FILED U.S. COURT OF APPEALS ELEV ENT H CIR CUIT JANUARY 21, 2004 THOMAS K. KAHN CLERK [PUBL ISH]

IN THE UNITED STATES COURT OF APPEALS FOR TH E ELEV ENTH C IRCUIT

________________________ No. 03-12308 Non-Argument Calendar

________________________ D. C. Dock et N o. 0 2-2 1520 -CV- FAM JEAN E. CA RRU THE RS,

Plaintiff- Appe llant,

versus BSA ADV ERT ISIN G, IN C., Defen dant-A ppellee.

________________________ Appeal from the United States District Court for the Southern Dis

trict of Florida

_________________________ (January 21, 2004)

Before BIRC H, BLA CK and B ARKE TT, Circuit Judges. PER CURIAM:2

Jean E. Carruthers appeals the dist rict court’s grant

of judgment as a matter of law in favor of BSA Advertising,Inc. (“BSA”), her former employer,

on Carruthers’s discriminat ion claim filed pursuant t o the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq. We AFF IRM. I. B ACKGROUND In May of 2002, Carruthers filed a complaint all eging that BSA terminated her employment bec ause of a disa bility or a perceive d disabili

ty, in vi olation of t

he ADA. The un disputed and relevant facts of the case follow: (1) Carruthers was employed with BSA from 1993 through 2000, most recently in the posit ion of Art Director; (2) on 28 Feb ruary 2000, Carruthers visited her assigne d workers’ compensation physician after experiencing pain and swelling in both of h er hands; (3) Carruthers ’s physician diagnosed her as suffering f rom a bilate

ral hand strain/sprain and gave he r various work rest

rictions , which were to be re viewed on a week-to-week basi s; (4) Carrut hers notified her supervis or of her diagnosi s and work restrict

ions, which inc luded a prohibi tion on any compute

r/mouse usage; (6) BSA placed a classified advertisement f or Carruthers’s replacement on 5 March 2000; a nd (5) B SA ter minated Carruth ers’s emp loymen t on 8 M arch 20 00. The district court subsequentl y issued a scheduling order, which set (1) a deadline for

25 July 2002 for all amendments to t he pleadings,

(2) a deadli

ne of 253

November 2002 for completi on of all non-expe rt discover

y, and (3) a t

rial dat e for the week commencing 24 March 2003. On Janua ry 17, 2003, Carrut

hers file d a motion for lea

ve to amend her compla int, maint

aining that

, during the c ourse of mediation, she had discovered that she had a cause of action for retal iatory discharge, on the theory that her termination was based, at l east in part, on her decision to seek w orkers’ c ompen sation. The district cou rt denied Car ruthers’s motion , and the c ase proc eeded to trial on 4 M arch 20 03. At the conclusion of Carruthers’s case, BSA moved for judgm ent as a matter of law, arguing t

hat Carruther

s failed t o show that BSA perceived her as having a disabili ty under the ADA. In the a lternat ive, BSA contended tha t, because

of Carruthers’ s admission t hat ninety

percent of her

work was on the computer and because her wo rk restrictio ns had f orbidd en any co mputer usage, sh e had faile d to show that she could perfo rm the essential functions of her job and that her req uest that BS A hire a n assistan t for her d id not rep resent a re asonab le accom modatio n. The district court granted BSA ’s motion. Carruthers now appeals. II.DISCUSSI ON A. District Court’s Judgment as a Matter of Law On app eal, Carruthers a rgues that the d istrict court erred in g ranting BS A’s motion for judgment as a matter of law pursuant to Rule 50(a) of the Federal Rules1 Rule 50 (a) prov ides:

