William Runnebaum v. Nationsbank of Maryland, N.A. , 95 F.3d 1285 ( 1996 )

WILLIAMS, Circuit Judge,

dissenting:

The majority holds that Runnebaum not only succeeded in establishing a prima facie case of discrimination under the ADA and ERISA, but also demonstrated sufficiently to survive summary judgment, that Nations-Bank’s reasons for discharging him were pre-textual. 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 Runnebaum cannot prove a prima fade case of discrimination. Even assuming that Runnebaum established a prima facie case, I would hold that NationsBank’s articulated reasons for his discharge were not pretextual 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 Runnebaum, when he so chose, performed well, he failed to perform well consistently; and just as consistently, he engaged in conduct that justified his termination from employment. Moreover, even stellar performance 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 Na-tionsBank, Runnebaum experienced difficulty in satisfying his professional responsibilities. In a March 20, 1992, written evaluation of Runnebaum (March Memorandum) — from which the majority selectively culls sterile numerical ratings to conclude that Runneb-aum’s performance was satisfactory, see ante at 1290-91 — Department Manager Michael Kines, Runnebaum’s first supervisor at Nati-onsBank, detailed Runnebaum’s difficulty in meeting NationsBank’s standards. For instance, while Kines stated that Runnebaum “demonstrated rudimentary ... credit analysis techniques,” performed “a good job on simple ... credits,” and demonstrated “the personal skills and apparent confidence to do well” in banking, Kines also observed that Runnebaum’s “production has been minimal” and that his “[ejffectiveness was hampered by communication 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 behavior was unpredictable, causing his colleagues and clients to question his credibility. (J.A. at 54-55.) Kines’s evaluation also noted that Runnebaum 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 Runnebaum, 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 corporate client. Equally, however, Kines reasoned that because Runnebaum maintained so few clients, there was no reason not to handle their needs meticulously. While acknowledging Runnebaum’s successes, 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, Run-nebaum’s “[development 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 interpersonal skills, Kines noted that Run-nebaum must check nervous behavior and the tendency to blame others for mishaps. The majority’s mischaracterization of this evaluation as “continued praise” for Runneb-aum’s performance is simply wrong. See ante at 1291. This evaluation specifically cites five failures, two undecideds, and one positive aspect of Runnebaum’s performance. A fair reading of this evaluation establishes beyond cavil that Runnebaum’s performance was not laudatory.

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 unexplained absenteeism, tardiness, and lengthy lunch periods. Kutch stated that Runnebaum enjoyed shocking colleagues and clients by recounting racially and sexually offensive jokes at conference meetings. 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 soliciting 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, Runneb-aum 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 Nations-Bank customer. The majority’s attempt to write this conduct off as “jocular” is disingenuous at best, particularly when it attributes to Pettit what is actually Runnebaum’s view of her criticism. (J.A. at 91.)

Kines and Kutch were not surprisingly relieved by Runnebaum’s request to transfer to the Trusts/New Business Development Baltimore 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, Runneb-aum unequivocally represented that he was not handicapped, thereby signifying that he suffered no disability. Furthermore, Run-nebaum never once requested that Nations-Bank implement accommodations regarding any disability pursuant to the ADA.

Simultaneous with Runnebaum’s transfer to the Trust Department in Baltimore, Nati-onsBank 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 Department, articulated Na-tionsBank’s expectations of Runnebaum and Andersson in a memorandum dated July 14, 1992 (July Memorandum). According to the July Memorandum, Runnebaum and Anders-son were instructed that:

Each of you should arrange with each sales officer to join them on 8 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 [Runneb-aum’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 (January 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 functions; (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 professionally.

In addition to failing in his duties, Runneb-aum continued to engage in inappropriate behavior. In two presentations to two separate law firms whose business NationsBank was courting, Runnebaum presented the trust and estate information in a condescending manner to attorneys who were skilled in that area of the law. Additionally, Runneb-aum 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 Runnebaum 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, .concerning his untoward conduct and dereliction in meeting sales goals, Pettit decided Runnebaum would not be able to complete his assigned activities and should be discharged. Despite Pettit’s decision to terminate Runnebaum, Pettit decided to give him an opportunity to redeem himself. 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 forward to seeing you shine.” (J.A. at 431.) Lesser goals and inspiration were for naught. Pettit resolved conclusively to discharge Runnebaum, stating that she reached this decision November 3,1992.

