United States Court of Appeals
For the First Circuit
No. 03-1099
STEPHEN D. WRIGHT,
Plaintiff, Appellant,
v.
COMPUSA, INC.,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Morris E. Lasker, U.S. District Judge]
Before
Torruella and Lipez, Circuit Judges,
and Schwarzer,* Senior District Judge.
Gretchen Van Ness, for appellant.
Barbara O'Donnell, with whom Alida Bográn-Acosta and Robinson
& Cole LLP, were on brief, for appellee.
December 19, 2003
*
Of the Northern District of California, sitting by designation.
TORRUELLA, Circuit Judge. Plaintiff-appellant Stephen D.
Wright ("Wright") appeals the award of summary judgment to his
former employer, defendant-appellee CompUSA, Inc. ("CompUSA"), on
his claims of disability discrimination and retaliation in
violation of the Americans with Disabilities Act, 42 U.S.C. § 12101
et seq. ("ADA") and the Massachusetts Fair Employment Practices
Act, Mass. Gen. Laws ch. 151B, § 4. After careful review, we
affirm the district court's decision regarding disability
discrimination. We reverse and remand Wright's retaliation claim,
however, because the record creates a genuine issue of material
fact as to whether CompUSA's proffered reason for terminating
Wright was pretextual.
I. Background
Wright began working for CompUSA in February 1994. In
1996, he became Direct Sales Manager at the Brighton, Massachusetts
store, a position he held until his discharge in August 1998. In
May 1997, Wright was diagnosed as suffering from Attention Deficit
Disorder ("ADD"), and he began taking Ritalin. Wright first
informed his manager that he suffered from ADD in August 1997. He
did not request accommodation at that time.
In June 1998, a new general manager, Gregory Caughman,
was assigned to the Brighton store. Soon after, Wright began
experiencing severe stress and anxiety on the job, which
exacerbated his ADD symptoms. Around June 30, Wright experienced
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a panic attack at work and sought his physician's advice, which
included increasing his level of medication. During July, Wright
was involved in several conflicts with Caughman, and he attributes
the severity of his symptoms during this period to Caughman's
managerial style. Wright also alleges that his symptoms and need
for increased medication were alleviated when Caughman was gone
from the office during part of that month. Toward the end of the
month, Wright's physician recommended that Wright take a leave of
absence from work. CompUSA granted Wright a two-week medical leave
from July 23, 1998 to August 4, 1998. While on medical leave,
Wright requested a transfer to the Braintree store. This request
was denied. Wright then requested that he be allowed to work from
home. This request was also denied.
Wright returned to work on August 5th with letters from
his physician, Dr. Horan, and from his psychiatrist, Dr. Song. A
note from Dr. Horan approving Wright's return to normal duties was
accompanied by a letter indicating that Wright was being treated
for a medical condition which required him to take medications with
meals three times a day. Dr. Song's letter noted that Wright had
responded positively to treatment with Ritalin, described the
symptoms of ADD, and made specific recommendations regarding how
CompUSA could accommodate Wright's symptoms, including allowing
Wright to determine the length of time needed to complete tasks,
avoiding early morning meeting times, and clarifying work
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assignments in writing. Dr. Song's letter also mentioned that
discussions with Wright indicated to Dr. Song that Wright's
difficulties in June and July were caused by increased stress due
to the new managerial style in place since Caughman's arrival.
Wright alleges that after receiving this letter Caughman
nevertheless continued to issue orders contrary to Dr. Song's
suggested accommodations.
On August 11, 1998, Wright was scheduled to attend a
meeting for Direct Sales Managers at the CompUSA store in Danvers.
On the night of August 10th, Wright's son suffered a head injury at
work, and when Wright realized the following morning that he needed
to take his son to see the doctor, he called Caughman to explain
that he would be delayed. Wright and Caughman spoke on the phone
several times that day, and Caughman told Wright not to come to the
Brighton store until he had gone to Danvers. When Wright was
finished caring for his son, he was unable to reach anyone at the
Danvers store by phone. Wright contacted a manager at another
store who had attended the Danvers meeting and asked him to fax the
materials from the meeting to the Brighton store. After confirming
that the materials had been faxed to Brighton, Wright arrived at
the Brighton store and attempted to meet with Caughman to give him
the materials. Caughman called Wright into his office and
discharged him, allegedly for insubordination due to Wright's
failure to go to Danvers as instructed.
