* Of the Northern District of California, sitting bydesignation.



# Un ited Sta tes C our t of A pp eals

For the First C ircuit

No. 03-1099 STEPHEN D. WRIGHT, Plaintiff, Appellant,

v. COMPUSA, INC., Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Morris E. Lasker, U.S. District Judge ]

Before Torruella and Lipez, Circuit Judges , and Schwarzer, * Senior District Judge .

Gretchen Van Ness , for appellant. Barbara O'Donnell , with whom Alida Bográn-Acosta and Robinson & Cole LLP , were on brief, for appellee.

December 19, 2003-2- TORRUELLA, Circuit Judge . 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 affirmthe district court's decision regarding disability discrimination. We reverse and remand Wright's retaliation claim, however , b ecause the record creates a genuine issue of material fact as to whether CompUSA's proffered reason for terminating Wright was pretextual. I. Background

Wright began working for CompUSA in Febr uary 1 994. In 1996, he became Direct Sales Manager at the Brighton, Massachusetts store, a position he held until his discharge in August 1998. In May1997, Wright was diagnosedas suffering fromAttention Deficit Disorder ("ADD"), and he b ega n taking Ritalin. Wright first informedhis manager that he suffered from ADD in August 1997. He did not request accommodation at that time.

In June 1998, a new genera l ma nager, Gregory Caughman,

was assigned to the Brighton store. Soon after, Wright began experiencing severe stre ss a nd anxiety on the job, which exacerbated his ADD symptoms. Around June 30, Wright experienced-3-

a panic attack at work and sought his physician's advice, which included increasing his level of medication. During July, Wright

was involved in several conflicts with Caughman, andhe attributes the severity of his symptoms du ring t his period to Caughman's managerial style. Wright also alleges that his symptoms and need for increased medication were alleviated when Caughman was gone from the office during part of that month. Toward the end of the month, Wright's physician recommended that Wright take a leave of absence from work. CompUSA granted Wright a two-week medical leave fromJuly 23, 1998 to August 4, 1998. While on medical leave, Wright requested a transfer to the Braintree store. This request

was denied. Wright then requested that he be allowed to work from home. This request was also denied.

Wright returned to work on August 5th with letters from his physician, Dr. Horan, and from his psychiatrist, Dr. Song. A note from Dr. Horan approving Wright's return to normal duties was accompaniedby a letter indicati ng tha t Wright was being treated for a medical condition which required him to take medications with meals three times a day. Dr. Song's letter noted that Wright had respondedpositively to treatment with Ri talin, described the symptoms of ADD, and made specific recommendations regar ding how CompUSAcould accommodate Wright's symptoms, including allowing Wright to determine the length of time needed to complete tasks, avoiding early morning meeting times, and clar ifyi ng work-4-

assignments in writing. Dr. Song's letter also mentioned that discussions with Wright indicated to Dr. Song that Wright's difficulties in June and July were caused by increased stress due to the new managerial style in place since Caughman's arrival. Wright a l leges that after receiving this letter Caughman nevertheless continued to issue orders contrary to Dr. Song's suggested accommodations.

On August 11, 1998, Wright was scheduled to attend a meeting for Direct Sales Managers at the CompUSA store in Danvers. On the night of August 10th, Wright's son suffered a head injury at work, and when Wright realized the following morning that he needed to take his son to see the doctor, he called Caughman to explain that he would be delayed. Wright and Caughman spoke on the phone several times that day, and Caughman told Wright not to come to the Bright on store until he had gone to Danvers. When Wright was finished caring for his son, he was unable to reach anyone at the Danvers store by phone. Wright contacted a manager at another store who had attended the Danvers meeting and asked him to fax the materials from the meeting to the Brighton store. After confirming that the materials had been faxed to Brighton, Wright arrived at the Brighton store and attempted to meet with Caughman to give him the materials. Caughman called Wright into his office and dischargedh im, allegedly for insubordination due to Wright's failure to go to Danvers as instructed.-5- In February 1999, Wright filed a disability discrimination and retaliation complaint with the Massachusetts Commission Against Discrimination. No action was taken on Wright's