If during atrial by jury a party ha s been fu lly heard on an issue and there is no legally suffici ent evidentiary basi s for a reasonable jury to find for thatparty on that issue,the court may determine the iss ue against that part y and may g rant a motion for judgmen t as a matter of law against thatparty w ith respec t to a claim or defense tha t cannot under c ontrolli

ng law be maintained or defeated without a favorabl e finding on that issue. Fed. R. Civ. P. 50(a)(1). 4 of Civil Procedure. 1 According to Carruthers, the district court wrongly concluded that her evidence, viewed i n the light

most favorable

to her, fai

led to est ablish a prima facie case of em ployme nt discrim ination in violation of the A DA. Specifical

ly, she ar gues that t

he distri ct court er

red in deter

mining that no reasonable juror could conclude that Carruthers’s evidence showed that she was perceived t

o be disabled or

that she was qual

ified to pe

rform the esse

ntial func

tions of her jo b with o r witho ut a reaso nable acc ommo dation. “We review the district court’ s grant of a Rule 50(a) motion for judgment as

a ma tt er o f la w de novo , conside ring all the evidenc e in the ligh t most fav orable to . . . the non-moving party.” Mendoza v. Borden, Inc. , 195 F .3d 123 8, 1259 (11th Cir. 1999) . “A directed verdict is only proper wh en the facts and inferences so overwhelmingly favor the verdict that no reasonable juror could reach a contrary decision.” Id. (citation and int ernal punctuation omitted). However, “a mere scintilla of evidence does not create a jury question”; instead,“there must be a5

substantial conflict in evidence to support a j ury question.” Williams v. Motorola, Inc. , 303 F.3d 1284, 1290 (11th Cir. 2002). The A DA f orbids c overed employ ers from discrimin ating “aga inst a qualified individu al with a d isability bec ause of th e disability o f such in dividua l in regard to . . . disc

harge of employees.” 42 U.S.C. § 12112(a) (2000). To establish

a prima facie case of disc riminati on under the ADA, Carruthers must show that she (1) had , or was perceive d to hav e, a “disability ”; (2) w as a “qualif ied” indiv idual; and (3) was dis criminate d agains t because of her d isability. William s , 303 F.3d at 1290. The ADA defines “disability” as “(A) a physical or mental impairment that substantially

limits one or more of the major li fe activiti es of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairm ent.” 42 U .S.C. § 1 2102( 2). In order for any ADA claim to succeed, the claimant must show that her condition of i

mpairment ris es to the l evel of a dis abilit y. In Carruthe

rs’s case , the sole basis of her contention that she was disabled is subsectio n (C) o f § 121 02(2). Under the “regarded as” prong, a person is “disa bled” if her employer perceives her as having an ADA-qualifying disability, even i f there is no factual bas is for that perceptio n. William s , 303 F.3d at 1290. As wit h actual i mpairments, however, the perceived i

mpairment must be one that, i f real, would l

imit subst

antiall y a major6

life activity o f the indiv idual. 42 U.S.C

. § 1210 2(2)(C ); see also Sutton v. Lader , 185 F.3d 1203, 1208 (11th Cir. 1999). Carruthers argues that BSA “perceived her as not performi

ng a wide range of jobs .” Appellant ’s Br. at 10. Although Carrut hers of fers no furt

her des cript

ion of t he spec ific

disab ili ty that BSA alle gedly perce ived he

r to ha ve, we c onstr

ue her a rgument to be t hat BSA perceived her hand condition as substantially limit ing her in the major life activities ofwork ing and of perfo rming m anual task s. The regulations implementing the ADA enumerate several functions that qualify as

“major li fe activi

ties,” included among which i s the acti vity of “working.” 29 C.F.R. § 1630.2(i) (2003). In order for Carruthers to establ ish that BSA regarded her as subst antiall y limite d in the major l

ife acti vity of working,she must sh ow tha t BSA perceive d her as “s ignifican tly restricted in the ability to perform either a class of j obs or a broad range of jobs in various classes as compared to the average person having comparable traini ng, skills, and abil

ities.” 29 C.F .R. § 16 30.2(j)( 3)(i); see also Sutton v. United Air Lines, Inc. , 527 U.S. 471, 491, 119 S. Ct. 2139, 2151 (1999) (“When the major life activity under consideration is that of working, the statutory phrase "sub stantially limits" requires, at a minimum, that plaintiffs allege they are unable to work in a broad2 We do note that the Supreme Court more recently has expresse d its reluctance

to treat impa irment o f one’s ab ility to wo rk as an A DA d isability. See Toyota Motor Mfg., Ky., I

