Not For Publication in West's Federal Reporter Citation Limited Pursuant to 1st Cir. Loc. R. 32.3 

# United Stat es Court of Appeals

For the First C ircuit

No. 04-1096 DIANNE MARLON, Plaintiff, Appellant,

v. WESTERN NEW ENGLAND COLLEGE, Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Douglas P. Woodlock, U.S. District Judge ]

Before Boudin, Chief Judge , Torruella and Howard, Circuit Judges .

Dianne Marlon on brief pro se. Cheryl I. Smith on brief for appellee.

January 11, 2005-2- Per Curiam . Former law school student, plaintiffappellant Dianne Marlon, appeals from the district court's grant of summary judgment in favor of defendant-appellee Western New England College ("Coll ege" ), in her action alleging failure to provide reasonable accommodation under the Americans with Disabilties Act (ADA), 42 U.S.C. § 12101 et seq., the Rehabilitation Act of 1973, 29 U.S.C. § 794, andthe Massachusetts Equal Rights Act, Mass. Gen. Laws ch. 93, § 103.

Appellant seeks relief pursuant to Fed.R.Civ.P. 60(b), on the grounds of newly discovere d evid ence and errors by her attorney. However, those claims have not been presented to the district court and cannot be raised for the first ti me i n this court. See Tiller v. Bag hdady , 294 F.3d 277, 280 n.3 (1 st Cir. 2002). "New evidence is not to be proffered for the first time on appeal." In re Colonial Mortgage Bankers Corp. , 186 F.3d 46, 51 (1 st Cir. 1999). And, "[w]e have re peatedly h eld that 'the acts and omissions of counsel are customarily visited upon the client in a civil case.'" Hoult v. Hoult , 57 F.3d 1, 5 n.3 (1 st Cir. 1995).

Marlo n 's remaining claims are that the district court erred in determining 1)that she was neither substantially limited by her impairments in the major life activities of learning and working, nor so regarded by the defendant, and therefore not coveredunder the ADA and the Rehabilitation Act, and 2) that Marlon h ad aba ndoned her claim that carpal tunnel syndrome (CTS)-3-

substantially limited her major life act ivit ies of working and learning.As challenges to the district cour t's grant of summary ju dgme nt, the claims are reviewed de novo. Gelabert-Ladenheimv. American Airlines , 252 F.3d 54, 58 (1 st Cir. 2001). "In ass aying the record, we are guided by the same tenets that guided the lower court. Thus we are duty bound to indulge all reasonable inferences in favor of the party opposing summary judgment. This generous outlook notwithstanding, we mus t disregard improbable or overly attenuatedinferences, unsupported conclusions, and rank speculation." Abbott v. Bragdon , 107 F.3d 934, 938 (1 st Cir. 1997), vacated in part on other grounds , 524 U.S. 624 (1998).

Having carefully review ed the record and briefs and consideredthe parties' arguments, we conclude for essentially the reasons articulated by the district court, that Marlon has failed to raise a material issue of fact that she was disabled under the relevant statutes. With respect to her suggestion that the College "regarded her" as disabled under subsection (C) of § 12102(2) of the ADA, the only evidence that Marlon provided was that the College provided her with certain accommodations for her condition. That is insufficient evidence to create a triable issue on whether the College regarded her as disabled. See Thorton v. McClatchy Newspapers, Inc. , 261 F.3d 789, 798 (9 th Cir. 20 01). Ma rlon p resent edno evidence that the College maintained any-4-

"misperceptions" about her condition. See Mahon v. Crowell , 295 F.3d585, 592 (6 th Cir. 2002) (upholding summary judgment on ground that plaintiff not regarded as disabled under the ADA where plaintiff "has not shown that [the employer] held any mistaken belief about him" ).

Marlon argues that the district court erroneously concludedfrom the transcript of the summary judgment hearing before Judge Freedman that plaintiff had "abandoned" the argument that her CTS limited a major life activity. See Appellant's Brief, p. 23. The transc ribed exchange between plaintiff's counsel and Judge Freedman supports the distri ct c ourt's conclusion that the claimwas abandoned. See Sheehan v. Marr , 207 F.3d 35, 42 (1 st Cir. 2000). Plaintiff's counsel stated that "our case is not carpal tunnel syndrome" and that "[c]arpal tunnel syndr ome may be a disability if it substantially impairs. We don't believe that was the problem here."

Even if the claimhad not been abandoned, however, Marlon has not raised a material issue of fact that CTS substantially limitedher ability to learn or work. The evidence on which appellant relies does not support a finding that, with a college degree and fifteen years of experience as a paralegal, Marlon would be di squali fied from a broad range of jobs or otherwise substantially limited in her ability to work, when compared to the-5-

average person in the general population, because of her physical limitations.

To fill the evidentiary gap, Marlon relies upon the "n ewl y discovered evidence." Even if that evidence could be considered, however, the Certificate of Eligibility states that her CTS "is not a barrier to employment at this time as she has already purchasedvarious equi pmen t to assist in removing any barriers [that CTS] may have presen ted. " Appellant's Appendix, Exhibit A. The "ADA's coverage is restricted to only those whose impairments

are not mitigated by corrective measures." Sutton v. Uni ted Air Lines, Inc. , 527 U.S. 471, 487 (1999).

Basedupon our de novo review of the record, we also agree with the distr ict co urt that Marlon has not produced evidence that her CTS substantially limited her ability to learn.

The district court's judgment granting defendant's motion for summary judgment is affirmed .