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.

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 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

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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

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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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