UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-1544
BRANELL HARRIS,
Plaintiff - Appellant,
v.
RESTON HOSPITAL CENTER, LLC,
Defendant – Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Claude M. Hilton, Senior
District Judge. (1:10-cv-01431-CMH-TCB)
Argued: March 19, 2013 Decided: April 24, 2013
Before DUNCAN, FLOYD, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Annette Kay Rubin, Leesburg, Virginia, for Appellant.
Sarah Aiman Belger, MCGUIREWOODS, LLP, Tysons Corner, Virginia,
for Appellee. ON BRIEF: Ronda Brown Esaw, MCGUIREWOODS, LLP,
Tysons Corner, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Branell Harris (“Appellant”) appeals from an order
entered March 26, 2012, granting summary judgment to Reston
Hospital Center (“Appellee” or “Reston Hospital”) on her claim
of discriminatory discharge brought pursuant to the Americans
with Disabilities Act (“ADA”), as amended by the ADA Amendments
Act of 2008 (“ADAAA”). Appellant contends the district court
erred by concluding Reston Hospital did not “regard” her as
disabled because the evidence actually indicates the hospital
was aware she suffered from a drug and alcohol addiction. She
further asserts that the district court ignored proof
establishing other elements of her claim, and, thus, improperly
granted summary judgment. We disagree. In our view, Appellant
failed to establish that she was a “qualified individual” with a
disability because the undisputed facts indicate she could not
objectively perform the essential functions of her job. Because
Harris failed to establish this necessary ingredient of her
claim, we affirm.
I.
Appellant began working as a registered nurse for
Reston Hospital in its surgical unit in 2002. She was
interviewed and hired by Nancy Susco, director of the surgical
unit, who continued to act as Appellant’s direct supervisor
throughout her employment. As part of her job, Appellant
2
provided direct care to patients recovering from surgery,
including the administration of medications and narcotics.
A.
After approximately one year of work at Reston
Hospital, Appellant attempted suicide on two occasions in 2003.
During her first attempt, she intentionally overdosed on the
prescription sleep aid Ambien. Appellant attempted suicide a
second time, when, after taking several over-the-counter sleep
aids, she crushed Ambien, mixed it with Dilaudid -- a narcotic
prescribed to treat moderate to severe pain -- and water, and
injected it into her veins. Appellant obtained the Dilaudid by
impermissibly diverting it from leftover pain pumps at Reston
Hospital.
As a result of her diversion of a narcotic, Appellant
submitted to the Commonwealth of Virginia’s Health
Practitioners’ Intervention Program (“HPIP”) in 2003 as an
alternative to discipline by Reston Hospital and also as a
requirement for retaining her nursing license. HPIP is
administered by the Commonwealth, and Susco served as an on-site
monitor for the program at Reston Hospital. As part of her
participation in HPIP, Appellant was required to seek ongoing
treatment, submit to random drug screenings, and “abstain
completely from alcohol, marijuana, stimulants, cocaine,
narcotics, sedatives, tranquilizers, and all other potentially
3
addicting or mind-altering medications or drugs.” J.A. 386. 1
Thus, Appellant was prohibited from taking Ambien and other
sleep aids during her participation in the program. As the work
site monitor for the HPIP program, Susco submitted periodic
reports to HPIP regarding Appellant’s work performance.
Appellant was on an approved leave of absence from
Reston Hospital to seek treatment through HPIP beginning in June
2003. She initially received three months of leave under the
Family and Medical Leave Act (“FMLA”), and when she exhausted
her FMLA leave, Reston Hospital permitted Appellant to take an
additional three months of extended leave. After her return to
work, and for a period of several months during her
participation in HPIP, Appellant was prohibited from
administering narcotics to patients. Reston Hospital assigned
another nurse to administer narcotics to Appellant’s patients
during this time.
The original length of Appellant’s participation in
HPIP was five years with a completion date of 2008; however, it
was extended by one year after she violated the terms of her
agreement with HPIP in 2007 by obtaining a prescription for
Lunesta, a sedative in the same family as Ambien. Yet Reston
1
Citations to the “J.A.” refer to the Joint Appendix filed
by the parties in this appeal.
4
Hospital did not discipline her as a result. Instead, Appellant
took another approved leave of absence between August and
November 2007 relating to additional treatment through the HPIP
program, and successfully completed the program in June 2009.
B.
