United States Court of Appeals

For the First Circuit

No. 10-1137

KAREN FAIOLA,

Plaintiff, Appellant,

v.

APCO GRAPHICS, INC.

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. F. Dennis Saylor IV, U.S. District Judge]

Before

 Boudin, Selya and Stahl, Circuit Judges.

Corinne Hood Greene for appellant.

Matthew J. Griffin, with whom Philip M. Cronin and Peabody &

Arnold LLP were on brief, for appellee.

December 10, 2010
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STAHL, Circuit Judge. Karen Faiola brought suit against

her former employer, APCO Graphics, Inc. ("APCO"), for wrongful

termination on the basis of disability in violation of Title I of

the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et

seq., and the Massachusetts analogue, Mass. Gen. Laws. ch. 151B

("Chapter 151B"). The district court granted summary judgment in

favor of APCO because Faiola failed to show that she was disabled

within the meaning of the statutes. We affirm.

I. Background

Because this is an appeal from a grant of summary

judgment, we recite the facts in the light most favorable to

Faiola, the nonmovant, and resolve all reasonable inferences in her

favor. Stonkus v. City of Brockton Sch. Dep't, 322 F.3d 97, 102

(1st Cir. 2003).

APCO is a commercial sign-maker headquartered in Atlanta,

Georgia. It maintains a regional office in Franklin,

Massachusetts, serving the New England territory. From November

1991 to February 2007, when Faiola was terminated, Faiola worked as

a sales representative and manager of APCO's Franklin office. She

was responsible for meeting or exceeding sales quotas; making

periodic factory visits; managing her sales assistant; and

maintaining the office by, for example, "dumping the trash" and

"keeping up a good appearance" in the showroom. Faiola reported to

Teresa Cox, APCO's vice president of sales and marketing.
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In 2003, Faiola's work performance at APCO began to

decline. From 2003 to 2006, Faiola met only forty to sixty-six

percent of her annual sales quotas and performed as one of APCO's

lowest grossing sales representatives nation-wide. In 2005, Cox

informed Faiola that the New England territory had the lowest sales

volume and that Faiola needed to improve her performance. In March

2006, Cox requested that Faiola take an aptitude test because her

sales were in a "slump."

The summary judgment record indicates that during periods

of her employment, Faiola suffered from ongoing mental health

conditions and a bout of high blood pressure. Dr. Karen Dempsey,

a psychotherapist, treated Faiola from May 2004 until September

2007. During her first visit with Faiola, she recorded that Faiola

was "sad, [] low energy, disorganized, anxious, [and] forgetful."

She diagnosed Faiola with dysthymia, a low level depression that is

not incapacitating, and over the course of treatment, she

prescribed various medications for Faiola, including Prozac and

Klonopin. 

Faiola's dysthymia went into remission in April 2006 and

reappeared by April 2007. Dr. Dempsey found that although Faiola

experienced stress and anxiety in early January 2007, due to the

breakup of a long-term relationship and concern over her father's

ailing health, there were no signs of depression. At no point did

Dr. Dempsey diagnose Faiola with classic depression or an anxiety
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disorder. Additionally, Dr. Dempsey never found that Faiola was

prevented from engaging in any of life's typical activities, nor

did she ever place work limitations or physical restrictions on

Faiola.

Barbara Gray, a clinical social worker, began counseling

Faiola in 1991. She noted that in January 2007, Faiola presented

herself with "low energy" and was "mentally exhausted" from her

relationship troubles and concern for her father. Again, however,

the record indicates that despite these events, Faiola was "stable"

and "able to go about [her] life."

Faiola began treatment with Dr. Edward Levitan in

September 2006 after she tested her blood pressure at a CVS

pharmacy and found the reading high. Dr. Levitan prescribed

medication for Faiola, and, by early March 2007, Faiola's blood

pressure returned to normal range. At no point did Dr. Levitan

instruct Faiola to limit her daily activities or avoid travel by

airplane.

Faiola testified in her deposition that throughout her

tenure at APCO and despite her various mental and physical health

conditions, she was "always able to perform [her work] activities

and roles" and "all the essential aspects of [her] job." She

walked three miles a day, traveled by airplane both for work and

pleasure, and in 2006, she took a second job selling insurance.
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Since her termination, Faiola has made business trips to Orlando,

Florida and Atlantic City, New Jersey.

