1

The Honorable Mark Bennett, United States District Judge

for the Northern District of Iowa.

___________

No. 96-1002

___________

Diana Webb, *

*

Plaintiff/Appellant, *

* Appeal from the United States

v. * District Court for the 

* Northern District of Iowa. 

Mercy Hospital, Cedar *

Rapids, Iowa; Erin P. *

Shanahan; Carol Watson, *

*

Defendants/Appellees. * ___________

Submitted: October 25, 1996

Filed: December 13, 1996 ___________

Before WOLLMAN, ROSS, and MURPHY, Circuit Judges. ___________

MURPHY, Circuit Judge.

Diana Webb appeals from a judgment dismissing her employment

discrimination claim brought under the Americans with Disabilities

Act (ADA), 42 U.S.C. §§ 12102-12213. Webb alleged she was fired

from her job at Mercy Hospital (Mercy) because of a mental

impairment, but the district court1 concluded she had failed to

make a prima facie case showing that she was disabled under the

ADA. We affirm.

The background facts are not in dispute. Webb worked as a

weekend options nurse at the Mercy Birthplace in Cedar Rapids, Iowa

from January 2, 1991 to May 7, 1993, when she was dismissed. She

had been hired to work either three eight-hour shifts or two
 2

Appellees argue that Shanahan and Watson as supervisors

cannot be subject to personal liability under the ADA, but that

issue need not be resolved in this case.

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twelve-hour shifts per week. In December 1992, Webb gave Mercy a

statement from a doctor which said she should not work the night

shift to avoid fatigue. For the next couple of months she was not

scheduled at night, but Mercy then asked Webb to make arrangements

so that she could again work night shifts. Webb objected to this

request. 

In the weeks before her termination, Webb discussed her

objections to Mercy's request with other employees. She indicated

she understood why someone who had been in the news had killed

several people, and she threatened some co-workers with legal

proceedings. After she refused to accept an initial reprimand, she

was given another for disruptive and insubordinate behavior and was

told she must participate in Employee Assistance Program

counselling or she would be fired. A few days later, on May 5,

1993, Erin Shanahan, her supervisor, told her not to come to the

Birthplace until further notice, but she showed up at a meeting

there on May 7. Carol Watson, the vice president of patient care,

ordered her to leave several times. When Webb refused to leave,

she was escorted from the building by Mercy security, and Mercy

terminated her employment. Mercy hired a private security guard

for the Birthplace for two weeks following Webb's termination.

Webb sued Mercy, Shanahan, and Watson under the ADA and state

law in both federal and state court.2 She alleged she was

illegally terminated because of both physical and mental

disabilities. The federal court granted summary judgment on her

ADA claims and dismissed her supplemental state law claims. It

found Webb had failed to establish a prima facie case of disability

discrimination based on a perceived mental impairment because she

did not produce evidence that she was regarded as mentally impaired
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Webb did not appeal the court's grant of summary judgment

on her physical disability claim under the ADA. Webb also did

not appeal from a subsequent state court summary judgment

involving all claims, and Mercy has moved to dismiss this appeal

on the basis of res judicata.

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or that any such impairment was substantial. This appeal concerns

only the federal district court's dismissal of her mental

disability claim under the ADA.3 

Webb argues summary judgment was inappropriate on her mental

impairment claim because there was sufficient evidence to establish

a prima facie case. She argues that a previous diagnosis she

received of depression and Mercy's response to her behavior during

the disagreement created an inference that she was regarded as

suffering from a substantially limiting mental impairment, making

her disabled under the ADA. Mercy, Watson, and Shanahan respond

that Webb has not shown herself to be disabled within the meaning

of the ADA because she did not produce any evidence that she was

regarded as mentally impaired.

The ADA prohibits employers from discriminating "against a

qualified individual with a disability because of" that disability.

42 U.S.C. § 12112(a). A "qualified individual with a disability"

is a person "with a disability who, with or without reasonable

accommodation, can perform the essential functions of the

employment position." 42 U.S.C. § 12111(8). To establish a prima

facie case under the ADA, a complainant therefore must show that

she is disabled within the meaning of the Act; she is qualified to

perform the essential functions of her job with or without

reasonable accommodation; and she suffered an adverse employment

action because of her disability. Robinson v. Neodata Serv., Inc.,

94 F.3d 499, 501 (8th Cir. 1996) (citations omitted). 

The ADA defines "disability" as "(A) a physical or mental

impairment that substantially limits one or more of the major life
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activities of such individual; (B) a record of such an impairment;

or (C) being regarded as having such an impairment." 42 U.S.C. §

12102(2)(A)-(C). Webb does not argue that she actually suffers

from a mental impairment or has a record of such impairment, but

rather that she was regarded as having a substantially limiting

mental impairment. 42 U.S.C. § 12102(2). A person is "regarded as

having" an impairment that substantially limits major life

activities when others treat that person as having a substantially

limiting impairment. Wooten v. Farmland Foods, 58 F.3d 382, 385

(8th Cir. 1995) (citing 29 C.F.R. § 1630.2(l)(3)). An employer's

knowledge that an employee exhibits symptoms which may be

associated with an impairment does not necessarily show the

employer regarded the employee as disabled. Hamm v. Runyon, 51

F.3d 721, 725 (7th Cir. 1995); see also Miller v. National Cas.

Co., 61 F.3d 627, 629-30 (8th Cir. 1995). 

On a motion for summary judgment, the nonmoving party must set

forth specific facts sufficient to raise a genuine issue for trial.

Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). A grant of

summary judgment is reviewed de novo. Crawford v. Runyon, 37 F.3d

1338, 1340 (8th Cir. 1994). 

Webb failed to make a sufficient showing that she was disabled

within the meaning of the ADA. Webb claims Mercy and her

supervisors regarded her as mentally impaired because of a previous

diagnosis and hospitalization for depression, but she produced no

evidence that her supervisors or the management at Mercy were aware

of the diagnosis. Without such evidence, that diagnosis cannot be

the basis for inferring that she was regarded as mentally impaired.

See Miller, 61 F.3d at 629-30 (employee's complaints about stress

insufficient to put employer on notice of any disability when it

had not been informed about a diagnosis of manic depression).

Although Webb's supervisors testified she was a difficult and

insubordinate employee, that does not establish that she was

considered mentally impaired. See Id. at 630 (stress and unexcused
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absences are not obvious manifestations of disability); Hamm v.

Runyon, 51 F.3d 721, 725 (7th Cir. 1995) (chronic tardiness does

not create inference that the employer would regard the employee as

disabled); Daley v. Koch, 892 F.2d 212, 215 (2d Cir. 1989)

(perception that person has poor judgment and impulse control and

behaves irresponsibly does not establish that person is regarded as

handicapped). Without evidence that Mercy or her supervisors

regarded her as mentally disabled or acted on such a perception,

her ADA claim cannot go forward.

For these reasons, the judgment is affirmed, and the motion to

dismiss the appeal on res judicata grounds is dismissed as moot. 

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.