United States Court of Appeals
For the First Circuit
No. 02-2568
JAMES WHITLOCK,
Plaintiff, Appellant,
v.
MAC-GRAY, INC.; DALE INGERSOLL,
Defendants, Appellees,
MICHAEL WINGARDEN,
Defendant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. George O'Toole, Jr., U.S. District Judge]
Before
Torruella, Circuit Judge,
Lipez, Circuit Judge,
and Schwarzer,* Senior District Judge.
Paul A. Gargano was on brief for appellant.
Bradford J. Smith, with whom Jeffrey S. Siegel, was on
brief for appellees.
October 6, 2003
*
Of the Northern District of California, sitting by
designation.
SCHWARZER, Senior District Judge. James Whitlock
(“Whitlock”) appeals the District Court’s summary judgment for his
employer, Mac-Gray, Inc. (“Mac-Gray”), on his claims of workplace
discrimination and hostile and abusive work environment in
violation of the Americans with Disabilities Act of 1990 (“ADA”),
42 U.S.C. §§ 12101-12213. The District Court found that Whitlock
had failed to proffer evidence that he suffered an impairment that
substantially restricted his ability to perform a whole range of
comparable jobs or that Mac-Gray regarded him as having such an
impairment, and concluded that he thus failed make out a prima
facie case of discrimination or harassment under the ADA. The
District Court had jurisdiction pursuant to 28 U.S.C. § 1331 and we
have jurisdiction pursuant to 28 U.S.C. § 1291. For the reasons
stated below, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Mac-Gray, a national provider of card- and coin-operated
laundry services in multiple-housing facilities, employed Whitlock
in its Parts and Shipping Department from 1978 until July 2001.
Whitlock was diagnosed with attention deficit hyperactivity
disorder (“ADHD”) in 1997, and was prescribed the drug Ritalin to
help him concentrate and focus. To accommodate his impairment,
Mac-Gray allowed Whitlock to construct partitions around his
workspace and, for a time, to use an AM/FM radio to block
background noise.
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In November 1998 Mac-Gray reorganized its Parts and
Shipping Department and moved Whitlock from the first to the second
(or mezzanine) floor of its warehouse. This relocation required
dismantling of Whitlock’s partitions. Mac-Gray also ordered
removal of Whitlock’s radio because of coworkers’ complaints.
In response to these changes, Whitlock took short-term
disability leave. He returned to work on July 15, 1999. He was
permitted to resume use of a radio and to install partitions around
his workspace. On the recommendation of Whitlock’s doctor, Mac-
Gray also permitted him to work only four days a week with no
overtime.
Whitlock filed this action on March 22, 2000. He
continued to work, though frequently calling in sick, until
September 29, 2000, when he left on a second short-term disability
leave. On February 21, 2001, Whitlock’s doctor, Dr. Joseph McCabe,
wrote a memorandum “to whom it may concern” stating that due to
Whitlock’s psychiatric illness “he is presently totally disabled”
and that he had “advised the patient not to attempt to return to
employment at Mac-Gray.” In July 2001 Whitlock left his employment
permanently.
STANDARD OF REVIEW
We review a summary judgment de novo, construing the
record in the light most favorable to the nonmoving party and
resolving all reasonable inferences in that party’s favor. See
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Feliciano de la Cruz v. El Conquistador Resort and Country Club,
218 F.3d 1, 5 (1st Cir. 2000).
DISCUSSION
Whitlock contends on appeal that he is disabled by reason
of having been diagnosed with ADHD. He argues that his ADHD
substantially limits a major life activity, namely, his ability to
work. To function in the workplace, he argues, required that he be
accommodated by being placed behind partitions that blocked visual
distractions and permitted use of a radio to block competing
noises. On this evidence he contends a jury would decide that he
was disabled.
Whitlock’s evidence may establish that he has an
impairment, but not that he is disabled for purposes of the ADA.
“It is insufficient for individuals attempting to prove disability
status . . . to merely submit evidence of a medical diagnosis of an
impairment.” Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S.
184, 198 (2002). “‘[W]hen the major life activity under
consideration is that of working, the statutory phrase
“substantially limits” requires . . . that plaintiffs allege that
they are unable to work in a broad class of jobs.’” Id. at 200
(quoting Sutton v. United Air Lines, Inc., 527 U.S. 471, 491
(1999)); see also Santiago Clemente v. Executive Airlines, 213 F.3d
25, 32 (1st Cir. 2000) (stating that “to be substantially limited
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in the major life activity of working, [the plaintiff] must be
precluded from more than a particular job.”).1
Whitlock has offered no such evidence. Indeed, Whitlock
concedes in his deposition that he was capable of performing his
work despite his ADHD and that Mac-Gray believed he could do his
job. He admitted that he taught himself to use Mac-Gray’s new
computer system, that he “got pretty good at it,” and that Mac-Gray
“placed great trust in his abilities.”
Whitlock’s other evidence does not suffice to raise a
triable issue that his impairment substantially restricts his
ability to perform a class or broad range of comparable jobs. As
noted above, a diagnosis alone does not establish a disability
within the meaning of the ADA. See Toyota Motor, 534 U.S. at 198;
Calef v. Gillette Co., 322 F.3d 75, 86 (1st Cir. 2003) (“Merely
pointing to a diagnosis of ADHD is inadequate.”). Nor is
Dr. McCabe’s conclusory assertion of total disability–an assertion
lacking elaboration and support in the record–sufficient to make
the individualized showing of Whitlock’s particular limitations
required by Toyota. See Gonzalez v. El Dia, Inc., 304 F.3d 63, 74
(1st Cir. 2002) (holding “highly conclusory” physician testimony
that fails to document “precisely how [plaintiff’s] ability to work
1
We assume, without deciding, that working may constitute a
major life activity for purposes of the ADA. See Carroll v. Xerox
Corp., 294 F.3d 231, 239 n.7 (1st Cir. 2002).
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has been affected by her impairments” insufficient to prove
existence of disability under the ADA).
We also reject Whitlock’s claim that he meets the
definition of “disabled” under 42 U.S.C. § 12102(2) because his
employer regarded him as such. To support such a claim Whitlock
must come forward with evidence that the employer perceived him as
“precluded from more than a particular job.” See Murphy v. UPS,
527 U.S. 516, 523-25 (1999). Whitlock offers no such evidence. He
cites only the “continuing dialogue” between Mac-Gray and his
physician regarding his impairment, and the fact that the company
agreed to Whitlock’s requested accommodations. The record
demonstrates without dispute, however, that Mac-Gray regarded
Whitlock as capable of performing his job.
CONCLUSION
For the reasons stated, we affirm the judgment of the
District Court.
AFFIRMED.
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