Tess Rohan v.  Networks Presentations LLC

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 TESS ROHAN,
Plaintiff-Appellant,
v. No. 03-1637 
NETWORKS PRESENTATIONS LLC,
Defendant-Appellee. 
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
J. Frederick Motz, District Judge.
(CA-01-1749-JFM)
Argued: February 26, 2004
Decided: July 8, 2004
Before WIDENER, SHEDD, and DUNCAN, Circuit Judges.
Affirmed by published opinion. Judge Duncan wrote the opinion, in
which Judge Widener concurred. Judge Shedd wrote a dissenting
opinion.
COUNSEL
ARGUED: Peter Charles Cohen, CHARLSON BREDEHOFT, P.C.,
Reston, Virginia, for Appellant. Bruce L. Marcus, Greenbelt, Mary-
land, for Appellee. ON BRIEF: Joseph A. Compofelice, Jr., MAR-
CUS & BONSIB, Greenbelt, Maryland, for Appellee.

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OPINION
DUNCAN, Circuit Judge:
Plaintiff-appellant Tess Rohan appeals the April 17, 2003 judgment
of the District Court for the District of Maryland (J. Frederick Motz,
Judge) granting summary judgment to defendant-appellee Networks
Presentations LLC ("Networks"). Rohan sued Networks for breach of
contract under Maryland law and for wrongful discharge and hostile
work environment under the Americans with Disabilities Act of 1990
("ADA"), 42 U.S.C. § 12101 et seq. (West 2004). The district court
granted summary judgment because it found that Rohan was not a
"qualified individual" under the ADA and that Networks did not
breach its employment agreement with Rohan. See Rohan v. Networks
Presentation LLC, No. JFM-01-1749 (D. Md. Apr. 17, 2003). We
affirm the district court’s judgment; however, we do so on other
grounds.1
I.
Rohan, an actress and singer, suffers from posttraumatic stress dis-
order ("PTSD") and severe depression stemming from childhood
incest and sexual abuse.2 According to Mary Sheahen, Rohan’s thera-
pist, and Dr. David Irwin, her psychiatrist, Rohan’s PTSD causes her
to experience "flashback episodes" of the abuse:
Tess persistently reexperiences the molestation through
recurrent and intrusive recollections of portions of the
molestation, including images, thoughts and perceptions of
what occurred or what she believes occurred, and through
dissociative flashback episodes or abreactions (severe flash-
1"[W]e are entitled to affirm the court’s judgment on alternate grounds,
if such grounds are apparent from the record." MM ex rel. DM v. Sch.
Dist. of Greenville County, 303 F.3d 523, 536 (4th Cir. 2002).
2Because we review a grant of summary judgment, we set forth the
facts in the light most favorable to Rohan, the non-movant, and draw all
reasonable inferences in her favor. See Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 256 (1986).
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backs) in which she acts and feels as if the molestation was
reoccurring in the present moment.
In addition, Tess experiences intense psychological dis-
tress at exposure to certain external cues that symbolize or
resemble her father or her interaction with him as a child.
For example, Tess experiences significant mental distress
when she observes a parent scolding a child, or when she
sees or interacts with a man who resembles or reminds her
of the likeness or mannerisms of her father, or sees such a
man in a movie. Such interactions often trigger in Tess
flashbacks or abreactions to when she was abused as a child.
Moreover, when Tess relives the molestation, she experi-
ences a variety of physiological reactions, including (at dif-
ferent times) hyperventilation, inability to speak, inability to
open her eyes, gagging, bodily pain, and/or staring off into
space.
J.A. at 623, 634. Rohan’s mental health care providers opine that her
depression and PTSD are severe and chronic, and "have imposed, and
will continue to impose for some time, significant limitations on her
social and personal functioning, especially her ability to interact with
and trust others." J.A. at 627, 634.
In early 2000, Rohan was performing in a production of The
Unsinkable Molly Brown in Maryland. Rohan experienced some epi-
sodes during this time. Patricia Gentry, Networks’ casting director,
was also performing in this show. At the same time, Networks, which
produces Broadway musicals that tour the United States, was organiz-
ing a touring theatre company for the musical Jekyll & Hyde. Gentry,
who had known Rohan since high school, believed that Rohan had
"the right kind of voice" for the role of "Lady Beaconsfield." Despite
her knowledge of Rohan’s mental illnesses, she arranged for Rohan
to audition.
After several callback auditions before Jekyll & Hyde’s director,
Michael Jaeger, and the musical director and choreographer, Net-
works hired Rohan to perform as "Lady Beaconsfield" and as a mem-
ber of the "Ensemble." Thereafter, Networks and Rohan signed an
employment agreement. Rehearsals would take place in New York
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City from August 23 to September 6, 2000, and in Charleston, South
Carolina from September 7 to September 17, 2000. Performances
would begin thereafter and Rohan’s employment would continue,
assuming the show’s success, until at least June of 2001.
During the New York City rehearsals, Rohan had at least three epi-
sodes. Consequently, Rohan told Gretchen Pfarrer, the Jekyll & Hyde
company manager,3 and Janine Vanderhoff, the stage manager, about
her past abuse and the resultant mental illnesses, and explained how
they could assist Rohan when she experienced an episode. She also
provided a list of emergency contact numbers that included her (then)
husband, Richard Rohan,4 her therapist and her psychiatrist. Pfarrer
and Vanderhoff agreed to help Rohan through her episodes and, in
fact, did help her through numerous episodes over the next several
months.
Rohan paints a vivid picture of life in the theatre. The cast joked
with each other a great deal, and the jokes included ones of a sexual
nature. On a number of occasions, when a cast member touched
Rohan in a way she felt was inappropriate, she slapped that person in
response. Particularly while traveling from one performance to the
next on the tour bus, Rohan found the sexually charged antics of her
colleagues difficult to bear. According to Rohan, many of the under-
age cast members drank alcohol and many cast members were smok-
ing marijuana. On one occasion, a cast member urinated on a hotel
door. In general, Rohan found certain cast members to be immature
(many of them were considerably younger than Rohan) and, at times,
offensive. To the extent possible, she avoided these people.
Rohan also made many friends on the tour. According to Rohan,
she became friends with, among others, Jennifer Carroll, Rana Fell-
graff, Janine Vanderhoff, Annie Berthiaune, and Erik Shark, a male
cast member whom Rohan described as "a good friend." J.A. at 280.
