Lytes v. DC Water and Sewer Authority

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 10, 2009 Decided July 21, 2009

No. 08-7002

FLOYD E. LYTES,
APPELLANT

v.

DC WATER AND SEWER AUTHORITY,
APPELLEE

Appeal from the United States District Court
for the District of Columbia
(No. 05cv00402)

Jeannine M. Kenney, Student Counsel, argued the cause
as amicus curiae in support of appellant. With her on the
briefs were Steven H. Goldblatt, appointed by the court,
Charlotte Garden, Supervising Attorney, and Daniel R.
Kahan, Student Counsel.

Floyd E. Lytes, pro se, was on the brief for appellant.

Lesley A. Pate argued the cause for appellee. With her
on the brief were Robert G. Ames and Trevor S. Blake.

Before: GINSBURG, TATEL, and BROWN, Circuit Judges.

Opinion for the Court filed by Circuit Judge GINSBURG.
 2

GINSBURG, Circuit Judge: Floyd E. Lytes sued his
former employer, the District of Columbia Water and Sewer
Authority, a/k/a WASA, alleging it refused to accommodate
his disability and then terminated his employment, in
violation of the Americans with Disabilities Act of 1990
(ADA). The district court granted summary judgment to the
Authority because it concluded no reasonable jury could find
Lytes was disabled when the alleged discrimination occurred.
While Lytes’s appeal was pending, the ADA Amendments
Act of 2008 became law. We hold the Amendments do not
apply retroactively and, applying the pre-Amendments ADA,
affirm the judgment of the district court because, based upon
record evidence, no reasonable jury could find Lytes was
disabled when he was refused accommodation and
discharged.

I. Background

The pre-Amendments ADA protected a “qualified
individual with a disability” from discrimination in the
“terms, conditions, and privileges of employment,” 42 U.S.C.
§ 12112(a) (2000), including an employer’s refusal to
“mak[e] reasonable accommodations” for an individual’s
disability, id. § 12112(b)(5)(A). As relevant here, an
individual was disabled if he had “a physical or mental
impairment that substantially limit[ed] [him in] one or more
... major life activities [MLAs],” i.e., was actually disabled, or
if he was “regarded as having such an impairment.” Id. §
12102(2)(A) & (C).

In May 2000, Lytes, a plant operator, injured his back
while at work. He was diagnosed with chronic degenerative
disc disease and underwent corrective surgery. Lytes stopped
working around December 2000, at which time he began
 3
receiving workers’ compensation. Two months later he had a
heart attack and underwent angioplasty, followed in June
2002 by spinal fusion surgery designed to relieve pain in his
back and legs.

A physician who twice examined Lytes at the request of
the Authority’s workers’ compensation insurance carrier
disagreed with Lytes’s orthopedic surgeon, Dr. James Tozzi,
regarding Lytes’s physical capabilities. Accordingly, the
WASA asked Dr. Tozzi to authorize a functional capacity
evaluation (FCE). The FCE was done in February 2003 and
indicated Lytes had “mild restricted standing and walking
tolerances” and limitations in “squatting, bending, ladder
climbing, and overhead reaching.” These functional deficits
placed Lytes “at the sedentary-light physical demand level
with ... a workplace tolerance of 8 hours.”

Dr. Tozzi noted progressive improvement in Lytes’s
condition after the FCE. In September 2003 he upgraded
Lytes to light duty with limitations imposed “primarily to
avoid recurrent injury” to Lytes’s spine. The next day Lytes
met with the Authority’s risk manager, who told him light
duty was unavailable and encouraged him to continue to
collect workers’ compensation, which he did.

In a December 2003 letter the WASA informed Lytes he
was medically disqualified from returning as a plant operator
and had 60 days to find a suitable position at the Authority.
When Lytes was unable to do so, the WASA terminated his
employment in a March 2004 letter. Lytes filed a charge of
disability discrimination, which the Equal Employment
Opportunity Commission dismissed. Thereafter Lytes, who
was then represented by counsel, sued the Authority, claiming
violations of the ADA, several other statutes, and the
WASA’s collective bargaining agreement, and requested
 4
retrospective relief, including compensatory damages and
back pay.