In general, Appellant’s periodic performance reviews
at Reston Hospital indicate a “satisfactory” performance. 2 Even
so, on four occasions in 2008, Appellant made mistakes
administering medications to patients. She was responsible, as
part of her duties on the surgical unit, for verifying that what
is entered into the hospital’s medication administration record
by the pharmacist is the correct dosage, route, and frequency
ordered by the physician. 3 According to Susco, it is rare for
2
According to the employee performance evaluation form, a
score of “2” or below indicates unsatisfactory/below
expectations. Appellant received scores of 3.04 in 2007, 3.04
in 2008, and 2.81 in 2009. Appellant’s evaluations also
indicated that she had consistent problems assisting peers. As
a result, Susco met with Appellant annually to discuss her
performance and counseled her on at least three additional
occasions to address the issue.
3
The first error took place on April 30, 2008, when a
patient was to receive a dose of medication at 11:00 a.m. Due
to Appellant’s failure to catch the mistake, the patient did not
receive the medication until 11 hours later. The second mistake
occurred on August 12, 2008, when Appellant failed to notice
that the pharmacy forgot to order a certain medication for a
patient. As a result, the patient did not receive the
medication that the physician ordered. The third mistake
occurred on October 18, 2008, when one of Appellant’s patients
was to receive a medication orally. Due to her failure to
(Continued)
5
nurses on the surgical unit to make more than one or two
medication errors in a given year, whereas Appellant made four
medication errors during a six month period.
C.
According to Appellant, the events culminating in her
dismissal on August 11, 2009, began earlier that month.
Sometime during the morning of August 4, 2009, while walking
into her house, Appellant tripped and fell onto a set of cement
steps and suffered a head injury and a loss of consciousness.
She woke up at the emergency room of Inova Loudoun Hospital
sometime later, having been brought there by ambulance.
Appellant has no recollection of anything that happened after
falling and striking her head until she woke up in the hospital.
The record from Appellant’s emergency room visit
indicates “altered mental status” and “trauma.” The attending
physician noted that Appellant appeared groggy and planned to
observe her overnight to determine whether the symptoms were
connected to some substance or to the head trauma. The results
of the toxicology report were negative for all substances with
monitor the chart properly, the patient instead received the
dose intravenously. The fourth error occurred three days later,
on October 21, 2008, when one of Appellant’s patients was given
twice as much medication as the physician had ordered.
6
the exception of Appellant’s regularly prescribed anti-anxiety
medication, Klonopin.
Having been hospitalized overnight, Appellant received
a telephone call from her supervisor, Susco, on the morning of
August 5 at 9:45 a.m., while still in Loudoun Hospital.
Following an explanation of the events of the previous two days,
Susco suspended Appellant for three days for a “no call/no show”
because Appellant failed to show up for her shift or to call her
supervisor within two hours after her shift began at 3:00 p.m.
in accordance with Reston Hospital policy. Appellant was
released from Loudoun Hospital later that day.
D.
After serving her suspension, Appellant reported to
work timely on August 11, 2009, for her 3:00 p.m. shift. Per
Appellant, she felt fine when she arrived. Shortly after
clocking in, however, she began to feel woozy and to experience
disorientation and nausea, “like the room was starting to spin.”
J.A. 73-74. She described her experience as episodic and coming
over her in waves and said that she felt at some points as if
she would lose consciousness. Several coworkers on the unit
reported her behavior to the assistant director of the surgical
unit, Cathy Hannon, who escorted Appellant off the floor and to
7
a conference room. 4 Susco and Gina Gerard, the hospital’s human
resources director, were thereafter summoned to the conference
room.
Appellant characterizes the meeting as very tense,
stating that Susco and Gerard “hammer[ed]” her with questions
about what medications she had taken and whether she was under
the influence of alcohol and/or narcotics. J.A. 77-78. Susco
testified regarding the meeting:
So at that time, when I got there [Appellant] and
[Hannon] were already in the conference room waiting
for me. And Gina Gerard came in and we talked to
[Appellant]. And at that point she appeared impaired.
4
Choon “Tina” Kim, a registered nurse who had worked on the
surgical unit for 30 years, noticed that Appellant was acting
strangely while she was reporting to Appellant on their shared
patients. Kim noticed that Appellant was not responding
appropriately to the questions, and she was slurring her words.