While many considerations entered the calculus to discharge Runnebaum, 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 faded to perform required duties and exhibit proper decorum. In addition, Run-nebaum wasted inordinate amounts of time planning NationsBank’s Christmas party. While undeniably NationsBank asked Run-nebaum to plan this affair, equally so, Nati-onsBank did not sanction the time he squandered on making these plans. By his own admission, Runnebaum testified in his deposition that “[ojverall, 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, wrapping 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 conduct himself professionally, Run-nebaum 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 Productions, while ostensibly working for NationsBank, and wrote numerous personal letters and invitations on company time and with company equipment. The majority attempts to characterize NationsBank as condoning this conduct by noting that Kines encouraged NationsBank employees to attend Runnebaum’s performance in Grapes of Wrath. See ante at 1292-93 n. 5. There is no evidence, however, 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 Caw-ley, Personnel Manager for NationsBank, convened to effectuate the termination, and as of that date, Runnebaum ceased to be employed by NationsBank.

Runnebaum filed suit against Nations-Bank, 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. Concluding 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 judgment.

II.

Federal Rule of Civil Procedure 56(c) squarely places on Runnebaum 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 element 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, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (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, 106 S.Ct. 2505, 2510-12, 91 L.Ed.2d 202 (1986). In determining whether a genuine issue of material fact has been raised, we must construe all reasonable inferences in favor of Runneb-aura. See id. at 255, 106 S.Ct. at 2513-14. Because the onus is on Runnebaum 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 precept, 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, 106 S.Ct. at 2512. Thus, “[m]ere unsupported speculation ... 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, therefore, Runnebaum must demonstrate that specific, material facts exist that give rise to a genuine issue. See Celotex Corp., 477 U.S. at 324, 106 S.Ct. at 2553.

In my view, the majority has lost sight of these principles in reversing the grant of summary judgment in favor of NationsBank. Rather than adhere to these precepts, the majority has given credence to Runnebaum’s speculative support for his contention that a genuine issue of material fact existed regarding the reasons for his discharge. Moreover, the majority holds that Runnebaum advanced sufficient evidence 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 Runneb-aum’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 disability of such individual.” 42 U.S.C.A. § 12112(a) (West 1995). To establish a pri-ma facie ease 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 expectations; 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 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 succeeds in establishing a prima facie case, the burden shifts to NationsBank to articulate a legitimate, nondiscriminatory reason for the discharge that supports a finding that unlawful discrimination did not cause the challenged action. See Ennis, 53 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 specificity,”’ 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, 255 n. 10, 255, 101 S.Ct. 1089, 1095 n. 10, 67 L.Ed.2d 207 (1981)), cert. denied, — U.S. -, 116 S.Ct. 380, 133 L.Ed.2d 304 (1995), which requires that Run-nebaum shoulder “the ultimate burden of persuading the court that [he] has been the victim of intentional discrimination,” Burdine, 450 U.S. at 256, 101 S.Ct. at 1095. The ultimate issue in this suit is whether Nations-Bank intentionally, unlawfully discriminated against Runnebaum 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, 113 S.Ct. 2742, 2752, 125 L.Ed.2d 407 (1993). Here, the parties do not dispute that Runnebaum was discharged, 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 “disability” is:

(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.

42 U.S.C.A. § 12102(2) (West 1995). Because the ADA qualifies disability 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 assertion, 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 Runneb-aum 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 something, 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, piek-ing [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 HTV[-]positive.... But, you know, suppose he dies on me. Should I tell [Pettit] at this point, should I tell [NationsBank]? I remember feeling panicky, uncontrolled.

