Opinionby clay opinion 1090 opinion clay circuit judge

Info iconThis preview shows page 1. Sign up to view the full content.

View Full Document Right Arrow Icon
This is the end of the preview. Sign up to access the rest of the document.

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] DISSENT: 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 any merit. 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 enough. 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

Ask a homework question - tutors are online