J.A. 198. Additionally, the nurse who is taking over the shift
will usually write down all of the patient information, but Kim
observed Appellant just staring at the piece of paper she had in
her hand. Id. Approximately 20 minutes after giving Appellant
the report, Kim saw her staring blankly for several minutes at a
computer monitor with a screensaver displayed rather than
entering patient information into the computer. Id. Concerned
that something was wrong, Kim approached Hannon and told her
that she should check on Appellant because she was acting
strangely. Id.
Alisa Rooney, another veteran nurse on the surgical unit,
also noticed that Appellant was slow to respond to questions.
J.A. 200. Rooney observed Appellant standing near the nurses’
station appearing lost and not responding to at least two
patient calls for assistance. Id. Rooney finally approached
Appellant and offered to administer medication to one of her
patients. Id. She then approached Hannon and expressed her
concerns about Appellant’s behavior. Id.
8
She couldn’t keep her eyes open. She was slumping
over. Her speech was slow and slurred. So Gina felt
it was the right next step to do to ask her [for]
permission for a drug test.
* * * *
She was having trouble staying awake. She was not
focusing. She was slurring her speech. We asked her
if she had anything to drink or taken any drugs before
she came to work. And she said that at midnight she
had had two glasses of wine and had taken 20
milligrams of Ambien because she was nervous about
coming back to work after her suspension. The 11th
was the first day back to work after her suspension.
And then when she couldn’t go to sleep, and at 6:30 in
the morning she had another glass of wine. And she
took her regular prescriptive pills and she took some
Klonopin, some Tylenol, and what she said was
Methotrexate that she was taking for arthritis pain.
J.A. 117-18. At her deposition, Appellant testified that Gerard
told her during the meeting in the conference room that she was
fired, and denied telling those present that she had drank two
glasses of wine the night before and one glass that morning.
However, she admitted to drinking two glasses of wine around
noon on the day before, August 10.
Appellant further testified regarding her condition on
August 11:
Q. So at any time during August 11th when you were at
Reston Hospital, did you tell anyone there something to the
effect of, hey, I don't feel good or, hey, I feel sick,
something like that?
A. Not that I recall.
* * * *
9
Q. When you were describing before lunch how you felt when
this wave came over you, and I want to make sure I get your
testimony right, I think you said you felt woozy, you felt
nauseated, you felt like you were going to lose
consciousness; is that correct?
A. That is correct.
Q. Do you think that you could safely administer medication
when you were in that state on August 11th?
A. When that wave happened upon me, no.
Q. Do you think you were able to treat patients when that
wave came upon you on August 11th?
A. No.
J.A. 83-84; see also id. 109-10.
While in the conference room, Appellant completed a
form indicating what medications she had taken. She signed a
drug test consent form and admitted that she was taking the
following medications: Cymbalta, Clonazepam (Klonopin), Ambien,
Tylenol, and Methotrexate -- each of which were regularly
prescribed or over-the-counter. A phlebotomist arrived and drew
Appellant’s blood. She was then sent home. The results of the
blood test, which were reported on August 17, 2009, were
negative for narcotics and alcohol. 5
5
Appellant claims she was fired on August 11, 2009, whereas
Susco contends Appellant was not discharged until August 19,
after the blood test results had been reported. While we credit
Appellant’s version for purposes of summary judgment, this
dispute has no bearing on our disposition of her appeal.
10
Even so, Gerard and Susco discussed the situation and
decided that given Appellant’s inability to perform her job and
safely treat patients on August 11, termination of her
employment was warranted. Susco testified regarding the
decision to discharge Appellant:
Q. Why do you believe she was unable to - you the
institution, Reston Hospital, why does Reston Hospital
believe that she was unable to perform her job duties that
day?
MS. BELGER: Objection to form and foundation. You may
answer.
A. When she presented to work on that day at three o’clock
she could not stay awake. She could not -- she was slurring
her speech. She –
Q. Appeared impaired?
A. Could not -- appeared impaired. And I could not let her
take responsibility for a patient load. First priority is
to our patients. And that’s why she was removed from the
floor that day.
Q. And I understand why she would be removed from the floor
that day. Why was she fired?
MS. BELGER: Same objection.
A. This was just the last straw in many things that had
gone on with Branell [Harris].
J.A. 121:9-122:5.
Susco further testified that she also took into
account Appellant’s past disciplinary and performance record in
making the decision to discharge, including her interactions
11
with her peers, her medication errors, and her recent no call/no
show:
Q. Okay. So what conversation did you have with Gina Gerard
about terminating Branell?
