Mancini v. City of Providence

United States Court of Appeals
For the First Circuit
No. 18-1011
MARK MANCINI,
Plaintiff, Appellant,
v.
CITY OF PROVIDENCE, by and through its Treasurer,
James J. Lombardi, III,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. William E. Smith, U.S. District Judge]
Before
Howard, Chief Judge,
Selya and Thompson, Circuit Judges.
Mark P. Gagliardi for appellant.
Kevin F. McHugh, Senior Assistant City Solicitor, with whom
Jeffrey Dana, City Solicitor, and Steven B. Nelson, Associate City
Solicitor, were on brief, for appellee.
November 21, 2018
SELYA, Circuit Judge. Plaintiff-appellant Mark Mancini
is a veteran police officer in Providence, Rhode Island (the City).
Following an injury that he sustained while on duty, Mancini sued
the City for discrimination under the Americans with Disabilities
Act (ADA), 42 U.S.C. §§ 12101-12213, and related state
antidiscrimination laws. The district court granted the City's
motion for summary judgment, and Mancini now appeals. Although
our reasoning differs to some extent from that of the district
court, we affirm.
I. BACKGROUND
We rehearse the facts in the light most hospitable to
Mancini, consistent with record support, and trace the travel of
the case. See Ahern v. Shinseki, 629 F.3d 49, 51 (1st Cir. 2010);
Gillen v. Fallon Ambul. Serv., Inc., 283 F.3d 11, 17 (1st Cir.
2002).
On November 15, 2010, Mancini (then a sergeant)
sustained a knee injury while in pursuit of a suspect. Mancini
received medical treatment, including arthroscopic surgery. He
was placed on injured on duty (IOD) status and remained out of
work until May of 2011. He was then placed on "light duty" (a
temporary assignment for officers on IOD status). That placement
lasted until August of 2011, when he was removed from light duty.
On September 2, 2011, Mancini filed for accidental
disability benefits, which, if granted, would effectively comprise
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an early retirement. Mancini alleges that this application was
not filed of his own volition but, rather, was filed at the behest
of his supervisor. In all events, the application was denied on
June 27, 2012, based on three independent medical examinations.
Thereafter, the City refused to allow Mancini to return to work on
light duty.
A few weeks before his accidental disability benefits
application was denied, Mancini sat for the 2012 lieutenants
promotional examination. As determined by the collective
bargaining agreement (CBA) between the City and the police union,
promotion to lieutenant is based on four components: a written
examination, level of seniority, level of education, and service
points awarded by the Chief of Police (the Chief). Candidates may
receive a score of up to 85 points for the written examination
and, for each of the remaining components, may receive up to 5
points.
Seniority and education levels have fixed formulae, with
points awarded for number of years in service and degrees earned,
respectively. The Chief has broad discretion with respect to the
award of service points, but the CBA specifies that letters of
commendation, letters of merit, and unused sick time may be taken
into account. When all is said and done, candidates are ranked
based on their final scores, and the City fills the available
positions from the top of the list.
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In June of 2012, Mancini scored a 92 on the written exam,
earning 78.2 points toward his final score. He received a full 5
points for seniority and a full 5 points for education. For the
service-point component — determined prior to the administration
of the written examination — the Chief awarded Mancini 0 points.
Mancini's aggregate score placed him seventh among the sixteen
aspirants. As the City had only five open lieutenant positions,
he was not promoted. One additional point would have altered the
mix and ensured his promotion.
Mancini did not accept his rejection lightly. He
exhausted his administrative remedies, filing charges of
disability discrimination with the Rhode Island Commission for
Human Rights and the United States Equal Employment Opportunity
Commission (EEOC). After obtaining right-to-sue letters from both
agencies, he sued the City in the United States District Court for
the District of Rhode Island.1 In material part, his complaint
alleged that the City discriminated against him on the basis of
his disability when the Chief awarded him no service points and,
thus, prevented him from obtaining a total score that would have
resulted in his promotion. He characterized the City's actions as
1 Mancini originally named the Chief as an additional
defendant. After receiving an answer to a certified question from
the Rhode Island Supreme Court, see Mancini v. City of Prov., 155
A.3d 159, 167 (R.I. 2017), the district court dismissed Mancini's
claims against the Chief. Mancini does not appeal this order of
dismissal, and we therefore treat the City as the sole defendant.
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a failure to promote on the basis of disability under the ADA and
under a gallimaufry of state laws. See, e.g., R.I. Gen. Laws
§ 42-112-1 et seq.; id. § 42-87-1 et seq.; id. § 28-5-1 et seq.
Following the close of discovery, the parties cross-
moved for summary judgment. The district court granted summary
judgment in favor of the City, concluding that Mancini had failed
to establish that he was disabled within the meaning of the ADA.
See Mancini v. City of Prov., 282 F. Supp. 3d 459, 467 (D.R.I.
