Lytes v. DC Water and Sewer Authority

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.

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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

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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.

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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.” Fernandez-

Vargas 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]”).

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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

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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 time-

neutral 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

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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 pre-

Amendments 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.

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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.