*

Honorable James H. Michael, Senior U.S. District Judge for

the Western District of Virginia, sitting by designation. 

United States Court of Appeals,

Eleventh Circuit.

No. 95-8526.

Ellen T. HARRIS, Plaintiff-Appellant,

v.

H & W CONTRACTING COMPANY, Defendant-Appellee.

Dec. 31, 1996.

Appeal from the United States District Court for the Middle

District of Georgia. (No. 94-CV-23-COL), J. Robert Elliott, Judge.

Before BIRCH and CARNES, Circuit Judges, and MICHAEL*

, Senior

District Judge.

CARNES, Circuit Judge:

In this Americans with Disabilities Act ("ADA") case, Ellen T.

Harris appeals from the district court's entry of summary judgment

in favor of the defendant, H & W Contracting Company (the

"Company"). The district court granted summary judgment in favor

of the Company on the grounds that Harris, who has been diagnosed

with and receives ongoing treatment for Graves' disease, cannot

show that she has a "disability" within the meaning of the ADA. We

reverse, because we find that genuine issues of material fact do

exist about whether Harris has a disability within the meaning of

the ADA, and there is no other basis in the record for affirming

the grant of summary judgment.

In addition to her ADA claim, Harris brought a state law tort

claim against the Company for intentional infliction of emotional

distress. We agree with the district court that Harris' emotional
distress claim lacks evidentiary support in the record, and we

affirm the entry of summary judgment in favor of the Company as to

that claim.

I. BACKGROUND FACTS AND PROCEDURAL HISTORY

In 1973, approximately sixteen years before joining the

Company, Harris was diagnosed as having active Graves' disease, an

endocrine disorder affecting the thyroid gland. Since that time,

Harris has continuously taken medication, "Synthroid," to control

her condition. In general, the ongoing treatment of Harris'

medical condition has been successful. Since 1973, with one

notable exception, Harris' thyroid problems have not seriously

interfered with her work or other life activities, because her

thyroid condition has been fully controlled with medication.

In December 1989, the Company hired Harris as its comptroller,

making her responsible for the maintenance of the Company's

financial records and for certain other financial activities of the

Company. While she was employed there, the Company was entirely

satisfied with Harris' performance as comptroller. Although Harris

made some "mistakes" as comptroller, the Company considered them to

be "minor." When questioned about Harris' performance, the

Company's president, Aldric Hayes, stated that up until the time

Harris left the Company "[a]s far as I was concerned Ellen had done

a real good job," although some additional problems with her work

did come to light after that time.

In December 1992, Harris experienced a "panic attack."

Thereafter, in January 1993, Harris was hospitalized for eight days

in the psychiatric ward. According to Harris, she learned during
her hospitalization that she had been overdosed with her thyroid

medication, due to a change in the manufacture of the drug. There

is no dispute that this overdose caused Harris' panic attack and

subsequent illness, and that once her dosage was corrected, Harris'

thyroid condition did not limit Harris' ability to work or perform

other normal activities. Harris' doctor certified her as able to

return to her normal job duties beginning on February 1, 1993.

In January 1993, while Harris was on sick leave, the Company

hired another individual, Fred Sanders, to be comptroller. When

Harris began to return to work on a gradual basis in January 1993,

she was at first unaware that Sanders had assumed her job title.

However, on February 12, 1993, Harris questioned Hayes about the

status of her responsibilities. In response to those questions,

Hayes told Harris that Sanders was "in charge" and was now the

comptroller. Moreover, according to Harris, Hayes told her that

she would need to seek other employment when she was feeling better

or "within the next several months." Upon learning that she had

been removed from her position as comptroller, and that Sanders had

taken her place, Harris left the workplace. Three days later, on

February 15, 1993, Hayes wrote Harris a letter in which he denied

terminating Harris, but acknowledged that he had removed her from

the position of comptroller and that her employment with the

Company had come to an end.

In April 1993, Harris filed a charge with the Equal Employment

Opportunity Commission ("EEOC"), alleging that the Company had

discriminated against her in violation of the ADA. After receiving

her right-to-sue letter from the EEOC, Harris filed this lawsuit,
 1

We agree with the district court's characterization of the

state of the record concerning Harris' intentional infliction of

emotional distress claim. While, as we discuss hereafter, the

Company's decision to replace Harris as comptroller may have

violated the ADA, there is no basis in the record for concluding

that the Company's behavior was sufficiently extreme and

outrageous to support a claim for intentional infliction of

emotional distress under the standards of Georgia law. See,

e.g., Yarbray v. Southern Bell Telephone & Telegraph Co., 261 Ga.

