Mancini v. City of Providence
Opinion
Plaintiff-appellant Mark Mancini is a veteran police officer in Providence, Rhode Island (the City). Following an injury that he sustained while on duty, Mancini sued the City for discrimination under the Americans with Disabilities Act (ADA),
*37 I. BACKGROUND
We rehearse the facts in the light most hospitable to Mancini, consistent with record support, and trace the travel of the case.
See
Ahern
v.
Shinseki
,
On November 15, 2010, Mancini (then a sergeant) sustained a knee injury while in pursuit of a suspect. Mancini received medical treatment, including arthroscopic surgery. He was placed on injured on duty (IOD) status and remained out of work until May of 2011. He was then placed on "light duty" (a temporary assignment for officers on IOD status). That placement lasted until August of 2011, when he was removed from light duty.
On September 2, 2011, Mancini filed for accidental disability benefits, which, if granted, would effectively comprise an early retirement. Mancini alleges that this application was not filed of his own volition but, rather, was filed at the behest of his supervisor. In all events, the application was denied on June 27, 2012, based on three independent medical examinations. Thereafter, the City refused to allow Mancini to return to work on light duty.
A few weeks before his accidental disability benefits application was denied, Mancini sat for the 2012 lieutenants promotional examination. As determined by the collective bargaining agreement (CBA) between the City and the police union, promotion to lieutenant is based on four components: a written examination, level of seniority, level of education, and service points awarded by the Chief of Police (the Chief). Candidates may receive a score of up to 85 points for the written examination and, for each of the remaining components, may receive up to 5 points.
Seniority and education levels have fixed formulae, with points awarded for number of years in service and degrees earned, respectively. The Chief has broad discretion with respect to the award of service points, but the CBA specifies that letters of commendation, letters of merit, and unused sick time may be taken into account. When all is said and done, candidates are ranked based on their final scores, and the City fills the available positions from the top of the list.
In June of 2012, Mancini scored a 92 on the written exam, earning 78.2 points toward his final score. He received a full 5 points for seniority and a full 5 points for education. For the service-point component - determined prior to the administration of the written examination - the Chief awarded Mancini 0 points. Mancini's aggregate score placed him seventh among the sixteen aspirants. As the City had only five open lieutenant positions, he was not promoted. One additional point would have altered the mix and ensured his promotion.
Mancini did not accept his rejection lightly. He exhausted his administrative remedies, filing charges of disability discrimination with the Rhode Island Commission for Human Rights and the United States Equal Employment Opportunity Commission (EEOC). After obtaining right-to-sue letters from both agencies, he sued the City in the United States District Court for the District of Rhode Island.
1
In material part, his complaint alleged that the City discriminated against him on the basis of his disability when the Chief
*38
awarded him no service points and, thus, prevented him from obtaining a total score that would have resulted in his promotion. He characterized the City's actions as a failure to promote on the basis of disability under the ADA and under a gallimaufry of state laws.
See
,
e.g.
, R.I. Gen. Laws § 42-112-1
et seq.
;
Following the close of discovery, the parties cross-moved for summary judgment. The district court granted summary judgment in favor of the City, concluding that Mancini had failed to establish that he was disabled within the meaning of the ADA.
See
Mancini
v.
City of Prov.
,
Mancini countered by filing a motion to vacate the judgment. The district court denied that motion and this timely appeal ensued.
II. ANALYSIS
On appeal, Mancini trains his fire on the district court's entry of summary judgment against him on his ADA claims.
2
We review a district court's grant of summary judgment de novo, mulling the summary judgment record and all reasonable inferences therefrom in the light most agreeable to the nonmoving party (here, Mancini).
See
Avery
v.
Hughes
,
Under the ADA, the City, as a "covered entity," shall not "discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment."
This compendium of claims includes claims of disability discrimination under the ADA.
See
Gillen
,
As said, Mancini has characterized his claim as one alleging a failure to promote on the basis of disability. The prima facie elements of a failure-to-promote claim are that the plaintiff "(i) is a member of a protected class who (ii) was qualified for an open position for which [he] applied, but (iii) was rejected (iv) in favor of someone possessing similar qualifications."
Rathbun
,
It stands to reason that a plaintiff claiming disability discrimination cannot satisfy the first element of his prima facie case unless he can show that he has a disability within the meaning of the ADA.
See
Ramos-Echevarría
v.
Pichis, Inc.
,
Here, the City argues that Mancini has not demonstrated an impairment (and, thus, has not demonstrated a disability) within the purview of the ADA. In support, the City points out that Mancini failed to proffer any medical evidence showing an impairment. The City's premise is correct: at summary judgment, Mancini did not produce a shred of substantiating medical evidence. But the City's conclusion does not follow: in the circumstances of this case, the absence of medical evidence does not get the City where it wants to go.
