Marlon v. Western New England College , 124 F. App'x 15 ( 2005 )

Not For Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 04-1096
DIANNE MARLON,
Plaintiff, Appellant,
v.
WESTERN NEW ENGLAND COLLEGE,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Douglas P. Woodlock, U.S. District Judge]
Before
Boudin, Chief Judge,
Torruella and Howard, Circuit Judges.
Dianne Marlon on brief pro se.
Cheryl I. Smith on brief for appellee.
January 11, 2005
Per Curiam. Former law school student, plaintiff-
appellant Dianne Marlon, appeals from the district court's grant of
summary judgment in favor of defendant-appellee Western New England
College ("College"), in her action alleging failure to provide
reasonable accommodation under the Americans with Disabilties Act
(ADA), 42 U.S.C. § 12101 et seq., the Rehabilitation Act of 1973,
29 U.S.C. § 794, and the Massachusetts Equal Rights Act, Mass. Gen.
Laws ch. 93, § 103.
Appellant seeks relief pursuant to Fed.R.Civ.P. 60(b), on
the grounds of newly discovered evidence and errors by her
attorney. However, those claims have not been presented to the
district court and cannot be raised for the first time in this
court. See Tiller v. Baghdady, 294 F.3d 277, 280 n.3 (1st Cir.
2002). "New evidence is not to be proffered for the first time on
appeal." In re Colonial Mortgage Bankers Corp., 186 F.3d 46, 51 (1st
Cir. 1999). And, "[w]e have repeatedly held that 'the acts and
omissions of counsel are customarily visited upon the client in a
civil case.'" Hoult v. Hoult, 57 F.3d 1, 5 n.3 (1st Cir. 1995).
Marlon's remaining claims are that the district court
erred in determining 1)that she was neither substantially limited
by her impairments in the major life activities of learning and
working, nor so regarded by the defendant, and therefore not
covered under the ADA and the Rehabilitation Act, and 2) that
Marlon had abandoned her claim that carpal tunnel syndrome (CTS)
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substantially limited her major life activities of working and
learning.
As challenges to the district court's grant of summary
judgment, the claims are reviewed de novo. Gelabert-Ladenheim v.
American Airlines, 252 F.3d 54, 58 (1st Cir. 2001). "In assaying
the record, we are guided by the same tenets that guided the lower
court. Thus we are duty bound to indulge all reasonable inferences
in favor of the party opposing summary judgment. This generous
outlook notwithstanding, we must disregard improbable or overly
attenuated inferences, unsupported conclusions, and rank
speculation." Abbott v. Bragdon, 107 F.3d 934, 938 (1st Cir. 1997),
vacated in part on other grounds, 524 U.S. 624 (1998).
Having carefully reviewed the record and briefs and
considered the parties' arguments, we conclude for essentially the
reasons articulated by the district court, that Marlon has failed
to raise a material issue of fact that she was disabled under the
relevant statutes. With respect to her suggestion that the College
"regarded her" as disabled under subsection (C) of § 12102(2) of
the ADA, the only evidence that Marlon provided was that the
College provided her with certain accommodations for her condition.
That is insufficient evidence to create a triable issue on whether
the College regarded her as disabled. See Thorton v. McClatchy
Newspapers, Inc., 261 F.3d 789, 798 (9th Cir. 2001). Marlon
presented no evidence that the College maintained any
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"misperceptions" about her condition. See Mahon v. Crowell, 295
F.3d 585, 592 (6th Cir. 2002) (upholding summary judgment on ground
that plaintiff not regarded as disabled under the ADA where
plaintiff "has not shown that [the employer] held any mistaken
belief about him").
Marlon argues that the district court erroneously
concluded from the transcript of the summary judgment hearing
before Judge Freedman that plaintiff had "abandoned" the argument
that her CTS limited a major life activity. See Appellant's Brief,
p. 23. The transcribed exchange between plaintiff's counsel and
Judge Freedman supports the district court's conclusion that the
claim was abandoned. See Sheehan v. Marr, 207 F.3d 35, 42 (1st Cir.
2000). Plaintiff's counsel stated that "our case is not carpal
tunnel syndrome" and that "[c]arpal tunnel syndrome may be a
disability if it substantially impairs. We don't believe that was
the problem here."
Even if the claim had not been abandoned, however, Marlon
has not raised a material issue of fact that CTS substantially
limited her ability to learn or work. The evidence on which
appellant relies does not support a finding that, with a college
degree and fifteen years of experience as a paralegal, Marlon would
be disqualified from a broad range of jobs or otherwise
substantially limited in her ability to work, when compared to the
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average person in the general population, because of her physical
limitations.
To fill the evidentiary gap, Marlon relies upon the
"newly discovered evidence." Even if that evidence could be
considered, however, the Certificate of Eligibility states that her
CTS "is not a barrier to employment at this time as she has already
purchased various equipment to assist in removing any barriers
[that CTS] may have presented." Appellant's Appendix, Exhibit A.
The "ADA's coverage is restricted to only those whose impairments
are not mitigated by corrective measures." Sutton v. United Air
Lines, Inc., 527 U.S. 471, 487 (1999).
Based upon our de novo review of the record, we also
agree with the district court that Marlon has not produced
evidence that her CTS substantially limited her ability to learn.
The district court's judgment granting defendant's motion
for summary judgment is affirmed.
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