703, 706, 409 S.E.2d 835, 837 (1991) ("The conduct complained of

must have been extreme and outrageous to support a claim under

this theory."); Cornelius v. Auto Analyst, Inc., 222 Ga.App.

759, 476 S.E.2d 9, 11 (1996) ("The conduct must be so extreme in

degree, as to go beyond all possible bounds of decency, and to be

regarded as atrocious, and utterly intolerable in a civilized

community.") (citation and internal quotation marks omitted). We

affirm without further discussion the district court's grant of

summary judgment as to that claim. 

alleging a claim for discrimination in violation of the ADA and a

pendent Georgia state law claim for intentional infliction of

emotional distress.

On April 6, 1995, the district court entered an order granting

summary judgment to the Company on both the ADA claim and the state

law claim. In granting summary judgment on the ADA claim, the

district court held that Harris could not show that she has a

"disability" within the meaning of the ADA. Turning to the state

law claim for intentional infliction of emotional distress, the

district court found that claim to be "completely lacking in

evidentiary support."1 This appeal followed.

II. STANDARD OF REVIEW

We review de novo a district court's grant of summary

judgment, applying the same standards as the district court. E.g.,

Jones v. Firestone Tire & Rubber Co., 977 F.2d 527, 535-36 (11th

Cir.1992), cert. denied, 508 U.S. 961, 113 S.Ct. 2932, 124 L.Ed.2d

682 (1993). Summary judgment is appropriate if the pleadings,
depositions, and affidavits show that there is no genuine issue of

material fact and that the moving party is entitled to judgment as

a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106

S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). In reviewing a grant of

summary judgment, we view all the evidence in the light most

favorable to the party opposing the motion. E.g., Pritchard v.

Southern Co. Servs., 92 F.3d 1130, 1132 (11th Cir.1996).

III. ANALYSIS

A. The Americans with Disabilities Act

In 1990, Congress enacted the ADA "to provide a clear and

comprehensive national mandate for the elimination of

discrimination against individuals with disabilities." 42 U.S.C.A.

§ 12101(b)(1) (West 1995). To accomplish that purpose, the ADA

provides that "[n]o covered entity shall discriminate against a

qualified individual with a disability because of the disability of

such individual in regard to job application procedures, the

hiring, advancement, or discharge of employees, employee

compensation, job training, and other terms, conditions, and

privileges of employment." Id. § 12112(a). The statute further

operates to create an affirmative duty for employers to reasonably

accommodate individuals with disabilities. In ADA parlance, the

word "discriminate" is defined broadly to include "not making

reasonable accommodations to the known physical or mental

limitations of an otherwise qualified individual with a disability

... unless such covered entity can demonstrate that the

accommodation would impose an undue hardship on the operation of

the business." Id. § 12112(b)(5)(A). "Disability" is defined as:
(A) a physical or mental impairment that substantially limits

one or more of the major life activities of such individual;

(B) a record of such impairment; or

(C) being regarded as having such an impairment.

Id. § 12102(2).

 In order to establish a prima facie case under the ADA,

Harris must show that: (1) she has a disability; (2) she is a

qualified individual; and (3) she was discriminated against

because of her disability. See 42 U.S.C. § 12132; see also, e.g.,

Pritchard v. Southern Co. Servs., 92 F.3d 1130, 1132 (11th

Cir.1996). In granting summary judgment on Harris' ADA claim, the

district court held that Harris had failed to demonstrate that any

genuine issues of material fact existed as to whether Harris has a

disability within the meaning of the ADA—the first element of her

prima facie case. In view of that holding, the district court was

not required to, and did not, consider whether Harris had

established the second and third elements of her prima facie

case—whether she is a qualified individual, and whether she was

discriminated against because of her disability.

On appeal, the parties devote the bulk of their attention to

whether Harris has a disability within the meaning of the ADA, and

so do we. Finding that genuine issues of material fact exist as to

that element of Harris' prima facie case, we will also consider

whether the record concerning the remaining two elements of Harris'

prima facie case nonetheless supports affirming the district

court's grant of summary judgment. See, e.g., Jaffke v. Dunham,

352 U.S. 280, 281, 77 S.Ct. 307, 308, 1 L.Ed.2d 314 (1957) ("A

successful party in the District Court may sustain its judgment on
any ground that finds support in the record.").

