FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
RHODE ISLAND, Hon. William E. Smith, U.S. District Judge
P. Gagliardi for appellant.
F. McHugh, Senior Assistant City Solicitor, with whom Jeffrey
Dana, City Solicitor, and Steven B. Nelson, Associate City
Solicitor, were on brief, for appellee.
Howard, Chief Judge, Selya and Thompson, Circuit Judges.
Mark Mancini is a veteran police officer in Providence, Rhode
Island (the City). Following an injury that he sustained
while on duty, Mancini sued the City for discrimination under
the Americans with Disabilities Act (ADA), 42 U.S.C.
§§ 12101-12213, and related state
antidiscrimination laws. The district court granted the
City's motion for summary judgment, and Mancini now
appeals. Although our reasoning differs to some extent from
that of the district court, we affirm.
rehearse the facts in the light most hospitable to Mancini,
consistent with record support, and trace the travel of the
case. See Ahern v. Shinseki, 629
F.3d 49, 51 (1st Cir. 2010); Gillen v.
Fallon Ambul. Serv., Inc., 283 F.3d 11, 17 (1st Cir.
November 15, 2010, Mancini (then a sergeant) sustained a knee
injury while in pursuit of a suspect. Mancini received
medical treatment, including arthroscopic surgery. He was
placed on injured on duty (IOD) status and remained out of
work until May of 2011. He was then placed on "light
duty" (a temporary assignment for officers on IOD
status). That placement lasted until August of 2011, when he
was removed from light duty.
September 2, 2011, Mancini filed for accidental disability
benefits, which, if granted, would effectively comprise an
early retirement. Mancini alleges that this application was
not filed of his own volition but, rather, was filed at the
behest of his supervisor. In all events, the application was
denied on June 27, 2012, based on three independent medical
examinations. Thereafter, the City refused to allow Mancini
to return to work on light duty.
weeks before his accidental disability benefits application
was denied, Mancini sat for the 2012 lieutenants promotional
examination. As determined by the collective bargaining
agreement (CBA) between the City and the police union,
promotion to lieutenant is based on four components: a
written examination, level of seniority, level of education,
and service points awarded by the Chief of Police (the
Chief). Candidates may receive a score of up to 85 points for
the written examination and, for each of the remaining
components, may receive up to 5 points.
and education levels have fixed formulae, with points awarded
for number of years in service and degrees earned,
respectively. The Chief has broad discretion with respect to
the award of service points, but the CBA specifies that
letters of commendation, letters of merit, and unused sick
time may be taken into account. When all is said and done,
candidates are ranked based on their final scores, and the
City fills the available positions from the top of the list.
of 2012, Mancini scored a 92 on the written exam, earning
78.2 points toward his final score. He received a full 5
points for seniority and a full 5 points for education. For
the service-point component - determined prior to the
administration of the written examination - the Chief awarded
Mancini 0 points. Mancini's aggregate score placed him
seventh among the sixteen aspirants. As the City had only
five open lieutenant positions, he was not promoted. One
additional point would have altered the mix and ensured his
did not accept his rejection lightly. He exhausted his
administrative remedies, filing charges of disability
discrimination with the Rhode Island Commission for Human
Rights and the United States Equal Employment Opportunity
Commission (EEOC). After obtaining right-to-sue letters from
both agencies, he sued the City in the United States District
Court for the District of Rhode Island. In material part,
his complaint alleged that the City discriminated against him
on the basis of his disability when the Chief awarded him no
service points and, thus, prevented him from obtaining a
total score that would have resulted in his promotion. He
characterized the City's actions as a failure to promote
on the basis of disability under the ADA and under a
gallimaufry of state laws. See, e.g., R.I.
Gen. Laws § 42-112-1 et seq.; id.
§ 42-87-1 et seq.; id. § 28-5-1
the close of discovery, the parties cross-moved for summary
judgment. The district court granted summary judgment in
favor of the City, concluding that Mancini had failed to
establish that he was disabled within the meaning of the ADA.
See Mancini v. City of Prov., 282
F.Supp.3d 459, 467 (D.R.I. 2017). The district court likewise
granted summary judgment for the City on Mancini's
state-law claims, reasoning that Mancini's failure to
show a cognizable disability scuttled those claims as well.
