United States Court of Appeals 

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 10, 2009 Decided July 21, 2009 

No. 08-7002 

FLOYD E. LYTES, 

APPELLANT

v. 

DC WATER AND SEWER AUTHORITY, 

APPELLEE

Appeal from the United States District Court 

for the District of Columbia 

(No. 05cv00402) 

Jeannine M. Kenney, Student Counsel, argued the cause 

as amicus curiae in support of appellant. With her on the 

briefs were Steven H. Goldblatt, appointed by the court, 

Charlotte Garden, Supervising Attorney, and Daniel R. 

Kahan, Student Counsel. 

Floyd E. Lytes, pro se, was on the brief for appellant. 

Lesley A. Pate argued the cause for appellee. With her 

on the brief were Robert G. Ames and Trevor S. Blake.

Before: GINSBURG, TATEL, and BROWN, Circuit Judges. 

 Opinion for the Court filed by Circuit Judge GINSBURG. 
2 

 GINSBURG, Circuit Judge: Floyd E. Lytes sued his 

former employer, the District of Columbia Water and Sewer 

Authority, a/k/a WASA, alleging it refused to accommodate 

his disability and then terminated his employment, in 

violation of the Americans with Disabilities Act of 1990 

(ADA). The district court granted summary judgment to the 

Authority because it concluded no reasonable jury could find 

Lytes was disabled when the alleged discrimination occurred. 

While Lytes’s appeal was pending, the ADA Amendments 

Act of 2008 became law. We hold the Amendments do not 

apply retroactively and, applying the pre-Amendments ADA, 

affirm the judgment of the district court because, based upon 

record evidence, no reasonable jury could find Lytes was 

disabled when he was refused accommodation and 

discharged. 

I. Background 

 The pre-Amendments ADA protected a “qualified 

individual with a disability” from discrimination in the 

“terms, conditions, and privileges of employment,” 42 U.S.C. 

§ 12112(a) (2000), including an employer’s refusal to 

“mak[e] reasonable accommodations” for an individual’s 

disability, id. § 12112(b)(5)(A). As relevant here, an 

individual was disabled if he had “a physical or mental 

impairment that substantially limit[ed] [him in] one or more 

... major life activities [MLAs],” i.e., was actually disabled, or 

if he was “regarded as having such an impairment.” Id. § 

12102(2)(A) & (C). 

 In May 2000, Lytes, a plant operator, injured his back 

while at work. He was diagnosed with chronic degenerative 

disc disease and underwent corrective surgery. Lytes stopped 

working around December 2000, at which time he began 
3 

receiving workers’ compensation. Two months later he had a 

heart attack and underwent angioplasty, followed in June 

2002 by spinal fusion surgery designed to relieve pain in his 

back and legs. 

 A physician who twice examined Lytes at the request of 

the Authority’s workers’ compensation insurance carrier 

disagreed with Lytes’s orthopedic surgeon, Dr. James Tozzi, 

regarding Lytes’s physical capabilities. Accordingly, the 

WASA asked Dr. Tozzi to authorize a functional capacity 

evaluation (FCE). The FCE was done in February 2003 and 

indicated Lytes had “mild restricted standing and walking 

tolerances” and limitations in “squatting, bending, ladder 

climbing, and overhead reaching.” These functional deficits 

placed Lytes “at the sedentary-light physical demand level 

with ... a workplace tolerance of 8 hours.” 

 Dr. Tozzi noted progressive improvement in Lytes’s 

condition after the FCE. In September 2003 he upgraded 

Lytes to light duty with limitations imposed “primarily to 

avoid recurrent injury” to Lytes’s spine. The next day Lytes 

met with the Authority’s risk manager, who told him light 

duty was unavailable and encouraged him to continue to 

collect workers’ compensation, which he did. 

 In a December 2003 letter the WASA informed Lytes he 

was medically disqualified from returning as a plant operator 

and had 60 days to find a suitable position at the Authority. 

When Lytes was unable to do so, the WASA terminated his 

employment in a March 2004 letter. Lytes filed a charge of 

disability discrimination, which the Equal Employment 

Opportunity Commission dismissed. Thereafter Lytes, who 

was then represented by counsel, sued the Authority, claiming 

violations of the ADA, several other statutes, and the 

WASA’s collective bargaining agreement, and requested 
4 

retrospective relief, including compensatory damages and 

back pay. 