One indication of the strength of these friendships was that Rohan
shared with these individuals some or all of her history of mental ill-
3As company manager, Pfarrer was the most senior manager who trav-
eled with the tour.
4Richard and Tess Rohan were divorced during the Jekyll & Hyde tour.
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ness and sexual abuse.5 Carroll, the wardrobe supervisor, told Rohan
she was "the easiest female in the show to work with." J.A. at 90.
Rohan had several more episodes during rehearsals in South Caro-
lina, but the episodes abated during the first six weeks of perfor-
mances. During this time, Rohan was "very upbeat," J.A. at 67, and
was "surprised at how good [she] felt most of the time," J.A. at 276.
Her happiness stemmed in part from the positive reviews of her per-
formance. Jaeger told her that her performances were "outstanding"
and to keep up the "great work on stage." J.A. at 33, 35.
As the finalization of her divorce, and the holidays, approached,
however, Rohan began to have episodes with increasing frequency —
on October 11, November 7, November 20, November 22, and
December 1. The episode on November 7 came during a performance.
Although Rohan had to return to the hotel in the middle of the show,
she had already completed the "Lady Beaconsfield" role and Pfarrer
excused her from her role in the "Ensemble," thereby minimizing the
impact of her departure.
As these episodes increased in frequency, Rohan began to talk
about suicide. On October 11, she made a small cut on her wrist with
another cast member’s razor. On November 17, Rohan told Pfarrer
that she was "going to walk into traffic and end this once and for all."6
J.A. at 54. Pfarrer instructed a crewmember to accompany Rohan to
the hotel for safety. Rohan emailed Jaeger that she "came back to the
hotel feeling suicidal." J.A. at 27. On December 1, while on the bus,
Rohan took several tranquilizers and stated that she "didn’t feel like
living anymore." J.A. at 56, 98. Rohan then told Pfarrer that she
needed to call her therapist. Pfarrer stopped the bus as quickly as pos-
sible to permit Rohan to make the phone call.
5At a meeting at the end of rehearsals, Rohan disclosed to the entire
cast and crew her history of childhood abuse and the effects of her
depression and PTSD. Rohan claims that Networks forced her to make
this disclosure. This event serves as the basis for Rohan’s hostile work
environment claim.
6At her deposition, Rohan claimed that this statement was made in jest,
but did not dispute that she made the statement.
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During her deposition, Rohan explained that this suicidal talk was
"passive" — that she never intended harm to herself, but rather used
such statements as a sort of cathartic release. Nevertheless, at the
time, Pfarrer felt unable to support Rohan further. After the December
1 episode involving the tranquilizers, Pfarrer immediately contacted
Gregory Vander Ploeg, Networks’ associate general manager. Vander
Ploeg suggested that he and Pfarrer have a meeting with Rohan
regarding her ability to continue on the tour. According to Pfarrer:
[T]he management had decided to release Ms. Rohan at the
beginning of the holiday break. The decision came from
want[ing] to help her, and since she had threatened not to
come back after the layoff, this would help her get more
assistance for her "condition" and get her off the sporadic
traveling schedule. This would also resolve the disruptions
that the company has been dealing with over the past several
months and relieve them from the stress involved with the
long bus rides that caused Ms. Rohan’s episodes.
J.A. at 56.7 On December 3, Vander Ploeg called Sheahen and
Rohan’s ex-husband Richard Rohan to describe the situation. Accord-
ing to both Sheahen and Mr. Rohan, Vander Ploeg explained that Net-
works intended to fire Rohan on December 6. Mr. Rohan stated that
Rohan should be accompanied on the flight home, and agreed to meet
her at the airport in Maryland when she arrived. Vander Ploeg pur-
chased a one-way ticket for Rohan for the afternoon of December 6.
On December 5, Vander Ploeg met the tour in Gainesville, Florida.
After that night’s performance, Vander Ploeg called Rohan’s room.
He left a message asking Rohan to meet with him and Pfarrer in the
morning. At approximately 2:00 a.m. on December 6, Rohan returned
Vander Ploeg’s call. Rohan demanded that they meet immediately if
she was being fired. Vander Ploeg stated that they should meet in the
morning to discuss "her well-being on the tour." J.A. at 45. Rohan
asked if she was being fired. Vander Ploeg did not answer the ques-
tion, but responded that he wanted to discuss some concerns. Rohan
7The tour performs no shows during the Christmas holiday season and
the cast and crew are sent home until the tour restarts. This break is
referred to as the December layoff.
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said that if Networks intended to fire her at the December layoff, then
she demanded to leave that morning. Vander Ploeg asked, "You wish
to leave the tour tomorrow morning?" Rohan replied, "Yes, if it’s the
company’s intention to release me at the layoff, I want to go home
tomorrow so can you get me on a flight out in the morning?" J.A. at
45. Vander Ploeg told her he would arrange for the plane ticket.
Vander Ploeg subsequently met with Pfarrer and described his
phone conversation with Rohan. During this meeting, Vander Ploeg
and Pfarrer received a phone call from an actor on the tour, who told
them that Rohan was very upset. Vander Ploeg and Pfarrer went to
Rohan’s room. When they arrived, they found Rohan crying and
packing her bags as fast as she could. They attempted to console her,
but Rohan again demanded that they immediately get her a flight
home. Vander Ploeg purchased tickets on a 7:00 a.m. flight for him-
self and Rohan. They returned to Maryland on that flight.
Rohan filed a complaint with the Equal Employment Opportunity
Commission ("EEOC"), which issued her a right-to-sue letter on
March 19, 2001. Rohan filed this civil action on June 15, 2001, assert-
ing wrongful discharge, failure to accommodate and breach of confi-
dentiality claims under the ADA, and invasion of privacy and breach
of contract under state law. The district court dismissed the failure to
accommodate and breach of confidentiality claims under Fed. R. Civ.
P. 12(b)(6). See Rohan v. Networks Presentation LLC, 175 F. Supp.
2d 806, 809-14 (D. Md. 2001). Rohan then filed an amended com-
plaint, which asserted claims for wrongful discharge and hostile work
environment under the ADA, and the two state law claims.
After discovery, Networks moved for summary judgment,8 which
the district court granted on April 17, 2003. Rohan v. Networks Pre-
sentation LLC, No. JFM-01-1749 (D. Md. Apr. 17, 2003). As to the
ADA claims, the district court held that Rohan was not a "qualified
individual with a disability," and therefore could not bring a claim
under the ADA, because she was unable to perform an essential func-
8Prior to moving for summary judgment, Networks filed a second
motion to dismiss. The district court denied this motion on April 1, 2002.
