                                          Filed:   September 11, 1997


                    UNITED STATES COURT OF APPEALS

                        FOR THE FOURTH CIRCUIT



                              No. 94-2200
                            (CA-93-3830-S)



William Runnebaum,

                                              Plaintiff - Appellant,

           versus

NationsBank of Maryland, N.A.,

                                                 Defendant - Appellee.




                              O R D E R


    The Court amends its opinion filed August 15, 1997, as

follows:
    On the cover sheet, section 6, lines 1-2 -- the sentence is

changed to begin "Judge Williams wrote the opinion . . . ."

    On page 31, first full paragraph, line 6 -- "ante at 12" is

corrected to read "ante at 11."

    On page 33, first full paragraph, line 15 -- "Ante at 11" is

corrected to read "Ante at 12."

    On page 33, second full paragraph, line 2 -- "Ante at 12" is

corrected to read "Ante at 11."
                               - 2 -




    On page 39, first full paragraph, line 6 -- "ante at 14-15" is

corrected to read "ante at 15."
    On page 44, second full paragraph, line 10 -- "Ante at 19-20"

is corrected to read "Ante at 20."

    On page 44, footnote 10, line 2 -- "ante at 13-14" is cor-

rected to read "ante at 13."

                                       For the Court - By Direction



                                          /s/ Patricia S. Connor

                                                   Clerk
PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

WILLIAM RUNNEBAUM,
Plaintiff-Appellant,

v.

NATIONSBANK OF MARYLAND, N.A.,
Defendant-Appellee.
                                                              No. 94-2200
WHITMAN-WALKER CLINICAL LEGAL
SERVICES DEPARTMENT; EQUAL
EMPLOYMENT OPPORTUNITY
COMMISSION,
Amici Curiae.

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 5, 1997

Decided: August 15, 1997

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

_________________________________________________________________

Affirmed by published opinion. Judge Williams wrote the
opinion, in which Chief Judge Wilkinson and Judges Widener, Wil-
kins, Niemeyer, and Luttig joined. Judge Hamilton wrote an opinion
concurring in the judgment. Judge Michael wrote a dissenting opin-
ion, in which Judges Hall, Murnaghan, Ervin, and Motz joined.

_________________________________________________________________
COUNSEL

ARGUED: Gerard Patrick Martin, MARTIN, JUNGHANS, SNY-
DER & BERNSTEIN, P.A., Baltimore, Maryland, for Appellant. Eva
Susan Tashian-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. Daniel
Bruner, Senior Litigation Counsel, Elizabeth A. Seaton, Associate
Legal Services Director, Laura M. Flegel, Legal Services Director,
WHITMAN-WALKER CLINIC, INC., Washington, D.C., for
Amicus Curiae Whitman-Walker. C. Gregory Stewart, General Coun-
sel, J. Ray Terry, Jr., Deputy Attorney General, Gwendolyn Young
Reams, Associate General Counsel, Carolyn L. Wheeler, Assistant
General Counsel, Paul Bogas, EQUAL EMPLOYMENT OPPORTU-
NITY COMMISSION, Washington, D.C., for Amicus Curiae EEOC.

_________________________________________________________________

OPINION

WILLIAMS, Circuit Judge:

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

                    2
of discrimination based on disability. Accordingly, we affirm the dis-
trict court's grant of summary judgment for NationsBank.1

I. FACTS

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

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

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

1 In addition to the briefing we received from the parties, we accepted
amicus curiae briefs from the Equal Employment Opportunity Commis-
sion and the Whitman-Walker Clinic, Incorporated. We thank Amici for
their participation.

                    3
In addition to failing in his professional duties, Runnebaum contin-
ued to engage in inappropriate behavior. In presentations to two law
firms whose business NationsBank was courting, Runnebaum pres-
ented trust and estate information in a condescending manner to attor-
neys who were skilled in that area of the law. Additionally,
Runnebaum provided to one law firm a trust and estate manual pre-
pared by another law firm. In doing so, he implied that the recipient
of the manual would not otherwise comprehend trust and estate law.
At yet another meeting with a major client, NationsBank officers
were "committed that [Runnebaum] not be there, because they were
afraid of what he might say or do." (J.A. at 549.) Brown cautioned
Runnebaum regarding his unprofessional conduct. In addition, Pettit
felt that Runnebaum's joking was "inappropriate." In fact, Runne-
baum admitted in his own sworn testimony that Pettit counseled him
twice concerning his unprofessional conduct at meetings.

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

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

                    4
        on me. Should I tell [Pettit] at this point, should I tell
        [NationsBank]? I remember feeling panicky, uncontrolled.

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

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

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

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

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

Runnebaum's inability to meet reduced sales goals and his frequent
failure to conduct himself professionally confirmed Pettit's decision

                    5
to discharge him. In a memorandum dated January 7, 1993 (January
Memorandum), Pettit observed that Runnebaum failed to comply with
the July Memorandum and to comport himself professionally. While
many considerations entered the calculus to discharge Runnebaum,2
Pettit focused on the fact that he had failed to meet his sales goals,
despite the fact that his goals had been reduced in the hope that he
might be able to satisfy them, as well as failed to perform required
duties and exhibit proper decorum.

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

Runnebaum promptly filed an administrative claim with the Equal
Employment Opportunity Commission and received a right-to-sue let-
ter. He then filed suit against NationsBank in the United States Dis-
trict Court for the District of Maryland, bringing two claims. First, he
claimed that NationsBank terminated him in violation of the ADA
because he is HIV-positive, a condition that he contends renders him
disabled.3 Second, he claimed that his termination violated ERISA by
_________________________________________________________________

2 Runnebaum also devoted a great deal of time to advancing his acting
career and his own corporation, Wilmarc Productions, while ostensibly
working for NationsBank. He also wrote numerous personal letters and
invitations on company time and with company equipment.

3 Runnebaum's complaint may also be read to allege that he is disabled
because of his homosexuality. As the district court correctly noted, and
as Runnebaum conceded at oral argument, the ADA specifically
excludes homosexuality as a disability. See 42 U.S.C.A. § 12211(a)
(West 1995).

                    6
preventing him from receiving payments for his AZT treatment. After
discovery, NationsBank moved for summary judgment. On August
17, 1994, the district court, applying the McDonnell Douglas analyti-
cal framework, granted the bank's motion on the ground that Runne-
baum failed to establish a prima facie case of discrimination under the
ADA. Alternatively, the court held that Runnebaum failed to present
evidence, sufficient to create a triable issue, that the legitimate, non-
discriminatory reason that NationsBank proffered to explain Runne-
baum's discharge was a pretext for discrimination. The court also
granted summary judgment for NationsBank on Runnebaum's ERISA
claim, stating that it decided the ERISA issue "under the same analyt-
ical framework as [the] ADA claim." (J.A. at 572.) Runnebaum now
appeals.

II. THE ADA CLAIM

We review a district court's grant of summary judgment de novo.
See Higgins v. E.I. Dupont de Nemours & Co., 863 F.2d 1162, 1167
(4th Cir. 1988). Summary judgment is proper only if no material facts
are in dispute. See Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477
U.S. 317, 322-23 (1986). The compulsory language of Federal Rule
of Civil Procedure 56(c) "mandates the entry of summary judgment,
after adequate time for discovery and upon motion, against a party
who fails to make a showing sufficient to establish the existence of
an element essential to that party's case, and on which that party will
bear the burden of proof at trial." Celotex, 477 U.S. at 322. Following
NationsBank's motion for summary judgment, Runnebaum bore the
burden of producing competent evidence on each element of his
claim. See id. at 324. The district court, in granting NationsBank's
motion for summary judgment, determined that Runnebaum failed to
present evidence sufficient to create a genuine issue with respect to
any material fact, and that NationsBank was entitled to judgment as
a matter of law.

In determining whether a genuine issue of material fact is in dis-
pute, "[t]he evidence of the non-movant is to be believed, and all jus-
tifiable inferences are to be drawn in his favor." Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986). Runnebaum, however, "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

                    7
213, 214 (4th Cir. 1985) (citing Barwick v. Celotex Corp., 736 F.2d
946, 963 (4th Cir. 1984)). Indeed, "[t]he mere existence of a scintilla
of evidence in support of the plaintiff's position will be insufficient;
there must be evidence on which the jury could reasonably find for
the plaintiff." 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).

A. McDonnell Douglas Framework

The McDonnell Douglas scheme of proof applies to ADA claims
like Runnebaum's, "where the defendant disavows any reliance on
discriminatory reasons for its adverse employment action." Ennis, 53
F.3d at 57-58; see generally St. Mary's Honor Ctr. v. Hicks, 509 U.S.
502 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S.
248 (1981); McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). The McDonnell Douglas proof scheme involves a three-step
process. First, the plaintiff must establish a prima facie case of dis-
crimination by a preponderance of the evidence. By establishing a
prima facie case, the plaintiff creates a rebuttable "presumption that
the employer unlawfully discriminated against" him, and the burden
of producing evidence on the issue shifts to the employer. Burdine,
450 U.S. at 254. The employer then must "rebut the presumption of
discrimination by producing evidence that the plaintiff was [termi-
nated] . . . for a legitimate, nondiscriminatory reason." Id. at 254. The
employer "`must clearly set forth, through the introduction of admis-
sible evidence,' reasons for its action which, if believed by the trier
of fact, would support a finding that unlawful discrimination was not
the cause of the employment action." St. Mary's Honor Ctr., 509 U.S.
at 507 (quoting Burdine, 450 U.S. at 254-55 & n.8). Finally, if the
employer meets its burden of production, the presumption raised by
the prima facie case is rebutted and "drops from the case," Burdine,
450 U.S. at 255 n.10, and the plaintiff bears the ultimate burden of
proving that he has been the victim of intentional discrimination, see
St. Mary's Honor Ctr., 509 U.S. at 506-11 (holding that a prima facie
case plus disbelief of employer's asserted justification for employ-
ment action is not necessarily sufficient to establish a violation and
that, in such cases, summary judgment is appropriate unless the plain-

                    8
tiff presents adequate evidence that the employer unlawfully discrimi-
nated).

B. The Prima Facie Case

To establish a prima facie case of discrimination in a discharge
case under the ADA, a plaintiff must prove by a preponderance of the
evidence that (1) he was a member of the protected class; (2) he was
discharged; (3) at the time of the discharge, he was performing his job
at a level that met his employer's legitimate expectations; and (4) his
discharge occurred under circumstances that raise a reasonable infer-
ence of unlawful discrimination. See Ennis, 53 F.3d at 58. Evidence
that a plaintiff presents in attempting to establish a prima facie case
"must be such that, if the trier of fact finds it credible, and the
employer remains silent, the plaintiff would be entitled to judgment
as a matter of law." Id. at 59 (citing Burdine, 450 U.S. at 254). It is
undisputed that NationsBank discharged Runnebaum. We therefore
consider whether Runnebaum established the remaining three ele-
ments of a prima facie case of discrimination.

1. Member of the Protected Class

The first element that Runnebaum must satisfy in establishing a
prima facie case is that he was a member of the protected class. Run-
nebaum claims that he is protected by the ADA as "a qualified indi-
vidual with a disability," 42 U.S.C.A. § 12112(a) (West 1995),
because he is HIV-positive. NationsBank contends that Runnebaum,
who was asymptomatic at all times relevant to this case, failed to
establish that asymptomatic HIV infection is a disability under the
statute.4 The Equal Employment Opportunity Commission (EEOC)
_________________________________________________________________

4 The district court assumed, "for the purposes of the [summary judg-
ment] motion, that even an asymptomatic HIV infection may be a dis-
ability within the [A]ct." (J.A. at 570.) The dissent contends that
"NationsBank conceded Runnebaum's disability in district court," post at
31, and therefore waived its right to argue on appeal that Runnebaum is
not disabled under the ADA. The dissent also contends that "Runnebaum
has had no opportunity to present facts about disability," post at 31, and
that Runnebaum "had no hint that he should have been developing or
making a summary judgment record on disability," post at 33. Runne-
baum, however, knew that he bore the burden of developing a summary

                    9
and the Whitman-Walker Clinic, Inc., appearing as amicus curiae,
contend that asymptomatic HIV infection is a disability per se under
the statute.
_________________________________________________________________

judgment record in support of his contention that he was a member of the
protected class. In paragraph 24 of his Complaint, Runnebaum alleged
that he was "a qualified individual and a person with a disability as
defined under the [ADA] due to his HIV-positive status." (J.A. at 6.) In
its Answer, NationsBank did not concede this allegation: "NationsBank
is without knowledge or information sufficient to form a belief as to the
truthfulness of the allegations in paragraph 24, but states that plaintiff did
not perform competently the essential functions of the position which he
held at the time of this termination." (J.A. at 15.) Thus, Runnebaum
knew (or should have known) that NationsBank was not conceding that
he was a member of the protected class and that he therefore needed to
develop facts establishing that he was a member of the protected class,
i.e., that he had a statutory disability. Hence, addressing the "protected
class" prong of the prima facie case in no way prejudices Runnebaum as
the dissent contends.