 Only Lytes’s ADA claim is at issue in this appeal. In the 

district court the Authority moved for summary judgment on 

that claim, arguing no reasonable jury could find Lytes was 

disabled when he was refused accommodation and 

discharged. Lytes focused his response upon the argument 

that the Authority’s risk manager perceived him to be 

disabled, but also alleged, without pointing to any evidence in 

the record, he was actually disabled because of restrictions on 

bending, “carry[ing] heavy weights,” reaching and twisting, 

and mowing the lawn “for long periods.” The district court 

rejected Lytes’s “‘perceived disability’ theory” and held the 

work restriction and limitations on household chores could 

not support a finding that Lytes was actually disabled. See 

527 F. Supp. 2d 52, 59–62 (2007). 

 Lytes appealed pro se. This court appointed Steven H. 

Goldblatt, Director of the Appellate Litigation Program at 

Georgetown University Law Center, as amicus curiae to 

support his position, and Lytes filed a letter stating he would 

rely upon the submissions of the amicus. 

 On September 25, 2008 the Congress enacted the ADA 

Amendments Act of 2008 (ADAA) in order to “reinstat[e] a 

broad scope of protection” under the ADA and to “reject” the 

holdings in Toyota Motor Mfg., Ky. v. Williams, 534 U.S. 184 

(2002), and Sutton v. United Air Lines, 527 U.S. 471 (1999). 

ADAA § 2(b), Pub. L. No. 110-325, 122 Stat. 3553, 3554. 

The Congress delayed the effective date of the ADAA to 

January 1, 2009. Id. § 8, 122 Stat. at 3559. 
5 

 II. Analysis 

 Citing the ADAA, the amicus challenges only the district 

court’s holding Lytes was not actually disabled. We review 

the judgment of the district court de novo, see Taylor v. Small, 

350 F.3d 1286, 1290 (D.C. Cir. 2003), but consider first 

whether, as the amicus maintains, the ADAA applies 

retroactively. 

A. Retroactivity 

 In Landgraf v. USI Film Products, 511 U.S. 244, 280 

(1994), the Supreme Court reaffirmed the judicial 

presumption against applying a statute that “would impair 

rights a party possessed when he acted, increase a party’s 

liability for past conduct, or impose new duties with respect 

to [completed] transactions.” Landgraf and its sequelae 

prescribe a process for determining whether a statute applies 

to past conduct. We first look for an “express command” 

regarding the temporal reach of the statute, id., or, “in the 

absence of language as helpful as that,” determine whether a 

“comparably firm conclusion” can be reached upon the basis 

of the “normal rules of [statutory] construction.” FernandezVargas v. Gonzales, 548 U.S. 30, 37 (2006) (quoting Lindh v. 

Murphy, 521 U.S. 320, 326 (1997)). If we cannot reach a 

firm conclusion, then we turn to judicial default rules, asking 

whether applying the statute “would have a retroactive 

consequence in the disfavored sense of ‘affecting substantive 

rights, liabilities, or duties [on the basis of] conduct arising 

before [its] enactment.’” Id. (quoting Landgraf, 511 U.S. at 

278). If applying the statute would have such a disfavored 

effect, then we do not apply it absent clear evidence in the 

legislative history that the Congress intended retroactive 

application. See Landgraf, 511 U.S. at 280; Summers v. U.S. 

Dep’t of Justice, No. 07-5315, 2009 WL 1812760, at *3 (D.C. 
6 

Cir. June 26, 2009); Koch v. SEC, 177 F.3d 784, 786 n.3 (9th 

Cir. 1999). 

 The amicus does not argue the Congress clearly 

answered the retroactivity question. Instead, he contends the 

Congress left to the courts the task of distinguishing between 

provisions of the ADAA that “alter settled law,” and therefore 

are subject to the presumption against retroactivity, and those 

that merely clarify the law and therefore guide our 

interpretation of the ADA. See Cookeville Reg’l Med. Ctr. v. 

Leavitt, 531 F.3d 844, 849 (D.C. Cir. 2008); see also Red 

Lion Broad. Co. v. FCC, 395 U.S. 367, 380–81 (1969). Chief 

among the clarifying provisions, he argues, is § 4 of the 

ADAA, which newly designates lifting, bending, and working 

as MLAs and directs us to construe the ADA “in favor of 

broad coverage of individuals.” 122 Stat. at 3555 (“major life 

activities include, but are not limited to, ... lifting, bending, ... 

and working”). 

