United States Court of Appeals
For the First Circuit
No. 00-2319
ELLEN WHITNEY,
Plaintiff, Appellant,
v.
GREENBERG, ROSENBLATT, KULL & BITSOLI, P.C.,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nathaniel M. Gorton, U.S. District Judge]
Before
Selya, Circuit Judge,
Coffin, Senior Circuit Judge,
and Lynch, Circuit Judge.
Richard A. Mulhearn for appellant.
Richard C. Van Nostrand, with whom Patricia L. Davidson was
on brief, for appellee.
July 27, 2001
COFFIN, Senior Circuit Judge. Plaintiff-appellant
Ellen Whitney sued her former employer, defendant-appellee
Greenberg, Rosenblatt, Kull & Bistoli (GRK&B), a Worcester
accounting firm, for disability discrimination in violation of
the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101-
12213, and the Massachusetts anti-discrimination statute, Mass.
Gen. Laws ch. 151B. Whitney, a secretary for eight years at the
firm, claimed that a cognitive disability resulting from
chemotherapy treatment affected her performance at work and led
to her unlawful discharge. The district court granted summary
judgment to GRK&B, finding that Whitney was not disabled within
the meaning of the law because her impairment did not
substantially limit her ability to work or to learn, as
evidenced by her success at a similar job soon after termination
from GRK&B's employ. We affirm.
BACKGROUND
Whitney worked as the executive assistant to an
accountant at GRK&B since 1988. After being diagnosed with
ovarian cancer, Whitney was treated with chemotherapy in the
early months of 1995, during which time she took a leave of
absence from the firm. Upon her return, Whitney resumed her
regular duties, which she performed without incident for well
over a year. In 1996, GRK&B adopted a new computer operating
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system and Whitney struggled unsuccessfully to learn the new
software program. That September, she suffered an anxiety
attack, which prompted a second leave of absence, during which
she was diagnosed as having dementia due to the chemotherapy
administered some eighteen months earlier. Whitney was
evaluated by a psychologist and a speech pathologist, who found
her condition to be "mild but significant" and recommended
several accommodations to her employer. The prognosis was for
Whitney to be "back up to speed" within six months.
When she returned to work for the second time, in
November 1996, Whitney was greeted with a less than favorable
reception: her requests to work part-time or to adjust her hours
were denied, and she received an unflattering job evaluation.
Whitney's duties were also restricted. She was no longer
entrusted with managing client assets and was denied access to
the vault. Several weeks later, on December 26, 1996, she was
fired.
Less than three weeks after her termination, however,
Whitney secured a full-time but temporary position as the
secretary to the vice president of a bank, where she performed
many of the same administrative duties as she had with the
accounting firm. In fact, when the bank converted its computer
software to another operating system, Whitney, by her own
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admission, had "no problem acclimating herself to the [new]
program." When that temporary position ended, Whitney moved
immediately into another full-time administrative position at a
different bank where she later became a permanent employee. At
neither of these two post-GRK&B jobs did Whitney reveal her
impairment to, or request any accommodation from, her employer.
By March 1997, within six months of her dementia diagnosis,
Whitney's doctor reported that her condition had "significantly
improved" such that she was "able to function at a reasonable
capacity."
Whitney filed suit in state superior court, claiming
that she had been fired because of her disability. After
defendant removed the case to federal court, the district court
granted summary judgment for GRK&B, holding that Whitney failed
to adduce sufficient evidence to demonstrate that her cognitive
disability was severe or lengthy enough to substantially limit
her ability to work or to learn. See Whitney v. Greenberg,
Rosenblatt, Kull & Bistoli, P.C., 115 F. Supp. 2d 127, 132 (D.
Mass. 2000). We review that ruling de novo. Gelabert-Ladenheim
v. Am. Airlines, Inc., 252 F.3d 54, 58 (1st Cir. 2001).