co mplain t. Wright withdrew his administrative claim and filed a civil action in Suffolk Superior Court, adding two individual defendants, Caughman and Robert Morsilli (CompUSA's Regional Manager). On September 12, 2001, CompUSA removed the case to federal court. On December 28, 2001, the district court granted the individual defendants' motion to dismiss, Wr ight v. CompUSA, Inc. , 183 F. Supp. 2d 308 (D. Mass. 2001), leaving CompUSA as the sole defendant. On December 17, 2002, the district court granted CompUSA's motion for summary judgment on each of Wright's claims. II. Analysis Summaryjudgment is approp riat e where the record shows "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). We review the dis trict court's order granting summary j udg ment de novo, construing the record in the light most favorable to Wright and resolving all reasonable inferences in his favor. Rodríguez v. Smithkline Beecham , 224 F.3d 1, 5 (1st Cir. 2000).

A. Discrimination Claim Wright contends that the district court erred in granting summary judgment for CompUSA regarding disability discrimination-6-

by failing to view the facts in the light most favorable to his claim. To establish d isabil ity discrimination under the ADA and Massachusetts law, Wright must show: (1) that he suffers from a di sab ility; (2) that he was nevertheless able to perform the essential functions of his job, either with or without reasonable accommodation; and(3) that CompUSAtook adverse action against him because of his disability. Carroll v. Xerox Corp. , 294 F.3d 231, 237 (1 st Cir. 2002)(citing Lessardv. Osram Sylvania, Inc. , 175 F.3d193, 197 (1st Cir. 1999)). The district court held, and we here affirm, that the evidence presented, even viewed in the light most favorable to Wright, is insufficient to create a triable issue of fact as to whether Wright's ADD qualifies as a disability under the ADA. The ADA defines a disability as (1) a physical or mental impairment that substantially limits one or more of the major life activities of an individual; (2) a record of such an impairment; or (3) being regarded as having such an impairment. 42 U.S.C. § 12102 (2). Wright alleges that his impairment, ADD, substantially limits hi min the major life activities of reading, speaking, concentrating, hearing and processing information, andthinking and articulating thoughts, thus affecting his ability to write, to be spontaneous, to plan, to communicate with others, to run errands, to complete everyday chores, and to deal with stressful situations.-7- EEOC regulations define "substantially limits" as "(i) [u]nable to perform a major life activity that the average person in the general population can perf orm; or (ii) [s]ignificantly restrictedas to the condition, manner, or duration under which an individual can perform a major life activity as compared to the condition, manner, or duration under which the avera ge person in the general population can perform that same major life activity." 29 C.F.R. § 1630.2(j)(1). Factors to be considered in determining whether an individual is substantially limited in a major life activity are "(i) [t]he nature and severity of the impairment, (ii) [t]he duration or expected d uratio n of the impairment, and (iii) [t]he permanent or long term impact . . . of or resulting from the impairme nt." 29 C.F.R. § 1630.2(j)(2). Accordingly, this court has refrained from finding a disability pursuant to the ADA absent evidence that the plaintiff "could not perform some usual activity compared with the general population, or that he had a continuing inabilityto handle stress at all times, rather than only episodically." Calefv. Gillette Co. , 322 F.3d 75, 86 (1st Cir. 2003)(employee with attention deficit hyperactivity disorder not disabledunder ADA absent showing that substantially limited in the major life activities of learning or speaking).

As the district court found, the evidence Wright provided indicatedthat his treatment for ADD had been quite successful, and Wright acknowledges that the disruptive severity of his sy mpto ms1 Wright rem inds us that the ADA requires case-by-case

determinations in which plaintiffs need only "prove a disability by offering evidence that the extent of the limitation [caused by their impairment] in terms of their own experience . . . i s substantial." Toyota Motor Mfg. v. Williams , 534 U.S. 184, 198 (2002)(quoting Albertson's, Inc. v. Kirkingburg , 527 U.S. 555, 567 (1999)). He contends that the district court applied an inappropriately heightened "objective evidence" standard when it stated that "other than his own affidavit, Mr. Wright presents no objective evidence that his ADD substantially limits a major life activity." Wright v. CompUSA, Inc. , No. 01-CV-11567-MEL, slip op. at 6 (D. Mass. Dec. 17, 2002). Despite the reference to Wright's affidavit as the only "objective" evide nce, however, it is clear fromthe opinion that the dist ric t court performed the required individualized inquiry of the complete record, including Wright's doctors' letters, and did not improperly limit its consideration to the affidavit.