Only Lytes’s ADA claim is at issue in this appeal. In the
district court the Authority moved for summary judgment on
that claim, arguing no reasonable jury could find Lytes was
disabled when he was refused accommodation and
discharged. Lytes focused his response upon the argument
that the Authority’s risk manager perceived him to be
disabled, but also alleged, without pointing to any evidence in
the record, he was actually disabled because of restrictions on
bending, “carry[ing] heavy weights,” reaching and twisting,
and mowing the lawn “for long periods.” The district court
rejected Lytes’s “‘perceived disability’ theory” and held the
work restriction and limitations on household chores could
not support a finding that Lytes was actually disabled. See
527 F. Supp. 2d 52, 59–62 (2007).

Lytes appealed pro se. This court appointed Steven H.
Goldblatt, Director of the Appellate Litigation Program at
Georgetown University Law Center, as amicus curiae to
support his position, and Lytes filed a letter stating he would
rely upon the submissions of the amicus.

On September 25, 2008 the Congress enacted the ADA
Amendments Act of 2008 (ADAA) in order to “reinstat[e] a
broad scope of protection” under the ADA and to “reject” the
holdings in Toyota Motor Mfg., Ky. v. Williams, 534 U.S. 184
(2002), and Sutton v. United Air Lines, 527 U.S. 471 (1999).
ADAA § 2(b), Pub. L. No. 110-325, 122 Stat. 3553, 3554.
The Congress delayed the effective date of the ADAA to
January 1, 2009. Id. § 8, 122 Stat. at 3559.
 5
II. Analysis

Citing the ADAA, the amicus challenges only the district
court’s holding Lytes was not actually disabled. We review
the judgment of the district court de novo, see Taylor v. Small,
350 F.3d 1286, 1290 (D.C. Cir. 2003), but consider first
whether, as the amicus maintains, the ADAA applies
retroactively.

A. Retroactivity

In Landgraf v. USI Film Products, 511 U.S. 244, 280
(1994), the Supreme Court reaffirmed the judicial
presumption against applying a statute that “would impair
rights a party possessed when he acted, increase a party’s
liability for past conduct, or impose new duties with respect
to [completed] transactions.” Landgraf and its sequelae
prescribe a process for determining whether a statute applies
to past conduct. We first look for an “express command”
regarding the temporal reach of the statute, id., or, “in the
absence of language as helpful as that,” determine whether a
“comparably firm conclusion” can be reached upon the basis
of the “normal rules of [statutory] construction.” Fernandez-
Vargas v. Gonzales, 548 U.S. 30, 37 (2006) (quoting Lindh v.
Murphy, 521 U.S. 320, 326 (1997)). If we cannot reach a
firm conclusion, then we turn to judicial default rules, asking
whether applying the statute “would have a retroactive
consequence in the disfavored sense of ‘affecting substantive
rights, liabilities, or duties [on the basis of] conduct arising
before [its] enactment.’” Id. (quoting Landgraf, 511 U.S. at
278). If applying the statute would have such a disfavored
effect, then we do not apply it absent clear evidence in the
legislative history that the Congress intended retroactive
application. See Landgraf, 511 U.S. at 280; Summers v. U.S.
Dep’t of Justice, No. 07-5315, 2009 WL 1812760, at *3 (D.C.
 6
Cir. June 26, 2009); Koch v. SEC, 177 F.3d 784, 786 n.3 (9th
Cir. 1999).

The amicus does not argue the Congress clearly
answered the retroactivity question. Instead, he contends the
Congress left to the courts the task of distinguishing between
provisions of the ADAA that “alter settled law,” and therefore
are subject to the presumption against retroactivity, and those
that merely clarify the law and therefore guide our
interpretation of the ADA. See Cookeville Reg’l Med. Ctr. v.
Leavitt, 531 F.3d 844, 849 (D.C. Cir. 2008); see also Red
Lion Broad. Co. v. FCC, 395 U.S. 367, 380–81 (1969). Chief
among the clarifying provisions, he argues, is § 4 of the
ADAA, which newly designates lifting, bending, and working
as MLAs and directs us to construe the ADA “in favor of
broad coverage of individuals.” 122 Stat. at 3555 (“major life
activities include, but are not limited to, ... lifting, bending, ...
and working”).