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In February 1999, Wright filed a disability
discrimination and retaliation complaint with the Massachusetts
Commission Against Discrimination. No action was taken on Wright's
complaint. Wright withdrew his administrative claim and filed a
civil action in Suffolk Superior Court, adding two individual
defendants, Caughman and Robert Morsilli (CompUSA's Regional
Manager). On September 12, 2001, CompUSA removed the case to
federal court. On December 28, 2001, the district court granted
the individual defendants' motion to dismiss, Wright v. CompUSA,
Inc., 183 F. Supp. 2d 308 (D. Mass. 2001), leaving CompUSA as the
sole defendant. On December 17, 2002, the district court granted
CompUSA's motion for summary judgment on each of Wright's claims.
II. Analysis
Summary judgment is appropriate where the record shows
"that there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law."
Fed. R. Civ. P. 56(c). We review the district court's order
granting summary judgment de novo, construing the record in the
light most favorable to Wright and resolving all reasonable
inferences in his favor. Rodríguez v. Smithkline Beecham, 224 F.3d
1, 5 (1st Cir. 2000).
A. Discrimination Claim
Wright contends that the district court erred in granting
summary judgment for CompUSA regarding disability discrimination
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by failing to view the facts in the light most favorable to his
claim. To establish disability discrimination under the ADA and
Massachusetts law, Wright must show: (1) that he suffers from a
disability; (2) that he was nevertheless able to perform the
essential functions of his job, either with or without reasonable
accommodation; and (3) that CompUSA took adverse action against him
because of his disability. Carroll v. Xerox Corp., 294 F.3d 231,
237 (1st Cir. 2002)(citing Lessard v. Osram Sylvania, Inc., 175
F.3d 193, 197 (1st Cir. 1999)). The district court held, and we
here affirm, that the evidence presented, even viewed in the light
most favorable to Wright, is insufficient to create a triable issue
of fact as to whether Wright's ADD qualifies as a disability under
the ADA.
The ADA defines a disability as (1) a physical or mental
impairment that substantially limits one or more of the major life
activities of an individual; (2) a record of such an impairment; or
(3) being regarded as having such an impairment. 42 U.S.C. § 12102
(2). Wright alleges that his impairment, ADD, substantially limits
him in the major life activities of reading, speaking,
concentrating, hearing and processing information, and thinking and
articulating thoughts, thus affecting his ability to write, to be
spontaneous, to plan, to communicate with others, to run errands,
to complete everyday chores, and to deal with stressful situations.
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EEOC regulations define "substantially limits" as "(i)
[u]nable to perform a major life activity that the average person
in the general population can perform; or (ii) [s]ignificantly
restricted as to the condition, manner, or duration under which an
individual can perform a major life activity as compared to the
condition, manner, or duration under which the average person in
the general population can perform that same major life activity."
29 C.F.R. § 1630.2(j)(1). Factors to be considered in determining
whether an individual is substantially limited in a major life
activity are "(i) [t]he nature and severity of the impairment, (ii)
[t]he duration or expected duration of the impairment, and (iii)
[t]he permanent or long term impact . . . of or resulting from the
impairment." 29 C.F.R. § 1630.2(j)(2). Accordingly, this court
has refrained from finding a disability pursuant to the ADA absent
evidence that the plaintiff "could not perform some usual activity
compared with the general population, or that he had a continuing
inability to handle stress at all times, rather than only
episodically." Calef v. Gillette Co., 322 F.3d 75, 86 (1st Cir.
2003)(employee with attention deficit hyperactivity disorder not
disabled under ADA absent showing that substantially limited in the
major life activities of learning or speaking).