A. She asked me what my thought process was and the fact
that this was not the first issue that we had with
Branell’s performance. And she told me that she had
consulted with Lesley and with HCA corporate, and that the
decision was made to go ahead with the termination.
Q. Did you offer any insight or input to Gina Gerard as
part of these discussions?
A. Gina already knew about the performance history with
Branell.
Q. When you say the performance history with Branell, can
you be more specific?
A. She knew about any of her previous counselings.
J.A. 123:3-124:11. 6
In Appellant’s view of events, her impairment on
August 11 was caused by a latent manifestation of the head
injury she received as a result of her fall on August 4, rather
than by drugs or alcohol. In this regard, Appellant directs us
to evidence from her primary treating physician, Dr. Michael G.
Bowers, D.O., whom she visited on September 15, 2009, several
weeks after she was fired by Reston Hospital. Upon examining
Appellant, who had complained of ongoing headaches, Dr. Bowers
6
The “previous counselings” refer to the response by the
hospital to Appellant’s past performance evaluations. See supra
note 2.
12
reported that she “may have been suffering from post-concussion
syndrome.” J.A. 187. He testified regarding post-concussion
syndrome, “Post[-]concussion syndrome [. . . ] is like kind of a
timeline. So, if you have still concussive issues, meaning
headaches, memory loss, you know, maybe some cognizant deficits
during the day, even nausea.” Id. 277. When asked during his
disposition whether his testimony could be characterized as not
“definitively” diagnosing Appellant as having a concussion, Dr.
Bowers testified:
I would say based on [sic] because I have to rely
solely on her history of present illness, not having
records, and then when I examine her, that is correct.
I could not definitively say yes, you had a
concussion. But based on symptomatology and
discussion I would have to label it as a concussion.
Id. 188.
E.
On December 21, 2010, Appellant commenced this action
by filing a complaint against Reston Hospital in the Eastern
District of Virginia. She filed an amended complaint on June
21, 2011, asserting that Reston Hospital wrongfully discharged
her on the basis of a drug and alcohol addiction disability.
Following discovery, the hospital moved for summary judgment,
which was granted by the district court on March 26, 2012.
In the main, the district court concluded that
Appellant failed to present evidence “indicating that Reston
13
Hospital knew or believed that Plaintiff had any problems with
alcohol prior to her termination” such that she met her burden
to show that Appellee “regarded” her as disabled. See Harris v.
Reston Hosp. Ctr., LLC, 1:10-CV-1431, 2012 WL 1080990, at *5
(E.D. Va. Mar. 26, 2012). The district court likewise refused
to consider an additional theory of recovery introduced by
Appellant for the first time in response to Appellee’s motion
for summary judgment, namely, that Appellant was fired because
she had a “record” of impairment. The district court reasoned
that to allow Appellant’s assertion of a new legal theory --
outside of the complaint and after discovery -- to defeat
summary judgment would unfairly prejudice Reston Hospital.
The district court also determined that Appellant
failed to present sufficient evidence indicating she was a
“qualified individual.” The district court explained as
follows:
Plaintiff has not demonstrated that she was performing
her job at a level that met Reston Hospital’s
legitimate expectations at the time or her termination
in August 2009. Plaintiff had been counseled at least
three times since 2007 regarding the need to be more
consistent in assisting her peers. Additionally,
Plaintiff had been given a written warning in 2008 for
four medication occurrences in one year. Plaintiff
was suspended for three days for a No Call/No Show on
August 4, 2009. Finally, on the day that Plaintiff
returned from her suspension, on August 11, 2009,
Plaintiff’s behavior concerned multiple coworkers.
Plaintiff slurred her words, did not respond
appropriately to questions, failed to respond to
several patient calls for medication, stared blankly
14
at a Screensaver on a computer monitor, and had
trouble staying awake.
Harris, 2012 WL 1080990 at *6.
The district court next concluded that even if
Appellant presented a prima facie case, “Plaintiff’s actions
gave Reston Hospital legitimate, nondiscriminatory reasons to
terminate Plaintiff’s employment, and Plaintiff’s claim that
Reston Hospital illegally terminated her due to a perceived
disability is belied by the fact that Reston Hospital
continually accommodated Plaintiff and allowed Plaintiff to
maintain her employment.” Id. Finally, the district court
observed that Appellant failed to produce any evidence that
Appellee “had any discriminatory intent or that Reston
Hospital’s reasons for terminating Plaintiff’s employment were
pretextual,” or that “Plaintiff’s inability to perform the
essential functions of her job were not Reston’s [sic]
Hospital’s legitimate reasons for terminating her employment.”
