Graham v. Three Village Central School District
Filing
29
ORDER granting 17 Motion for Summary Judgment. For the reasons set forth in the attached Memorandum and Order, defendant's motion for summary judgment is granted in its entirety. The Clerk of the Court shall enter judgment accordingly and close the case. SO ORDERED. Ordered by Judge Joseph F. Bianco on 9/30/2013. (O'Donnell, Kaitlin)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 11-CV-5182
_____________________
JOANNE GRAHAM,
Plaintiff,
VERSUS
THREE VILLAGE CENTRAL SCHOOL DISTRICT,
Defendant.
___________________
MEMORANDUM AND ORDER
September 30, 2013
__________________
JOSEPH F. BIANCO, District Judge:
handicapped parking spaces.1
Plaintiff Joanne Graham (“plaintiff” or
“Graham”) brings this action against
defendant Three Village Central School
District (“defendant” or the “District”)
alleging employment discrimination in
violation of the Americans with Disabilities
Act, 42 U.S.C. §§ 12101 et seq. (“ADA”).
Specifically, plaintiff alleges that: (1)
defendant discriminated against plaintiff on
account of her disability, by failing to
accommodate plaintiff’s requests for
reasonable accommodation, namely, the
reinstatement of the handicapped parking
spaces that were moved during a period of
construction; and (2) defendant retaliated
against plaintiff after she engaged in the
protected
activity
of
requesting
reinstatement of the former locations of the
Defendant
moves
for
summary
judgment, arguing, inter alia, that (1)
plaintiff’s ADA claim must be dismissed
because plaintiff cannot establish an ADAqualifying disability; (2) plaintiff failed to
make any requests for a reasonable
accommodation, and, with respect to any
issues raised by plaintiff, the District
engaged in an interactive process with her
and responded to all of her requests; and (3)
plaintiff cannot establish a retaliation claim
because she can neither set forth a prima
facie case of retaliation, nor can she show
that defendant’s decision to terminate
1
As discussed infra, although it is not entirely clear
whether plaintiff is continuing to assert a disability
discrimination claim in connection with the
termination (rather than simply a retaliatory
termination claim), the Court will address that claim
in an abundance of caution and concludes that it also
cannot survive summary judgment.
of their autistic students. There is nothing in
the record to rebut that articulated reason;
stated differently, plaintiff offers no
evidence from which a rational jury could
find that her requests for handicapped
parking were the but-for cause of her
termination. Finally, to the extent plaintiff is
also asserting that her termination was due
to her disability (and not just alleged
retaliation), that claim fails for the same
reason. In particular, even assuming
arguendo that plaintiff can establish a prima
facie case, there is insufficient evidence
from which a rational jury could find that
the District’s articulated reason for her
termination was a pretext for disability
discrimination. For these reasons, the Court
concludes that defendant’s motion for
summary judgment is granted in its entirety.
plaintiff was pretextual.
For the reasons that follow, the Court
concludes that defendant’s summary
judgment motion should be granted in its
entirety. Specifically, the Court concludes
that plaintiff’s ADA failure to accommodate
claim fails because plaintiff has not set forth
evidence from which a rational jury could
find that she has satisfied the first element of
an ADA disability discrimination claim:
namely, that she has an ADA-qualifying
disability. The uncontroverted evidence in
the record, including plaintiff’s own
deposition testimony, shows that plaintiff’s
alleged disability does not substantially limit
a major life activity as compared to most
people in the general population. Similarly,
there is no evidence from which a rational
jury could find that plaintiff had a record of
impairment (and, under the amendments to
the ADA, no “regarded as” claim can exist
for an alleged failure to accommodate).
Moreover, even assuming arguendo that
plaintiff can satisfy the first prong, her
failure-to-accommodate claim still cannot
survive summary judgment because the
uncontroverted evidence in the record,
including plaintiff’s own testimony, shows
that the District was responsive to any of
plaintiff’s requests, both engaging in an
interactive
process
with
her
and
investigating and acting upon her requests,
where possible. To the extent that plaintiff
asserts that the District should have allowed
her to park in an active construction site
where no employees could park due to the
safety hazards presented, no rational jury
could find such a request to be reasonable.
With respect to the retaliation claim, even
assuming arguendo that plaintiff has set
forth a prima facie case, defendant has
proffered a legitimate, non-discriminatory
reason for its termination decision – namely,
a complaint from St. Charles Hospital that
plaintiff had been rude and forceful with one
I. BACKGROUND
A. Facts
The following facts are taken from the
parties’ depositions, declarations, exhibits,
and respective Local Rule 56.1 statements of
facts.2 Upon consideration of a motion for
summary judgment, the Court construes the
facts in the light most favorable to the nonmoving party. See Capobianco v. City of
N.Y., 422 F.3d 47, 50 n.1 (2d Cir. 2005).