Furthermore, Runnebaum had ample opportunity to present facts about
his alleged disability. NationsBank filed its Answer in this case on
December 8, 1993, after which a lengthy discovery period ensued.
Indeed, NationsBank did not file its motion for summary judgment until
June 27, 1994, over six months later. The discovery materials forming
the record in this case are voluminous, and include numerous documents
concerning Runnebaum's firing and, importantly, lengthy depositions of
Runnebaum and Dr. Michael Pistole, Runnebaum's own medical expert.
As discussed more extensively below, the facts developed by Runne-
baum over the course of this lengthy discovery period unequivocally
show that he was not impaired during the relevant time period. Any addi-
tional evidence developed by Runnebaum showing that he actually suf-
fered diminishing effects from his HIV infection would necessarily
contradict his own sworn testimony and the sworn testimony of his doc-
tor. Cf. Rohrbough v. Wyeth Labs., Inc., 916 F.2d 970, 975-76 (4th Cir.
1990) (disregarding affidavit of witness that contradicted witness's own
prior sworn deposition testimony); Barwick v. Celotex Corp., 736 F.2d
946, 960 (4th Cir. 1984) (same). With respect to perceived disability, the
record could not be developed further: Pettit, the relevant decisionmaker
with respect to Runnebaum, was deposed; numerous other bank employ-
ees were deposed; and the documents pertaining to Runnebaum's firing
were discovered. There simply are no more facts to be developed, and
Runnebaum makes no argument that there are.

In addition, NationsBank has never conceded that Runnebaum's HIV
infection constitutes a disability under the ADA. In its Memorandum in

                     10
The ADA describes three subsets of disability, any one of which
is sufficient to trigger the statute's protections. The ADA states:
_________________________________________________________________

Support of Summary Judgment and its Reply Memorandum in Support
of Summary Judgment, NationsBank assumed that Runnebaum was a
member of the class protected by the ADA because of his HIV infection.
Viewing the summary judgment record as a whole, however, reveals that
NationsBank's statements in this regard have more to do with summary
judgment strategy than with an express concession of a necessary ele-
ment on which Runnebaum bore the burden of production. In its Memo-
randum in Support of Summary Judgment (the same document in which
the dissent contends NationsBank conceded that Runnebaum is a mem-
ber of the protected class), NationsBank stated:

        At no time during plaintiff's employment by NationsBank did
        [Runnebaum] request an accommodation pursuant to the Ameri-
        cans with Disabilities Act. At no time during his employment
        with NationsBank did [Runnebaum] request a job change for dis-
        ability reasons. To the contrary, he stated he was not disabled.
        Moreover, since 1988 [Runnebaum] has been asymptomatic with
        respect to his HIV-positive condition. In fact,[Runnebaum's]
        own medical expert, Dr. Michael Pistole, stated that[Runne-
        baum] is in better health today with respect to the HIV virus than
        when he first sought treatment in 1988.

(J.A. at 42-43 (citations to summary judgment exhibits omitted).) As the
Memorandum itself reveals, NationsBank did not concede that Runne-
baum's HIV infection constitutes a statutory disability.

In any event, we are not bound by either NationsBank's summary
judgment strategy or the district court's assumption that asymptomatic
HIV infection is a disability. See Shafer v. Preston Mem'l Hosp., 107
F.3d 274, 275 n.1 (4th Cir. 1997) ("We have consistently recognized that
we may affirm a district court's decision on different grounds than those
employed by the district court."); Jackson v. Kimel, 992 F.2d 1318, 1322
(4th Cir. 1993) (same). Indeed, "[t]he matter of what questions may be
taken up and resolved for the first time on appeal is one left primarily to
the discretion of the courts of appeals, to be exercised on the facts of
individual cases." Singleton v. Wulff, 428 U.S. 106, 121 (1976). On the
facts of this case, it is evident that given additional opportunity, Runne-
baum could not develop the record further on the issue of whether he
actually has, or was perceived as having, an impairment that substantially
limits one or more of the major life activities. Whether asymptomatic
HIV infection is a disability under the statute is primarily a question of
law, the facts pertaining to this issue are sufficiently developed, and the
issue was briefed and argued on appeal. Accordingly, we consider
whether Runnebaum's HIV infection constitutes a disability under the
statute.
                       11
        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 indi-
        vidual;

         (B) a record of such an impairment; or

         (C) being regarded as having such an impairment.

42 U.S.C.A. § 12102(2) (West 1995). In Ennis, 53 F.3d at 55, we
stated that "[t]he term `disability' is specifically defined, for each of
subparts (A), (B), and (C), `with respect to[the] individual,'" 53 F.3d
at 59 (second alteration in original), and held that the statute's "indi-
vidualized focus" contemplates a case-by-case determination of
whether a given impairment substantially limits one or more of the
major life activities of the individual, see id. We reaffirm our holding
in Ennis; accordingly, a finding that Runnebaum has a disability
under this provision must be made on an individualized basis.5 See id.
at 59-60 (collecting cases holding that a finding of disability must be
made on a case-by-case basis); see also Homeyer v. Stanley Tulchin
Assocs., Inc., 91 F.3d 959, 962 (7th Cir. 1996) (holding that "a deter-
mination of disability must be made on an individualized, case-by-
case basis"); Katz v. City Metal Co., 87 F.3d 26, 32 (1st Cir. 1996)
(same). Neither Runnebaum nor Amici claim that Runnebaum was
fired based on a record of disability, see 42 U.S.C.A. § 12102(2)(B),
so we focus on the first and third statutory definitions.

The dissent complains at length -- despite our careful adherence
_________________________________________________________________

5 Although a finding of disability under the statute must be made on a
case-by-case basis, see Ennis v. National Ass'n of Bus. & Educ. Radio,
Inc., 53 F.3d 55, 59 (4th Cir. 1995), we recognize that some conditions
will always constitute impairments that substantially limit the major life
activities of the afflicted individual. For instance, blindness and deafness
are physical conditions that always substantially limit the major life
activities of blind and deaf individuals. In such cases, an individualized
determination of whether the condition is an impairment that substan-
tially limits one or more of the major life activities is unnecessary.

                    12
to the statutory language and the particular facts of this case -- that
our holding today effects an amendment § 12102(2) of the ADA. See
post at 48. The dissent, however, is hard pressed to find fault with our
interpretation of the statutory language. With respect to our analysis
of the first statutory definition, the "actual disability" prong of the
statute, the dissent "accept[s] the dictionary definitions of `impair'
and `impairment' adopted by the majority," post at 37; admits that
"[t]he question of whether procreation and intimate sexual relations
are `major life activities' under the ADA is . . . `not free from doubt,'"
post at 44 (quoting Abbott v. Bragdon, 107 F.3d 934, 939 (1st Cir.
1997)); acknowledges that the administrative regulations it relies on
are "less decisive," post at 45; and concedes that our holding that
asymptomatic HIV itself does not substantially limit procreation or
intimate sexual relations has "intuitive plausibility," post at 45. With
respect to our analysis of the second statutory definition, the "per-
ceived disability" prong, the dissent correctly recognizes that "[t]here
is not a great deal of direct evidence that the bank regarded Runne-
baum as disabled," post at 49; and confesses, as it must, that "`the
mere fact that an employer is aware of an employee's impairment is
insufficient to demonstrate either that the employer regarded the
employee as disabled or that that perception caused the adverse
employment action,'" post at 53 (quoting Kelly v. Drexel Univ., 94
F.3d 102, 109 (3rd Cir. 1996)). After making these numerous and
important concessions regarding our interpretive analysis, the dissent
is left to discuss isolated passages in the legislative history and
obscure references in the administrative regulations as support of its
position that asymptomatic HIV infection is an impairment that sub-
stantially limits one of the major life activities contemplated by the
ADA. As we discuss below, neither the legislative history nor the
administrative regulations persuade us that Runnebaum's HIV infec-
tion constitutes a statutory disability.

The dissent also complains that we employ "a dizzying flurry of
alternate holdings" in concluding that Runnebaum's asymptomatic
HIV infection does not constitute a statutory disability. See post at 48.
We certainly do. Runnebaum's inability to prevail on many grounds
(indeed on any ground), however, in no way "betray[s] an uncer-
tainty" on our part as the dissent suggests, see post at 48, but instead
only reinforces our conclusion that Runnebaum's HIV infection is not
an impairment that substantially limits one of the major life activities.

                     13
Finally, the dissent states: "I believe the majority means to create a
per se rule excluding those with asymptomatic HIV from the protec-
tions of the ADA." Post at 31; see also post at 48 ("The majority's
opinion must be taken for what it is: a per se rule that excludes those
with asymptomatic HIV from the protections of the ADA."). The dis-
sent would, perhaps, have us hold that asymptomatic HIV infection
is per se not a disability under the statute. As we discuss below, how-
ever, we decline to go so far.

a. Section 12102(2)(A) -- Actual Disability

Subsection (A) defines "disability" to be "a physical or mental
impairment that substantially limits one or more of the major life
activities" of the individual in question. Because the impairment must
impose a "substantial limitation" on "one or more of the major life
activities," the impairment must be significant, not merely trivial. See
Byrne v. Board of Educ., 979 F.2d 560, 564 (7th Cir. 1992); see also
Forrisi v. Bowen, 794 F.2d 931, 933-34 (4th Cir. 1986) (concluding
in Rehabilitation Act case that "[t]he statutory language, requiring a
substantial limitation of a major life activity, emphasizes that the
impairment must be a significant one"). To qualify as having a dis-
ability under subsection (A), Runnebaum must prove two things: first,
that asymptomatic HIV infection is a "physical or mental impair-
ment"; and second, that asymptomatic HIV infection, if an impair-
ment, "substantially limits one or more of the major life activities" of
Runnebaum. See Heilweil v. Mount Sinai Hosp., 32 F.3d 718, 722
(2nd Cir. 1994); see also Abbott, 107 F.3d at 939; Andrews v. Ohio,
104 F.3d 803, 808 (6th Cir. 1997).

i. Impairment

First, Runnebaum must prove that asymptomatic HIV infection is
a "physical or mental impairment." 42 U.S.C.A. § 12102(2)(A). The
Supreme Court has yet to decide this issue. See School Bd. of Nassau
County v. Arline, 480 U.S. 273, 282 n.7 (1987) (declining to decide
in Rehabilitation Act case whether an asymptomatic HIV-infected
person "could be considered to have a physical impairment").
Whether asymptomatic HIV infection is an impairment under the
ADA is first and foremost a question of statutory interpretation.
"When confronted with a question of statutory interpretation, our

                    14
inquiry begins with an examination of the language used in the stat-
ute." Faircloth v. Lundy Packing Co., 91 F.3d 648, 653 (4th Cir.
1996), cert. denied, 117 S. Ct. 738 (1997). In cases where "the statu-
tory language is plain and admits of no more than one meaning, the
duty of interpretation does not arise, and . . . the sole function of the
courts is to enforce [the statute] according to its terms." United States
v. Murphy, 35 F.3d 143, 145 (4th Cir. 1994) (quotations omitted). In
addition, "[w]hen a word is not defined by statute, we normally con-
strue it in accord with its ordinary or natural meaning." Smith v.
United States, 508 U.S. 223, 228 (1993).

Here, the term "impairment" is not defined in the statute. Webster's
defines "impair" as to "make worse by or as if by diminishing in some
material respect." Webster's Ninth New Collegiate Dictionary 603
(1986); see also Black's Law Dictionary 677 (5th ed. 1981) ("To
weaken, to make worse, to lessen in power, diminish, or relax, or oth-
erwise affect in an injurious manner."). "Impairment" is defined as a
"decrease in strength, value, amount, or quality." Webster's II New
Riverside University Dictionary 612 (1988); see also Webster's Third
New International Dictionary 1131 (1986) (defining impairment as
"deterioration" or "lessening"). Under these definitions, asymptomatic
HIV infection is simply not an impairment: without symptoms, there
are no diminishing effects on the individual. "[T]he term `impair-
ment,' as it is used in the Act, cannot be divorced from its dictionary
and common sense connotation of a diminution in quality, value,
excellence or strength." de la Torres v. Bolger, 781 F.2d 1134, 1138
(5th Cir. 1986) (quotation omitted). Many conditions, including HIV
infection, are asymptomatic in their initial stages and remain so for
an extended period of time. See Chalk v. United States Dist. Court,
840 F.2d 701, 706 (9th Cir. 1988) ("Individuals who become infected
with HIV may remain without symptoms for an extended period of
time."); Cain v. Hyatt, 734 F. Supp. 671, 679 (E.D. Pa. 1990) ("There
is a time lapse, often of several years, between exposure to HIV and
the onset of symptoms."). Extending the coverage of the ADA to
asymptomatic conditions like Runnebaum's, where no diminishing
effects are exhibited, would run counter to Congress's intention as
expressed in the plain statutory language.6
_________________________________________________________________

6 The dissent concedes that the statutory term "impairment" requires
diminishing effects on the individual, but then contends that asymptom-

                    15
Amici contend, despite the plain meaning of "impairment," that
asymptomatic HIV infection is always a physical impairment. This
proposition has some decisional support. See Abbott, 107 F.3d at 939
(concluding that asymptomatic HIV infection is an impairment under
the ADA); Gates v. Rowland, 39 F.3d 1439, 1446 (9th Cir. 1994)
(same). Specifically, Amici argue that the legislative history of the
ADA establishes that Congress intended that asymptomatic HIV
infection be considered an impairment. The Committee Reports cited
by Amici, each employing identical language, state that the term
"mental or physical impairments" includes

        such conditions, diseases and infections as: orthopedic,
        visual, speech, and hearing impairments, cerebral palsy, epi-
        lepsy, muscular dystrophy, multiple sclerosis, infection with
        the Human Immunodeficiency Virus, cancer, heart disease,
        diabetes, mental retardation, emotional illness, specific
        learning disabilities, drug addiction, and alcoholism.