Faiola's wrongful termination allegations stem from

events that occurred in February 2007. On February 2, 2007, Faiola

received an e-mail from APCO employee Andrea Blackwood regarding

logistics for an upcoming annual sales conference in Atlanta.

Faiola reported to Blackwood that she was "going through a personal

crisis" and was "not sure if [she was] going to be up to" the

conference, and she specifically informed Cox that she was going

through a "rough time." Faiola did not reference any health

conditions that prevented her from attending the conference, nor

did she reference the conference itself when she e-mailed Cox. 

On February 21, 2007, Cox traveled to the Franklin

regional office for a scheduled visit. During the visit, Cox and

Faiola met with customers around the territory. In conversation

with Cox during the day, Faiola raised some issues that she

experienced with certain APCO products. That night at dinner,

Faiola and Cox discussed Faiola's personal problems and her medical

conditions. Faiola told Cox that Dr. Levitan had instructed her to

avoid stress. At no point did Faiola and Cox discuss the upcoming

sales conference, nor did Faiola explain that her conditions

prevented her from flying to or attending the upcoming conference.

The next morning, before Cox left to return to Atlanta, she

terminated Faiola purportedly due to her poor sales performance. 
Faiola also brought claims for breach of contract and breach 1

of the covenant of good faith and fair dealing. Faiola does not

appeal the grant of summary judgment on these claims. 

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Subsequently, Faiola brought suit alleging disability

discrimination. The district court granted APCO's motion for 1

summary judgment. It found that Faiola failed to establish that

she was disabled because her alleged impairments did not

substantially limit a major life activity. Specifically, it found

that flying was not a major life activity, and to the extent that

flying implicated the major life activity of travel, Faiola was not

substantially limited. Faiola timely appealed. 

II. Analysis

We review a district court's grant of summary judgment de

novo. Lockridge v. Univ. of Me. Sys., 597 F.3d 464, 469 (1st Cir.

2010). We may affirm a district court's ruling "on any grounds

supported by the record." Carreras v. Sajo, García & Partners, 596

F.3d 25, 36 (1st Cir. 2010) (quoting Estades-Negroni v. Assocs.

Corp. of North Am., 377 F.3d 58, 62 (1st Cir. 2004)). Summary

judgment is appropriate "if there is no genuine issue as to any

material fact and if the moving party is entitled to judgment as a

matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250

(1986). Once the moving party makes a sufficient preliminary

showing that no genuine issue of material fact exists, the

nonmovant must show a factual dispute without relying on

"improbable inferences, conclusory allegations, or rank
For purposes of this lawsuit, analysis under the ADA and 2

Chapter 151B is identical. See, e.g., Sensing v. Outback

Steakhouse of Fla., L.L.C., 575 F.3d 145, 153-54 (1st Cir. 2009)

(noting that federal law construing the ADA should be followed in

interpreting Massachusetts disability law). Although the ADA uses

the term "disability," and Chapter 151B uses the term "handicap,"

the statutory definitions are essentially the same, id., and we use

the term "disability" solely for consistency. 

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speculation." Ingram v. Brink's, Inc., 414 F.3d 222, 228-29 (1st

Cir. 2005). 

Faiola appears to assert two theories of disability

discrimination: (1) she was terminated because of her disabilities,

and (2) APCO failed to provide a reasonable accommodation because

it did not excuse Faiola from flying to and attending the sales

conference. We find that both theories of liability fail because

Faiola did not make the required threshold showing of disability

under the statutory schemes at issue.

To prove disparate treatment under both Title I of the

ADA and Chapter 151B, a plaintiff must first show that: (1) she 2

suffers from a disability as defined by the ADA and Chapter 151B;

(2) she was nevertheless able to perform the essential functions of

her job, with or without reasonable accommodation; and (3) her

employer took an adverse employment action against her because of

her protected disability. See Carroll v. Xerox Corp., 294 F.3d

231, 237 & n.3 (1st Cir. 2002). To make out a reasonable

accommodation claim, a plaintiff must establish the first two

prongs set forth above and also that the employer knew of her
Although we affirm on the ground that Faiola did not 3

establish disability, it appears that Faiola's reasonable

accommodation claim fails also because Faiola never sought an

accommodation. To make out a reasonable accommodation claim, a

plaintiff must show that a proposed accommodation would enable her

to perform the essential functions of her job. Reed, 244 F.3d at

259. An accommodation request must be "direct and specific" and

"linked to some disability." Id. at 261. Here, the record

demonstrates only that Faiola told Ms. Blackwood that she was not

sure if she would "be up" to the conference because of personal

problems. There is no reference to Faiola requesting accommodation

because of her mental and physical ailments, nor is there any

record explanation that the accommodation would help Faiola perform

the essential functions of her job.