DISCUSSION
A plaintiff seeking the protections of the ADA and its
Massachusetts analogue, Chapter 151B, must be disabled (or
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handicapped, in the parlance of Chapter 151B) within the meaning
of the law.1 In order to show that she is covered, Whitney must
demonstrate that she (i) had an impairment that (ii)
substantially limited (iii) a major life activity. 42 U.S.C. §
12102(2)(A).2
We need not dwell on the first or last of these three
prongs as the middle one provides an obvious basis for decision.
1 The definitions of "disability" and "handicap" are
virtually identical in the statutes. Compare 42 U.S.C. §
12102(2) with Mass. Gen. Laws ch. 151B, § 1(17). Given the
similarity, our singular analysis disposes of both the federal
and state claims. See Ward v. Massachusetts Health Research
Inst., 209 F.3d 29, 33 n.2 (1st Cir. 2000) ("The Supreme
Judicial Court of Massachusetts has indicated that federal case
law construing the ADA should be followed in interpreting the
Massachusetts disability law."). Although a recent decision of
the SJC, decided after the argument in this case, indicates that
Massachusetts law diverges from the ADA where mitigating or
corrective devices are at issue, compare Dahill v. Police Dep't
of Boston, 748 N.E.2d 956, 963 (Mass. 2001) (holding that
mitigating or corrective devices are not considered in assessing
handicap) with Sutton v. United Air Lines, Inc., 527 U.S. 471,
481 (1999) (holding that mitigating or corrective devices are
considered in assessing disability), because such measures are
not at issue here, we need not consider the state claim
separately. In any event, no distinction between the ADA and
Chapter 151B was argued to the district court.
2 Of the other two ways in which to qualify for
protection from disability discrimination - having a record of
an impairment, or being regarded as impaired, id. §
12102(2)(B)&(C) - neither is seriously contended here. Whitney
does not argue that her cancer, the only impairment of which
there was any developed record, instigated the adverse
employment action. Nor does she contest that GRK&B terminated
her because it regarded her as impaired based on stereotypes
about disability, i.e., based on any misperception about her
impairment. See Gelabert-Ladenheim, 252 F.3d at 62.
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We will therefore assume without deciding that dementia induced
by chemotherapy is a covered impairment, cf. Gordon v. E.L. Hamm
& Assocs., 100 F.3d 907, 912 (11th Cir. 1996) (assuming the side
effects suffered as a consequence of chemotherapy to be an
impairment under the ADA),3 and that the major life activities
asserted to have been impacted, chiefly working and learning,
are protected activities, see Sutton, 527 U.S. at 492 (assuming
work to be a major life activity); see also Gelabert-Ladenheim,
252 F.3d at 58 (noting that working has been explicitly
recognized by EEOC regulations as a major life activity) (citing
29 C.F.R. § 1630.2(i)); Bercovitch v. Baldwin Sch., Inc., 133
F.3d 141, 155 (1st Cir. 1998) (same for learning).4
3 GRK&B goes to great lengths to contest the reliability
of the medical evidence that purportedly shows dementia
secondary to chemotherapy to be a qualified impairment. Whitney
argues that because her diagnosis is among those listed in the
American Psychiatric Association's Diagnostic and Statistical
Manual of Mental Disorders (DSM-IV), it qualifies as a covered
impairment. The district court did not analyze the medical
evidence, finding instead that Whitney's cognitive disorder
qualified because it was akin to an "organic brain syndrome,"
one of the exemplars enumerated in the ADA regulations. See
Whitney, 115 F. Supp. 2d at 131 (citing 29 C.F.R. §
1630.2(h)(2)). We need not resolve this issue.
