                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                         MAY 6 2003
                               TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                               Clerk

 CHRISTINA KOURIANOS,

             Plaintiff - Appellant,

 v.                                                     No. 02-4094
                                                  D.C. No. 2:00-CV-799-S
 SMITH’S FOOD & DRUG                                     (D. Utah)
 CENTERS, INC.; ART HENRY,

             Defendants - Appellees.


                          ORDER AND JUDGMENT *


Before HARTZ and McKAY, Circuit Judges, and BRORBY, Senior Circuit
Judge.



      This Americans with Disabilities Act (“ADA”) hostile work environment

discrimination and retaliation claim stems from Plaintiff-Appellant’s former

employment with Smith’s Food & Drug Centers. The district court granted

summary judgment in favor of Smith’s, holding that there was insufficient

evidence in the record to demonstrate that Appellant was either disabled or



      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
perceived as disabled for purposes of establishing that she was a qualified

individual with a disability pursuant to the ADA. The district court did not

address whether Appellant offered sufficient evidence of a hostile work

environment since she failed to meet ADA threshold requirements. The court also

dismissed Appellant’s retaliation claim.

      On appeal, Appellant contends that the district court committed reversible

error in concluding that she had not offered sufficient evidence demonstrating

that her diagnosed depression and anxiety substantially limited the major life

activity of “emotional stability.” Appellant does not appeal the district court’s

holding that there is no evidence that she was regarded as being disabled by

Smith’s or that she had a record of disability as defined by the ADA. Appellant

does not appeal the dismissal of her claim for retaliation.

      The issue we must address is whether the district court erred in granting

summary judgment to Smith’s and in concluding that Appellant’s deposition

testimony categorically refuted her ADA claim that she suffered a substantial

limitation of a major life activity arising out of her diagnosed depression and

anxiety. Appellant’s deposition testimony, relied on by the district court as

refuting her claim, was that Appellant perceived herself as functioning normally

in society and able to maintain good interpersonal relationships, care for herself

and her small child, attend college part-time, and perform all of her job


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requirements satisfactorily. Aplt. App. at 95-96, 100, 107-110, 132-37.

      We review de novo a grant of summary judgment, viewing the evidence in a

light most favorable to the non-moving party and applying the same legal

standards as the district court. Steele v. Thiokol Corp., 241 F.3d 1248, 1252

(10th Cir. 2001); Charter Canyon Treatment Ctr. v. Pool Co., 153 F.3d 1132, 1135

(10th Cir. 1998).

      An ADA claim requires a plaintiff, as a threshold matter, to show “that she

is a qualified individual with a disability” as defined by the ADA. Steele, 241

F.3d at 1252 (internal quotations omitted). A disability is “a physical or mental

impairment that substantially limits one or more of the major life activities of

such individual; a record of such an impairment; or being regarded as having such

an impairment.” 42 U.S.C. § 12102(2). Additionally, “the ADA demands that we

examine exactly how [a plaintiff’s] major life activities are limited by his [or her]

impairment.” Steele, 241 F.3d at 1253. We must determine the effect of the

impairment on the life of the individual–that is, the effect of Appellant’s alleged

anxiety and depression on one or more of Appellant’s major life activities.

      We agree with the district court that Appellant’s deposition testimony

conclusively establishes that she did not suffer a substantial limitation in any

major life activity arising from her alleged depression and anxiety. The district

court stated:


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      Plaintiff admits that she is able to meet all of the demands associated
      with caring for herself and her daughter. Plaintiff has testified that
      she generally is able to maintain friendships and interpersonal
      relationships. Plaintiff generally perceives herself as able to function
      normally in society. She is able to attend classes part time at College
      of Eastern Utah. From January 1997 until she quit in May, 1999,
      Plaintiff was able to perform her work as a checker and courtesy
      clerk at Smith’s Price store, which included working with the public,
      checking groceries, making change, handling money, remembering
      codes, knowing departments, etc. Although Plaintiff gets anxiety
      attacks, and as a result she has trouble breathing which forces her to
      take a break from work, she testified that they only occur several
      times a year.

Aplt. App. at 284 (internal citations omitted).

      Appellant argues that the district court improperly gave greater weight to

the evidence of her overall functionality while ignoring the evidence of the

permanency and severity of her depression and anxiety. She argues that the

evidence reveals that she attempted suicide, washed her hands compulsively,

suffered two failed relationships, was only able to maintain a “D” average in

college, and was incapable of living independent from her parents. According to

Appellant, this is evidence that she has a severe disability which affects the major

life functions of forming conjugal relationships, socializing, and learning–in

short, the major life function of maintaining emotional stability.

      However, Appellant’s counsel has offered no expert testimony that his

client was unable to accurately perceive her own level of functioning. As such, it

appears from the record that Appellant was capable of self-evaluation and that she


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was able to accurately perceive her own level of functioning. As the district court

noted, Appellant testified that she perceived herself as functioning normally in

society. She felt that she was able to maintain good interpersonal relationships,

care for herself and her small child, attend college part-time, and perform all of

her job requirements satisfactorily. Aplt. App. at 95-96, 100, 107-110, 132-37.

Additionally, Appellant’s psychologist, Dr. Manwill, testified that “to a large

extent . . . she was capable” of “describ[ing] how she felt or what she could do.”

Aple. Supp. App. at 14-15.

      Even if the evidence offered by Appellant supports her assertion that she

had an impairment, it does not address the extent to which the alleged impairment

substantially limited her in performing a major life activity. It is not sufficient

for Appellant to demonstrate that she has an impairment and symptoms that arise

from the impairment; she must also demonstrate how her impairment and

symptoms substantially limit her in performing one or more major life activities.

Appellant has not done this. There is nothing in the record to demonstrate that

Appellant could not perform the functions and activities of daily life or that her

impairment and symptoms substantially limited her functions and activities.

      Because Appellant has not established, as a threshold matter, that she was




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substantially limited in a major life activity, 2 we are not required to address the

novel question of whether emotional stability can be a recognized ADA major life

activity. We are also not required to address the effect of Appellant’s failure to

raise the major life activity of emotional stability argument at the district court

level. We are reluctant to categorically refute an entire class of plaintiffs that all

have distinctly different mental impairments that may or may not substantially

limit a major life activity. 3

       For the foregoing reasons, the decision of the district court is AFFIRMED.

                                                Entered for the Court



                                                Monroe G. McKay
                                                Circuit Judge




       2
        Even if we assume for the sake of argument that emotional stability is a
recognized major life activity, Appellant has not established that she was limited
in a substantial way as required by 42 U.S.C. § 12102(2).
       3
         “We have not decided whether ‘interacting with others’ is a major life
activity and there is a split among the circuits on the issue. Compare Soileau v.
Guilford of Maine, Inc., 105 F.3d 12, 15 (1st Cir. 1997), with McAlindin v.
County of San Diego, 192 F.3d 1226, 1234-1235 (9th Cir. 1999).” Steele, 241
F.3d at 1253.

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