[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR TH E ELEV ENTH C IRCUIT
________________________ FILED
U.S. COURT OF APPEALS
ELEV ENT H CIR CUIT
No. 03-12308 JANUARY 21, 2004
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 02-21520-CV-FAM
JEAN E. CA RRU THE RS,
Plaintiff- Appe llant,
versus
BSA ADV ERT ISIN G, IN C.,
Defen dant-A ppellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(January 21, 2004)
Before BIRC H, BLA CK and B ARKE TT, Circuit Judges.
PER CURIAM:
Jean E. Carruthers appeals the district court’s grant of judgment as a matter
of law in favor of BSA Advertising, Inc. (“BSA”), her former employer, on
Carruthers’s discrimination claim filed pursuant to the Americans with Disabilities
Act (“ADA”), 42 U.S.C. § 12101 et seq. We AFFIRM.
I. BACKGROUND
In May of 2002, Carruthers filed a complaint alleging that BSA terminated
her employment because of a disability or a perceived disability, in violation of the
ADA. The un disputed and relevant facts of the case follow: (1) Carruthers was
employed with BSA from 1993 through 2000, most recently in the position of Art
Director; (2) on 28 Feb ruary 2000, Carruthers visited her assigne d workers’
compensation physician after experiencing pain and swelling in both of h er hands;
(3) Carruthers’s physician diagnosed her as suffering from a bilateral hand
strain/sprain and gave her various work restrictions, which were to be reviewed on
a week-to-week basis; (4) Carruthers notified her supervisor of her diagnosis and
work restrictions, which included a prohibition on any computer/mouse usage; (6)
BSA placed a classified advertisement for Carruthers’s replacement on 5 March
2000; a nd (5) B SA ter minated Carruth ers’s emp loymen t on 8 M arch 20 00.
The district court subsequently issued a scheduling order, which set (1) a
deadline for 25 July 2002 for all amendments to the pleadings, (2) a deadline of 25
2
November 2002 for completion of all non-expert discovery, and (3) a trial date for
the week commencing 24 March 2003. On January 17, 2003, Carruthers filed a
motion for leave to amend her complaint, maintaining that, during the course of
mediation, she had discovered that she had a cause of action for retaliatory
discharge, on the theory that her termination was based, at least in part, on her
decision to seek w orkers’ c ompen sation. The district cou rt denied Car ruthers’s
motion , and the c ase proc eeded to trial on 4 M arch 20 03.
At the conclusion of Carruthers’s case, BSA moved for judgm ent as a matter
of law, arguing that Carruthers failed to show that BSA perceived her as having a
disability under the ADA. In the alternative, BSA contended that, because of
Carruthers’s admission that ninety percent of her work was on the computer and
because her wo rk restrictio ns had f orbidd en any co mputer usage, sh e had faile d to
show that she could perfo rm the essential functions of her job and that her req uest
that BS A hire a n assistan t for her d id not rep resent a re asonab le accom modatio n.
The district court granted BSA ’s motion. Carruthers now appeals.
II. DISCUSSION
A. District Court’s Judgment as a Matter of Law
On app eal, Carruthers a rgues that the d istrict court erred in g ranting BS A’s
motion for judgment as a matter of law pursuant to Rule 50(a) of the Federal Rules
3
of Civil Procedure.1 According to Carruthers, the district court wrongly concluded
that her evidence, viewed in the light most favorable to her, failed to establish a
prima facie case of em ployme nt discrim ination in violation of the A DA.
Specifically, she argues that the district court erred in determining that no
reasonable juror could conclude that Carruthers’s evidence showed that she was
perceived to be disabled or that she was qualified to perform the essential functions
of her jo b with o r witho ut a reaso nable acc ommo dation.
“We review the district court’s grant of a Rule 50(a) motion for judgment as
a matter of law de novo, conside ring all the evidenc e in the ligh t most fav orable to
. . . the non-moving party.” Mendoza v. Borden, Inc., 195 F .3d 123 8, 1259 (11th
Cir. 1999). “A directed verdict is only proper wh en the facts and inferences so
overwhelmingly favor the verdict that no reasonable juror could reach a contrary
decision.” Id. (citation and internal punctuation omitted). However, “a mere
scintilla of evidence does not create a jury question”; instead, “there must be a
1
Rule 50 (a) prov ides:
If during a trial by jury a party ha s been fu lly heard on an issue and there
is no legally sufficient evidentiary basis for a reasonable jury to find for
that party on that issue, the court may determine the issue against that
party and may grant a motion for judgmen t as a matter of law against
that party w ith respec t to a claim or defense that cannot under controlling
law be maintained or defeated without a favorable finding on that issue.
Fed. R. Civ. P. 50(a)(1).
4
substantial conflict in evidence to support a jury question.” Williams v. Motorola,
Inc., 303 F.3d 1284, 1290 (11th Cir. 2002).