As the district court found, the evidence Wright provided
indicated that his treatment for ADD had been quite successful, and
Wright acknowledges that the disruptive severity of his symptoms
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did not begin until Caughman arrived in June 1998. Dr. Song
specifically noted in his letter that Wright's stress in the summer
of 1998 was due to the changed work environment. So, while Wright
presented evidence that Caughman's managerial style created a
stressful environment for him that affected his ADD symptoms, he
does not present evidence that his ADD generally rendered him
unable to perform some usual activity compared to the general
population or that he had a continuing inability to handle
stressful situations.1
Accepting as undisputed that Wright has been diagnosed
with ADD,2 it is not sufficient for an ADA plaintiff "to merely
1
Wright reminds us that the ADA requires case-by-case
determinations in which plaintiffs need only "prove a disability by
offering evidence that the extent of the limitation [caused by
their impairment] in terms of their own experience . . . is
substantial." Toyota Motor Mfg. v. Williams, 534 U.S. 184, 198
(2002)(quoting Albertson's, Inc. v. Kirkingburg, 527 U.S. 555, 567
(1999)). He contends that the district court applied an
inappropriately heightened "objective evidence" standard when it
stated that "other than his own affidavit, Mr. Wright presents no
objective evidence that his ADD substantially limits a major life
activity." Wright v. CompUSA, Inc., No. 01-CV-11567-MEL, slip op.
at 6 (D. Mass. Dec. 17, 2002). Despite the reference to Wright's
affidavit as the only "objective" evidence, however, it is clear
from the opinion that the district court performed the required
individualized inquiry of the complete record, including Wright's
doctors' letters, and did not improperly limit its consideration to
the affidavit.
2
Wright contends that the district court's reference to his
diagnosis as "questionable" shows that it failed to view the facts
in the light most favorable to his claim, as required for summary
judgment. Wright did not provide further evidence of the diagnosis
itself, he explains, because CompUSA conceded for the purposes of
its summary judgment motion that Wright had been diagnosed with
ADD. While the district court's skeptical attitude toward the
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submit evidence of a medical diagnosis of an impairment." Toyota
Motor Mfg. v. Williams, 534 U.S. 184, 198 (2002). Other circuits
have similarly found that ADD does not constitute a disability
under the ADA without a showing of substantial limitation of a
major life activity. Doebele v. Sprint/United Mgmt. Co., 342 F.3d
1117, 1129-31 (10th Cir. 2003)(ADA plaintiff with ADD, bipolar
disorder, and hypothyroidism failed to present evidence that her
impairments substantially limited any of the major life activities
identified); Davidson v. Midelfort Clinic, Ltd., 133 F.3d 499 (7th
Cir. 1998)(ADA plaintiff failed to establish that ADD substantially
limited her ability to work, speak, or learn). While Wright
provided evidence that his ADD affected various activities in his
everyday life, this evidence was not sufficient to allow a
reasonable juror to conclude that he was substantially limited in
the major life activities of reading, speaking, concentrating,
hearing and processing information, and thinking and articulating
thoughts, as he contends.
B. Retaliation Claim
Wright asserts that, regardless of the outcome of his
discrimination claim, his retaliation claim should survive summary
judgment because the record creates a genuine issue of material
diagnosis was unwarranted, this does not absolve Wright of his
burden of establishing that his ADD substantially limited him in a
major life activity.
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fact as to whether CompUSA's proffered reasons for discharging
Wright were pretextual. We agree.
An ADA plaintiff need not succeed on a disability claim
to assert a claim for retaliation. Soileau v. Guilford of Maine,
Inc., 105 F.3d 12, 16 (1st Cir. 1997)(citing Mesnick v. Gen. Elec.
Co., 950 F.2d 816, 827 (1st Cir. 1991)); see also Siaca v.
Autoridad de Acueductos y Alcantarillados de Puerto Rico, 160 F.
Supp. 2d 188, 198 (D.P.R. 2001). Massachusetts's anti-
discrimination law also treats retaliation as a "separate and
independent cause of action." Abramian v. President & Fellows of
Harvard Coll., 731 N.E.2d 1075, 1087 (Mass. 2000). Wright's
failure to establish a disability does not preclude his retaliation
claim.
The ADA's retaliation provision states: "No person shall
discriminate against any individual because such individual has
opposed any act or practice made unlawful by this chapter or
because such individual made a charge, testified, assisted, or
participated in any manner in an investigation, proceeding, or
hearing under this chapter." 42 U.S.C. § 12203(a). This court has
previously assumed, without deciding, that simply requesting an
accommodation, without filing a formal charge or engaging in other
specific behaviors listed in § 12203(a), is nonetheless behavior
protected from an employer's retaliation. Benoit v. Technical Mfg.
