concurring in part and dissenting in part:
Although I agree with the majority that McAlindin’s retaliation claim fails as a matter of law, I respectfully disagree with the majority’s conclusion that the rest of his case has any merit.
First, the majority claims for McAlindin a disability — “interacting with others”— that he does not claim for himself. Although the evidence strongly suggests that in fact he has a problem “interacting with others,” McAlindin does not identify this plight as a mental or physical impairment that substantially limits one or more of his major life activities. Instead, McAlindin describes the disability upon which he grounds this lawsuit as a “generalized anxiety disorder or panic disorder,” or an “anxiety/panic/somatoform disorder.” At best, the suggestion that he cannot get along with others may be a symptom or a consequence of a disability, but not a disability per se.
Notwithstanding McAlindin’s own description of his alleged disability, the majority inappropriately reaches out to plead for him a case he has not pleaded for himself. We have not had briefing or adequate argument on the tricky issue of whether “interacting with others” qua interacting with others could be a recognizable disability under this statute, yet we decide this non-issue anyway, warning everybody that simply being “cantankerous” — whatever the legal or scientific description of that is — won’t be enough.
Ordinarily, we won’t hear on appeal a past-posted claim not made in the district court, but here, we decide an explosive issue never discretely raised by McAlindin anywhere. Moreover, not only do we serendipitously create a mischievous Pandora’s box, but we then open it with a flourish and invite into federal court all but the “cantankerous” to sue those employers with whom they cannot get along. Employers beware, now you may have an obligation at the risk of being sued to accommodate someone who does not possess the ability to “get along with others.” Not only is this “disability” vague, but it’s bizarre, ominous, and wholly outside of the group of serious disabilities Congress intended to cover with this statute. Does this opinion suggest that a person’s foul temperament may no longer be a reason to deny that person a job?
Second, the doctors evaluating McAlin-din do not paint a picture of a man with a cognizable disability. Dr. Sandweiss, a treating physician, calls his impairment “slight to moderate,” and this opinion was rendered before he began his medication. Dr. Rabiner says McAlindin is able to work. Dr. Reiss says that McAlindin is not disabled and requires no accommodation to return to work; and not one of the doctors claims that his condition is substantially limiting.
Third, I fail to see any causal connection whatsoever with McAlindin’s alleged sexual disfunction and the job he wants, the job he has, or the adverse employment actions he alleges he suffered. Is the employer supposed to accommodate his impotence?
Fourth, McAlindin’s proffered evidence fails utterly to show that he suffered an “adverse employment action.” The defendants never denied him a transfer; they exercised their right to try keeping him in the same position first, remaining open to the idea that a transfer might be in order. Moreover, there do not appear to have been any consequences following the reprimand for sleeping when he was supposed to be working, a chastisement for which the employer can hardly be blamed. His request for accommodation seems to be a request that he be allowed to sleep when he is supposed to be working. Furthermore, the record reflects that McAlindin *1241got the same training everyone else did; and the record is significantly devoid of information that he needed special training due to his disability. I would affirm on the ground that McAlindin, failed to go beyond mere allegations, and to demonstrate that he suffered an “adverse employment action.” In addition, the employer proffered irrefutably appropriate reasons for everything it did.
McAlindin describes himself, in what amounts to a self-serving diagnosis, as “essentially paralyzed.” He says that the medication does not solve his work problems because “at least once a month, I am completely incapacitated and forced to lie down. The medication creates dizziness, lightheadedness, narrowed vision, and strange sensations in my head, and my arms and legs.” If he is correct, I do not see how on earth such symptoms could be accommodated by his employer. McAlin-din, who still works for the County, has never indicated how a transfer would help him perform the essential functions of the work he wishes to pursue, but more importantly, the employer did nothing to interfere with his right to transfer, telling him only that the request was “premature.”