Rehearing en banc granted by order filed 12/3/96 --

published opinion of 9/19/96 is vacated
PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

WILLIAM RUNNEBAUM,

Plaintiff-Appellant,

v. No. 94-2200

NATIONSBANK OF MARYLAND, N.A.,

Defendant-Appellee.

Appeal from the United States District Court

for the District of Maryland, at Baltimore.

Frederic N. Smalkin, District Judge.

(CA-93-3830-S)

Argued: March 10, 1995

Decided: September 19, 1996

Before MURNAGHAN, WILLIAMS, and MICHAEL,

Circuit Judges.

_________________________________________________________________

Reversed and remanded by published opinion. Judge Michael wrote

the majority opinion, in which Judge Murnaghan joined. Judge Williams wrote a dissenting opinion.

_________________________________________________________________

COUNSEL

ARGUED: Gerard Patrick Martin, MARTIN, JUNGHANS, SNYDER & BERNSTEIN, P.A., Baltimore, Maryland, for Appellant. Eva

Susan Tashjian-Brown, MCGUIRE, WOODS, BATTLE &

BOOTHE, Richmond, Virginia, for Appellee. ON BRIEF: Gregg L.

Bernstein, MARTIN, JUNGHANS, SNYDER & BERNSTEIN, P.A.,
Baltimore, Maryland, for Appellant. Donald F. Burke, MCGUIRE,

WOODS, BATTLE & BOOTHE, Baltimore, Maryland, for Appellee.

_________________________________________________________________

OPINION

MICHAEL, Circuit Judge:

William Runnebaum, who is infected with human immunodeficiency virus (HIV), the virus which causes acquired immune deficiency syndrome (AIDS), appeals an order of the district court

granting summary judgment in favor of NationsBank of Maryland,

N.A. on Runnebaum's claims of discriminatory treatment under the

Americans with Disabilities Act (ADA) and the Employee Retirement

Income Security Act (ERISA). See 42 U.S.C.§ 12112 et seq.; 29

U.S.C. § 1140 et seq. We reverse and remand for trial because we

find that issues of material fact preclude summary judgment.

I.

Because this case comes before us after a grant of summary judgment, we must construe the facts in the light most favorable to the

non-moving party, here Runnebaum, and we must draw all justifiable

inferences in his favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

255 (1986); Smith v. Virginia Commonwealth University, 84 F.3d

672, 675 (4th Cir. 1996) (en banc); Amirmokri v. Baltimore Gas &

Elec. Co., 60 F.3d 1126, 1134 & n.3 (4th Cir. 1995). This is because

"at the summary judgment stage the judge's function is not himself

to weigh the evidence and determine the truth of the matter but to

determine whether there is a genuine issue for trial." Anderson, 477

U.S. at 249 (quoted in American Metal Forming Corp. v. Pittman, 52

F.3d 504, 507 (4th Cir. 1995)). Read in the light most favorable to

Runnebaum, the record discloses the following.

In June 1991 NationsBank in Baltimore hired Runnebaum away

from First American Bank, where he had worked in private banking

and had been a branch manager. In his first year at NationsBank Runnebaum worked in the private banking department, where he served

as marketing coordinator. When NationsBank's Baltimore operation

 2
opened a new trust department, Runnebaum applied for a sales position in the new department. Under NationsBank policy Runnebaum

could be considered for another position only if he was "performing

at a satisfactory level or above in [his] current position." Runnebaum's supervisor in private banking, Michael Kines, recommended

Runnebaum for the new job in the trust department. Kines said that

Runnebaum had "good skills and is a valuable member of the PB [private banking] team." In particular, Kines said that Runnebaum had

"[g]ood calling skills and planning ability" and that he did especially

well on "marketing oriented" projects. After a series of interviews

Ann Pettit, the trust department supervisor, hired Runnebaum in June

1992. At the same time Pettit hired Clifford Andersson to work in an

identical position at NationsBank's Bethesda, Maryland, office. Pettit

required both men to sign a "sales goal" letter that set sales targets for

the remaining months of 1992. Runnebaum and Andersson also

received a "Training Tasks" memorandum from Pettit, dated July 14,

1992 (the "July memorandum").

In August 1992 Runnebaum made his first sale, bringing to the

bank $2.55 million in assets to administer. In September Runnebaum

made a second sale that brought in nearly $500,000 in assets. In October the bank gave Runnebaum responsibility for planning a reception

for lawyers from McGuire, Woods, Battle & Boothe. This was an

important marketing event because lawyers (dubbed "external referral

sources" by Pettit) at times referred their clients to the bank's trust

department. The McGuire, Woods reception went well, and Michael

Brown, NationsBank's Baltimore city manager for the trust department, sent Runnebaum a handwritten "note of thanks and congratulations."1 On November 6, 1992, Pettit gave Runnebaum responsibility for planning and hosting the bank's "Greater Baltimore Holiday

Reception," scheduled for December 15. This was a major marketing

and customer relations undertaking, on which the bank spent more

than $10,000. Formal invitations were sent to clients, prospective clients, and those who could refer clients to the bank. In a memorandum

to Baltimore trust and private banking personnel, Pettit described the

_________________________________________________________________

1 Pettit, of course, was Runnebaum's supervisor. Pettit's office, however, was in Tyson's Corner, Virginia, so Runnebaum worked closely

with Brown, whose primary responsibility was to "take care of" existing

trust business in the Baltimore office.

 3
task of planning the reception as "a large commitment for us during

an extremely busy time." Indeed, Pettit wanted to "make sure" it was

"one of the most successful events we have sponsored."

Sometime between the October 29 note from Brown and the

November 6 reception assignment from Pettit, Runnebaum and Pettit

had a meeting at which Pettit reduced (for the remainder of 1992)

Runnebaum's load of calls on "prospects" (potential clients) and "external referral sources." Petit also mentioned "that there was a lot of

jocular behavior going on" in staff meetings, "and she asked [Runnebaum] [ ] to [stop] participat[ing] in it."

Runnebaum was diagnosed with HIV in 1988, but he was asymptomatic at all times relevant to this case. Runnebaum told Brown in

September 1992 that he was infected with HIV, and Runnebaum

asked if the bank's employee health plan would pay for AIDS medication. Runnebaum asked Brown not to tell bank employees (except

for those who administered the health plan) that he was infected.

Brown said that he initially panicked when he learned that Runnebaum was HIV-positive.

In November 1992 Runnebaum placed his first order for the prescription drug azidothymidine (AZT), and the bank health plan paid

for the drug. AZT is well known to be one method of treating 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 (and addressed to Runnebaum) were twice

inadvertently opened by bank personnel.

On December 9, 1992, Pettit sent Runnebaum a handwritten note

reading, "William -- I'm thrilled that you're a part of our group. I

look forward to seeing you shine." On December 15, 1992, Runnebaum hosted the bank's holiday reception. He brought his gay lover

to the reception and introduced him to Pettit as his "boyfriend."

Five days later, Runnebaum made his third sale, this one involving

nearly $2 million in assets. The day before Christmas, Andersson

made his only sale of the year, involving $275,000 in assets. At year's

end Runnebaum had brought in nearly $5 million in assets. Runnebaum's sales brought in $21,900 in fees to the bank, and Andersson's

 4
sales brought in $2,750. Both fee totals fell below the $40,000 target

outlined in the sales goal letters.

On January 12, 1993, Pettit summoned Runnebaum to a meeting

with Phillip Cawley, NationsBank's personnel manager for the

Baltimore/Washington area. Pettit fired Runnebaum at that meeting.

According to Runnebaum, being fired

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.

According to Pettit, Runnebaum was fired for failing to complete the

assignments listed in the July memorandum and for failing to present

a professional image. Andersson was not fired, even though he

brought in only one-eighteenth as much business to the bank as did

Runnebaum. Pettit said in her deposition that she learned in late

November or early December that Runnebaum was infected with

HIV, but by then she had already decided to fire him. She claims that

Runnebaum's disease played no role in her decision to fire him.

Runnebaum promptly filed an administrative claim with the Equal

Employment Opportunity Commission and received a right-to-sue letter. He then filed suit against NationsBank in the United States District Court for the District of Maryland. After discovery the district

court granted the bank's motion for summary judgment on the ground

that Runnebaum failed to establish a prima facie case under the ADA.

The court held in the alternative that Runnebaum did not forecast

enough evidence to prove that the bank's asserted rationale for firing

him was merely pretextual. The court also granted summary judgment

to the bank on the ERISA claim, saying that it decided the ERISA

issue "under the same analytical framework as[the] ADA claim."

Runnebaum appeals, and we reverse and remand for trial.

II.

Title I of the ADA, 42 U.S.C. § 12112, prohibits discriminatory

discharge of "a qualified individual with a disability because of the

 5
disability." To prove a violation, a plaintiff must establish (1) that he

has a disability, (2) that he is otherwise qualified for the employment,

and (3) that he was fired solely on the basis of the disability. Doe v.

University of Maryland Medical System Corp., 50 F.3d 1261, 1264-65

(4th Cir. 1995).

A.

Under the ADA,

The term "disability" means, with respect to an individual

--

(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 an impairment; or

(C) being regarded as having such an impairment.

42 U.S.C. § 12102(2). The EEOC defines the term "regarded as having [a disability]" to include persons who have "a physical or mental

impairment that substantially limits major life activities only as a

result of the attitudes of others toward such impairment." 29 C.F.R.

§ 1630.2(a)(2) (emphasis supplied).

Several courts have held that asymptomatic HIV infection is a disability per se. E.g., Gates v. Rowland, 39 F.3d 1439, 1446 (9th Cir.

