|SELECTED 1st CIRCUIT COURT OF APPEALS
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Buchanan v. Maine,
469 F.3d 158 (11/2006)
argues the district court erred in granting summary judgment to Lincoln County
on his Title II claim. He argues that the County failed to reasonably
accommodate Buchanan's disability by (1) failing to draft law enforcement
policies accommodating the needs of mentally ill members of the public, and (2)
failing to adequately train its officers on the needs of the mentally ill
bypass the question of whether Title II of the ADA imposes duties on a county
sheriff's department to draft policies and train officers on the needs of the
mentally ill public. Whether obliged to do so by Title II or not, the County did
in fact have such policies and such training.
Mulloy v. Acushnet Co., 460 F.3d 141 (8/2006) We conclude that Mulloy was not a qualified individual with a disability under
the ADA or a qualified handicapped person under Section 151B, §4 because he
could not perform the essential functions of his job with or without reasonable
Toledo v. Sanchez, 454 F.3d 24 (7/2006) we conclude that
Title II, as it applies to the class of cases implicating the right
of access to public education, constitutes a valid exercise of
5 authority to enforce the guarantees of the Fourteenth
Amendment. Accordingly, state sovereign immunity is not a defense to
Iverson v. City Of Boston,
F.3d 94 (6/2006) This case requires us to decide whether the
self-evaluation and transition plan regulations promulgated by the
Attorney General under Title II of the Americans with Disabilities
Act (ADA), 42 U.S.C.
§§ 12131-12165, are enforceable through a
private right of action. Two of our sister circuits have divided
over the appropriate answer to this thorny question.
Compare Ability Ctr. of Greater
Toledo v. City of
Sandusky, 385 F.3d 901, 913-15 (6th Cir. 2004) (holding that
the transition plan regulation is not so enforceable),
with Chaffin v.
Kan. State Fair Bd.,
348 F.3d 850, 857-60 (10th Cir. 2003) (holding that both the
self-evaluation and transition plan regulations are enforceable in
that manner). After careful consideration, we conclude that recent
Supreme Court precedent dashes any hope that these regulations are
so enforceable. We also conclude that the plaintiffs' other
arguments are unavailing and, accordingly, affirm the district
court's grant of summary judgment in the defendant's favor.
Kiman v. New Hampshire Dept. Of Corrections,
451 F.3d 274 (6/2006)
reviewing the record, we agree that the district court failed to
address admissible record evidence that may suffice to create
genuine issues of material fact as to whether the defendants
violated Title II of the ADA. We therefore vacate the judgment of
the district court and remand for further proceedings. On remand,
the district will need to address the issues left unresolved by its
earlier holding, including an assessment of which defendants would
be liable for the Title II violations, whether the state's sovereign
immunity has been validly abrogated, and whether
summary judgment on Kiman's state law claims is appropriate.
Orta-Castro v. Merck, Sharp & Dohme Quimica P.R., Inc., 447 F.3d 105 (5/2006)
In the absence of any other evidence that Merck terminated Orta
because of her disability, we are compelled to agree with the
district court that Merck's decision to terminate Orta from her
employment was based on her failure to return to work by a
particular date we
turn to the appellants' disability harassment claim. On appeal, they
argue that Orta was the victim of a hostile working environment as a
result of her disability. This claim is easily disposed of, as we
can find no evidence that it was raised before the district court.
This Court has long held that an issue not raised in the district
court cannot be raised for the first time on appeal. bThe
appellants also argue that the district court erred because it
failed to consider several reasonable accommodations requested by
Orta between February 2001 and March 2002. First, they point to the
fact that in February 2001, Orta requested the relocation of her
office from the first to the second floor. Even if this is true, we
do not see how such an accommodation is related to Orta's claimed
disability. SeeEstades-Negroni v.Assocs. Corp. of N. Am.,
377 F.3d 58, 64 (1st Cir. 2004) (noting that "under the ADA,
requests for accommodation must be . . . linked to a disability").
Second, the appellants cite to a number of instances in which Orta
purportedly requested to be removed either from Lugo's supervision
or the trailer that she found depressing. Under the ADA, requests
for accommodation must be express,
seeid., and we can find
no evidence that Orta explicitly made either of these requests. The
district court came to the same conclusion, noting that Orta only
made two requests: 1) a written request to have Merck implement Dr.
Prieto's recommendations; and 2) a verbal request to have her desk
changed because it was uncomfortable.
SeeReed v.LePage Bakeries, Inc.,
244 F.3d 254, 261 (1st Cir. 2001) ("[T]he ADA's reasonable
accommodation requirement usually does not apply unless 'triggered
by a request' . . . .") (quoting Henry Perrett, Jr., 1
Americans With Disabilities
§ 4.17, at 121 (3d ed. 1997)). Third, the
appellants point to how Orta's request to be transferred to a
secretarial position was denied. The district court, however, fully
considered this request for accommodation and concluded that Merck
was fully within its rights to deny Orta the position, since "in
that position Orta would have had contact with Lugo, in
contravention of Dr. Prieto's very specific recommendation that she
not have any contact with her former supervisor."
Rivera-Garcia v. Sistema Universitario Ana G. Mendez,442 F.3d
3 (3/2006) Nothing in
the record supports an inference that the reason for termination of Rivera's
employment was anything other than his own conduct in sexually harassing women
Forestier Fradera v. Municipality of Mayaguez, 440 F.3d 17 (3/2006) The record
simply lacks any reasonable basis for an inference that the delay in
accomplishing the accommodation -- that is, the installation of the elevator --
was because of Forestier's disability. Not even Forestier's complaint alleges,
except in the most conclusory fashion, a connection between the Municipality's
delay in installing the elevator and any disability-based animus on defendants' part
Quiles-Quiles v. Henderson, 439 F.3d 1 (2/2006) Quiles
presented sufficient evidence that he was the victim of harassment by his
supervisors because of his perceived disability. He also presented sufficient
evidence that his supervisors retaliated against him after he complained about
their harassment. Accordingly, the district court erred in granting the
Postmaster General's motion for judgment as a matter of law.
