Not for Publication in West's Federal Reporter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
-2-
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