Tess Rohan v. Networks Presentations LLC

SHEDD, Circuit Judge,

dissenting:

I agree with the majority that the district court’s analysis does not support summary judgment for Networks. Indeed, the district court candidly recognized that its analysis was strained. Equally strained, however, is the majority’s effort to affirm the district court’s judgment on the alternative grounds it describes. Considering the evidence that Rohan produced in light of well-established standards governing summary judgment, I would hold that summary judgment is not appropriate on any of Rohan’s claims at this point in the litigation. Rohan might not prevail after further discovery or at trial, but because she is entitled to go forward on the record as we have it, I respectfully dissent.

I.

In order to invoke the protections of the Americans With Disabilities Act (“ADA”), a plaintiff must prove that she is a “qualified individual with a disability.” 42 U.S.C. § 12112(a). A person has a “dis*283ability” if she has a physical or mental impairment that substantially limits a major life activity. Id. § 12102(2). The record establishes that Rohan had mental impairments' — posttraumatic stress disorder (“PTSD”) and severe depression — and along with the majority, ante at 274, I assume social interaction to be a major life activity. In order for Rohan to be deemed disabled, then, she must show that her PTSD and severe depression substantially limit her ability to interact with others. The majority says Rohan has not made this showing. I cannot agree.

A person is substantially limited in a major life activity if she is “unable to perform” that activity or if she is “significantly restricted as to the condition, manner or duration under which the average person in the general population can perform that same major life activity.” 29 C.F.R. § 1630.2(j). In assessing the degree of an impairment’s limitation on a major life activity, we must consider the nature and severity of the impairment; the duration or expected duration of the impairment; and the permanent or long-term impact, or the expected permanent or long-term impact, of or resulting from the impairment. 29 C.F.R. § 1630.2(j)(2)(i)-(iii).

Rohan produced testimony from her treating mental health professionals that speaks to each of these factors. Mary Sheahen, a licensed clinical social worker who had given Rohan more than 220 hours of therapy over a period of more than five years (including the period of Rohan’s employment with Networks), submitted a comprehensive declaration describing Ro-han’s condition and its effects on her ability to interact with others: Following are relevant excerpts from Sheahen’s declaration:

[Tess Rohan] avoids interaction with her family of origin; avoids making friends; avoids social situations and mixing with people not associated with work; avoids men (including at work) who remind her of her father or her life as his daughter; when at home she avoids answering the telephone and door; avoids undertaking simple errands in public places, such as grocery shopping; and avoids changing clothes, bathing, being naked, and leaving the house on days when she does not have to go to work. Tess attempts to gain a sense of safety and control of her life by withdrawing from other people and avoiding social situations in general.
Tess anxiously avoids certain types of situations, such as a parent scolding his child, children screaming or crying, and situations involving a display of anger. Although Tess has flashbacks and abreactions in which she recalls and reexperiences certain parts of the molestation/she cannot recall other parts of it, and is very afraid of having more memories of the abuse. Tess feels detached and estranged from people in general and the community at large. She has no close friends. Although she is pleasant with the people with whom she works, she does not pursue a social relationship with anyone. Tess isolates herself generally from others and the community and interacts with others only to the extent necessary to do her work properly.
For the past several years, Tess’s depression and PTSD have imposed significant limitations on her ability to interact with others in normal fashion as compared to the average person in the general population. Some of these behaviors have been described. Tess has isolated .herself from others and the community at large. She avoids interaction with her parents and siblings. She avoids making friends and makes no ef*284fort to have a social life. She has a fear of relationships. She has severe difficulties in interacting with men, and such interactions often trigger flashbacks or abreactions of the earlier abuse. Tess also has substantial difficulties in interacting with certain types of women, especially strong, authoritative women. She has substantial difficulty asserting herself with someone (man or woman) whom she perceives as an authority figure.
As noted, Tess’s interactions with others, particularly with men and with others who display anger either towards her or others, often trigger flashbacks or abreactions of her earlier molestation. When Tess experiences a flashback or abreaction, her behavior is visibly abnormal and her ability to interact with others is significantly impaired. During certain flashbacks or abreactions, Tess becomes child-like, sometimes curls up in a fetal position, and talks like a child. Sometimes, the reaction is milder and she stares off into space. During other flashbacks and abreactions, Tess hyperventilates, cannot speak, cannot open her eyes, and gags.
When Tess has a flashback or abreaction, it is important that no one touch her without permission, or else she becomes even more frightened. At these times, the best thing to do is to talk to her, to remind her where she is and when it is, that she is safe, and that she is an adult now, and by gently talking to her, bring her back to the present.
... I wish to emphasize that Tess’s depression and PTSD are not mild, not temporary, not minor, and not short term. Her impairments are severe, chronic, long term, and deeply rooted in an earlier traumatic event. Her impairments have imposed, and will impose for some time, significant limitations on her social and personal functioning, especially her ability to interact with and trust others.

