274 F. App'x 8

1st Cir.

2008

Lorraine FEMINO, Plaintiff, Appellant, v. NFA CORPORATION, Defendant, Appellee.

Nos. 07-2178, 07-2179

United States Court of Appeals, First Circuit.

April 14, 2008.

Before TORRUELLA, Circuit Judge, SELYA, Senior Circuit Judge, and LIPEZ, Circuit Judge.

that requiring Malek to relocate within Egypt would not be “unreasonable,” a conclusion that could only be justified if the IJ determined that Malek would not face persecution outside of Port Said. Indeed, we note that the IJ addressed the one explicit concern that Malek articulated concerning relocation within Egypt, dismissing the inconvenience that Malek might face given that his business license was restricted to Port Said. Finally, we cannot ignore the fact that the IJ, not Malek, requested sua sponte the submission of the 2004 State Department reports; it seems unlikely that, having specifically solicited the introduction of these documents, the IJ would have ignored them in rendering her decision. In these circumstances, we are satisfied that the IJ‘s decision contemplated country conditions throughout Egypt—“[w]e do not require an IJ to intone any magic words before we will review her determination.” Sulaiman v. Gonzales, 429 F.3d 347, 351 (1st Cir.2005).

In the past, we have noted that “[t]he obligation to explain and articulate depends importantly on the strength of the position being urged. Where no plausible reason is offered for a request, the word ‘no’ is plainly sufficient.” Karim v. Gonzales, 424 F.3d 109, 111 (1st Cir.2005). Moreover, in any context, a litigant “cannot switch horses midstream in hopes of locating a swifter steed.” United States v. Lilly, 13 F.3d 15, 18 (1st Cir.1994) (citation omitted). Essentially, Malek now seeks relief based on an argument that he presented, if at all, in a threadbare, conclusory fashion before the IJ. We will not, on appeal, reverse the decision of the IJ for failing to make Malek‘s arguments for him.

B. Withholding of Removal and Protection Under the CAT

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We likewise reject Malek‘s claims for withholding of removal and protection under the CAT. Because Malek has not satisfied the more lenient standard for asylum, a fortiori he cannot satisfy the higher burden for withholding of removal. . Even if not waived, his claim for protection under the CAT fails on the merits. “An applicant claiming protection under the CAT bears the burden of establishing that it is more likely than not that he or she would be tortured if removed to the proposed country.” (quoting 8 C.F.R. § 1208.16(c)(2)). No record evidence supports the notion it is more likely than not that Malek would be tortured if returned to Egypt. While the IJ accepted Malek‘s testimony that he was tortured by the Egyptian government on a single occasion in 1991, no evidence suggests that he is likely to be tortured in the future. At the very least, the IJ‘s conclusion in this regard is supported by substantial evidence.

III CONCLUSION

For the foregoing reasons, we deny Malek‘s petition for review.

Affirmed.

Lorraine Femino on brief pro se.

William E. O‘Gara and Pannone Lopes & Devereaux LLC on brief for appellee.

PER CURIAM.

In these consolidated appeals, pro se plaintiff-appellant Lorraine Femino seeks review of the district court‘s grant of summary judgment to her former employer, NFA Corporation (“NFA“), in two actions alleging violations of the Employee Retirement Income Security Act (ERISA) and the Americans with Disabilities Act (ADA).¹ Appellant‘s claims arise from the termination of her long-term disability benefits under an employer-sponsored plan (“LTD Plan“) based on a provision limiting benefits for disabilities based on “self-reported symptoms” to twenty-four months. Essentially for the reasons set forth in the magistrate judge‘s two Reports and Recommendations dated June 6, 2007, 2007 WL 1991530, we conclude that the ERISA claims brought in each of the underlying cases were subject to claim preclusion based on the final judgment entered on September 5, 2006, in Femino v. NFA Corporation, Civil Action No. 05-519ML (“Femino I“), an earlier ERISA action filed in the United States District Court for the District of Rhode Island. See Gonzalez v. Banco Cent. Corp., 27 F.3d 751, 755 (1st Cir.1994). To the extent appellant challenges related discovery rulings made in Civil Action No. 06-143ML (“Femino II“), we see no abuse of discretion.

As to the ADA claims, the district court concluded that appellant was ineligible for protection under the ADA because she was totally disabled at all relevant times and therefore, by definition, was not a “qualified individual with a disability.” See 42 U.S.C. §§ 12112(a), 12111(8). Appellant challenges this interpretation of the statute, and argues that the relevant language is ambiguous and should be construed to include even totally disabled former employees. We have not yet squarely addressed this issue, but we find it unnecessary to do so in this case because we conclude, as the district court did, that appellant‘s claims lack merit in any event.

On the merits, appellant‘s primary contention is that the district court misconstrued her claims and failed to consider her claim of “disparate-impact” discrimination. Appellant states that she does not allege, as the district court suggested, that the self-reported symptoms limitation was discriminatory as written because it treated disabilities based on self-reported symptoms differently from other types of disabilities. Instead, she maintains that her claim was based on the theory that the self-reported symptoms limitation, although not discriminatory on its face, was administered in a manner that disproportionately affected individuals who, like appellant, were disabled due to fibromyalgia.

To make out a prima facie case of disparate impact discrimination, a plaintiff must (1)“identify the challenged employment practice or policy, and pinpoint the defendant‘s use of it” (2) “demonstrate a disparate impact on a group characteristic ... that falls within the protective ambit of [the ADA]“; and (3) “demonstrate a causal relationship between the identified practice and the disparate impact.” E.E.O.C. v. Steamship Clerks Union, Local 1066, 48 F.3d 594, 601 (1st Cir.1995) (citations omitted); see 42 U.S.C. § 12112(b)(3). Even assuming that appellant‘s allegations are adequate to state a claim of disparate-impact discrimination, the only evidence she offered to demonstrate that the self-reported symptoms limitation had a disproportionately negative effect on individuals suffering from fibromyalgia was that the medical evidence in her own case was deemed insufficient to establish that her disability was not based on self-reported symptoms. This is not enough to demonstrate a disparate impact on the particular group appellant identifies. In essence, appellant‘s disparate-impact theory seems to be nothing more than a dressed-up claim that her benefits were arbitrarily terminated; absent any evidence of discrimination, ERISA provides the appropriate avenue for review. However, as noted above, that avenue is no longer open to appellant in light of the judgment entered in Femino I.

The judgments of the district court are affirmed.

Notes

Appellant also has requested leave to file a supplemental appendix containing documents filed in a related district court action. The unopposed motion is granted.