Hill v. Principi, 439 F.3d 18 (2/2006)Dr. Sierra-Zorita, a
qualified expert, gave compelling testimony that Dr. Feliciano-Hill did not
actually have rheumatoid arthritis. He also testified that the plaintiff had
little difficulty walking. Moreover, Dr. Gonzalez-Alcover's contrary testimony
was not emphatic. He revealed that Dr. Feliciano-Hill's lab tests were negative
for rheumatoid arthritis and that Dr. Feliciano-Hill had no swelling in her
joints. Dr. Gonzalez-Alcover admitted that he had examined Dr. Feliciano-Hill
only four times over the six-year period leading up to her complaint. He
indicated that he had no knowledge of how far Dr. Feliciano-Hill would have been
required to walk at her job and that he was not familiar with the layout of the
Medical Center. On this evidence the jury could reject Dr. Feliciano-Hill's
claim that she was disabled.
Goodwin v. C.N.J., Inc., --- F.3d --- (1/2006) an independent carpet
installer, brought a claim under Title III of the Americans with Disabilities Act, 42
U.S.C. §§ 12181, 12189, against C.N.J., Inc., a retailer of commercial and residential
carpeting, and two of its functionaries, Joseph Speredelozzi and Paul Phillips
(collectively, C.N.J.). Lunnin alleged that C.N.J. had discriminated against him on the
basis of a disability (i.e., his affliction with HIV) and sought both injunctive relief
and pecuniary damages. Finding Lunnin's factual proffer inadequate, the district court
granted summary judgment in favor of the defendants. Lunnin took a timely appeal but died
before it could be heard. His personal representative, Erin Goodwin (the Executrix),
successfully moved for substitution as party plaintiff. SeeFed. R.App. P. 43(a)(1);
Fed.R.Civ.P. 25(a). The defendants now seek summary disposition on grounds of mootness and
want of subject-matter jurisdiction. The Executrix opposes the motion. Since the case is
fully briefed, we decide it after full consideration. In the end, we conclude that the
claim for injunctive relief is moot; that the district court lacked jurisdiction to hear
and determine the claims for pecuniary damages; and that the ancillary prayer for
attorneys' fees does not save the suit. Consequently, we dismiss the appeal in part and,
as to what remains, affirm the judgment below.
v. Wal-Mart Puerto Rico, Inc., 434 F.3d 75 (1/2006) A jury awarded Miguel
Arrieta-Colon $76,000 in compensatory damages and $160,000 in punitive damages against
Wal-Mart Puerto Rico, Inc. ("Wal-Mart") on his disability discrimination claim
under the Americans With Disabilities Act (ADA), 42 U.S.C. §§ 12101-12213. Specifically,
the jury found Arrieta had proven that he had an impairment or was regarded as having an
impairment which substantially limited his ability to perform a major life function.
Arrieta's claimed impairment was a penile implant used to correct a sexual dysfunction:
the implant itself left Arrieta with the appearance of a constant semi-erection. The jury
also found that Arrieta was subjected to a hostile work environment because of his that
Arrieta was subjected to a hostile work environment because of his disability. Arrieta's
claim was that, due to his condition, he was constantly harassed both by his supervisors
and co-workers, and that when he complained to his supervisors, no corrective actions were
taken. The jury found that Arrieta was constructively discharged; that is, that he
resigned from Wal-Mart due to the intolerable working conditions. we affirm on both
appeals, leaving all parties in the place the jury and the district court left them.
Tobin v. Liberty Mut. Ins. Co., 433 F.3d 100 (12/2005) We do not
suggest that Liberty Mutual was required to accommodate Tobin in a way that would have
altered his job functions. See Calef, 322 F.3d at 86 n. 8. If this case goes to
trial, Liberty Mutual can attempt to prove that Tobin's failure to make sales outside of
MM accounts constituted a failure to fulfill an essential function of the job. If the
company does so, it will prevail after all. Similarly, Liberty Mutual can attempt to prove
that Tobin could not have done his job even if he were given access to an MM account, or
that Tobin was not actually disabled under the ADA. But the evidence in Tobin's favor
prevents us from granting summary judgment on any of these grounds. We therefore vacate
the district court's grant of summary judgment on this claim and remand the issue to the
district court for further proceedings.
v. General Dynamics Government Systems Corp., 407 F.3d 546, (5/2005) This
appeal calls upon us to consider the enforceability of a mandatory arbitration agreement,
contained in a dispute resolution policy linked to an e-mailed company-wide announcement,
insofar as it applies to employment discrimination claims brought under the Americans with
Disabilities Act (ADA). Our analysis turns on whether the employer provided minimally
sufficient notice of the contractual nature of the e-mailed policy and of the concomitant
waiver of an employee's right to access a judicial forum. Weighing all the attendant
circumstances, we conclude that the notice was wanting and that, therefore, enforcement of
the waiver would be inappropriate. Consequently, we uphold the district court's denial of
the employer's motion to stay proceedings and compel the employee to submit his claim to
Americans For Equal Access, Inc. v. Ferries Del Caribe, Inc., 405 F.3d 60 (4/2005)
we take judicial notice of the fact that the Supreme Court recently heard oral argument on
the precise question whether Title III of the ADA applies to foreign-flagged cruise ships,
and that a decision by the Supreme Court is pending. Spector v. Norwegian Cruise Line
Ltd., No. 03-1388 (S. Ct. argued Feb. 28, 2005). On remand, the district court will have
to apply that decision of the Supreme Court when it is rendered. Therefore, we instruct
the district court to defer further proceedings until the Supreme Court's decision in
Spector is available. The district court shall then permit development of the record, if
consistent with the Supreme Court's holding, on the factual issue of whether Ferries
operates a foreign-flagged cruise vessel. Umpierre's complaint makes no allegations
relating to new construction or alteration. Instead, Umpierre alleges violations of the
statutory provisions of the ADA and its implementing regulations that require removal of
existing barriers by all public accommodations and public transportation apart from
regulations that may govern any new construction or alteration. Therefore, if the legal or
factual resolution of the foreign-flagged ship issue does not preclude application of
Title III to Ferries' cruise vessel, the district court should also consider on remand
whether Umpierre's vessel-based statutory and regulatory claims under 42 U.S.C. §§
12181-89 and 28 C.F.R. §§ 36.302-305 may proceed despite the absence of a separate
category of regulations governing the new construction and alteration of cruise ships.