1994); Abbott v. Bragdon, 912 F. Supp. 580, 585-86 (D. Me. 1995);

Doe v. Kohn Nast & Graf, P.C., 862 F. Supp. 1310, 1321 (E.D. Pa.

1994); Support Ministries for Persons With AIDS, Inc. v. Village of

Waterford, 808 F. Supp. 120, 132 (N.D.N.Y. 1992); Cain v. Hyatt,

734 F. Supp. 671, 679 (E.D. Pa. 1990); Benjamin R. v. Orkin Exterminating Co., 390 S.E.2d 814, 818 (W. Va. 1990). Several federal agencies have reached the same conclusion. E.g., 29 C.F.R. § 34.2

(Department of Labor); 28 C.F.R. § 35.104 (Department of Justice);

24 C.F.R. Ch. I, Subch. A, App. I (Department of Housing and Urban

Development); 34 C.F.R. § 1200.103 (National Council on Disabil-

 6
ity); 7 C.F.R. § 15e.103 (Department of Agriculture); 5 C.F.R.

§ 1636.103 (Federal Retirement Thrift Investment Board); 22 C.F.R.

§ 1701.103 (Institute of Peace); 45 C.F.R.§ 2301.103 (Arctic

Research Commission). We rejected this approach in Ennis v.

National Ass'n of Business & Educational Radio, 53 F.3d 55, 59 (4th

Cir. 1995), where we concluded that § 12102(2) "requires that a finding of disability be made on an [individualized] basis." More particularly, we said "the statute [ ] contemplates case-by-case determinations of whether a given impairment substantially limits a major life

activity, whether an individual has a record of such a substantially

limiting impairment, or whether an individual is being perceived as

having such a substantially limiting impairment." Id. at 60.

Runnebaum, though asymptomatic, has forecast sufficient evidence

here to qualify under 42 U.S.C. § 12102(2)(C), which protects those

who are regarded as having a disability. 2 Bank employees knew Runnebaum was HIV-positive and knew he was taking AZT to treat the

condition. Upon learning of Runnebaum's condition, a bank supervisor, Michael Brown, felt "panicky" and "uncontrolled" and believed

death might be imminent for Runnebaum.3 This is enough to show at

_________________________________________________________________

2 The dissent says that it is significant and important, see post at 23 &

30, that Runnebaum checked a box indicating that he was not handicapped when he applied for the job in the trust department. This overlooks the fact that the attitudes of others determine whether a person has

a disability within the meaning of subsection (C). Moreover, it is settled

that an employee may not prospectively waive his right to be protected

under the ADA. Alexander v. Gardner-Denver Co. , 415 U.S. 36, 51

(1974); Riley v. Weyerhaeuser Paper Co., 898 F. Supp. 324, 326

(W.D.N.C. 1995), appeal dismissed in part, aff'd in part, 77 F.3d 470

(4th Cir. 1996) (table); H. Rep. No. 485(III), 101st Cong., 2d Sess. 76-

77 (1990), reprinted in 1990 U.S.C.C.A.N. 445, 499-500.

3 The dissent, examining other statements Brown made, says that

Brown simply viewed himself as Runnebaum's "protector," which (the

dissent argues) does not show that Brown regarded Runnebaum as having a disability. See post at 31. This analysis, however, begs the question.

If Brown did not regard Runnebaum as having a disability, why did he

regard Runnebaum as needing his protection? Brown's reaction shows

his firm belief that bank officials and employees would respond negatively to the news that Runnebaum was infected.

 7
the summary judgment stage that the bank perceived Runnebaum as

having an impairment that substantially limits a major life activity.

B.

The bank does not contest the second Doe element, that Runnebaum was otherwise qualified for his employment, but argues that

Runnebaum has not met his burden with respect to the third element,

causation. When a plaintiff seeks to prove causation by means of circumstantial evidence, as Runnebaum does here, the familiar

McDonnell Douglas method is applied. See McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973) (Title VII case); Ennis, 53 F.3d

at 57-58 (ADA case; McDonnell Douglas applied). Runnebaum has

come forward with no direct evidence that he was fired solely on the

basis of his disability, but the circumstantial case he has forecast is

sufficient to avoid summary judgment.

1.

The plaintiff first must establish a prima facie case of discrimination. A prima facie case under the ADA is established if the plaintiff

proves that he is in the class protected by the Act and: (1) he was fired

or demoted when (2) performing his job at a level which met his

employer's legitimate expectations and (3) his discharge occurred

under circumstances indicating "that it is more likely than not that the

adverse employment action was the product of discrimination." Ennis,

53 F.3d at 58. The plaintiff's burden of establishing a prima facie case

is merely a threshold burden and "is not onerous." Texas Dep't of

Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).

The bank argues that Runnebaum has not established a prima facie

case because he was not performing his job at a level meeting the

bank's legitimate expectations. We believe that Runnebaum has forecast sufficient evidence to permit a jury to find that he was indeed

performing at an adequate level.

A performance review completed by the bank's private banking

department in March 1992, before Runnebaum transferred to the trust

department, rated him on a scale of one to seven. Seven is the highest

 8
rating; one is the lowest. A "four" indicates that the employee "consistently meets job requirements." In the six categories completed, Runnebaum received a five, four fours, and a single three. The review

therefore showed that Runnebaum "consistently" met his job requirements in five out of six performance categories. Notwithstanding

some criticism, the numerical evaluation was amply supported by narrative praise. In the "Sales/Sales Management" category Kines said

that Runnebaum was "very diligent at following through on several

very trying situations. He maintains his composure as well as the

bank's position in difficult circumstances, which provides balance to

negotiations." In commenting on the areas of "Personnel Management" and "Leadership Skills," Kines said that Runnebaum, as marketing coordinator, did "an admirable job" in developing "a unique

and innovative marketing plan for 1991 . . . . This was an unusual

responsibility for a new [officer], but William has the personal skills

and apparent confidence to do well in these activities." Finally, Kines

said that Runnebaum "has shown great resourcefulness during his tenure at [NationsBank]." Kines' follow-up review (relied upon heavily

by the dissent, see post at 21-22 & 34-35) in May 1992 also indicates

satisfactory performance overall. Again, despite some criticism, Kines

continued to praise Runnebaum for providing "us with a good, strong

marketing plan. Coordination has been done tactfully and less heavyhandedly than in the past." Kines said that Runnebaum had made

strides in the area of interpersonal skills, "buil[ding] bridges with

peers that have enhanced his credibility."

It is, however, Kines' other evaluation in May 1992, when Runnebaum applied for a transfer to the trust department, that shows he was

meeting the bank's expectations at that time. Runnebaum could only

apply for a transfer if he was "performing at a satisfactory level or

above in [his] current position." Kines, as Runnebaum's supervisor in

private banking, recommended him for the sales position in trusts.

Specifically, Kines told the trust department that Runnebaum had

"good skills and is a valuable member of the PB[private banking]

team." In recommending Runnebaum for the new job, Kines thus certified that Runnebaum was doing his current job at a satisfactory level

or above.

Runnebaum's supervisors continued to praise him after he began

working in the trust department. Brown, NationsBank's senior trust

 9
officer in Baltimore, sent Runnebaum a handwritten "note of thanks

and congratulations" on October 29, 1992, for planning the bank's

reception for a major client referral source, a law firm. A jury could

reasonably conclude on the basis of this note that bank officials valued Runnebaum's ability to plan successful social events that helped

develop and maintain good relationships with referral sources and

made them feel confident about steering potential clients to the bank.

A little more than a month after the successful reception, Pettit,

Runnebaum's immediate supervisor, wrote that she was "thrilled" to

have Runnebaum in her group and looked forward to seeing him

"shine." And, in apparent recognition of Runnebaum's success with

the prior event, Pettit assigned him the important job of planning the

bank's "Greater Baltimore Holiday Reception." Four hundred of the

bank's most important clients, most desired potential clients, and

most significant "centers of influence" for business referrals were

invited. The bank spent more than $10,000 on the event, which was

held at the Center Club of Baltimore. Pettit personally asked Runnebaum to plan all aspects of the event, and she testified that "any function you plan correctly for clients takes effort." In a three-page

memorandum to bank managers, Pettit described the reception as "a

large commitment for us at an extremely busy time." To encourage

other managers to get involved in the advance work, Pettit said that

Runnebaum and she would put $1 million in "Sweat equity" into

planning the event. Pettit's goal, as she said in the memorandum, was

to make the reception "one of the most successful events we have

sponsored."4

Even with the time Runnebaum spent to ensure that the event was

successful, he still outsold Andersson 18 to 1. Indeed, just a few days

_________________________________________________________________

4 Although the dissent tries to belittle Runnebaum by saying that he got

too involved in the "minutiae" and "inconsequentia" of the reception, see

post at 33 & 25-26, it was Pettit herself, in her memorandum to bank

managers, who emphasized the importance of seeing to every last detail.

To dismiss Runnebaum's attention to detail as "squandered" time is to

misread completely what Pettit expected of him on this project. Indeed,

even if Pettit had not been so detailed in her instructions, it would have

been irresponsible of Runnebaum to oversee a $10,000 marketing event

and not to pay close attention to the particulars of making it successful.

 10
after the reception (which went well), Runnebaum made a $2 million

sale. Andersson, on the other hand, had not yet brought in a single

dollar in sales. Andersson did not make his only sale of the year (for

$275,000) until a few days later.

A jury could reasonably infer that Runnebaum met the bank's legitimate expectations.

2.

Once the prima facie case has been established, the employer must

then advance some legitimate, nondiscriminatory reason for the

adverse employment action.