The Authority argues the Congress, by delaying the
effective date of the statute, mandated purely prospective
application of the ADAA. See id. § 8, 122 Stat. at 3559
(“This Act and the amendments made by this Act shall
become effective on January 1, 2009”). In the alternative the
Authority argues the presumption against retroactivity applies
because the ADAA changed settled law by repudiating what
the Supreme Court described in Toyota as the “demanding
standard for qualifying as disabled.” 534 U.S. at 197; see
ADAA § 2(b)(4), 122 Stat. at 3554 (stating one purpose of
ADAA is to overrule Toyota); id. § 4(a), 122 Stat. at 3555
(directing courts to interpret the phrase “‘substantially limits’
... consistently with the findings and purposes of the
[ADAA]”).
 7
We agree with the Authority’s principal point: By
delaying the effective date of the ADAA, the Congress clearly
indicated the statute would apply only from January 1, 2009
forward. If the Congress intended merely to “clarify” the
ADA, then its decision to delay the effective date would make
no sense; it would needlessly have left the ADA unclear for
the more than three months between enactment of the ADAA
on September 25, 2008 and its going into effect on January 1,
2009. Nothing on the face of the statute indicates the
Congress intended this peculiar scenario. If, in contrast, the
Congress intended the Amendments to have a purely
prospective effect, then its decision to delay the effective date
of the ADAA makes sense. Indeed, we can imagine no
reason for the Congress to have delayed the effective date
other than to give fair warning of the Amendments to affected
parties and to protect settled expectations. That is why the
Congress delayed the effective date of the Pregnancy
Discrimination Act (PDA) with respect “to certain benefit
programs” at the same time it overruled General Electric Co.
v. Gilbert, 429 U.S. 125 (1976), in which the Court had held
Title VII of the Civil Rights Act of 1964 permitted an
employer to exclude pregnant employees from coverage
under a disability benefit plan. See AT&T Corp. v. Hulteen,
129 S.Ct. 1962, 1967, 1971 (2009). Looking to the effective
date and to the legislative history, the Supreme Court
concluded the Congress had used “the language of
prospective intent” in enacting the PDA. Id. at 1971–72. The
ADAA, which similarly contains a delayed effective date,
similarly indicates the Congress’s prospective intent.

Without drawing our attention to any particular case, the
amicus contended at oral argument that precedent precludes
ending the inquiry at the first step of the Landgraf analysis.
Having surveyed the decisions of the Supreme Court, we see
that, although the Congress’s decision to delay the effective
 8
date of a statute generally indicates it intends prospective only
effect, when an alternative and time-neutral explanation of the
delay appears on the face of the statute, a court indeed must
proceed to the second step, as the Supreme Court has twice
done when determining the temporal reach of provisions of
the Illegal Immigration Reform and Immigrant Responsibility
Act of 1996 (IRA). See Fernandez-Vargas, 548 U.S. at 42–
45; INS v. St. Cyr, 533 U.S. 289, 317–20 (2001). In § 309(a)
of the IRA the Congress delayed the effective date of Title
III-A, while in § 309(b) it expressly linked that delay to a
deadline for the Attorney General to promulgate new
regulations. Pub. L. No. 104-208, div. C, 110 Stat. 3009-546,
3009-625 (“Attorney General shall first promulgate
regulations to carry out this subtitle by not later than 30 days
before the title III-A effective date”). Thus, § 309 on its face
indicated the Congress delayed the effective date in order “to
allow the Attorney General to prepare for the substantial
changes caused by the [IRA] and to promulgate regulations.”
Fernandez-Vargas, 548 U.S. at 51 n.4 (Stevens, J.,
dissenting). Because it is plausible that the Congress might
decide to give an agency time to promulgate regulations but
nonetheless intend that the statute and its implementing
regulations be applied retroactively, § 309(b) provides a time-
neutral explanation for the delayed effective date in § 309(a)
of the IRA. In the ADAA, by contrast, the Congress
“express[ed its] expectation” that the EEOC would revise its
regulation, § 2(b)(6), 122 Stat. at 3554, but did not indicate it
was delaying the effective date in order to allow time for the
agency to do so. In short, the delayed effective date in the
ADAA, unlike that in the IRA, admits of only one
explanation: The Congress intended the statute to have
prospective only effect.