The Authority argues the Congress, by delaying the 

effective date of the statute, mandated purely prospective 

application of the ADAA. See id. § 8, 122 Stat. at 3559 

(“This Act and the amendments made by this Act shall 

become effective on January 1, 2009”). In the alternative the 

Authority argues the presumption against retroactivity applies 

because the ADAA changed settled law by repudiating what 

the Supreme Court described in Toyota as the “demanding 

standard for qualifying as disabled.” 534 U.S. at 197; see 

ADAA § 2(b)(4), 122 Stat. at 3554 (stating one purpose of 

ADAA is to overrule Toyota); id. § 4(a), 122 Stat. at 3555 

(directing courts to interpret the phrase “‘substantially limits’ 

... consistently with the findings and purposes of the 

[ADAA]”). 
7 

 We agree with the Authority’s principal point: By 

delaying the effective date of the ADAA, the Congress clearly 

indicated the statute would apply only from January 1, 2009 

forward. If the Congress intended merely to “clarify” the 

ADA, then its decision to delay the effective date would make 

no sense; it would needlessly have left the ADA unclear for 

the more than three months between enactment of the ADAA 

on September 25, 2008 and its going into effect on January 1, 

2009. Nothing on the face of the statute indicates the 

Congress intended this peculiar scenario. If, in contrast, the 

Congress intended the Amendments to have a purely 

prospective effect, then its decision to delay the effective date 

of the ADAA makes sense. Indeed, we can imagine no 

reason for the Congress to have delayed the effective date 

other than to give fair warning of the Amendments to affected 

parties and to protect settled expectations. That is why the 

Congress delayed the effective date of the Pregnancy 

Discrimination Act (PDA) with respect “to certain benefit 

programs” at the same time it overruled General Electric Co. 

v. Gilbert, 429 U.S. 125 (1976), in which the Court had held 

Title VII of the Civil Rights Act of 1964 permitted an 

employer to exclude pregnant employees from coverage 

under a disability benefit plan. See AT&T Corp. v. Hulteen, 

129 S.Ct. 1962, 1967, 1971 (2009). Looking to the effective 

date and to the legislative history, the Supreme Court 

concluded the Congress had used “the language of 

prospective intent” in enacting the PDA. Id. at 1971–72. The 

ADAA, which similarly contains a delayed effective date, 

similarly indicates the Congress’s prospective intent. 

 Without drawing our attention to any particular case, the 

amicus contended at oral argument that precedent precludes 

ending the inquiry at the first step of the Landgraf analysis. 

Having surveyed the decisions of the Supreme Court, we see 

that, although the Congress’s decision to delay the effective 
8 

date of a statute generally indicates it intends prospective only 

effect, when an alternative and time-neutral explanation of the 

delay appears on the face of the statute, a court indeed must 

proceed to the second step, as the Supreme Court has twice 

done when determining the temporal reach of provisions of 

the Illegal Immigration Reform and Immigrant Responsibility 

Act of 1996 (IRA). See Fernandez-Vargas, 548 U.S. at 42–

45; INS v. St. Cyr, 533 U.S. 289, 317–20 (2001). In § 309(a) 

of the IRA the Congress delayed the effective date of Title 

III-A, while in § 309(b) it expressly linked that delay to a 

deadline for the Attorney General to promulgate new 

regulations. Pub. L. No. 104-208, div. C, 110 Stat. 3009-546, 

3009-625 (“Attorney General shall first promulgate 

regulations to carry out this subtitle by not later than 30 days 

before the title III-A effective date”). Thus, § 309 on its face 

indicated the Congress delayed the effective date in order “to 

allow the Attorney General to prepare for the substantial 

changes caused by the [IRA] and to promulgate regulations.” 

Fernandez-Vargas, 548 U.S. at 51 n.4 (Stevens, J., 

dissenting). Because it is plausible that the Congress might 

decide to give an agency time to promulgate regulations but 

nonetheless intend that the statute and its implementing 

regulations be applied retroactively, § 309(b) provides a timeneutral explanation for the delayed effective date in § 309(a) 

of the IRA. In the ADAA, by contrast, the Congress 

“express[ed its] expectation” that the EEOC would revise its 

regulation, § 2(b)(6), 122 Stat. at 3554, but did not indicate it 

was delaying the effective date in order to allow time for the 

agency to do so. In short, the delayed effective date in the 

ADAA, unlike that in the IRA, admits of only one 

explanation: The Congress intended the statute to have 

prospective only effect. 

