                Not For Publication in West's Federal Reporter
               Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

          United States Court of Appeals
                        For the First Circuit


No. 04-2575

           ESTHER DÁVILA-RIVERA, RAFAEL VELEZ-RIVERA,
              and CONJUGAL PARTNERSHIP VELEZ-DAVILA,
                      Plaintiffs, Appellants,

                                      v.

         CARIBBEAN REFRESCOS, INC. and ABC INSURANCE CO.,
                      Defendants, Appellees.


           APPEAL FROM THE UNITED STATES DISTRICT COURT

                  FOR THE DISTRICT OF PUERTO RICO

         [Hon. Daniel R. Dominguez, U.S. District Judge]


                                   Before

                       Boudin, Chief Judge,
                      Selya, Circuit Judge,
                and Siler,* Senior Circuit Judge.


     Roberto Ariel Fernández with whom Juan M. Frontera-Suau was on
brief for appellants.
     Oreste R. Ramos with whom Jorge I. Peirats was on brief for
appellees.


                           September 16, 2005




     *
      Of the   Sixth     Circuit       Court     of    Appeals,     sitting   by
designation.
     SILER, Senior Circuit Judge. Plaintiffs Esther Dávila-Rivera,

Rafael Velez-Rivera, and the Conjugal Partnership Velez-Davila

(collectively, “Dávila”) appeal the district court’s grant of

summary judgment to Defendants Caribbean Refrescos, Inc. (“CRI”),

and ABC Insurance Company on her claim under the Americans with

Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12182 et seq.              In

addition, Dávila appeals the district court’s decisions to strike

her response to CRI’s motion for summary judgment and to dismiss

without prejudice her Commonwealth law claims.              For the reasons

discussed hereafter, the district court’s grant of summary judgment

is AFFIRMED.

                            I.     BACKGROUND

     Dávila was employed by CRI from 1974 until 2002, most recently

as an Administrative Assistant II in the Finance Department.             In

2000, she underwent corrective therapies for carpal tunnel syndrome

(“CTS”).   In   June   of   that    year,   Dávila   told    her   immediate

supervisor, José Martínez, that she needed to have corrective

surgery for her CTS.    At that time, Martinez did not express any

objection to the forthcoming surgery; however, he instructed her to

inform him of the date in advance.        This surgery was ultimately set

for December 14, 2000, and Dávila informed Martínez of the date

through a vacation request made in December.            This request was

approved, although she alleges that he balked at granting the

request and initially ordered her to change the date of her


                                    -2-
surgery.

     Dávila completed the rehabilitation treatment on January 18,

2001, and her doctor, Dr. Angel Pérez Toro, stated that she could

return to work on January 22, 2001.      Dr. Pérez Toro completed a

medical questionnaire on functional capacity for CRI, asserting

that Dávila could perform both fine and heavy hand manipulation and

that she could lift, push, or haul up to five pounds.    When Dávila

returned to work, she also was evaluated by a CRI physician, Dr.

Carlos A. Canales Quintero, who concluded that Dávila could lift up

to ten pounds.   The weight restriction therefore was relaxed from

five pounds to ten pounds.

     Upon her return, Martínez assigned Dávila to digitally scan

documents.   Although she asserts that she told him that the work

was repetitive and would affect her CTS, she was not reassigned.

Two days later, Daisy Meléndez, a CRI company nurse, noted that

Dávila’s right hand was swollen.      Dr. Canales recommended a hand

brace, and, in a follow-up visit, noted the swelling had gone away.

     Dávila contends that working conditions at CRI caused her to

suffer from depression.   On February 27, 2001, CRI referred her to

the State Insurance Fund to receive medical treatment for her

depression and other emotional conditions.       She was placed on

short-term disability leave with a one-year reserve period. Dávila

also requested long-term disability leave benefits from NATLSCO,

the company managing CRI’s disability plan.        This request was


                                -3-
denied in November 2001. On February 27, 2002, CRI notified Dávila

that    her   reserve   period   had    ended     and,   therefore,    that   her

employment had been terminated.

       In October 2002, Dávila filed a complaint in the United States

District Court for Puerto Rico alleging, inter alia, that CRI

terminated her employment and failed to reasonably accommodate her

CTS and emotional depression conditions in violation of the ADA.

CRI moved for summary judgment in October 2003.             In December 2003,

Dávila filed her opposition to this motion (“First Opposition”).