See, e.g., Stevens v. Premier Cruises, Inc., 215 F.3d 1237, 1241 n.6 (11th Cir. 2000) (per
curiam) (under plain language of the ADA, "those parts of a cruise ship which fall
within the statutory enumeration of public accommodations are themselves public
accommodations for the purposes of Title III," and Department of Justice's
interpretation of Title III reaches the same conclusion).
v. United Parcel Service, Inc., 397 F.3d 6(2/2005) Guzman showed nothing more
than occasional pain or dizziness; there is no evidence that these episodes were so
frequent as to significantly impinge on the overall performance of the above non-work
activities, and the record shows that she could perform these tasks most of the time.This
case is a useful reminder that the ADA is not a cure for all work-affecting medical
difficulties and, also, that some of them have other remedies. Here, the collective
bargaining agreement appears to have done its work. With reinstatement and partial back
pay, Guzmán must be content.
v. Girl Scouts of the USA, 383 F.3d 7 (9/2004) Here, whatever wrongs Marika
may have suffered at the hands of her troop leaders and scouting officials, she had
completely severed her ties to the Girl Scouts by, at the very latest, the summer of 2001.
As a consequence, there was no live controversy and consequently no prospective relief of
a personal nature that the district court could award. Thus, even if the conclusion that
Marika lacked standing to pursue equitable relief in November of 2000 was in error - we do
not say that it was - the issue had become moot by the time the district court made its
U.S. v. Hoyts Cinemas Corp., 380 F.3d 558, (8/2004) On the present
record we conclude that the district court has not justified a finding that condemns each
and every theater that provides slope but not stadium spaces for wheelchairs. A trial, or
perhaps even summary judgment backed by more evidence and further analysis, might justify
such a result for many of the theaters--perhaps most or even all. But the district court's
blanket determination--that all slope-only wheelchair placement is inferior, whatever the
size or configuration of the theater--is multiply flawed. Case remanded.
v. Associates Corp. of North America 377 F.3d 58 (7/2004) We uphold the grant
of summary judgment on the ADA claim because Associates was unaware of Estades's
disability when it denied her requested accommodation.
v. Frito Lay Snack Caribbean 358 F.3d 6 (2/2004) Plaintiffs-appellants Gloria
García and Juan Sifre appeal from a judgment dismissing their employment discrimination
lawsuit. Questioning our jurisdiction, we asked the parties to brief the timeliness of
this appeal. After reviewing the parties' submissions, we conclude that we lack
jurisdiction because the notice of appeal was untimely.
v. Neiman Marcus Group, Inc., 358 F.3d 110 (2/2004) Sullivan failed to
present any evidence beyond his own termination demonstrating that Neiman Marcus may have
believed that he could not perform the essential functions of either a class of jobs or a
broad range of jobs in various classes. In both Bailey and this case, the employers
were aware of the plaintiff's "problems with alcohol" but claimed that they
terminated the plaintiffs for job performance reasons rather than their status as
alcoholics. Even if, for purposes of summary judgment, we accept Sullivan's contention
that Neiman Marcus terminated him because of their concern that alcoholism impaired his
ability to do his job rather than the job misconduct cited by the company, Sullivan has
not demonstrated that Neiman Marcus considered him to be limited in his ability to work in
a broad range of jobs required by the rigorous standards of the ADA. In fact, he did not
even mention the broad range of jobs requirement in his brief. Accordingly, we conclude
that Sullivan did not establish that the company regarded him as "disabled"
within the meaning of the ADA.
v. Associates Corp. Of North America, --- F.3d --- (2/2004) We uphold the
grant of summary judgment on the ADA claim because Associates was unaware of Estades's
disability when it denied her requested accommodation
v. U.S. Dept. of Justice, 355 F.3d 6 (1/2004) This cases raises, among other
issues, the knotty question of how far the Rehabilitation Act of 1973
("Rehabilitation Act"), 29 U.S.C. § 701 et seq., requires an employer to
go to accommodate an employee whose disability - clinically diagnosed major depression -
has affected, in some respects, her ability to function in the workplace. The trial judge,
grappling with claims under several statutes, granted summary judgment for defendants on
all the plaintiff's causes of action. Because we find that the record, viewed in the light
most favorable to the appellant, might support a claim under the Rehabilitation Act, and
(equally importantly) that appellees' counsel has entirely failed to address either the
facts or the law buttressing this claim, we are constrained to reverse and remand for
v. Puerto Rico, 353 F.3d 108 (12/2003) In Puerto Rico, all public elementary
schools are run by the Commonwealth's Department of Education. The Department, which
receives millions of dollars in federal funding for special needs students each year,
chose not to appeal from the hearing officer's order. Although the Department provided an
interpreter for the rest of that school year, it stopped providing one when Joshua began
the next school year, even though it conceded his continued need for one. When his
parents, his special education team, and the superintendent of his school affirmed that
need and requested that an interpreter be provided promptly, the Department did not
respond. When sued, the Commonwealth, the Department of Education, and the individual
defendants replied that the federal court lacked jurisdiction under the Eleventh
Amendment. They also sought dismissal of the case on grounds of untimeliness, exhaustion,
and lack of statutory standing, and said that the conditions for preliminary injunctive
relief had not been met. Unconvinced, the trial court, after hearing evidence, granted the
preliminary injunction and denied the defendants' motion to dismiss. The defendants
appeal, challenging the court's grant of a preliminary injunction and its denial of their
motion to dismiss based on Eleventh Amendment immunity. Forced to reach the Eleventh
Amendment question, we hold that the defendants waived any Eleventh Amendment immunity, at
least as to § 504 claims, by accepting federal educational funding. Accordingly, we
v. CompUSA, Inc., 352 F.3d 472 (12/2003) 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
§ 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
v. Associates Corp. of North America, 345 F.3d 25 (10/2003) Before she was
diagnosed with depression, Estades requested a reduced workload or the aid of an
assistant. Under the ADA, requests for accommodation must be express and must be linked to
a disability. See Cruz Carrillo v. AMR Eagle, Inc., 148 F. Supp. 2d 142, 146
(D.P.R. 2001). An employer need not provide accommodations where it does not know an
employee has a disability. See Reed v. Lepage
Bakeries, Inc., 244 F.3d 254, 261 (1st Cir. 2001) ("The employer has no duty
to divine the need for a special accommodation where the employee merely makes a mundane
request for a change at the workplace."); see
also EEOC, Enforcement Guidance:
Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act,
FEP (BNA) 405: 7601, at 7605-06 (March 1, 1999) ("before addressing the merits of the
accommodation request, the employer needs to determine if the individual's medical
condition meets the ADA definition of "disability," a prerequisite for the
individual to be entitled to a reasonable accommodation"), available at http://www.eeoc.gov/docs/accommodation.html.