Whether medical evidence is necessary to support a disability discrimination claim is a determination that must be made on a case-by-case basis.
See
id.
"Some long-term impairments would be obvious to a lay jury (e.g., a missing arm)," and even the "plaintiff himself ... might offer a description of treatments and symptoms over a substantial period that would put the jury in a position where it could determine that he did suffer from a disability within the meaning of the ADA."
Mancini's appeal takes aim at this ruling. Before addressing his arguments, though, we pause to reflect upon the ADA Amendments Act of 2008 (ADAAA), Pub. L. No. 110-325,
In the ADAAA, Congress expressly rejected the strict standards imposed on the definition of "disability" by the Supreme Court and the EEOC.
See
It is against this backdrop that we examine Mancini's assertion that he has a disability within the meaning of the ADA. The first two definitions of disability - "actual disability" and "record of disability" - represent two sides of the same coin. Both definitions hinge on whether the plaintiff has shown a physical or mental impairment that affects a major life activity, and if so, whether the impairment substantially limits the major life activity.
See
Carroll
v.
Xerox Corp.
,
There is a salient distinction between "actual disability" and "record of disability" claims. "Actual disability" requires a showing that the plaintiff has a cognizable disability.
See
Ramos-Echevarría
,
With these two definitions in place, we turn to Mancini's plaint that his case was robust enough to survive summary judgment under either definition. We begin with the question of whether Mancini adequately established, for summary judgment purposes, that he had a cognizable physical impairment.
Applicable regulations define physical impairment as including "[a]ny physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more body systems."
Taking the summary judgment record in the light most favorable to Mancini - as we must - his injuries would appear to qualify as a physiological condition affecting one or more body systems. After all, he was injured on the job, required surgery to his knee and other medical care, and was placed on a special employment status. But the fact that his condition
could
qualify as an impairment does not complete our inquiry. The district court's main holding was that Mancini did not establish that he had an impairment because he failed to supply any medical evidence of the claimed impairment.
See
Mancini
,
In formulating this holding, the court dwelt on Mancini's statement that a doctor diagnosed him with "
chondromalacia
of the right knee."
5
There is a grain of truth in the City's argument. Medical evidence is more likely to be necessary to show an impairment when a condition would be unfamiliar to a lay jury and only an expert could diagnose that condition.
See
,
e.g.
,
Felkins
v.
City of Lakewood
,
A missing arm serves as an obvious example of an impairment that can be demonstrated without any supporting medical testimony.
See
Katz
,
*42
Marinelli
v.
City of Erie
,
In our view, a knee injury falls within that universe. We hold, therefore, that at the summary judgment stage, medical evidence was not required to establish that Mancini's knee injury constituted an impairment. In other words, a lay jury could find, on this record, that Mancini had a physical impairment - a knee injury - within the meaning of the ADA.
This conclusion gets Mancini partway home on both his "actual disability" and "record of disability" claims, but it does not get him all the way. The next question is whether Mancini has shown that his impairment substantially limits major life activities.
See
Ramos-Echevarría
,
First, it is the plaintiff's burden to identify the major life activity that is affected.
See
The ADAAA reconfigured the legal landscape, removing much of the guesswork as to which life activities should be deemed major. The ADAAA accomplished this reform partially by providing a non-exhaustive list of major life activities and a list of major bodily functions (the operation of which comprise major life activities).
See
This leaves the second sub-part of the question: has Mancini adduced evidence sufficient to create a genuine issue of material fact as to whether his impairment substantially limits one or more major life activities? Although the phrase "substantially limits" was once interpreted strictly,
see
,
e.g.
,
Rolland
v.
Potter
,
Guided by these standards, we examine Mancini's asseveration that he has made out a genuine issue of material fact as to whether his impairment substantially limits his ability to stand, walk, and/or bend. 6
*43
In order to have established that his impairment substantially limits one or more major life activities, Mancini must have offered evidence sufficient to show that his impairment limited him to a substantial extent.
See
Ramos-Echevarría
,
The court below determined that Mancini had failed to adduce evidence sufficient to show that his alleged impairment substantially limited one or more of his major life activities.
See
Mancini
,
The significance of the first of these gaps depends on whether the district court was correct that Mancini was required to furnish medical evidence of a nexus between his impairment and his purported limitations.
See
,
e.g.
,
Russell
v.
Phillips 66 Co.
,
The second evidentiary gap identified by the district court is much more troubling. Once again, we take a case-by-case approach, mindful that impairments may be of different degrees and may affect different individuals in different ways.