See Rohan v. Networks Presentation LLC, 192 F. Supp. 2d 434 (D. Md.
2002).
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tion of her job. See id. at 7-8. The district court identified that essen-
tial job function as the ability to interact with others. Id. The district
court determined that Networks had not breached its employment
agreement with Rohan because Rohan’s inability to perform an essen-
tial function of her job justified her termination without notice. See
id. at 12-13. Finally, the district court declined to exercise supplemen-
tal jurisdiction over the remaining invasion of privacy claim. Id. at 14.
Rohan appeals only the grant of summary judgment on her ADA and
breach of contract claims.
II.
Although the prima facie elements of wrongful discharge and hos-
tile work environment claims under the ADA are distinct, the claims
share a common requirement: the plaintiff must be within the ADA’s
protected class.9 Haulbrook v. Michelin N. Am., Inc., 252 F.3d 696,
702 (4th Cir. 2001) (wrongful discharge); Fox v. Gen. Motors Corp.,
247 F.3d 169, 177 (4th Cir. 2001) (hostile work environment). "One
is within the ADA’s protected class if one is a ‘qualified individual
with a disability.’" Haulbrook, 252 F.3d at 702 (quoting 42 U.S.C.
§ 12112). Thus, to survive summary judgment, Rohan had to produce
evidence that she is both qualified and disabled. The district court
concluded that Rohan was not "qualified" because she could not per-
form an essential function of her job. We disagree. We do, however,
conclude that Rohan was not "disabled" under the ADA because (1)
she did not suffer an impairment that substantially limited her in one
9To establish a prima facie wrongful discharge claim under the ADA,
a plaintiff must show that (1) she was a "qualified individual with a dis-
ability"; (2) she was discharged; (3) she was fulfilling her employer’s
legitimate expectations at the time of discharge; and (4) the circum-
stances of her discharge raise a reasonable inference of unlawful discrim-
ination. Haulbrook v. Michelin N. Am., Inc., 252 F.3d 696, 702 (4th Cir.
2001). In an ADA hostile work environment claim, a plaintiff establishes
a prima facie case if she demonstrates that (1) she is a qualified individ-
ual with a disability; (2) she was subjected to unwelcome harassment; (3)
the harassment was based on her disability; (4) the harassment was suffi-
ciently severe or pervasive to alter a term, condition, or privilege of
employment; and (5) some factual basis exists to impute liability for the
harassment to the employer. Fox v. Gen. Motors Corp., 247 F.3d 169,
177 (4th Cir. 2001).
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or more major life activities, and (2) no evidence suggests that Net-
works regarded her as such.10
A.
An individual is "disabled" if she "(A) [has] a physical or mental
impairment that substantially limits one or more of the major life
activities of such individual; (B) [has] a record of such an impair-
ment; or (C) [has been] regarded as having such an impairment." 42
U.S.C. § 12102(2). "[T]hese terms need to be interpreted strictly to
create a demanding standard for qualifying as disabled . . . ." Toyota
Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 197 (2002). Rohan
asserts that she is disabled because (1) her depression and PTSD are
mental impairments, (2) these impairments substantially limit her in
the major life activity of interacting with others, and (3) Networks
regarded her depression and PTSD as substantially limiting Rohan in
the major life activity of working.
1.
Networks inexplicably disputes that Rohan suffers from a mental
impairment. However, Rohan has proffered the affidavits of her thera-
pist and her treating psychiatrist, both of whom diagnose her with
PTSD and depression. The detailed account of her problems during
the tour, which Rohan submitted to the EEOC, substantiates the
effects of PTSD and depression on Rohan, as explained by her thera-
pist. Moreover, the affidavit of Gretchen Pfarrer — Networks’
employee — contains a description of Rohan’s conduct during the
tour that largely corroborates Rohan’s version of events. In light of
this medical and lay evidence supporting the existence of Rohan’s
mental impairment, we are at a loss to understand how, at this stage
of the litigation, Networks can suggest to the contrary or fail to recog-
nize that its dispute of this material fact would create a genuine fac-
tual issue warranting remand. See Fed. R. Civ. P. 56.
10Because Rohan has not established that she is a "qualified individual
with a disability," we address the wrongful discharge and hostile work
environment claims together and do not address the remaining elements
of either claim.
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However, we need not decide whether this evidence would be suf-
ficient to sustain Rohan’s claim at trial.11 When reviewing the grant
of summary judgment, we must view the facts in the light most favor-
able to the non-movant. Accordingly, we must assume that Rohan’s
depression and PTSD are mental impairments within the meaning of
the ADA. Cf. Baird ex rel. Baird v. Rose, 192 F.3d 462, 467 n.3 (4th
Cir. 1999) (recognizing depression as an impairment); Hamilton v.
Southwestern Bell Tel. Co., 136 F.3d 1047, 1050 (5th Cir. 1998) (rec-
ognizing PTSD as an impairment). We therefore turn to a determina-
tion of whether the impairments substantially limit a major life
activity.
2.
The term "major life activities" refers to "those activities that are
of central importance to daily life," Toyota Motor, 534 U.S. 197, and
"that the average person in the general population can perform with
little or no difficulty," Pack v. Kmart Corp., 166 F.3d 1300, 1305
(10th Cir. 1999); accord EEOC v. Sara Lee Corp., 237 F.3d 349, 352-
53 (4th Cir. 2001). An impairment’s impact on a major life activity
must be "permanent or long-term." Toyota Motor, 534 U.S. at 198.
11Networks also argues that Rohan cannot present at trial any expert
testimony establishing her mental impairment because she has failed to
designate an expert and provide Networks with a written expert report
under Fed. R. Civ. P. 26(a)(2), and that she therefore cannot establish her
impairment for purposes of summary judgment. Rule 37(c)(1) provides
that "[a] party that without substantial justification fails to disclose infor-
mation required by Rule 26(a) . . . is not, unless such failure is harmless,
permitted to use as evidence at a trial . . . or on a motion any witness or
information not so disclosed." Fed. R. Civ. P. 37(c)(1). Although the
sanction is "automatic," id. advisory committee’s notes (1993), it is so
only when the failure to disclose is "without substantial justification" and
harmful to the opposing party. These considerations are factual, and lie
within the district court’s "substantial discretion in managing discovery."