2017). The district court likewise granted summary judgment for
the City on Mancini's state-law claims, reasoning that Mancini's
failure to show a cognizable disability scuttled those claims as
well. See id.; see also DeCamp v. Dollar Tree Stores, Inc., 875
A.2d 13, 25 (R.I. 2005) (characterizing the process of proving
disability under state law as "[p]aralleling the federal Americans
with Disabilities Act").
Mancini countered by filing a motion to vacate the
judgment. The district court denied that motion and this timely
appeal ensued.
II. ANALYSIS
On appeal, Mancini trains his fire on the district
court's entry of summary judgment against him on his ADA claims.2
2
Mancini does not challenge the district court's conclusion
that his state-law claims stand or fall in line with his federal
claims. Nor does he make any independent argument regarding the
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We review a district court's grant of summary judgment de novo,
mulling the summary judgment record and all reasonable inferences
therefrom in the light most agreeable to the nonmoving party (here,
Mancini). See Avery v. Hughes, 661 F.3d 690, 693 (1st Cir. 2011);
Mandel v. Bos. Phoenix, Inc., 456 F.3d 198, 204-05 (1st Cir. 2006).
We will affirm only if the record discloses "that there is no
genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law." Avery, 661 F.3d at 693 (quoting
Fed. R. Civ. P. 56(a)). To carry out this inquiry, we must
determine whether Mancini has produced "specific facts sufficient
to deflect the swing of the summary judgment scythe." Mulvihill
v. Top-Flite Golf Co., 335 F.3d 15, 19 (1st Cir. 2003).
"[C]onclusory allegations, improbable inferences, acrimonious
invective, or rank speculation" will not suffice. Ahern, 629 F.3d
at 54.
Under the ADA, the City, as a "covered entity," shall
not "discriminate against a qualified individual on the basis of
disability in regard to job application procedures, the hiring,
advancement, or discharge of employees, employee compensation, job
training, and other terms, conditions, and privileges of
employment." 42 U.S.C. § 12112(a). We apply the familiar
McDonnell Douglas burden-shifting framework in reviewing the entry
entry of summary judgment on those claims. Consequently, there is
no need for us to discuss the state-law claims.
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of summary judgment with respect to discrimination claims that
rely upon indirect evidence. See McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802-05 (1973).
This compendium of claims includes claims of disability
discrimination under the ADA. See Gillen, 283 F.3d at 29-30;
Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 264 (1st
Cir. 1999). When traveling the path demarcated by McDonnell
Douglas, a plaintiff must first establish a prima facie case of
discrimination. See Rathbun v. Autozone, Inc., 361 F.3d 62, 71
(1st Cir. 2004). This is a task that the Supreme Court has
described as "not onerous." Tex. Dep't of Cmty. Affairs v.
Burdine, 450 U.S. 248, 253 (1981).
As said, Mancini has characterized his claim as one
alleging a failure to promote on the basis of disability. The
prima facie elements of a failure-to-promote claim are that the
plaintiff "(i) is a member of a protected class who (ii) was
qualified for an open position for which [he] applied, but (iii)
was rejected (iv) in favor of someone possessing similar
qualifications." Rathbun, 361 F.3d at 71.3 These elements, if
3We note that Mancini's allegations are somewhat of a square
peg in the round hole of failure-to-promote claims. The
discriminatory action alleged is not that Mancini was "rejected"
for promotion to lieutenant because of his disability but, rather,
that the Chief's award of 0 service points was due to his
disability and negatively impacted the likelihood that Mancini
would achieve a total score that would entitle him to promotion.
Because we find that Mancini's claims fail for other reasons, see
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shown, "raise an inference of intentional discrimination,"
shifting the burden to the employer to articulate a legitimate,
nondiscriminatory reason for the challenged employment decision.
Id. Elsewise, "the inference of discrimination never arises, and
the employer's motion for summary judgment will be granted."
Mesnick v. Gen. Elec. Co., 950 F.2d 816, 824 (1st Cir. 1991).
It stands to reason that a plaintiff claiming disability
discrimination cannot satisfy the first element of his prima facie
case unless he can show that he has a disability within the meaning
of the ADA. See Ramos-Echevarría v. Pichis, Inc., 659 F.3d 182,
186 (1st Cir. 2011). In that regard, the ADA offers three
alternative definitions of disability: "a physical or mental
impairment that substantially limits one or more major life
activities," 42 U.S.C. § 12102(1)(A)4; "a record of such an
impairment," id. § 12102(1)(B); or "being regarded as having such
an impairment," id. § 12102(1)(C). There is no per se rule about
either the type or quantum of evidence that a plaintiff seeking to
establish a disability must supply. See Katz v. City Metal Co.,
87 F.3d 26, 32 (1st Cir. 1996).
text infra, we need not drill down into the ramifications of this
odd configuration.
4 This species of disability is sometimes referred to as
"actual disability." See Regulations to Implement the Equal
Employment Provisions of the Americans with Disabilities Act, as
Amended, 76 Fed. Reg. 16978, 16980 (Mar. 25, 2011).