H.R. Rep. No. 101-485(II), at 51, reprinted in 1990 U.S.C.C.A.N.
303, 333; accord H.R. Rep. No. 101-485(III), at 28, reprinted in 1990
U.S.C.C.A.N. 445, 451; S. Rep. No. 101-116, at 22, reprinted in
_________________________________________________________________

atic HIV infection produces such diminishing effects. See post at 37-40.
As support for this contention, the dissent cites and quotes popular and
scientific literature stating that HIV and the body's immune system
engage in "mortal combat," that HIV "attacks" the body's immune sys-
tem, and that the body's immune system "counterattack[s]" the virus.
Post at 37-38. Battlefield allusions aside, we are not convinced that "di-
minishing effects" can be analyzed at so low a level of generality. See
Smith v. United States, 508 U.S. 223, 228 (1993) (statutory language
must be construed in accordance with its ordinary or natural meaning).
Advancements in genetic research, for example, have given doctors and
scientists the increasing ability to identify seemingly healthy individuals
who will develop various serious diseases. What these doctors and scien-
tists have discovered is that serious diseases -- like ovarian and breast
cancer, Alzheimer's, and Muscular Dystrophy -- lurk in the genes, and
perhaps the futures, of millions of apparently healthy people. Under the
dissent's logic, such otherwise healthy individuals would be impaired for
purposes of the ADA. See post at 39 (asserting that "the body is impaired
as soon as the disease enters it"). The term "impairment," however, does
not extend so far.

                    16
Arnold & Porter Legislative History of P.L. 101-336 (1994),
available in WESTLAW, Americans with Disabilities Act of 1990-
Legislative History (ADA-LH) database. As we have stated, however,
the statutory meaning of "impairment" is plain and unambiguous.
Accordingly, we have no reason to resort to the legislative history to
ascertain Congress's intent. See Garcia v. United States, 469 U.S. 70,
75 (1984); Murphy, 35 F.3d at 145.

Moreover, the isolated references to HIV infection in the Commit-
tee Reports do not distinguish between symptomatic and asymptom-
atic conditions as the plain meaning of "impairment" requires. As a
result, the Committee Reports, by their own terms, do not answer
whether asymptomatic HIV infection is an impairment under the stat-
ute. We decline to conclude, based on the above-cited isolated state-
ments in the legislative history, that Congress intended for the term
"impairment" to include conditions that do not cause diminishing
effects on the individual. Accordingly, we reject Amici's argument
that the legislative history broadens the plain statutory language. See
Puerto Rico Dep't of Consumer Affairs v. Isla Petroleum Corp., 485
U.S. 495, 501 (1988) (stating that "unenacted approvals, beliefs, and
desires are not laws"); cf. Pittston Coal Group v. Sebben, 488 U.S.
105, 115 (1988) (rejecting argument that legislative history at issue
limited general statutory language).7
_________________________________________________________________

7 Like Amici, the dissent relies heavily on what it characterizes as the
"wealth of legislative history," post at 31, supporting its proposition that
asymptomatic HIV infection is an impairment that substantially limits
one of the major life activities contemplated by the ADA. Specifically,
in addition to citing the Committee Reports (which we find unhelpful),
the dissent cites and quotes floor statements made by Senator Kennedy,
and Representatives McDermott, Owens, and Waxman. See post at 41.
The dissent refers to these floor statements to demonstrate what it
describes as "the breadth of the congressional presumption that individu-
als with HIV would be covered." Post at 41. Even if we believed that the
collective intent of a 535-member body is ascertainable by reference to
legislative history (which we doubt), we find it unfathomable that the
statements of one Senator and three Congressmen could serve as the
expression of that collective intent. We choose instead to adhere to "the
strong presumption that Congress expresses its intent through the lan-
guage it chooses." INS v. Cardoza-Fonseca, 480 U.S. 421, 432 n.12
(1987).

                    17
The plain meaning of "impairment" suggests that asymptomatic
HIV infection will never qualify as an impairment: by definition,
asymptomatic HIV infection exhibits no diminishing effects on the
individual. Nevertheless, the ADA's "of such individual" language
requires that courts determine on an individualized, case-by-case
basis whether an individual's asymptomatic HIV infection is a statu-
tory disability. See Ennis, 53 F.3d at 59-60. In Ennis, for example, we
considered whether a child's asymptomatic HIV infection constituted
a "disability" under the statute. We stated:

        There is no evidence in the record before us that[the child]
        is impaired, to any degree, or that he currently endures any
        limitation, much less a substantial limitation, on any major
        life activity. His mother has candidly admitted that her son
        suffers no ailments or conditions that affect the manner in
        which he lives on a daily basis.

Id. at 60. Here, we could say much the same about Runnebaum. Run-
nebaum produced no evidence showing that he was impaired, to any
degree, during the relevant time period. Runnebaum does not assert
that he suffers an actual physical or mental impairment because of his
HIV infection, nor could he credibly do so. He has been asymptom-
atic since being diagnosed in 1988 and, during the relevant time, suf-
fered no diminishing effects from his HIV infection.

In completing the paperwork to effectuate his transfer from private
banking to the trust department, Runnebaum unequivocally repre-
sented that he was not handicapped, signifying his own belief that he
suffered no disability. Furthermore, he never once requested that
NationsBank implement accommodations regarding any disability
pursuant to the ADA. 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 (emphasis added).) Com-
porting with Dr. Pistole's testimony, Runnebaum has consistently
maintained that he endures no impairment. In light of the plain statu-
tory language and the facts of this case, we hold that Runnebaum's
HIV infection, because it is asymptomatic, is not a "physical or men-
tal impairment" under § 12102(2)(A) of the ADA. Accordingly, Run-
nebaum's asymptomatic HIV infection is not a disability under the
statute.

                    18
ii. Substantial Limitation on the Major Life Activities

Second, even if asymptomatic HIV infection were an impairment,
Runnebaum must prove that asymptomatic HIV infection substan-
tially limits one or more of the major life activities. See 42 U.S.C.A.
§ 12102(2)(A). The term "major life activity" is not defined in the
statute. See Kelly, 94 F.3d at 105 (citing Bolton v. Scrivner, Inc., 36
F.3d 939, 942 (10th Cir. 1994)). We therefore must construe it in
accordance with its ordinary or natural meaning. See Smith v. United
States, 508 U.S. 223, 228 (1993).

Webster's defines "major" as "[d]emanding great attention or con-
cern," Webster's II New Riverside University Dictionary 718 (1988);
and, as "greater in dignity, rank, importance, or interest," Webster's
Third New International Dictionary 1363 (1986). These definitions
suggest that an activity qualifies under the statutory definition as one
of the major life activities contemplated by the ADA if it is relatively
more significant or important than other life activities. Conversely,
the definitions suggest that a life activity that is relatively less signifi-
cant than other life activities does not qualify as one of the ADA's
major life activities, and therefore does not trigger the statute's defini-
tion of disability, regardless of the magnitude of the limitation caused
by the given impairment.

Although a determination of disability under the statute calls for an
individualized inquiry into whether the plaintiff is disabled, see Ennis,
53 F.3d at 59-60, the statutory language -- with its reference to "the
major life activities" -- implies that a corresponding case-by-case
inquiry into the connection between the plaintiff and the major life
activity is not necessary. For example, working is one of the major
life activities of the ADA, see Williams v. Channel Master Satellite
Sys., Inc., 101 F.3d 346, 349 (4th Cir. 1996), cert. denied, 117 S. Ct.
1844 (1997), even though working may not be of particular "signifi-
cance" or "importance" to a given plaintiff. Thus, courts need only
consider whether the impairment at issue substantially limits the
plaintiff's ability to perform one of the major life activities contem-
plated by the ADA, not whether the particular activity that is substan-
tially limited is important to him. Cf. Abbott, 107 F.3d at 941
(suggesting that whether a particular activity is one of the major life
activities under the statute is not a subjective inquiry).

                     19
Amici cite procreation and intimate sexual relations as the major
life activities that are substantially limited by Runnebaum's asymp-
tomatic HIV infection. They do not explain why the activity of engag-
ing in intimate sexual relations is one of the major life activities
contemplated by the statute, but contend that "procreation is properly
viewed as a `major life activity,' since it is`one of the most funda-
mental of human activities.'" (EEOC Br. at 17 (quotation omitted);
accord Whitman-Walker Br. at 19-20.) We agree that procreation is
a fundamental human activity, but are not certain that it is one of the
major life activities contemplated by the ADA.8 Compare Krauel v.
Iowa Methodist Med. Ctr., 95 F.3d 674, 677 (8th Cir. 1996) (holding
that procreation is not one of the major life activities under the ADA);
Zatarain v. WDSU-Television, Inc., 79 F.3d 1143 (5th Cir. 1996)
(unpublished), aff'g 881 F. Supp. 240, 243 (E.D. La. 1995) (same),
with Abbott, 107 F.3d at 941 (concluding that although "the question
is very close," procreation is a major life activity); McWright v.
Alexander, 982 F.2d 222, 226-27 (7th Cir. 1992) (assuming without
deciding that reproduction is one of the major life activities under the
Rehabilitation Act). Furthermore, we are not convinced that engaging
in intimate sexual relations falls within the statutory rubric of the
major life activities.

Assuming, however, that procreation and intimate sexual relations
are major life activities protected by the ADA, Runnebaum must still
prove that asymptomatic HIV infection substantially limits his ability
to procreate or engage in intimate sexual relations. See 42 U.S.C.A.
§ 12102(2)(A). Amici contend that Runnebaum's HIV infection,
"even if asymptomatic, substantially limits . . . procreation and inti-
mate sexual relations . . . because of concerns that the offspring or
_________________________________________________________________

8 Amici argue that the "fact that reproduction is recognized as a funda-
mental right under the Constitution also supports the view that it is a
`major' life activity." (EEOC Br. at 19; accord Whitman-Walker Br. at
21 n.5.) The constitutionally-protected status of an activity, however, has
little, if any, bearing on whether or not an activity is one of the major life
activities contemplated by the ADA. Neither gathering in a group nor
carrying a firearm are one of the major life activities under the ADA,
though individuals have the constitutional right to peaceably assemble,
see U.S. Const. amend. I; and to "keep and bear Arms," U.S. Const.
amend. II.

                     20
partner will be infected with the virus." (EEOC Br. at 10; accord
Whitman-Walker Br. at 19-21.) As support for this proposition, Amici
cite to a memorandum prepared by the Justice Department's Office
of Legal Counsel. Issued September 27, 1988, the memorandum dis-
cusses the application of identical provisions of the Rehabilitation Act
to asymptomatic HIV-infected individuals. See Memorandum from
Douglas W. Kmiec, Acting Assistant Attorney General, Office of
Legal Counsel, to Arthur B. Culvahouse, Jr., Counsel to the President
(Sept. 27, 1988), reprinted in 8 Fair Empl. Prac. Manual (BNA) No.
641 at 405:4-7 [hereinafter Kmiec Memorandum]. The memorandum,
however, is more limited than Amici claim. Rather than definitively
interpreting the statute, it attempts to predict how courts will resolve
the question of whether asymptomatic HIV infection substantially
limits one or more of the major life activities, and speculates that "at
least some courts would find" that asymptomatic HIV infection sub-
stantially limits "procreation and intimate personal relations." (Kmiec
Memorandum at 405:6.)

Specifically, the memorandum suggests that some courts will find
that asymptomatic HIV infection substantially limits procreation
because asymptomatic HIV-infected individuals will forego having
children because of "the fear of what the infection will do to one's
child." (Kmiec Memorandum at 405:7.) The memorandum also pre-
dicts that "some courts can be expected to find a limitation of a major
life activity in the fact that an asymptomatic HIV-infected individu-
al's intimate relations are also likely to be affected by HIV infection."
Id. In sum, the memorandum posits that some courts will find that
asymptomatic HIV infection substantially limits procreation and inti-
mate sexual relations because asymptomatic HIV-infected individuals
will choose to forego having children and engaging in intimate rela-
tionships because of their contagiousness.

The memorandum equivocates, however, recognizing that finding
a limitation of life activities based on the asymptomatic individual's
response to his knowledge of his infection is "not fully persuasive
since it depends upon the conscience and good sense of the person
infected." Id. The ADA's statutory language requires that the
impairment substantially limit one or more of the major life activities.
See 42 U.S.C.A. § 12102(2)(A). In the case of asymptomatic HIV
infection, however, the memorandum acknowledges that it is "the

                    21
conscience or normative judgment of the particular infected person,"
not the impairment, that substantially limits procreation and intimate
sexual relations. (Kmiec Memorandum at 405:7 (emphasis added).)
As the memorandum confesses, "there is nothing inherent in the
infection which actually prevents either procreation or intimate rela-
tions." Id.

Although conceding that asymptomatic HIV infection does not pre-
vent either procreation or intimate relations, the memorandum never-
theless postulates that "in any case where the evidence indicates that
the plaintiff HIV-infected individual has in fact changed his or her
behavior -- as, for example, where the plaintiff represents that pro-
creation has been foregone -- the court might well find a limitation
of major life activity." Id. Thus, the memorandum qualifies its predic-
tion that at least some courts will find asymptomatic HIV infection
substantially limits procreation or intimate sexual relations, and bases
its prediction on the notion that a person's reaction to his impairment
may serve to create a statutory disability. "Moreover," the memoran-
dum suggests, "courts may choose to pass over such factual questions
. . . [and find] a life activity limitation based on the reaction of others
to the infection." Id. The memorandum therefore bases its prediction
that some courts will find that asymptomatic HIV infection is an
actual disability on both the actual disability and perceived disability
prongs of the statutory definition. (Kmiec Memorandum at 405:6.)