Lone Star Steakhouse & Saloon, Inc. v. Alpha of Va., Inc., 43 F.3d 922,
929 (4th Cir. 1995). Because the district court did not address this argu-
ment in its decision, and because Networks failed to assert this omission
(if such it was) as a point of error, we decline to consider it in the first
instance on appeal.
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a.
Rohan asserts that she is substantially limited in the major life
activity of interacting with others.12 The Ninth Circuit is the only fed-
eral appellate court to have held that interacting with others is a major
life activity.13 See McAlindin v. County of San Diego, 192 F.3d 1226,
1234 (9th Cir. 1999). We have expressed doubt on this point. See
Davis v. Univ. of N.C., 263 F.3d 95, 101 n.4 (4th Cir. 2001). As the
First Circuit has explained, the concept of interacting with others
is remarkably elastic, perhaps so much so as to make it
unworkable as a definition. While such an ability [i.e., get-
ting along with others] is a skill to be prized, it is different
in kind from breathing or walking, two exemplars which are
used in the regulations. Further, whether a person has such
an ability may be a matter of subjective judgment; and the
ability may or may not exist depending on context. . . . To
impose legally enforceable duties on an employer based on
such an amorphous concept would be problematic.
Soileau v. Guilford of Me., Inc., 105 F.3d 12, 15 (1st Cir. 1997). We
decline to resolve this issue here because, assuming that interacting
with others is a major life activity, Rohan has not demonstrated that
it is an activity in which she is substantially limited. See Steele v. Thi-
okol Corp., 241 F.3d 1248, 1254-55 (10th Cir. 2001) (finding plaintiff
was not substantially limited in her ability to interact with others and
thus declining to address whether interacting with others is a major
life activity).
12The Equal Employment Opportunity Commission’s Compliance
Manual defines interacting with others as a major life activity. See EEOC
Compliance Manual § 902.3. However, the Compliance Manual is not
binding on this court. Hopkins v. Balt. Gas & Elec. Co., 77 F.3d 745, 750
(4th Cir. 1996).
13The Seventh Circuit declined to address the issue, holding instead
that interacting with others is an activity that "feed[s] into the major life
activities of learning and working." Emerson v. N. States Power Co., 256
F.3d 506, 511 (7th Cir. 2001); accord Moysis v. DTG Datanet, 278 F.3d
819, 825 (8th Cir. 2002).
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In McAlindin, the plaintiff was forced to take a leave of absence
due to anxiety, panic and somatoform disorders. McAlindin, 192 F.3d
at 1231-32. According to his medical evaluations, the plaintiff "be-
came increasingly withdrawn and his ability to deal with people and
stress was seriously diminished." Id. at 1235. He spent at least twenty
hours per day at home, he avoided most activities "for fear that they
will make him feel more anxious," and was "not involved in any
groups or political or religious affiliations." Id. (internal quotations
omitted). As a result, the plaintiff had no social interaction outside of
his family. Based on these facts, the Ninth Circuit found the limitation
on interacting with others "sufficiently severe to raise a genuine issue
a material fact" as to whether the plaintiff was disabled. Id. at 1235-
36.
Rohan asserts that she is substantially limited in her ability to inter-
act with others because her impairments cause her to (1) "avoid[ ]
interaction with her parents and siblings"; (2) "avoid[ ] making
friends," particularly with men; (3) "make[ ] minimal effort to have
a social life"; and (4) cause her to have episodes, during which "no
one can touch her." Appellant’s Br. at 18 n.10. She also points out
that Networks admitted that Rohan was unable "to behave in a normal
manner" and that "it was apparent [to Networks] that Ms. Rohan
experienced difficulties in dealing with other members of the cast.14
J.A. at 123-24.
Based on the record before us, Rohan might well be limited in her
ability to interact with others to some extent. However, Rohan has not
established that she was substantially limited in this activity. First, the
record reflects that Rohan avoids interaction with her family because
they do not believe her allegation that her father sexually abused her
as a child. In other words, her difficulty interacting with them is a
result of their disbelief, not her mental impairments.
14These statements come from a letter from Networks’ counsel to an
EEOC investigator in response to Rohan’s EEOC complaint. Although
we will accept these statements as reflecting Networks’ opinion of
Rohan’s behavior, we note that the letter vastly overstates Rohan’s con-
duct as reported by Pfarrer and Rohan, and is also at odds with portions
of Rohan’s deposition testimony.
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Second, Rohan testified that she considered Jennifer Carroll, Rana
Fellgraff, Janine Vanderhoff, Annie Berthiaune, Patricia Gentry, and
Erik Shark as friends. The wardrobe supervisor found Rohan to be the
easiest of the cast members to get along with. Thus, the fact that
Rohan "avoids making friends" does not demonstrate a substantial limi-
tation.15 The record does reflect that Rohan found some cast mem-
bers’ conduct on the bus immature and even offensive. The fact that
she chose to avoid such individuals, however, does not distinguish her
from the general population. See Sara Lee Corp., 237 F.3d at 352-53
(requiring limitation on major life activity to be greater than that of
average person in population).
Third, accepting as true that Rohan can only make a "minimal
effort" to have a social life, the record does not support her claim that
this difficulty substantially limits her interaction with others.16
Rohan’s chosen profession required social interaction with the
approximately sixty members of the cast and crew on an almost con-
tinuous basis, and, as noted above, she had a number of friends
among the cast. The opportunity for interaction outside of work was
necessarily limited by the nature of her work. Rohan testified, how-
ever, that she was enjoying herself. During an extended stop in Day-
ton, Ohio, for example, she took ballet classes on her own.
Fourth, although Rohan appears to be almost completely incapable
of interacting with others during her episodes, her episodes are spo-
radic and last, at most, thirty minutes. During the four months of her
15In addition, although an inability to establish friendships might sug-
gest a limitation in the major life activity of interacting with others, we
question whether it is dispositive. Individuals can successfully interact
with each other without necessarily becoming friends. In the context of
the ADA, which seeks to address discrimination in employment and pub-
lic accommodations, "interacting with others" must refer to a more fun-
damental aspect of human interaction. Cf. Soileau, 105 F.3d at 15 (noting
that "it may be that a more narrowly defined concept going to essential
attributes of human communication could, in a particular setting, be
understood to be a major life activity").
16Although we need not answer it here, we note that what constitutes
a "minimal" effort to have a "social life" is an exceptionally vague ques-
tion. Cf. Soileau, 105 F.3d at 15.