The First Opposition was accompanied by a 43-page brief that

exceeded the 25-page limit established by Local Rule 7.1(e) and the

district court’s order.          When CRI moved to strike, the court

granted Dávila “the opportunity to re-file [the Opposition], after

pruning it into a twenty five page document.”             Dávila subsequently

filed    a    revised   opposition     (“Second    Opposition”),      which   was

slightly less than 25 full pages.         CRI again moved to strike on the

ground that this Second Opposition violated Local Rule 7.1(e). The

magistrate judge compared the First and Second Oppositions and

recommended that the Second Opposition be stricken and CRI’s motion

for summary judgment be treated as unopposed.             This recommendation

was adopted by the district court. The magistrate judge noted that

the two documents were textually virtually identical, with the only

changes being the removal of footnotes and several paragraphs. She

determined, in part from this textual analysis, that Dávila’s


                                       -4-
Second Opposition was printed in a font smaller than allowed by

Rule 7.1(e).

     In August 2004, the district court granted CRI’s motion for

summary judgment, dismissing with prejudice Dávila’s ADA claim and

her other federal claims. In addition, the court dismissed without

prejudice her Commonwealth law claims. Dávila appeals the district

court’s decision to strike the Second Opposition, its grant of

summary judgment to CRI on her ADA claim, and its dismissal of the

Commonwealth law claims.

                               II.    DISCUSSION

Local Rule Violation

     While this court reviews deferentially a district court’s

refusal to forgive a local rule violation, see Crowley v. L.L.

Bean, Inc., 361 F.3d 22, 25 (1st Cir. 2004) (internal citation

omitted), we need not rule on this matter because even taking into

account   the   evidentiary     materials       highlighted   in   the   Second

Opposition, Dávila’s claims fail.1

Summary Judgment

     We   review   de   novo    a    district    court’s   entry   of    summary

judgment, viewing the entire record in the light most favorable to

the party opposing summary judgment.            See Dávila-Pérez v. Lockheed

Martin Corp., 202 F.3d 464, 466 (1st Cir. 2000).              All reasonable

     1
      In all events, Dávila conceded at oral argument that she was
not prejudiced by the district court’s decision to strike her
Second Opposition.

                                       -5-
inferences are made in favor of the non-moving party.           Id.   Summary

judgment is appropriate only if “there is no genuine issue as to

any material fact” and “the moving party is entitled to a judgment

as a matter of law.”     Fed. R. Civ. P. 56(c).

      Dávila appeals the grant of summary judgment only as to her

ADA   claims.      Because   the   district   court   ordered   the    Second

Opposition stricken from the record, CRI’s motion for summary

judgment was unopposed.        However, the district court is “still

obliged to consider the motion on its merits, in light of the

record as constituted, in order to determine whether judgment would

be legally appropriate.” Kelly v. United States, 924 F.2d 355, 358

(1st Cir. 1991).

      “The   ADA   prohibits   discrimination    in   employment      against

qualified persons with a disability.”         Carroll v. Xerox Corp., 294

F.3d 231, 237 (1st Cir. 2002) (citing 42 U.S.C. §12112(a)).             Three

alternative definitions of “disability” are provided: an individual

is considered to be disabled if (1) she has “a physical or mental

impairment that substantially limits one or more of [her] major

life activities,” 42 U.S.C. § 12102(2)(A); (2) she has “a record of

such an impairment,” id. § 12102(2)(B); or (3) she is “regarded as

having such an impairment,” id. § 12102(2)(C).

      “Major life activities” are “activities that are ‘of central

importance to daily life.’”         Carroll, 294 F.3d at 238 (quoting

Toyota Motor Mfg. v. Williams, 534 U.S. 184, 197 (2002)).                 The


                                     -6-
courts have recognized various “major life activities,” including

the performance of manual tasks, Toyota Motor Mfg., 534 U.S. at

198; lifting, Gillen v. Fallon Ambulance Serv., Inc., 283 F.3d 11,

21 (1st Cir. 2002); and sleeping, Calero-Cerezo v. DOJ, 355 F.3d 6,

21 (1st Cir. 2004) (citing Criado v. IBM Corp., 145 F.3d 437, 442-

43 (1st Cir. 1998)).         In addition, the Supreme Court and this court

have assumed, without deciding, that working may be considered a

major life activity.          See id. (citing Sutton v. United Airlines,

Inc.,   527    U.S.   471,     492   (1999)).      We    also   have   noted    that

concentrating     “may    be    reasonably      subsumed   within      the   broader

context   of    working        and   learning.”         Whitney   v.    Greenberg,

Rosenblatt, Kull & Bitsoli, 258 F.3d 30, 33 (1st Cir. 2001).