The A DA f orbids c overed employ ers from discrimin ating “aga inst a
qualified individu al with a d isability bec ause of th e disability o f such in dividua l in
regard to . . . discharge of employees.” 42 U.S.C. § 12112(a) (2000). To establish
a prima facie case of discrimination under the ADA, Carruthers must show that she
(1) had , or was perceive d to hav e, a “disability ”; (2) w as a “qualif ied” indiv idual;
and (3) was dis criminate d agains t because of her d isability. William s, 303 F.3d at
1290. The ADA defines “disability” as “(A) a physical or mental impairment that
substantially limits one or more of the major life activities of such individual; (B) a
record of such an impairment; or (C) being regarded as having such an
impairm ent.” 42 U .S.C. § 1 2102( 2).
In order for any ADA claim to succeed, the claimant must show that her
condition of impairment rises to the level of a disability. In Carruthers’s case, the
sole basis of her contention that she was disabled is subsectio n (C) o f § 121 02(2).
Under the “regarded as” prong, a person is “disabled” if her employer perceives
her as having an ADA-qualifying disability, even if there is no factual basis for that
perceptio n. William s, 303 F.3d at 1290. As with actual impairments, however, the
perceived impairment must be one that, if real, would limit substantially a major
5
life activity o f the indiv idual. 42 U.S.C . § 1210 2(2)(C ); see also Sutton v. Lader,
185 F.3d 1203, 1208 (11th Cir. 1999). Carruthers argues that BSA “perceived her
as not performing a wide range of jobs.” Appellant’s Br. at 10. Although
Carruthers offers no further description of the specific disability that BSA
allegedly perceived her to have, we construe her argument to be that BSA
perceived her hand condition as substantially limiting her in the major life
activities of work ing and of perfo rming m anual task s.
The regulations implementing the ADA enumerate several functions that
qualify as “major life activities,” included among which is the activity of
“working.” 29 C.F.R. § 1630.2(i) (2003). In order for Carruthers to establish that
BSA regarded her as substantially limited in the major life activity of working, she
must sh ow tha t BSA perceive d her as “s ignifican tly restricted in the ability to
perform either a class of jobs or a broad range of jobs in various classes as
compared to the average person having comparable training, skills, and abilities.”
29 C.F .R. § 16 30.2(j)( 3)(i); see also Sutton v. United Air Lines, Inc., 527 U.S. 471,
491, 119 S. Ct. 2139, 2151 (1999) (“When the major life activity under
consideration is that of working, the statutory phrase "sub stantially limits"
requires, at a minimum, that plaintiffs allege they are unable to work in a broad
6
class of jobs.”).2 “The inability to perform a single, particular job does not
constitute a substantial limitation in the major life activity of working.” 29 C.F.R.
§ 1630 .2(j)(3)( i). Thus , an impa irment m ust preclu de— or at least b e perceiv ed to
preclude—an individual from more than one type of job, even if the job foreclosed
is the indiv idual’s job of choic e. See Sutton, 527 U .S. at 492 , 119 S .Ct. at 215 1.
With regard to Carruthers’s perceived impairment in performing manual
tasks, the Supreme Court recently took up the question of when such an
impairm ent cons titutes an A DA d isability. Toyota Motor Mfg., Ky., Inc. v.
William s, 534 U.S. 184, 122 S. Ct. 681 (2002). In rejecting plaintiff’s argument
that her carpal tunnel syndrome limited her ability to perform a broad class of
manual tasks and thus impaired a major life activity, the Toyota Motor Court
emphasized that both statutory language and congressional intent require that the
ADA’s “disability” definition be “interpreted strictly to create a demanding
2
We do note that the Supreme Court more recently has expressed its reluctance
to treat impa irment o f one’s ab ility to wo rk as an A DA d isability. See Toyota Motor
Mfg., Ky., Inc. v. Williams, 534 U .S. 184 , 200, 12 2 S.Ct. 681, 692 (2002) (“Because
of the conceptual difficulties inherent in the argument that working could be a major
life activity, we have been hesitant to hold as much, and we need not d ecide this
difficult question today.”). Previously, however, this circuit has, following the ADA
regulations and Sutton’s above-quoted language, treated the activity of working as
a major life activity. See, e.g., Cash v . Smith, 231 F .3d 130 1, 1306 (2000 ); Gordon
v. E.L. Hamm & A ssocs., Inc., 100 F.3d. 907, 911-12 (11th Cir. 1996). In the absence
of a more explicit directive from the Supreme Court, we do not revisit that conclusion
here.
7
standard for qualifying as disabled.” Id. at 197, 122 S. Ct. at 691. The Court
highligh ted sever al prereq uisites in o rder for an impa irment to the ability to
perform manual tasks to qualify as a disability. Specifically, the Court held that
the critical inquiry is whether the impairment (a) prevents or severely restricts the
performance of (b) activities “of central importance to most people’s daily lives.”
Id. at 198, 122 S. Ct. at 691. The Court further held that the impairment must have
a perma nent or lo ng-term impact. Id.; see also 29 C.F .R. § 16 30.2(j)( 2)(iii).
We conclude that no reasonable jury could find that Carruthers’s evidence
established that BSA perceived her impairment as one that substantially limited the
major life activities of work ing or p erform ing man ual tasks. C arruther s herself
admitted at trial that BSA’s knowledge of her condition was limited to her
physician ’s diagno sis of a bila teral hand strain/spr ain and h er wor k restrictio ns.