The bank principally relies on a "Memo to Personnel File" ("the

Pettit/Cawley memo") dated January 7, 1993, that Pettit drafted with

the assistance of the personnel manager, Cawley. 5 The Pettit/Cawley

_________________________________________________________________

5 The dissent relies heavily on Runnebaum's behavior when he worked

in the private banking department. See post at 21-23. The Pettit/Cawley

memo does not suggest that Runnebaum's performance in private banking justifies his discharge from his job in the trust department. The dissent puts far too much weight on negative events that occurred early in

Runnebaum's tenure in private banking, even though those events are, by

the dissent's later admission, "too temporally remote" to be taken seriously. See id. at 33. As we have said, according to the bank's own policy,

Runnebaum could not have been hired by the trust department if his performance in private banking was not "at a satisfactory level or above."

Runnebaum's private banking supervisor, Michael Kines, was on the

whole pleased with Runnebaum's performance. Although Kines recognized that Runnebaum was not without weaknesses, he noted that Runnebaum "has shown a willingness to take action and develop in the right

direction." Considering everything, Kines believed that Runnebaum's

strengths justified his promotion to trusts.

The dissent also faults Runnebaum for spending "a great deal of time

to advancing his acting career." See post at 26. The record reveals that

most of Runnebaum's efforts in the acting arena took place while he

worked in private banking and that his boss (Kines) encouraged those

efforts. Kines viewed Runnebaum's theatrical work as a creative way to

get involved in the community, to improve the bank's image, and to

 11
memo says that Runnebaum was fired primarily for (1) failing to

complete all of the "training tasks" Pettit outlined in the July memorandum and (2) failing to present a professional image inside and outside the bank. These assertions constitute legitimate, nondiscriminatory explanations for the bank's action and satisfy the bank's burden of production.6

3.

Even though the bank met its burden of production under step two

of the McDonnell Douglas analysis, Runnebaum still has come forward at step three with sufficient evidence to survive summary judgment.

To prevail ultimately at trial, Runnebaum must prove (1) that the

bank's explanation is pretextual and (2) that the bank intentionally

discriminated against him because of his disability. See St. Mary's

Honor Ctr. v. Hicks, 113 S.Ct. 2742, 2748-49 (1993). When this final

burden of persuasion is factored into the summary judgment analysis,

it means that a plaintiff is required to forecast evidence showing a

genuine issue of material fact on the ultimate question of pretext and

discrimination. Mitchell v. Data General Corp. , 12 F.3d 1310, 1316

(4th Cir. 1993); see also Tomka v. Seiler Corp. , 66 F.3d 1295, 1308-

10 (2d Cir. 1995); Collier v. Budd Co., 66 F.3d 886, 892 (7th Cir.

1995); Waldron v. SL Indus., Inc., 56 F.3d 491, 492-93 (3d Cir.

_________________________________________________________________

develop contacts with potential clients. Kines, for example, encouraged

the entire private banking staff to attend Runnebaum's performance as

Tom Joad in Grapes of Wrath. Indeed, Runnebaum testified that "numerous clients" attended his performances and that he got business referrals

as a result of his avocation as an actor. Finally, Kines himself occasionally sang opera and was a member of various church choirs and the opera

guild. At no time did anyone at the bank tell Runnebaum that his extracurricular activities were unacceptable; indeed, it appears that those

activities were encouraged.

6 As we discuss below, however, Runnebaum offers specific evidence

to challenge the credibility of the bank's asserted rationale for terminating him and to demonstrate that the justification asserted was merely a

pretext for discrimination.

 12
1995); Torre v. Casio, Inc., 42 F.3d 825, 829-30 (3d Cir. 1994);

Durham v. Xerox Corp., 18 F.3d 836, 839-40 (10th Cir.), cert. denied,

115 S. Ct. 80 (1994); Washington v. Garrett, 10 F.3d 1421, 1433 (9th

Cir. 1994); Hairston v. Gainesville Sun Publishing Co., 9 F.3d 913,

921 (11th Cir. 1994); Developments in the Law--Employment

Discrimination, 109 Harv. L. Rev. 1568, 1599-1601 (1996).

Because an employer's true motive for firing an employee may be

difficult to determine, and because the facts indicating that motive

vary widely from case to case, a plaintiff is not required to show pretext and discrimination by any particular kind of evidence at the summary judgment stage, so long as there is some evidence in the

summary judgment record showing that he could prevail at trial.

Patterson v. McLean Credit Union, 491 U.S. 164, 187-88 (1989).

Runnebaum has met his burden, and the district court erred in granting the bank summary judgment.

Runnebaum could rely on the following facts to convince a rational

trier of fact that the bank's asserted justifications are pretextual and

that Runnebaum was discriminated against because he was regarded

as having a disability. We do not hold that any one fact alone would

preclude summary judgment. Taken together, however, they demonstrate the existence of a genuine issue of material fact on the ultimate

question of pretext and discrimination.

a.

Runnebaum's and the bank's respective versions of the facts leading up to his discharge are in stark contrast. Runnebaum has forecast

specific evidence that would allow a reasonable finder of fact to disbelieve the bank's version of events and to find the bank's witnesses

not credible.

The factfinder's disbelief of the reasons put forward by the

defendant (particularly if disbelief is accompanied by a suspicion of mendacity) may, together with the elements of the

prima facie case, suffice to show intentional discrimination.

Thus, rejection of the defendant's proffered reasons, will

 13
permit the trier of fact to infer the ultimate fact of intentional discrimination.

St. Mary's Honor Ctr., 113 S. Ct. at 2749 (emphasis in original).

The main charge against Runnebaum in the Pettit/Cawley memo is

that he failed to attend a sufficient number of "prospect" sales calls.

According to the dissent, see post at 32-33, this shows Runnebaum's

"utter failure to attend to his assigned duties." But a careful look at

the summary judgment record belies this claim. When the record is

viewed in the light most favorable to Runnebaum, it is evident that

Pettit denied him prospect call credit he should have been granted.

Runnebaum was denied credit for all nine such calls he made with

Brown on the ground that Brown was not officially a sales officer,

even though Pettit admitted that Brown was "expected to be interested

in sales" as the trust department's Baltimore city manager. Runnebaum also was denied credit for a prospect call he made with Sara

Tapiero, a portfolio manager, and for eight calls he made alone.

Ironically, Runnebaum was not given any sales call credit for the

three calls he made that resulted in actual sales . Andersson, by contrast, who was not HIV-positive and who was not fired, was given

credit for calls he made with Brown and Tapiero, as well as for four

calls he made alone.

The Pettit/Cawley memo also charges Runnebaum with failing to

make a sufficient number of "external referral source" calls, meetings

with people (such as lawyers and accountants) who could potentially

refer business to the bank. Runnebaum made twelve external referral

source calls. But again, Runnebaum was denied credit for nine of ten

such calls he made with Brown and for one call he made alone.

Runnebaum also creates a factual dispute about the legitimacy of

other reasons assigned for his discharge in the Pettit/Cawley memo.

For example, he was faulted for attending no Baltimore Estate Planning Council meetings. However, Runnebaum joined the council

(along with Brown), but no meetings were scheduled between the

time he joined and the time he was fired. Similarly, Runnebaum was

faulted for failing to send Pettit blind carbon copies of his correspondence. But all correspondence on Runnebaum's matters went out over

 14
Brown's signature, and Runnebaum "feel[s] certain" he told Pettit

about this arrangement.

Another contention of the bank is that Runnebaum did not always

make a timely submission of activity and call reports to Pettit.

Andersson, however, had the same deficiency. According to Pettit,

"both of them had slacked off." Although she put nothing in either's

personnel file, Pettit counseled both men. The conduct of both men

in the reporting area then improved. Nevertheless, this earlier shortcoming was used as a reason to fire Runnebaum, while Andersson,

who had the same "failure to attend to his assigned duties," see post

at 32-33, was not fired.

In response to the charge that he failed to present a professional

image, Runnebaum contends that the bank now overstates the significance of the incidents cited. Runnebaum's joking around, for example, seems to have been common behavior for many members of the

Baltimore office. According to Runnebaum, internal meetings "got

out of hand from time to time with all members of the sales staff," primarily because the bank's salespeople were "highly energized" and

prone to "a lot of horseplay." Similarly, Pettit wrote off the "inappropriate behavior" Runnebaum allegedly engaged in at a presentation to

a law firm shortly after joining the trust department, see post at 24-25,

to his inexperience. According to Brown, Pettit simply said "he is

young," and "he has got to learn it is okay not to say anything." Moreover, the bank has not explained why Runnebaum was allowed (near

the end of his tenure) to be co-host with Pettit of the holiday reception, to which 400 clients, potential clients, and "referral sources"

were invited, if his behavior could not be trusted. Thus, Runnebaum

claims that his behavior did not seriously trouble the bank until it

learned he was infected with HIV and needed an after-the-fact rationalization to fire him.

The Pettit/Cawley memo's questionable reliability, then, weighs

against summary judgment. Runnebaum's evidence, if believed at

trial, supports reasonable "disbelief of the reasons put forward by the

defendant" and "rejection of the defendant's proffered reasons,"

which would permit a reasonable finder of fact to "infer the ultimate

fact of intentional discrimination." St. Mary's Honor Ctr., 113 S. Ct.

at 2749.

 15
b.

The timing of Runnebaum's termination also raises a sufficient

question of pretext and discrimination to weigh against summary

judgment. See EEOC v. Ackerman, Hood & McQueen, Inc., 956 F.2d

944, 949 (10th Cir.), cert. denied, 506 U.S. 817 (1992). Runnebaum

was given additional marketing responsibilities relatively early in his

tenure with the trust department, and he even received a note of praise

from his supervisor, Pettit. Just a short time later, though, Runnebaum

was fired. The record thus presents an unresolved material question:

what caused the bank's attitude toward Runnebaum to change so suddenly.