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Here, the City argues that Mancini has not demonstrated
an impairment (and, thus, has not demonstrated a disability) within
the purview of the ADA. In support, the City points out that
Mancini failed to proffer any medical evidence showing an
impairment. The City's premise is correct: at summary judgment,
Mancini did not produce a shred of substantiating medical evidence.
But the City's conclusion does not follow: in the circumstances
of this case, the absence of medical evidence does not get the
City where it wants to go.
Whether medical evidence is necessary to support a
disability discrimination claim is a determination that must be
made on a case-by-case basis. See id. "Some long-term impairments
would be obvious to a lay jury (e.g., a missing arm)," and even
the "plaintiff himself . . . might offer a description of
treatments and symptoms over a substantial period that would put
the jury in a position where it could determine that he did suffer
from a disability within the meaning of the ADA." Id. It follows,
we think, that in evaluating whether medical evidence was required
to show that Mancini had a physical impairment, the critical
inquiry is whether a lay jury would be capable of making such an
assessment without medical evidence. See id. The district court
thought not: it ruled that Mancini's "actual disability" and
"record of disability" claims were defective for this reason. See
Mancini, 282 F. Supp. 3d at 467.
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Mancini's appeal takes aim at this ruling. Before
addressing his arguments, though, we pause to reflect upon the ADA
Amendments Act of 2008 (ADAAA), Pub. L. No. 110-325, 122 Stat.
3553, which applies in this case and which ushered in a brave new
world for disability discrimination claims.
In the ADAAA, Congress expressly rejected the strict
standards imposed on the definition of "disability" by the Supreme
Court and the EEOC. See id. § 2(b)(2-4). Congress accomplished
this reformation by amending the relevant provisions of the ADA to
include clarifying details, rules of construction, and examples
that underscore the broad applicability of the statute. See id.
§ 4; 42 U.S.C. § 12102. As enacted, the ADAAA specifically
admonished that "[t]he definition of disability . . . shall be
construed in favor of broad coverage of individuals . . . , to the
maximum extent permitted by the terms of this chapter." 42 U.S.C.
§ 12102(4)(A). The EEOC followed suit, promulgating new
regulations to like effect. See 29 C.F.R. § 1630.2.
It is against this backdrop that we examine Mancini's
assertion that he has a disability within the meaning of the ADA.
The first two definitions of disability — "actual disability" and
"record of disability" — represent two sides of the same coin.
Both definitions hinge on whether the plaintiff has shown a
physical or mental impairment that affects a major life activity,
and if so, whether the impairment substantially limits the major
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life activity. See Carroll v. Xerox Corp., 294 F.3d 231, 238 (1st
Cir. 2002); Lebron-Torres v. Whitehall Labs., 251 F.3d 236, 239-
40 (1st Cir. 2001).
There is a salient distinction between "actual
disability" and "record of disability" claims. "Actual
disability" requires a showing that the plaintiff has a cognizable
disability. See Ramos-Echevarría, 659 F.3d at 186. In contrast,
"record of disability" may be satisfied by a showing that the
plaintiff had a disability in the past (even though he no longer
suffered from that disability when the allegedly discriminatory
action took place). See id. at 190.
With these two definitions in place, we turn to Mancini's
plaint that his case was robust enough to survive summary judgment
under either definition. We begin with the question of whether
Mancini adequately established, for summary judgment purposes,
that he had a cognizable physical impairment.
Applicable regulations define physical impairment as
including "[a]ny physiological disorder or condition, cosmetic
disfigurement, or anatomical loss affecting one or more body
systems." 29 C.F.R. § 1630.2(h). The Supreme Court originally
held that an impairment must be "permanent or long term" in order
to qualify as a disability. Toyota Motor Mfg., Ky., Inc. v.
Williams, 534 U.S. 184, 198 (2002). The ADAAA, though, changed
the ground rules and defenestrated this requirement. See 42 U.S.C.
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§ 12102(4)(D). Consistent with this statutory shift, the EEOC
regulations now provide that a cognizable impairment may last fewer
than six months, see 29 C.F.R. § 1630.2(j)(1)(ix), as long as it
is "sufficiently severe," 29 C.F.R. pt. 1630, App. at 387. So
viewed, the regulations lower the bar as to what can comprise an
impairment under the ADA. See, e.g., id. at 379 (listing hearing
loss, osteoporosis, or arthritis as conditions that would qualify
as impairments). Pertinently for present purposes, it is clear
that injuries can comprise impairments, even when their impact is
only temporary. See Summers v. Altarum Inst., Corp., 740 F.3d
325, 332-33 (4th Cir. 2014); see also Cannon v. Jacobs Field Servs.
N. Am., Inc., 813 F.3d 586, 591 (5th Cir. 2016).
Taking the summary judgment record in the light most
favorable to Mancini — as we must — his injuries would appear to
qualify as a physiological condition affecting one or more body
systems. After all, he was injured on the job, required surgery
to his knee and other medical care, and was placed on a special
employment status. But the fact that his condition could qualify
as an impairment does not complete our inquiry. The district
court's main holding was that Mancini did not establish that he
had an impairment because he failed to supply any medical evidence
of the claimed impairment. See Mancini, 282 F. Supp. 3d at 466-
67.