But at the same time[J 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 “panicky” and “uncontrolled” as a result of his regarding Runneb-aum 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 seropo-sitivity, Brown was solicitous of Runnebaum and sympathetic to his needs, styling himself as Runnebaum’s “protector,”⁴ as indeed he was because shortly thereafter, Brown arranged for Runnebaum to receive AZT through NationsBank’s insurer; this is not the conduct of a “panicky,” “uncontrolled” man. Indeed, the fact that Runnebaum chose to confide his seropositivity 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 ae-cepting the majority’s miseharaeterization, that Brown felt “panicky” or “uncontrolled” at the time Runnebaum confided in him is simply insufficient under Celótex 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 decisionmaker regarding Runnebaum’s termination, regarded Runneb-aum as being disabled. Although Pettit knew that Runnebaum was HIV-positive when she discharged him, she did not possess this knowledge when she decided to fire him on November S, 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 Pettit informed Brown that she planned to discharge Runnebaum. See Ennis, 53 F.3d at 60 (discussing evidence to support claim that “relevant decisionmakers” knew of an employee’s disability). Accordingly, 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 Nations-Bank’s legitimate expectations at the time of his discharge. NationsBank does not dispute the fact that Runnebaum enjoyed qualified success, and the record amply supports this conclusion. The rankle, 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 joint external referral source calls. Runneb-aum also failed to submit required reports, to attend certain functions, and to take training classes or attend manager’s meetings. Run-nebaum’s utter failure to attend to his assigned duties — which, significantly, Runneb-aum 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 performing his job), cert. denied, 450 U.S. 959, 101 S.Ct. 1418, 67 L.Ed.2d 383 (1981).

Second, during his tenure at NationsBank Runnebaum engaged in a pattern of unprofessional behavior. For example, Runneb-aum 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 consisting of tasks more properly delegated to his administrative assistant. 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 legitimate 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 Nati-onsBank 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 disregarding Kines’s negative comments in the March Memorandum and 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) (holding that a 1984 evaluation, even if given in December 1984, and a merit-based pay raise implemented at the start of 1985 were not relevant 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 inception, 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 progressively deteriorating performance. In light of this deterioration, the March Memorandum is temporally too tenuous to reflect Runneb-aum’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 1298, this evaluation concluded that Runnebaum failed to familiarize himself with Nations-Bank 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 summary judgment calculation.

Yet another flaw in focusing on the March Memorandum is the fact that the majority disregards the more pertinent, subsequent evaluations that prove conclusively that Runnebaum was not satisfying Nations-Bank’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 demonstrated that Runnebaum failed to improve his professional goals, as memorialized in the July Memorandum. The downward spiral continued, for on the heels of the July Memorandum came Pettit’s counseling Run-nebaum twice about his professional failures and coarse conduct. Planning the Christmas party likewise vividly depicted Runneb-aum’s inability to concentrate on substantive matters and to comport 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 handwritten 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. Westinghouse Elec. Corp., 937 F.2d 1216, 1223 (7th Cir.1991) (explaining that an employer’s letter of recommendation did not prove discrimination because it failed to respond to the precise reason for the plaintiffs 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. Succinctly 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

(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 Runnebaum’s performance, but is cast in anticipation of future achievements. 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 evaluation, but is merely an isolated statement hoping for a profitable future. As such, it lacks probative value because it does not address the reasons for Runnebaum’s termination. In my view, this note is insufficient to demonstrate any form of discrimination.

In sum, analyzed separately or collectively, the March Memorandum and the two notes are insufficient to show that Runnebaum s performance met NationsBank’s legitimate expectations. At most, the March Memorandum demonstrates that Runnebaum displayed positive 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 ease 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 employment 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 (holding that because evidence of plaintiffs deficient performance was so pervasive, no rational trier of fact could conclude that her discharge occurred under circumstances giving rise to an inference of discrimination).

B.