 A statute also may be ambiguous if, notwithstanding a 

delayed effective date, it has a provision that seems to call for 
9 

its retroactive application. See Princz v. Fed. Republic of 

Germany, 26 F.3d 1166, 1178 (D.C. Cir. 1994) (Wald, J., 

dissenting) (so concluding with respect to Foreign Sovereign 

Immunities Act (FSIA)); cf. Republic of Austria v. Altmann, 

541 U.S. 677, 697–98 (2004) (preamble to FSIA suggests 

retroactive application). In this regard, we note the Congress 

titled the ADAA “An Act [t]o restore the intent and 

protections of the [ADA]” and undertook generally to 

“reinstat[e] a broad scope of protection,” § 2(b)(1), 122 Stat. 

at 3554, but those indicia of purpose are actually time-neutral, 

and do not countermand the clear indication of intent inherent 

in the deferred effective date. As the Supreme Court noted in 

Rivers v. Roadway Express, Inc., 511 U.S. 298, 305, 311 

(1994), a “restorative purpose may be relevant” to the 

retroactivity question but the choice to overrule a judicial 

decision “is quite distinct” from the choice to do so 

retroactively. In sum, when the Congress has delayed the 

effective date of a substantive statute that could in principle 

be applied to conduct completed before its enactment, we 

presume the statute applies only prospectively. 

 Even if the delayed effective date were not dispositive in 

this case, the ADAA would be subject to the presumption 

against retroactivity. In repudiating the rule of construction 

described in Toyota and adding to the ADA a list of 

illustrative MLAs, ADAA § 4(a), 122 Stat. at 3555 (“The 

definition of disability in this Act shall be construed in favor 

of broad coverage of individuals”), the Congress broadened 

the class of employees entitled to reasonable accommodation. 

See id. § 2(a)(5) & (b)(1), 122 Stat. at 3553, 3554. To hold 

the Authority’s refusal to accommodate Lytes was unlawful 

under the new, broader ADAA but not under the preAmendments ADA, therefore, would be to give the ADAA 

the disfavored retroactive effect. See Landgraf, 511 U.S. at 

280. The amicus has not pointed to any clear indication in 
10 

either the ADAA or its legislative history that the Congress 

intended the Amendments to have that effect. We therefore 

hold the ADAA does not govern Lytes’s suit for retrospective 

damages, as have the other courts that have considered the 

question. See EEOC v. Agro Distribution, LLC, 555 F.3d 

462, 470 n.8 (5th Cir. 2009) (ADAA does not apply 

retroactively (citing Rivers, 511 U.S. at 313)); Moran v. 

Premier Educ. Group, LP, 599 F. Supp. 2d 263, 271–72 (D. 

Conn. 2009) (collecting cases holding ADAA does not apply 

retroactively). 

B. Merits 

 Under the law prior to its amendment, we observed that 

the “ADA promotes equal opportunity for the disabled, but 

only after [the] ... ‘demanding standard’ [of Toyota] is met.” 

Singh v. George Washington Univ. Sch. of Med. & Health 

Scis., 508 F.3d 1097, 1102 (D.C. Cir. 2007). Lytes’s burden 

under that standard is to show he suffered from an impairment 

that substantially limited him in an MLA when the Authority 

allegedly discriminated against him. See 42 U.S.C. § 

12102(2)(A) (2000); Haynes v. Williams, 392 F.3d 478, 481–

82 (D.C. Cir. 2004); Kocsis v. Multi-Care Mgmt., 97 F.3d 

876, 884 (6th Cir. 1996) (employee must be disabled when 

discrimination occurred). 

 There is no dispute that Lytes had a physical impairment 

at the relevant time. The amicus maintains Lytes’s condition 

substantially limited him in the already-recognized MLA of 

performing manual tasks, see Toyota, 534 U.S. at 201–02, and 

in lifting, bending, and working, which the amicus urges us to 

hold are MLAs within the meaning of the pre-Amendments 

ADA. The Authority argues Lytes has forfeited those 

arguments (except with respect to bending) because he did 

not raise them in the district court. Lytes’s allegations 
11 

regarding actual disability were contained in a single 

paragraph: 

Careful daily living is to ensure there will be no further 

damage to his back area. The pain is there but it is 

manageable. However, the restrictions in not being able 

to bend consistently, carry heavy weights, reach or twist 

not only applies to any work restrictions, but also 

restriction on life chores. He can not or should not mow 

the lawn for long periods, no squatting or bending to 

repair any pipes at home. He has become adapt in getting 

dressed so as not bend. He has attempted to improve his 

condition by daily walks, and drives but not long 

distances. 

