Rose v. Laskey , 110 F. App'x 136 ( 2004 )

Not for Publication in West's Federal Reporter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. 03-2168
SYDNEY A. ROSE,
Plaintiff, Appellant,
v.
FREDERICK LASKEY, as Commissioner of Revenue,
Commonwealth of Massachusetts Department of Revenue,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Richard G. Stearns, U.S. District Judge]
Before
Selya, Circuit Judge,
Stahl, Senior Circuit Judge,
and Lynch, Circuit Judge.
Sydney A. Rose on brief pro se.
Matthew Q. Berge, Assistant Attorney General, and Thomas F.
Reilly, Attorney General, on brief for appellee.
September 29, 2004
Per Curiam. We affirm the judgment substantially for the
reasons enumerated by the district court in its opinion dated July
10, 2003, adding only the following comments.
First. We decline to consider the non-record "evidence"
proffered by plaintiff on appeal. See, e.g., United States v.
Rosario-Peralta, 175 F.3d 48, 56 (1st Cir. 1999) ("It is elementary
that evidence cannot be submitted for the first time on appeal.").
Plaintiff's contention that he was deprived of an adequate
opportunity to develop the record below is mistaken. Defendant's
summary judgment motion was filed within the time prescribed by the
scheduling order, after discovery had closed. And plaintiff
neither moved for relief under Fed. R. Civ. P. 56(f) nor voiced any
such complaint in his summary judgment opposition. (He sought an
extension to file his opposition only because he was "in the
process of moving"; no mention was made of difficulties in
obtaining his medical records.) That plaintiff may have been
unfamiliar with his evidentiary burden at the summary judgment
stage provides no basis for appellate relief. See, e.g., FDIC v.
Anchor Properties, 13 F.3d 27, 31 (1st Cir. 1994) (noting that
litigant's pro se status does not absolve him from compliance with
the federal rules). We might add that the outcome of this appeal
would be the same even if the newly proffered materials were
considered.
Second. Plaintiff contends that a genuine issue of material
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fact remained as to whether a true threat of violence was involved
here. Yet he acknowledges making the reference to the Wakefield
tragedy at the end of a heated exchange with his supervisor.
Whatever plaintiff's ultimate intention, defendant cannot be
faulted for taking this threat at face value. In analogous
contexts, courts have not hesitated to reject claims under the
Americans with Disabilities Act. See, e.g., Sullivan v. River
Valley School Dist., 197 F.3d 804, 813 (6th Cir. 1999) ("threatening
other employees disqualifies one from a job") (citations and
internal quotation marks omitted); Chapa v. Adams, 168 F.3d 1036,
1039 (7th Cir. 1999) ("people who threaten to kill their supervisors
are not 322 F.3d 75, 87 (1st Cir. 2003).
Such a conclusion is dictated here whether plaintiff is viewed as
having the burden of showing he posed no threat to safety in order
to establish he was otherwise qualified for the job, see, e.g., id.at 87 n.10; EEOC v. Amego, Inc., 110 F.3d 135, 142-44 (1st Cir.
1997), or whether defendant is viewed as having the burden of
establishing a "direct threat" as an affirmative defense under 42
U.S.C. §§ 12111(3), 12113(b) and 29 C.F.R. §§ 1630.2(r),
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1630.15(b)(2), see, e.g., Hutton v. Elf Atochem N.A., Inc., 273
F.3d 884, 893 & n.5 (9th Cir. 2001). The case on which plaintiff
mainly relies in arguing that factual disputes remained, Whitney v.
Bd. of Educ. of Grand County, 292 F.3d 1280, 1286 (10th Cir. 2002),
did not involve threatened violence and is otherwise
distinguishable on its facts.
Third. Plaintiff likewise asserts that a trialworthy issue
remained as to whether any such threat could be eliminated through
reasonable accommodation. Even if such an inquiry were pertinent
in this context, but cf. Calef, 322 F.3d at 87 n.11, it would not
avail plaintiff. It was his burden to show, inter alia, that he
made a specific request for an accommodation that would have
enabled him to perform the essential functions of his job. See,
e.g., Reed v. LePage Bakeries, Inc., 244 F.3d 254, 259, 261 (1st
Cir. 2001). Plaintiff mainly points in this regard to a
therapist's letter, delivered to defendant after the incident in
question (and introduced for the first time on appeal), indicating
that he would benefit from a leave of absence of unspecified
length. In Criado v. IBM Corp., 145 F.3d 437, 443-44 (1st Cir.
1998), we did hold that a leave of absence was a reasonable
accommodation for an employee suffering from depression. But no
threatening behavior was there involved. And unlike in the case at
bar, that employee had "offered evidence tending to show that her
leave would be temporary and would allow her physician to design an
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effective treatment program." Id. at 444. In turn, the proposal
mentioned by plaintiff below–-that he be subjected to regular
security screening–-not only was untimely but was properly rejected
as unreasonable. See, e.g., Chapa, 168 F.3d at 1039.
Fourth. Plaintiff has also failed to sustain his burden of
proof on the two remaining elements of his ADA claim: that he was
disabled within the meaning of the Act; and that he was discharged
as a result thereof. See, e.g., Criado, 145 F.3d at 441. "This
circuit has recognized depression as a mental impairment that may
constitute, at least in some circumstances, a disability under
federal law." Calero-Cerezo v. U.S. Dep't of Justice, 355 F.3d 6,
20 (1st Cir. 2004). Yet the evidence submitted below failed to
substantiate such a diagnosis. And even when the appellate filings
are considered, plaintiff has not shown that a major life activity
was substantially limited. See, e.g., Calef, 322 F.3d at 83-86(discussing this requirement). His main complaint in this regard
is about suffering unspecified side-effects from his medication and
needing to take sick and vacation leave.
By the same token, there is no genuine dispute about the fact
that plaintiff was discharged because of his unacceptable behavior
rather than because of any mental impairment. See, e.g., id. at 87(noting that employee "whose unacceptable behavior threatens the
safety of others" need not be retained "even if the behavior stems
from a mental disability"); Hamilton v. Southwestern Bell Tel. Co.,
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136 F.3d 1047, 1052 (5th Cir. 1998) ("The cause of Hamilton's
discharge was not discrimination based on [his mental impairment]
but was rather his failure to recognize the acceptable limits of
behavior in a workplace environment."); Palmer v. Circuit Court of
Cook County, 117 F.3d 351, 352 (7th Cir. 1997) (similar).
Fifth. We decline to address plaintiff's First Amendment and
due process arguments as they were not properly raised below.
Affirmed.
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