nc. v. Willi ams , 534 U .S. 184 , 200, 12 2 S.Ct. 681, 692 (2002) (“Because of the conceptual di fficult ies inhere

nt in the ar

gument that working

could be a major life activity, we have been hesitant to hold as much, and we n eed not d ecide this difficult question today.”). Previously,however, this c ircuit has, following t he ADA regulati ons an d S utton ’s above-quoted language, treat ed the activity

of working as a major life activity. See, e.g. , Cash v . Smith , 231 F .3d 130 1, 1306 (2000 ); Gordo n v. E.L. Hamm & A ssocs., Inc. , 100 F.3d. 907, 911-12 (11th Cir. 1996). In the absence of a more explici

t direct ive from the Supreme Court , we do not revisit that

conclusion here. 7 class of jobs.”). 2 “The inability to per form a single,

particul ar job does not constitute a substa

ntial limit

ation in the major li fe activity of working.” 29 C.F.R. § 1630 .2(j)(3)( i). Thus , an impa irment m ust preclu de— or at least b e perceiv ed to preclude—an individual from more than one type of job, even if the j ob foreclosed is the indiv idual’s job of choic e. See Sutton , 527 U .S. at 492 , 119 S .Ct. at 215 1. With regard to Carruthers’s perceived i mpairment in performing manual tasks, the Supreme Court recently t ook up the question of when such an impairm ent cons titutes an A DA d isability. Toyota Motor Mfg., Ky., I nc. v. William s , 534 U.S. 184, 122 S. Ct. 681 (2002). In rej ecting pla intiff’ s argument that her ca

rpal tunnel

syndrome limit

ed her abili

ty to perfor

m a broad class of manual tasks and thus impaired a major li fe activity, the Toyota MotorCourt emphasized tha

t both stat

utory language

and congressiona

l intent require tha

t the ADA’s “disabili

ty” defini

tion be “i nterprete d strict

ly to crea te a demanding8

standard for qualifying as dis abled.” Id. at 197, 122 S. Ct. at 691. The Court highligh ted sever al prereq uisites in o rder for an impa irment to the ability to perform manual tasks to qualify as a di sability. Specifically,the Court held that the crit ical inqui ry is whether t

he impairment ( a) prevents or severely r

estrict s the performance of (b) activiti es “of central importance to most people’s daily l ives.” Id. at 198, 122 S. Ct. at 691. The Court fur ther held t

hat the impai

rment must have a perma nent or lo ng-term impact. Id. ; see also 29 C.F .R. § 16 30.2(j)( 2)(iii). We conclude that no reasonable jury could find that Carruthers’s evidence establi shed that BSA percei ved her impairment

as one that s

ubstantia lly li mited the major life activities ofwork ing or p erform ing man ual tasks. C arruther s herself admitted at tri al that BSA’s knowledge of her condition was limited to her physician ’s diagno sis of a bila teral hand strain/spr ain and h er wor k restrictio ns. Aside from BSA’s awareness of he r initi al diagnosi s and work restri ctions, t he only oth er supp ort Carr uthers o ffers for her con tention th at BSA perceive d her to be disab led is the fa ct that (1) B SA in formed her that sh e wou ld be term inated if she could not mai

ntain a full-time sc

hedule and (2) BSA placed a n advertise

ment for her repla

cement shortl

y after l earning of her i

nabilit y to perform the

basic tas ks of her position. Based on this record, we find no i

ndication t

hat BSA regarded, or would have had any reason to regard, Carruthers’s condition as rendering her9

incapable of

performing “ei

ther a class of jobs or a br oad range of jobs i

n various classes.” 2 9 C.F.R . § 1630 .2(j)(3)( i). Similarly , Carruth ers failed to show that BS A perc eived he r limitation s in performing manual tasks as having a permanent or long-term impact and as preventing or severely rest ricting her from performing activi ties of central importa nce to m ost perso ns’ lives. See Toyota Motor , 534 U .S. at 198 , 122 S . Ct. at 691. In deed, C arruther s admitted at trial that sh e was ab le to dress herself, ap ply her own makeup, and groom herself, albei t with some pain,

and that the

re were no major life activities sh e could n ot perfo rm. Moreover, BSA, wh ich was informed that Carruthers’s rest

rictions were to be reviewed on a week-by-week basis, offered to review its staffing situation w hen Ca rruthers was rea dy to retu rn to w ork. Cf. Sutton , 185 F.3d at 1206, 1209 (concluding that court did not err i n finding that employer did not perceive employee as having a dis ability when employee provided employer

with doctor’s

letter stating t hat he was tota

lly disa bled for one month and par tially disable d for thr ee week s thereafte r). The dis trict court d id not err in findin g that no reasona ble juror could conclude that

