Runnebaum v. NationsBank of Maryland, N.A.

Decision Date15 August 1997
Docket NumberNo. 94-2200,94-2200
Parties7 A.D. Cases 216, 23 A.D.D. 623, 10 NDLR P 246 William RUNNEBAUM, Plaintiff-Appellant, v. NATIONSBANK OF MARYLAND, N.A., Defendant-Appellee. Whitman-Walker Clinical Legal Services Department; Equal Employment Opportunity Commission, Amici Curiae.
CourtU.S. Court of Appeals — Fourth Circuit

ARGUED: Gerard Patrick Martin, Martin, Junghans, Snyder & Bernstein, P.A., Baltimore, MD, for Appellant. Eva Susan Tashian-Brown, Mcguire, Woods, Battle & Boothe, Richmond, VA, for Appellee. ON BRIEF: Gregg L. Bernstein, Martin, Junghans, Snyder & Bernstein, P.A., Baltimore, MD, for Appellant. Donald F. Burke, Mcguire, Woods, Battle & Boothe, Baltimore, Maryland, for Appellee. Daniel Bruner, Senior Litigation Counsel, Elizabeth A. Seaton, Associate Legal Services Director, Laura M. Flegel, Legal Services Director, Whitman-Walker Clinic, Inc., Washington, DC, for Amicus Curiae Whitman-Walker. C. Gregory

Stewart, General Counsel, J. Ray Terry, Jr., Deputy Attorney General, Gwendolyn Young Reams, Associate General Counsel, Carolyn L. Wheeler, Assistant General Counsel, Paul Bogas, Equal Employment Opportunity Commission, Washington, DC, for Amicus Curiae EEOC.

Before WILKINSON, Chief Judge, and WIDENER, HALL, MURNAGHAN, ERVIN, WILKINS, NIEMEYER, HAMILTON, LUTTIG, WILLIAMS, MICHAEL, and MOTZ, Circuit Judges.

Affirmed by published opinion. Judge WILLIAMS wrote the majority opinion, in which Chief Judge WILKINSON and Judges WIDENER, WILKINS, NIEMEYER, and LUTTIG joined. Judge HAMILTON wrote an opinion concurring in the judgment. Judge MICHAEL wrote a dissenting opinion, in which Judges K.K. HALL, MURNAGHAN, ERVIN, and DIANA GRIBBON MOTZ joined.

OPINION

WILLIAMS, Circuit Judge:

We granted en banc review of this case to consider the appeal of William Runnebaum, an asymptomatic individual infected with the human immunodeficiency virus (HIV), from a district court order granting summary judgment for NationsBank of Maryland on Runnebaum's claims of discrimination under the Americans with Disabilities Act (ADA), see 42 U.S.C.A. §§ 12101-12213 (West 1995 & Supp.1997); and the Employee Retirement Income Security Act (ERISA), see 29 U.S.C.A. §§ 1001-1461 (West 1985 & Supp.1997). A divided panel of our court reversed the district court's grant of summary judgment, holding that Runnebaum established a prima facie case of discrimination and forecast enough evidence to create "a genuine issue of material fact as to whether he was fired because he was regarded as having a disability." Runnebaum v. NationsBank of Maryland, 95 F.3d 1285, 1297 (4th Cir.1996). For the reasons that follow, we hold that Runnebaum did not establish a prima facie case of discrimination based on disability. Accordingly, we affirm the district court's grant of summary judgment for NationsBank. 1

I. FACTS

Runnebaum was hired by NationsBank in May 1991. During the first year of his employment, he worked in the bank's private banking department as a marketing coordinator. While working in the private banking department, Runnebaum experienced difficulty in satisfying his professional responsibilities. His supervisor, Michael Kines, detailed Runnebaum's improper professional and personal conduct in written evaluations dated March 20, 1992, and May 18, 1992. Michael Brown, NationsBank's Senior Managing Officer in Baltimore, and David Kutch, another of Runnebaum's supervisors, also testified that Runnebaum's professional career was plagued by unexplained absenteeism, chronic tardiness, and lengthy lunch periods.

In May 1992, Runnebaum applied for a sales position in NationsBank's new Baltimore trust department. Ann Pettit, the bank's trust department supervisor, hired Runnebaum in June 1992. In completing the paperwork to effectuate the transfer, Runnebaum unequivocally represented that he was not handicapped. Runnebaum's transfer to the new department was effective July 8, 1992. Not surprisingly, Kines and Kutch were relieved to see Runnebaum transferred out of the private banking division.

At the time Runnebaum was transferred to the trust department in Baltimore, Pettit articulated NationsBank's expectations for him in a memorandum dated July 14, 1992 (July Memorandum). The memorandum stated that Runnebaum should arrange with NationsBank sales officers to make "18 joint prospect calls" and "12 joint external referral source calls." Runnebaum does not dispute that he failed to comply with the July Memorandum.

