Pepperman v. Montgomery Cnty Bd ( 1999 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
JANICE PEPPERMAN,
Plaintiff-Appellant,
v.
MONTGOMERY COUNTY BOARD OF
No. 99-1366
EDUCATION; MONTGOMERY COUNTY
PUBLIC SCHOOLS; SUPERINTENDENT,
Montgomery County Public
Schools,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
J. Frederick Motz, Chief District Judge.
(CA-96-2292-JFM, CA-97-2558-JFM)
Submitted: November 16, 1999
Decided: December 2, 1999
Before WIDENER, MURNAGHAN, and TRAXLER,
Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Bruce M. Bender, VAN GRACK, AXELSON & WILLIAMOWSKY,
Rockville, Maryland, for Appellant. Patrick L. Clancy, David R. War-
ner, VENABLE, BAETJER & HOWARD, L.L.P., Rockville, Mary-
land, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Janice Pepperman appeals the district court's order granting sum-
mary judgment in favor of the Appellees on her disability discrimina-
tion claim. We affirm. We also deny the Appellees' request that we
take judicial notice of certain facts.
I.
Pepperman was a public school teacher in Montgomery County,
Maryland. From 1988 to 1997, she was the resource teacher--a posi-
tion equivalent to department head--for the foreign languages depart-
ment at Quince Orchard High School. During that period, she
engaged in an escalating conflict with three teachers under her super-
vision. In 1997, the administration at Quince Orchard recommended
that she be removed from her position as resource teacher due to her
inability to resolve this problem within her department.
Pepperman attributes both the animosity of the three teachers and
her treatment by the school administration to the fact that she is mor-
bidly obese. According to her proffers below, her weight prevents her
from walking quickly or for long distances. Thus, she contends, her
obesity is a disability, and the actions of the teachers and administra-
tion at Quince Orchard violated the Americans with Disabilities Act
("ADA").
II.
This appeal arises from a case that was filed in a Maryland court,
removed to federal court by the Appellees, and consolidated by joint
motion with another case filed by Pepperman against the Montgom-
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ery County Board of Education. The district court granted summary
judgment in favor of the Board on all of Pepperman's claims. We
review that decision de novo. See Shaw v. Stroud , 13 F.3d 791, 798
(4th Cir. 1994).
Pepperman initially contends that the lower court overlooked evi-
dence that her supervisor violated the ADA's anti-threat provision, 42
U.S.C. § 12203(b) (1994). This argument fails on two procedural
grounds. First, it was not made below, so it is not properly before us.
See Karpel v. Inova Health Sys. Servs., 134 F.3d 1222, 1227 (4th Cir.
1998). Second, even if it had been raised below, it would have been
untimely. See 42 U.S.C. §§ 2000e-5(e)(1), 12117 (1994); McCullough
v. Branch Banking & Trust Co., 35 F.3d 127, 131 (4th Cir. 1994).
Pepperman next asserts that the district court erred in granting sum-
mary judgment as to her claim that the Quince Orchard administration
retaliated against her for her assertion of her rights under the ADA.
We assume without deciding that all of the decisions about which
Pepperman complains amounted to adverse employment actions and
that Pepperman has made out a prima facie case that these actions
were retaliatory. Nevertheless, summary judgment was proper,
because the School Board proffered an alternative explanation for its
conduct (the conflict between Pepperman and three teachers in her
department), and Pepperman has not shown that this explanation was
pretextual. See Tinsley v. First Union Nat'l Bank, 155 F.3d 435, 442
(4th Cir. 1998) (discussing the framework for analyzing retaliation
claims). The evidence offered by Pepperman to undermine the
Board's explanation fails because it focuses on her own views and
those of outside observers, not the perceptions of the decision makers
accused of discrimination. See Beall v. Abbot Labs., 130 F.3d 614,
620 (4th Cir. 1997).
Pepperman's third challenge to the district court's decision relates
to her claim that her co-workers violated the ADA by engaging in dis-
ability harassment. The district court found that, despite the effects of
her obesity, Pepperman is not disabled within the meaning of the
ADA and therefore does not qualify for the statute's protection. We
agree. See Kelly v. Drexel Univ., 94 F.3d 102, 105-08 (3d Cir. 1996);
Penchisen v. Stroh Brewery Co., 932 F. Supp. 671, 674-75 (E.D. Pa.
1996), aff'd, No. 96-1807 (3d Cir. May 9, 1997) (unpublished);
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Hazeldine v. Beverage Media, Ltd., 954 F. Supp. 697, 703-05
(S.D.N.Y. 1997).
For the foregoing reasons, we affirm the district court's decision
granting summary judgment in favor of the Montgomery County
Board of Education. In light of this disposition, we decline to take
judicial notice of three decisions by Maryland courts, as requested by
the School Board. We dispense with oral argument because the facts
and legal contentions are adequately presented in the materials before
the court and argument would not aid the decisional process.
AFFIRMED
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