Aside from BSA’s awareness of her initial diagnosis and work restrictions, the
only oth er supp ort Carr uthers o ffers for her con tention th at BSA perceive d her to
be disab led is the fa ct that (1) B SA in formed her that sh e wou ld be term inated if
she could not maintain a full-time schedule and (2) BSA placed an advertisement
for her replacement shortly after learning of her inability to perform the basic tasks
of her position. Based on this record, we find no indication that BSA regarded, or
would have had any reason to regard, Carruthers’s condition as rendering her
8
incapable of performing “either a class of jobs or a broad range of jobs in various
classes.” 2 9 C.F.R . § 1630 .2(j)(3)( i).
Similarly , Carruth ers failed to show that BS A perc eived he r limitation s in
performing manual tasks as having a permanent or long-term impact and as
preventing or severely restricting her from performing activities of central
importa nce to m ost perso ns’ lives. See Toyota Motor, 534 U .S. at 198 , 122 S . Ct.
at 691. In deed, C arruther s admitted at trial that sh e was ab le to dress herself, ap ply
her own makeup, and groom herself, albeit with some pain, and that there were no
major life activities sh e could n ot perfo rm. Moreover, BSA, wh ich was informed
that Carruthers’s restrictions were to be reviewed on a week-by-week basis, offered
to review its staffing situation w hen Ca rruthers was ready to retu rn to w ork. Cf.
Sutton, 185 F.3d at 1206, 1209 (concluding that court did not err in finding that
employer did not perceive employee as having a disability when employee
provided employer with doctor’s letter stating that he was totally disabled for one
month and par tially disable d for thr ee week s thereafte r).
The dis trict court d id not err in findin g that no reasona ble juror could
conclude that BSA regarded Carruthers as disabled, as that term is defined by the
ADA. A ccordingly, we need not consider Carruthers’s argument that the district
court erred in finding that she also failed to establish that she was a “qualified
9
individual” under the ADA. Because Carruthers failed to establish the first prong
of her prima facie case of discrimination in violation of the ADA, we conclude that
the district court was correct in granting BSA’s motion for judgment as a matter of
law.
B. Denial of Carruthers’s Motion for Leave to Amend
Citing no authority, Carruthers summarily argues that the district court
abused its discretion in denying her motion for leave to amend her first amended
complaint to add a claim for retaliatory discharge. She asserts that the amendment
would not have delayed the proceedings or prejudiced BSA because no additional
discovery would have been required and because the essential witnesses for the
retaliation claim were already available.
We review the denial of leave to amend for clear abuse of discretion.
Maynard v. Bd. of Regents of Universities of Fla. Dept. of Educ., 342 F.3d 1281,
1286- 87 (11 th Cir. 20 03); Lowe’s Home Centers, Inc. v. Olin Corp., 313 F.3d
1307, 1 314-1 5 (11th Cir. 200 2). Rule 15 (a) instru cts that leav e of the co urt to
amend pleadings “shall be freely given when justice so requires.” Fed. R. Civ. P.
15(a). Nevertheless, a motion to amend may be denied on “num erous grounds,
such as undue delay, undue prejudice to the defendants, and futility of the
amendment.” Maynard, 342 F.3d at 1287 (citation and internal quotation marks
10
omitted). Moreover, “[i]t is not an abuse of discretion for a d istrict court to deny a
motion for leave to amend following the close of discovery, past the deadline for
amendments, and past the deadline for filing dispositive motions.” Lowe’s, 313
F.3d at 1315.
We co nclude th at the distric t court pr operly ex ercised its d iscretion in
denying Carruth ers’s mo tion. Car ruthers f iled her m otion on 17 Janu ary 200 3, six
months after the court’s 25 July 2002 deadline for amendments to the pleadings
and tw o mon ths after its 2 5 Nov ember 2 002 de adline fo r comp letion of d iscovery .
Carruth ers offer s no exp lanation a s to wh y the intere sts of justic e require d leave to
amend. Nor does she offer any explanation as to why she could not have
discovered and pled retaliation in her original complaint or in her first amended
compla int. We f ind that su ch unex plained ta rdiness c onstitutes undue delay.
Moreover, granting the motion likely would have further delayed proceedings and
prejudiced BSA, which had completed discovery and would have had to conduct
additional discovery on the issue of wh ether Carruthers’s filing of her work ers’
compe nsation c laim wa s causally r elated to B SA’s te rminatio n of her employ ment.
The district cou rt did not clearly ab use its discretion in d enying Car ruthers’s
motion to amen d.
III. CONCLUSION
11
Because no reasonable juror could conclude that Carruthers was disabled,
the district court did not err in granting BSA’s motion for judgment as a matter of
law. Because Carruthers filed her motion for leave to amend her first amended
complaint after the discovery deadline and after the close of pleadings, without
adequa tely justifyin g the dela y, the distric t court did not abu se its discre tion in
denying it. The jud gment o f the distric t court is
AFFIRMED
12