2 Wright contends that the district court's refere nce to his diagnosis as "questionable" shows that it failed to view the facts in the light most favorable to his claim, as required for summary judgment. Wright did not provide further evidence of the diagnosis itself, he explains, because CompUSA conceded for the purposes of its summary judgment m oti on that Wright had been diagnosed with ADD. While the district court's skeptical attitude toward the -8- didnot begin until Cau ghman arrived in June 1998. Dr. Song specifically noted in his letter that Wright's stress in the summer of 1998 was due to the changed work environment. So, while Wright presentedevidence that Caughma n' s managerial style created a stressful environment fo r him that affected his ADD symptoms, he does not present evidence that h is ADD generally rendered him

un able t o perform some usual activity compared to the general p opulation or that he had a continuing inability to handl e stressful situations. 1

Accepting as undispu ted that Wright has been diagnosed with ADD, 2 it is n o t sufficient for an ADA plaintiff "to merelydiagnosis was unwarranted, this does not absolve Wright of his

burden of establishing that his ADD substantially limited him in a major life activity. -9- submit evidence of a medical diagnosis of an impairment." Toyota Motor Mfg. v. Williams , 534 U.S. 184, 198 (2002). Other circuits have similarly found that ADD does not constitute a disability under the ADA without a showing of substantial limitation of a major life activity. Doebele v. Sprint/United Mgmt. Co. , 342 F.3d 1117, 1129-31 (10th Cir. 2003)(ADA plaintiff with ADD, b ipol ar diso rder , and hypothyroidism failed to present evidence that her impairments substantially limitedany of the major life activities identified); Davidson v. Midelfort Clinic, Ltd. , 133 F.3d 499 (7th Cir. 1998)(ADA plaintiff failed to establish that ADD substantially limitedher ability to work, speak, or learn). While Wright provided evidence that his ADD affected various activities in his everyday life, this eviden ce was not sufficient to allow a reasonable juror to conclude that he was substantially limited in the major life activities of reading, speaking, concentratin g , hearing and processing information, and thinking and articulating thoughts, as he contends.

B. Retaliation Claim Wright asserts that, regardless of the outcome of his discrimination claim, his retaliation claim shouldsurvive summary judgment because the record cr eat es a genuine issue of material-10-

fact as to whether CompUSA's proffered r easo ns for discharging Wright were pretextual. We agree.

An ADA plaintiff need not succeed on a disability claim to assert a claim for retaliation. Soileau v. Guilford of Maine, Inc. , 105 F.3d12, 16 (1st Cir. 1997)(citing Mesnick v. Gen. Elec. Co. , 950 F.2d 816, 827 (1st Ci r. 1991)); see also Siaca v. Auto ridad de Acueductos y Alcantarillados de Puerto Rico , 160 F. Supp. 2d 188, 198 (D.P.R. 2001). Massachusetts's antidiscrimination law also treats retaliation as a "separate and independent cause of action." Abramian v. President & Fellows of Har vardColl. , 731 N.E.2d 1075, 1087 (Mass. 2000). Wright's failure to establish a disability does not preclude his retaliation claim. The ADA's retaliation provision states: "No person shall discriminate against any individual because such indivi d ual has opposedany act or practice made unlawful by this chapter or because such individual made a charge, testified, assi sted , or participatedin any mann er in an investigation, proceeding, or hearing under this chapter." 42 U.S.C. § 12203(a). This court has previouslyassumed, without deciding, that simply requ e sting an accommodation, without filing a formal charge or engaging in other specific behav iors listed in § 12203(a), is nonetheless behavior protectedfrom an employer's retaliation. Benoit v. Technical Mfg. Corp. , 331 F.3d 166, 177 (1st Cir. 2003)("we shall assume arguendo-11-