Associates did not know Estades was disabled when she requested the accommodation -- she
had not yet been diagnosed with a disability at the time she sought a reduced workload or
an assistant. Although Estades argues that her depression was evident when she requested
the accommodation, the record does not support this claim. Finally, there is no evidence
that the request was expressly repeated after Estades was diagnosed with a mental
v. Mac-Gray, Inc. 345 F.3d 44 (10/2003) James Whitlock ("Whitlock")
appeals the District Court'ssummary 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.
v. IBM Corp., 334 F.3d 115 (6/2003) In this appeal, Orville Rocafort
("Rocafort") alleges that his employer, IBM Corporation ("IBM"),
subjected him to discrimination because of his panic and anxiety disorder in violation of
the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 (2000). Rocafort
claims that IBM failed to reasonably accommodate his disability and subjected him to a
hostile work environment. The district court granted summary judgment in favor of IBM on
both claims, but for different reasons. The reasonable accommodation claim, according to
the district court, lacked sufficient evidence and the hostile work environment claim was
inadequately argued. For the same reasons, we affirm.
v. Hannaford Bros. Co., 333 F.3d 299 (6/2003) The underlying action arises
out of a retailer's refusal to sell alcoholic beverages to a disabled person whose
symptoms mimic the traits of intoxication. The district court first concluded that Title
III of the ADA permitted the maintenance of a private cause of action. Dudley v. Hannaford
Bros. Co., 146 F. Supp. 2d 82, 85-86 (D. Me. 2001) (Dudley I). The court then
found, following a non-jury trial, that the retailer, defendant-appellant Hannaford Bros.
Co. (Hannaford), had sanctioned a policy that forbade the manager of the store in question
from reconsidering a clerk's initial refusal to sell, even after the customer revealed his
disability. Dudley v. Hannaford Bros. Co., 190 F. Supp. 2d 69, 73 (D. Me.
2002) (Dudley II). In the court's view, this hard-and-fast rule violated the ADA. Id.
at 76. We agree with the district court that the ADA requires a retail establishment to
exhibit more flexibility in serving disabled patrons. Accordingly, we affirm the judgment
v. Technical Mfg. Corp., 331 F.3d 166 (6/2003) Benoit complained of back pain
beginning in late 1991, but the injury was insufficiently severe to merit a doctor's
appointment until March 26, 1998. After his first doctor's appointment, Benoit was
diagnosed as having "low back strain" and a "strain of the knees." The
doctor added that the cause of these strains could have been "improper lifting
techniques" or the fact that Benoit had gained weight. A follow-up visit on March 31,
1998, revealed that Benoit had back and shoulder sprains. The subsequent medical reports
indicate that Benoit had a physical impairment. This impairment, however, does not
rise to the level of "disability" or "handicap" as defined by the
statutes, because no "major life activity" was impaired. Benoit claims that he
was substantially limited in the major life activity of working. However, the
"inability to perform a single, particular job" does not constitute the required
substantial limitation. Lebron-Torres v. Whitehall Labs., 251 F.3d 236, 240
(1st Cir. 2001)(citing 29 C.F.R. § 1630.2(j)(3)(i)). The only activity that Benoit was
advised by his doctor to avoid was "heavy lifting," and Benoit has not
demonstrated that this precluded him from working in a substantial class or broad range of
jobs. Id. Benoit had continued working as a finisher throughout the years despite
his complaints of back pain, and returned to work as a grinder the day after his doctor's
appointment. "A plaintiff claiming that he is 'regarded' as disabled cannot
merely show that his employer perceived him as somehow disabled; rather, he must
prove that the employer regarded him as disabled within the meaning of the ADA."
Bailey v. Georgia-Pacific Corp., 306 F.3d 1162, 1169 (1st Cir.
2002)(emphasis in original). Although Benoit requested simple stands to assist with
lifting, he at no point indicated to TMC that he was disabled within the meaning of the
v. Gillette Co., 322 F.3d 75 (3/2003) Fred Calef was involved in an
altercation at work at the Gillette Company which left his supervisor and co-workers
fearing for their safety. Calef, who previously had received warnings following such
incidents, was fired from his job at Gillette as a result. Calef brought suit alleging
that Gillette violated Title I of the Americans with Disabilities Act (ADA), 42 U.S.C.
§§ 12111-12117 (2000), by terminating his employment, failing to reasonably accommodate
him, and harassing him. He also brought a pendent state claim alleging his discharge was
in violation of public policy.The district court entered summary judgment against Calef
and dismissed both his federal and state claims. We affirm on two grounds: Calef failed,
within the summary judgment standard, to show that he was disabled, or that he was an
otherwise qualified individual.
v. City of Gloucester, 321 F.3d 21, (2/2003) First, the district court
correctly found that Sheehan failed to demonstrate that his physical impairment rendered
him incapable of performing a broad class of jobs. The Supreme Court has repeatedly noted
that even assuming that working is a major life activity, a claimant must show an
inability to work in a "broad range of jobs," rather than one specific job. Sutton
v. United Air Lines, 527 U.S. 471, 492 (1999). Thus, for Sheehan to prevail on his
claim that he is substantially limited in the major life activity of working, he
"must be precluded from more than one type of job, a specialized job, or a particular
job of choice. If 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." Id.