Id. at *7. Harris timely appealed.
Appellant presents two issues on appeal: 1) whether
the district court improperly declined to consider Appellant’s
new legal theory that the hospital terminated her due to a
“record” of impairment; and 2) whether the district court erred
when it found that Appellant failed to present a prima facie
15
case for discrimination pursuant to the “regarded as” definition
of disability. 7
II.
We review de novo a district court’s order granting
summary judgment. See Webster v. U.S. Dep’t of Agric., 685 F.3d
411, 421 (4th Cir. 2012).
III.
The Americans with Disabilities Act of 1990, 42 U.S.C.
§§ 12101-12213, as amended by the ADA Amendments Act of 2008,
Pub. L. No. 110-325, 122 Stat. 3353, prohibits an employer from
“discriminat[ing] against a qualified individual on the basis of
disability 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.” 42 U.S.C. § 12112(a). 8 A “disability” is defined
as (A) a physical or mental impairment that substantially limits
one or more of the major life activities of an individual; (B) a
7
In making her case, Appellant relies on statements taken
from the administrative proceedings before the Virginia
Employment Commission and the Virginia Board of Nursing. The
district court properly disregarded these statements because the
use of such information in judicial proceedings is prohibited by
Virginia law. See Va. Code Ann. § 60.2-623(B) (Virginia
Employment Commission); id. § 54.1-2400.2 (Virginia Board of
Nursing). We likewise disregard these statements.
8
Because Appellant’s claim arose after the effective date
of the ADAAA, we apply the amended version.
16
record of such impairment; or (C) being regarded as having such
an impairment. Id. § 12102(1).
A.
Appellant first argues that the district court
improperly refused to consider an additional theory of recovery,
asserted for the first time in her opposition to Appellee’s
motion for summary judgment, that she has a “record” of a
physical or mental impairment that substantially limits one or
more major life activities. 9
Addressing the new theory, the district court stated,
“any such ‘record’ does not appear in the Charge of
Discrimination that Plaintiff filed with the Equal Employment
Opportunity Commission (“EEOC”) or her Amended Complaint, nor
did Plaintiff assert any such record in her answers to
interrogatories or at her deposition.” Harris, 2012 WL 1080990,
at *4. Because the district court determined that asserting a
new legal theory for the first time in opposing summary judgment
amounted to constructive amendment of the amended complaint and
thus unfairly prejudiced the defendant, the district court
refused to consider it. Id. (citing United States ex rel. DRC,
Inc. v. Custer Battles, LLC, 472 F. Supp. 2d 787, 795–96 (E.D.
9
This theory implicates the second definition of
disability. See 42 U.S.C. § 12102(1)(B) (“disability” means “a
record of such an impairment. . . .”).
17
Va. 2007) aff’d, 562 F.3d 295 (4th Cir. 2009)). The district
court also concluded that Appellant failed to exhaust her
administrative remedies as to the “record” of impairment
argument. Id. (citing Miles v. Dell, Inc., 429 F.3d 480, 491
(4th Cir. 2005)).
We conclude that the district court did not err in
refusing to consider the new argument as an impermissible
attempt to constructively amend the complaint. Because a
complaint “guides the parties’ discovery, putting the defendant
on notice of the evidence it needs to adduce in order to defend
against the plaintiff’s allegations,” constructive amendment of
the complaint at summary judgment undermines the complaint’s
purpose and can thus unfairly prejudice the defendant. Coleman
v. Quaker Oats Co., 232 F.3d 1271, 1292-93 (9th Cir. 2000); see
Deasy v. Hill, 833 F.2d 38, 40-42 (4th Cir. 1987); Josey v. John
R. Hollingsworth Corp., 996 F.2d 632, 642 (3d Cir. 1993). 10
10
See also Cloaninger v. McDevitt, 555 F.3d 324, 336 (4th
Cir. 2009) (“[A] plaintiff may not raise new claims after
discovery has begun without amending his complaint.”); Priddy v.
