Not For Publication in West's Federal Reporter

Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

United States Court of Appeals

For the First Circuit

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
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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 ("College"), 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, and the 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 discovered evidence and errors by her

attorney. However, those claims have not been presented to the

district court and cannot be raised for the first time in this

court. See Tiller v. Baghdady, 294 F.3d 277, 280 n.3 (1st 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 (1st

Cir. 1999). And, "[w]e have repeatedly held 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 (1st Cir. 1995).

Marlon'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

covered under the ADA and the Rehabilitation Act, and 2) that

Marlon had abandoned her claim that carpal tunnel syndrome (CTS)
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substantially limited her major life activities of working and

learning. 

As challenges to the district court's grant of summary

judgment, the claims are reviewed de novo. Gelabert-Ladenheim v.

American Airlines, 252 F.3d 54, 58 (1st Cir. 2001). "In assaying

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 must disregard improbable or overly

attenuated inferences, unsupported conclusions, and rank

speculation." Abbott v. Bragdon, 107 F.3d 934, 938 (1st Cir. 1997),

vacated in part on other grounds, 524 U.S. 624 (1998).

Having carefully reviewed the record and briefs and

considered the 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 (9th Cir. 2001). Marlon

presented no evidence that the College maintained any
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"misperceptions" about her condition. See Mahon v. Crowell, 295

F.3d 585, 592 (6th 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

concluded from 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 transcribed exchange between plaintiff's counsel and

Judge Freedman supports the district court's conclusion that the

claim was abandoned. See Sheehan v. Marr, 207 F.3d 35, 42 (1st Cir.

2000). Plaintiff's counsel stated that "our case is not carpal

tunnel syndrome" and that "[c]arpal tunnel syndrome may be a

disability if it substantially impairs. We don't believe that was

the problem here."

Even if the claim had not been abandoned, however, Marlon

has not raised a material issue of fact that CTS substantially

limited her 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 disqualified from a broad range of jobs or otherwise

substantially limited in her ability to work, when compared to the
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average person in the general population, because of her physical

limitations. 

To fill the evidentiary gap, Marlon relies upon the

"newly 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

purchased various equipment to assist in removing any barriers

[that CTS] may have presented." Appellant's Appendix, Exhibit A.

The "ADA's coverage is restricted to only those whose impairments

are not mitigated by corrective measures." Sutton v. United Air

Lines, Inc., 527 U.S. 471, 487 (1999).

Based upon our de novo review of the record, we also

agree with the district court 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.