     Dávila must show that her impairment substantially limits a

major life activity.         Therefore, she must demonstrate either that

she is unable to perform a major life activity that an average

person in the general population can perform or that she is

significantly restricted in the performance of a particular major

life activity as compared to an average person in the general

population.     See 29 C.F.R. § 1630.2(j)(1).              “To be substantially

limiting, ‘[t]he impairment’s impact must . . . be permanent or

long-term.’”     Carroll, 294 F.3d at 238 (quoting Toyota Motor Mfg.,

534 U.S. at 198).

     Dávila bears the burden of showing that she has a qualified

disability.     See Calero-Cerezo, 355 F.3d at 20.                She claims two


                                        -7-
impairments, CTS and severe depression. CTS has been recognized as

a physical impairment. See, e.g., Toyota Motor Mfg., 534 U.S. 199.

In addition, “[t]his circuit has recognized depression as a mental

impairment that may constitute, at least in some circumstances, a

disability under federal law.”            Calero-Cerezo, 355 F.3d at 20.

     In   her    Amended      Complaint,    Dávila   asserted      that    her CTS

“limited her writing and computer activities.”                    She asserts on

appeal    that   her    CTS    impaired    her    major    life   activities    of

performing manual tasks and lifting.              Although she points to the

January 2001 lifting restriction imposed by Dr. Pérez Toro and

modified by Dr. Canales, this restriction is insufficient to

demonstrate a substantial limitation, as it was in effect only from

January    22,   2001    to    February     12,    2001,    for    three    weeks.

Furthermore, the same form indicated that, at that time, she was

able to engage in fine and thick hand manipulation.                 Thus, Dávila

has failed to demonstrate that she was substantially limited in the

performance of manual tasks or lifting.

     In her Amended Complaint, Dávila asserted that her depression

prevented her from working.               She asserts on appeal that her

depression additionally impaired her major life activities of

sleeping and concentrating.         First, we note that she has failed to

demonstrate that her depression substantially limited the major

life activity of working.          The Supreme Court has observed that

“[w]hen the major life activity under consideration is that of


                                      -8-
working, the statutory phrase ‘substantially limits’ requires . .

. that plaintiffs allege they are unable to work in a broad class

of jobs.”    Toyota Motor Mfg., 534 U.S. at 200 (quoting Sutton, 527

U.S. at 491).     Dávila has failed to make such an offering.                In

addition, she alleges, but has failed to demonstrate, that her

depression    substantially     limited     her     ability   to     sleep   or

concentrate. No evidence was introduced that would demonstrate she

was substantially restricted or that the limitations were permanent

or long-term.

     As a result, Dávila’s ADA claim fails.           She has not produced

sufficient    evidence   to   demonstrate    that    she   had   a   qualified

disability.     Consequently, we need not address the remaining

grounds upon which the district court’s grant of summary judgment

was based.    See Carroll, 294 F.3d at 238.

Supplemental Jurisdiction

     This court reviews a district court’s refusal to exercise

supplemental jurisdiction for abuse of discretion.                   Pejepscot

Indus. Park, Inc. v. Maine Cent. R. Co., 215 F.3d 195, 200 (1st

Cir. 2000).     Jurisdiction in this case is based upon Dávila’s

federal claims; she therefore requested that the district court

exercise supplemental jurisdiction over the non-federal claims.

See 28 U.S.C. § 1367(a).        Supplemental jurisdiction exists when

“the relationship between [the federal] claim and the state claim

permits the conclusion that the entire action before the court


                                   -9-
comprises but one constitutional ‘case.’”              Rodriguez v. Doral

Mortg. Corp., 57 F.3d 1168, 1175 (1st Cir. 1995) (quoting United

Mine Workers v. Gibbs, 383 U.S. 715, 725 (1966)).

      When the foundational federal question claims are dismissed,

the   district    court   may   reassess   its    jurisdiction       over   the

supplemental claims.      See 28 U.S.C.    § 1367(c)(3); see also Roche

v. John Hancock Mut. Life Ins. Co., 81 F.3d 249, 256-57 (1st

Cir.1996).     Ordinarily this assessment will “weigh strongly in

favor of declining jurisdiction over state law claims where the

foundational federal claims have been dismissed at an early stage

in the litigation.” Camelio v. American Fed’n, 137 F.3d 666, 672

(1st Cir. 1998).      Original jurisdiction in this case rested upon

the ADA and other federal claims. Thus, because the district court

properly    granted   summary   judgment   on    the   ADA   claim    and   the

dismissal of the other federal claims has not been appealed, we

find that the district court did not abuse its discretion in

declining    supplemental   jurisdiction    over   the   Commonwealth       law

claims.

      AFFIRMED.




                                   -10-