For this reason, the Court construes the facts
in favor of plaintiff.
1. Plaintiff’s Employment in the
District
Plaintiff Joanne Graham began her
employment with defendant in 1987 as a
Monitor in Nassakeag Elementary School.
(Def.’s 56.1 ¶ 1; Pl.’s 56.1 ¶ 1.) She
subsequently was promoted to the position
2
Although the parties’ respective Rule 56.1
Statements contain specific citations to the record,
the Court cites to the Rule 56.1 Statement instead of
to the underlying citation to the record.
2
defendant describes plaintiff’s condition at
the commencement of her employment as
“fine” and “healed” (Def.’s 56.1 ¶ 10),
plaintiff claims that she had “limited
mobility” at that time, given that
compression screws had been inserted into
her hip (Pl.’s 56.1 ¶ 10).
of Tutor, a position that she held until 2008.
(Def.’s 56.1 ¶ 1; Pl.’s 56.1 ¶ 1.) That year,
plaintiff’s title, along with that of
approximately ninety other tutors in the
District, was changed to Certified Teaching
Assistant, or “CTA.” (Def.’s 56.1 ¶ 2; Pl.’s
56.1 ¶ 2.) This change in title placed
plaintiff (along with the other CTAs) on a
tenure track; it also gave her a three-year
probationary period of employment. (Def.’s
56.1 ¶ 3; Pl.’s 56.1 ¶ 3.) Plaintiff had not
been eligible for tenure prior to her change
in title. (Def.’s 56.1 ¶ 3; Pl.’s 56.1 ¶ 3.)
Plaintiff understood the significance of
being placed on a tenure track: she would
have to be observed, and at the end of her
probationary period (and based on those
observations), she would either receive or be
denied tenure. (Def.’s 56.1 ¶ 4.) Plaintiff had
the choice of starting her new position either
on February 1, 2008 or on September 1,
2008. (Id. ¶ 5.) She chose the February 1,
2008 date, making her officially eligible for
tenure as of February 1, 2011, assuming all
expectations were met. (Id.)
Although it is not clear what the exact
extent of plaintiff’s alleged disability was at
the time her employment with the District
began, what is clear is that plaintiff had a
handicapped-parking sticker. (Def.’s 56.1
¶ 11; Pl.’s 56.1 ¶ 11.) On commencing her
employment, plaintiff did not explicitly
inform anyone that she was disabled. (Def.’s
56.1 ¶ 11; Pl.’s 56.1 ¶ 11.) She also made no
accommodation requests at that time;
plaintiff contends this was so because a
handicapped-parking spot was available to
her then. (Def.’s 56.1 ¶ 12; Pl.’s 56.1 ¶ 12.)
Thus, plaintiff began her employment
with the District. From the inception of her
employment, plaintiff’s hip injury did not
impede or affect her abilities to perform her
job with the District, provided that – as
plaintiff notes – she had access to a
handicapped-parking spot. (Def.’s 56.1 ¶ 13;
Pl.’s 56.1 ¶ 13.) From approximately 1987
until 1999, plaintiff had no health conditions
or injuries that affected her ability to
perform her job. (Def.’s 56.1 ¶ 14.)
Moreover, plaintiff did not request any
accommodations during this time or make
any job-related requests for assistance. (Id.)
In her role as a CTA, plaintiff worked
one-on-one with special education students.
(Id. ¶ 6.) She also had job coaching
responsibilities, which included taking
students off school premises and into the
community to learn job skills at certain
accepted locations. (Id. ¶ 7.)
2. Plaintiff’s Alleged Disability
Plaintiff describes herself as being
disabled as of 1983, prior to her time of
employment with the District. (Id. ¶ 9.) She
broke her hip after falling during a roller
skating accident. (Id.) Plaintiff had surgeries
on her hip and subsequently was cleared for
rehabilitation, and therefore, for other
exercises with no limitations on her activity
abilities. (Id. ¶ 9; Pl.’s 56.1 ¶ 9.) Four years
later, plaintiff began her employment with
the District. (Def.’s 56.1 ¶ 10.) Although
During the 1998-1999 school year,
plaintiff sustained an injury at work that
caused her to miss approximately two
months of work: she was knocked down by
a student running in the halls. (Id. ¶ 15.)
She thereafter returned to work, as well as to
her prior normal job activities and functions.
(Id. ¶ 16.) Although defendant claims that
plaintiff did not make any requests for
accommodations after the hallway incident,
3
3. Construction at the School
plaintiff notes that this was due to the fact
that she still had access to her handicapped
parking spot during this time, and that
without such an accommodation, her work
environment might have become “extremely
hazardous to her health.” (Pl.’s 56.1 ¶¶ 13;
16; see also Def.’s 56.1 ¶ 16.)