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In formulating this holding, the court dwelt on
Mancini's statement that a doctor diagnosed him with
"chondromalacia of the right knee."5 Id. at 467 (emphasis in
original). The court noted that Mancini's description of his
diagnosis in his affidavit was "the only evidence of a medical
diagnosis." Id. at 466-67. The City echoes this refrain, arguing
that it is "inconceivable that a lay person would . . . know what
chondromalacia of the knee is."
There is a grain of truth in the City's argument.
Medical evidence is more likely to be necessary to show an
impairment when a condition would be unfamiliar to a lay jury and
only an expert could diagnose that condition. See, e.g., Felkins
v. City of Lakewood, 774 F.3d 647, 648, 652 (10th Cir. 2014)
(requiring medical testimony to establish that plaintiff's
diagnosis of avascular necrosis, "a rare condition that can cause
bone tissue to die from poor blood supply," was an impairment).
Were Mancini's use of the term "chondromalacia" the only insight
into the nature of his alleged impairment, medical evidence might
well be necessary. But the City's focus on this term is a red
herring: the record makes manifest that Mancini alleged that his
impairment was a knee injury. Although Mancini used the term
5 Of course, the plaintiff's statement as to what a doctor
told him is hearsay and, thus, is not probative of the truth of
the matter asserted. See Garside v. Osco Drug, Inc., 895 F.2d 46,
50 (1st Cir. 1990).
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"chondromalacia" once in his affidavit and twice in other
submissions to the district court, the vast majority of his
references were to a knee injury, simpliciter. The relevant
question, then, is whether Mancini was required to present medical
evidence that he had a knee injury.
A missing arm serves as an obvious example of an
impairment that can be demonstrated without any supporting medical
testimony. See Katz, 87 F.3d at 32. That is not to say, though,
that an impairment must be as apparent as the lack of a limb in
order to render medical evidence unnecessary. In Katz, for
example, we expressed "no doubt that a rational jury could
conclude, even without expert medical testimony," that the
plaintiff's heart attack was a condition affecting the
cardiovascular system and therefore was a physical impairment for
purposes of the ADA. Id. at 31. So, too, the Third Circuit
determined that a plaintiff's "failure to present medical evidence
of his impairment" was not fatal because arm and neck pain are
"among those ailments that are the least technical in nature and
are the most amenable to comprehension by a lay jury." Marinelli
v. City of Erie, 216 F.3d 354, 361 (3d Cir. 2000). On a spectrum
that ranges from missing limbs to rare medical infirmities, some
conditions plainly fall within the universe of impairments that a
lay jury can fathom without expert guidance. These conditions do
not require medical evidence in an ADA case.
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In our view, a knee injury falls within that universe.
We hold, therefore, that at the summary judgment stage, medical
evidence was not required to establish that Mancini's knee injury
constituted an impairment. In other words, a lay jury could find,
on this record, that Mancini had a physical impairment — a knee
injury — within the meaning of the ADA.
This conclusion gets Mancini partway home on both his
"actual disability" and "record of disability" claims, but it does
not get him all the way. The next question is whether Mancini has
shown that his impairment substantially limits major life
activities. See Ramos-Echevarría, 659 F.3d at 187. This question
has two sub-parts.
First, it is the plaintiff's burden to identify the major
life activity that is affected. See id. at 188. To this end,
Mancini has stated in his affidavit that his impairment affects
the major life activities of standing, walking, and bending. In
the absence of congressional guidance, the Supreme Court had
previously held that an activity qualified as a major life activity
only if it was "of central importance to daily life." Toyota, 534
U.S. at 197. The Court also had held that the term "major" was to
be interpreted strictly. Id.The ADAAA reconfigured the legal landscape, removing
much of the guesswork as to which life activities should be deemed
major. The ADAAA accomplished this reform partially by providing
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a non-exhaustive list of major life activities and a list of major
bodily functions (the operation of which comprise major life
activities). See 42 U.S.C. § 12102(2); see also 29 C.F.R.
§ 1630.2(i)(2) (clarifying that a "major life activity" is no
longer to be "determined by reference to whether it is of 'central
importance to daily life'" and that "the term 'major' shall not be
interpreted strictly to create a demanding standard for
disability"). The activities identified by Mancini — standing,
walking, and bending — all appear on the ADA's list of major life
activities. See 42 U.S.C. § 12102(2)(A).