Applying Sutton to Sheehan's claim, it is enough to note that Sheehan continued to
work for 24-32 hours per week as a security guard for us to determine that Sheehan's
physical impairment simply did not preclude him from a substantial class of jobs.
Second, although the record clearly sets forth the City's belief that Sheehan was
incapable of working as a Gloucester police officer due to his hypertension and risk of
heart attack, this evidence is not sufficient for Sheehan to be considered disabled for
purposes of the ADA. In order for us to find Sheehan disabled under the "regarded
as" prong of the ADA, Sheehan would have to show that the City regarded his
hypertension as rendering him unable to perform a broad range of jobs. See Murphy
527 U.S. at 522-23. Sheehan has not presented any evidence supporting this larger
v. Georgia-Pacific Corp., 306 F.3d 1162 (10/2002) Even when viewed in
the light most favorable to Bailey, these isolated problems cannot be seen as
substantially limiting his ability to work in his own job, much less in a class or broad
range of jobs. See Santiago-Clemente, 213 F.3d 25 at 32-33 (concluding
former flight attendant failed to show temporary hearing loss was disability under ADA
because she offered "no evidence of how many jobs call for this ability, or that she
was precluded from any class of jobs"). Moreover, to the extent his later
alcohol-related incarceration prevented him from performing in a broad range of jobs, the
inability to work was only short-term in nature and therefore was not a substantial
limitation. See Toyota Motor, 122 S. Ct. at 691. Hence, we conclude that
Bailey's alcoholism was not a "disability" within the meaning of §
12102(2)(A). Bailey's evidence cannot create a genuine dispute of fact on this
issue. Although there is doubtlessly a record of Bailey's impairment of alcoholism, along
with records of various problems arising from Bailey's addiction, there is no evidence of
records indicating that Bailey's alcoholism significantly interfered with a major life
activity, such as working. "A record or history of an impairment is not sufficient to
show disability; the record must be of an impairment [that] substantially limited a major
life activity." 9 Lex K. Larson, Employment Discrimination § 153.04, at
153-51 (2d ed. 2001); see also Santiago-Clemente, 213 F.3d 25 at 33 ("[T]he
recorded impairment must be one that substantially limited a major life activity.").
We therefore conclude that Bailey cannot establish a disability under § 12102(2)(B).
v. El Dia, Inc., 304 F.3d 63 (9/2002) First, Gonzalez tendered no
evidence that her impairments rendered her unable to perform a broad range of jobs, as
distinguished from the particular job she held at El Nuevo Dia immediately prior to her
termination. See Sutton v. United Air Lines, Inc., 527 U.S. 471, 492
(1999); Gelabert-Ladenheim, 252 F.3d at 58-59 (noting that ADA requires an
"individualized inquiry," and "[w]hen the major life activity of working is
at issue . . . the plaintiff 'assumes a more fact-specific burden of proof'")
(citation omitted); 29 C.F.R. § 1630.2(j)(3)(i) (same). Nor did she adduce any evidence
as to the employment demographics in the relevant geographic area, from which a factfinder
rationally might assess the appropriate section 1630.2(j)(3) criteria. Cf. Quint
v. A.E. Staley Mfg. Co., 172 F.3d 1, 12 (1st Cir. 1999) (finding that
plaintiff-employee adduced sufficient evidence of relevant demographics). The latter
omission is especially serious given Gonzalez' testimony that she went to work as a
reporter for The San Juan Star, without providing any indication as to whether she
requested a reasonable accommodation or The Star acceded to any such request.
Second, the testimony presented by the treating physician is highly conclusory. "It
is insufficient for individuals attempting to prove disability status . . . to merely
submit evidence of a medical diagnosis of an impairment." Toyota Motor, 122 S.
Ct. at 691; see Sutton, 527 U.S. at 483 ("'The determination of whether
an individual has a disability is not necessarily based on the name or diagnosis of the
impairment.'") (citing 29 C.F.R. § 1630.2(j)). Yet, rather than documenting
precisely how Gonzalez' ability to work has been affected by her impairments, the treating
physician simply parroted the definition of the term "substantially limits"
contained in the EEOC regulations, which plainly would not enable a rational trier of fact
to undertake the case-by-case assessment demanded under the ADA. See Toyota
Motor, 122 S. Ct. at 692. Consequently, the ADA claim was properly dismissed
v. Wal-Mart Stores East, Inc., 300 F.3d 21 (8/2002) Appellant Shawnee Patten,
a former employee of appellee Wal-Mart Stores East, Inc., challenges two rulings made by
the district court during the trial of her analogous claims under the Americans with
Disabilities Act ("ADA"), 42 U.S.C. § 12101-12213, and the Maine Human Rights
Act ("MHRA"), 5 M.R.S.A. § 4551-4633. She asserts that the court
incorrectly instructed the jury on her burden of proof and improperly excluded evidence of
a state agency's finding of discrimination. Concluding that the district court did not
err, we affirm the judgment in favor of Wal-Mart.
v. Xerox Corp., 294 F.3d 231 (6/2002) Plaintiff-Appellant Francis J.
Carroll brought suit against, inter alia, his former employer, Xerox Corporation,
alleging (1) 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, § 4, and (2) various state common law claims. The district
court dismissed the common law claims and subsequently allowed Xerox's motion for summary
judgment on the remaining disability discrimination claims. On appeal, Carroll challenges
both rulings. We affirm.
v. Group Ins. Com'n, 284 F.3d 251 (4/2002) a stay pending the outcome
of the state proceedings is the wisest course of action at this time. We emphasize that we
are not surrendering federal jurisdiction and we retain jurisdiction to permit us to
resolve the federal questions if a decision is ultimately necessary
v. Fallon Ambulance Service, Inc., 283 F.3d 11 (3/2002) Plaintiff-appellant
Kelly A. Gillen, a genetic amputee with only one completely functioning arm, sued
defendant-appellee Fallon Ambulance Service, Inc. (FAS) for refusing to hire her as an
emergency medical technician (EMT). The court below granted summary judgment, reasoning
that the appellant did not have a disability within the meaning of the relevant statutes,
and that, in all events, she could not have performed the essential functions of the job.