We hold that asymptomatic HIV does not substantially limit pro-
creation or intimate sexual relations for purposes of the ADA. As the
Kmiec Memorandum recognizes, nothing inherent in the infection
actually prevents either procreation or intimate relations. Asymptom-
atic HIV-infected individuals are able to, and indeed do, procreate and
engage in sexual intimacies. We recognize that as a behavioral
matter, asymptomatic HIV-infected individuals may refrain from hav-
ing children or engaging in sexual relations "because of concerns that
the offspring or partner will be infected with the virus." (EEOC Br.
at 10; accord Whitman-Walker Br. at 19-21.) But as a physical
matter, nothing inherent in the virus substantially limits procreation
or intimate sexual relations. The statutory language is plain: the
impairment in question, not the individual's reaction to the impair-
ment, must "substantially limit[ ] one or more of the major life activi-
ties of such individual." 42 U.S.C.A. § 12102(2)(A). This language

                     22
requires a causal nexus between the physical effect of the impairment
and one of the major life activities. For example, a paralyzed individ-
ual's paralysis is what substantially limits his ability to walk, and a
deaf person's deafness is what substantially limits his ability to hear.
In the case of asymptomatic HIV infection, however, an individual's
reaction to the knowledge of his infection -- not the infection itself
-- is what, if anything, substantially limits procreation and intimate
sexual relations. Thus, under the statutory definition, asymptomatic
HIV infection is not a disability.

Even if the statute permitted a finding that asymptomatic HIV
infection substantially limits procreation and intimate sexual relations
because of a person's response to the knowledge of his infection,
there is no evidence in the record that Runnebaum, because of his
infection, forewent having children or engaging in intimate sexual
relations. Nothing in the record indicates that Runnebaum refrained
from having children out of fear that he would pass the virus on to
his child. Indeed, nothing in the record so much as suggests that Run-
nebaum was at all interested in fathering a child. Moreover, the record
makes clear that Runnebaum's ability to engage in intimate sexual
relations was not substantially limited by his HIV infection; the
record shows that he concealed his HIV infection from his lover.
Ergo, Runnebaum's HIV infection, if an impairment, does not sub-
stantially limit one or more of the major life activities under
§ 12102(2)(A).

b. Section 12102(2)(C) -- Perceived Disability

Subsection (C) states that the term "disability" means "being
regarded as having such an impairment." 42 U.S.C.A. § 12102(2)(C).
The "such an impairment" language incorporates by reference subsec-
tion (A)'s description of the sort of impairment that qualifies as a dis-
ability: "a physical or mental impairment that substantially limits one
or more of the major life activities of such individual." 42 U.S.C.A.
§ 12102(2)(A). Thus, the ADA protects from employment discrimina-
tion individuals who are regarded or perceived, albeit erroneously, as
having an impairment that substantially limits one or more of the
major life activities, just as it protects persons who actually have an
impairment that substantially limits one or more of the major life
activities. Contrary to Amici, who primarily contend that HIV infec-

                    23
tion is actually an impairment that substantially limits one or more of
the major life activities, Runnebaum primarily contends that Nations-
Bank fired him because it regarded him as having an impairment that
substantially limits one or more of the major life activities. Our analy-
sis of this claim focuses on the reactions and perceptions of the rele-
vant decisionmakers working with Runnebaum. See Ennis, 53 F.3d at
60-61 (discussing evidence to support claim that"relevant decision-
makers" knew of an employee's son's asymptomatic HIV infection);
see also Henson v. Liggett Group, Inc., 61 F.3d 270, 276 (4th Cir.
1995) (holding that in discrimination context, perceptions of non-
decisionmakers are of low probative value); Smith v. Flax, 618 F.2d
1062, 1067 (4th Cir. 1980) ("It is the perception of the decision maker
which is relevant."); cf. Kelly, 94 F.3d at 109 (focusing on "the reac-
tions and perceptions of the persons interacting or working with" the
plaintiff).

In support of this claim, Runnebaum contends that NationsBank
regarded him as having an impairment that substantially limits one or
more of the major life activities, even though his asymptomatic HIV
infection did not actually do so, because the bank was aware of his
asymptomatic HIV infection. In School Bd. of Nassau County v.
Arline, 480 U.S. 273 (1987), the Supreme Court interpreted the identi-
cal language of the Rehabilitation Act and held that although an indi-
vidual may not have an impairment that substantially limits one or
more of the major life activities of that individual, the negative reac-
tions of others "could nevertheless substantially limit that person's
ability to work." Id. at 283. The Court stated that by including "re-
garded as" in the statutory definition, "Congress acknowledged that
society's accumulated myths and fears about disability and disease
are as handicapping as are the physical limitations that flow from
actual impairment." Id. at 284.

We reject Runnebaum's argument that he was fired because the rel-
evant decisionmakers at NationsBank held a perception of HIV infec-
tion based on "accumulated myths and fears." The evidence produced
by Runnebaum revealed (1) that packages sent to the bank (addressed
to Runnebaum) containing AZT were twice inadvertently opened by
bank personnel; (2) that Brown, a bank supervisor and friend and con-
fidant of Runnebaum's, felt "panicky" and "uncontrolled" at the time
he learned of Runnebaum's HIV infection; and (3) that Pettit fired

                    24
him. None of this evidence, however, is sufficient to create a genuine
issue of material fact concerning the perception of Runnebaum's HIV
infection held by the relevant decisionmakers at NationsBank.9

First, the unknown employees who inadvertently opened the pack-
ages containing Runnebaum's AZT medication were not relevant
decisionmakers. Furthermore, nothing in the record establishes that
the employees who accidentally opened the packages regarded Run-
nebaum as having an impairment that substantially limited one or
more of the major life activities. In addition, the packages were
opened well after Pettit had decided to fire Runnebaum; indeed, one
of the packages was accidentally opened after Runnebaum had
already been fired. In sum, there is no permissible inference that can
be drawn from this evidence.

Second, Brown's testimony that he felt "panicky" and "uncon-
trolled" at the time Runnebaum confided in him is simply insufficient
_________________________________________________________________

9 The dissent claims that this "evidence is bolstered by a variety of cir-
cumstantial evidence," including "evidence that the reasons given for
Runnebaum's firing were pretextual." Post at 50. Specifically, the dissent
points to ostensibly comparative evidence showing that another
employee in the same sales position as Runnebaum, Clifford Andersson,
was not disabled and remained employed, despite his similarly inferior
sales performance. See post at 51-52, 54. However,

        [t]he 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 absentee-
        ism, tardiness, and improper conduct, and there is no evidence
        that Andersson exhibited similar shortcomings. Comparing
        Andersson and Runnebaum, therefore, is improper. . . . In addi-
        tion, Andersson worked in Washington, D.C., while Runnebaum
        worked in Baltimore, and there is no evidence that these two
        markets are similar.

Runnebaum v. NationsBank of Maryland, 95 F.3d 1285, 1307 (4th Cir.
1996) (Williams, J., dissenting) (citations omitted). Thus, evidence that
Andersson remained employed despite inadequate sales performance
does not support a conclusion that NationsBank's reasons for firing Run-
nebaum were pretextual, nor does it "bolster" the dissent's contention
that NationsBank regarded Runnebaum as disabled.

                    25
to create a genuine issue of material fact. Although Brown was a bank
supervisor, there is no proof that his "panicky," "uncontrolled" feeling
meant that he (or the bank) regarded Runnebaum's asymptomatic
HIV infection as an impairment that substantially limited one of the
major life activities. Even assuming Brown was a relevant decision-
maker with respect to Runnebaum, the mere fact that an employer is
aware of an employee's asymptomatic HIV infection "is insufficient
to demonstrate either that the employer regarded the employee as dis-
abled [i.e., as having an impairment that substantially limits one or
more of the major life activities of such individual] or that that per-
ception caused the adverse employment action." Kelly, 94 F.3d at
109; accord Chandler v. Dallas, 2 F.3d 1385, 1393 (5th Cir. 1993)
(holding that even employer's belief that plaintiff could not perform
a particular task safely does not establish that employer regarded
plaintiff as having an impairment that substantially limits one or more
of the major life activities). Here, the record establishes that Nations-
Bank did not consider HIV-positive employees to have an impairment
that substantially limits one or more of the major life activities. To the
contrary, the record reveals, and Runnebaum does not dispute, that
NationsBank employs several individuals it knows to be infected with
HIV.

Third, and most important, there is no indication that Pettit, the rel-
evant decisionmaker with respect to Runnebaum's termination,
regarded Runnebaum as having an impairment that substantially lim-
ited one or more of the major life activities. Although Pettit knew that
Runnebaum was HIV-positive when she discharged him, she did not
possess this knowledge when she decided to fire him on November 3,
1992. In her deposition, she testified that she learned in late Novem-
ber or early December that Runnebaum was infected with HIV, but
by then she had already decided to fire him. Furthermore, she testified
that Runnebaum's asymptomatic HIV infection played no role in her
decision to fire him. Pettit's testimony on this point was corroborated
by Brown, who stated that he did not disclose to her that Runnebaum
was HIV-positive until after Pettit informed Brown that she planned
to discharge Runnebaum. Even assuming Pettit learned by some other
means about Runnebaum's HIV infection prior to making the deci-
sion to fire him, nothing in the record suggests that she regarded
asymptomatic HIV infection to be an impairment that substantially
limited one or more of the major life activities of Runnebaum.

                     26
Quite simply, Runnebaum did not hold himself out to NationsBank
as having an impairment that substantially limited one or more of the
major life activities, NationsBank did not regard or perceive Runne-
baum as having such an impairment, and the record does not contain
evidence demonstrating otherwise. Cf. Rogers v. Int'l Marine Termi-
nals, Inc., 87 F.3d 755, 757, 760 (5th Cir. 1996) (affirming summary
judgment because the record was devoid of evidence showing that
employer regarded employee as having an impairment that substan-
tially limited one or more of the major life activities). Runnebaum's
HIV infection therefore is not a disability under § 12102(2)(C).
Because Runnebaum failed to show that he is disabled under the
ADA, he failed to establish the first element of the prima facie case.

2. Legitimate Expectations of Employer

Next, to make out the third element of the prima facie case,10 Run-
nebaum must prove that he was meeting NationsBank's legitimate
expectations at the time of his discharge. The record is replete with
indications that Runnebaum did not meet NationsBank's legitimate
expectations for his employment. He failed to submit required reports,
to attend certain functions, and to take training classes or attend man-
ager's meetings, as set forth in the July Memorandum. His continuing
utter failure to attend to his assigned duties 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 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 employ-
ment 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).

Moreover, during his tenure at NationsBank Runnebaum engaged
in a pattern of unprofessional behavior. His conduct frequently veered
from the merely unprofessional to the inappropriate and offensive.
His penchant for racial and sexual slurs and his improper conduct at
_________________________________________________________________

10 The parties do not dispute that Runnebaum was discharged from his
employment, the second element of the prima facie case.

                     27
business meetings and toward NationsBank clients cannot be consid-
ered to fall within the scope of NationsBank's legitimate expectations
for his employment.11 Accordingly, we conclude that Runnebaum
failed to establish the third element of the prima facie case.

3. Reasonable Inference of Unlawful Discrimination

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, we conclude that he failed to establish the fourth ele-
ment. Runnebaum was discharged for incompetent performance, lack
of performance, and unprofessional 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 outset, his deficient performance, and his inappropriate 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 perfor-
mance was so pervasive, no rational trier of fact could conclude that
her discharge occurred under circumstances giving rise to an infer-
ence of discrimination). We therefore conclude that Runnebaum
failed to establish the fourth element of a prima facie case.

***

Runnebaum thus failed to establish three of the four elements of a
prima facie case of discrimination under the ADA. He failed to show
that he had a disability and that he therefore was a member of the
class of persons protected by the ADA; he failed to show that at the
time he was fired he was meeting NationsBank's legitimate expecta-
_________________________________________________________________

11 The facts surrounding Runnebaum's failure to establish the third ele-
ment of the prima facie case, that he was meeting NationsBank's legiti-
mate expectations at the time of his discharge, are extensively discussed
in the dissenting opinion to the panel decision. See Runnebaum v.
NationsBank of Maryland, 95 F.3d 1285, 1297-1300, 1303-05 (4th Cir.
1996) (Williams, J., dissenting).

                    28
tions; and he failed to show that his termination took place under cir-
cumstances raising a reasonable inference of discrimination. We
therefore affirm the district court's grant of summary judgment in
favor of NationsBank. See St. Mary's Honor Ctr. v. Hicks, 509 U.S.
502, 506-11 (1993).12

III. THE ERISA CLAIM

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 that Runnebaum cannot establish a prima
facie case under the ADA, he cannot establish a prima facie case
under § 510. Accordingly, we affirm the grant of summary judgment
in favor of NationsBank on Runnebaum's § 510 ERISA claim.

IV. CONCLUSION

We conclude that the district court properly granted summary judg-
ment in favor of NationsBank. Runnebaum failed to establish a prima
facie case of discrimination or to raise any genuine issues of fact suf-
ficient to survive summary judgment. Even assuming that Runne-
baum established a prima facie case of discrimination, NationsBank
came forward with legitimate, nondiscriminatory reasons for firing
_________________________________________________________________

12 Even if Runnebaum had succeeded at making out a prima facie case
of discrimination, we conclude that NationsBank articulated legitimate,
nondiscriminatory reasons for his discharge, and that Runnebaum failed
to prove that those reasons were pretextual. See Runnebaum v. Nations-
Bank of Maryland, 95 F.3d 1285, 1297-1300, 1305-07 (4th Cir. 1996)
(Williams, J., dissenting). NationsBank terminated Runnebaum for fail-
ure to fulfill his sales goals and for failure to amend his unprofessional
conduct. These are legitimate, nondiscriminatory reasons to discharge
Runnebaum. See Brewer v. Quaker State Oil Refining Corp., 72 F.3d
326, 330 (3rd 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 district court therefore properly granted
summary judgment in favor of NationsBank on this alternative ground.
See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506-11 (1993).

