           United States Court of Appeals, Eleventh Circuit.

                                  No. 95-6312.

                   Sue PRITCHARD, Plaintiff-Appellant,

                                       v.

    The SOUTHERN COMPANY SERVICES, Don Welliver, Jeff Prince,
Defendants-Appellees.

                               Aug. 28, 1996.

Appeal from the United States District Court for the Northern
District of Alabama. (No. CV 94-N-475-S), Edwin L. Nelson, Judge.

Before CARNES, Circuit Judge, and FAY and GIBSON *, Senior Circuit
Judges.

     FAY, Senior Circuit Judge:

     Sue    Pritchard,    an   employee     of    Southern     Company    Services

("SCSI") brought suit against the company and two company officials

under the Americans with Disabilities Act ("ADA"), 42 U.S.C. §

12101, et seq., Section 504 of the Rehabilitation Act of 1973, 29

U.S.C. § 794, and Title VII of the Civil Rights Act of 1964, 42

U.S.C. § 2000e, et seq.             The District Court granted summary

judgment for the defendants on all counts.              Pritchard appealed the

court's    order   of   summary    judgment      in   regard   to   the   company.

Because we find genuine issues of material fact, we reverse the

District Court's order of summary judgment for the claims under the

ADA and the Rehabilitation Act.             We affirm as to the Title VII

claim.

                                  I. BACKGROUND

     Sue Pritchard was hired as an electrical engineer by SCSI in

1986, working mostly on nuclear facilities.              In July 1990 she was

     *
      Honorable John R. Gibson, Senior U.S. Circuit Judge for the
Eighth Circuit, sitting by designation.
diagnosed as having depression. This depression was exacerbated by

the stress involved with her work on nuclear projects.                           She

requested    and   received   a   transfer     to    the    Quality         Assurance

Department, but this work also involved nuclear energy and her

depression grew worse.      In early 1992 she tendered her resignation

to her immediate supervisor, but he refused to accept it. Instead,

Pritchard was placed on paid disability leave through November of

1992, and then on unpaid disability leave.

     Pritchard's        doctors   treated     her     for        depression      and

dysautonomia during this period.           Her symptoms included profound

fatigue,     suicidal    thoughts,      difficulty    sleeping,            difficulty

communicating,       difficulty    concentrating,          and        an    irregular

heartbeat.     She was placed on medication, and by January of 1993

her doctor stated she could return to work, but not in the nuclear

field.     Working on nuclear projects exacerbated her stress and

therefore her symptoms.       However, SCSI did not transfer her.                The

company contends that all its engineers must have the flexibility

to perform nuclear-related work, and that it would have been her

responsibility to apply for any non-engineering job.                   She contends

that certain engineering jobs require little or no nuclear work,

and that she was told she would be considered for non-engineering

jobs.1    She was terminated on June 18, 1993.

     Pritchard brought suit in early 1994.                 The District Court

granted    summary    judgment    for   the   defendants         on    all    claims.

Pritchard appealed the order of summary judgment for SCSI.


     1
      We recognize that this is a controversy that will have to
be resolved by the factfinder.
                            II. STANDARD OF REVIEW

           Summary judgment is proper 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 Corporation v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548,

2552, 91 L.Ed.2d 265 (1986).           The evidence must be viewed in the

light most favorable to the non-moving party.                  Augusta Iron and

Steel Works, Inc. v. Employers Insurance of Wausau, 835 F.2d 855,

856 (11th Cir.1988).        We review any conclusions of law            de novo.

U.S. v. Thomas, 62 F.3d 1332, 1336 (11th Cir.1995), cert. denied,

--- U.S. ----, 116 S.Ct. 1058, 134 L.Ed.2d 202 (1996).

                                  III. ANALYSIS

                  A. The Americans with Disabilities Act

           In order to establish a prima facie case under the Americans

with       Disabilities   Act   of   1990,   42   U.S.C.   §   12101,   et   seq.,

Pritchard must show that:            1) she has a disability, 2) she is a

qualified individual, and 3) she was discriminated against because

of the disability.        See 42 U.S.C. § 12132.       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.

42 U.S.C. § 12102(2).           Depression has been held to constitute a

mental impairment.         See, e.g., Doe v. Region 134 Mental Health-
Mental Retardation Commission, 704 F.2d 1402, 1408 (5th Cir.1983).2

       2
      Doe involved the Rehabilitation Act of 1973, 29 U.S.C. §
701 et seq., but Congress intended for courts to rely on
However, in order to constitute a disability under the ADA, the

impairment (as suffered by the plaintiff in this particular case)3
must substantially limit a major life activity.

       Pritchard claims that her depression substantially limited her

ability to function, sleep, concentrate, and communicate.                        The

District Court reasoned, however, that in order for Pritchard to

have been discriminated against because of her disability, she had

to have been disabled when she was terminated, not at some point in

the past.         The court found that Pritchard was terminated in June of

1993       and    that    she   presented   no     evidence   that   her   depression

affected any major life activity after December of 1992.                         Her

doctors stated that she was unable to work in any capacity up to

December of 1992, but SCSI did not terminate her during that

period.          She was put on disability leave.

