Not for Publication in West's Federal Reporter

          United States Court of Appeals
                         For the First Circuit


Nos. 07-2178
     07-2179
                             LORRAINE FEMINO,

                          Plaintiff, Appellant,

                                       v.

                             NFA CORPORATION,

                           Defendant, Appellee.


          APPEALS FROM THE UNITED STATES DISTRICT COURT

                   FOR THE DISTRICT OF RHODE ISLAND

               [Hon. Mary M. Lisi, U.S. District Judge]


                                    Before

                        Torruella, Circuit Judge,
                     Selya, Senior Circuit Judge,
                       and Lipez, Circuit Judge.



     Lorraine Femino on brief pro se.
     William E. O'Gara and Pannone Lopes & Devereaux LLC on brief
for appellee.



                               April 14, 2008
          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, 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., 

, 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


     1
      Appellant also has requested leave to file a supplemental
appendix containing documents filed in a related district court
action. The unopposed motion is granted.

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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


                                       -3-
. . . 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, 

, 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.




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