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employment with Networks, Rohan appears to have experienced
approximately thirty episodes. Intermittent manifestations of an ill-
ness are insufficient to establish a substantial limitation on a major
life activity. Sara Lee Corp., 237 F.3d at 352 (finding plaintiff who
suffered epileptic seizures twice weekly on average was not substan-
tially limited in major life activities of sleeping, thinking or caring for
oneself). To hold otherwise "would expand the contours of the ADA
beyond all bounds." Id.
Finally, Networks’ perception of Rohan’s limitations in social
interaction is inapposite. Rohan’s claim is that she is in fact substan-
tially limited in the major life activity of interacting with others, not
that Networks regarded her as such. These statements would only be
relevant within the context of a claim of disability based on 42 U.S.C.
§ 12102(2)(C). Because Rohan’s claim that her mental impairments
substantially limit her in the major life activity of interacting with oth-
ers is premised on 42 U.S.C. § 12102(2)(A), the statements on which
Rohan relies are irrelevant.17
In sum, even construing the facts in the light most favorable to
Rohan, she fails to demonstrate that her problems with social interac-
tion over the course of her employment were "sufficiently severe" to
establish a substantial limitation. As such, Rohan has failed to estab-
lish a genuine issue of material fact that she is disabled under 42
U.S.C. § 12102(2)(A).18
17Of course, Networks’ perception that Rohan had difficulty interact-
ing with others might be relevant to issues other than whether Rohan is
disabled under § 12102(2)(A). Our statement here relates only to the rele-
vance of Networks’ perceptions to Rohan’s claim that her mental impair-
ments in fact substantially limit her in a major life activity. Networks’
stated perceptions might be relevant to other aspects of her claim. In
addition, if an employer had some relevant medical expertise, its percep-
tions might warrant consideration under subsection (2)(A), but that cir-
cumstance is not before us.
18The dissent accuses us of ignoring the affidavits of Rohan’s therapist
and psychiatrist and weighing against Rohan the evidence that (appar-
ently) we do consider. Obviously, we disagree. First, we have accepted
these affidavits for purposes of establishing Rohan’s impairment. See
supra p. 9. Second, for purposes of establishing that her impairment sub-
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b.
Rohan also argues that Networks regarded her as substantially lim-
ited in the major life activity of working, qualifying her as disabled
under 42 U.S.C. § 12102(2)(C). "[A] person is ‘regarded as’ disabled
within the meaning of the ADA if a covered entity mistakenly
believes that the person’s actual, nonlimiting impairment substantially
limits one or more major life activities." Murphy v. United Parcel
Serv., 527 U.S. 516, 521-22 (1999). An employer regards a person as
substantially limited in her ability to work if the employer perceived
her "to be significantly restricted in [her] ability to perform either a
class of jobs or a broad range of jobs in various classes." Cline v.
Wal-Mart Stores, Inc., 144 F.3d 294, 303 (4th Cir. 1998) (discussing
29 C.F.R. § 1630.2(j)(3)(I)). "[O]ne must be precluded from more
than one type of job, a specialized job, or a particular job of choice.
If jobs utilizing an individual’s skills (but perhaps not his or her
stantially limits a major life activity, "[i]t is insufficient for individuals
attempting to prove disability status . . . to merely submit evidence of a
medical diagnosis of an impairment. Instead, the ADA requires those
‘claiming the Act’s protection . . . to prove a disability by offering evi-
dence that the extent of the limitation [caused by their impairment] in
terms of their own experience . . . is substantial." Toyota Motor, 534 U.S.
at 198 (emphasis added, second through fourth alterations in original)
(quoting Albertson’s, Inc. v. Kirkingburg, 527 U.S. 555, 567 (1999)). To
the extent that Sheahen’s and Dr. Irwin’s affidavits reveal Rohan’s expe-
riences in light of her impairment, they merely reiterate Rohan’s self-
reported experiences. Consequently, their affidavits do not alter our con-
clusion that Rohan has not shown that she is "significantly restricted" rel-
ative to "the average person in the general population." 29 C.F.R.
§ 1630.2(j) (emphasis added).
In addition, the dissent argues that we minimize the severity of
Rohan’s episodes. Post at 30. We do not. As we explain above, see supra
p. 13-14, we recognize that Rohan is substantially incapacitated during
her episodes, but these episodes occurred, at most, slightly more than
twice per week on average. Under the ADA, the frequency of Rohan’s
episodes simply do not establish a substantial limitation, regardless of
each individual episode’s severity. Sara Lee Corp., 237 F.3d at 352. We
also note that the record demonstrates that not all of Rohan’s episodes
were as severe as those noted by the dissent, post at 27-29.
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unique talents) are available, one is not precluded from a substantial
class of jobs." Sutton v. United Air Lines, Inc., 527 U.S. 471, 492
(1999).
According to Rohan, the record demonstrates that Networks per-
ceived her to be significantly restricted in her ability to perform "the
specific role for which she was hired as well as the performing arts
in general" and to work in "all work environments where stress is a
component of the workplace." Appellant’s Br. at 20. Even when con-
strued in a light most favorable to Rohan, however, the record does
not support this assertion.19 At most, the evidence Rohan points to
merely reflects Networks’ perception that she was unable to perform
as an actress in a touring theater company.20
As Rohan points out herself, Networks never regarded her as
unable to act or sing. In fact, it believed Rohan performed those
dimensions of her job satisfactorily. Although Rohan argues that by
December of 2000, Networks believed Rohan could not perform her
role, she does so on the basis of a statement taken out of context.
Vander Ploeg did make a suggestion to that effect, but it was based
on the fact the "one-nighters were going to become more and more
apparent during the course of the tour." J.A. at 363-64. The consensus
of management appeared to be that the increased number of one-night
performances would only add to the erratic nature of the tour sched-
ule. Networks’ concerns revolved around Rohan’s ability to "with-
stand the rigors of a traveling tour." J.A. at 364. In fact, all of the
19That Networks regarded Rohan as unable to perform "the specific
role for which she was hired" is, standing alone, insufficient to establish
a disability under subsection (2)(C). Sutton, 527 U.S. at 492.
20The district court found that "[t]he only reasonable conclusion to be
drawn from the record is that Networks felt Rohan was unable to con-
tinue on the Jekyll & Hyde tour." J.A. at 666. The procedural posture of
this case does not permit such a narrow view of the evidence. The only
evidence supporting this conclusion was Patricia Gentry’s statement that
"once she is better she can get back on stage." J.A. at 30. As discussed
below, the evidence suggests that Networks believed Rohan was unable
to work in a traveling theater company at all, not simply that she was
unable to continue on this particular tour. As the non-movant, Rohan is
entitled to this inference.