Runnebaum argues that the change came with Pettit's discovery

that Runnebaum was HIV-positive or with her learning that he was

receiving medication to treat his condition. The bank claims, however, that Pettit had already made the decision to fire Runnebaum

before she learned of his disability and that the bank employees who

opened Runnebaum's medicine packages never told Pettit that Runnebaum was taking AZT. Whether Pettit resolved to fire Runnebaum

before or after she learned he was HIV-positive and whether she

knew Runnebaum was taking AZT, however, are questions of fact

that must be resolved at trial. More particularly, these questions center

on Pettit's credibility, and questions of witness credibility must be left

to the trier of fact. Tuck v. Henkel Corp., 973 F.2d 371, 376 (4th Cir.

1992), cert. denied, 507 U.S. 918 (1993); see also Beardsley v. Webb,

30 F.3d 524, 530 (4th Cir. 1994); Gray v. Spillman, 925 F.2d 90, 95

(4th Cir. 1991).

Pettit's inconsistent behavior supports a finding of discriminatory

intent. Pettit claims she decided to fire Runnebaum sometime in

November 1992, but she never warned him that he was in danger of

losing his job. Furthermore, on December 9 she praised him, sending

him a handwritten note reading, "William -- I'm thrilled that you're

a part of our group. I look forward to seeing you shine." This cuts

against the bank because bosses generally do not praise employees

they have decided to sack. Pettit's conduct sheds doubt on her claim

 16
that she resolved to fire Runnebaum before she learned he was

infected with HIV.7

Finally, we mention again that Pettit trusted Runnebaum to plan

and host the most important bank social event of the year. Would a

reasonable bank official budget $10,000 for her most important marketing event of the year, only to entrust the event's planning and execution to a person who posed a risk of alienating those who would

attend? The answer is obvious and suggests that a reasonable finder

of fact could disbelieve the bank's asserted rationale for terminating

Runnebaum.

From the foregoing, a jury could find that Pettit decided to fire

Runnebaum after she sent him the December 9 note and soon after

she learned that he was HIV-positive. This finding would support

Runnebaum's claim that the bank discriminated against him solely

because he was infected with the AIDS virus.

c.

Brown's reaction upon learning that Runnebaum was infected with

HIV could also lend support for a finding of pretext and discrimination.

_________________________________________________________________

7 The dissent, see post at 36, fails to recognize the importance timing

plays in this case. The dissent says that the December 9 note "is cast in

anticipation of future achievements," "speaks in terms of future hope,"

and "merely . . . hop[es] for a profitable future" for Runnebaum. Id.

(emphasis in original). Pettit claims, however, that she sent the note a

month after she had "resolved conclusively to discharge Runnebaum." Id.

at 25. The dissent fails to explain this glaring inconsistency between Pettit's purported intent and her undisputed conduct. If Pettit had conclusively resolved to fire Runnebaum before she sent the note, what

"profitable future" did she foresee for him? The finder of fact could conclude that Pettit's claim that she resolved to fire Runnebaum before she

learned he was infected with HIV lacks the ring of truth. Thus, the question of Pettit's credibility is squarely in issue and militates against summary judgment. See St. Mary's Honor Ctr., 113 S. Ct. at 2749; Mitchell,

12 F.3d at 1316.

 17
Many disabilities are apparent to a casual observer. An employer

can see a wheelchair, a guide dog, or a hearing aid. Other disabilities,

however, are invisible to the naked eye. Runnebaum's alleged disability, being HIV-positive, falls into the latter category. When a disability is not readily apparent, an employer's reaction upon learning of

the disability can be relevant to a finding of discrimination. Specifically, an employer's immediate reaction often can provide insight into

his motives for later firing a disabled employee. 8

When Brown learned that Runnebaum was HIV-positive, he immediately felt

panic, panic because I was thinking how am I going to

work, you know, and be a friend to somebody who is HIV

positive. I've educated myself a lot since then. But, you

know, suppose he dies on me. Should I tell Ann[Pettit] at

this point, should I tell the bank? I remember feeling panicky, uncontrolled.

(Emphasis supplied.)

The finder of fact could view this statement as evidence that Pettit

learned from Brown that Runnebaum was HIV-positive before she

decided to fire him. This evidence also lends support for a finding that

Runnebaum was not fired because of poor performance, but because

_________________________________________________________________

8 Our analysis of this issue is guided by cases interpreting the Pregnancy Discrimination Act of 1978. See Lempres v. CBS Inc., 916 F.

Supp. 15, 23 n.37 (D.D.C. 1996) (Pregnancy Discrimination Act plaintiff

must meet requirements similar to those imposed on ADA plaintiffs).

Pregnancy is not observable at first. Yet an employer's reaction upon

learning that an employee is pregnant can be relevant in proving that he

later fired her with discriminatory intent. EEOC v. Ackerman, Hood &

McQueen, Inc., 758 F. Supp. 1440, 1453 (W.D. Okla. 1991), aff'd, 956

F.2d 949 (10th Cir.), cert. denied, 113 S. Ct. 60 (1992); accord Metz v.

Merrill Lynch, Pierce, Fenner & Smith, Inc., 39 F.3d 1482, 1485 &

1491-92 (10th Cir. 1994); Thompson v. La Petite Academy, Inc., 838 F.

Supp. 1474, 1477-78 (D. Kan. 1993); cf. McDonnell Douglas, 411 U.S.

at 804 (employer's "reaction, if any" upon learning of plaintiff's civil

rights activities is relevant to show pretext).

 18
supervisors at the bank panicked at the thought of having an AIDS

patient on the payroll.9

d.

Runnebaum has also come forward with comparative evidence in

support of his claim of pretext. "Comparative evidence is that which

shows employees who were not members of the protected class were

treated differently." Reeves v. Thigpen, 879 F. Supp. 1153, 1176

(M.D. Ala. 1995). A plaintiff may use comparative evidence to show

the existence of a genuine issue of material fact on the question of

pretext and thereby defeat a defense summary judgment motion. Id.

at 1175-76; see also Alvarado v. Bd. of Trustees of Montgomery Community College, 928 F.2d 118, 122 (4th Cir. 1991) (affirming judgment, after bench trial, on basis of comparative evidence).

Runnebaum outsold Andersson (who was not regarded as having

a disability) by a factor of 18 ($5 million to $275,000), but Andersson was not fired even though Andersson and Runnebaum were hired

at the same time and were given identical sales goals. Brown testified

that the key goal of salesmen like Runnebaum and Andersson was "to

bring in new business." In addition, another bank employee, David

Kutch, said that Runnebaum, like Andersson, was "there to produce

volume." Finally, the record does not disclose that Andersson spent

large amounts of time (as did Runnebaum) organizing important marketing events at the bank's request. We recognize that Runnebaum

may have had shortcomings, as the bank claims, justifying his firing.

But given the bank's overriding emphasis on sales, a question is

_________________________________________________________________

9 Improperly reading Brown's statement in the light most favorable to

the bank, the dissent claims that it proves Brown's lack of discriminatory

motive toward Runnebaum and that Brown's motive always was to be

Runnebaum's "protector." See post at 39. Yet Brown admitted in his

deposition that there was occasionally bad blood between him and Runnebaum, that sometimes their discussions had been "combative or argumentative," and that Runnebaum believed Brown had a "vendetta"

against him. Because on summary judgment all facts and reasonable

inferences must be construed in the light most favorable to the nonmoving party, the finder of fact must be allowed to determine at trial the

true nature of the relationship between Runnebaum and Brown.

 19
raised when the salesman who was fired brought in 18 times as much

business as the salesman who was not fired. Moreover, as we discussed above, Pettit was much more lenient with Andersson on granting credit for sales calls and on excusing his tardiness in turning in

activity and call reports. A jury could reasonably see these inconsistencies as evidence of pretext and discrimination. 10

III.

The dissent's criticisms largely boil down to a factual attack. And

while the dissent does a good job of arguing that the facts may reasonably be read in the bank's favor, that argument is not enough to

establish the bank's right to summary judgment. Although a factfinder

could reasonably choose to believe the bank, the same factfinder

could also reasonably determine on the basis of the record before us

that the bank's explanation for firing Runnebaum is not worthy of

credence and that discrimination was the true motivation for his termination.

In sum, Runnebaum has forecast evidence of all the elements of a

prima facie case and evidence to support a finding of pretext and discrimination. Runnebaum's ADA claim must survive summary judgment because there is a genuine issue of material fact as to whether

he was fired because he was regarded as having a disability.11 We

reverse and remand for trial.

REVERSED AND REMANDED

_________________________________________________________________

10 The bank currently employs other HIV-infected persons. The bank

may not, however, be granted summary judgment simply because it has

a few employees within the protected class. See O'Connor v. Consolidated Coin Caterers Corp., 116 S. Ct. 1307 (1996); Carson v. Bethlehem

Steel Corp., 82 F.3d 157, 158-59 (7th Cir. 1996).

11 Because the district court granted summary judgment on Runnebaum's ERISA claim for precisely the same reasons summary judgment

was granted on the ADA claim, and because the relevant elements of the

prima facie case are the same, see Conkwright v. Westinghouse Elec.

Corp., 933 F.2d 231, 239 (4th Cir. 1991), Runnebaum's ERISA claim

must survive as well.

 20
WILLIAMS, Circuit Judge, dissenting:

The majority holds that Runnebaum not only succeeded in establishing a prima facie case of discrimination under the ADA and

ERISA, but also demonstrated sufficiently to survive summary judgment, that NationsBank's reasons for discharging him were pretextual. Concluding that the majority's holdings cannot be squared with

the facts of this case or the law of this circuit, I cannot subscribe to

either holding. The undisputed, material facts establish that Runnebaum cannot prove a prima facie case of discrimination. Even assuming that Runnebaum established a prima facie case, I would hold that

NationsBank's articulated reasons for his discharge were not pretextual as a matter of law. Accordingly, I dissent.