Corp., 331 F.3d 166, 177 (1st Cir. 2003)("we shall assume arguendo
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that such behavior on the part of a plaintiff brings him within the
ambit of 42 U.S.C. § 12203(a)."); Soileau, 105 F.3d at 16. We have
reasoned that "it would seem anomalous . . . to think Congress
intended no retaliation protection for employees who request a
reasonable accommodation unless they also file a formal charge."
Soileau, 105 F.3d at 16. Other circuits have similarly assumed or
expressly held that requesting reasonable accommodation is
"protected activity" under the ADA. Shellenberger v. Summit
Bancorp, Inc., 318 F.3d 183, 191 (3d Cir. 2003)("The right to
request an accommodation in good faith is no less a guarantee under
the ADA than the right to file a complaint with the EEOC.");
Haulbrook v. Michelin N. Am., Inc., 252 F.3d 696, 706 (4th Cir.
2001); Selenke v. Medical Imaging of Colorado, 248 F.3d 1249, 1265
(10th Cir. 2001); Silk v. City of Chicago, 194 F.3d 788, 799-801
(7th Cir. 1999). We now hold that requesting an accommodation is
protected activity for the purposes of § 12203(a).
To establish a prima facie claim of retaliation, Wright
must show "that he was engaged in protected conduct, that he was
discharged, and that there was a causal connection between the
discharge and the conduct." Soileau, 105 F.3d at 16 (citing Wyatt
v. City of Boston, 35 F.3d 13, 15 (1st Cir. 1994)). As discussed
above, Wright's request for accommodation constituted protected
activity, and it is undisputed that he was discharged. The causal
connection between his discharge and his request for accommodation
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is the contested issue. The district court found that "the actual
causal nexus of events leading to Wright's termination lies in his
refusal to attend the mandatory meeting," concluding that "no
reasonable juror could find that CompUSA fired Wright in
retaliation for his submission of Dr. Song's letter or his other
requests." Wright v. CompUSA, Inc., No. 01-CV-11567-MEL, slip op.
at 8 (D. Mass. Dec. 17, 2002). In so doing, the district court
implicitly discredited Wright's contention that, as opposed to
exhibiting insubordination, his behavior on August 11th consisted
of good-faith, successful efforts to obtain materials from a
meeting that he had already missed while caring for his son.
Viewing the record in the light most favorable to Wright, a
reasonable juror could infer that CompUSA's charge of
insubordination masked retaliatory motives. Wright was terminated
immediately after returning from medical leave and requesting
accommodation of his ADD. While this chronological proximity does
not by itself establish causality, particularly if "[t]he larger
picture undercuts any claim of causation," Soileau, 105 F.3d at 16,
the record before us does not paint a picture of insubordination
sufficient to undercut Wright's claim of causation. When viewed in
the light most favorable to Wright, the evidence presented
establishes a prima facie case of retaliation sufficient to survive
summary judgment.
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Once a prima facie case of retaliation is established,
the burden shifts to the employer "to articulate a legitimate,
nondiscriminatory reason for its employment decision." Mesnick,
950 F.2d at 827. If the employer provides a legitimate reason,
"the ultimate burden falls on the plaintiff to show that the
employer's proffered reason is pretext masking retaliation . . . ."
Id. CompUSA alleges that Wright was discharged for insubordination
and reminds us that "[t]he ADA is not a license for insubordination
at the workplace." Reed v. LePage Bakeries, Inc., 244 F.3d 254,
262 (1st Cir. 2001). The burden thus falls on Wright to show that
CompUSA’s proffered reason was pretextual. As discussed above, the
evidence presented by Wright creates a triable issue of fact as to
whether his discharge was in fact due to his allegedly
insubordinate behavior on August 11th or whether CompUSA's charge
of insubordination masked retaliation for requesting accommodation
of his ADD.
III. Conclusion
For the foregoing reasons, we affirm the district court's
grant of summary judgment regarding discrimination but reverse and
remand Wright's retaliation claim to the district court for further
proceedings consistent with this opinion.
Affirmed in part, reversed and remanded in part.
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