See
Toyota
,
It is noteworthy, we think, that Mancini claims substantial limitations in everyday activities such as standing, walking, and bending. Claims of substantial limitation to such quotidian activities normally do not
*44
require medical evidence to survive summary judgment.
See
,
e.g.
,
Williams
v.
Tarrant Cty.Coll. Dist.
,
A relatively low bar, though, is not the same as no bar at all. Mancini must still be able to point to some competent evidence in the summary judgment record sufficient to show substantial limitation. Although this "evidence need not necessarily be composed of excruciating details as to how the plaintiff's capabilities have been affected by the impairment,"
Gillen
,
A comparison of the decisions in
Holton
and
Williams
illustrates the point. In
Holton
, the court found insufficient the plaintiff's conclusory allegations that she had a back impairment that "when active substantially limit[ed] one or more of [her] major life activities, including but not limited to, walking, bending and sitting."
The case at hand lines up with Holton , not with Williams . In his summary judgment motion, Mancini stated only that his "knee injury substantially limited his ability to stand, walk, [and] bend ... such that he could not perform the essential functions of [his] position." His affidavit was equally unilluminating: it contained only the same type and kind of conclusory statements. There was not so much as a hint as to how or in what ways the alleged limitation manifested itself.
Mancini's wholly conclusory allusions to substantially limited performance of major life activities are a far cry from the plaintiff's affidavit in
Williams
- and they bear a striking similarity to the plaintiff's unilluminating descriptions in
Holton
. It is hornbook law that a plaintiff cannot avoid summary judgment by relying solely on conclusory allegations.
See
,
e.g.
,
García-González
v.
Puig-Morales
,
In an effort to backfill these deficiencies, Mancini now points to his IOD status and his application for disability benefits as evidence of substantial limitation. He posits - the emphasis is his - that if he was unable to work due to his injury, "it logically follows that he must have been substantially limited in his ability to walk, stand, and bend as compared to most people in the general population." But neither Mancini's IOD status nor his disability benefits application equates with an inability to work; the record reflects that Mancini was on IOD status during the time that he worked "light duty," as well as when he *45 was found not disabled and his disability benefits application was denied because a majority of independent medical examiners deemed him capable of working. And in any event, a more specific showing was required as to whether Mancini was substantially limited in his ability to walk, stand, or bend (the major life activities that Mancini claims were compromised).
The two pieces of evidence that Mancini cites do not fill this void. The application for disability benefits was denied and, at any rate, says nothing about limitations (substantial or otherwise) on major life activities. By the same token, Mancini's placement on IOD status tells us only that he sustained some sort of injury while on duty (roughly a year and a half before the allegedly discriminatory action occurred). The barebones record contains no explanation of the parameters of this status; in particular, nothing cross-references IOD status with deficits in walking, standing, or bending. The opacity of this status weighs against Mancini, who had the burden of showing what "IOD status" entailed,
see
Ramos-Echevarría
,
The short of it is that Mancini has disregarded the need for facts and has pinned his hopes to conclusory averments. Mancini was obliged to offer some evidence that he was substantially limited in the performance of one or more major life activities at the time of the allegedly discriminatory action ("actual disability") or some time prior to that ("record of disability"), and he has defaulted on that obligation. Simply mimicking the language of the ADA, without more, does not suffice.
See
Holton
,
This does not end our odyssey. The ADA contains a further definition of disability, and Mancini tries to hang his hat on that definition, asserting in this court that he was "regarded as" having a disability.
See
Unlike "actual disability" and "record of disability" claims, "regarded as" claims require only a showing that the plaintiff "has been subjected to an action prohibited under [the ADA] because of an actual or perceived physical or mental impairment."
To establish a prima facie "regarded as" claim under the
McDonnell Douglas
framework, a plaintiff must show, as relevant here, that he had an actual or perceived impairment and that his employer was either aware of or perceived the impairment at the time of the allegedly discriminatory action.
See
Adair
v.
City ofMuskogee
,
Although the requirements for a prima facie "regarded as" claim are less demanding than those for either an "actual disability" or "record of disability" claim, a threshold problem looms. For aught that appears, Mancini did not raise such a claim in the district court. "We have held, with echolalic regularity, that theories not squarely and timely raised in the trial court cannot be pursued for the first time on appeal."
Iverson
v.
Cityof Bos.
,
The upshot is that a plaintiff cannot appeal on the basis of a claim that was not presented to the district court.
See
McCoy
,
McCoy is instructive. There, we held that a claim was foregone because the plaintiffs had presented it as "the merest of skeletons" in their opposition to the defendant's motion to dismiss. 950 F.2d at 22. We noted that the plaintiffs did not present relevant legal authority, provide statutory analysis, or otherwise support their claim with cogent reasoning. See id. Instead, they made "passing mention of the general point - a mention which, in its entirety, comprised two sentences and one *47 citation (to a tangentially relevant case)." Id.
