United States Court of Appeals
For the First Circuit
No. 10-1137
KAREN FAIOLA,
Plaintiff, Appellant,
v.
APCO GRAPHICS, INC.
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. F. Dennis Saylor IV, U.S. District Judge]
Before
Boudin, Selya and Stahl, Circuit Judges.
Corinne Hood Greene for appellant.
Matthew J. Griffin, with whom Philip M. Cronin and Peabody &
Arnold LLP were on brief, for appellee.
December 10, 2010
STAHL, Circuit Judge. Karen Faiola brought suit against
her former employer, APCO Graphics, Inc. ("APCO"), for wrongful
termination on the basis of disability in violation of Title I of
the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et
seq., and the Massachusetts analogue, Mass. Gen. Laws. ch. 151B
("Chapter 151B"). The district court granted summary judgment in
favor of APCO because Faiola failed to show that she was disabled
within the meaning of the statutes. We affirm.
I. Background
Because this is an appeal from a grant of summary
judgment, we recite the facts in the light most favorable to
Faiola, the nonmovant, and resolve all reasonable inferences in her
favor. Stonkus v. City of Brockton Sch. Dep't, 322 F.3d 97, 102
(1st Cir. 2003).
APCO is a commercial sign-maker headquartered in Atlanta,
Georgia. It maintains a regional office in Franklin,
Massachusetts, serving the New England territory. From November
1991 to February 2007, when Faiola was terminated, Faiola worked as
a sales representative and manager of APCO's Franklin office. She
was responsible for meeting or exceeding sales quotas; making
periodic factory visits; managing her sales assistant; and
maintaining the office by, for example, "dumping the trash" and
"keeping up a good appearance" in the showroom. Faiola reported to
Teresa Cox, APCO's vice president of sales and marketing.
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In 2003, Faiola's work performance at APCO began to
decline. From 2003 to 2006, Faiola met only forty to sixty-six
percent of her annual sales quotas and performed as one of APCO's
lowest grossing sales representatives nation-wide. In 2005, Cox
informed Faiola that the New England territory had the lowest sales
volume and that Faiola needed to improve her performance. In March
2006, Cox requested that Faiola take an aptitude test because her
sales were in a "slump."
The summary judgment record indicates that during periods
of her employment, Faiola suffered from ongoing mental health
conditions and a bout of high blood pressure. Dr. Karen Dempsey,
a psychotherapist, treated Faiola from May 2004 until September
2007. During her first visit with Faiola, she recorded that Faiola
was "sad, [] low energy, disorganized, anxious, [and] forgetful."
She diagnosed Faiola with dysthymia, a low level depression that is
not incapacitating, and over the course of treatment, she
prescribed various medications for Faiola, including Prozac and
Klonopin.
Faiola's dysthymia went into remission in April 2006 and
reappeared by April 2007. Dr. Dempsey found that although Faiola
experienced stress and anxiety in early January 2007, due to the
breakup of a long-term relationship and concern over her father's
ailing health, there were no signs of depression. At no point did
Dr. Dempsey diagnose Faiola with classic depression or an anxiety
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disorder. Additionally, Dr. Dempsey never found that Faiola was
prevented from engaging in any of life's typical activities, nor
did she ever place work limitations or physical restrictions on
Faiola.
Barbara Gray, a clinical social worker, began counseling
Faiola in 1991. She noted that in January 2007, Faiola presented
herself with "low energy" and was "mentally exhausted" from her
relationship troubles and concern for her father. Again, however,
the record indicates that despite these events, Faiola was "stable"
and "able to go about [her] life."
Faiola began treatment with Dr. Edward Levitan in
September 2006 after she tested her blood pressure at a CVS
pharmacy and found the reading high. Dr. Levitan prescribed
medication for Faiola, and, by early March 2007, Faiola's blood
pressure returned to normal range. At no point did Dr. Levitan
instruct Faiola to limit her daily activities or avoid travel by
airplane.
Faiola testified in her deposition that throughout her
tenure at APCO and despite her various mental and physical health
conditions, she was "always able to perform [her work] activities
and roles" and "all the essential aspects of [her] job." She
walked three miles a day, traveled by airplane both for work and
pleasure, and in 2006, she took a second job selling insurance.
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Since her termination, Faiola has made business trips to Orlando,
Florida and Atlantic City, New Jersey.