I.

I recite the facts that the majority necessarily ignores in order to

reach its conclusions. While the parties do not dispute that Runnebaum, when he so chose, performed well, he failed to perform well

consistently; and just as consistently, he engaged in conduct that justified his termination from employment. Moreover, even stellar performance in some areas cannot overcome an overarching failure to fulfill

professional responsibilities. In my view, the majority loses sight of

these two precepts.

NationsBank hired Runnebaum in May 1991 as an assistant vice

president in the private banking division, and from the inception of

his brief, nineteen-month stint at NationsBank, Runnebaum experienced difficulty in satisfying his professional responsibilities. In a

March 20, 1992, written evaluation of Runnebaum (March Memorandum) -- from which the majority selectively culls sterile numerical

ratings to conclude that Runnebaum's performance was satisfactory,

see ante at 8-9 -- Department Manager Michael Kines, Runnebaum's

first supervisor at NationsBank, detailed Runnebaum's difficulty in

meeting NationsBank's standards. For instance, while Kines stated

that Runnebaum "demonstrated rudimentary . . . credit analysis techniques," performed "a good job on simple . . . credits," and demonstrated "the personal skills and apparent confidence to do well" in

banking, Kines also observed that Runnebaum's "production has been

minimal" and that his "[e]ffectiveness was hampered by communica-

 21
tion problems, but this could have been corrected with extra effort."

(J.A. at 54-55.) Additionally, Kines concluded that Runnebaum was

"heavy-handed" in dealing with his peers, and his unorthodox behavior was unpredictable, causing his colleagues and clients to question

his credibility. (J.A. at 54-55.) Kines's evaluation also noted that Runnebaum failed to familiarize himself with bank procedures and policy

and to see tasks through to completion, finally concluding that "[a]t

this point in [Runnebaum's] career, close monitoring by management

should never be necessary." (J.A. at 55.) Thus, in his first evaluation

by NationsBank, Runnebaum was apprised that his employer was less

than fully satisfied with his performance.

Two months later, on May 18, 1992, Kines again evaluated Runnebaum, reiterating many of his past criticisms. Kines observed that

Runnebaum had progressed regarding his personnel management,

interpersonal skills, and completion of duties, specifically recognizing

that Runnebaum orchestrated a successful marketing plan for a corporate client. Equally, however, Kines reasoned that because Runnebaum maintained so few clients, there was no reason not to handle

their needs meticulously. While acknowledging Runnebaum's successes, Kines also noted his failures. For instance, in the "Negative

events" category, Runnebaum was censured for "[m]anicky behavior

in meetings," "[c]redibility of out-of-office time," two botched loans,

and a complaint lodged against him. (J.A. at 97.) In the category

described as "Jury Still Out" events, Runnebaum's "[d]evelopment of

new business and credible leads" and "[d]ay-to-day productivity"

were questioned. (J.A. at 97.) With respect to Runnebaum's credit

management, Kines expressed dismay over business development and

timeliness in completing duties, noting that "no significant credits

have been presented, either for preliminary discussion or approval,"

"[t]ime is fleeting on meeting personal and unit goals," and "[d]elays

in credits, such as those [concerning the two botched loans] will not

be tolerated." (J.A. at 97-98.) With respect to Runnebaum's interpersonal skills, Kines noted that Runnebaum must check nervous behavior and the tendency to blame others for mishaps. The majority's

mischaracterization of this evaluation as "continued praise" for Runnebaum's performance is simply wrong. See ante at 9. This evaluation

specifically cites five failures, two undecideds, and one positive

aspect of Runnebaum's performance. A fair reading of this evaluation

 22
establishes beyond cavil that Runnebaum's performance was not laudatory.

Runnebaum's professional and personal conduct continued to

decline. Michael Brown, NationsBank's Senior Managing Officer in

Baltimore, and David Kutch, another of Runnebaum's supervisors,

testified that Runnebaum's professional career was plagued by unexplained absenteeism, tardiness, and lengthy lunch periods. Kutch

stated that Runnebaum enjoyed shocking colleagues and clients by

recounting racially and sexually offensive jokes at conference meetings. According to Kutch, Runnebaum's forays into dubious humor

were "disastrous." (J.A. at 79.) For instance, at a meeting, Runnebaum

flippantly speculated about the estate of a client whose mother had

recently died and improperly attempted to goad a potential client into

allowing NationsBank to handle his financial affairs. Also, on soliciting a client, he impersonated the chairman of another bank, and after

executing the charade for a few minutes, identified himself, advising

the client -- in scatological terms -- to let NationsBank handle his

banking needs. Exhibiting a penchant for acting, Runnebaum enjoyed

mimicking persons whose native language was not English, doing so

loudly enough to be heard by NationsBank clients, even if the butt of

the jest was a NationsBank customer. The majority's attempt to write

this conduct off as "jocular" is disingenous at best, particularly when

it attributes to Pettit what is actually Runnebaum's view of her criticism. (J.A. at 91.)

Kines and Kutch were not surprisingly relieved by Runnebaum's

request to transfer to the Trusts/New Business Development Baltimore Division (Trust Department), which was effective July 8, 1992.

A fact ignored by the majority, but of significance to this appeal, is

that in completing the paperwork to effectuate his transfer, Runnebaum unequivocally represented that he was not handicapped, thereby

signifying that he suffered no disability. Furthermore, Runnebaum

never once requested that NationsBank implement accommodations

regarding any disability pursuant to the ADA.

Simultaneous with Runnebaum's transfer to the Trust Department

in Baltimore, NationsBank also hired Clifford Andersson to perform

the same work in its Bethesda, Maryland, office. In connection with

their new positions, Ann Pettit, Runnebaum's supervisor in the Trust

 23
Department, articulated NationsBank's expectations of Runnebaum

and Andersson in a memorandum dated July 14, 1992 (July Memorandum). According to the July Memorandum, Runnebaum and

Andersson were instructed that:

Each of you should arrange with each sales officer to join

them on 3 initial and/or follow-up prospect meetings. (Total

of 18 joint prospect calls each)

Each of you should arrange with each sales officer to join

them on 2 external referral source calls (Total of 12 joint

external referral source calls)

Note: For [these items], these should be the sales officer's

prospects or referral sources in order for you to observe their

interactions, style and sales skills.

You should not go on any prospect or referral source calls

on your own at this time. If you do, you must include either

another sales officer, me or, in [Runnebaum's] case, Mike

Brown. These calls will be in addition to the requirements

listed [above]. At the end of September, we will review to

determine your progress.

(J.A. at 106-07.) (emphasis added). That Runnebaum failed to comply

with the July Memorandum is not disputed. In the memorandum

memorializing Runnebaum's discharge dated January 7, 1993 (January Memorandum), Pettit observed that Runnebaum: (1) completed

only one of the eighteen required joint sales calls; when this number

later was reduced to five, he completed none;1 (2) completed only two

of the twelve required joint external referral source calls; (3) failed to

attend any of the required Baltimore Estate Planning Council functions; (4) failed to submit required call reports, which were necessary

in order for NationsBank to determine whether there was follow-up

with the customer; (5) failed to take suggested training classes or

attend manager's meetings; and (6) failed to comport himself professionally.

_________________________________________________________________

1 Indeed, during his deposition Runnebaum testified that he had not

intended to make these required sales calls.

 24
In addition to failing in his duties, Runnebaum continued to engage

in inappropriate behavior. In two presentations to two separate law

firms whose business NationsBank was courting, Runnebaum presented the 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, and in doing so, implied that the recipient of this

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 this unprofessional conduct. In addition, Pettit found

Runnebaum's joking "inappropriate." (J.A. at 79.) Even Runnebaum

admitted in his own sworn testimony that Pettit counseled him twice

concerning his unprofessional conduct at meetings. The record belies,

therefore, Runnebaum's bald assertions that he was not apprised of

NationsBank's dissatisfaction with his employment performance and

that there was no record of his deficient performance.

Not surprisingly, NationsBank decided to terminate Runnebaum.

Indeed, while counseling Runnebaum on November 3, 1992, concerning his untoward conduct and dereliction in meeting sales goals, Pettit

decided Runnebaum would not be able to complete his assigned activities and should be discharged. Despite Pettit's decision to terminate

Runnebaum, Pettit decided to give him an opportunity to redeem himself. Accordingly, Pettit reduced his sales goals and attempted to

inspire him to satisfy them by writing him a note dated December 9,

1992, stating "I'm thrilled that you're a part of our group. I look forward to seeing you shine." (J.A. at 431.) Lesser goals and inspiration

were for naught. Pettit resolved conclusively to discharge Runnebaum, stating that she reached this decision November 3, 1992.

While many considerations entered the calculus to discharge Runnebaum, 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 illusory

hope that Runnebaum might be able to satisfy them, as well as failed

to perform required duties and exhibit proper decorum. In addition,

Runnebaum wasted inordinate amounts of time planning NationsBank's Christmas party. While undeniably NationsBank asked Runnebaum to plan this affair, equally so, NationsBank did not sanction

 25
the time he squandered on making these plans. By his own admission,

Runnebaum testified in his deposition that "[o]verall, I know I spent

several hours each day dealing with details leading up to that party

from approximately the beginning or to the end of November to the

December 15th date." (J.A. at 92.) (emphasis added). Despite

employing an administrative assistant to handle the trivialities of

planning the Christmas party, Runnebaum abjured his professional

responsibilities to attend to such trifles as

designing the invitations, compiling a guess [sic] list, wrapping host gifts, ordering handmade truffles, preparing the

menu items, preparing the name tags, procuring supplies

needed for the event, procuring a pianist, renting a piano

. . . .