A statute also may be ambiguous if, notwithstanding a
delayed effective date, it has a provision that seems to call for
 9
its retroactive application. See Princz v. Fed. Republic of
Germany, 26 F.3d 1166, 1178 (D.C. Cir. 1994) (Wald, J.,
dissenting) (so concluding with respect to Foreign Sovereign
Immunities Act (FSIA)); cf. Republic of Austria v. Altmann,
541 U.S. 677, 697–98 (2004) (preamble to FSIA suggests
retroactive application). In this regard, we note the Congress
titled the ADAA “An Act [t]o restore the intent and
protections of the [ADA]” and undertook generally to
“reinstat[e] a broad scope of protection,” § 2(b)(1), 122 Stat.
at 3554, but those indicia of purpose are actually time-neutral,
and do not countermand the clear indication of intent inherent
in the deferred effective date. As the Supreme Court noted in
Rivers v. Roadway Express, Inc., 511 U.S. 298, 305, 311
(1994), a “restorative purpose may be relevant” to the
retroactivity question but the choice to overrule a judicial
decision “is quite distinct” from the choice to do so
retroactively. In sum, when the Congress has delayed the
effective date of a substantive statute that could in principle
be applied to conduct completed before its enactment, we
presume the statute applies only prospectively.

Even if the delayed effective date were not dispositive in
this case, the ADAA would be subject to the presumption
against retroactivity. In repudiating the rule of construction
described in Toyota and adding to the ADA a list of
illustrative MLAs, ADAA § 4(a), 122 Stat. at 3555 (“The
definition of disability in this Act shall be construed in favor
of broad coverage of individuals”), the Congress broadened
the class of employees entitled to reasonable accommodation.
See id. § 2(a)(5) & (b)(1), 122 Stat. at 3553, 3554. To hold
the Authority’s refusal to accommodate Lytes was unlawful
under the new, broader ADAA but not under the pre-
Amendments ADA, therefore, would be to give the ADAA
the disfavored retroactive effect. See Landgraf, 511 U.S. at
280. The amicus has not pointed to any clear indication in
 10
either the ADAA or its legislative history that the Congress
intended the Amendments to have that effect. We therefore
hold the ADAA does not govern Lytes’s suit for retrospective
damages, as have the other courts that have considered the
question. See EEOC v. Agro Distribution, LLC, 555 F.3d
462, 470 n.8 (5th Cir. 2009) (ADAA does not apply
retroactively (citing Rivers, 511 U.S. at 313)); Moran v.
Premier Educ. Group, LP, 599 F. Supp. 2d 263, 271–72 (D.
Conn. 2009) (collecting cases holding ADAA does not apply
retroactively).

B. Merits

Under the law prior to its amendment, we observed that
the “ADA promotes equal opportunity for the disabled, but
only after [the] ... ‘demanding standard’ [of Toyota] is met.”
Singh v. George Washington Univ. Sch. of Med. & Health
Scis., 508 F.3d 1097, 1102 (D.C. Cir. 2007). Lytes’s burden
under that standard is to show he suffered from an impairment
that substantially limited him in an MLA when the Authority
allegedly discriminated against him. See 42 U.S.C. §
12102(2)(A) (2000); Haynes v. Williams, 392 F.3d 478, 481–
82 (D.C. Cir. 2004); Kocsis v. Multi-Care Mgmt., 97 F.3d
876, 884 (6th Cir. 1996) (employee must be disabled when
discrimination occurred).

There is no dispute that Lytes had a physical impairment
at the relevant time. The amicus maintains Lytes’s condition
substantially limited him in the already-recognized MLA of
performing manual tasks, see Toyota, 534 U.S. at 201–02, and
in lifting, bending, and working, which the amicus urges us to
hold are MLAs within the meaning of the pre-Amendments
ADA. The Authority argues Lytes has forfeited those
arguments (except with respect to bending) because he did
not raise them in the district court. Lytes’s allegations
 11
regarding actual disability were contained in a single
paragraph:

Careful daily living is to ensure there will be no further
damage to his back area. The pain is there but it is
manageable. However, the restrictions in not being able
to bend consistently, carry heavy weights, reach or twist
not only applies to any work restrictions, but also
restriction on life chores. He can not or should not mow
the lawn for long periods, no squatting or bending to
repair any pipes at home. He has become adapt in getting
dressed so as not bend. He has attempted to improve his
condition by daily walks, and drives but not long
distances.