J.A. 624-27 (emphasis added). Sheahen’s description of Rohan’s condition is corroborated by Dr. David Irwin, Rohan’s treating psychiatrist since 1998. J.A. 634-35. This testimony — from mental health professionals familiar with Rohan’s particular condition — at least creates genuine issues of material fact concerning the nature and severity of Rohan’s impairments; the duration or expected duration of her impairments; and the permanent or long-term impact of her impairments on her ability to interact with others. See 29 C.F.R. § 1630.2(j)(2)(i)-(iii).

Further, I agree with the district court that this testimony is “corroborated by Rohan’s recurring episodes, conflicts with other members of the cast, and suicidal tendencies.” J.A. 661. Indeed, the record shows clearly that Rohan’s PTSD and severe depression resulted in behaviors that significantly impaired her relations with coworkers. Gretchen Pfarrer, company manager for Jekyll & Hyde, described no fewer than thirty-three separate episodes during the period of Rohan’s employment, from late August 2000 to early December 2000. J.A. 48-58. According to Pfarrer, these episodes occurred nearly every week; over one weekend in November, Pfarrer counted fifteen distinct episodes. J.A. 52-54. This evidence undermines the majority’s assertion that Rohan’s episodes were merely “[ijntermittent manifestations” of her condition, ante at 276, at least sufficiently to preclude summary judgment for Networks based upon the frequency of Rohan’s episodes.

Pfarrer described not only the frequency of Rohan’s episodes but also the nature of Rohan’s conduct during those episodes:

[August:] Ms. Rohan was sitting at the piano with the rehearsal pianist, tears *285streaming down her cheeks; Jenn Lyons came into the office to ask me to help Ms. Rohan.... She started hysterically crying and telling me to stop, please stop. At that point she seemed to be in a child like state and started to hit me. J.A. 48.
[September:] [DJnring one afternoon in the dressing room she had an extreme episode. She was laying in a fetal position, screaming at the top of her lungs “no daddy no” in a child-like voice. When she started to come out of the episode she saw another [a]ctor on the tour, David Grimes, and went directly into another episode. At this point most of the ensemble east was. standing around very concerned with her state. J.A. 49.
[September:] During the run-through of the show, Ms. Rohan sat at the side of the stage in a trance. I was called to the stage by several company members to speak to her and get her focused on the performance and the show. J.A. 50. [September:] During the bus ride from Champaign IL to Winston-Salem, NC was Ms. Rohan’s first bus episode.... During the movie I heard a child-like crying from the back of the bus. At this moment I ran back to check on Ms. Rohan; she was in a screaming fit.... During this time, her roommate came to me and stated that she was beginning to have problems with [Rohan’s] nightmares and also that she felt like she was not allowed to bring people to her room, because of Ms. Rohan. J.A. 50. [October:] Ms. Rohan’s roommate came to my room to spend the night, because the episodes during the evening were too much for her to handle. J.A. 51. [October:] Small- and controllable episode upon waking up from quiet hour. Just a bit of child-like jabber and again with the crying. Some of the cast is getting concerned because she is having the episodes more often, almost daily during the bus travel, and it is becoming disruptive to the company. J.A. 52.
[October:] Later that day, Allison came to me about a screaming fit during the previous night. She stated that it was one of the worst nightmares she experienced with Ms. Rohan and had a difficult time getting Ms. Rohan to respond and calm down. J.A. 52.
[November:] At 15-minute call to the evening performance, Rana, her dressing roommate, came and got Janine and myself because Ms. Rohan was crying hysterically under her dressing table.... That evening the wardrobe mistress, Jennifer Carrol and I found Ms. Rohan under her dressing table again. We talked to her and she kept saying that two of the company members were mad at her and she was going to get in trouble from “daddy.” J.A. 53-54.
[November:] During the long travel days we tend to watch several movies. The movie choice for the day was “American Beauty.” ... [Rohan] opted, not to watch the movie and put her headphones on to sleep. Upon waking, there was a scene in the movie when an older man was making advances to a young girl. This upset her so' much, that we had a rather difficult time getting her out of the episode as she was speaking loudly and was uncontrollable. With this disruption, we quickly changed the movie to “Uncle Buck,” a comedy. Later a few of the cast members voiced concern that we now had to “censor” our movie choices on the bus to accommodate Ms. Rohan’s condition. J.A. 54.