This leaves the second sub-part of the question: has
Mancini adduced evidence sufficient to create a genuine issue of
material fact as to whether his impairment substantially limits
one or more major life activities? Although the phrase
"substantially limits" was once interpreted strictly, see, e.g.,
Rolland v. Potter, 492 F.3d 45, 47 (1st Cir. 2007) (citing Toyota,
534 U.S. at 197), the revised statutory and regulatory framework
now provides — and provided at the times material to Mancini's
suit — that "substantially limits" is not intended to be a
"demanding standard" and should not engender "extensive analysis,"
29 C.F.R. § 1630.2(j)(1). Withal, a determination as to whether
this "substantially limits" requirement has been satisfied calls
for a comparison between the plaintiff's limitations and those of
the majority of people in the general population. See id.- 16 -
Guided by these standards, we examine Mancini's
asseveration that he has made out a genuine issue of material fact
as to whether his impairment substantially limits his ability to
stand, walk, and/or bend.6 In order to have established that his
impairment substantially limits one or more major life activities,
Mancini must have offered evidence sufficient to show that his
impairment limited him to a substantial extent. See Ramos-
Echevarría, 659 F.3d at 187. Medical evidence may be needed to
help make this showing, even in some cases in which medical
evidence is not necessary to show the impairment itself. See Katz,
87 F.3d at 31. But cf. 29 C.F.R. § 1630.2(j)(1)(v) (noting that
"substantially limits" inquiry "usually will not require
scientific, medical, or statistical analysis").
The court below determined that Mancini had failed to
adduce evidence sufficient to show that his alleged impairment
substantially limited one or more of his major life activities.
See Mancini, 282 F. Supp. 3d at 466-67. Specifically, the court
perceived two dispositive evidentiary lacunae: a failure to
6 On appeal, Mancini does not allege that he was substantially
limited in the major life activity of working. Had such an
allegation been made, it would have required Mancini to show a
substantial limitation in his "ability to perform a class of jobs
or broad range of jobs in various classes as compared to most
people having comparable training, skills, and abilities." 29
C.F.R. pt. 1630, App. at 390; see Nurriddin v. Bolden, 818 F.3d
751, 756 (D.C. Cir. 2016), cert. denied, 137 S. Ct. 2159 (2017);
Carothers v. Cty. of Cook, 808 F.3d 1140, 1147 (7th Cir. 2015).
Mancini has not so much as attempted such a showing.
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demonstrate a "connection between any diagnosis and the claimed
physical limitations" to major life activities, id. at 467, and a
failure to adduce sufficient evidence that those alleged
limitations were substantial, see id. at 466-67.
The significance of the first of these gaps depends on
whether the district court was correct that Mancini was required
to furnish medical evidence of a nexus between his impairment and
his purported limitations. See, e.g., Russell v. Phillips 66 Co.,
687 F. App'x 748, 754-55 (10th Cir. 2017) (finding medical evidence
necessary to show that plaintiff's depression medication caused
insomnia); Felkins, 774 F.3d at 652 (finding expert medical
testimony necessary to establish that plaintiff's claimed
avascular necrosis caused alleged limitations in major life
activities). This type of evidence is needed in cases in which
such a connection is less than pellucid. Here, however, the causal
connection is not complicated. We cannot conceive that a lay jury
would have difficulty grasping the connection between a knee injury
and problems in conducting major life activities such as standing,
walking, and bending. It is a common-sense proposition that
Mancini's knee injury (which required surgery and led to his
placement on IOD status) limited to some degree activities to which
Mancini's use of his leg was integral. Accordingly, there was no
need for Mancini to proffer medical evidence regarding causation
in order to defeat summary judgment.
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The second evidentiary gap identified by the district
court is much more troubling. Once again, we take a case-by-case
approach, mindful that impairments may be of different degrees and
may affect different individuals in different ways. See Toyota,
534 U.S. at 199. Taking into account factors such as the
"condition, manner, or duration" of performance may aid this
assessment. 29 C.F.R. § 1630.2(j)(4)(i). For instance, where the
major life activity of standing is at issue, an inquiring court
may weigh the significance of evidence that the plaintiff was
unable to stand for particular periods of time. See, e.g.,
McDonough v. Donahoe, 673 F.3d 41, 48 (1st Cir. 2012).
It is noteworthy, we think, that Mancini claims
substantial limitations in everyday activities such as standing,
walking, and bending. Claims of substantial limitation to such
quotidian activities normally do not require medical evidence to
survive summary judgment. See, e.g., Williams v. Tarrant Cty.
Coll. Dist., 717 F. App'x 440, 448 (5th Cir. 2018), reh'g denied
(Feb. 20, 2018). A plaintiff's detailed description of his
limitations, standing alone, often will be sufficient to overcome
the "relatively low bar created by the substantially-limits and
summary-judgment standards." Id.A relatively low bar, though, is not the same as no bar
at all. Mancini must still be able to point to some competent
evidence in the summary judgment record sufficient to show
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substantial limitation. Although this "evidence need not
necessarily be composed of excruciating details as to how the
plaintiff's capabilities have been affected by the impairment,"
Gillen, 283 F.3d at 24, a plaintiff must give a court some facts
with which to work. It does not suffice merely to allege in a
wholly conclusory fashion, without any further details or
supporting documentation, that an impairment substantially limits
one's major life activities. See Thornton v. United Parcel Serv.,
Inc., 587 F.3d 27, 34-35 (1st Cir. 2009); see also Holton v. First
Coast Serv. Options, Inc., 703 F. App'x 917, 921 (11th Cir. 2017),
cert. denied, 138 S. Ct. 1265 (2018).