Even assuming these unadorned allegations were sufficient to 

preserve the amicus’s arguments, we may still affirm the 

judgment of the district court. See Tax Analysts v. IRS, 495 

F.3d 676, 680 (D.C. Cir. 2007) (court may assume argument 

is preserved when doing so does not alter outcome). 

 Upon that assumption, the amicus still must show, as he 

acknowledges, that Lytes was substantially limited, when 

compared to an average person, because his condition either 

prevented him from or significantly restricted him in lifting, 

bending, performing manual tasks, or working. See Toyota, 

534 U.S. at 195–97; Desmond v. Mukasey, 530 F.3d 944, 955 

(D.C. Cir. 2008) (noting court has “held that plaintiffs must 

show that their limitation was substantial ‘as compared to the 

average person in the general population’”). We consider the 

“nature and severity,” the “duration or expected duration,” 

and the “permanent long term impact, or the expected 

permanent or long term impact of” Lytes’s impairment. 

Desmond, 530 F.3d at 956. 
12 

 In opposing the Authority’s motion for summary 

judgment, Lytes alleged only that he was “restrict[ed] in not 

being able to bend consistently, carry heavy weights, reach or 

twist.” The amicus goes beyond that allegation and points to 

record evidence that he argues creates a triable issue. The 

Authority argues Lytes’s failure to point the district court to 

any evidence is fatal to the amicus’s argument on appeal. See 

Potter v. District of Columbia, 558 F.3d 542, 550 (D.C. Cir. 

2009) (district court is not “obliged to sift through” record for 

genuine issue of material fact in dispute). 

 Under Rule 56 of the Federal Rules of Civil Procedure, 

the Authority had “the initial responsibility of informing the 

district court of the basis for its motion, and identifying those 

portions” of the record it “believe[d] demonstrate[d] the 

absence of a genuine issue of material fact.” Celotex Corp. v. 

Catrett, 477 U.S. 317, 323 (1986). Because the Authority 

clearly did so, Rule 56 required Lytes, who would have had 

the burden of proof at trial, to respond with “specific facts 

showing a genuine issue for trial.” FED. R. CIV. P. 56(e); see 

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256–57 

(1986). Therefore, Lytes should have “designat[ed] and 

referenc[ed] triable facts” accompanied by “appropriate 

references to the record before the District Court.” Frito-Lay, 

Inc. v. Willoughby, 863 F.2d 1029, 1034 (D.C. Cir. 1988). 

This he failed utterly to do. 

 Although we have cautioned that “treating an issue as 

conceded for failure to respond fully to a motion for summary 

judgment ‘should only be applied to egregious conduct,’” 

Burke v. Gould, 286 F.3d 513, 518 (2002), Lytes’s conduct 

meets that standard. He described his disability — which he 

alleged resulted from general restrictions upon “work” and 

“life chores” — in a single paragraph without any reference to 

record evidence supporting his description, presented a 
13 

“counter-statement of material facts” that failed to discuss his 

functional capacity at the time of the alleged discrimination, 

and even controverted the two pieces of evidence the amicus

would now have us deem decisive. 

 The amicus relies primarily upon the results of the 

February 2003 FCE and secondarily upon Lytes’s deposition, 

in which he asserted he could not, in September 2003, 

shower, put on his shoes, or use the toilet “without 

assistance.” In the district court, however, Lytes impugned 

the FCE by (1) alleging he “continued to improve” between 

February 2003 and September 2003, when he was refused 

accommodation; (2) arguing “the use of the FCE is extremely 

suspect”; and (3) questioning whether it would be admissible 

at trial. Although the amicus strives to deny Lytes repudiated 

the FCE in the district court, it is clear Lytes did just that, 

which exceeds the default of the nonmovant in Burke. See id.

at 516. The amicus may not now reverse course on Lytes’s 

behalf. Cf. United States v. Ginyard, 215 F.3d 83, 88 (D.C. 

Cir. 2000) (defendant may not complain on appeal about error 

he invited in district court). Lytes also controverted his own 

deposition by alleging in his opposition to summary judgment 

that by April 2001 he “felt he had recuperated” from 

previously debilitating pain that had interfered with his ability 

to bathe, cook, and clean, whereas in his deposition he had 

claimed he told the WASA’s risk manager he needed help in 

September 2003 when bathing, using the toilet, and putting on 

his shoes. We will not allow Lytes to “sandbag” the district 

court by considering evidence Lytes not only failed to cite but 

indeed contradicted. See USAir, Inc. v. U.S. Dep’t of Transp., 

969 F.2d 1256, 1260 (D.C. Cir. 1992). 

 Therefore, like the district court we consider only the 

evidence of Lytes’s condition available when the Authority 

refused to return him to light duty and terminated his 
14 

employment in March 2004. See 527 F. Supp. 2d at 60–61. 