       By January of 1993 Pritchard was able to work in a non-nuclear

position.           The    court   found    that    her   condition   had   improved

substantially by then.             Her doctor stated that she would be able to

perform up to her normal level of excellence in any non-nuclear

job.        Pritchard contends that she was qualified to work as an

Electrical Designer (Substation), as a Senior Designer for SCSI

Fossil/Hydro, as an Integrated Resource Planning Analyst, and as a

Telecommunications Engineer.                The job descriptions for each of



Rehabilitation Act cases when interpreting similar language in
the ADA. 29 C.F.R. § 1630.2(g) and (m) (App.).
       3
      "The determination of whether an individual has a
disability is not necessarily based on the name or diagnosis of
the impairment the person has, but rather on the effect of that
impairment on the life of the individual." 29 C.F.R. § 1630.2(j)
(App.).
these positions specifically demanded the ability to concentrate

and/or communicate effectively.      The court ruled that:

     if the plaintiff was, as she has asserted, qualified for
     numerous positions, all which required the plaintiff to
     possess the ability to effectively communicate ... and
     concentrate, it does not follow that the plaintiff was
     simultaneously substantially limited in those same areas.
     Likewise, the plaintiff has presented no evidence that her
     ability to sleep or "function" was substantially limited at
     the time she was terminated.

(footnotes omitted).     Pritchard did present evidence suggesting

problems sleeping and functioning prior to December 1992, but

according to the court:

     such sleep pattern problems as well as a substantial
     limitation on the ability to "function" would not be
     consistent with the plaintiff's assertions, and those of her
     doctors, that she was capable of regular employment in any
     capacity other than one involving nuclear work.

       The    court   concluded   that   Pritchard's   evidence   as   to

impairment at the time of her termination only showed that she

could not work in the nuclear field. Pritchard contended that even

this alone would be sufficient to impair a major life activity:

working.     In order for a condition to substantially limit the

ability to work, it must "significantly restrict[ ] ... the ability

to perform either a class of jobs or a broad range of jobs in

various classes as compared to the average person having comparable

training, skills and abilities."     29 C.F.R. § 1630.2(j)(3)(I).

     An impairment does not substantially limit the ability to work

merely because it prevents a person from performing "either a

particular specialized job or a narrow range of jobs."       29 C.F.R.

§ 1630.2(j)(3) (App.).       Nor does the "inability to perform a

single, particular job ... constitute a substantial limitation in

the major life activity of working."      29 C.F.R. § 1630.2(j)(3)(I).
The District Court ruled:

       It is undisputed that the plaintiff's condition precludes her
       from working as an engineer in the nuclear field. However, by
       [her] own admissions, she is qualified and capable of working
       as an engineer in the non-nuclear field, as well as in
       numerous other jobs that exist at SCSI and elsewhere.
       Accordingly, [her] impairment does not substantially limit the
       major life activity of working.

       The District Court recognized that depression is a "serious

and potentially tragic" illness, but also found that it exists in

degrees.      In this case, according to the court, the illness

prevents a trained electrical engineer from working in the nuclear

field.    The District Court held that such an impairment does not by

itself constitute a disability under the ADA.

         We   agree    with    the   court's    legal    conclusion:      such    an

impairment, by itself, does not constitute a disability under the

ADA.     However, we find that there is a genuine issue of material

fact as to whether Pritchard suffered other symptoms when she was

terminated and as to whether those symptoms substantially limited

a major life activity.

       Pritchard      stated   in    an   affidavit     that   she   suffers   from

depression and dysautonomia, that she continues to have such

conditions, and that they substantially limited her ability to

function at the time of her termination.                  Her symptoms included

profound fatigue, difficulty sleeping and communicating, difficulty

concentrating,        and   experiencing       suicidal    thoughts.      In     her

deposition in June of 1994, Pritchard stated that she was still

taking medication for her conditions.

       Dr. Samuel Saxon stated in an affidavit that Pritchard's

symptoms included marked fatigue, lack of energy, lack of interest,
poor concentration, memory problems, suicidal thoughts, depressed

affect, and irritability.   Work in the nuclear field exacerbated

her stress and thus her symptoms.   In his opinion, Pritchard was

able to return to work outside the nuclear field in January of

1993, but she was still experiencing physical and mental symptoms.

     It is true that these statements may be read to conflict with

Pritchard's contention that she was able to return to work in

January of 1993.   However, taking the evidence in the light most

favorable to Pritchard, it is possible that both are true:       she

still suffered from these symptoms and they limited major life

activities, but she was able to control them sufficiently with the

help of medication to perform at work in the non-nuclear field. 4

We think this evidence presents a case for a jury to determine

whether she suffered from those symptoms when she was terminated,

and whether those symptoms substantially limited a major life

activity.

     Moreover, the ADA defines disability 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.

42 U.S.C. § 12102(2).    Pritchard was placed on paid disability

leave through November of 1992, and then on unpaid disability

leave.   This constitutes evidence that Pritchard had a record of

being impaired and that SCSI regarded her as being impaired.