The ADA Amendments Act of 2008, which went into effect on 4

January 1, 2009, has since expanded the definition of "disability"

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disability but did not reasonably accommodate it upon a request.

Id. at 237-38; see also Reed v. LePage Bakeries, Inc., 244 F.3d

254, 261 (1st Cir. 2001).3

Faiola sought to prove that she suffered from a

disability by demonstrating a physical or mental impairment that

substantially limited one or more of her major life activities.

Carreras, 596 F.3d at 32. In assessing this standard, we use a

three-part test: (1) whether the plaintiff suffered a mental or

physical impairment, (2) whether the life activity limited by the

impairment qualifies as "major," and (3) whether the impairment

substantially limited the major life activity. Id. The inquiry is

individualized. Id. at 33.

A "substantial limitation" is one that is "permanent or

long-term." Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S.

184, 198 (2002). Pursuant to the ADA regulations, a person must 4
from that laid out in Toyota. Toyota remains the controlling law

here, however, since Faiola brought suit in 2008 and the amendments

are not retroactive. See Thornton v. United Parcel Serv., Inc.,

587 F.3d 27, 34 n.3 (1st Cir. 2009).

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be unable to perform, or significantly restricted in the

performance of, a major life activity that an average person in the

general population can perform. 29 C.F.R. § 1630.2(j)(1); see

Carreras, 596 F.3d at 33. Relevant factors include the nature and

severity of the impairment, its duration or expected duration, and

its actual or expected permanent or long-term impact. 29 C.F.R. §

1630.2(j)(2); see Carroll, 294 F.3d at 239.

Faiola premised her disability discrimination claims on

the fact that flying to and attending the APCO sales conference

would be stressful, and that Dr. Levitan told her to avoid undue

stress. The parties disagree as to what "major life activity"

these claims implicate. On appeal, Faiola characterizes them as

impacting her ability to work, and she asserts that the district

court erred by addressing only "travel" and not "work" as her major

life activity affected. APCO counters that Faiola's claims

asserted at the district court concerned only an inability to

travel by airplane and that any claims related to work are

undeveloped and waived. 

Although we find vague the major life activity or

activities that Faiola pled and argued at the district court, no

matter how the claims are cast, they fail. No record evidence
Accordingly, we need not decide whether Faiola's health 5

conditions constituted "impairments" or whether "work" and "flying"

are "major life activities." 

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exists to demonstrate that Faiola's impairments "substantially

limited" any alleged major life activities.5

To the extent that Faiola's claims rest on her inability

to work, they are unavailing. To determine a substantial

limitation as to work, this court looks to whether the plaintiff

can show that she is significantly restricted in her ability to

perform "a class of jobs" or "a broad range of jobs in various

classes." Carroll, 294 F.3d at 239-40 (citations omitted). An

"inability to perform a single, particular job does not constitute

a substantial limitation in the major life activity of working."

Id. at 240 (quoting 29 C.F.R. § 1630.2(j)(3)(i)).

Here, Faiola's alleged inability to attend the APCO sales

conference does not constitute a substantial limitation as to work.

It was not a restriction relating to the performance of a class of

jobs or broad range of jobs, nor was it even a "single, particular

job" that she was restricted in performing. Moreover, the

supposedly substantial nature of her impairment is undercut by her

ability to perform "all the essential aspects of [her] job," from

managing her sales assistant to handling menial tasks. She was

under no physical or behavioral restrictions, and her treating

healthcare providers explained that she was stable and capable of

engaging in any of life's activities. Although Faiola peppers her
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briefs with her symptoms and diagnoses in an attempt to prove

disability, "[i]t is insufficient for individuals . . . to merely

submit evidence of a medical diagnosis of an impairment" to prove

a substantial limitation. Toyota, 534 U.S. at 198.

To the extent that Faiola's claims rest on her inability

to fly, they also fail. No healthcare provider restricted Faiola's

ability to fly, and Dr. Levitan stated that someone with Faiola's

blood pressure readings would not be at risk on an airplane.

Moreover, Faiola traveled frequently by airplane before the APCO

sales conference at issue, and she has made business trips to

Florida and New Jersey since her termination. 

III. Conclusion

For the foregoing reasons, we affirm the district court's

grant of summary judgment.

So ordered.