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other evidence on which Rohan relies to support her argument rein-
forces this view.21 Thus, Rohan has not demonstrated that Networks
perceived her as being substantially limited in her ability to work as
an actress; rather, at best, Rohan has demonstrated that Networks
regarded her as unable to work as an actress in a touring theatre com-
pany.
The question we must address, therefore, is whether Networks’
perception that Rohan could not work in a touring theatre company
is sufficient to establish Rohan’s disability under 42 U.S.C.
§ 12102(2)(C). We think it is not. That Networks regarded her as
unable to withstand the stress of the tour means simply that it per-
ceived her as limited only "in the ability to perform a particular facet
of a particular job." Hooven-Lewis v. Caldera, 249 F.3d 259, 267 (4th
Cir. 2001). In Forrisi v. Bowen, 794 F.2d 931 (4th Cir. 1986), the
plaintiff, who suffered from acrophobia, was discharged because his
job as a utility systems repairer required some work at heights. Id. at
935. We held that he was not substantially limited because, although
this particular job required him to work from heights, he had no diffi-
culty obtaining similar jobs that did not require him to climb. Id. Sim-
ilarly, Networks never regarded Rohan as unable to perform as an
actress. To the contrary, as Rohan pointed out, Networks acknowl-
edged that Rohan satisfactorily performed her roles on stage. It
merely regarded her as unable to withstand the stress of traveling with
the production. Moreover, Rohan had previously performed without
difficulty in musical productions that did not require travel, a fact
known to Networks. Thus, Rohan has not demonstrated that Networks
regarded her impairment as "foreclos[ing] generally the type of
employment involved." Id. Consequently, Rohan is not disabled under
42 U.S.C. § 12102(2)(C).
21See J.A. at 44 (explaining Vander Ploeg’s view that the "erratic tour-
ing schedule seems to be causing her to become unable to control her
episodes and behavior"); J.A. at 127 (admitting "employment . . . was
terminated as a result of . . . inability to emotionally sustain the rigors
of a traveling show"); J.A. at 613-15 (admitting Networks’ belief that
Rohan had "considerable difficulty" dealing with stresses of traveling
show but also admitting that "Ms. Rohan was generally capable of per-
forming her role"); J.A. at 649 (stating that Pfarrer told Richard Rohan
that she believed Rohan "could not handle the environment and the
stresses of a traveling theater production").
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Because Rohan has failed to demonstrate that she is substantially
limited in a major life activity, or that Networks regarded her as sub-
stantially limited, she is not within the ADA’s protected class. As
such, she cannot state a claim under the ADA. An employer "is free
to decide that some limiting, but not substantially limiting, impair-
ments make individuals less than ideally suited for a job." Sutton v.
United Airlines, Inc., 527 U.S. 471, 490 (1999). On this basis, we
affirm the district court’s grant of summary judgment to Networks on
Rohan’s ADA claims. Although this holding precludes Rohan’s ADA
claims, we nevertheless address the district court’s finding that Rohan
was not a qualified individual. We do so because of what might other-
wise appear to be incongruence between our finding that Rohan was
not substantially limited in her ability to interact with others, and the
district court’s finding that Rohan could not fulfill what it regarded
as the essential function of interacting with others.
B.
To establish that she is a "qualified individual," Rohan had to show
that she could "perform the essential functions of her job." Tyndall v.
Nat’l Educ. Ctrs., Inc. of Cal., 31 F.3d 209, 213 (4th Cir. 1994) (inter-
nal quotations omitted) (quoting Chandler v. City of Dallas, 2 F.3d
1385, 1393-94 (5th Cir. 1993)); see also 42 U.S.C. § 12111(8) (defin-
ing "qualified"). A job function is essential if it "bear[s] more than a
marginal relationship to the job at issue." Tyndall, 31 F.3d at 213. The
district court determined that social interaction was an essential func-
tion of Rohan’s job as a touring actress.
Rohan had to interact with other actors and actresses on
stage and backstage during rehearsals and performances.
Rohan also had to interact with directors and tour managers.
Finally, social interaction was necessary on the tour bus and
in the hotels between performances.
Rohan, slip op. at 6. Although we do not necessarily disagree that
interacting with others was an essential function of Rohan’s job, we
need not address this issue here because, essential or not, Rohan
appears to have adequately performed this function. We will therefore
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assume, without deciding, that, on this record, interacting with others
is an "essential function" within the meaning of 42 U.S.C. § 12111(8).22
The parties do not dispute that Rohan could interact with others to
some extent; the question is whether her problems interacting with
others rose to a level that made her unable to "perform" this essential
function within the meaning of the ADA. When the question is thus
a matter of degree, our case law suggests that a plaintiff fails to per-
form the essential function only if her failure detrimentally affects the
purpose of the employment. See Tyndall, 31 F.3d at 213 (finding
plaintiff failed to perform essential function of attendance because her
22Rohan argues that interacting with others cannot be an essential func-
tion of her job because Networks stated that the only qualifications for
her job are "the ability to fulfill the expectations of the director and the
vocal requirements of the particular role," J.A. at 156, and Networks
admitted that Rohan adequately performed these functions. Rohan is
incorrect. The ADA requires the district court simply to give "consider-
ation . . . to the employer’s judgment as to what functions of a job are
essential." 42 U.S.C. § 12111(8) (emphasis added). The statute does not
require the district court to give the employer’s judgment preclusive
effect. "[T]he trial court must do more than simply determine whether or
not [the plaintiff] meets all of the stipulated requirements of the
[employer], but look to what the position [the plaintiff] seeks actually
requires." Pandazides v. Va. Bd. of Educ., 946 F.2d 345, 348-49 (4th Cir.
1991) (emphasis added).
The dissent believes that it is improper for a district court to consider
a function "essential" if that function is neither designated as such by the
employer nor "necessary for the performance of other listed functions."
Post at 31-32 & n.*. We believe the dissent’s view is mistaken for two
reasons. First, nothing in the statute or the regulations limits a district
court’s consideration to an employer’s list of essential functions. As
noted above, the statute explicitly permits courts to look beyond an
employer’s judgment and does not limit review to some sort of overin-
clusiveness analysis of an employer’s list of essential functions. Second,
Rohan’s interrogatory requested the "qualifications, skills, knowledge,
experience, education and background," J.A. at 156, necessary to per-
form Rohan’s role; it did not request a list or description of the functions
of Rohan’s job as a traveling stage actor or identification of which of
those functions were, in Networks’ judgment, essential. Consequently,
both Rohan and the dissent place undue weight on Networks’ response.