Even assuming that Runnebaum established a prima facie case of discrimination under the ADA, I conclude that NationsBank articulated legitimate, nondiseriminatory 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, 509 U.S. at 515-17, 113 S.Ct. at 2752. NationsBank terminated Runnebaum for failure to fulfill his sales goals and for failure to amend his unprofessional conduct. As the majority recognizes, see ante at 1293, these are legitimate, nondiscriminatory reasons to discharge 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 Computers, Inc., 63 F.3d 429, 433 (5th Cir.1995). The majority concludes, however, that Runnebaum proffered sufficient evidence to prove that Nati-onsBank’s rationale for terminating him was pretextual. In support of this conclusion, the majority implicitly recognizes the weakness of its argument by stating that no single fact proves Runnebaum’s case, but relies on the combination of three considerations to bolster its holding: (1) the timing of Runneb-aum’s discharge; (2) Brown’s reaction on learning of Runnebaum’s seropositivity; and (3) a comparison of Runnebaum’s and An-dersson’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 1294. According to the majority, this inference is raised because Runnebaum was given additional responsibilities early in his tenure, a Nations-Bank 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 March Memorandum, failing to consider Runnebaum’s deficient performance from March until he was discharged. See Ennis, 53 F.3d at 61 (noting that plaintiffs initial good performances were not material because her performance consistently eroded to the point of being unsatisfactory). Since inception, NationsBank observed Run-nebaum’s deficient performance and saw it deteriorate, culminating in the January 7, 1993 memorandum memorializing the reasons for his termination. Runnebaum had a consistent history of deteriorating performance, 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 Run-nebaum’s termination. Regarding Pettit’s knowledge of Runnebaum’s seropositivity and her December 9, 1992 note, I have explained why these instances are immaterial to this appeal. Accordingly, the timing and circumstances surrounding the discharge demonstrate 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 1295 (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 sun mary 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, — U.S. -, 115 S.Ct. 666, 130 L.Ed.2d 600 (1994); Beale, 769 F.2d at 214. This contention is further foreclosed because NationsBank employs individuals 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 Runneb-aum to amend his conduct, and informed Pettit of Runnebaum’s seropositivity upon learning of her decision to execute the discharge. Also, no one else at NationsBank 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 Discrimination Act of 1978 to ADA claims.

3.

Third, the majority relies on ostensibly comparative evidence to conclude that Run-nebaum produced sufficient evidence for a jury to conclude that NationsBank’s articulated reasons for terminating Runnebaum are pretextual. To support this conclusion, the majority opines that because “Runneb-aum outsold Andersson ... but Andersson was not fired,” ante at 1296, 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 Andersson are manifold. As an initial matter, Runnebaum was not terminated exclusively because he failed to meet sales goals; he was also terminated for absenteeism, tardiness, and improper conduct, and there is no evidence that Andersson exhibited similar shortcomings. Comparing 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 Computer, 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 demonstrate the same flaws in her comparators, she could not prove pretext), cert. denied, — U.S. —-, 115 S.Ct. 1958, 131 L.Ed.2d 850 (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 fired for reasons other than just his sales performance. See Nitschke, 68 F.3d at 252 (stating that statistical evidence demonstrating age discrimination 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 subordinates and follow superiors’ suggestions for improvement and thus affirming a grant of summary judgment). In addition, Andersson worked in Washington, D.C., while Runneb-aum 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, 97 S.Ct. 2736, 2741-42, 53 L.Ed.2d 768 (1977) (holding that the proper comparison for a claim of racial discrimination in teaching positions must be between the school’s actual teaching 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 Nations-Bank articulated 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 pretext. Accordingly, I would affirm the grant of summary judgment in favor of Nations-Bank on Runnebaum’s § 510 ERISA claim.

IV.

I conclude that the district court properly granted summary judgment 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 ease of discrimination and fore cast sufficient evidence to prove pretext. The evidence supports neither 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.

1 . Indeed, during his deposition Runnebaum testified that he had not intended to make these required sales calls.

2 . Runnebaum’s complaint may also be read to allege that he was disabled 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).

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).

4 . The dissent posits that Brown’s styling himself as Runnebaum's "protector" implies that Run-nebaum needed protection from NationsBank’s alleged discrimination. See ante at 1290 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.

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 Run-nebaum “had no ill effects from the disease or the medications.” (J.A. at 154-55.) Comporting with Dr. Pistole's testimony, Runnebaum has consistently maintained that he endures no impairment that substantially limits a major life activity, thereby proving that he is not disabled under the first prong of the ADA's definition of a disability.