     4
      We think the evidence in the record could be read to
conclude that Pritchard is unable to work in the nuclear field
even with the help of medication.
Again, this evidence creates genuine issues of material fact as to

whether Pritchard was disabled under the ADA.

       Of course, in order to prevail, Pritchard must not only show

that she has a disability, but also that she was discriminated
                                     5
against because of her disability        and that she was a qualified

individual.      See 42 U.S.C. § 12132.    The District Court did not

rule on these elements in its summary judgment order.    We leave the

issues open on remand.

                    B. The Rehabilitation Act of 1974

           "The standards used to determine whether this section has

been violated ... shall be the standards applied under title I of

the Americans with Disabilities Act of 1990 ..."         29 U.S.C. §

794(d).      Thus if Pritchard may be found to be disabled under the

ADA, then she may be found to be disabled under the Rehabilitation

Act.

       The District Court did not decide whether SCSI is governed by

the Rehabilitation Act as a recipient of federal assistance.

Because we find a genuine issue of material fact as to whether

Pritchard was disabled, we must vacate the judgment on her claim

under the Rehabilitation Act.      However, we do not decide whether

SCSI is a recipient of federal assistance, and we leave that issue

open on remand.

                              C. Title VII

           For purposes of the Title VII claim, the District Court

assumed that Pritchard had established a prima facie case, but then

       5
      The failure to provide reasonable accommodations, including
a transfer to a vacant position, constitutes discrimination under
the ADA. 42 U.S.C. § 12112.
held that SCSI "satisfied its burden of production by articulating

a legitimate nondiscriminatory reason for discharge and presenting

evidence in support thereof."          SCSI presented evidence that:               all

engineers within the Engineering Organization must possess the

flexibility to accept nuclear related projects;                     engineers are

subject to transfer according to the needs of the company;                         male

and   female       employees    who   have   refused       transfers      have    been

terminated.        In response, Pritchard's evidence must be sufficient

to    allow    a    reasonable     factfinder   to     conclude      that        SCSI's

non-discriminatory reason for discharge is not believable.                          See

Howard v. BP Oil Co., 32 F.3d 520, 526 (11th Cir.1994).

      Pritchard's      deposition     testimony      was    the    only     evidence

Pritchard presented that conflicted with the nondiscriminatory

reason for discharge.          Specifically, she stated that:          1) she had

heard of a male employee named Loren Secrist who was transferred to

a non-nuclear position;          2) she did not know for certain why he was

transferred but she thought it was related to the stress of nuclear

work;   3) she thought he was an engineer, but she was not certain;

4) all of her information about Mr. Secrist came from conversations

with co-workers;       and 5) she could not recall the names of any of

the co-workers who had provided this information.

      SCSI presented an affidavit from the Manager of Employee

Relations and Safety, Carl Watts.            He stated that:        1) it was his

understanding that SCSI employment policies required Engineering

Organization employees to be able to work on nuclear projects;                       2)

in his experience, these policies were followed;                  3) his review of

SCSI personnel records revealed no instance in which an engineer
had been permanently assigned to a position that did not require

the flexibility to work on nuclear projects; 4) numerous engineers

had been required to either accept nuclear work or be terminated;

and 5) Loren Secrist performed nuclear related duties immediately

prior to his termination, and he was never transferred to a

non-nuclear position in order to accommodate any disability.

         Ms. Pritchard's statements in her deposition constitute

inadmissable hearsay.     It is true that inadmissable hearsay may

sometimes be considered by a court when ruling on a summary

judgment motion. See Church of Scientology Flag Service Org., Inc.

v. City of Clearwater, 2 F.3d 1514, 1530 (11th Cir.1993), cert.

denied, --- U.S. ----, 115 S.Ct. 54, 130 L.Ed.2d 13 (1994);

Offshore Aviation v. Transcon Lines, Inc., 831 F.2d 1013, 1015 & n.

1 (11th Cir.1987).      However, Pritchard cannot use inadmissable

hearsay to defeat summary judgment when that hearsay will not be

reducible to admissible form at trial.      See McMillian v. Johnson,

88 F.3d 1573 (11th Cir.1996).    There is nothing to indicate that

Pritchard's statements (which were based on the statements of

unknown co-workers) will lead to admissible evidence.         On the

contrary, her statements were refuted by SCSI's evidence (the

affidavit of Carl Watts) which can be reduced to admissible form at

trial (the testimony of Carl Watts).   Thus Pritchard presented no

evidence that can be reduced to admissible form at trial and which

conflicts with SCSI's nondiscriminatory reason for discharge.6
                           IV. CONCLUSION

     6
      Pritchard's Title VII claim was based upon allegations of
gender discrimination. This has nothing to do with whether SCSI
could accommodate her disability if in fact she establishes one.
     We conclude that the District Court erred when it granted SCSI

summary judgment under the ADA and the Rehabilitation Act.      We

affirm the summary judgment as to the Title VII claim.

     AFFIRMED in part; REVERSED in part; and REMANDED for further

proceedings.