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absences made her incapable of fulfilling her teaching obligations).
Here, during three months of rehearsals and performances, Rohan
missed half of one performance because of her impairment, and only
after completing her role as "Lady Beaconsfield." Rohan’s difficulties
interacting with others appear not to have impeded her ability to per-
form her stage role in Jekyll & Hyde.
Moreover, there is little evidence in the record suggesting that
Rohan did not interact appropriately with Jaeger, Vander Ploeg or
Pfarrer, at least until the night preceding her termination. When
viewed in a light most favorable to Rohan, the record demonstrates
that Rohan was capable of interacting with the director and company
managers. Her difficulties rested mainly, if not solely, with interac-
tions offstage with certain cast members. We are unwilling, however,
to find that Rohan’s difficulties with social interaction in this one,
narrow aspect of her job establishes that she could not perform this
essential function.
III.
We next address whether Networks breached its employment
agreement with Rohan. Rohan argues that Networks was required to
provide thirty days written notice before it could terminate the con-
tract and that Networks breached the contract by failing to do so. Fur-
ther, Rohan argues that Networks could only terminate the contract
without notice if Rohan had breached the contract, and in the event
that she did, Networks had to provide notice of the breach and five
days to cure. Because Networks failed to provide notice and an oppor-
tunity to cure, Rohan asserts that Networks breached the contract
when it fired her.
The district court determined that Rohan breached the contract for
the same reason that it found her unqualified under the ADA — her
difficulty interacting with others prevented her from fulfilling the
essential functions of her job. The court also found that Networks was
not required to provide Rohan with notice of her breach and an oppor-
tunity to cure. According to the district court, the contract provision
providing for notice to the breaching party "merely reflects the gen-
eral common law rule," and that rule contains an exception in the
event that the breaching party would be unable to cure the breach.
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Rohan, slip op. at 13. Although this exception was not stated in the
contract, the district court found it to be implicitly included. "There-
fore, in light of the fact that Rohan’s therapist has submitted an affi-
davit making it clear that Rohan could not cure her inability to
interact with others or suicidal behavior within five days, [the notice
of breach provision] provided Rohan with no protection." Id. (citation
omitted).23 We review the district court’s interpretation of a contract
de novo. Williams v. Prof’l Transp. Inc., 294 F.3d 607, 613 (4th Cir.
2002).
Rohan’s employment contract permits either party to terminate the
agreement, "either unilaterally or bilaterally, without penalty, . . .
upon thirty (30) days written notice to the other party." J.A. at 14. If
Rohan committed a material breach of the contract, Networks was not
required to provide the thirty-day notice. However, "[n]o party to this
Agreement shall be deemed to have breached any provisions hereof,
unless and until the other party hereto has sent written notice to said
party specifying said party’s failure in respect of any provision, and
said failure is not corrected or rectified within five (5) business days
after party’s receipt of such written notice from the other party." J.A.
at 16. Thus, Rohan could not commit a breach of contract — material
or otherwise — until Networks provided notice of the breach and five
days to cure.
The district court’s determination that Rohan breached her employ-
ment agreement is problematic for several reasons. First, as we have
already explained, we disagree with the district court’s determination
that Rohan was unable to interact with others to an extent that would
make her unqualified under the ADA. Because this determination was
the basis for the district court’s ruling on Rohan’s breach of contract
claim, we cannot agree that Rohan breached her employment agree-
ment. Moreover, Networks has never asserted that Rohan breached
the contract, let alone that Rohan materially breached it. Networks
maintains that Rohan resigned, not that she breached her contract.24
23The district court applied Maryland law to interpret the contract.
Because the parties do not dispute this decision, we also apply Maryland
law.
24Networks’ counsel apparently does not understand the standard
applied to motions for summary judgment under Rule 56. His assertion
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Second, even if Rohan did violate some unspecified provision, by
the express terms of the contract, that violation would not constitute
a breach until Rohan failed to cure the problem within five days of
receiving notice of the problem. The district court should not have
read into the contract an implied exception to the notice-and-cure pro-
vision. Under Maryland law, "it is improper for the court to rewrite
the terms of a contract for the parties where the terms of the contract
are clear and unambiguous." Maryland Dep’t of Econ. & Cmty. Dev.
v. Attman/Glazer P.B. Co., 594 A.2d 138, 146 (Md. 1991). The dis-
trict court did not find that this provision was ambiguous; it merely
determined that it was incomplete. It was not entitled to make that
determination.
Third, the district court’s assumption, without explanation, that
Rohan’s inability to interact with others was a material breach of the
contract implies that a failure to perform an "essential function" of a
job under 42 U.S.C. § 12111(8) is necessarily a breach of an employ-
ment agreement. We do not believe this to be the case. A breach of
contract claim depends on the terms of the contract; whether an
employee is a "qualified individual with a disability" does not. Cer-
tainly there may be a correlation between the terms of an employment
agreement and the essential functions of the position created thereby.
But to determine that an inability to perform an essential function is
a breach of the agreement requires a district court to first establish
that correlation. Here, the district court failed to do so.
Under Rohan’s employment agreement, Networks could only ter-
minate her without the required thirty-day written notice if it deter-
mined that Rohan’s breach was material. Neither Networks nor the
district court has explained which contractual obligation Rohan
breached as a result of her inability to interact with others. The district
that Rohan resigned is wholly unsupported by the record and, quite
frankly, baffling. Both Vander Ploeg and Pfarrer stated in their affidavits
that Networks had determined to release Rohan from her contract before
Vander Ploeg flew to Florida to meet with Rohan. As explained below,
Rohan’s desire to leave the show on December 6 was contingent upon
Networks’ decision to terminate her. At best, Rohan’s statements create
a genuine issue of material fact that would defeat Networks’ summary
judgment motion.
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court also failed to explain how Rohan’s purported breach was mate-
rial. Thus, we find the district court’s reasoning on this point to be in
error.
Nevertheless, we conclude that Networks did not breach the
employment contract. Although Networks was contractually required
to provide Rohan with written notice thirty days prior to terminating
the contract,25 and it apparently intended to breach that provision by
firing Rohan on December 6, Rohan preempted its attempt to do so.