Faiola's wrongful termination allegations stem from
events that occurred in February 2007. On February 2, 2007, Faiola
received an e-mail from APCO employee Andrea Blackwood regarding
logistics for an upcoming annual sales conference in Atlanta.
Faiola reported to Blackwood that she was "going through a personal
crisis" and was "not sure if [she was] going to be up to" the
conference, and she specifically informed Cox that she was going
through a "rough time." Faiola did not reference any health
conditions that prevented her from attending the conference, nor
did she reference the conference itself when she e-mailed Cox.
On February 21, 2007, Cox traveled to the Franklin
regional office for a scheduled visit. During the visit, Cox and
Faiola met with customers around the territory. In conversation
with Cox during the day, Faiola raised some issues that she
experienced with certain APCO products. That night at dinner,
Faiola and Cox discussed Faiola's personal problems and her medical
conditions. Faiola told Cox that Dr. Levitan had instructed her to
avoid stress. At no point did Faiola and Cox discuss the upcoming
sales conference, nor did Faiola explain that her conditions
prevented her from flying to or attending the upcoming conference.
The next morning, before Cox left to return to Atlanta, she
terminated Faiola purportedly due to her poor sales performance.
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Subsequently, Faiola brought suit alleging disability
discrimination.1 The district court granted APCO's motion for
summary judgment. It found that Faiola failed to establish that
she was disabled because her alleged impairments did not
substantially limit a major life activity. Specifically, it found
that flying was not a major life activity, and to the extent that
flying implicated the major life activity of travel, Faiola was not
substantially limited. Faiola timely appealed.
II. Analysis
We review a district court's grant of summary judgment de
novo. Lockridge v. Univ. of Me. Sys., 597 F.3d 464, 469 (1st Cir.
2010). We may affirm a district court's ruling "on any grounds
supported by the record." Carreras v. Sajo, García & Partners, 596
F.3d 25, 36 (1st Cir. 2010) (quoting Estades-Negroni v. Assocs.
Corp. of North Am., 377 F.3d 58, 62 (1st Cir. 2004)). Summary
judgment is appropriate "if there is no genuine issue as to any
material fact and if the moving party is entitled to judgment as a
matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250
(1986). Once the moving party makes a sufficient preliminary
showing that no genuine issue of material fact exists, the
nonmovant must show a factual dispute without relying on
"improbable inferences, conclusory allegations, or rank
1
Faiola also brought claims for breach of contract and breach
of the covenant of good faith and fair dealing. Faiola does not
appeal the grant of summary judgment on these claims.
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speculation." Ingram v. Brink's, Inc., 414 F.3d 222, 228-29 (1st
Cir. 2005).
Faiola appears to assert two theories of disability
discrimination: (1) she was terminated because of her disabilities,
and (2) APCO failed to provide a reasonable accommodation because
it did not excuse Faiola from flying to and attending the sales
conference. We find that both theories of liability fail because
Faiola did not make the required threshold showing of disability
under the statutory schemes at issue.
To prove disparate treatment under both Title I of the
ADA and Chapter 151B,2 a plaintiff must first show that: (1) she
suffers from a disability as defined by the ADA and Chapter 151B;
(2) she was nevertheless able to perform the essential functions of
her job, with or without reasonable accommodation; and (3) her
employer took an adverse employment action against her because of
her protected disability. See Carroll v. Xerox Corp., 294 F.3d
231, 237 & n.3 (1st Cir. 2002). To make out a reasonable
accommodation claim, a plaintiff must establish the first two
prongs set forth above and also that the employer knew of her
2
For purposes of this lawsuit, analysis under the ADA and
Chapter 151B is identical. See, e.g., Sensing v. Outback
Steakhouse of Fla., L.L.C., 575 F.3d 145, 153-54 (1st Cir. 2009)
(noting that federal law construing the ADA should be followed in
interpreting Massachusetts disability law). Although the ADA uses
the term "disability," and Chapter 151B uses the term "handicap,"
the statutory definitions are essentially the same, id., and we use
the term "disability" solely for consistency.
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disability but did not reasonably accommodate it upon a request.
Id. at 237-38; see also Reed v. LePage Bakeries, Inc., 244 F.3d
254, 261 (1st Cir. 2001).3
Faiola sought to prove that she suffered from a
disability by demonstrating a physical or mental impairment that
substantially limited one or more of her major life activities.
Carreras, 596 F.3d at 32. In assessing this standard, we use a
three-part test: (1) whether the plaintiff suffered a mental or
physical impairment, (2) whether the life activity limited by the
impairment qualifies as "major," and (3) whether the impairment
substantially limited the major life activity. Id. The inquiry is
individualized. Id. at 33.
