* Of the Northern District of California, sitting by designation.

United States Court of Appeals

For the First Circuit

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
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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

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.

I. Background

Wright began working for CompUSA in February 1994. In

1996, he became Direct Sales Manager at the Brighton, Massachusetts

store, a position he held until his discharge in August 1998. In

May 1997, Wright was diagnosed as suffering from Attention Deficit

Disorder ("ADD"), and he began taking Ritalin. Wright first

informed his manager that he suffered from ADD in August 1997. He

did not request accommodation at that time.

In June 1998, a new general manager, Gregory Caughman,

was assigned to the Brighton store. Soon after, Wright began

experiencing severe stress and anxiety on the job, which

exacerbated his ADD symptoms. Around June 30, Wright experienced
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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, and he attributes

the severity of his symptoms during this 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

from July 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

accompanied by a letter indicating that 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

responded positively to treatment with Ritalin, described the

symptoms of ADD, and made specific recommendations regarding how

CompUSA could accommodate Wright's symptoms, including allowing

Wright to determine the length of time needed to complete tasks,

avoiding early morning meeting times, and clarifying work
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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 alleges 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

Brighton 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

discharged him, allegedly for insubordination due to Wright's

failure to go to Danvers as instructed.
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In February 1999, Wright filed a disability

discrimination and retaliation complaint with the Massachusetts

Commission Against Discrimination. No action was taken on Wright's

complaint. 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, Wright 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

Summary judgment is appropriate 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 district court's order

granting summary judgment 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
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by failing to view the facts in the light most favorable to his

claim. To establish disability discrimination under the ADA and

Massachusetts law, Wright must show: (1) that he suffers from a

disability; (2) that he was nevertheless able to perform the

essential functions of his job, either with or without reasonable

accommodation; and (3) that CompUSA took adverse action against him

because of his disability. Carroll v. Xerox Corp., 294 F.3d 231,

237 (1st Cir. 2002)(citing Lessard v. Osram Sylvania, Inc., 175

F.3d 193, 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

him in the major life activities of reading, speaking,

concentrating, hearing and processing information, and thinking 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.
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EEOC regulations define "substantially limits" as "(i)

[u]nable to perform a major life activity that the average person

in the general population can perform; or (ii) [s]ignificantly

restricted as 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 average 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 duration of the impairment, and (iii)

[t]he permanent or long term impact . . . of or resulting from the

impairment." 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

inability to handle stress at all times, rather than only

episodically." Calef v. Gillette Co., 322 F.3d 75, 86 (1st Cir.

2003)(employee with attention deficit hyperactivity disorder not

disabled under ADA absent showing that substantially limited in the

major life activities of learning or speaking).

As the district court found, the evidence Wright provided

indicated that his treatment for ADD had been quite successful, and

Wright acknowledges that the disruptive severity of his symptoms
1 Wright reminds 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 . . . is

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" evidence, however, it is clear

from the opinion that the district 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 reference 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 motion that Wright had been diagnosed with

ADD. While the district court's skeptical attitude toward the

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did not begin until Caughman 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

presented evidence that Caughman's managerial style created a

stressful environment for him that affected his ADD symptoms, he

does not present evidence that his ADD generally rendered him

unable to perform some usual activity compared to the general

population or that he had a continuing inability to handle

stressful situations.1

Accepting as undisputed that Wright has been diagnosed

with ADD,2 it is not sufficient for an ADA plaintiff "to merely
diagnosis was unwarranted, this does not absolve Wright of his

burden of establishing that his ADD substantially limited him in a

major life activity.

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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, bipolar

disorder, and hypothyroidism failed to present evidence that her

impairments substantially limited any 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

limited her ability to work, speak, or learn). While Wright

provided evidence that his ADD affected various activities in his

everyday life, this evidence was not sufficient to allow a

reasonable juror to conclude that he was substantially limited in

the major life activities of reading, speaking, concentrating,

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 should survive summary

judgment because the record creates a genuine issue of material
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fact as to whether CompUSA's proffered reasons 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.3d 12, 16 (1st Cir. 1997)(citing Mesnick v. Gen. Elec.

Co., 950 F.2d 816, 827 (1st Cir. 1991)); see also Siaca v.

Autoridad 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

Harvard Coll., 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 individual has

opposed any act or practice made unlawful by this chapter or

because such individual made a charge, testified, assisted, or

participated in any manner in an investigation, proceeding, or

hearing under this chapter." 42 U.S.C. § 12203(a). This court has

previously assumed, without deciding, that simply requesting an

accommodation, without filing a formal charge or engaging in other

specific behaviors listed in § 12203(a), is nonetheless behavior

protected from an employer's retaliation. Benoit v. Technical Mfg.

Corp., 331 F.3d 166, 177 (1st Cir. 2003)("we shall assume arguendo
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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

reasoned that "it would seem anomalous . . . to think Congress

intended no retaliation protection for employees who request a

reasonable accommodation unless they also file a formal charge."

Soileau, 105 F.3d at 16. Other circuits have similarly assumed or

expressly held that requesting reasonable accommodation is

"protected activity" under the ADA. Shellenberger v. Summit

Bancorp, Inc., 318 F.3d 183, 191 (3d Cir. 2003)("The right to

request an accommodation in good faith 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.3d 696, 706 (4th Cir.

2001); Selenke v. Medical Imaging of Colorado, 248 F.3d 1249, 1265

(10th Cir. 2001); Silk v. City of Chicago, 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, that he 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 undisputed that he was discharged. The causal

connection between his discharge and his request for accommodation
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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 could find 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, the district court

implicitly discredited Wright's contention that, as opposed to

exhibiting insubordination, his behavior on August 11th consisted

of good-faith, successful efforts 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 that CompUSA's charge of

insubordination masked retaliatory motives. Wright was terminated

immediately after returning from medical leave and requesting

accommodation of his ADD. While this chronological proximity does

not by itself establish causality, particularly 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 presented

establishes a prima facie case of retaliation sufficient to survive

summary judgment.
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Once a prima facie case of retaliation is established,

the burden shifts to the employer "to articulate a legitimate,

nondiscriminatory reason for its employment decision." Mesnick,

950 F.2d at 827. If the employer provides a legitimate reason,

"the ultimate burden falls on the plaintiff to show that the

employer's proffered reason is pretext masking retaliation . . . ."

Id. CompUSA alleges that Wright was discharged for insubordination

and reminds us that "[t]he ADA is not a license for insubordination

at the workplace." Reed v. LePage Bakeries, Inc., 244 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 discharge 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 summary judgment regarding discrimination but reverse and

remand Wright's retaliation claim to the district court for further

proceedings consistent with this opinion.

Affirmed in part, reversed and remanded in part.