                    29
him, which Runnebaum failed to prove were pretextual. The opinion
and order of the district court below is therefore affirmed.

AFFIRMED

HAMILTON, Circuit Judge, concurring in the judgment:

I agree with Judge Michael that NationsBank's concession that
Runnebaum was disabled within the meaning of the Americans with
Disabilities Act (ADA), see 42 U.S.C. § 12101-12213, prohibits our
consideration of that issue on appeal. Accordingly, I concur in Part I.
of Judge Michael's opinion. However, for the reasons stated in Part
II.B.2. of Judge Williams' opinion, Runnebaum failed to establish a
prima facie case of discrimination under the ADA. Furthermore, even
if Runnebaum could establish a prima facie case under the ADA, for
the reasons stated in Part II.B.2. of Judge Williams' opinion and her
dissent to the panel majority opinion, see Runnebaum v. NationsBank
of Maryland, 95 F.3d 1285, 1305-07 (4th Cir. 1996) (Williams, J.,
dissenting), Runnebaum failed to carry his ultimate burden of demon-
strating that he was fired because of his disability. See St. Mary's
Honor Center v. Hicks, 509 U.S. 502, 508-11 (1993). I therefore con-
cur in the court's judgment.

MICHAEL, Circuit Judge, dissenting:

William Runnebaum was fired six months after he transferred into
the trust department at NationsBank in Baltimore. He then brought
suit against the bank under the Americans with Disabilities Act
(ADA), alleging that he was fired because he is infected with the
Human Immunodeficiency Virus (HIV). NationsBank moved for
summary judgment claiming that it fired Runnebaum because of his
performance rather than his disease, and the district court granted
summary judgment on this theory. No one contested that Runne-
baum's asymptomatic HIV infection was a "disability" for purposes
of the ADA. Now, however, the majority concludes that Runne-
baum's HIV infection is not a disability. It bases this holding on its
textual reading of the ADA and its own conclusions about the state
of the record. There is much that the majority must ignore, however,
to affirm on the ground that Runnebaum is not disabled. First, it must
ignore that NationsBank conceded Runnebaum's disability before the

                    30
district court. Second, it must ignore the physical effects of HIV upon
the body even when the disease is in its asymptomatic stage. Third,
it must ignore a wealth of legislative history and administrative inter-
pretation contradictory to its reading. Finally, it must ignore evidence
that NationsBank regarded Runnebaum as disabled-- evidence that
is sufficient to create an issue of material fact.

I believe the majority means to create a per se rule excluding those
with asymptomatic HIV from the protections of the ADA. It essen-
tially admits as much, noting that its definition of disability "suggests
that asymptomatic HIV infection will never qualify" as a disability.
Ante at 18. And by finding that "the facts pertaining to this issue are
sufficiently developed," ante at 11 n.4, even though Runnebaum has
had no opportunity to present facts about disability, the majority shuts
the door on whatever opportunity its opinion might have otherwise
left open. The majority's rejection, in substance if not in form, of the
case-by-case inquiry suggested by Ennis v. National Ass'n of Bus. &
Educ. Radio, Inc., 53 F.3d 55 (4th Cir. 1995), moves this circuit even
further from the mainstream of ADA interpretation. More impor-
tantly, it moves us completely away from the interpretation that Con-
gress clearly intended. I therefore respectfully dissent.

I.

NationsBank conceded Runnebaum's disability in district court. In
a memorandum supporting its motion for summary judgment,
NationsBank acknowledged that Runnebaum "is a member of a pro-
tected class (HIV-positive being a protected category under 42 U.S.C.
§ 12102([2]))." J.A. 46. It repeated this concession in its reply brief,
saying that Runnebaum "can establish the existence of only two of the
four [elements of a prima facie case]-- he is in a protected group and
he was discharged." J.A. 533. The district court accepted this conces-
sion and "assume[d], for the purposes of the [ ] motion, that even an
asymptomatic HIV infection may be a disability within the act." J.A.
570. NationsBank again conceded this issue in its initial brief to this
court. See Brief for Appellee at 19 ("[T]he plaintiff could establish the
existence of only two of the four McDonnell Douglas elements -- he
may have been in a protected group and he was discharged."). In its
reply (before the en banc court) to the arguments of amici Whitman-
Walker Clinic and the EEOC, NationsBank argued that "[t]heir

                    31
appearance to brief this issue is a distraction from the main issues of
the case because the `disability' issue was not a ground for summary
judgment below and was not briefed or argued on appeal to the
panel." Appellee's Answer to the Briefs Amicus Curiae at 2.

"Ordinarily an appellate court does not give consideration to issues
not raised below." Hormel v. Helvering, 312 U.S. 552, 556 (1941);
see also Singleton v. Wulff, 428 U.S. 106, 120 (1976) ("It is the gen-
eral rule, of course, that a federal appellate court does not consider an
issue not passed upon below."). We have consistently noted the appli-
cability of this general rule. See, e.g., Domino Sugar Corp. v. Sugar
Workers Local Union 392, 10 F.3d 1064, 1068 (4th Cir. 1993);
Liberty Corp. v. NCNB Nat'l Bank, 984 F.2d 1383, 1389 (4th Cir.
1993). NationsBank, by its concession in district court, has waived its
right to assert non-disability as an alternative ground for affirming
summary judgment. See United States v. Patrin, 575 F.2d 708, 712
(9th Cir. 1978) ("It is immaterial whether the issue was not tried in
the district court because it was not raised or because it was raised but
conceded by the party seeking to revive it on appeal.").

I know that "[t]he matter of what questions may be taken up and
resolved for the first time on appeal is one left primarily to the discre-
tion of the courts of appeals, to be exercised on the facts of individual
cases." Singleton, 428 U.S. at 121. However, Singleton only recog-
nized exceptions to the general rule in cases "where the proper resolu-
tion is beyond any doubt or where injustice might otherwise result."
Id. (citations and quotations omitted). Some circuits have recognized
an additional exception in cases "[w]hen the issue conceded or
neglected in the trial court is purely one of law and either does not
affect or rely upon the factual record developed by the parties or the
pertinent record has been fully developed." Patrin, 575 F.2d at 712
(citations omitted). The majority appears to rely on this exception.1 In
_________________________________________________________________

1 The majority does not discuss the general rule set forth in Hormel and
Singleton. It instead relies on the proposition that "we may affirm a dis-
trict court's decision on different grounds than those employed by the
district court." Shafer v. Preston Memorial Hosp. Corp., 107 F.3d 274,
275 n.1 (4th Cir. 1997); see also Jackson v. Kimel, 992 F.2d 1318, 1322
(4th Cir. 1993). There is no indication, however, in either Shafer or
Jackson that the alternate grounds in those cases had been neglected or
conceded before the district court.

                    32
discussing why it chose to reach the disability issue, the majority says
that "[w]hether asymptomatic HIV infection is a disability under the
statute is primarily a question of law, the facts pertaining to this issue
are sufficiently developed, and the issue was briefed and argued on
appeal." Ante at 11 n.4. This assertion by the majority is contrary to
both the law of this circuit and the reality of how this case has been
litigated.

Other courts have held that asymptomatic HIV is a per se disability
that requires no development of the facts. See, e.g., Gates v. Rowland,
39 F.3d 1439, 1446 (9th Cir. 1994) (discussing Rehabilitation Act).
Our decision in Ennis v. National Ass'n of Bus. & Educ. Radio, Inc.,
53 F.3d 55 (4th Cir. 1995), however, rejected this approach. Accord-
ing to Ennis, "the plain language of [42 U.S.C. § 12102(2)] requires
that a finding of disability be made on an individual-by-individual
basis." Id. at 59. Thus, Ennis directs us to make "case-by-case deter-
minations 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. The
majority specifically "reaffirm[s] our holding in Ennis; accordingly,
a finding that Runnebaum has a disability under this provision must
be made on an individualized basis." Ante at 12. I do not see how the
majority can claim that the issue of Runnebaum's disability is "pri-
marily a question of law" and then turn around and endorse Ennis's
individualized inquiry.

The majority also asserts that "the facts pertaining to this issue [dis-
ability] are sufficiently developed." Ante at 11 n.4. This assessment
is not fair to Runnebaum, who had no hint that he should have been
developing or making a summary judgment record on disability. At
the en banc oral argument Runnebaum's lawyer told us how Nations-
Bank's concession on this issue affected his litigation strategy:

        The problem with this issue is because it was never raised
        below . . . nobody ever took any discovery on this question.
        And the record is pretty sparse on that whole issue.

        The record was not developed on that issue. It never became
        an issue.

                     33
        Under the facts of this case, the bank has never taken the
        position, and one of the difficulties that I have here, and I
        wish I had a better record, is because it was never an issue
        anywhere. Maybe it should have been, but it wasn't.
        Nobody raised it. It was assumed that he met the standards
        under the Act to be disabled, and the whole case was prem-
        ised, discovery and everything was premised from that point
        forward, on the fact that it was conceded that he was dis-
        abled. Now that may have been a mistake, but that's the
        state of the record.

En Banc Oral Argument, Mar. 5, 1997. These frank comments by
Runnebaum's lawyer confirm that consideration of the disability issue
on the current state of the record substantially prejudices Runne-
baum's case.

Nevertheless, the majority proceeds to examine the merits of this
issue on the current record and concludes, not surprisingly, that there
is insufficient evidence to support a finding that Runnebaum is dis-
abled. See ante at 18 ("Runnebaum produced no evidence showing
that he was impaired, to any degree, during the relevant time
period."); id. at 23 ("[T]here is no evidence in the record that Runne-
baum, because of his infection, forewent having children or engaging
in intimate sexual relations."); id. at 25 ("None of this evidence, how-
ever, is sufficient to create a genuine issue of fact concerning the per-
ception of Runnebaum's HIV infection held by the relevant
decisionmakers at NationsBank."); id. at 27 ("NationsBank did not
regard or perceive Runnebaum as having [ ] an impairment [that sub-
stantially limited one or more of the major life activities], and the
record does not contain evidence demonstrating otherwise."). The
majority has somehow assumed that Runnebaum could present no
other evidence on these points. But Runnebaum had no reason to
proffer such evidence because his disability was not contested.2
_________________________________________________________________

2 In responding to my point that it is not fair to decide Runnebaum's
case against him on an issue that was conceded by his opponent on sum-
mary judgment, the majority ignores the realities of litigation. It says that
Runnebaum "knew that he bore the burden of developing a summary
judgment record in support of his contention that he was" disabled, ante

                     34
By deciding the disability issue before Runnebaum has had an
opportunity to lay out his case on it, the majority ignores the purpose
for the general rule prohibiting consideration of an issue that was con-
ceded in district court. The reason for the rule, as discussed by the
Supreme Court in Hormel, is quite relevant to this case:

        For our procedural scheme contemplates that parties shall
        come to issue in the trial forum vested with authority to
        determine questions of fact. This is essential in order that
        parties may have the opportunity to offer all the evidence
        they believe relevant to the issues which the trial tribunal is
        alone competent to decide; it is equally essential in order
        that litigants may not be surprised on appeal by final deci-
        sion there of issues upon which they have had no opportu-
        nity to introduce evidence.

Hormel, 312 U.S. at 556. In Singleton the Court reversed the Eighth
Circuit's decision to consider an issue not passed upon by the trial
court. The Court said, "[w]e have no idea what evidence, if any, peti-
_________________________________________________________________

at 9-10 n.4, and that "[t]here simply are no more facts to be developed"
on this issue, id. at 10 n.4. Runnebaum was the plaintiff, however, and
he surely had access to facts about his own condition. If Runnebaum had
facts at his disposal to offer evidence of disability at trial or to offer affi-
davits (if they became necessary) in summary judgment proceedings,
there was no need for him to take discovery on his own disability. The
majority, of course, suggests that there are no facts available to support
an affidavit showing disability and says that even if there were, such
facts could not trump deposition testimony already taken. These asser-
tions do not take the whole picture into account. First, there is some evi-
dence in the deposition excerpts we have that the HIV virus had begun
to attack Runnebaum's immune system. See post at 38 n.3 & 43 n.9. Sec-
ond, we do not have access to all of the discovery that was taken. We
only have deposition excerpts and documents that relate to the issues
raised on summary judgment. Thus, we have no way of knowing if there
is anything else in unfiled discovery material that bears on disability.
Finally, we do not know what facts Runnebaum could present on disabil-
ity if he had the chance. At bottom, I cannot understand why the majority
insists on deciding an issue that the parties have not yet litigated, espe-
cially when it is not necessary to the disposition of this appeal.

                     35
tioner would, or could, offer in defense of this statute, but this is only
because petitioner has had no opportunity to proffer such evidence."
Singleton, 428 U.S. at 120. Moreover, even if the petitioner had no
other evidence to present, he "should have the opportunity to present
whatever legal arguments he may have in defense of the statute." Id.
These factors compelled the Court to reverse, despite its acknowledg-
ment that decisions about whether to consider an argument not raised
below are usually left to the appellate court's discretion. See id. at
121.