B. Whether Harris Has a Disability

Harris contends that her circumstances meet the ADA's

definition of disability in two ways. First, she contends that her

medical condition fits within the definition of disability provided

by 42 U.S.C. § 12102(2)(A), in that she has an impairment that

substantially limits one or more of her major life activities.

Second, she contends that the Company has regarded her as having

such an impairment, as provided by § 12102(2)(C), even if she does

not have one in fact. Harris does not contend, and we do not

address, whether she has a "record of such impairment" sufficient

to bring her condition within the alternative definition of

disability provided by § 12102(2)(B).

 Turning to Harris' first theory, the evidence in the record

would be sufficient to permit a jury to find that Harris has an

impairment within the meaning of the ADA. Harris has come forward

with evidence that she has a thyroid problem, and that she was

diagnosed in 1973 as having active Graves' disease. The Company

has not come forward with any evidence to the contrary. The

applicable federal regulations, the validity of which the Company

does not challenge, define "impairment" to include:

[a]ny physiological disorder, or condition, cosmetic

disfigurement, or anatomical loss affecting one or more of the

following body systems: neurological, musculoskeletal,

special sense organs, respiratory (including speech organs),

cardiovascular, reproductive, digestive, genito-urinary, hemic

and lymphatic, skin, and endocrine.

29 C.F.R. § 1630.2(h)(1) (1996) (emphasis added).

 It is common knowledge that the thyroid gland is an integral

part of the endocrine system, as can be verified by turning to an
ordinary dictionary. See, e.g., Random House Unabridged Dictionary

1980 (Stuart B. Flexner & Leonore C. Hauck eds., 2d ed.1993)

(defining the thyroid gland as "a two-lobed endocrine gland,

located at the base of the neck that secretes two hormones that

regulate the rates of metabolism, growth, and development").

Therefore, disorders of the thyroid gland fit squarely within the

meaning of impairment, as that term is defined by the applicable

federal regulations. However, establishing the existence of an

impairment is only half of Harris' burden in demonstrating that she

has a disability within the meaning of § 12102(2)(A). In order to

for Harris to demonstrate that her impairment rises to the level of

a disability, she must also show that her impairment substantially

limits one or more of her major life activities.

The Company contends that Harris cannot meet the second prong

of the definition of disability found in § 12102(2)(A), because

Harris has not been substantially limited in any of her major life

activities due to her thyroid problem. The Company points out that

the symptoms Harris experienced in late 1992 and early 1993 were

but a temporary episode associated with an overdose of Harris'

thyroid medication and that Harris has otherwise been unimpeded in

her life activities since first experiencing thyroid problems in

1973. According to the Company, the transitory nature of Harris'

symptoms should preclude a finding that her impairment

substantially limits her in any of her life activities. Harris

counters that the Company's interpretation of § 12102(2)(A) fails

to recognize that, as Harris puts it, the manifested symptoms of

"an underlying disability may be episodic or temporary in nature
while the impairment itself is both chronic and permanent."

The Company's position regarding the interpretation of §

12102(2)(A) is not a frivolous one. At first glance, it is

difficult to perceive how a condition that is completely controlled

by medication can substantially limit a major life activity.

However, the appendix to the applicable federal regulations

provides explicit guidance on this point, and that guidance is

directly contrary to the Company's position. The appendix to the

regulations provides:

[A]n impairment is substantially limiting if it significantly

restricts the duration, manner or condition under which an

individual can perform a particular major life activity as

compared to the average person in the general population's

ability to perform that same major life activity. Thus, for

example, an individual who, because of an impairment, can only

walk for very brief periods of time would be substantially

limited in the major life activity of walking. An individual

who uses artificial legs would likewise be substantially

limited in the major life activity of walking because the

individual is unable to walk without the aid of prosthetic

devices. Similarly, a diabetic who without insulin would

lapse into a coma would be substantially limited because the

individual cannot perform major life activities without the

aid of medication.

....

The determination of whether an individual is

substantially limited in a major life activity must be made on

a case by case basis, without regard to mitigating measures

such as medicines, or assistive or prosthetic devices.

29 C.F.R. app. § 1630.2(j) (1996) (emphasis added).

The Company acknowledges that its interpretation of §

12102(2)(A) is at odds with the foregoing language, but contends

that we should give effect to its interpretation of the statute

rather than that contained in the appendix to the federal

regulations. We disagree. While the "Interpretive Guidance"

provided by the EEOC in the appendix to the federal regulations is
not law, the Supreme Court has held:

[When] Congress has not directly addressed the precise

question at issue, the court does not simply impose its own

construction on the statute, as would be necessary in the

absence of an administrative interpretation. Rather, if the

statute is silent or ambiguous with respect to the specific

issue, the question for the court is whether the agency's

answer is based on a permissible construction of the statute.

Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc.,

467 U.S. 837, 843, 104 S.Ct. 2778, 2782, 81 L.Ed.2d 694 (1984)

(footnotes omitted). The Supreme Court has long recognized that an

agency's interpretation of a statute it is entrusted to administer

should be given "considerable weight" and should not be disturbed

unless it appears from the statute or legislative history that

Congress intended otherwise. Id. at 844-45, 104 S.Ct. at 2782-83.

Without discussing Chevron, the Company contends that

acceptance of the EEOC's interpretation of the statute would render

meaningless the statutory requirement that an impairment must

substantially limit a major life activity if it is to be considered

a disability. We disagree.

First, there is no direct conflict between the interpretation

contained in the appendix to the regulations and the language of

the statute itself. There is nothing inherently illogical about

determining the existence of a substantial limitation without

regard to mitigating measures such as medicines or assistive or

prosthetic devices, and there is nothing in the language of the

statute itself that rules out that approach. Therefore, the

question becomes one of congressional intent, and we look to the

ADA's legislative history for guidance.

 A review of the relevant House and Senate reports reveals
that the interpretation of § 12102(2)(A) contained in the appendix

to the applicable federal regulations is firmly rooted in the ADA's

legislative history. See H.R.Rep. No. 101-485(II), 101st Cong.,

2nd Sess., at 52 (1990); H.R.Rep. No. 101-485(III), 101st Cong.,

2nd Sess., at 28-29 (1990); S.Rep. No. 116, 101st Cong., 1st

Sess., at 23 (1989) 1990 U.S.C.C.A.N. 267. We cannot disregard the

interpretive guidance contained in the appendix prepared by the

federal agency charged with enforcing the ADA, when that guidance

is based on a permissible construction of the statute and is

supported by the statute's legislative history. See Chevron,

U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S.

837, 841-45, 104 S.Ct. 2778, 2781-83, 81 L.Ed.2d 694 (1984).

The Company contends that, even if mitigating measures such as

medicines must be disregarded in the determination of whether an

individual is substantially limited in a major life activity,

Harris has failed to come forward with sufficient evidence to avoid

summary judgment. The Company argues that the mere use of a

mitigating measure does not automatically prove the presence of a

disability, because some persons may use such measures to alleviate

impairments that are not substantially limiting. We have no

quarrel with that argument, as far as it goes, and we note that the

Seventh Circuit recently held as much in Roth v. Lutheran Gen.

Hosp., 57 F.3d 1446, 1454 (7th Cir.1995). However, Harris does not

contend that her use of a mitigating measure automatically proves

that she has a disability. Instead, she contends that the facts of

this case, together with the materials the court may consider on a

motion for summary judgment, when viewed in the light most
favorable to her, are sufficient to create a genuine issue of

material fact about whether she is substantially limited in a major

life activity once the ameliorative effects of her medication are

disregarded.

A plaintiff is not required to prove her case in order to

withstand a motion for summary judgment. At the summary judgment

stage, a plaintiff need only show the existence of genuine issues

of material fact that should be decided by the trier of fact. In

determining whether a genuine issue of material fact exists, the

court "may consider pleadings, depositions, answers to

interrogatories, admissions on file, affidavits, oral testimony,

matters subject to judicial notice, stipulations and concessions,

and other materials admissible in evidence or otherwise usable at

trial." Clay v. Equifax, Inc., 762 F.2d 952, 956 (11th Cir.1985)

(dicta) (emphasis added); see also 6 James W. Moore et al.,

Moore's Federal Practice § 56.15[7] (2d ed.1996) (same); 10A

Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal

Practice and Procedure § 2723 (2d ed. 1983) ("The doctrine of

judicial notice applies to motions under Rule 56.").

 We take judicial notice that Graves' disease is a condition

that is capable of substantially limiting major life activities if

left untreated by medication. It is appropriate for us to

judicially notice that fact, because it is not subject to

reasonable dispute, and it is "capable of accurate and ready

determination by resort to sources whose accuracy cannot reasonably

be questioned," see Fed.R.Evid. 201(b)(2). For example, The Merck

Manual of Diagnosis and Therapy (Robert Berkow et al. eds., 15th
ed.1987) states:

Graves' disease consists of hyperthyroidism, but also is

characterized by one or more of the following: goiter,

exophthalmos, and pretibial myxedema. ...