Edelman, 883 F.2d 438, 446 (6th Cir. 1989) (“A party is not
entitled to wait until the discovery cutoff date has passed and
a motion for summary judgment has been filed on the basis of
claims asserted in the original complaint before introducing
entirely different legal theories in an amended complaint.”);
Feldman v. Allegheny Int’l, Inc., 850 F.2d 1217, 1225 (7th Cir.
1988) (“Defense of a new claim obviously will require additional
rounds of discovery, in all probability interview of new
witnesses, gathering of further evidence, and the identification
(Continued)
18
Indeed, Appellant did not at any time request leave to
amend her pleadings. As a result, Appellee conducted discovery
and crafted defenses based on Appellant’s claim as set forth in
the amended complaint, which alleges Appellee “regarded [her]
as” disabled. See 42 U.S.C. § 12102(1)(C). Defense of the
claim that Appellant had a “record of such an impairment,” id.
§ 12102(1)(B), plainly requires different discoverable
inquiries. Allowing this new theory, asserted in a response
brief no less, to defeat Appellee’s motion would amount to
constructive amendment of the controlling complaint, placing a
clear burden on Appellee’s ability to effectively and
efficiently defend itself. We affirm the district court’s
decision in this regard and thus need not address whether the
“record” of impairment theory is barred by Appellant’s failure
to exhaust her administrative remedies.
B.
A plaintiff establishes a prima facie case of wrongful
discharge under the ADA if she demonstrates that (1) she is
within the ADA’s protected class; (2) she was discharged; (3) at
the time of her discharge, she was performing the job at a level
that met her employer’s legitimate expectations; and (4) her
of appropriate legal arguments. All this necessarily takes
time.”).
19
discharge occurred under circumstances that raise a reasonable
inference of unlawful discrimination. See Reynolds v. Am. Nat’l
Red Cross, 701 F.3d 143, 150 (4th Cir. 2012); Rohan v. Networks
Presentations LLC, 375 F.3d 266, 273 n.9 (4th Cir. 2004);
Haulbrook v. Michelin N. Am., 252 F.3d 696, 702 (4th Cir. 2001).
“Evidence of all four of these elements is necessary to survive
summary judgment.” Reynolds, 701 F.3d at 150. Appellant’s
claim falters on the first step.
“One is within the ADA’s protected class if one is a
‘qualified individual with a disability.’” Haulbrook, 252 F.3d
at at 702 (quoting 42 U.S.C. § 12112). Under the ADA, a
“qualified individual” is one who, “with or without reasonable
accommodation, can perform the essential functions of the
employment position.” 42 U.S.C. § 12111(8). See Rohan, 375
F.3d at 278-79; Tyndall v. Nat’l Educ. Ctrs., Inc. of Cal., 31
F.3d 209, 213 (4th Cir. 1994). “A job function is essential if
it ‘bear[s] more than a marginal relationship to the job at
issue.’” Rohan, 375 F.3d at 279 (quoting Tyndall, 31 F.3d at
213). Appellant bears the burden of establishing that she could
perform the essential functions of her job. See Tyndall, 31
F.3d at 213.
At the outset, we recognize the undisputed fact that
an essential function of Appellant’s job as a registered nurse
in the surgical unit at Reston Hospital was the care and
20
treatment of patients, principally including the safe and
accurate administration of medications. We agree with the
district court that Appellant failed to demonstrate that she
could perform this essential function. Indeed, Appellant’s
concession that she was not capable of safely treating patients
or administering medication on August 11, 2009, the date of her
discharge, underscores her overall failure to satisfy this
element. Her employment record is riddled with repeated
absences stretching over several years and personnel evaluations
demonstrating barely satisfactory-level performance.
Appellant’s extensive absences and physical incapacity --
regardless of their precise causes -- would significantly
interfere with, if not wholly negate, her ability to perform the
essential functions of a surgical floor nurse. Because
Appellant failed to establish that she was a “qualified
individual” with a disability, the district court properly
entered judgment in favor of Reston Hospital. 11
11
Even if we concluded Appellant had established that she
was a “qualified individual” with a disability, we would
nonetheless affirm the district court because she utterly failed
to present evidence demonstrating that, at the time of
discharge, she was performing her job at a level that met her
employer’s legitimate expectations. See Ennis v. Nat’l Ass’n of
Bus. and Educ. Radio, Inc., 53 F.3d 55, 61-62 (4th Cir. 1995).
21
IV.
For the foregoing reasons, the judgment of the
district court is
AFFIRMED.
22