Not for Publication in West's Federal Reporter Citation Limited Pursuant to 1st Cir. Loc.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. 03-2168 SYDNEY A. ROSE, Plaintiff, Appellant,

v. FREDERICK LASKEY, as Commissioner of Revenue, Commonwealth of Massachusetts Department of Revenue,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Richard G. Stearns, U.S. District Judge ]
Before Selya, Circuit Judge , Stahl, Senior Circuit Judge , and Lynch, Circuit Judge .
Sydney A. Rose on brief pro se. Matt hew Q. Berge , Assistant Attorney General, and Thomas F. Reilly , Attorney General, on brief for appellee.

September 29, 2004-2-

Per Curiam . We affirm the judgment substantially for the
reasons enumerated by the district court in its opinion dated July 10, 2003, adding only the following comments. First. We decline to consider the non-record "evidence" profferedby plaintiff on appeal. See , e.g. , United States v. Rosario-Peralta , 175 F.3d 48, 56 (1 st Cir. 1999) ("It is elementary that evidence cannot be submitted for the first time on appeal."). Plaintif f's contention that he was deprived of an adequate opportunity to develop the record below is mistaken. Defendant's summaryjudgment motion was filed within the time prescribed by the scheduling ord er, after discovery had closed. And plaintiff neither moved for relief under Fed. R. Civ. P. 56(f) nor voiced any such complaint in his summary judgment opposition. (He sought an extension to file his opposition only because he was "in the proce ss of moving"; no mention was made of difficulties i n obtaining his medical records.) That plaintiff may have been unfami liar with his evidentiary burden at the summary judgment stage provides no basis for appellate relief. See , e.g. , FDIC v. Anchor P roperties , 13 F.3d 27, 31 (1 st Cir. 1994) (noting that litigant's pro se status does not absolve him from compliance with the federal rules). We might add that the outcome of this appeal wouldbe the same even if the newly proffered materials were considered. Second. Plaintiff contends that a genuine issue of material-3-

fact remained as to whether a true threat of violence was involved here. Yet he acknowledges making the reference to the Wakefield tragedyat the end of a heated exchange with his supervisor. Whatever plaintiff's ultimate intention, defendant cannot be faultedfor taking this threat at face value. In analogous contexts, courts have not hesitated to reject claims under the Americans with Disabilities Act. See , e.g. , Sullivan v. River ValleySchool Dist. , 197 F.3d 804, 813 (6 th Cir. 1999) ("threatening other employees disqualifies one from a job") (citat ions and internal quotation marks omitted); Chapa v. Adams , 168 F.3d 1036, 1039 (7 th Cir. 1999) ("people who threaten to kill their supervisors
are not < qualified' for [employment] even if their threats are hollow"). As this court has recently stated: "Put simply, the ADA does not require that an employee whose unacceptable behavior threatens the safety of others be retained, even if the behavior stems from a mental disability. Such an employee is not qualified." Calef v. Gillette Co. , 322 F.3d 75, 87 (1 st Cir. 2003). Such a conclusion is dictated here whether plaintiff is viewed as having the burden of showing he posed no threat to safety in order to establish he was otherwise qualified for the job, see , e.g. , id. at 87 n.10; EEOC v. Amego, Inc. , 110 F.3d 135, 142-44 (1 st Cir. 1997), or whether defendant is viewed as having the burden of establishing a "direct threat" as an affirmative defense under 42 U.S.C. §§ 12111(3), 12113(b) and 29 C.F.R. §§ 1630.2(r),-4-

1630.15(b)(2), see , e.g . , Hutton v. Elf Atochem N.A., Inc. , 273 F.3d884 , 893 & n.5 (9 th Cir. 2001). The case on which plaintif f mainlyrelies in arguing that factual disputes remained, Whitneyv. Bd. of Educ. of Grand County , 292 F.3d 1280, 1286 (10 th Cir. 2002), did not involve threatened violence and is otherwise distinguishable on its facts. Third. Plaintiff likewise asse rts that a trialworthy issue remainedas to whether any such threat could be eliminated through reasonable accommodation. Even if such an inquiry were pertinent in this context, but cf. Calef , 322 F.3d at 87 n.11, it would not avail plaintiff. It was his burden to show, inter alia , that he made a specific request for an acc omm odation that would have enabled him t o perform the essential functions of his job. See , e.g. , Reedv. LePage Bakeries, Inc. , 24 4 F.3d 254, 259, 261 (1 st Cir. 2001). Plaintiff mainly points in this regard to a therapist' s le tter, delivered to defendant after the incident in question (and introduced for the first time on appeal), indicating that he would benefit from a leave of absence of unspecified length. In Criado v. IBM Corp. , 145 F.3d 437, 443-44 (1 st Cir. 1998), we did hold that a leave of a bsence w as a reasonable accommodation for an employee suffering from depression. But no threatening behavior was there involved. And unlike in the case at bar, that employee had "offered evidence tending to show that her leave would be temporary and would allow her physician to design an-5-

effective treatment program." Id. at 444. In turn, the proposal mentionedby plaintiff below–-that he be subjected to regular securityscreening–-not only was untimely but was properly rejected as unreasonable. See , e.g. , Chapa , 168 F.3d at 1039. Fourth. Plaintiff has also failed to sustain his burden of proof on the two remaining elements of his ADA claim: that he was disabledwithin the meaning of the Act; and that he was discharged
as a result thereof. See , e.g. , C riado , 145 F.3d at 441. "This circuit has recognized depression as a mental impairment that may constitute, at least in some circumstances, a di sability under federal law." Calero-Cerezo v. U.S. Dep't of Justice , 355 F.3d6, 20 (1 st Cir. 2004). Yet the evidence submi tte d below failed to substantiate such a diagnosis. And even when the appellate filings
are considered, plaintiff has not shown that a major life activity
was substantially limited. See , e.g. , Calef , 322 F.3d at 83-86 (discussing this requirement). His main complaint in this regard is about suffering unspecified side-effects from his medication and needing to take sick and vacation leave. Bythe same token, there is no genuine dispute about the fact that plaintiff was discharged because of his unacceptable behavior rather than because of any mental impairment. See , e.g. , id. at 87 (noting that e mplo yee "whose unacceptable behavior threatens the safetyof others" need not be retained "even if the behavior stems froma mental disability"); Hamilton v. Southwestern Bell Tel. Co. ,-6-

136 F.3 d 1047, 1052 (5 th Cir. 1998) ("The cause of Hamilton' s discharge was not discrimination based on [his mental impairment] but was rather his failure to recognize the acceptable limits of behavior in a workplace environment."); Palmer v. Circuit Court of Cook County , 117 F.3d 351, 352 (7 th Cir. 1997) (similar). Fifth. We decline to address plaintiff's First Amendment and due process arguments as they were not properly raised below. Affirmed.