Many symptoms and signs are associated with

hyperthyroidism. They are the same for all hyperthyroidism

with some exceptions ... which are confined to Graves'

disease. The clinical presentation may be dramatic or subtle.

The more common signs are: (1) goiter; (2) tachycardia; (3)

widened pulse pressure; (4) warm, fine, moist skin; (5)

tremor; (6) eye signs ...; and (7) atrial fibrillation. The

most frequent symptoms are: (1) nervousness and increased

activity, (2) increased sweating, (3) hypersensitivity to

heat, (4) palpitations, (5) fatigue, (6) increased appetite,

(7) weight loss, (8) tachycardia, (9) insomnia, (10) weakness,

and (11) frequent bowel movements (occasionally diarrhea).

Id. at 1038-39 (emphasis in original) (bold face type omitted).

Moreover, in extreme cases, hyperthyroidism can lead to "thyroid

storm," which is characterized by symptoms such as "fever; marked

weakness and muscle-wasting; extreme restlessness with wide

emotional swings; confusion, psychosis, or even coma," id. at

1039. In such a case, "[t]he patient may present with

cardiovascular collapse and shock," id. "Thyroid storm ... results

from untreated or inadequately treated thyrotoxicosis and ... is a

life-threatening emergency requiring prompt and specific treatment

...." Id. (emphasis in original). Accord 3A Roscoe N. Gray &

Louise J. Gordy, Attorneys' Textbook of Medicine §§ 77.23 (1996)

(discussing the symptomatic effects of Graves' disease and

hyperthyroidism).

Understandably, the Company makes no effort to show that

Graves' disease is incapable of substantially limiting the life

activities of those affected by it. Instead, the Company asserts

that the record is completely devoid of any evidence Harris'

particular thyroid problem would substantially limit her life
activities if left untreated. In making that assertion, the

Company overlooks important evidence in the record.

First, it is undisputed that Harris has received ongoing

treatment for her thyroid condition for more that twenty years.

While receiving this ongoing treatment, Harris has been able to

function without any significant problems, so long as the

medication is maintained at a proper dosage. Additionally, we know

that if Harris receives too much of her thyroid medication, she may

experience a panic attack and find herself hospitalized in the

psychiatric ward, as happened in January 1993. We need not decide

if that evidence by itself would be sufficient to raise a genuine

issue of fact about whether, without her medication, Harris would

be substantially limited in her major life activities. There is

more evidence in the record.

 At her deposition, Harris was questioned about what she knew

about her medical condition, and the purpose of the medication she

takes to control it. During her direct examination, the following

exchange took place:

Q. I think you have testified that you have a thyroid disorder,

endocrine disorder.

A. Yes.

Q. And you have been on medication for how long for that?

A. Since 1973.

Q. Do you understand what the medication is for, the purpose of the

medication?

A. To replace what the thyroid doesn't produce anymore.

Q. Do you know what would happen if you didn't take the medication?

A. Sure.
Q. What?

A. I would go into a coma and die.

Deposition of Ellen T. Harris 89 (Aug. 2, 1994). We are satisfied

that the evidence in this case, including Harris' deposition

testimony and matters subject to judicial notice, is sufficient to

create a genuine issue of material fact about whether Harris'

medical condition, in the absence of mitigating measures, would

substantially limit her major life activities. The district court

erred when it concluded that Harris cannot show that she has a

cognizable disability under the ADA.

 Turning to Harris' alternative theory, we find that Harris

has also demonstrated the existence of a genuine issue of material

fact about whether the Company regarded her as having a

substantially limiting impairment, even if she does not actually

have one, as contemplated by 42 U.S.C. § 12102(2)(C). While Harris

was away on sick leave, the Company's president, Aldric Hayes,

hired another person to take over permanently as comptroller, even

though Hayes had previously been satisfied with Harris' performance

in that position. That alone would not be enough, but according to

a report taken by the Georgia Department of Labor Field Office in

connection with Harris' claim for unemployment insurance benefits,

Hayes gave the following explanation for that action:

In my opinion, she did work for me good for a long time, and

I do not feel I had to put my company on the line, and I felt

that the company was being put in jeopardy, at a disadvantage

due to her type illness and I wanted to give her time to fully

recover before advising her of my decision to put someone else

as comptroller, in an effort to take some of the stress of the

job off her. Had I had the opportunity to tell her of this,

I could have explained why I was doing this, but I felt that

was not the time, due to the type illness she had....
Georgia Department of Labor, Statement of Interested Parties (March

4, 1993) (emphasis added). Viewing that evidence in the light most

favorable to Harris, as we are required to do at this stage, we are

persuaded that a genuine issue of material fact exists as to

whether Hayes decided to permanently replace Harris as comptroller

because he regarded her as having a substantially limiting

impairment. The district court erred when it reached the opposite

conclusion in granting summary judgment in favor of the Company.

