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Opinionby clay opinion 1090 opinion clay circuit judge

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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...
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