If the majority feels that the disability issue is dispositive and must
be addressed despite the concession in district court, it should at least
remand the case for further proceedings on this issue. Better yet, the
majority should accept the concession and reach only the issues that
were presented below. That would be in line with how we have
treated ADA cases on review of summary judgment in the past. In
Ennis, for example, we found "no evidence" to support the conclusion
that the individual with HIV had a disability under the ADA. Ennis,
53 F.3d at 60. Nevertheless, we said that "because the record as to any
limitations on [the HIV-positive individual's] major life functions, or
perceptions of any such limitations, may be less than fully developed
at this stage of the litigation, we will assume for the purposes of this
case that [he] was disabled under the Act." Id. Ennis was not the first
time that we have made such an assumption. See Doe v. University
of Maryland Med. Sys. Corp., 50 F.3d 1261, 1265 (4th Cir. 1995)
("The parties do not dispute that infection with HIV is a disability
. . . ."). In its haste to address this question, however, the majority
ignores the procedural posture of this litigation and makes the ill-
founded assertion that Runnebaum has not offered sufficient evidence
of disability. Before coming to such a conclusion, we at least owe
Runnebaum the normal opportunity to offer evidence and legal argu-
ment on this issue.

II.

NationsBank's concession aside, there is sufficient support for
Runnebaum's claim of disability to defeat summary judgment. Run-
nebaum is disabled under the ADA if he can meet the requirements
of either 42 U.S.C. § 12102(2)(A) or § 12102(2)(C). I will discuss
each of these provisions in turn.

                     36
A.

Section 12102(2)(A) defines the term "disability" with respect to an
individual as "a physical or mental impairment that substantially lim-
its one or more of the major life activities of such individual." The
majority breaks this definition into two components: first, the individ-
ual must have a "physical or mental impairment," and second, that
impairment must "substantially limit[ ] one of more of the major life
activities of such individual." Runnebaum must satisfy both of these
requirements to be disabled under § 12102(2)(A). The majority con-
cludes that he can satisfy neither of them, but I disagree.

1.

The majority first holds that being infected with the HIV virus is
not a physical or mental impairment if the virus produces no symp-
toms. Its analysis is quite straightforward: asymptomatic HIV infec-
tion is not an impairment because "without symptoms, there are no
diminishing effects on the individual." Ante at 15. The majority rec-
ognizes that its analysis is contrary to two other circuits and the rele-
vant legislative history. Moreover, the majority ignores the
regulations that hold HIV to be a per se impairment. The majority
therefore limits itself to its own interpretation of the text and argues
that "the statutory meaning of `impairment' is plain and unambigu-
ous." Id. at 17.

I accept the dictionary definitions of "impair" and "impairment"
adopted by the majority. "Impair" is to "make worse by or as if by
diminishing in some material respect," or "[t]o weaken, to make
worse, to lessen in power, diminish, or relax, or otherwise affect in
an injurious manner." Ante at 15. "Impairment" is a "decrease in
strength, value, amount, or quality," a "deterioration" or a "lessening."
Id. What the majority fails to recognize is that under any of these defi-
nitions, the effects of the HIV virus on the victim would constitute an
"impairment." Medical researchers once believed that HIV lay dor-
mant in the body after the initial infection. "It turns out, however, that
the body and the virus engage in mortal combat from the beginning."
Christine Gorman, Battling the AIDS Virus: There's Still No Cure,
But Scientists and Survivors Make Striking Progress, Time, Feb. 12,
1996, at 62, 63. The virus attacks the victim's immune system imme-

                     37
diately; it enters the hemic (blood) and lymphatic systems and begins
reproducing itself within a group of white blood cells knows as CD4
cells. See id. at 64 (describing how during the first stage "[t]housands
of HIV particles are reproducing themselves" in CD4 cells); Martin
A. Nowak, AIDS Pathogenesis: From Models to Viral Dynamics in
Patients, 10 J. Acquired Immune Deficiency Syndromes & Human
Retrovirology S1, S1 (Supp. 1 1995) ("After infection with HIV,
patients initially enter the primary infection phase, which usually last
for a few weeks and is characterized by very high viral levels and a
decline in CD4 cell counts."). During this first stage, the infection
may cause a mononucleosis-type illness known as acute retroviral
seroconversion syndrome.3 See Michael S. Saag, Natural History of
HIV-1 Disease, in Textbook of AIDS Medicine 45, 46 (Samuel
Broder et al. eds., 1994). After the disease's initial attack, the body's
immune system begins a counterattack sufficient to stifle these initial
symptoms. Even though the infected individual is asymptomatic, the
virus continues to reproduce, slowly wearing away at the immune
system until the final and fatal stage of the disease. See id. at 49 ("[A]
slow progressive decline in CD4-positive cells is typically seen dur-
ing this time."); Cecil Textbook of Medicine 1908 (James B. Wyn-
gaarden et al. eds., 19th ed. 1992) ("HIV infection can therefore be
considered a disease of the immune system, characterized by the pro-
gressive loss of CD4+ lymphocytes, with ultimately fatal conse-
quences for the infected host."). Recent studies have shown that the
focal point of HIV attack during the asymptomatic period is in the
individual's lymph system. See Christine Gorman, The Exorcists:
Applying a Potent Combination of New Treatments, Medical
Researchers Are Determined to Expel the Terrible Specter of AIDS as
an Invincible Disease, Time, Fall 1996, at 64, 65 ("The big fight
[between HIV and the immune system] occurs in the harder-to-study
lymph nodes, where day after day, year after year the body battles the
virus to a standstill before finally exhausting its immunological
reserves.").
_________________________________________________________________

3 There is evidence that Runnebaum experienced this syndrome. See
J.A. 152 (testimony of Dr. Michael Pistole, Runnebaum's physician)
("[Runnebaum] had had this syndrome a couple of years before, which
I almost think -- when you become HIV positive-- that what happens
is that you go through a viral-like syndrome and it can last for months,
or weeks to months, and be very bad. It can be like-- I'm just wonder-
ing if in 1986 that was the prodrome of HIV infection.").

                    38
The majority contends that this immediate impact on the immune
system is at "so low a level of generality" that it does not actually
constitute a "diminishing effect." Ante at 16 n.6. It views the terms
"impairment" and "symptoms" as synonymous and therefore con-
cludes that any asymptomatic disease cannot constitute an impair-
ment. See ante at 15. Nowhere does the text of the statute,
however, require a "physical impairment" to be outwardly visible or
manifest. The effects of the HIV virus may not be noticeable to the
outside world until the later stages of the disease, but the body is
impaired as soon as the disease enters it.4 As former Surgeon General
C. Everett Koop said in a letter to the Justice Department:

        [F]rom a purely scientific perspective, persons with HIV
        infection are clearly impaired. They are not comparable to
        an immune carrier of a contagious disease such as Hepatitis
        B. Like a person in the early stages of cancer, they may
        appear outwardly healthy but are in fact seriously ill.

Letter from C. Everett Koop, M.D., Surgeon General, to Douglas W.
Kmiec, Acting Assistant Attorney General, Office of Legal Counsel,
Department of Justice, reprinted in 8 Fair Empl. Prac. Manual (BNA)
No. 641 at 405:18, 405:19.5

In my opinion, HIV infection comfortably fits within the plain and
_________________________________________________________________

4 The majority argues that if the effects of HIV can constitute an "im-
pairment" under the ADA, then the ADA will soon extend to cover those
diseases that "lurk in the genes, and perhaps the futures, of millions of
apparently healthy people." Ante at 16 n.6. If a disease or condition
merely "lurks" in one's genes or in one's future, it has no immediate
health effect and therefore would not be considered an impairment. On
the other hand, as soon as the HIV infection is contracted, it begins the
process of causing serious damage to the immune system.

5 We need not reach the issue of whether the contagiousness of HIV is
sufficient on its own to constitute an impairment. In Doe v. University
of Maryland Med. Sys. Corp., 50 F.3d 1261 (4th Cir. 1995), however, we
found that the potential for HIV transmission disqualified an HIV-
infected individual from serving as a surgeon. See id. at 1266 ("We hold
that Dr. Doe does pose a significant risk to the health and safety of his
patients that cannot be eliminated by reasonable accommodation.").

                   39
unambiguous meaning of impairment. Admittedly, however, the
meaning of "impairment" is broad enough that it might be considered
somewhat ambiguous. Cf. Torcasio v. Murray, 57 F.3d 1340, 1353
(4th Cir. 1995) (finding the ADA's textual definition of "disability"
to be "unilluminating"), cert. denied, 116 S. Ct. 772 (1996). Even if
the majority does not agree with my textual analysis, it must at least
admit that this analysis is sufficiently plausible to make the statute
ambiguous. It therefore should have turned to the legislative history
for guidance. See Green v. Bock Laundry Machine Co., 490 U.S. 504,
508 (1989) ("Concluding that the text is ambiguous . . ., we then seek
guidance from legislative history . . . ."); United States v. Irvin, 2 F.3d
72, 76-77 (4th Cir. 1993) ("[B]ecause the relevant statutory language
is susceptible to interpretations other than the one suggested by the
Government and is therefore ambiguous, we turn to the legislative
history for assistance in ascertaining the intent of Congress."). One
look at the legislative history, however, reveals why the majority
clings to its textual analysis.

Both House and Senate committee reports clearly state that infec-
tion with the HIV virus is to be considered an impairment. House
Report 101-485 states:

        It is not possible to include in the legislation a list of all the
        specific conditions, diseases, or infections that would consti-
        tute physical or mental impairments . . . . The term includes,
        however, such conditions, diseases, and infections as . . .
        infection with the Human Immunodeficiency Virus . . . .

H.R. Rep. No. 101-485, pt. 2, at 51, reprinted in 1990 U.S.C.C.A.N.
303, 333; see S. Rep. No. 101-116, at 22 (same). Part Three of the
House Report reiterates that "[a]lthough the definition [of impair-
ment] does not include a list of all the specific conditions, diseases,
or infections that would constitute physical or mental impairments,
examples include . . . infection with the Human Immunodeficiency
Virus." H.R. Rep. No. 101-485, pt. 3, at 28, reprinted in 1990
U.S.C.C.A.N. 445, 451. The committee reports could not be clearer:
infection with HIV constitutes an "impairment" under the ADA.6
_________________________________________________________________

6 The majority argues that the reports' failure to differentiate between
symptomatic and asymptomatic HIV means that Congress did not deter-

                     40
Because the committee reports are the "authoritative source for
finding the Legislature's intent," Garcia v. United States, 469 U.S.
70, 76 (1984), the above-cited passages are decisive as to the intent
of Congress. A survey of additional legislative history is significant,
however, if only to show the breadth of the congressional presump-
tion that individuals with HIV would be covered. Numerous members
of Congress took to the floor to praise the ADA for its protection of
HIV-infected individuals, including those who were asymptomatic.
See, e.g., 135 Cong. Rec. S10768 (daily ed. September 7, 1989)
(statement of Sen. Kennedy) (noting that "in the particular provision
of the legislation we have pointed out very clearly, if you are asymp-
tomatic and HIV positive, you are protected"); 136 Cong. Rec. H2626
(daily ed. May 22, 1990) (remarks of Rep. McDermott) ("I am partic-
ularly pleased that this act will finally also extend necessary protec-
tion to people with HIV disease. These are individuals who have any
condition along the full spectrum of HIV infection-- asymptomatic
HIV infection, symptomatic HIV infection or full-blown AIDS.");
136 Cong. Rec. H4623 (daily ed. July 12, 1990) (remarks of Rep.
Owens) ("As I noted, the ADA will offer critical protection to people
with HIV disease in a range of areas. People with HIV disease are
individuals who have any condition along the full spectrum of HIV
infection -- asymptomatic HIV infection, symptomatic HIV infection
or full-blown AIDS."); 136 Cong. Rec. H4626 (daily ed. July 12,
1990) (remarks of Rep. Waxman) ("People with HIV disease are
those who have the spectrum of the disease -- from asymptomatic
HIV infection, to symptomatic HIV infection, to full-blown AIDS.
. . . All such individuals are covered under the first prong of the defi-
nition of disability in the ADA.").

The legislative history plainly demonstrates that Congress intended
for HIV to be considered a disability. Indeed, it is difficult to imagine
a case in which the legislative history could be more explicit.

Although the majority acknowledges that the legislative history is
contrary to its interpretation of "impairment," it does not discuss the
_________________________________________________________________

mine whether asymptomatic HIV was an impairment. I believe, however,
that Congress's failure to differentiate counsels against the majority's
interpretation, not for it. In other words, Congress purposely declined to
differentiate because it wanted no differentiation to be made.

                    41
many administrative regulations which have interpreted the term.
Congress gave the EEOC authority under 42 U.S.C. § 12116 to issue
regulations with respect to subchapter I, the statutory subchapter
regarding employment.7 See Torcasio, 57 F.3d at 1353 ("The [ADA
and the Rehabilitation Act] do not define `physical or mental impair-
ment' or `major life activity,' instead leaving that task to the applica-
ble regulations."). The EEOC has issued extensive regulations
defining the terms used in the ADA, including "physical or mental
impairment." Although the regulations themselves do not specifically
mention HIV, 29 C.F.R. § 1630.2(h)(1) does include in the definition
of impairment "any physiological disorder, or condition . . . affecting
one or more of the following body systems: . . . hemic and lym-
phatic." As discussed above, the HIV virus attacks the hemic and
lymphatic systems as soon as it enters the body. Thus, the HIV infec-
tion clearly fits within the regulatory definition of impairment.8
_________________________________________________________________

7 Section 12102 is located immediately before subchapter I, which
begins at § 12111. Thus, the definition of "disability" provided in
§ 12102(2)(A) is not specific to the employment subchapter; it instead
applies to the whole ADA. In Ennis the court expressed uncertainty as
to whether the EEOC had the authority to promulgate a regulation con-
cerning the definition of "disability" provided in § 12102(2)(A) or any of
the terms within that definition (such as "impairment") since
§ 12102(2)(A) is not located within subchapter I. See Ennis, 53 F.3d at
60 n.4. Because Congress delegated to the EEOC the authority to issue
regulations for the employment subchapter, I believe it reasonable to
assume that Congress intended for the EEOC to define impairment in
cases, such as this one, brought under the employment subchapter. See
42 U.S.C. § 12116 (directing the EEOC to issue regulations in order to
"carry out this subchapter").