4 Whitney takes exception to the district court's
telescoping under the rubric of working and learning other
asserted major life activities, namely: thinking, concentrating,
organizing data, processing information, interacting with
others, and performing other everyday tasks such as sleeping and
driving at night. Even if each of these is a distinct major
life activity, we agree with the district court that all may be
reasonably subsumed within the broader context of working and
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To make a colorable claim of disability discrimination,
it is not enough that a bona fide impairment had some effect on
recognized life activity. An ADA plaintiff must show that the
impairment substantially limited that activity in order to
survive a defense motion for summary judgment. Analysis of the
"substantially limits" prong requires an individualized inquiry,
guided by three considerations articulated by the EEOC: (i) the
nature and severity of the impairment, (ii) its duration, and
(iii) the expected long-term impact. See 29 C.F.R. §
1630.2(j)(2). To prevail, Whitney would have to establish that
her cognitive impairment was profound enough and of sufficient
duration, given the nature of her impairment, to hamper her
ability to work or to learn. The record supports neither
restriction.
In order to demonstrate a substantial limitation where
work is at issue, a "plaintiff must show that she is
significantly restricted in her ability to perform 'a class of
jobs' [or] . . . 'a broad range of jobs in various classes.'"
Gelabert-Ladenheim, 252 F.3d at 60 (quoting 29 C.F.R. §
1630.2(j)(3)(ii)(B)&(C)); see also Sutton, 527 U.S. at 492 ("If
learning. See Whitney, 115 F. Supp. 2d at 131; see also Emerson
v. N. States Power Co., No. 00-3746, 2001 WL 710296, at *4 (7th
Cir. June 26, 2001) (treating memory, concentration, and
interacting with others as activities that "feed into" the major
life activities of learning and working).
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jobs utilizing an individual's skills (but perhaps not his or
her unique talents) are available, one is not precluded from a
substantial class of jobs. Similarly, if a host of different
types of jobs are available, one is not precluded from a broad
range of jobs."). This burden cannot be met where the plaintiff
was able to perform without accommodation a job that is
substantially similar to the one in which she claims
discrimination. See Lebron-Torres v. Whitehall Labs., 251 F.3d
236, 240 (1st Cir. 2001) (affirming summary judgment for
employer where ADA plaintiff performed same job without
restriction for more than a year after impairment arose). But
that is precisely the situation here.
As the district court recognized, "Whitney [] presented
no evidence that her deficits significantly restricted her
ability to perform either a class of jobs or a broad range of
jobs in various classes." Whitney, 115 F. Supp. 2d at 132.
Indeed, the evidence is that she satisfactorily completed at the
two banks the same types of administrative duties for which she
had been responsible at GRK&B. Whitney did not offer testimony
from a vocational expert, or evidence of labor market statistics
to support her claims. Cf. Gelabert-Ladenheim, 252 F.3d at 60-
61. The only evidence before us suggests that she could do
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essentially the same job elsewhere without accommodation shortly
after her termination.
Whitney argues that her ability to sustain post-
termination employment does not vitiate her claims because the
banks "provided the accommodation that Plaintiff's medical team
had repeatedly requested of Defendant, but Defendant did not
provide - a supportive work environment." But Whitney never
requested any accommodation from either bank; in fact, she
didn't even inform them of her disability. There is simply no
support in the record for Whitney's contention that the banks
provided accommodations that GRK&B did not.
Whitney's claim that her major life activity of
learning was also substantially limited is similarly belied by
the record. Here again, the evidence is insufficient to show
that Whitney's impairment endured long enough or was so severe
as to have much of a long-term impact on her ability to learn.
Her difficulty with the new computer operating system at GRK&B,
which offered fairly extensive training, stands in stark
contrast to Whitney's admission that within months after
starting at the bank, she was able to acclimate herself to a new
program with minimal assistance. Absent other evidence that her
ability to learn was hindered, Whitney's claim cannot withstand
summary judgment. See Bercovitch, 133 F.3d at 155-56 (holding
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ADA claim non-actionable where, although impairment prevented
plaintiff from achieving his absolute maximum learning
potential, his learning ability did not fall below average).
Because Whitney's cognitive impairment was mild,
reversible, and short lived, no reasonable jury could conclude
based on this record that it substantially limited her ability
to work or to learn. As such, and as a matter of law, she was
not disabled within the meaning of the ADA and therefore not
entitled to its protections.
Affirmed.
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