Gillen's appeal raises nuanced questions under the Americans with Disabilities Act (ADA),
42 U.S.C. §§ 12101-12213. After pondering these questions, we vacate the judgment and
remand for further proceedings.
v. Frito Lay Snacks Caribbean, a Div. of Pepsico Puerto Rico, Inc., 265 F.3d 15 (9/2001)
Rivera claims that Defendants violated Title VII of the Civil Rights Act (Title
VII), 42 U.S.C. §§ 2000e-2000e-17 (2000); the Age Discrimination in Employment Act
(ADEA),29 U.S.C. §§ 621-634; and the Americans with Disabilities Act (ADA), 42 U.S.C.
§§ 12101-12213, when they created a hostile work environment and terminated him based on
his age, disability, and national origin. The district court granted
Defendants' Motion for Summary Judgment, and Rivera appeals. For the following reasons,
the district court's decision is affirmed in part and reversed in part.
v. Maine, 259 F.3d 48 (8/2001) Appellant Brian Kvorjak claims that his
former employer, the Maine Department of Labor, wrongfully failed to accommodate his
disability when it refused to allow him to work at home after his office closed and his
position was relocated to a distant facility. The district court granted summary judgment
for the defendants on his federal and state claims,(2) concluding that he had
failed to offer evidence sufficient to demonstrate that he could accomplish
"essential" aspects of his job at home. See 42 U.S.C. § 12111(8). After
a close review of the record and caselaw, we affirm.
v. Greenberg, Rosenblatt, Kull, & Bitsole, P.C., 258 F.3d 30 (7/2001) 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.
v. American Airlines, Inc., 252 F.3d 943 (6/2001) The district court
here entered summary judgment against plaintiff Lisa Gelabert-Ladenheim's ADA employment
claim, concluding that because defendant American Airlines reasonably accommodated her
alleged disability, namely, CTS, it did not violate the Act. See Gelabert-Ladenheim
v. American Airlines, Inc., 115 F. Supp. 2d 225 (D.P.R. 2000). We affirm on the
different ground that the plaintiff has not produced sufficient evidence on summary
judgment that her impairment substantially limits a major life activity, and so she does
not meet the specialized definition of the term "disabled."
v. Hee Man Chie, 250 F.3d 47 (5/2001) Dr. Hee Man Chie, an
obstetrician-gynecologist, treated Vickie Lesley during her pregnancy in 1994 and 1995.
After Lesley tested positive for HIV, Dr. Chie ended up referring her to another hospital
that, in his judgment, was better qualified to handle deliveries by HIV-positive patients.
The baby was delivered there, safely and without HIV infection. Two years later,
Lesley sued Dr. Chie for damages. The gist of her suit is that Dr. Chie denied her
treatment solely because she was HIV-positive, in violation of various disability
discrimination laws. The district court entered summary judgment in favor of Dr. Chie,
from which Lesley appeals. Lesley v. Chie, 81 F. Supp. 2d 217 (D. Mass.
2000). The case requires us to determine how far courts should defer to a doctor's
judgment as to the best course of treatment for a disabled patient in the context of
discriminatory denial of treatment claims. We hold that the doctor's judgment is to be
given deference absent a showing by the plaintiff that the judgment lacked any reasonable
medical basis. Applying this standard to the case, we affirm.
v. Whitehall Laboratories, 251 F.3d 236 (5/2001) Plaintiff-Appellant
Maribel Lebrón-Torres ("Lebrón") brought suit against her former employer,
Defendant-Appellee Whitehall Robins Laboratories ("Whitehall"), alleging
disability discrimination under the Americans with Disabilities Act, 42 U.S.C. §
12101-12771 ("the ADA").(1) The district court allowed defendant's
motion for summary judgment on the ground that Lebrón failed to proffer sufficient facts
from which a reasonable jury could find that she was disabled within the meaning of the
ADA. We affirm.
v. Optima Health, Inc., 251 F.3d 21 (5/2001) Appellant Simonne Phelps
claims that she was dismissed from her nursing position at the Catholic Medical Center
(CMC)(1) in violation of Title I of the Americans with Disabilities Act (ADA),
42 U.S.C. § 12101 et seq., and § 504 of the Rehabilitation Act, 29
U.S.C. § 794(a).(2) The district court ruled on summary judgment that
Phelps was not a "qualified individual with a disability" because she could not
perform the "essential functions" of her job "with or without reasonable
accommodation." Phelps v. Optima Health, Inc., Civ. No. 99-227-JD, 2000
WL 1513782 (D.N.H. Sept. 15, 2000). We affirm.
v. LePage Bakeries, Inc., 244 F.3d 254 (4/2001) Manuella Reed was fired
by LePage Bakeries for insubordination and threatening her supervisor. Reed says her
conduct should be forgiven because she is mentally ill, disabled within the meaning of the
Americans with Disabilities Act. She sues on the claim that her termination resulted from
LePage's failure to reasonably accommodate her disability and hence was discriminatory.
The district court granted summary judgment against Reed. Reed appeals, and the EEOC has
filed an amicus brief on her behalf on the issue of the allocation of burdens of proof in
ADA reasonable accommodation cases. We reject the position of the EEOC on this issue, find
that Reed neither adequately requested nor was prevented from exercising the accommodation
she now claims, and affirm.
v. Danzig, 234 F.3d 790 (12/2000) Our review of the record demonstrates
that, if true, appellant's version of events sufficed to show he was a qualified
individual with a disability who was able to perform the essential functions of the
position. The dispute over that issue, therefore, is material to appellant's cause of
action and cannot be resolved as a matter of law based on this record. As we have already
noted, it remains for the district court to determine on remand whether appellant has
carried his burden on the third element of his ADA claim -- that he was discharged because
of his disability -- to survive summary judgment. If so, then the issue regarding the
second element -- whether appellant was able and willing to perform the essential
functions of the job -- must be resolved by a fact finder. We therefore affirm the
ruling in favor of defendants on all claims except appellant's Rehabilitation Act claim
related to the 1997 termination. We vacate the judgment on that issue and remand to the
district court for further proceedings in accordance with this opinion.
v. Franklin Medical Center, 234 F.3d 731 (12/2000) We thus agree with
the district court that Griel's evidence did not provide a reasonable jury any basis to
doubt that the hospital's motive in discharging Griel was a genuine concern about her
v. Cohen, 233 F.3d 648 (12/2000) It appears that in this case DCMC used both
hard and soft criteria, but MacDonald is not automatically entitled to an inference or
presumption of discrimination merely on that account. In most of the cases cited, there
was specific evidence of discrimination, statistical or direct, and the employer's
subjective judgment was therefore discounted as a defense. Miles, 750 F.2d at 870; Davis,
613 F.2d at 960-61. But see Burrus, 683 F.2d at 342. Here, MacDonald
has neither pointed to such evidence nor sought to show that any one of DCMC's selection
decisions were colorably unsound. MacDonald apparently takes the reference to
"measurable qualifications" as precluding any judgment about his work experience
or skill level or about the excellent recent work performance of other candidates.