If 42 U.S.C. § 12116 can be considered a direct grant of congressional
authority to define impairment in the employment context, then the
EEOC's definition must be given "controlling weight" if the statute is
otherwise ambiguous. See Chevron U.S.A. Inc. v. Natural Resources
Defense Council, Inc., 467 U.S. 837, 844 (1984). Even if Congress did
not grant the EEOC direct statutory authority to define impairment, how-
ever, we still must defer to the EEOC's regulations if they are a "reason-
able interpretation" of the statute. See id. (requiring deference to a
reasonable interpretation if the legislative delegation to an agency is "im-
plicit rather than explicit").

8 Other agencies have been even clearer by directly including HIV
infection in their interpretation of "impairment." See 28 C.F.R. § 35.104

                    42
The majority attempts to shore up its interpretation of "impairment"
by claiming that "Runnebaum produced no evidence showing that he
was impaired" and that "Runnebaum does not assert that he suffers an
actual physical or mental impairment because of his HIV infection."
Ante at 18. As I said in part I, however, Runnebaum never had the
occasion to make such assertions or to produce such evidence because
this issue was not contested in district court. The majority also points
to Runnebaum's application for a transfer to the trust department,
where he checked a box indicating he was not handicapped. Such a
check mark has little relevance to whether Runnebaum has an "im-
pairment" under 42 U.S.C. § 12102(2)(A). His decision not to check
the "handicapped" box could have been based on his assumption that
he could physically perform the job in trusts. Moreover, Runnebaum
might have feared that the bank would be prejudiced against him if
it knew that he was HIV-positive. Finally, the analysis of Runne-
baum's doctor that Runnebaum "had no ill effects from the disease or
the medications" merely means that Runnebaum remained asymptom-
atic. As discussed above, the lack of symptoms does not mean that
Runnebaum was not impaired.9
_________________________________________________________________

(Department of Justice) ("The phrase physical or mental impairment
includes . . . HIV disease (whether symptomatic or asymptomatic)
. . . ."); 28 C.F.R. § 36.104 (Department of Justice) (same); 29 C.F.R.
§ 34.2 (Department of Labor) (same); 34 C.F.R.§ 1200.103 (National
Council on Disability) (same); 7 C.F.R. § 15e.103 (Department of Agri-
culture) (same); 5 C.F.R. § 1636.103 (Federal Retirement Thrift Invest-
ment Board) (same); 22 C.F.R. § 1701.103 (Institute of Peace) (same);
45 C.F.R. § 2301.103 (Arctic Research Commission) (same); 24 C.F.R.
Ch. I, Subch. A, App. I § 100.201 (Department of Housing and Urban
Development) (adding HIV infection to list of physical and mental
impairments).

9 Moreover, Dr. Pistole makes clear that he has provided "aggressive
treatment" of Runnebaum's HIV infection through the use of "chain
breaker type drugs." J.A. 155. In Harris v. H & W Contracting Co., 102
F.3d 516 (11th Cir. 1996), the court held that the determination of
whether a person is disabled must be made "without regard to mitigating
measures such as medicines." Id. at 520 (quoting 29 C.F.R. pt. 1630, app.
§ 1630.2(j)). Runnebaum's condition would likely be far worse if he was
not taking the medication prescribed by Dr. Pistole. There is also evi-
dence that the medication took its own toll on Runnebaum. See J.A. 84
(testimony of Runnebaum) ("[T]here were days that I felt very, very up
and there were other days that I didn't feel very good at all. That's the
effect of the drugs.").

                   43
In sum, the majority's interpretation cannot withstand the stark
realities of asymptomatic HIV, the direct and unambiguous legislative
history, and the administrative regulations, all of which confirm that
Runnebaum was impaired.10

2.

The second requirement of 42 U.S.C. § 12102(2)(A)'s definition of
disability is that the individual's impairment must "substantially
limit[ ] one or more of the major life activities of such individual."
Although Runnebaum himself did not offer argument or evidence on
this question, amici EEOC and the Whitman-Walker Clinic Legal
Services Department contend that the HIV virus substantially limits
the major life activities of procreation and intimate sexual relations.
The majority, although "not certain" and "not convinced" that procre-
ation and intimate sexual relations are major life activities under the
ADA, assumes that they are. Ante at 20. However, it finds that
Runnebaum's participation in these activities is not substantially lim-
ited by his HIV infection.

The question of whether procreation and intimate sexual relations
are "major life activities" under the ADA is admittedly "not free from
doubt." Abbott v. Bragdon, 107 F.3d 934, 939 (1st Cir. 1997) (dis-
cussing procreation). The words of the statute, however, are certainly
broad enough to include these activities. Procreation is perhaps the
most important life activity, since we would cease to exist as a species
if we no longer reproduced. See id. at 940 (finding that "reproduction
. . . is both the source of all life and one of life's most important activ-
ities"). And intimate sexual relations, while less important in nature's
scheme, have consumed enough of humanity's energy and interest to
count among such activities.

The phrase "major life activity" is sufficiently ambiguous to require
a look at the legislative history and the implementing regulations for
interpretive guidance. Once again, the legislative history speaks
authoritatively about its meaning. The House Committee Report says
_________________________________________________________________

10 The majority attempts to characterize some of my frank, step-by-step
analysis as concession. See ante at 13. In the end, however, the grim
and disabling nature of asymptomatic HIV is undeniable.

                     44
that "a person infected with the Human Immunodeficiency Virus is
covered under the first prong of the definition of the term `disability'
because of the substantial limitation to procreation and intimate sex-
ual relationships." H.R. Rep. No. 101-485, pt. 2, at 52, reprinted in
1990 U.S.C.C.A.N. 303, 334. Thus, the legislative history confirms
not only that procreation and intimate sexual relationships are major
life activities but also that such activities are substantially limited by
HIV.

The regulations are less decisive but also offer support for amici's
position. Procreation and intimate sexual relations are not included in
the list of major life activities. See 29 C.F.R. § 1630.2(i) ("Major Life
Activities means functions such as caring for oneself, performing
manual tasks, walking, seeing, hearing, speaking, breathing, learning,
and working."). However, by beginning its list with the words "such
as," the regulation indicates that its list is not intended to be exclusive.
See also 29 C.F.R. pt. 1630, app. § 1630.2(i) ("This list is not exhaus-
tive."). The appendix to the regulations specifically states that "[o]ther
impairments, . . . such as HIV infection, are inherently substantially
limiting." Id. pt. 1630, app. § 1630(j) (discussing the definition of
"substantially limits"). Since we must give an agency's interpretation
of its own regulation "controlling weight unless it is plainly erroneous
or inconsistent with the regulation," Thomas Jefferson Univ. v.
Shalala, 512 U.S. 504, 512 (1994) (quotations omitted), the EEOC's
interpretation resolves the issue.

The majority nevertheless holds that asymptomatic HIV does not
substantially limit procreation or intimate sexual relations for pur-
poses of the ADA. The majority bases this holding on a distinction
it draws between an impairment that is substantially limiting as a
physical matter and an impairment that is substantially limiting as a
behavioral matter. According to the majority, an impairment is only
a disability under the ADA if it is substantially limiting as a physical
matter. In other words, the impairment must render the individual
physically incapable of performing the activity.

While it has some intuitive plausibility, this distinction is nowhere
within the text, legislative history, or regulatory interpretation of the
ADA. The text only requires "a physical or mental impairment that
substantially limits one or more of the major life activities." There is

                     45
no requirement that the impairment physically limit the life activity,
nor is there any specification about how the impairment must substan-
tially limit that activity. Once again, the majority has no authority to
bolster its interpretation. The legislative history makes no mention of
such a distinction and, as noted above, says specifically that HIV does
substantially limit procreation and intimate sexual relationships. The
EEOC regulations do not draw such a distinction; they instead create
a broad definition that easily covers asymptomatic HIV. See 29
C.F.R. § 1630.2(j)(ii) (defining "substantially limits" in part as
"[s]ignificantly restricted as to the condition, manner or duration
under which an individual can perform a particular major life activity
as compared to the condition, manner, or duration under which the
average person in the general population can perform that same major
life activity"). And, as noted above, the EEOC's interpretation of its
regulations directly states that HIV is "inherently substantially limit-
ing." 29 C.F.R. pt. 1630, app. § 1630(j).

Moreover, the majority's distinction goes against common sense.
The majority claims that "as a physical matter, nothing inherent in the
virus substantially limits procreation or intimate sexual relations."
Ante at 22 (emphasis in original). It is HIV's physical effects, how-
ever, upon procreation and intimate sexual relations that make it sub-
stantially limiting. An individual with HIV stands a significant chance
of infecting others if he engages in these activities, and this prospect
of spreading the disease is a substantial limitation. See Memorandum
from Douglas W. Kmiec, Acting Assistant Attorney General, Office
of Legal Counsel, to Arthur B. Culvahouse, Jr., Counsel to the Presi-
dent (Sept. 27, 1988), reprinted in 8 Fair Empl. Prac. Manual (BNA)
No. 641 at 405:1, 405:7 [hereinafter Kmiec Memorandum] ("There is
little doubt that procreation is a major life activity and that the physi-
cal ability to engage in normal procreation -- procreation free from
the fear of what the infection will do to one's child -- is substantially
limited once an individual is infected with the AIDS virus.").11 As the
_________________________________________________________________

11 The majority goes to great pains to try to distinguish the Kmiec
Memorandum. See ante at 21-22. In support of its position, the majority
quotes the memorandum as stating "there is nothing inherent in the
[HIV] infection which actually prevents either procreation or intimate
relations." Ante at 22 (quoting Kmiec Memorandum at 405:7). The
majority takes this quotation out of context, however, and thereby dis-

                    46
court said in Abbott, "[n]o reasonable juror could conclude that an 8%
risk of passing an incurable, debilitating, and inevitably fatal disease
to one's child is not a substantial restriction on reproductive activity."
Abbott, 107 F.3d at 942.12

The majority also claims that even if individuals with asymptom-
atic HIV can be substantially limited in a major life activity, Runne-
baum has presented no evidence that he himself has been so limited.
Once again, however, the majority is using the fact that NationsBank
conceded this issue in district court to prejudice Runnebaum in this
court. Regarding procreation, the majority notes that "nothing in the
record so much as suggests that Runnebaum was at all interested in
fathering a child." Ante at 23. Of course, since his disability was
uncontested in district court, he had no reason to offer such evidence
in the summary judgment proceedings. Regarding intimate sexual
relations, the majority makes this bold assertion: "the record makes
clear that Runnebaum's ability to engage in intimate sexual relations
was not substantially limited by his HIV infection; the record shows
that he concealed his HIV infection from his lover." Ante at 23. That
is too much of a leap for me. I would not presume to know the status
of Runnebaum's "intimate sexual relations" merely because he has a
boyfriend. Again, Runnebaum has had no occasion or reason to testify
about the effect that HIV has had upon his sexual relations.
_________________________________________________________________

torts its meaning. The actual sentence is: "Thus, it might be asserted that
there is nothing inherent in the infection which actually prevents either
procreation or intimate relations." Kmiec Memorandum at 405:7. This
sentence is followed by a footnote, which states: "As indicated in the
text, we think this argument is disingenuous at least insofar as infection
physically precludes the normal procreation of healthy children." Id. at
405:7 n.13.

12 The Abbott court noted that a pregnant woman with HIV stands an
8% chance of viral transmission to her child if she was taking the drug
azidothymidine (AZT) and a 25% chance of transmission if not taking
AZT. Abbott, 107 F.3d at 942. Although the court did not specify the
source of this information, it presumably was based on evidence in the
case. Since NationsBank did not contest disability, we have no evidence
in this case as to the risk of transmission from a man to his child or his
sexual partner.

                    47
3.

The majority has effectively amended 42 U.S.C. § 12102(2)(A) to
exclude individuals with asymptomatic HIV. It effects this result
through a dizzying flurry of alternate holdings: asymptomatic HIV is
never an impairment; even if it can be an impairment, Runnebaum has
not proven that he is impaired; even if it always is an impairment,
then it does not substantially limit major life activities; even if it can
substantially limit major life activities, Runnebaum has not proven
that he is so limited. These alternate holdings might betray an uncer-
tainty on the majority's part, but they do not lessen the authority of
any particular holding. The majority's opinion must be taken for what
it is: a per se rule that excludes those with asymptomatic HIV from
the protections of the ADA. This result runs counter to the statutory
text, medical research, legislative history, administrative regulations,
and even our decision in Ennis. This result is plainly wrong.

B.

Runnebaum could alternatively be protected under the ADA if he
meets the requirements of 42 U.S.C. § 12102(2)(C). That provision
defines a disability as "being regarded as having such an impairment."
The "such an impairment" language apparently refers to the definition
of impairment in § 12102(2)(A): "a physical or mental impairment
that substantially limits one or more of the major life activities of such
individual." EEOC regulations provide three ways that an individual
may be regarded as having "such an impairment:"

        (1) Has a physical or mental impairment that does not sub-
        stantially limit major life activities but is treated by a cov-
        ered entity as constituting such limitation;

        (2) Has a physical or mental impairment that substantially
        limits major life activities only as a result of the attitudes of
        others toward such an impairment; or

        (3) Has none of the impairments defined in . . . this section
        but is treated by a covered entity as having a substantially
        limiting impairment.