In September 2003 Dr. Tozzi had found Lytes could perform 

light duty, which permitted him to lift up to 10 to 20 pounds 

occasionally and to do “some bending.” Although Lytes 

reported “ongoing discomfort in [his] back” and occasional 

tingling in his legs, he could perform “lateral bending of 20 

[degrees] without much in the way of pain other than 

tightness” and could walk without limping. By December 

2003 Dr. Tozzi found Lytes “had no significant limitation” 

due to back pain, and in January 2004 he opined that Lytes’s 

“impairment [was] not great when rated based upon 

neurological deficit, sensory impairment, pain, and stiffness” 

and that Lytes had “limited, but acceptable and functional 

motion of the spine.” 

 

 Under the “demanding standard” of Toyota, 534 U.S. at 

197, it is clear upon these facts that summary judgment was 

appropriate. The contemporaneous evidence of Lytes’s 

impairment creates no triable issue as to whether he had a 

substantial limitation with respect to lifting. See Colwell v. 

Suffolk County Police Dep’t, 158 F.3d 635, 644 (2d Cir. 

1998) (10 to 20 pound limitation does not create triable 

issue); see also Marinelli v. City of Erie, 216 F.3d 354, 363–

64 (3d Cir. 2000) (10 pound limitation does not create triable 

issue); cf. Duncan v. Wash. Metro. Area Transit Auth., 240 

F.3d 1110, 1116 (D.C. Cir. 2001) (citing approvingly 

Williams v. Channel Master Satellite Sys., 101 F.3d 346, 349 

(4th Cir. 1996) (25 pound limitation does not create triable 

issue)). Nor could a reasonable jury find Lytes suffered a 

severe long-term limitation in bending when compared to an 

average person. See Colwell, 158 F.3d at 644 (testimony that 

plaintiff cannot “bend over ‘for long periods’” too vague to 

create triable issue). With respect to performing manual 

tasks, Lytes admitted he had improved from the time when he 

“was unable to perform every day tasks.” The evidence of his 
15 

 

minimal physical limitations in late 2003 and early 2004 does 

not in any way indicate Lytes’s impairment “prevent[ed] or 

severely restrict[ed him] from doing activities that are of 

central importance to most people’s daily lives.” Toyota, 534 

U.S. at 198; see Holt v. Grand Lake Mental Health Ctr., 443 

F.3d 762, 766 (10th Cir. 2006). Lytes’s limitations, even 

when considered together as the amicus urges, are simply too 

insubstantial to preclude summary judgment on his claim to 

have been substantially impaired in an MLA. 

Finally, with respect to working, in its motion for 

summary judgment the Authority cited Duncan, 240 F.3d at 

1114–15 (assuming working is MLA and holding employee is 

disabled from working if he is precluded from “‘substantial 

class’ or ‘broad range’ of jobs otherwise available to him”), 

and pointed to evidence showing Lytes was not “preclude[d] 

... from all work.” Because Lytes failed to respond with 

evidence indicating the range of jobs available to him, much 

less argue that range was narrow because of his impairment, 

summary judgment was appropriate with respect to working.*

III. Conclusion 

 By enacting the ADAA, the Congress broadened the 

class of persons entitled to protection under the ADA. 

Because the Congress delayed the effective date of the 

ADAA, we presume, in the absence of any legislative 

indication to the contrary, that it does not apply 

retrospectively to Lytes’s case. Applying the pre-

*

 We need not and therefore do not resolve the parties’ disputes 

over the timeliness of Lytes’s EEOC charge, see Zipes v. Trans 

World Airlines, 455 U.S. 385, 393 (1982), and over Lytes’s ability 

to perform the essential functions of a plant operator, see Duncan, 

240 F.3d at 1114 (stating elements of ADA claim). 
16 

Amendments ADA, we hold Lytes failed to meet his burden 

of identifying record evidence creating a triable issue as to 

whether he was actually disabled as that standard was 

described in Toyota. 

For the foregoing reasons the judgment of the district 

court is 

 Affirmed.