"Measurable" does not mean strictly objective; personnel ratings often assign
numerical ratings to soft skills or qualities; and the policy statement itself makes clear
that a "performance record" may be considered. Whatever the legal status of this
policy statement, MacDonald has not demonstrated any violation of its very general terms.
v. Pueblo Intern., Inc., 232 F.3d 245 (10/2000) Pueblo stated a
nondiscriminatory justification for terminating Marcano and she failed to offer sufficient
evidence for a reasonable jury to find that such justification was pretextual.
v. Universidad de Puerto Rico, 225 F.3d 1 (2000) Nevertheless, the inclusion
of a physical injury in the Title II claim does not convert the claim into a traditional
negligence action premised on the violation of a duty owed by a landowner such as the
University to members of the public generally who are invited on to the premises. The
primary injury alleged and proven under Title II in a case such as this remains the
alleged violation by the University of its statutory duty to disabled persons to prevent
the discriminatory denial of access to a service, program, or activity. The physical
injury is an additional consequence of the violation of that statutory duty, which is of a
different character than a duty owed to the general population. That is, the University
does not satisfy the duties imposed by Title II merely by exercising reasonable care to
protect persons with disabilities, along with other members of the public, from dangerous
conditions on the premises. Rather, the University must act affirmatively to eliminate
barriers on the premises that would otherwise serve to deny persons with disabilities
access to services, programs, or activities of the University--here, access to the Monet
Garden. Given that the liability issue under Title II is a discriminatory denial of
access, not negligence, the University could rebut the prima facie case of the Parkers by
showing that disabled persons using wheelchairs were not denied access to the Monet
Garden. For example, the University could have produced evidence that, irrespective of the
accident on this occasion, the path at issue was actually safe for wheelchair use, thereby
suggesting that the fall resulted from Mr. Parker's own negligence rather than a denial of
access to disabled persons. The University might have established that there was another
path to the Monet Garden that was safe for wheelchair use, properly noted with signs, but
Parker and Vázquez missed the signs and misconstrued the signal of the park guard.
Finally, the University could have argued that providing wheelchair access to the Monet
Garden would require a "fundamental alteration" or "undue burden."
These defenses were never offered because the trial court never required the
defendants to defend. That ruling was erroneous and it requires us to vacate and remand.
v. Puero Rico Dept. of Health, 214 F.3d 23 (2000) Appellants are three
individuals who were hired by the Puerto Rico Department of Health to perform advocacy
work for persons with AIDS. They claim that the Department's failure to renew their
contracts at the end of their original terms stemmed from discrimination in violation of
the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. §§ 12101-12213, the
Rehabilitation Act of 1973, 29 U.S.C. § 794, and provisions of Puerto Rico law.
Defendants are the Department of Health, the Secretary of that Department, and two other
supervisory officials. The district court granted defendants' motion to dismiss the
complaint in its entirety, finding various deficiencies in the different counts. See
Oliveras-Sifre v. Department of Health, 38 F.Supp.2d 91 (D.P.R. 1999). On
appeal, appellants challenge three of the court's rulings: (1) the dismissal of
discrimination claims under Title I of the ADA and the Rehabilitation Act, (2) the
dismissal of retaliation claims under Title V of the ADA, and (3) the rejection of
individual liability for certain defendants. We affirm.
Clemente v. Executive Airlines, Inc., 213 F.3d 25 (2000) Plaintiff-appellant
Jamir Santiago Clemente brought this disability discrimination action against her
employer, defendant-appellee Executive Airlines, Inc., d/b/a American Eagle
("American Eagle"). The district court allowed American Eagle's motion for
summary judgment on the ground that Santiago failed to adduce sufficient evidence that she
was disabled within the meaning of the Americans with Disabilities Act, 42 U.S.C. § 12101
et seq. ("the ADA"). We affirm.
Clemente v. Executive Airlines, Inc., 213 F.3d 25 (2000) amends counsel's name
v. Lederle Parenterals, Inc., 212 F.3d 638 (2000) Zenaida García-Ayala
appeals an order granting summary judgment for her former employer, Lederle Parenterals,
Inc., in a suit that alleges wrongful termination and demands injunctive relief and
compensatory and punitive damages under the Americans with Disabilities Act. See García-Ayala
v. Lederle Parentals, Inc., 20 F. Supp. 2d 312, 313 (D.P.R. 1998). The district
court held that García was not a "qualified individual" under the Act because
the accommodation she requested from her employer was not "reasonable." See
id. at 315. We reverse and direct entry of judgment for the plaintiff.
v. Massachusetts Health Research Institute, Inc., 209 F.3d 29 (2000) Because
there exist genuine disputes of material facts as to the appellant's performance and
whether he was discharged because of his disability, and because MHRI has not established
that it is entitled to judgment as a matter of law, we reverse and remand for proceedings
consistent with this opinion. Of course, at trial, MHRI is entitled to present evidence to
rebut evidence that Ward has either submitted or will submit relating to each of the
issues discussed herein.
v. New Balance Athletic Shoe, Inc., 194 F.3d 252 (1999) we affirm the
entry of summary judgment for New Balance on all claims, save only the appellant's
failure-to-accommodate claim under the ADA and the MHRA. As to that claim, we vacate the
judgment and remand for further consideration.