(J.A. at 93.) Notwithstanding that his sales goals were reduced and he

was counseled twice immediately prior to the Christmas party to conduct himself professionally, Runnebaum spent hours each day

immersing himself in this inconsequentia, and he took the opportunity

to introduce his homosexual partner to colleagues and clients at the

Christmas party. Runnebaum also devoted a great deal of time to

advancing his acting career and his own corporation, Wilmarc Productions, while ostensibly working for NationsBank, and wrote

numerous personal letters and invitations on company time and with

company equipment. The majority attempts to characterize NationsBank as condoning this conduct by noting that Kines encouraged

NationsBank employees to attend Runnebaum's performance in

Grapes of Wrath. See ante at 11-12 n.5. There is no evidence, however, that Kines encouraged Runnebaum to advance his acting career

on NationsBank time and utilizing NationsBank equipment. While

Kines may have encouraged Runnebaum's acting pursuits, Kines did

not encourage such conduct at NationsBank's expense.

Pettit catalogued Runnebaum's unacceptable performance and

memorialized her decision to terminate Runnebaum in the January

Memorandum, but failed to record this memorandum in his personnel

file. On January 12, 1993, Runnebaum, Pettit, and Philip Cawley, Personnel Manager for NationsBank, convened to effectuate the termination, and as of that date, Runnebaum ceased to be employed by

NationsBank.

 26
Runnebaum filed suit against NationsBank, bringing two claims.

First, he claimed that he was terminated in violation of the ADA

because he is HIV-positive, contending that this affliction renders him

disabled.2 Second, he alleged that his termination violated ERISA by

preventing him from receiving payments for his AZT treatment. Concluding that Runnebaum failed to establish a prima facie case under

either the ADA or ERISA, and even if he had, he failed to prove

NationsBank's articulated reasons for his discharge were pretextual,

the district court granted NationsBank's motion for summary judgment.

II.

Federal Rule of Civil Procedure 56(c) squarely places on Runnebaum the burden to proffer competent evidence of each element of his

claim following NationsBank's well-supported motion for summary

judgment based on Runnebaum's failure to establish a prima facie

case, and alternatively, his failure to prove NationsBank's articulated

reasons for his discharge were pretextual. The language of Rule 56(c)

is compulsory, mandating that the district court enter judgment

against Runnebaum if, "after adequate time for discovery . . . [he]

fails to make a showing sufficient to establish the existence of an element essential [of his] case, and on which[he] will bear the burden

of proof at trial." See Celotex Corp. v. Catrett, 477 U.S. 317, 322

(1986). Prevailing on its motion for summary judgment, NationsBank

demonstrated to the district court that: (1) there was no genuine issue

with respect to any material fact; and (2) it was entitled to judgment

as a matter of law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248-52 (1986). In determining whether a genuine issue of material

fact has been raised, we must construe all reasonable inferences in

favor of Runnebaum. See id. at 255. Because the onus is on Runnebaum to advance competent evidence establishing each element of his

claim, he "cannot create a genuine issue of material fact through mere

speculation or the building of one inference upon another." Beale v.

Hardy, 769 F.2d 213, 214 (4th Cir. 1985). Expounding on this pre-

_________________________________________________________________

2 Runnebaum's complaint may also be read to allege that he was disabled on account of his homosexuality. As the district court correctly

noted, the ADA specifically excludes homosexuality as a disability. See

42 U.S.C.A. § 12211(a) (West 1995).

 27
cept, Anderson explained that "[t]he mere existence of a scintilla of

evidence in support of [Runnebaum's] position will be insufficient;

there must be evidence on which the jury could reasonably find for

[him]." Anderson, 477 U.S. at 252. Thus, "[m]ere unsupported speculation . . . is not enough to defeat a summary judgment motion." Ennis

v. National Ass'n of Bus. & Educ. Radio, Inc., 53 F.3d 55, 62 (4th Cir.

1995). To defeat NationsBank's motion for summary judgment, therefore, Runnebaum must demonstrate that specific, material facts exist

that give rise to a genuine issue. See Celotex Corp., 477 U.S. at 324.

In my view, the majority has lost sight of these principles in reversing the grant of summary judgment in favor of NationsBank. Rather

than adhere to these precepts, the majority has given credence to Runnebaum's speculative support for his contention that a genuine issue

of material fact existed regarding the reasons for his discharge. Moreover, the majority holds that Runnebaum advanced sufficient evidence that his discharge was pretextual. Because neither of these

holdings can be squared with our jurisprudence regarding summary

judgment or discrimination law, I cannot subscribe to the majority

opinion. I address first Runnebaum's failure to satisfy the elements of

a prima facie case, then his failure to establish that NationsBank's

articulated reasons for his discharge were pretextual.

A.

The ADA provides that "[n]o covered entity shall discriminate

against a qualified individual with a disability because of the disability of such individual." 42 U.S.C.A. § 12112(a) (West 1995). To

establish a prima facie case under the ADA, Runnebaum must prove

that:

(1) [he] was in the protected class; (2) [he] was discharged;

(3) at the time of the discharge, [he] was performing [his]

job at a level that met [NationsBank's] legitimate expectations; and (4) [his] discharge occurred under circumstances

that raise a reasonable inference of unlawful discrimination.

See Ennis, 53 F.3d at 58. The burden of establishing a prima facie

case rests with Runnebaum, and if he failed to establish every element

of his claim, summary judgment was properly granted in favor of

 28
NationsBank. See Tyndall v. National Educ. Ctrs. , 31 F.3d 209, 212

(4th Cir. 1994) (sustaining a grant of summary judgment in favor of

an employer in an ADA claim because the plaintiff could not prove

that she was qualified for her position). If, however, Runnebaum succeeds in establishing a prima facie case, the burden shifts to NationsBank to articulate a legitimate, nondiscriminatory reason for the discharge that supports a finding that unlawful discrimination did not

cause the challenged action. See Ennis, 58 F.3d at 58. Provided

NationsBank satisfies this burden, "the McDonnell Douglas paradigm

of presumption created by establishing a prima facie case `drops from

the case,' and `the factual inquiry proceeds to a new level of specificity,'" Jiminez v. Mary Washington College, 57 F.3d 369, 377 (4th

Cir.) (quoting Texas Dep't of Community Affairs v. Burdine, 450 U.S.

248, 256 n.10, 255 (1981)), cert. denied, 116 S. Ct. 380 (1995), which

requires that Runnebaum shoulder "the ultimate burden of persuading

the court that [he] has been the victim of intentional discrimination,"

Burdine, 450 U.S. at 256. The ultimate issue in this suit is whether

NationsBank intentionally, unlawfully discriminated against Runnebaum because of any alleged disability, and proving this burden rests

with Runnebaum. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502,

516 (1993). Here, the parties do not dispute that Runnebaum was discharged, so I address the remaining three elements of the prima facie

case.

1.

The first element that Runnebaum must satisfy in establishing his

prima facie case is that he was in the protected class, specifically, that

he was "disabled" under the ADA. Pursuant to the ADA, a "disability" is:

(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.

 29
42 U.S.C.A. § 12102(2) (West 1995). Because the ADA qualifies disability by requiring that it impose a "substantial limitation" respecting

a "major life activity," the "impairment must be a significant one," not

a trivial impairment. Byrne v. Board of Educ. , 979 F.2d 560, 564 (7th

Cir. 1992).

According to Runnebaum, he is disabled for purposes of the ADA

because of his HIV-positive status. The majority accepts this assertion, concluding that Runnebaum satisfied this element because he

was regarded as being disabled, even though he was asymptomatic,

and more importantly, affirmatively represented to NationsBank that

he was not handicapped. As support for this holding, the majority

relies on the fact that Brown, who was also homosexual, became

"panicky" and "uncontrolled" on learning that Runnebaum was

seropositive.3 There is no merit to this consideration. Simply put, the

majority has mischaracterized Brown's statement beyond recognition.

Runnebaum revealed his seropositivity exclusively to Brown in their

capacity as friends under the following circumstances:

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 . . . . 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

_________________________________________________________________

3 Seropositive means "serologically positive; showing positive results

on serological examination; showing a high level of antibody."

Dorland's Illustrated Medical Dictionary 1511 (28th ed. 1994).

 30
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 (emphasis added).) Brown, therefore, was not "panicky" and "uncontrolled" as a result of his regarding Runnebaum as

disabled, but was disheartened on learning that his friend was HIVpositive. Properly considered in context, Brown acted anything but

"panicky" and "uncontrolled," as his testimony demonstrates, but

which the majority ignores. Far from being aloof or panicked as a

result of Runnebaum's seropositivity, Brown was solicitous of Runnebaum and sympathetic to his needs, styling himself as Runnebaum's "protector,"4 as indeed he was because shortly thereafter,

Brown arranged for Runnebaum to receive AZT through NationsBank's insurer; this is not the conduct of a "panicky," "uncontrolled"

man. Indeed, the fact that Runnebaum chose to confide his seropositivity solely to Brown on personal time demonstrates that Runnebaum

considered Brown a confidant, and one does not entrust to a confidant

information adverse to one's interests. Even accepting the majority's

mischaracterization, that Brown felt "panicky" or "uncontrolled" at

the time Runnebaum confided in him is simply insufficient under

Celotex and Ennis to create a genuine issue of material fact: here,

there is no proof that the "panicky," "uncontrolled" feeling meant that

Brown regarded Runnebaum as "disabled," much less disabled as a

result of his seropositivity.