Before Vander Ploeg or Pfarrer could fire her, Rohan repeatedly told
Vander Ploeg on the phone that "[i]f it’s the company’s intention to
let me go at the layoff, I want to go home tomorrow morning and not
stay for the remainder of the next two weeks." J.A. at 45, 287. When
Vander Ploeg and Pfarrer went to Rohan’s room later that night, they
found her crying and packing her belongings in anticipation of leav-
ing. Rohan was entitled to written notice thirty days before termina-
tion, but she was also entitled to waive that requirement. See Twining
v. Nat’l Mortgage Corp., 302 A.2d 604, 607 (Md. 1973) ("[I]t is ele-
mentary that either party to a contract may waive any of the provi-
sions made for his benefit."); The Redemptorists v. Coulthard Servs.,
Inc., 801 A.2d 1104, 1116 (Md. Ct. App. 2002) ("A waiver . . . may
result from an express agreement or be inferred from the circum-
stances," but "will not be inferred from equivocal acts or language.")
(internal quotations omitted). Because Rohan clearly waived the
notice requirement by announcing her desire to depart the cast imme-
diately if Networks intended to terminate her, Networks did not
breach the contract.26
25The district court noted that the notice-and-cure provision ("¶ 27")
could be superceded by the material breach exception ("¶ 21.3") to the
termination clause ("¶ 21"). Rohan, slip op. at 13 n.11. However, ¶ 27
governs any breach, including material breaches under ¶ 21.3. Thus,
before Rohan could be deemed to be in material breach warranting termi-
nation without the thirty-day written notice, Networks would have to
inform Rohan of her breach, in writing, and wait for the cure period to
pass. The "without notice" language in ¶ 21.3 properly applies only to the
thirty-day notice requirement of ¶ 21.1.
26Our dissenting colleague disagrees with our reasoning with regard to
this claim only because we raise the issue of waiver sua sponte. Post at
33. However, Networks did raise the affirmative defense of waiver in its
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IV.
For the foregoing reasons, the judgment of the district court is
AFFIRMED.
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 judg-
ment 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 Disabili-
ties Act ("ADA"), a plaintiff must prove that she is a "qualified indi-
vidual with a disability." 42 U.S.C. § 12112(a). A person has a
"disability" if she has a physical or mental impairment that substan-
tially limits a major life activity. Id. § 12102(2). The record estab-
lishes that Rohan had mental impairments — posttraumatic stress
answer. J.A. at 16. Moreover, there is no dispute as to the factual basis
of the defense—Rohan conceded during her deposition that she told Pfar-
rer and Vander Ploeg she wanted to leave immediately were they to fire
her—and Networks has relied on Rohan’s statements throughout these
proceedings. Because Networks pled waiver in its answer, and because
the factual predicate for the defense was raised by the parties, we believe
it is appropriate to rely on waiver to affirm the district court. Cf. Jones
v. Miles, 656 F.2d 103, 107 n.7 (5th Cir. Unit B Aug. 1981) ("[A]n affir-
mative defense is not waived to the extent . . . that the opposing party’s
own evidence discloses the defense.").
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disorder ("PTSD") and severe depression — and along with the
majority, ante at 11, 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 abil-
ity 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 per-
son in the general population can perform that same major life activ-
ity." 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 profes-
sionals 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 Rohan’s condition and its effects on her ability
to interact with others. Following are relevant excerpts from Shea-
hen’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 (includ-
ing 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,
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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 relation-
ship 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 inter-
act 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 effort 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 inter-
acting 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 cer-
tain 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
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space. During other flashbacks and abreactions, Tess hyper-
ventilates, 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 limita-
tions 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 con-
dition is corroborated by Dr. David Irwin, Rohan’s treating psychia-
trist 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 "cor-
roborated by Rohan’s recurring episodes, conflicts with other mem-
bers 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 epi-
sodes. J.A. 52-54. This evidence undermines the majority’s assertion
that Rohan’s episodes were merely "[i]ntermittent manifestations" of
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her condition, ante at 14, at least sufficiently to preclude summary
judgment for Networks based upon the frequency of Rohan’s epi-
sodes.
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 streaming 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:] [D]uring one afternoon in the dressing room
she had an extreme episode. She was laying in a fetal posi-
tion, screaming at the top of her lungs "no daddy no" in a
child-like voice. When she started to come out of the epi-
sode she saw another [a]ctor on the tour, David Grimes, and
went directly into another episode. At this point most of the
ensemble cast 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.
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[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 "Ameri-
can 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 disrup-
tion, 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 signifi-
cantly disrupted Rohan’s relations with her coworkers.
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Finally, 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 dur-
ing a bus ride that she did not feel like living anymore; one of Net-
works’ 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 evi-
dence 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 sug-
gests alternative explanations for Rohan’s plainly abnormal behavior.
In short, the majority weighs the evidence, makes credibility determi-
nations, 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 (1986). Tak-
ing the evidence in the light most favorable to Rohan — as we must
on summary judgment — Rohan has established that she has a "dis-
ability" under the ADA.
II.
Further, Rohan has established, at least sufficiently to survive sum-
mary judgment, that she is a "qualified individual with a disability,"
i.e., that she was able to perform the essential functions of her job
with or without reasonable accommodation. 42 U.S.C. § 12111(8).
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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 Rohan’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 Beaconsfield/Ensemble in Net-
works’s Jekyll & Hyde production." J.A. 146, 177. Likewise, in
response to an interrogatory requiring Networks to "set forth a com-
plete description of the qualifications, skills, knowledge, experience,
education and background" necessary to perform Rohan’s role, Net-
works answered that "[k]nowledge, 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 Rohan’s job performance, it evaluated her
with respect to these requirements; significantly, Networks never sug-
gested to Rohan that her episodes or other abnormal behaviors com-
promised 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 19 n.22. Although the statute
requires consideration of "the employer’s judgment as to what func-
tions 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 denominat-
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ing as "essential" functions that the employer never thought so impor-
tant, 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 terminat-
ing her employment without notice. There is a factual dispute con-
cerning Rohan’s leaving Networks: Rohan says she was fired, while
Networks says she left voluntarily. As the district court properly con-
cluded, 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
*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 nec-
essary for the performance of the functions that Networks deemed essen-
tial. Indeed, Networks acknowledged that Rohan consistently performed
those functions very well despite her condition.
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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
23. Although Networks asserted waiver (among other standard con-
tract defenses) in its answer, it did not move for summary judgment
on that legal theory or otherwise argue 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 con-
cerning 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.
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