A "substantial limitation" is one that is "permanent or
long-term." Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S.
184, 198 (2002).4 Pursuant to the ADA regulations, a person must
3
Although we affirm on the ground that Faiola did not
establish disability, it appears that Faiola's reasonable
accommodation claim fails also because Faiola never sought an
accommodation. To make out a reasonable accommodation claim, a
plaintiff must show that a proposed accommodation would enable her
to perform the essential functions of her job. Reed, 244 F.3d at
259. An accommodation request must be "direct and specific" and
"linked to some disability." Id. at 261. Here, the record
demonstrates only that Faiola told Ms. Blackwood that she was not
sure if she would "be up" to the conference because of personal
problems. There is no reference to Faiola requesting accommodation
because of her mental and physical ailments, nor is there any
record explanation that the accommodation would help Faiola perform
the essential functions of her job.
4
The ADA Amendments Act of 2008, which went into effect on
January 1, 2009, has since expanded the definition of "disability"
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be unable to perform, or significantly restricted in the
performance of, a major life activity that an average person in the
general population can perform. 29 C.F.R. § 1630.2(j)(1); see
Carreras, 596 F.3d at 33. Relevant factors include the nature and
severity of the impairment, its duration or expected duration, and
its actual or expected permanent or long-term impact. 29 C.F.R. §
1630.2(j)(2); see Carroll, 294 F.3d at 239.
Faiola premised her disability discrimination claims on
the fact that flying to and attending the APCO sales conference
would be stressful, and that Dr. Levitan told her to avoid undue
stress. The parties disagree as to what "major life activity"
these claims implicate. On appeal, Faiola characterizes them as
impacting her ability to work, and she asserts that the district
court erred by addressing only "travel" and not "work" as her major
life activity affected. APCO counters that Faiola's claims
asserted at the district court concerned only an inability to
travel by airplane and that any claims related to work are
undeveloped and waived.
Although we find vague the major life activity or
activities that Faiola pled and argued at the district court, no
matter how the claims are cast, they fail. No record evidence
from that laid out in Toyota. Toyota remains the controlling law
here, however, since Faiola brought suit in 2008 and the amendments
are not retroactive. See Thornton v. United Parcel Serv., Inc.,
587 F.3d 27, 34 n.3 (1st Cir. 2009).
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exists to demonstrate that Faiola's impairments "substantially
limited" any alleged major life activities.5
To the extent that Faiola's claims rest on her inability
to work, they are unavailing. To determine a substantial
limitation as to work, this court looks to whether the plaintiff
can show that she is significantly restricted in her ability to
perform "a class of jobs" or "a broad range of jobs in various
classes." Carroll, 294 F.3d at 239-40 (citations omitted). An
"inability to perform a single, particular job does not constitute
a substantial limitation in the major life activity of working."
Id. at 240 (quoting 29 C.F.R. § 1630.2(j)(3)(i)).
Here, Faiola's alleged inability to attend the APCO sales
conference does not constitute a substantial limitation as to work.
It was not a restriction relating to the performance of a class of
jobs or broad range of jobs, nor was it even a "single, particular
job" that she was restricted in performing. Moreover, the
supposedly substantial nature of her impairment is undercut by her
ability to perform "all the essential aspects of [her] job," from
managing her sales assistant to handling menial tasks. She was
under no physical or behavioral restrictions, and her treating
healthcare providers explained that she was stable and capable of
engaging in any of life's activities. Although Faiola peppers her
5
Accordingly, we need not decide whether Faiola's health
conditions constituted "impairments" or whether "work" and "flying"
are "major life activities."
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briefs with her symptoms and diagnoses in an attempt to prove
disability, "[i]t is insufficient for individuals . . . to merely
submit evidence of a medical diagnosis of an impairment" to prove
a substantial limitation. Toyota, 534 U.S. at 198.
To the extent that Faiola's claims rest on her inability
to fly, they also fail. No healthcare provider restricted Faiola's
ability to fly, and Dr. Levitan stated that someone with Faiola's
blood pressure readings would not be at risk on an airplane.
Moreover, Faiola traveled frequently by airplane before the APCO
sales conference at issue, and she has made business trips to
Florida and New Jersey since her termination.
III. Conclusion
For the foregoing reasons, we affirm the district court's
grant of summary judgment.
So ordered.
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