See id.; see also DeCamp v.
Dollar Tree Stores, Inc., 875 A.2d 13, 25 (R.I.
2005) (characterizing the process of proving disability under
state law as "[p]aralleling the federal Americans with
countered by filing a motion to vacate the judgment. The
district court denied that motion and this timely appeal
appeal, Mancini trains his fire on the district court's
entry of summary judgment against him on his ADA
claims. We review a district court's grant of
summary judgment de novo, mulling the summary judgment record
and all reasonable inferences therefrom in the light most
agreeable to the nonmoving party (here, Mancini). See
Avery v. Hughes, 661 F.3d 690, 693
(1st Cir. 2011); Mandel v. Bos.
Phoenix, Inc., 456 F.3d 198, 204-05 (1st Cir. 2006). We
will affirm only if the record discloses "that there is
no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law."
Avery, 661 F.3d at 693 (quoting Fed.R.Civ.P. 56(a)).
To carry out this inquiry, we must determine whether Mancini
has produced "specific facts sufficient to deflect the
swing of the summary judgment scythe." Mulvihill v.
Top-Flite Golf Co., 335 F.3d 15, 19 (1st Cir. 2003).
"[C]onclusory allegations, improbable inferences,
acrimonious invective, or rank speculation" will not
suffice. Ahern, 629 F.3d at 54.
the ADA, the City, as a "covered entity," shall not
"discriminate against a qualified individual on the
basis of disability in regard to job application procedures,
the hiring, advancement, or discharge of employees, employee
compensation, job training, and other terms, conditions, and
privileges of employment." 42 U.S.C. § 12112(a). We
apply the familiar McDonnell Douglas burden-shifting
framework in reviewing the entry of summary judgment with
respect to discrimination claims that rely upon indirect
evidence. See McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802-05 (1973).
compendium of claims includes claims of disability
discrimination under the ADA. See Gillen, 283 F.3d
at 29-30; Higgins v. New Balance
Athletic Shoe, Inc., 194 F.3d 252, 264 (1st Cir. 1999).
When traveling the path demarcated by McDonnell
Douglas, a plaintiff must first establish a prima facie
case of discrimination. See Rathbun v.
Autozone, Inc., 361 F.3d 62, 71 (1st Cir. 2004).
This is a task that the Supreme Court has described as
"not onerous." Tex. Dep't of Cmty.
Affairs v. Burdine, 450 U.S. 248, 253
said, Mancini has characterized his claim as one alleging a
failure to promote on the basis of disability. The prima
facie elements of a failure-to-promote claim are that the
plaintiff "(i) is a member of a protected class who (ii)
was qualified for an open position for which [he] applied,
but (iii) was rejected (iv) in favor of someone possessing
similar qualifications." Rathbun, 361 F.3d at
These elements, if shown, "raise an inference of
intentional discrimination," shifting the burden to the
employer to articulate a legitimate, nondiscriminatory reason
for the challenged employment decision. Id.
Elsewise, "the inference of discrimination never arises,
and the employer's motion for summary judgment will be
granted." Mesnick v. Gen. Elec.
Co., 950 F.2d 816, 824 (1st Cir. 1991).
stands to reason that a plaintiff claiming disability
discrimination cannot satisfy the first element of his prima
facie case unless he can show that he has a disability within
the meaning of the ADA. See Ramos-Echevarría
v. Pichis, Inc., 659 F.3d 182, 186 (1st
Cir. 2011). In that regard, the ADA offers three alternative
definitions of disability: "a physical or mental
impairment that substantially limits one or more major life
activities," 42 U.S.C. § 12102(1)(A); "a record
of such an impairment," id. § 12102(1)(B);
or "being regarded as having such an impairment,"
id. § 12102(1)(C). There is no per se rule
about either the type or quantum of evidence that a plaintiff
seeking to establish a disability must supply. See
Katz v. City Metal Co., 87 F.3d 26, 32
(1st Cir. 1996).
the City argues that Mancini has not demonstrated an
impairment (and, thus, has not demonstrated a disability)
within the purview of the ADA. In support, the City points
out that Mancini failed to proffer any medical evidence
showing an impairment. The City's premise is correct: at
summary judgment, Mancini did not produce a shred of
substantiating medical evidence. But the City's
conclusion does not ...