More important, there is no indication that Pettit, the relevant decisionmaker regarding Runnebaum's termination, regarded Runnebaum

as being disabled. Although Pettit knew that Runnebaum was HIV-

_________________________________________________________________

4 The dissent posits that Brown's styling himself as Runnebaum's "protector" implies that Runnebaum needed protection from NationsBank's

alleged discrimination. See ante at 7 n.3. On the contrary, properly read

in context, Brown's desire to protect Runnebaum is wholly personal and

springs from the desire to console a friend. Also, Brown's use of the term

"protection," in no way can be construed as attributing to NationsBank

invidious discrimination because of Runnebaum's alleged disability.

 31
positive when she discharged him, she did not possess this knowledge

when she decided to fire him on November 3, 1992. Pettit's testimony

on this point was corroborated by Brown, who stated that he did not

disclose his knowledge of Runnebaum's seropositivity until after Pettit informed Brown that she planned to discharge Runnebaum. See

Ennis, 53 F.3d at 60 (discussing evidence to support claim that "relevant decisionmakers" knew of an employee's disability). Accordingly, I would conclude that Runnebaum failed to show that he was

regarded as having a disability.5

2.

Next, in my view even the most cursory review of the undisputed,

material facts proves beyond cavil that Runnebaum failed to establish

the third element of the prima facie case, that he was meeting

NationsBank's legitimate expectations at the time of his discharge.

NationsBank does not dispute the fact that Runnebaum enjoyed qualified success, and the record amply supports this conclusion. The rankle, however, arises from the fact that Runnebaum's performance

degenerated over his term of employment, and despite his occasional

successes, he consistently failed to perform required duties and to

amend his unseemly conduct.

The record is replete with indications that Runnebaum did not meet

NationsBank's legitimate expectations for his employment. First,

Runnebaum failed to satisfy his employment duties as set forth in the

July Memorandum. Specifically, Runnebaum completed only one of

eighteen required joint sales calls and only two of twelve required

_________________________________________________________________

5 Runnebaum does not appear to assert that he satisfies the first element

of the prima facie case by virtue of suffering an actual physical or mental

impairment as a result of his seropositivity, nor could he credibly do so.

The parties do not dispute that Runnebaum has been asymptomatic since

1988 and suffers no affliction arising from his seropositivity. In fact,

Runnebaum's own physician, Dr. Michael Pistole, testified that Runnebaum "had no ill effects from the disease or the medications." (J.A. at

154-55.) Comporting with Dr. Pistole's testimony, Runnebaum has consistently maintained that he endures no impairment that substantially limits a major life activity, thereby proving that he is not disabled under the

first prong of the ADA's definition of a disability.

 32
joint external referral source calls. Runnebaum also failed to submit

required reports, to attend certain functions, and to take training

classes or attend manager's meetings. Runnebaum's utter failure to

attend to his assigned duties -- which, significantly, Runnebaum does

not contend were unreasonable -- conclusively establishes that he

was not meeting NationsBank's expectations for his performance. See

Ennis, 53 F.3d at 61-62 (concluding that an ADA plaintiff could not

prove that she satisfied her employer's legitimate expectations in part

because her work was substandard); Ang v. Procter & Gamble Co.,

932 F.2d 540, 548-49 (6th Cir. 1991) (ruling that failure to perform

reasonable tasks at an employer's demand constitutes not satisfying

legitimate employment expectations); Kephart v. Institute of Gas

Tech., 630 F.2d 1217, 1223 (7th Cir. 1980) (per curiam) (holding that

if an employee is not doing as he is told to do, then he is not performing his job), cert. denied, 450 U.S. 959 (1981).

Second, during his tenure at NationsBank Runnebaum engaged in

a pattern of unprofessional behavior. For example, Runnebaum was

frequently tardy or altogether absent without explanation, and bought

a pager to use instead of curbing his absenteeism. When he was in the

office, he devoted large portions of his time to personal matters and

to the minutiae of NationsBank's Christmas party-- the latter consisting of tasks more properly delegated to his administrative assistant. See Ennis, 53 F.3d at 61-62 (holding that tardiness, disruptive

conduct, errors in work, and devoting work hours to personal matters

indicate a failure to satisfy an employer's legitimate expectations);

Ang, 932 F.2d at 549 (holding that devoting work hours to personal

pursuits and tardiness comprise failure to meet an employer's legitimate expectations). Moreover, Runnebaum's conduct frequently

veered from the merely unprofessional to the grossly inappropriate

and offensive. Runnebaum's penchant for racial and sexual slurs and

his improper conduct at business meetings and toward NationsBank

clients certainly cannot be considered to fall within the scope of

NationsBank's legitimate expectations for his employment.

The majority largely ignores these facts, choosing instead to focus

on Kines's March Memorandum and the notes from Brown and Pettit.

Neither Kines's March Memorandum, nor Brown's nor Pettit's notes

can defeat NationsBank's motion for summary judgment. Even disregarding Kines's negative comments in the March Memorandum and

 33
focusing exclusively on Runnebaum's accomplishments as does the

majority, this evaluation is not dispositive for purposes of a January

12, 1993 termination because it is too temporally remote. See Ennis,

53 F.3d at 61 (noting that an ADA plaintiff initially achieved a

"good" performance rating in 1990, but at the time of her termination

in 1992, her counsel conceded that her performance was lacking);

Anderson v. Stauffer Chem., 965 F.2d 397, 401 (7th Cir. 1992) (holding that a 1984 evaluation, even if given in December 1984, and a

merit-based pay raise implemented at the start of 1985 were not relevant to a discharge on May 1, 1985, because the situation had

changed significantly in the intervening months). Runnebaum steadily

declined in performance, and this decline was duly noted, since inception, by NationsBank supervisors. See Ennis, 53 F.3d at 61 (noting the

importance of tracking an employee's deteriorating performance in

determining evaluation at time of discharge). Here, the majority relies

too heavily on an evaluation that predated the challenged action by

nearly nine and one-half months, while ignoring Runnebaum's progressively deteriorating performance. In light of this deterioration, the

March Memorandum is temporally too tenuous to reflect Runnebaum's performance at the time of termination.

Not only is the March Memorandum not dispositive of pretext, but

the majority does not even consider the document in its entirety. As

I explained earlier, see ante at 22, this evaluation concluded that Runnebaum failed to familiarize himself with NationsBank policy and

procedure, fulfill marketing goals, and work consistently well with

others. The majority focuses on the numerical ratings to the exclusion

of these negative written comments, dropping the latter from its summary judgment calculation.

Yet another flaw in focusing on the March Memorandum is the fact

that the majority disregards the more pertinent , subsequent evaluations that prove conclusively that Runnebaum was not satisfying

NationsBank's legitimate employment expectations. For instance, a

scant two months later, Kines reevaluated Runnebaum on May 18,

1992, and while observing that Runnebaum did well in many respects,

noted that he continued to exhibit poor performance. Most notably,

Runnebaum bungled two loans, failed to present significant credits,

delayed unreasonably in completing work, behaved unprofessionally,

and blamed others for his own mistakes. Two more months demon-

 34
strated that Runnebaum failed to improve his professional goals, as

memorialized in the July Memorandum. The downward spiral continued, for on the heels of the July Memorandum came Pettit's counseling Runnebaum twice about his professional failures and coarse

conduct. Planning the Christmas party likewise vividly depicted Runnebaum's inability to concentrate on substantive matters and to comport himself with decorum. Considered against this bulwark of

progressively deteriorating evaluations, the March Memorandum

becomes makeweight to say the least.

The notes from Brown and Pettit are also of no moment. The handwritten note from Brown dated October 29, 1992, provided in

entirety:

Just a note of thanks and congratulations for your efforts

in arranging our social with McGuire Woods.

Please see me about attending a staff meeting.

Thanks--Mike

(J.A. at 432.) Unlike the majority, I can assign no value to this note

because it does not address Runnebaum's employment performance,

but merely thanks him for planning a party. See Aungst v. Westinghouse Elec. Corp., 937 F.2d 1216, 1223 (7th Cir. 1991) (explaining

that an employer's letter of recommendation did not prove discrimination because it failed to respond to the precise reason for the plaintiff's termination). Indeed, this note is arguably read as telling

Runnebaum that he must attend staff meetings. Even if this note could

be transmuted into an employment evaluation, it has no probative

value because it fails to address Runnebaum's specific duties, such as

sales goals and marketing strategies and professional conduct. Succinctly put, Brown's note simply provides no insight into this case,

let alone defeats NationsBank's motion for summary judgment.

On December 9, 1992, Pettit wrote a note to Runnebaum stating in

its entirety:

William --

I'm thrilled that you're a part of our group. I look forward

to seeing you shine.

Ann

 35
(J.A. at 431.) This note is of even lesser probative value than the note

from Brown. First, this note does not express satisfaction with Runnebaum's performance, but is cast in anticipation of future achievements. Unlike Brown's note, therefore, this note does not even

express thanks for performing some duty. Second, this note is simply

not an evaluation, nor does it have the force and effect of an evaluation, but is merely an isolated statement hoping for a profitable future.

As such, it lacks probative value because it does not address the reasons for Runnebaum's termination. In my view, this note is insufficient to demonstrate any form of discrimination.

In sum, analyzed separately or collectively, the March Memorandum and the two notes are insufficient to show that Runnebaum's performance met NationsBank's legitimate expectations. At most, the

March Memorandum demonstrates that Runnebaum displayed positive and negative performance, while the Brown note expresses

thanks for a tangential matter, and the Pettit note speaks in terms of

future hope. I therefore conclude that Runnebaum has not established

the third element of the prima facie case.

3.

The fourth element that Runnebaum must satisfy to establish a

prima facie case is that his termination transpired under circumstances

that raise a reasonable inference of unlawful discrimination. For many

of the same reasons that Runnebaum failed to establish the first and

third elements, I conclude that he fails to establish the fourth element.