v. Osram Sylvania, Inc., 175 F.3d 193 (1999) This is a case under the
Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. §§ 12101-12213
(West 1995 & Supp. 1998) and 47 U.S.C. § 225 (West 1991 & Supp. 1998). Combat in
Vietnam left veteran Stephen Lessard with wounds, including a hand which is visibly
scarred, disfigured, and subject to chronic pain and numbness. Concerns about repetitive
motion injury to this hand led to Lessard's loss of a specific job as a trainee spot
welder in the Mount Department at Osram Sylvania, Inc. ("OSI"), and the company
said it had no other available jobs. Lessard sued, asserting that he was not disabled, did
not need accommodation, and was fired because OSI believed he was disabled with respect to
the major life activity of working. This, he said, violated the ADA's prohibition on
discrimination based on a perceived disability. The district court granted summary
judgment to the employer in a well-reasoned opinion. See Lessard v. Osram
Sylvania, Inc. , No. 96-309, slip op. at 13 (D.N.H. Aug. 24, 1998). Lessard appeals.
v. A.E. Staley Mfg. Co., 172 F.3d 1 (1999) Defendant A.E. Staley
Manufacturing Company ("Staley") appeals from a district court judgment awarding
Jacquelyn Quint $300,000 in damages for having discharged her in violation of the
Americans with Disabilities Act (ADA). Quint in turn cross-appeals from the judgment
insofar as it disallowed all but $8,019 in back pay and rejected her request for
reinstatement. For the foregoing reasons, the $300,000 damages award is affirmed ; the
back-pay award is increased from $8,019 to $45,917 ; the district court ruling
denying reinstatement is vacated and the case is remanded for further proceedings
consistent herewith . Costs to appellant .
v. Rehabilitation Hosp. of Rhode Island, 168 F.3d 538 (1999). Plaintiff
was not returned to her former position after a medical leave for a heart condition. She
was only capable of working 40 hours per week. The job required 50 70 hours per
week. The court found plaintiff was not disabled. She could perform the life activity of
working. She was incapable of meeting the requirements of this particular job.
v. Bragdon, 163 F.3d 87 (1998). Dentist's refusal to treat an
A HIV positive patient violated ADA.
v. Flynn, 162 F.3d 46 (1998). Court held it was not a
violation of the ADA for the state to require an individual with Cerebral Palsy to take a
road test before his license to operate an automobile with hand controls would be renewed.
v. Young Men's Christian Ass'n of U.S., 139 F.3d 286 (1998). Court
would not award damages for emotional distress absent some sign of actual animus toward
the disabled. Case involved deaf lifeguard denied certification by defendant who
restricted his claim to money damages and not injunctive relief
v. United Parcel Service, Inc., 136 F.3d 854 (1998). The ADA
protects plaintiff from discrimination if he is disabled based on his underlying medical
condition (Type I insulin dependent diabetes mellitus) without regard to whether some of
his limitations are ameliorated through medication or other treatment.
v. Baldwin School, Inc., 133 F.3d 141 (1998). A plaintiff with
Attention Deficit-Hyperactivity Disorder (ADHD) may have a mental impairment within the
meaning of the ADA but that impairment must also limit a major life activity to a
substantial degree. Learning is a major life activity. Plaintiff was not disabled because
he exceeded academically and never experienced significant academic difficulties.
v. Guilford of Maine, Inc., 105 F.3d 12 (1997). Plaintiff's
dysthymia which affected his ability to get along with others did not substantially impair
major life activity nor did he face substantial limitation from it. Acute episodic
depression from his dysthymia was not sufficiently significant to trigger obligation of
employer to accommodate plaintiff.
v. City Metal Co., Inc., 87 F.3d 26 (1996). Questions of
whether defendant treated plaintiff as having physical impairment that substantially
limited major life activity; whether plaintiff had ability to perform essential functions
of job with or without reasonable accommodation and whether plaintiffs disability
was motivating factor in defendants decision to discharge him was for jury,
reversing grant of summary judgment for defendant.
Leary v. Dalton, 58 F.3d 748 (1995). Plaintiff missed
work due to incarceration for DWI. Court held alcoholism is a disability. However, the
Navy may reasonable apply its no-leave-for-incarceration policy to all its employees,
disabled and nondisabled alike. The Navy also placed plaintiff on unauthorized leave
status before he sought to connect his incarceration to his alcoholism.
Carparts Distribution Center, Inc. v. Automotive Wholesaler's Ass'n of New
England, inc., 37 F.3d 12 (1994). Court reversed district court
decision granting defendants summary judgment in a case brought by a plaintiff with AIDS
against a trade association and its administering trust under the ADA for limiting
benefits for AIDS related illnesses to $25,000. Court found that the association and trust
could be an employer under Title I and that under Title III a public accommodation is not
limited to an actual physical structure.
Wynne v. Tufts University School of Medicine, 932 F.2d 19 (1991). Mere
conclusory statement by defendant that multiple choice examinations are the best test of
future ability for the safe and responsible practice of modern medicine is insufficient to
sustain grant if summary judgment for defendant against medical student who continuously
failed such exams. Defendants statement left no way of ascertaining whether the
institution had made a professional effort to evaluate possible ways of accommodating a
handicapped student or had simply embraced what was most convenient for faculty and
Rhode Island Handicapped Action Committee v. Rhode Island Public Transit
Authority, 718 F.2d 490 (1983). Defendant was not required to
purchase wheelchair lifts and bays for the 42 buses it proposed to purchase. Especially
where defendant had complied with the 3.5 percent level of expenditure set in DOT
regulation. 504 does contemplate affirmative relief. Congress authorized modest
affirmative relief where the line between overt discrimination and affirmative action is
hard to draw.
Ciampa v. Massachusetts Rehabilitation Com'n, 718 F.2d 1 (1983). Plaintiff
sued agency for vocational rehabilitation services. Injunctive relief claims were mooted
by settlement and plaintiffs failure to brief the issue. Damages were dismissed as
violative of the 11th Amendment. Due Process claims were dismissed because
plaintiff received fair hearings and did not allege procedures for administrative review
were inadequate. No affirmative duty under 504 to provide services to client who himself
completely subverts the service process.