A comparison of the decisions in Holton and Williams
illustrates the point. In Holton, the court found insufficient
the plaintiff's conclusory allegations that she had a back
impairment that "when active substantially limit[ed] one or more
of [her] major life activities, including but not limited to,
walking, bending and sitting." 703 F. App'x at 921. This
contrasts sharply with the plaintiff's affidavit in Williams —
deemed sufficient to avert summary judgment — which elaborated in
detail upon the plaintiff's injuries, symptoms, and treatment.
See 717 F. App'x at 447.
The case at hand lines up with Holton, not with Williams.
In his summary judgment motion, Mancini stated only that his "knee
injury substantially limited his ability to stand, walk, [and]
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bend . . . such that he could not perform the essential functions
of [his] position." His affidavit was equally unilluminating: it
contained only the same type and kind of conclusory statements.
There was not so much as a hint as to how or in what ways the
alleged limitation manifested itself.
Mancini's wholly conclusory allusions to substantially
limited performance of major life activities are a far cry from
the plaintiff's affidavit in Williams — and they bear a striking
similarity to the plaintiff's unilluminating descriptions in
Holton. It is hornbook law that a plaintiff cannot avoid summary
judgment by relying solely on conclusory allegations. See, e.g.,
García-González v. Puig-Morales, 761 F.3d 81, 87 (1st Cir. 2014);
Nieves-Romero v. United States, 715 F.3d 375, 378 (1st Cir. 2013);
Fleet Nat'l Bank v. H&D Entm't, Inc., 96 F.3d 532, 540 (1st Cir.
1996). Applying these tenets, we have consistently found that
plaintiffs proffering considerably more evidence than Mancini has
provided cannot defeat summary judgment. See, e.g., McDonough,
673 F.3d at 47-48; Carreras v. Sajo, García & Partners, 596 F.3d
25, 34-35 (1st Cir. 2010).
In an effort to backfill these deficiencies, Mancini now
points to his IOD status and his application for disability
benefits as evidence of substantial limitation. He posits — the
emphasis is his — that if he was unable to work due to his injury,
"it logically follows that he must have been substantially limited
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in his ability to walk, stand, and bend as compared to most people
in the general population." But neither Mancini's IOD status nor
his disability benefits application equates with an inability to
work; the record reflects that Mancini was on IOD status during
the time that he worked "light duty," as well as when he was found
not disabled and his disability benefits application was denied
because a majority of independent medical examiners deemed him
capable of working. And in any event, a more specific showing was
required as to whether Mancini was substantially limited in his
ability to walk, stand, or bend (the major life activities that
Mancini claims were compromised).
The two pieces of evidence that Mancini cites do not
fill this void. The application for disability benefits was denied
and, at any rate, says nothing about limitations (substantial or
otherwise) on major life activities. By the same token, Mancini's
placement on IOD status tells us only that he sustained some sort
of injury while on duty (roughly a year and a half before the
allegedly discriminatory action occurred). The barebones record
contains no explanation of the parameters of this status; in
particular, nothing cross-references IOD status with deficits in
walking, standing, or bending. The opacity of this status weighs
against Mancini, who had the burden of showing what "IOD status"
entailed, see Ramos-Echevarría, 654 F.3d at 186, and who utterly
failed to carry this burden.
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The short of it is that Mancini has disregarded the need
for facts and has pinned his hopes to conclusory averments.
Mancini was obliged to offer some evidence that he was
substantially limited in the performance of one or more major life
activities at the time of the allegedly discriminatory action
("actual disability") or some time prior to that ("record of
disability"), and he has defaulted on that obligation. Simply
mimicking the language of the ADA, without more, does not suffice.
See Holton, 703 F. App'x at 921; see also Gonzalez v. El Dia, Inc.,
304 F.3d 63, 74 (1st Cir. 2002) (holding that testimony parroting
EEOC regulations on substantial limitations, without more, "would
not enable a rational trier of fact to undertake the case-by-case
assessment demanded under the ADA"). He thus has failed to adduce
evidence adequate to create a genuine issue of material fact as to
the "substantially limits" requirement. For this reason, we uphold
the district court's entry of summary judgment on Mancini's "actual
disability" and "record of disability" claims.
This does not end our odyssey. The ADA contains a
further definition of disability, and Mancini tries to hang his
hat on that definition, asserting in this court that he was
"regarded as" having a disability. See 42 U.S.C. § 12102(1)(C).
This avenue remains open to him despite his failure to make out a
genuine issue of material fact with respect to his "actual
disability" and "record of disability" claims. See 29 C.F.R.