that such behavior on the part of a plaintiff brings him within the ambit of 42 U.S.C. § 12203(a)."); Soileau , 105 F.3d at 16. We have reasonedthat "it would seem anoma lous . . . to think Congress inte ndedno retaliation protection for employees who request a reasonable accommodation unl ess they also file a formal charge." Soileau , 105 F.3d at 16. Other circuits have similarly assumed or expresslyheld that requesting reasonable accommodation is "protectedactivit y" u nder the ADA. Shellenberger v. Summit Bancorp, Inc. , 318 F.3d 183, 191 (3d Cir. 2003)("The right to request an accommodation in goodfaith is no less a guarantee under the ADA than the right to file a complaint with the EEOC."); Haulbrook v. Michelin N. Am., Inc. , 252 F.3 d 696, 706 (4th Cir. 2001); Selenke v. Medical Imaging of Colorado , 248 F.3d 1249, 1265 (10th Cir. 2001); Silkv. Cityof C hicago , 194 F.3d 788, 799-801 (7th Cir. 1999). We now hold that requesting an accommodation is protected activity for the purposes of § 12203(a).

To establish a prima facie claim of retaliation, Wright must show "that he was engaged in protected conduct, t hat h e was discharged, and that there was a causal connection between the discharge and the conduct." Soileau , 105 F.3d at 16 (citing Wyatt

v. City of Boston , 35 F.3d 13, 15 (1st Cir. 1994)). As discussed above, Wright's request for accommodation constituted protected activity, and it is undisputedthat he was discharged. The causal connection between his discharge and his request for accommodation-12-

is the contested issue. The district court found that "the actual causal nexus of events leading to Wright's termination lies in his refusal to attend the mandatory meeting," concluding that "no reasonable juror c ouldfind that CompUSA fired Wright in retaliation for his submission of Dr. Song's letter or his other requests." Wright v. CompUSA, Inc. , No. 01-CV-11567-MEL, slip op. at 8 (D. Mass. Dec. 17, 2002). In so doing, th e district court implicitlydiscredited Wright's contention that, a s opp osed to exhibiting insubordination, his behavior on August 11th consisted of good-faith, successful effo rts to obtain materials from a meeting that he had already missed while caring for his son. Viewing the record in the light most favorable to Wright, a reasonable juror could infer tha t Comp USA's charge of insubordination masked retaliatory motives. Wright was terminated immedi at ely after returning from medical leave and requesting accommodation of his ADD. While this chronological proximity does not by itself establish causalit y, p articularly if "[t]he larger picture undercuts any claim of causation," Soileau , 105 F.3d at 16, the record before us does not paint a picture of insubordination sufficient to undercut Wright's claim of causation. When viewed in the light most favorable to Wright, the evidence p rese nted establishes a prima facie case of retaliation sufficient to survive summary judgment.-13- Once a prima facie case of retaliation is established, the burden shifts to the employer "to articulate a legitimate, nondiscriminatory reason for its employment deci sion." Mesnick , 950 F.2d at 827. If the employe r provides a legitimate reason, "the ultimate burden falls on the plaintiff to show that the employer's proffered reason is pretext masking retaliation . . . ." Id. CompUSAalleges that Wright was discharged for insubordination andreminds us that "[t]he ADAis not a license for insubordination at the workplace." Reedv. LePage Bakeries, Inc . , 24 4 F.3d 254, 262 (1st Cir. 2001). The burden thus falls on Wright to show that CompUSA’s proffered reason was pretextual. As discussed above, the evidence presented by Wright creates a triable issue of fact as to whether his di sch arge was in fact due to his allegedly insubordinate behavior on August 11th or whether CompUSA's charge of insubordination masked retaliation for requesting accommodation of his ADD. III. Conclusion

For the foregoing reasons, we affirm the district court's grant of summaryjudgment regarding discrimination but reverse and remandWright's retaliation claim to the district court for further proceedings consistent with this opinion.

Affirmed in part, reversed and remanded in part .