the record evidence is
sufficient to raise a genuine issue of material fact about whether
Hayes discriminated against Harris on the basis of her disability
when he replaced her as comptroller.2 At his deposition, Hayes
gave the following explanation for that decision: "I am thinking
to myself in this big dilemma I am in right now, what do I do? If
I put her in charge [as comptroller] ... then what if she has to go
back to the hospital again, I am high and dry." Deposition of
Aldric M. Hayes 29 (August 2, 1994). Moreover, as reviewed above,
Hayes allegedly explained that he decided to replace Harris as
comptroller because he "felt that the company was being put in
jeopardy, at a disadvantage due to her type illness." One purpose
of the ADA is to prevent employers from taking adverse employment
actions against disabled employees because they merely "feel" that
their businesses are being disadvantaged due to the disabilities of
those employees, without first determining whether those
disadvantages could be ameliorated with a reasonable accommodation
that does not place an undue hardship on the business. See 42
2
Although the Company contends that Harris cannot show
discrimination, because she was not formally discharged, we note
that the ADA provides protection against adverse employment
actions that fall short of termination. See 42 U.S.C.A §
12112(a) (West 1995) (prohibiting discrimination "in regard to
job application procedures, the hiring, advancement, or discharge
of employees, employee compensation, job training, and other
terms conditions, and privileges of employment"); see also
McNely v. Ocala Star-Banner Corp., 99 F.3d 1068, 1078 (11th
Cir.1996) (reversing jury verdict in favor of employer where
verdict form erroneously limited recovery to "termination").
U.S.C. § 12112(b)(5)(A). The Company has not argued to us, or to
the district court, that Harris' medical condition could not be
accommodated without placing an undue hardship on the Company.
Harris has met her burden at summary judgment on the issue of
whether the Company discriminated against her on the basis of her
disability.
IV. CONCLUSION
The district court erred when it granted summary judgment to
the Company on the grounds that Harris cannot show that she has a
disability within the meaning of the ADA. The Company has failed to
demonstrate the absence of genuine issues of material fact and that
it is entitled to judgment as a matter of law on the issues of
whether Harris actually has a substantially limiting impairment, as
covered by 42 U.S.C. § 12102(2)(A), and as to whether the Company
regarded her as having such an impairment, as covered by 42 U.S.C.
§ 12102(2)(C). Likewise, the Company has failed to demonstrate the
absence of genuine issues of material fact as to whether Harris was
qualified for the position of comptroller and as to whether the
Company discriminated against her on the basis of her disability.
By contrast, the record is wholly devoid of sufficient
evidence to demonstrate the existence of a genuine issue of
material fact with respect to Harris' pendent state law claim for
intentional infliction of emotional distress.
Therefore, we AFFIRM the entry of summary judgment in favor of
the Company on the claim for intentional infliction of emotional
distress, we REVERSE the entry of summary judgment in favor of the
Company on the ADA claim, and we REMAND for further proceedings
consistent with this opinion.