McCoy and this case are sisters under the skin. We are unable to locate any developed argumentation supporting a "regarded as" claim in Mancini's summary judgment papers. In the section of his memorandum arguing that he was disabled within the meaning of the ADA, Mancini listed the three definitions of disability and then provided sections analyzing the first two definitions ("actual disability" and "record of disability"), but not the "regarded as" definition.
To be sure, in wrapping up the one-paragraph section on "record of disability," Mancini included two sentences to the effect that his record of disability demonstrated the City's belief that he was disabled. The second of these sentences was followed by a citation to a First Amendment case.
See
Heffernan
v.
City of Paterson
, --- U.S. ----,
Reviewing the pleadings, the cross-motions for summary judgment, the memoranda filed by the parties, and the remainder of the summary judgment record, the district court supportably characterized Mancini as arguing only "actual disability" and "record of disability" claims.
See
Mancini
,
We have said before - and today reaffirm - that "[o]verburdened trial judges cannot be expected to be mind readers."
McCoy
,
One loose end remains. In an attempt to wrest victory from the jaws of defeat, Mancini contends that the district court erred in denying his motion to vacate the adverse judgment. This contention is easily dispatched.
Mancini brought his motion to vacate under Federal Rule of Civil Procedure 60(b). Mancini's motion primarily challenges supposed "mistakes" in the district court's legal analysis. We have held, however, that "an error of law cannot be regarded as a 'mistake' " for the purpose of Rule 60(b)(1).
Fisher
v.
Kadant, Inc.
,
The filing of a Rule 59(e) motion does not afford the movant an opportunity to introduce evidence that was previously available.
See
Palmer
v.
Champion Mortg.
,
Mancini's motion to vacate was filed in utter disregard of these limitations. Through it, he attempted to introduce evidence and arguments that were available to him all along. To the extent that any portions of this proffer might have benefitted his opposition to summary judgment, he could - and should - have included those materials with his summary judgment papers. A party's failure to submit readily available evidence or to make readily available arguments at summary judgment cannot be remedied through a Rule 59(e) motion.
See
U.S. ex rel. Ge
v.
Takeda Pharm.
Co.,
That ends this aspect of the matter. Given the fact that all of the late-arriving evidence and arguments associated with Mancini's motion to vacate were available to him well before the summary judgment proceeding matured, we do not hesitate to conclude that the district court acted comfortably within the encincture of its discretion in denying the motion.
See
Harley-Davidson
,
III. CONCLUSION
We need go no further. For the reasons elucidated above, the judgment of the district court is
Affirmed .
Mancini originally named the Chief as an additional defendant. After receiving an answer to a certified question from the Rhode Island Supreme Court,
see
Mancini
v.
City of Prov.
,
Mancini does not challenge the district court's conclusion that his state-law claims stand or fall in line with his federal claims. Nor does he make any independent argument regarding the entry of summary judgment on those claims. Consequently, there is no need for us to discuss the state-law claims.
We note that Mancini's allegations are somewhat of a square peg in the round hole of failure-to-promote claims. The discriminatory action alleged is not that Mancini was "rejected" for promotion to lieutenant because of his disability but, rather, that the Chief's award of 0 service points was due to his disability and negatively impacted the likelihood that Mancini would achieve a total score that would entitle him to promotion. Because we find that Mancini's claims fail for other reasons, see text infra , we need not drill down into the ramifications of this odd configuration.
This species of disability is sometimes referred to as "actual disability."
See
Regulations to Implement the Equal Employment Provisions of the Americans with Disabilities Act, as Amended,
Of course, the plaintiff's statement as to what a doctor told him is hearsay and, thus, is not probative of the truth of the matter asserted.
See
Garside
v.
Osco Drug, Inc.
,
On appeal, Mancini does not allege that he was substantially limited in the major life activity of working. Had such an allegation been made, it would have required Mancini to show a substantial limitation in his "ability to perform a class of jobs or broad range of jobs in various classes as compared to most people having comparable training, skills, and abilities." 29 C.F.R. pt. 1630, App. at 390;
see
Nurriddin
v.
Bolden
,
Even though an impairment need not limit a major life activity in order to ground a "regarded as" claim, it cannot be "transitory and minor."
Reference
- Full Case Name
- Mark MANCINI, Plaintiff, Appellant, v. CITY OF PROVIDENCE, BY AND THROUGH Its Treasurer, James J. LOMBARDI, III, Defendant, Appellee.
- Cited By
- 122 cases
- Status
- Published