Even assuming these unadorned allegations were sufficient to
preserve the amicus’s arguments, we may still affirm the
judgment of the district court. See Tax Analysts v. IRS, 495
F.3d 676, 680 (D.C. Cir. 2007) (court may assume argument
is preserved when doing so does not alter outcome).

Upon that assumption, the amicus still must show, as he
acknowledges, that Lytes was substantially limited, when
compared to an average person, because his condition either
prevented him from or significantly restricted him in lifting,
bending, performing manual tasks, or working. See Toyota,
534 U.S. at 195–97; Desmond v. Mukasey, 530 F.3d 944, 955
(D.C. Cir. 2008) (noting court has “held that plaintiffs must
show that their limitation was substantial ‘as compared to the
average person in the general population’”). We consider the
“nature and severity,” the “duration or expected duration,”
and the “permanent long term impact, or the expected
permanent or long term impact of” Lytes’s impairment.
Desmond, 530 F.3d at 956.
 12
In opposing the Authority’s motion for summary
judgment, Lytes alleged only that he was “restrict[ed] in not
being able to bend consistently, carry heavy weights, reach or
twist.” The amicus goes beyond that allegation and points to
record evidence that he argues creates a triable issue. The
Authority argues Lytes’s failure to point the district court to
any evidence is fatal to the amicus’s argument on appeal. See
Potter v. District of Columbia, 558 F.3d 542, 550 (D.C. Cir.
2009) (district court is not “obliged to sift through” record for
genuine issue of material fact in dispute).

Under Rule 56 of the Federal Rules of Civil Procedure,
the Authority had “the initial responsibility of informing the
district court of the basis for its motion, and identifying those
portions” of the record it “believe[d] demonstrate[d] the
absence of a genuine issue of material fact.” Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). Because the Authority
clearly did so, Rule 56 required Lytes, who would have had
the burden of proof at trial, to respond with “specific facts
showing a genuine issue for trial.” FED. R. CIV. P. 56(e); see
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256–57
(1986). Therefore, Lytes should have “designat[ed] and
referenc[ed] triable facts” accompanied by “appropriate
references to the record before the District Court.” Frito-Lay,
Inc. v. Willoughby, 863 F.2d 1029, 1034 (D.C. Cir. 1988).
This he failed utterly to do.

Although we have cautioned that “treating an issue as
conceded for failure to respond fully to a motion for summary
judgment ‘should only be applied to egregious conduct,’”
Burke v. Gould, 286 F.3d 513, 518 (2002), Lytes’s conduct
meets that standard. He described his disability — which he
alleged resulted from general restrictions upon “work” and
“life chores” — in a single paragraph without any reference to
record evidence supporting his description, presented a
 13
“counter-statement of material facts” that failed to discuss his
functional capacity at the time of the alleged discrimination,
and even controverted the two pieces of evidence the amicus
would now have us deem decisive.

The amicus relies primarily upon the results of the
February 2003 FCE and secondarily upon Lytes’s deposition,
in which he asserted he could not, in September 2003,
shower, put on his shoes, or use the toilet “without
assistance.” In the district court, however, Lytes impugned
the FCE by (1) alleging he “continued to improve” between
February 2003 and September 2003, when he was refused
accommodation; (2) arguing “the use of the FCE is extremely
suspect”; and (3) questioning whether it would be admissible
at trial. Although the amicus strives to deny Lytes repudiated
the FCE in the district court, it is clear Lytes did just that,
which exceeds the default of the nonmovant in Burke. See id.
at 516. The amicus may not now reverse course on Lytes’s
behalf. Cf. United States v. Ginyard, 215 F.3d 83, 88 (D.C.
Cir. 2000) (defendant may not complain on appeal about error
he invited in district court). Lytes also controverted his own
deposition by alleging in his opposition to summary judgment
that by April 2001 he “felt he had recuperated” from
previously debilitating pain that had interfered with his ability
to bathe, cook, and clean, whereas in his deposition he had
claimed he told the WASA’s risk manager he needed help in
September 2003 when bathing, using the toilet, and putting on
his shoes. We will not allow Lytes to “sandbag” the district
court by considering evidence Lytes not only failed to cite but
indeed contradicted. See USAir, Inc. v. U.S. Dep’t of Transp.,
969 F.2d 1256, 1260 (D.C. Cir. 1992).