In addition to failing in his professional duties, Runnebaum continued to engage in inappropriate behavior. In presentations to two law firms whose business NationsBank was courting, Runnebaum presented trust and estate information in a condescending manner to attorneys who were skilled in that area of the law. Additionally, Runnebaum provided to one law firm a trust and estate manual prepared by another law firm. In doing so, he implied that the recipient of the manual would not otherwise comprehend trust and estate law. At yet another meeting with a major client, NationsBank officers were "committed that [Runnebaum] not be there, because they were afraid of what he might say or do." (J.A. at 549.) Brown cautioned Runnebaum regarding his unprofessional conduct. In addition, Pettit felt that Runnebaum's joking was "inappropriate." In fact, Runnebaum admitted in his own sworn testimony that Pettit counseled him twice concerning his unprofessional conduct at meetings.

A homosexual, Runnebaum was diagnosed with HIV in 1988. At all times relevant to this case, he has been asymptomatic. In September 1992, Runnebaum told Brown, also a homosexual, that he was infected with HIV. He revealed that he was HIV-positive to Brown at a gay bar in their capacity as friends. Brown testified:

Again, I think that it was like a weekend night or something, and [Runnebaum] was down around the harbor with friends or something, and called me and said, come on down and join us or something like that.... I ended up coming down, picking [Runnebaum] up standing on the street.... [W]e went to a bar, it is on Charles Street, called--I forget the name. It was a restaurant bar, gay clientele. And my recollection is he just told me.

....

William was sharing with me something that was you know, deep, very personal, known by very few.... In fact, his lover, John, didn't even know [he was HIV-positive], he told me. And I can remember just thinking--I remember being in a state of panic, panic because I was thinking how am I going to work, you know and be a friend to somebody who is HIV[-]positive.... But, you know, suppose he dies on me. Should I tell [Pettit] at this point, should I tell [NationsBank]? I remember feeling panicky, uncontrolled.

But at the same time[,] I remember thinking I cannot let him think that it bothers me a bit. I felt like that I was there to protect him.

(J.A. at 506-08.) Runnebaum asked Brown if the bank's employee health plan would pay for AIDS medication.

On November 3, 1992, Pettit met with Runnebaum to discuss his untoward conduct and his dereliction in meeting sales goals. According to Runnebaum, Pettit "counseled me ... on my behavior in [staff] meetings," stated "that there was a lot of jocular behavior going on" in the meetings, and "asked me not to participate in it." (J.A. at 91.) According to Pettit, she decided at the meeting that Runnebaum would not be able to complete his assigned activities and should be discharged.

Sometime in November 1992, Runnebaum placed his first order for the prescription drug azidothymidine (AZT), which was paid for by the bank's health plan. AZT is a drug used in the treatment of HIV infection and AIDS. Because Runnebaum could not wait at home to receive shipments of the drug, he had them delivered to the bank. Packages containing AZT (addressed to Runnebaum) were twice inadvertently opened by bank personnel.

Despite her decision to terminate Runnebaum, Pettit decided to give him an opportunity to redeem himself. Accordingly, on November 6, 1992, she gave Runnebaum responsibility for planning and hosting the bank's "Greater Baltimore Holiday Reception," scheduled for December 15th. She also reduced his load of calls on "prospects" (potential clients) and "external referral sources." On December 15, 1992, Runnebaum hosted the bank's holiday reception. He brought his gay lover to the reception and introduced him to Pettit and others as his "boyfriend."

Runnebaum's inability to meet reduced sales goals and his frequent failure to conduct himself professionally confirmed Pettit's decision to discharge him. In a memorandum dated January 7, 1993 (January Memorandum), Pettit observed that Runnebaum failed to comply with the July Memorandum and to comport himself professionally. While many considerations entered the calculus to discharge Runnebaum, 2 Pettit focused on the fact that he had failed to meet his sales goals, despite the fact that his goals had been reduced in the hope that he might be able to satisfy them, as well as failed to perform required duties and exhibit proper decorum.

On January 12, 1993, Pettit summoned Runnebaum to a meeting with Phillip Cawley, NationsBank's personnel manager for the Baltimore/Washington area. At the meeting, Pettit fired Runnebaum. According to Pettit, she fired Runnebaum for failing to complete the assignments listed in the July Memorandum and for failing to present a professional image. Pettit stated in her deposition that she had already decided to fire Runnebaum when she learned in late November or early December that he was infected with HIV. She testified that Runnebaum's condition played no role in her termination decision. Runnebaum said that his firing "came as a total surprise. I had no verbal warnings, no written warnings. I was called in and let go and told I would be paid through the end of the month and it totally blindsided me." (J.A. at 237.)

Runnebaum promptly filed an...

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