Pfarrer’s affidavit thus describes highly unusual behavior, that significantly disrupted Rohan’s relations with her coworkers.

*286Finally, the record reflects expressions of suicidal tendencies by Rohan. On October 11, 2000, Rohan purposely cut her left wrist with a coworker’s dull razor, because she “just wanted to bleed.” J.A. 251. On November 17, 2000, Rohan told her director that she was bored with her part in the show, she was feeling suicidal, and she had taken extra medication. J.A. 267-68. (Pfarrer recounted that Rohan had tried to kill herself because she was upset with the director’s “nit-picky” criticisms of her performance, criticisms that reminded her of “daddy.” J.A. 53.) Then on December 1, 2000, Rohan announced during a bus ride that she did not feel like living anymore; one of Networks’ managers stopped the tour bus so Rohan could call her therapist for an impromptu session. J.A. 56, 236-37.

All of this evidence, taken in the light most favorable to Rohan, corroborates the testimony from Sheahen and Dr. Irwin and compels the conclusion that Rohan’s case should survive summary judgment on the question whether she was disabled under the ADA. This evidence at least creates a genuine issue of material fact concerning the degree of the limitation on Rohan’s ability to interact with others when compared with the average person in the general population. See 29 C.F.R. § 1630.2(j).

In holding that Rohan was not disabled, the majority discounts the substantial testimony of Sheahen and Dr. Irwin with no explanation, understates the frequency and severity of Rohan’s episodes, and suggests alternative explanations for Rohan’s plainly abnormal behavior. In short, the majority weighs the evidence, makes credibility determinations, and denies Rohan the benefit of the evidence that favors her claim. This kind of analysis is inappropriate at summary judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Taking the evidence in the light most favorable to Rohan — as we must on summary judgment — Rohan has established that she has a “disability” under the ADA.

II.

Further, Rohan has established, at least sufficiently to survive summary judgment, that she is a “qualified individual with a disability,” ie., that she was able to perform the essential functions of her job with or without reasonable accommodation. 42 U.S.C. § 12111(8). Rohan produced evidence showing that Networks consistently gave her excellent reviews for her performance in Jekyll & Hyde.

The district court rejected Rohan’s claim on the ground that social interaction was an “essential function” of the job that Rohan could not perform. Yet Networks never suggested to Rohan — or even to the district court — that it considered social interaction an “essential function” of Ro-han’s job. Perhaps Networks should have suggested as much, but it never did. Rather, in its answer to Rohan’s complaint Networks admitted that “Plaintiff could perform, and did perform, the essential functions of the role of Lady Beacons-field/Ensemble in Networks’s Jekyll & Hyde production.” J.A. 146, 177. Likewise, in response to an interrogatory requiring Networks to “set forth a complete description of the qualifications, skills, knowledge, experience, education and background” necessary to perform Ro-han’s role, Net-works answered that “[kjnowledge, experience and education back-ground are not requirements for casting. The qualifications necessary for a performing artist are the ability to fulfill the expectations of the director and the vocal requirements of the particular role.” J.A. 156. When Networks reviewed Ro-han’s job performance, it evaluated her with respect to these requirements; signif*287icantly, Networks never suggested to Ro-han that her episodes or other abnormal behaviors compromised her work. On the record before us, there is at least a jury-question whether Rohan performed the essential functions of her job.