- 23 -
§ 1630.2(g)(3) (suggesting that, with exceptions not relevant
here, "it is generally unnecessary to proceed under the 'actual
disability' or 'record of' prongs"); Alexander v. Wash. Metro.
Area Transit Auth., 826 F.3d 544, 547 (D.C. Cir. 2016) (explaining
that "after the 2008 Amendments, the regarded-as prong has become
the primary avenue for bringing" disability discrimination
claims).
Unlike "actual disability" and "record of disability"
claims, "regarded as" claims require only a showing that the
plaintiff "has been subjected to an action prohibited under [the
ADA] because of an actual or perceived physical or mental
impairment." 42 U.S.C. § 12102(3)(A). It is not necessary for
the plaintiff to prove that the impairment limits or is perceived
to limit a major life activity.7 See id.; see also Mercado v.
Puerto Rico, 814 F.3d 581, 588 (1st Cir. 2016). This distinction
is another by-product of the ADAAA: the Supreme Court originally
interpreted the ADA to require a plaintiff in a "regarded as" case
to establish that his impairment either limited or was perceived
to limit a major life activity, see Mercado, 814 F.3d at 588
7
Even though an impairment need not limit a major life
activity in order to ground a "regarded as" claim, it cannot be
"transitory and minor." 42 U.S.C. § 12102(3)(B). The employer,
however, bears the burden of establishing this exception as an
affirmative defense. See 29 C.F.R. pt. 1630, App. at 393. In the
circumstances of this case, we have no occasion to determine
whether the City either raised or offered sufficient evidence to
support such an affirmative defense.
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(citing Sutton v. United Air Lines, Inc., 527 U.S. 471, 489
(1999)), but this interpretation was annulled by the ADAAA, see
§ 2(b)(3).
To establish a prima facie "regarded as" claim under the
McDonnell Douglas framework, a plaintiff must show, as relevant
here, that he had an actual or perceived impairment and that his
employer was either aware of or perceived the impairment at the
time of the allegedly discriminatory action. See Adair v. City of
Muskogee, 823 F.3d 1297, 1306 (10th Cir. 2016). In this context,
the term "employer" refers primarily to the person who actually
made the allegedly discriminatory decision, not to other
supervisors or officials within the organization. See Bruzzese v.
Sessions, 725 F. App'x 68, 71 (2d Cir. 2018).
Although the requirements for a prima facie "regarded
as" claim are less demanding than those for either an "actual
disability" or "record of disability" claim, a threshold problem
looms. For aught that appears, Mancini did not raise such a claim
in the district court. "We have held, with echolalic regularity,
that theories not squarely and timely raised in the trial court
cannot be pursued for the first time on appeal." Iverson v. City
of Bos., 452 F.3d 94, 102 (1st Cir. 2006) (collecting cases).
Indeed, "[i]f any principle is settled in this circuit, it is that,
absent the most extraordinary circumstances, legal theories not
raised squarely in the lower court cannot be broached for the first
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time on appeal." Teamsters Union, Local No. 59 v. Superline
Transp. Co., 953 F.2d 17, 21 (1st Cir. 1992). This rule "requires
litigants to spell out their legal theories face-up and squarely
in the trial court; if a claim is 'merely insinuated' rather than
'actually articulated,' that claim ordinarily is deemed
unpreserved for purposes of appellate review." Iverson, 452 F.3d
at 102 (quoting McCoy v. Mass. Inst. of Tech., 950 F.2d 13, 22
(1st Cir. 1991)).
The upshot is that a plaintiff cannot appeal on the basis
of a claim that was not presented to the district court. See
McCoy, 950 F.2d at 22. Such a barrier exists here: Mancini simply
did not present a "regarded as" claim during the summary judgment
proceedings. This omission is fatal. "Courts are entitled to
expect represented parties to incorporate all relevant arguments
in the papers that directly address a pending motion." Id. at 22
n.7. When a party fails to make an available argument in the
district court, he cannot unveil that argument for the first time
on appeal. See Higgins, 194 F.3d at 259; United States v. Slade,
980 F.2d 27, 30 (1st Cir. 1992).
McCoy is instructive. There, we held that a claim was
foregone because the plaintiffs had presented it as "the merest of
skeletons" in their opposition to the defendant's motion to
dismiss. 950 F.2d at 22. We noted that the plaintiffs did not
present relevant legal authority, provide statutory analysis, or
- 26 -
otherwise support their claim with cogent reasoning. See id.
Instead, they made "passing mention of the general point — a
mention which, in its entirety, comprised two sentences and one
citation (to a tangentially relevant case)." Id.
McCoy and this case are sisters under the skin. We are
unable to locate any developed argumentation supporting a
"regarded as" claim in Mancini's summary judgment papers. In the
section of his memorandum arguing that he was disabled within the
meaning of the ADA, Mancini listed the three definitions of
disability and then provided sections analyzing the first two
definitions ("actual disability" and "record of disability"), but
not the "regarded as" definition.