BSA regarded Carruthers as disabled, as that t erm is define d by the ADA. A ccordingly, we need not consider Carruthers’s argument that the district court erred in finding that s he also failed to est

ablish that she was a “quali fied10

individual” under the ADA. Because Carrut hers fail ed to establ

ish the fi rst prong of her prima facie case of discriminati on in violation of the ADA, we conclude that the distr ict court was correct i

n granting BSA’s motion f or judgment as a mat

ter of law. B. Denial of Carrut

hers’s Motion for

Leave to Amend Citing no authority, Carruther s summarily argues that the di strict court abused its discretion in denying her motion for leave to amend her first a mended complaint t

o add a claim for

retali atory disc

harge. She asse

rts that the amendment would not have delayed the proceedings or prejudiced BSA because no additional discovery would have

been required a

nd because the e ssential witnesses for

the retaliation claim were already availabl e. We review the denial

of leave to a

mend for clear a

buse of discre

tion. Maynard v. Bd. of Regents of Universities of Fla. Dept. of Educ. , 342 F.3d 1281, 1286- 87 (11 th Cir. 20 03); Lowe’s Home Centers, Inc. v. Olin Corp. , 313 F.3d 1307, 1 314-1 5 (11th Cir. 200 2). Rule 15 (a) instru cts that leav e of the co urt to amend pl eadin

gs “shall b e free ly gi

ven when j usti ce so r

equir es.” Fed. R. Civ. P. 15(a). Nevertheless, a motion to amend may be denied on “num erous grounds, such as undue dela

y, undue prejudice to the def endants, and f

utilit y of the amendment.” Maynard , 342 F.3d at 1287 (ci tation and i

nternal quot

ation marks11

omitted). Moreover, “[i]t is not an abuse of discretion for a d istrict court to deny a motion for lea

ve to amend foll owing the close of discovery,past the dea dline for amendments, and past the deadline for filing dispositive moti ons.” Lowe’s , 313 F.3d at 1315. We co nclude th at the distric t court pr operly ex ercised its d iscretion in denying Carruth ers’s mo tion. Car ruthers f iled her m otion on 17 Janu ary 200 3, six months after t

he court’s 25 J

uly 2002 deadli

ne for amendments t

o the pleadi

ngs and tw o mon ths after its 2 5 Nov ember 2 002 de adline fo r comp letion of d iscovery

. Carruth ers offer s no exp lanation a s to wh y the intere sts of justic e require d leave to amend. Nor does she offe r any explanat

ion as to why she coul

d not have discovered and pled retalia tion in her original complai nt or in her first amended compla int. We f ind that su ch unex plained ta rdiness c onstitutes undue delay. Moreover, granti

ng the motion li

kely would have furt

her delayed pr

oceedings and prejudiced BSA, which had completed discovery and would have had to conduct additional discovery on the issue of wh ether Carruthers’s filing of her work ers’ compe nsation c laim wa s causally r elated to B SA’s te rminatio n of her employ ment. The district cou rt did not clearly ab use its discretion in d enying Car ruthers’s motion to amen d. III . CONCLUSI ON12

Because no reasona

ble juror coul

d conclude that

Carruthers was di sabled, the distr ict court did not err i

n granting BSA’s motion f or judgment as a mat

ter of law. Because Carruthers filed her motion for leave to amend her first amended complaint af

ter the di scovery deadline and afte r the close

of pleadings,

without adequa tely justifyin g the dela y, the distric t court did not abu se its discre tion in denying it. The jud gment o f the distric t court is AFFIRMED