This preview shows page 1. Sign up to view the full content.
Unformatted text preview: rt's grant of summary judgment on the ADA
claim and AFFIRM the grant of summary judgment on the retaliation claim.
CONCURBY: STEPHEN S. TROTT (In Part)
DISSENTBY: STEPHEN S. TROTT (In Part) [**34]
TROTT, Circuit Judge, concurring in part and dissenting in part:
Although I agree with the majority that McAlindin's retaliation claim fails as a matter of
law, I respectfully disagree with the majority's conclusion that the rest of his case has
First, the majority claims for McAlindin a disability - "interacting with others" - that he
does not claim for himself. Although the evidence strongly suggests that in fact he has a
problem "interacting with others," McAlindin does not identify this plight as a mental or
physical impairment that substantially limits one or more of his major life activities.
Instead, McAlindin describes the disability upon which he grounds this lawsuit as a
"generalized anxiety disorder or panic disorder," or an "anxiety/panic/somatoform
disorder." At best, the suggestion that he cannot get along with others may be a symptom
or a consequence of a disability, but not a disability per se.
Notwithstanding McAlindin's own description of his alleged disability, the majority
inappropriately reaches out to plead for him a case he has not pleaded for himself. We
have not had briefing or adequate argument on the tricky issue of whether [**35]
"interacting with others" qua interacting with others could be a recognizable disability
under this statute, yet we decide this non-issue anyway, warning everybody that simply
being "cantankerous" – whatever the legal or scientific description of that is - won't be
Ordinarily, we won't hear on appeal a past-posted claim not made in the district court, but
here, we decide an explosive issue never discretely raised by McAlindin anywhere.
Moreover, not only do we serendipitously create a mischievous Pandora's box, but we
then open it with a flourish and invite into federal court all but the "cantankerous" to sue
those employers with whom they cannot get along. Employers be...
View Full Document
- Spring '08