To be sure, in wrapping up the one-paragraph section on
"record of disability," Mancini included two sentences to the
effect that his record of disability demonstrated the City's belief
that he was disabled. The second of these sentences was followed
by a citation to a First Amendment case. See Heffernan v. City of
Paterson, 136 S. Ct. 1412 (2016). Viewing these two sentences
most charitably to Mancini, the memorandum might be construed as
including a cryptic "regarded as" claim embedded within what would
otherwise appear to be a straightforward "record of disability"
claim. The reference was so oblique, though, that the City failed
to discern it at all and addressed only Mancini's "actual
- 27 -
disability" and "record of disability" claims in its counter-
memorandum.
Reviewing the pleadings, the cross-motions for summary
judgment, the memoranda filed by the parties, and the remainder of
the summary judgment record, the district court supportably
characterized Mancini as arguing only "actual disability" and
"record of disability" claims. See Mancini, 282 F. Supp. 3d at
465-67. In an abundance of caution, the court — when granting
summary judgment against Mancini — briefly digressed into what
appears to be an analysis of a hypothetical "regarded as" claim,
applying pre-ADAAA case law. See id. at 467. The court then got
back on track and concluded that "both of Mancini's disability
theories fall flat." Id. The word "both," as used by the district
court, is an obvious reference to Mancini's "actual disability"
and "record of disability" theories.
We have said before — and today reaffirm — that
"[o]verburdened trial judges cannot be expected to be mind
readers." McCoy, 950 F.2d at 22; cf. United States v. Ladd, 885
F.2d 954, 961 (1st Cir. 1989) ("[R]obes and gavels are the tools
of a jurist's trade — not tea leaves or crystal balls."). That
the district court made some attempt to address an unpreserved
"regarded as" claim does not alter the fact that Mancini failed to
articulate such a claim face-up and squarely in his summary
judgment papers. We hold, therefore, that Mancini's attempt to
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insinuate a previously overlooked "regarded as" claim into his
appeal is futile. There is nothing for us to review. Cf. Muddy
Waters, You Can't Lose What You Ain't Never Had, on The Chess Box
(MCA Records 1989).
One loose end remains. In an attempt to wrest victory
from the jaws of defeat, Mancini contends that the district court
erred in denying his motion to vacate the adverse judgment. This
contention is easily dispatched.
Mancini brought his motion to vacate under Federal Rule
of Civil Procedure 60(b). Mancini's motion primarily challenges
supposed "mistakes" in the district court's legal analysis. We
have held, however, that "an error of law cannot be regarded as a
'mistake'" for the purpose of Rule 60(b)(1). Fisher v. Kadant,
Inc., 589 F.3d 505, 513 n.5 (1st Cir. 2009). We thus
recharacterize this motion as a motion to alter or amend the
judgment under Federal Rule of Civil Procedure 59(e), given that
it was filed within twenty-eight days of the date of judgment (the
time limit for motions under Rule 59(e)). See Perez-Perez v.
Popular Leasing Rental, Inc., 993 F.2d 281, 283 (1st Cir. 1993)
(applying a functional analysis to timely motions under Rules 59
and 60). We review the district court's denial of a Rule 59(e)
motion for abuse of discretion. See Kansky v. Coca-Cola Bottling
Co. of New Eng., 492 F.3d 54, 60 (1st Cir. 2007). In performing
that review, we are mindful that a material error of law is always
- 29 -
an abuse of discretion. See Trainor v. HEI Hosp., LLC, 699 F.3d
19, 35 (1st Cir. 2012).
The filing of a Rule 59(e) motion does not afford the
movant an opportunity to introduce evidence that was previously
available. See Palmer v. Champion Mortg., 465 F.3d 24, 30 (1st
Cir. 2006). Nor is such a motion a vehicle through which a party
may "raise arguments which could, and should, have been made before
judgment issued." Harley-Davidson Motor Co. v. Bank of New
England-Old Colony, 897 F.2d 611, 616 (1st Cir. 1990).
Mancini's motion to vacate was filed in utter disregard
of these limitations. Through it, he attempted to introduce
evidence and arguments that were available to him all along. To
the extent that any portions of this proffer might have benefitted
his opposition to summary judgment, he could — and should — have
included those materials with his summary judgment papers. A
party's failure to submit readily available evidence or to make
readily available arguments at summary judgment cannot be remedied
through a Rule 59(e) motion. See U.S. ex rel. Ge v. Takeda Pharm.
Co., 737 F.3d 116, 125-26 (1st Cir. 2013).
That ends this aspect of the matter. Given the fact
that all of the late-arriving evidence and arguments associated
with Mancini's motion to vacate were available to him well before
the summary judgment proceeding matured, we do not hesitate to
conclude that the district court acted comfortably within the
- 30 -
encincture of its discretion in denying the motion. See Harley-
Davidson, 897 F.2d at 616.
III. CONCLUSION
We need go no further. For the reasons elucidated above,
the judgment of the district court is
Affirmed.
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