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Cases highlighted in blue are linked to the actual decision in Findlaw

Return to Selected Americans With Disabilities Act/504 Cases Court's Index

Buchanan v. Maine, 469 F.3d 158 (11/2006) Plaintiff 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 public. We 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 accommodation

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 Congress' § 5 authority to enforce the guarantees of the Fourteenth Amendment. Accordingly, state sovereign immunity is not a defense to this action

Iverson v. City Of Boston, 452 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) After carefully 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 Act Handbook  § 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.

Arrieta-Colon 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.

Campbell 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 arbitration.

Disabled 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).

Guzman-Rosario 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.

Steir 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 ruling

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.

Estades-Negroni 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.

Garcia-Velazquz 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.

Sullivan 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.

Estades-Negroni 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

Calero-Cerezo 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 further proceedings

Nieves-Marquez 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 affirm.

Wright 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 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

Estades-Negroni 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 disability.

Whitlock 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.

Rocafort 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.

Dudley 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 below

Benoit 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 ADA.

Calef 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.

Sheehan 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 conclusion.

Bailey 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[4], 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).

Gonzalez 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

Patten 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.

Carroll 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.

Currie 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

Gillen 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.

Rivera-Rodritguez 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.

Kvorjak 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.

Whitney 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.

Gelabert-Ladenheim 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."

Lesley 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.

Lebron-Torres 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.

Phelps 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.

Reed 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.

Velazquez-Rivera 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.

Griel 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 nursing practices.

MacDonald 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.

Marcano-Rivera 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.

Parker 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.

Oliveras-Sifre 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.

Santiago 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.

Santiago Clemente v. Executive Airlines, Inc., 213 F.3d 25 (2000) amends counsel's name

Garcia-Ayala 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.

Ward 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.

Higgins 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.

Lessard 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. We affirm.

Quint 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 .

Tardie 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.

Abbott v. Bragdon, 163 F.3d 87 (1998).  Dentist's refusal to treat an A HIV positive patient violated ADA.

Theriault 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.

Schultz 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

Arnold 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.

Bercovitch 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.

Soileau 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.

Katz 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 plaintiff’s disability was motivating factor in defendant’s 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. Defendant’s 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 administration.

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 plaintiff’s 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.