Not for Publication in West's Federal Reporter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. 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.

Matthew Q. Berge, Assistant Attorney General, and Thomas F.

Reilly, Attorney General, on brief for appellee.

September 29, 2004
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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"

proffered by plaintiff on appeal. See, e.g., United States v.

Rosario-Peralta, 175 F.3d 48, 56 (1st Cir. 1999) ("It is elementary

that evidence cannot be submitted for the first time on appeal.").

Plaintiff's contention that he was deprived of an adequate

opportunity to develop the record below is mistaken. Defendant's

summary judgment motion was filed within the time prescribed by the

scheduling order, 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

process of moving"; no mention was made of difficulties in

obtaining his medical records.) That plaintiff may have been

unfamiliar with his evidentiary burden at the summary judgment

stage provides no basis for appellate relief. See, e.g., FDIC v.

Anchor Properties, 13 F.3d 27, 31 (1st 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

would be the same even if the newly proffered materials were

considered. 

Second. Plaintiff contends that a genuine issue of material
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fact remained as to whether a true threat of violence was involved

here. Yet he acknowledges making the reference to the Wakefield

tragedy at the end of a heated exchange with his supervisor.

Whatever plaintiff's ultimate intention, defendant cannot be

faulted for 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

Valley School Dist., 197 F.3d 804, 813 (6th Cir. 1999) ("threatening

other employees disqualifies one from a job") (citations and

internal quotation marks omitted); Chapa v. Adams, 168 F.3d 1036,

1039 (7th 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 (1st 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 (1st 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),
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1630.15(b)(2), see, e.g., Hutton v. Elf Atochem N.A., Inc., 273

F.3d 884, 893 & n.5 (9th Cir. 2001). The case on which plaintiff

mainly relies in arguing that factual disputes remained, Whitney v.

Bd. of Educ. of Grand County, 292 F.3d 1280, 1286 (10th Cir. 2002),

did not involve threatened violence and is otherwise

distinguishable on its facts. 

Third. Plaintiff likewise asserts that a trialworthy issue

remained as 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 accommodation that would have

enabled him to perform the essential functions of his job. See,

e.g., Reed v. LePage Bakeries, Inc., 244 F.3d 254, 259, 261 (1st

Cir. 2001). Plaintiff mainly points in this regard to a

therapist's letter, 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 (1st Cir.

1998), we did hold that a leave of absence was 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
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effective treatment program." Id. at 444. In turn, the proposal

mentioned by plaintiff below–-that he be subjected to regular

security screening–-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

disabled within the meaning of the Act; and that he was discharged

as a result thereof. See, e.g., Criado, 145 F.3d at 441. "This

circuit has recognized depression as a mental impairment that may

constitute, at least in some circumstances, a disability under

federal law." Calero-Cerezo v. U.S. Dep't of Justice, 355 F.3d 6,

20 (1st Cir. 2004). Yet the evidence submitted 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. 

By the 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 employee "whose unacceptable behavior threatens the

safety of others" need not be retained "even if the behavior stems

from a mental disability"); Hamilton v. Southwestern Bell Tel. Co.,
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136 F.3d 1047, 1052 (5th 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 (7th Cir. 1997) (similar). 

Fifth. We decline to address plaintiff's First Amendment and

due process arguments as they were not properly raised below. 

Affirmed.