Therefore, like the district court we consider only the
evidence of Lytes’s condition available when the Authority
refused to return him to light duty and terminated his
 14
employment in March 2004. See 527 F. Supp. 2d at 60–61.
In September 2003 Dr. Tozzi had found Lytes could perform
light duty, which permitted him to lift up to 10 to 20 pounds
occasionally and to do “some bending.” Although Lytes
reported “ongoing discomfort in [his] back” and occasional
tingling in his legs, he could perform “lateral bending of 20
[degrees] without much in the way of pain other than
tightness” and could walk without limping. By December
2003 Dr. Tozzi found Lytes “had no significant limitation”
due to back pain, and in January 2004 he opined that Lytes’s
“impairment [was] not great when rated based upon
neurological deficit, sensory impairment, pain, and stiffness”
and that Lytes had “limited, but acceptable and functional
motion of the spine.”

Under the “demanding standard” of Toyota, 534 U.S. at
197, it is clear upon these facts that summary judgment was
appropriate. The contemporaneous evidence of Lytes’s
impairment creates no triable issue as to whether he had a
substantial limitation with respect to lifting. See Colwell v.
Suffolk County Police Dep’t, 158 F.3d 635, 644 (2d Cir.
1998) (10 to 20 pound limitation does not create triable
issue); see also Marinelli v. City of Erie, 216 F.3d 354, 363–
64 (3d Cir. 2000) (10 pound limitation does not create triable
issue); cf. Duncan v. Wash. Metro. Area Transit Auth., 240
F.3d 1110, 1116 (D.C. Cir. 2001) (citing approvingly
Williams v. Channel Master Satellite Sys., 101 F.3d 346, 349
(4th Cir. 1996) (25 pound limitation does not create triable
issue)). Nor could a reasonable jury find Lytes suffered a
severe long-term limitation in bending when compared to an
average person. See Colwell, 158 F.3d at 644 (testimony that
plaintiff cannot “bend over ‘for long periods’” too vague to
create triable issue). With respect to performing manual
tasks, Lytes admitted he had improved from the time when he
“was unable to perform every day tasks.” The evidence of his
 15
minimal physical limitations in late 2003 and early 2004 does
not in any way indicate Lytes’s impairment “prevent[ed] or
severely restrict[ed him] from doing activities that are of
central importance to most people’s daily lives.” Toyota, 534
U.S. at 198; see Holt v. Grand Lake Mental Health Ctr., 443
F.3d 762, 766 (10th Cir. 2006). Lytes’s limitations, even
when considered together as the amicus urges, are simply too
insubstantial to preclude summary judgment on his claim to
have been substantially impaired in an MLA.

Finally, with respect to working, in its motion for
summary judgment the Authority cited Duncan, 240 F.3d at
1114–15 (assuming working is MLA and holding employee is
disabled from working if he is precluded from “‘substantial
class’ or ‘broad range’ of jobs otherwise available to him”),
and pointed to evidence showing Lytes was not “preclude[d]
... from all work.” Because Lytes failed to respond with
evidence indicating the range of jobs available to him, much
less argue that range was narrow because of his impairment,
summary judgment was appropriate with respect to working. *

III. Conclusion

By enacting the ADAA, the Congress broadened the
class of persons entitled to protection under the ADA.
Because the Congress delayed the effective date of the
ADAA, we presume, in the absence of any legislative
indication to the contrary, that it does not apply
retrospectively to Lytes’s case. Applying the pre-

*
We need not and therefore do not resolve the parties’ disputes
over the timeliness of Lytes’s EEOC charge, see Zipes v. Trans
World Airlines, 455 U.S. 385, 393 (1982), and over Lytes’s ability
to perform the essential functions of a plant operator, see Duncan,
240 F.3d at 1114 (stating elements of ADA claim).
 16
Amendments ADA, we hold Lytes failed to meet his burden
of identifying record evidence creating a triable issue as to
whether he was actually disabled as that standard was
described in Toyota.

For the foregoing reasons the judgment of the district
court is
Affirmed.