It was not appropriate for the district court to declare, for the first time, that social interaction is an “essential function” of Rohan’s job. In defense of this analysis, the majority cites Pandazides v. Virginia Board of Education, 946 F.2d 345 (4th Cir.1991), for the proposition that a court is not bound by an employer’s statement of the essential functions for a particular job. Ante at 279 n. 22. Although the statute requires consideration of “the employer’s judgment as to what functions of a job are essential,” 42 U.S.C. § 12111(8), courts are entitled to consider other evidence as well, 29 C.F.R. § 1630.2(n)(3). It is especially important to look beyond the employer’s judgment in cases such as Pandazides, where the employer’s requirements are arguably overinclusive with‘respect to the functions of the job that are truly essential. Less clear, however, is the propriety of a court’s denominating as “essential” functions that the employer never thought so important, even in litigation.*

In this case, Rohan produced evidence showing that she performed all. of the functions deemed essential by Networks, and did so very well. At the very least, it is for the jury to decide whether Rohan was able to perform the essential functions of her job and was therefore a “qualified individual with a disability” covered by the ADA.

III.

Finally, I must disagree with the majority’s holding that summary judgment for Networks' was proper on Rohan’s contract claim.' Rohan alleged that Networks breached her employment contract by terminating her employment without notice. There is a factual dispute concerning Ro-han’s leaving Networks: Rohan says she was fired, while Networks says she left voluntarily. As the district court properly concluded, that question is for the jury to decide. It is undisputed that Networks never gave Rohan notice of any termination. Thus, the question is whether the contract permitted Networks to terminate Rohan without notice.

As a general matter, the contract requires that any party wishing to terminate the contract must give the other party thirty days’ notice before doing so. Paragraph 21.[4] provides, however, that Networks could terminate Rohan without notice if Rohan materially breached' the contract. Under Paragraph 27 of the contract, Rohan could only be deemed guilty of a material breach if Networks gave her notice and an opportunity to cure such a breach. It is undisputed that Networks never gave Rohan notice of any alleged breach, and the evidence does not support any finding that she actually breached the contract. To the contrary, all of the evidence suggests that Rohan fully satisfied her obligations to Networks.

The majority dispatches Rohan’s contract claim on the ground that she waived the protection of the thirty-day notice provision. Ante at 281-282. Although Net*288works asserted waiver (among other standard contract defenses) in its answer, it did not move for summary judgment on that legal theory or otherwise arg-ue that theory to the district court. Nor did Networks argue waiver in its briefing to this Court, nor did the issue even arise at oral argument. In sum, the majority affirms summary judgment for Networks on a ground that neither Networks nor Rohan had any reason to believe might dispose of the contract claim. See Peters v. Jenney, 327 F.3d 307, 320 (4th Cir.2003) (stating that “we will not ordinarily affirm summary judgment on grounds raised by an appellee for the first time on appeal, where the parties were not afforded an opportunity to develop the issue below ... so that the [nonmoving] party was not on notice of the need to meet it”).

IV.

In affirming the judgment entered below, the majority characterizes the factual record in the light most favorable to Networks rather than Rohan; disregards what is perhaps the best evidence available concerning Rohan’s disability; and grants Networks the benefit of legal arguments never advanced by the district court or even Networks itself. In short, the majority casts aside the well-established standards governing summary judgment and merely substitutes one unsatisfying analysis for another. Accordingly, I dissent.

Supplementing the employer's list of essential functions might be appropriate where functions not listed by the employer are nevertheless essential because they are necessary for the performance of other listed functions. See, e.g., Tyndall v. National Educ. Ctrs., Inc., 31 F.3d 209, 213 (4th Cir.1994) (holding that attendance is an essential function of any job). Nothing in this record suggests that social interaction was necessary for the performance of the functions that Networks deemed essential. Indeed, Networks acknowledged that Rohan consistently performed those functions very well despite her condition.