                     48
29 C.F.R. § 1630.2(l).

The majority holds that none of the evidence produced by Runne-
baum "is sufficient to create a genuine issue of fact concerning the
perception of Runnebaum's HIV infection held by the relevant deci-
sionmakers at NationsBank." Ante at 25. The majority discusses three
items of evidence on this issue: the opening of Runnebaum's AZT
packages by bank employees, Michael Brown's reaction to the news
of Runnebaum's HIV status, and Ann Pettit's ultimate decision to fire
Runnebaum. It then concludes that this evidence does not preclude
summary judgment. In reaching this conclusion, however, the major-
ity understates the evidence showing that Runnebaum was regarded
as disabled, and it inexplicably makes inferences in favor of Nations-
Bank. When Runnebaum's evidence is considered fully and all rea-
sonable inferences are made in his favor (a must on summary judg-
ment), it becomes clear that there is a genuine factual issue about
whether the bank considered Runnebaum to be disabled.

Runnebaum never explicitly addressed this issue, since it was not
raised in district court. However, he did produce evidence relevant to
the issue that was contested, namely, whether NationsBank fired him
because of his HIV-positive status. This evidence is also relevant to
whether NationsBank regarded Runnebaum as being disabled. After
all, if the bank fired Runnebaum because of his HIV status, then it
must have regarded him as substantially limited in his ability to work.

There is not a great deal of direct evidence that the bank regarded
Runnebaum as disabled. This should not be surprising, however,
because "only rarely will a plaintiff have direct evidence of discrimi-
nation." Geraci v. Moody-Tottrup, Int'l, Inc., 82 F.3d 578, 581 (3d
Cir. 1996). Moreover, we are only concerned at this stage with
whether there is a material issue of fact. Runnebaum's direct evidence
is the testimony of Michael Brown, the bank's Baltimore city man-
ager for the trust department. Brown was the senior managing officer
for the group in which Runnebaum worked, and Runnebaum's corre-
spondence was sent out over Brown's signature. Brown also stayed
in close contact with Ann Pettit, Runnebaum's departmental supervi-
sor, and Brown advised Pettit extensively on Runnebaum's perfor-
mance. One night, on a social occasion, Runnebaum told Brown of

                    49
his HIV-positive status. Brown described his reaction to the news as
follows:

        My feeling about that whole evening, I mean, it almost
        knocked the wind out of me, because I had never been in a
        situation and had never known anybody on a daily basis or
        knowingly worked with anybody, and it never crossed my
        mind.

        . . . . 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. 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 pan-
        icky, uncontrolled.

J.A. 507-08. This direct evidence is bolstered by a variety of circum-
stantial evidence that NationsBank regarded Runnebaum as disabled.
First, there is evidence that the bank knew of Runnebaum's HIV sta-
tus. Obviously, Brown knew that Runnebaum was HIV-positive, and
Brown passed this information on to Pettit at some point before Run-
nebaum was fired.13 In addition, Runnebaum ordered a prescription
for the drug azidothymidine (AZT) through the bank health plan, and
packages of AZT that were delivered to the bank were twice opened
by bank personnel. Second, there is evidence that the reasons given
for Runnebaum's firing were pretextual. The following is a brief sum-
mary of such evidence.

       - When Runnebaum first came to NationsBank, he worked
       in the private banking department. When he applied for
       a position in the trust department, bank policy dictated
       that he could only be considered for the transfer if he
       was "performing at a satisfactory level or above in [his]
_________________________________________________________________

13 It is unclear when Brown told this to Pettit. Pettit believes it was
"[p]robably towards the end of November," J.A. 317, and Brown thinks
that he told her at an early December meeting with Philip Cawley,
NationsBank's personnel manager. However, Cawley is emphatic that
this information was not discussed at the December meeting.

                    50
current position." J.A. 276. Runnebaum's supervisor cer-
tified that his performance met this requirement, stating
that he had "good skills and is a valuable member of the
PB [private banking] team." J.A. 276.

- Ann Pettit claims that she made the decision to fire Run-
nebaum in early November 1992. However, she made no
record of this decision, nor did she counsel Runnebaum
that his job was in serious jeopardy. After she suppos-
edly made this decision, she placed Runnebaum in
charge of planning and hosting the major marketing
event of the year, NationsBank's "Greater Baltimore
Holiday Reception," which had a $10,000 budget and
involved over 400 clients, potential clients, and those
who could refer clients. Additionally, she sent Runne-
baum a note on December 9 that said: "William-- I'm
thrilled that you're a part of our group. I look forward
to seeing you shine." J.A. 431.

- In a January 7, 1993, memorandum written by Pettit
describing the reasons for Runnebaum's firing, she
claims that he failed to attend a sufficient number of
"prospect" sales calls. However, Runnebaum was denied
credit for calls he made with Brown and Sara Tapiero,
a portfolio manager, as well as those he made alone. He
was even denied credit for three calls (he made alone)
that resulted in actual sales. Another employee in the
same sales position as Runnebaum, Clifford Andersson,
was given credit for calls he made with Brown and
Tapiero, as well as those he made alone.

- Runnebaum had nearly $5 million in sales by the end of
1992, which brought $21,900 in fees to the bank.
Although this fell short of the targeted $40,000 in fees,
Andersson had the same target and only brought in
$275,000 in sales and $2,750 in fees. Andersson was not
fired. Andersson also shared Runnebaum's alleged fail-
ure to submit timely activity and sales call reports. Pettit
acknowledged that "both of them had slacked off" early

            51
        in their tenure. J.A. 371. She counseled both men, and
        the timeliness of their reports thereafter improved.

        - Runnebaum also provided evidence to dispute the other
        reasons for his firing listed in Pettit's January 7 memo-
        randum. Pettit faulted Runnebaum for failing to attend
        any meetings of the Baltimore Estate Planning Council,
        but no meetings were scheduled during Runnebaum's
        tenure in trusts. Pettit also said that Runnebaum failed to
        send copies of his correspondence to her, but all of Run-
        nebaum's correspondence went out over Brown's signa-
        ture and Runnebaum "feel[s] certain" that he told Pettit
        about this arrangement. J.A. 240. Regarding Pettit's
        complaints about his allegedly inappropriate behavior,
        Brown recalled that Pettit's initial reaction was that "he
        is young" and "he has got to learn that it is okay not to
        say anything." J.A. 66. Additionally, it made no sense
        for Pettit to assign Runnebaum responsibility for an
        important public relations effort, the holiday reception,
        if she was concerned about how he would conduct him-
        self.

In sum, Runnebaum has presented evidence that the bank knew of
his HIV status, that the reasons given for his firing were pretextual,
and that a senior bank officer was "panicky" and "uncontrolled" when
he learned of Runnebaum's HIV status. This evidence creates an issue
of material fact as to whether Runnebaum was "regarded as" having
a disability.

The majority's analysis of the evidence on this issue is flawed in
several respects. First, it understates the evidence that supports Run-
nebaum's position. It ignores most of the circumstantial evidence and
takes the "divide and conquer" approach to the rest, analyzing it in
pieces rather than considering it as a whole. Second, it only finds
Brown's testimony relevant to show that the bank was aware of Run-
nebaum's HIV status. However, Brown's "panicky" reaction to Run-
nebaum's revelation shows that at least one bank officer may have
regarded Runnebaum as disabled. Finally, and most inexplicably, the
majority finds that Pettit definitely decided to fire Runnebaum on
November 3, 1992. The majority talks about this finding as if it was

                    52
uncontroverted fact. See ante at 26 ("Although Pettit knew that Run-
nebaum was HIV-positive when she discharged him, she did not pos-
sess this knowledge when she decided to fire him on November 3,
1992." (emphasis in original)). The timing of Pettit's decision, how-
ever, is sharply contested by the parties, and there is considerable cir-
cumstantial evidence that she did not decide to fire him on November
3. More than two months elapsed between her supposed date of deci-
sion and Runnebaum's ultimate discharge. She never warned Runne-
baum that his job was in serious jeopardy. Moreover, after she
supposedly decided to fire Runnebaum, she immediately assigned
him an important marketing project and she sent him a glowing note
saying she was "thrilled" that he was part of her team. Although Pettit
and Brown did testify that Pettit made the discharge decision on
November 3, the majority never explains why their testimony must be
believed when it is contradicted by Pettit's own actions reflecting
confidence in Runnebaum. The majority's unquestioning acceptance
of Pettit's testimony cuts against the most basic principle of summary
judgment: "all justifiable inferences are to be drawn in [the non-
movant's] favor." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986). The majority states this principle, see ante at 7, but then fails
to follow it in this most important instance.

It may be that "the mere fact that an employer is aware of an
employee's impairment is insufficient to demonstrate either that the
employer regarded the employee as disabled or that that perception
caused the adverse employment action." Kelly v. Drexel Univ., 94
F.3d 102, 109 (3d Cir. 1996). Runnebaum presents much more, how-
ever, than mere evidence that NationsBank knew he was HIV-
positive. He presents strong circumstantial evidence that the reasons
offered by the bank for his termination were pretextual, and he pres-
ents direct evidence that he was regarded as disabled. Although a jury
could reasonably find against Runnebaum, there is sufficient evidence
here to create an issue of material fact.

III.

The majority's determination that Runnebaum does not have a dis-
ability would dispose of the case. However, the majority does not
limit itself to the series of holdings that make up its disability determi-
nation. It goes on to hold that Runnebaum did not meet the legitimate

                     53
expectations of NationsBank, that Runnebaum cannot raise a reason-
able inference of unlawful discrimination, and that the bank articu-
lated legitimate, non-discriminatory reasons for Runnebaum's
discharge, reasons Runnebaum failed to prove were pretextual. All of
these additional holdings are based on the same premise: that Runne-
baum "did not meet NationsBank's legitimate expectations for his
employment." Ante at 27.

As I outline above in part II.B., Runnebaum presents significant
evidence that he met NationsBank's legitimate expectations and that
the reasons provided for his firing were pretextual. Before Runne-
baum transferred to the trust department, his supervisor in the private
banking department certified that he was performing satisfactorily and
was "a valuable member of the [private banking] team." J.A. 276.
While in trusts Runnebaum made nearly $5 million in sales, bringing
$21,900 in fees to the bank. Although these amounts fell short of the
targets set by Pettit, Runnebaum did much better than Andersson,
who was not fired. Runnebaum also supervised two important
NationsBank marketing events which went off well.14 Concerning
Runnebaum's alleged failure to make the targeted number of sales
calls, Runnebaum was denied credit for many of the sales calls he
made, but Andersson received credit when he made similar calls.
Runnebaum's failure to attend any meetings of the Baltimore Estate
Planning Council can be explained by his assertion that no such meet-
ings were held during his tenure in trusts, and he explains his failure
to send copies of his correspondence to Pettit by indicating that she
knew his correspondence was reviewed by Brown. Finally, concern-
ing his allegedly inappropriate behavior, Runnebaum contends that
his behavior was not out of line with the general tone of the office,
which was "highly energized" and prone to"a lot of horseplay." J.A.
569. It would also make little sense for Pettit to assign Runnebaum
responsibility for important marketing events if she was concerned
about inappropriate behavior.
_________________________________________________________________

14 In addition to the "Greater Baltimore Holiday Reception" discussed
above, Runnebaum planned a reception for McGuire, Woods, Battle &
Boothe, a law firm that could refer trust business to the bank. After the
latter reception Brown sent Runnebaum a handwritten "note of thanks
and congratulations" for handling the event. J.A. 432.

                    54
In order to survive summary judgment, Runnebaum must forecast
evidence showing a genuine issue of material fact on the ultimate
question of pretext and discrimination. See Mitchell v. Data General
Corp., 12 F.3d 1310, 1316 (4th Cir. 1993). He has done so. Runne-
baum's evidence, if believed at trial, supports reasonable "disbelief of
the reasons put forward by the defendant" and "rejection of the defen-
dant's proffered reasons," which would permit a reasonable finder of
fact to "infer the ultimate fact of intentional discrimination." St.
Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 511 (1993). I would there-
fore reverse the district court's grant of summary judgment and
remand for trial.15

IV.

When Congress was considering enacting civil rights legislation for
those with disabilities, the Presidential Commission on the HIV Epi-
demic made the following plea:

        Comprehensive Federal anti-discrimination legislation,
        which prohibits discrimination against persons with disabili-
        ties in the public and private sectors, including employment,
        housing, public accommodations, and participation in gov-
        ernment programs should be enacted. All persons with
        symptomatic or asymptomatic HIV infection should be
        clearly included as persons with disabilities who are covered
        by the anti-discrimination protections of this legislation.

S. Rep. No. 101-116, at 19. It is apparent from the ADA's volumi-
nous legislative history that Congress thought the ADA accomplished
this. It was not alone. President Bush "call[ed] on the Congress to get
on with the job of passing a law -- as embodied in the Americans
with Disabilities Act -- that prohibits discrimination against those
with HIV and AIDS." Remarks by President Bush to Business Lead-
ership, March 29, 1990, reprinted in 136 Cong. Rec. S9545 (daily ed.
July 11, 1990). The subsequent regulations which define HIV to be
a disability reinforce the scope of this consensus.
_________________________________________________________________

15 Since, as the majority says, "[a]s goes Runnebaum's ADA claim, so
goes his ERISA claim," ante at 29, I would also reverse the grant of sum-
mary judgment to the bank on the ERISA claim.

                    55
The majority's decision amounts to an outright repeal of Con-
gress's effort through the ADA to fight discrimination against those
with asymptomatic HIV. Again, I respectfully dissent.

Judges Hall, Murnaghan, Ervin, and Motz join this dissent.

                    56