Runnebaum was discharged for incompetent performance, lack of

performance, and gauche conduct. The undisputed facts establish

these reasons for his discharge, and Runnebaum attempts to ascribe

discrimination to NationsBank's conduct. Given his short employment tenure at NationsBank, the troubles he encountered from the

start, his deficient performance, and appalling conduct, no rational

trier of fact could conclude that his termination raised a reasonable

inference of unlawful discrimination. See Ennis , 53 F.3d at 62 (holding that because evidence of plaintiff's deficient performance was so

pervasive, no rational trier of fact could conclude that her discharge

occurred under circumstances giving rise to an inference of discrimination).

 36
B.

Even assuming that Runnebaum established a prima facie case of

discrimination under the ADA, I conclude that NationsBank articulated legitimate, nondiscriminatory reasons for his discharge, and

Runnebaum failed to prove that those reasons were pretextual. The

district court therefore properly granted summary judgment in favor

of NationsBank. See Hicks, 113 S. Ct. at 2572. NationsBank terminated Runnebaum for failure to fulfill his sales goals and for failure

to amend his unprofessional conduct. As the majority recognizes, see

ante at 12, these are legitimate, nondiscriminatory reasons to discharge Runnebaum. See Brewer v. Quaker State Oil Refining Corp.,

72 F.3d 326, 330 (3d Cir. 1995); Nitschke v. McDonnell Douglas

Corp., 68 F.3d 249, 250-52 (8th Cir. 1995); Ray v. Tandem Computers, Inc., 63 F.3d 429, 433 (5th Cir. 1995). The majority concludes,

however, that Runnebaum proffered sufficient evidence to prove that

NationsBank's rationale for terminating him was pretextual. In support of this conclusion, the majority implicitly recognizes the weakness of its argument by stating that no single fact proves

Runnebaum's case, but relies on the combination of three considerations to bolster its holding: (1) the timing of Runnebaum's discharge;

(2) Brown's reaction on learning of Runnebaum's seropositivity; and

(3) a comparison of Runnebaum's and Andersson's sales goals.

Again, none of these considerations, singly or collectively, evinces

pretext.

1.

First, the majority opines that the timing of Runnebaum's discharge

"raises a sufficient question of pretext," ante at 15. According to the

majority, this inference is raised because Runnebaum was given additional responsibilities early in his tenure, a NationsBank employee

opened his AZT, and Pettit wrote the December 9, 1992 note, but then

surprisingly, Runnebaum was discharged when Pettit learned that he

was HIV-positive. Concluding that these events create a disputed

issue regarding Pettit's motivation in terminating Runnebaum, the

majority reverses the district court's grant of summary judgment in

favor of NationsBank.

I am unpersuaded by this conclusion. I agree that the timing of the

discharge is important, but here, the majority focuses heavily on the

 37
March Memorandum, failing to consider Runnebaum's deficient performance from March until he was discharged. See Ennis, 53 F.3d at

61 (noting that plaintiff's initial good performances were not material

because her performance consistently eroded to the point of being

unsatisfactory). Since inception, NationsBank observed Runnebaum's

deficient performance and saw it deteriorate, culminating in the January 7, 1993 memorandum memorializing the reasons for his termination. Runnebaum had a consistent history of deteriorating performance, and in view of this, the majority is incorrect in stating that

NationsBank's attitude changed "so suddenly." There was nothing

"sudden" about NationsBank's action; it was gradual and culminated

in Runnebaum's termination. Regarding Pettit's knowledge of Runnebaum's seropositivity and her December 9, 1992 note, I have

explained why these instances are immaterial to this appeal. Accordingly, the timing and circumstances surrounding the discharge demonstrate no pretext.

2.

Second, the majority concludes that Brown's reaction on learning

of Runnebaum's seropositive status "could also lend support for a

finding of pretext and discrimination," ante at 17 (emphasis added).

There are several flaws in relying on this reaction to prove pretext.

Initially, that a conclusion could be true is insufficient for purposes

of overcoming a properly supported motion for summary judgment

because we have consistently eschewed building inferences in order

to defeat summary judgment. See, e.g., Harleysville Mut. Ins. v.

Packer, 60 F.3d 1116, 1120 (4th Cir. 1995); Ennis, 53 F.3d at 62;

Birkbeck v. Marvel Lighting Corp., 30 F.3d 507, 511-12 (4th Cir.),

cert. denied, 115 S. Ct. 666 (1994); Beale , 752 F.2d at 214. This contention is further foreclosed because NationsBank employs individuals who are HIV-positive (assuming this is a disability) and has taken

pains to accommodate those employees who need accommodations.

Additionally, as demonstrated, consideration of the entirety of

Brown's testimony establishes that his reaction was not pejorative.

Brown never implied that Runnebaum should be terminated based on

his HIV-positive status; indeed, the record belies anything but benign

motivations respecting Brown: He considered himself Runnebaum's

"protector," was the sole recipient of Runnebaum's revelation, helped

Runnebaum procure AZT, advised Runnebaum to amend his conduct,

 38
and informed Pettit of Runnebaum's seropositivity upon learning of

her decision to execute the discharge. Also, no one else at NationsBank knew that Runnebaum was HIV-positive. Even disregarding

these insurmountable hurdles, I am not persuaded that pregnancy

cases are germane for comparing asymptomatic seropositivity to the

AIDS virus -- apparently, neither is the majority because it fails to

supply reasoning or authority for applying the Pregnancy Discrimination Act of 1978 to ADA claims.

3.

Third, the majority relies on ostensibly comparative evidence to

conclude that Runnebaum produced sufficient evidence for a jury to

conclude that NationsBank's articulated reasons for terminating Runnebaum are pretextual. To support this conclusion, the majority

opines that because "Runnebaum outsold Andersson . . . but Andersson was not fired," ante at 19, an inference of pretext can be drawn

because Andersson was not disabled and remained employed, despite

his seemingly inferior sales performance. The pitfalls of divining any

valid inferences from a comparison between Runnebaum and Andersson are manifold. As an initial matter, Runnebaum was not terminated

exclusively because he failed to meet sales goals; he was also terminated for absenteeism, tardiness, and improper conduct, and there is

no evidence that Andersson exhibited similar shortcomings. Comparing Andersson and Runnebaum, therefore, is improper. See Hutson v.

McDonnell Douglas Corp., 63 F.3d 771, 777 (8th Cir. 1995) (holding

that to prove racial discrimination based on comparisons of other

employees, the compared employees must be similarly situated in all

relevant respects); Smith v. Stratus Computers , 40 F.3d 11, 17 (1st

Cir. 1994) (stating in a disparate treatment case that the colleagues to

whom the plaintiff compares herself must be similar to the plaintiff

in every material respect and because the plaintiff could not demonstrate the same flaws in her comparators, she could not prove pretext),

cert. denied, 115 S. Ct. 1958 (1995); Mitchell v. Toledo Hosp., 964

F.2d 577, 583 (6th Cir. 1992) (holding that before employees can be

viewed as comparable for purposes of invidious discrimination, they

must have the same standards, same supervisors, and engage in the

same conduct). Thus, Runnebaum's reliance on a comparison of his

own sales performance to Andersson's cannot prove pretext because

it fails to respond to NationsBank's contention that Runnebaum was

 39
fired for reasons other than just his sales performance. See Nitschke,

68 F.3d at 252 (stating that statistical evidence demonstrating age discrimination was immaterial for purposes of proving pretext because

the employer's articulated reason for the discharge was that plaintiff

was less competent than other employees); Anderson, 965 F.2d at 403

(explaining that unless a discrimination plaintiff challenges specific

reasons for his discharge, he cannot prove pretext and holding that

ability to meet deadlines and produce written work does not vitiate

the fact that plaintiff was discharged for failure to relate well to subordinates and follow superiors' suggestions for improvement and thus

affirming a grant of summary judgment). In addition, Andersson

worked in Washington, D.C., while Runnebaum worked in Baltimore,

and there is no evidence that these two markets are similar. Cf.

Hazelwood Sch. Dist. v. United States, 433 U.S. 299, 308 (1977)

(holding that the proper comparison for a claim of racial discrimination in teaching positions must be between the school's actual teaching staff and the racial composition of qualified public school teachers

in the relevant market). Therefore, even assuming Runnebaum could

establish a prima facie case, I would hold that NationsBank articulated legitimate, lawful reasons for his discharge that Runnebaum

cannot prove were pretextual.

III.

In Conkwright v. Westinghouse Electric Corp., 933 F.2d 231, 239

(4th Cir. 1991), we concluded that to prevail on a§ 510 ERISA claim,

a plaintiff may resort to the proof scheme articulated by McDonnell

Douglas. As goes Runnebaum's ADA claim, so goes his ERISA

claim. For the same reasons, Runnebaum cannot establish a prima

facie case under the ADA, he cannot establish a prima facie case

under § 510, nor, were the inquiry to proceed so far, can he prove pretext. Accordingly, I would affirm the grant of summary judgment in

favor of NationsBank on Runnebaum's § 510 ERISA claim.

IV.

I conclude that the district court properly granted summary judgment in favor of NationsBank and thus would affirm. My colleagues,

however, despite the wake of contrary authority, have concluded that

Runnebaum established a prima facie case of discrimination and fore-

 40
cast sufficient evidence to prove pretext. The evidence supports neither position. This case implicates broad ramifications respecting

procedural principles, substantive discrimination law, and the force of

precedent, and in my opinion, represents a sharp departure from

established precepts in all of these respects. Because the majority

opinion cannot be reconciled or harmonized with the undisputed,

material facts or the established law, I dissent.

 41