C. Whether Material Fact Questions Exist Regarding the Other

Elements of Harris' Prima Facie Case

In order to prevail on her ADA claim, Harris must do more than

show that she has a disability. She must also prove the other two

elements of her prima facie case—that she was a qualified

individual and that she was discriminated against because of her

disability. At the summary judgment stage, Harris bears the burden

of coming forward with sufficient evidence to create genuine issues

of material fact regarding each of those elements. We readily

conclude that she has.

 On the qualification issue, there is evidence that Hayes

admitted to the Georgia Department of Labor representative that

Harris "did work for me good for a long time." That is consistent

with his deposition testimony that he did not have any real

problems with Harris' performance as comptroller "until the end"

and that "[a]s far as I was concerned Ellen had done a real good

job." Deposition of Aldric M. Hayes 17, 18 (August 2, 1994). In

view of the fact that Harris held her job with the Company for over

three years, and that Hayes had no real problems with her

performance "until the end" (which was around the time of her
 2

Although the Company contends that Harris cannot show

discrimination, because she was not formally discharged, we note

that the ADA provides protection against adverse employment

actions that fall short of termination. See 42 U.S.C.A §

12112(a) (West 1995) (prohibiting discrimination "in regard to

job application procedures, the hiring, advancement, or discharge

of employees, employee compensation, job training, and other

terms conditions, and privileges of employment"); see also

McNely v. Ocala Star-Banner Corp., 99 F.3d 1068, 1078 (11th

Cir.1996) (reversing jury verdict in favor of employer where

verdict form erroneously limited recovery to "termination"). 

hospitalization), we are satisfied that Harris has demonstrated the

existence of a genuine issue of material fact as to whether she was

qualified for the position she held.

 Turning to the discrimination issue, the record evidence is

sufficient to raise a genuine issue of material fact about whether

Hayes discriminated against Harris on the basis of her disability

when he replaced her as comptroller.2 At his deposition, Hayes

gave the following explanation for that decision: "I am thinking

to myself in this big dilemma I am in right now, what do I do? If

I put her in charge [as comptroller] ... then what if she has to go

back to the hospital again, I am high and dry." Deposition of

Aldric M. Hayes 29 (August 2, 1994). Moreover, as reviewed above,

Hayes allegedly explained that he decided to replace Harris as

comptroller because he "felt that the company was being put in

jeopardy, at a disadvantage due to her type illness." One purpose

of the ADA is to prevent employers from taking adverse employment

actions against disabled employees because they merely "feel" that

their businesses are being disadvantaged due to the disabilities of

those employees, without first determining whether those

disadvantages could be ameliorated with a reasonable accommodation

that does not place an undue hardship on the business. See 42
U.S.C. § 12112(b)(5)(A). The Company has not argued to us, or to

the district court, that Harris' medical condition could not be

accommodated without placing an undue hardship on the Company.

Harris has met her burden at summary judgment on the issue of

whether the Company discriminated against her on the basis of her

disability.

IV. CONCLUSION

The district court erred when it granted summary judgment to

the Company on the grounds that Harris cannot show that she has a

disability within the meaning of the ADA. The Company has failed to

demonstrate the absence of genuine issues of material fact and that

it is entitled to judgment as a matter of law on the issues of

whether Harris actually has a substantially limiting impairment, as

covered by 42 U.S.C. § 12102(2)(A), and as to whether the Company

regarded her as having such an impairment, as covered by 42 U.S.C.

§ 12102(2)(C). Likewise, the Company has failed to demonstrate the

absence of genuine issues of material fact as to whether Harris was

qualified for the position of comptroller and as to whether the

Company discriminated against her on the basis of her disability.

By contrast, the record is wholly devoid of sufficient

evidence to demonstrate the existence of a genuine issue of

material fact with respect to Harris' pendent state law claim for

intentional infliction of emotional distress.

Therefore, we AFFIRM the entry of summary judgment in favor of

the Company on the claim for intentional infliction of emotional

distress, we REVERSE the entry of summary judgment in favor of the

Company on the ADA claim, and we REMAND for further proceedings
consistent with this opinion.