In March 2009, construction began to
expand the school’s (already large) size,3
which made a section of the parking lot
inaccessible. (Def.’s 56.1 ¶ 23; Pl.’s 56.1
¶ 23.) Indeed, the school building was so
large that it did not have a single entrance;
instead, it had approximately ten entrances
to the building. (Def.’s 56.1 ¶ 24; Pl.’s 56.1
¶ 24.) In addition to multiple entrances, the
school also had multiple parking lots.
(Def.’s 56.1 ¶ 25; Pl.’s 56.1 ¶ 25.) Parking
was located on both the north and south side
of the building, as well as by the front
office; there also was a large parking lot at
the rear of the building, where the senior
students holding driving privileges typically
parked their vehicles. (Def.’s 56.1 ¶ 25; Pl.’s
56.1 ¶¶ 25, 27.) The closer spots, generally
located on the north and south side of the
building, were designated for faculty and
staff. (Def.’s 56.1 ¶ 25; Pl.’s 56.1 ¶ 25.)
In 2009, plaintiff suffered another injury:
she “bounced off a rather large woman” in a
crowded hallway and fell down. (Def.’s 56.1
¶ 17; Pl.’s 56.1 ¶ 17.) Plaintiff was taken to
the hospital and deemed to have suffered
contusions and abrasions; she missed
approximately a day or so of school. (Def.’s
56.1 ¶ 17; Pl.’s 56.1 ¶ 17.) On returning to
work, plaintiff also returned to her previous
job responsibilities and was able to
participate in her normal activities and
functions. (Def.’s 56.1 ¶ 18; Pl.’s 56.1 ¶ 18.)
Plaintiff notes, however, that this was all
subject to the fact that she had no need to
request an accommodation, given that she
still had access to a handicapped-parking
spot during this time. (Pl.’s 56.1 ¶¶ 12, 13,
18.)
Before construction began, plaintiff
generally parked in the handicapped spots
located on the south side of the school.
(Def.’s 56.1 ¶ 26; Pl.’s 56.1 ¶ 26.) These
spots were particularly convenient for
plaintiff because her first class was located
near that area. (Def.’s 56.1 ¶ 26; Pl.’s 56.1
¶ 26.) Pre-construction, plaintiff did not
have any problems obtaining a parking spot
in the morning on arriving at work. (Def.’s
56.1 ¶ 28; Pl.’s 56.1 ¶ 28.) Things changed,
though, when construction began. With the
entire campus being renovated, space in and
around the building changed, including the
construction of a new science building on
the south side of campus, as well as an entire
reconstruction of the south parking lot area.
(Def.’s 56.1 ¶ 29; Pl.’s 56.1 ¶ 29.) The
In approximately the fall of 2010,
plaintiff sustained another injury. (Id. ¶ 19;
Def.’s 56.1 ¶ 19.) She tripped on a piece of
lumber in the school parking lot and was
taken to the hospital. (Def.’s 56.1 ¶ 19; Pl.’s
56.1 ¶ 19.) Plaintiff was diagnosed with
contusions and “whatever” to her head.
(Def.’s 56.1 ¶ 19; Pl.’s 56.1 ¶ 19.)
Approximately a day or two later, she was
back at school, having returned to her
normal work functions and activities. (Def.’s
56.1 ¶ 20; Pl.’s 56.1 ¶ 20.) Defendant notes
that plaintiff made no requests for
accommodations at this time. (Def.’s 56.1
¶ 20.)
3
The high school – Ward Melville, specifically – is
estimated by the parties to have between
approximately 1,000 to 2,000 students. (Def.’s 56.1
¶ 24.)
4
concerning the parking situation. (Def.’s
56.1 ¶ 32; Pl.’s 56.1 ¶ 32.)
impact of this was noted in the parking
arrangements available at the school; the
new buildings required a relocation of
parking areas, as well as a redirection of
traffic flow. (Def.’s 56.1 ¶ 29; Pl.’s 56.1
¶ 29.) Part of the parking affected by this
rearrangement
of
spaces
was
the
handicapped parking spots. (Def.’s 56.1
¶¶ 29, 30; Pl.’s 56.1 ¶¶ 29, 30.)
Soon thereafter, plaintiff approached
school principal Alan Baum (“Baum”),
informing him that there were no
handicapped spaces on the south side of the
building. (Def.’s 56.1 ¶ 34; Pl.’s 56.1 ¶ 34.)
Baum referred plaintiff to Mike Owen
(“Owen”), the then Assistant Principal, who
also was in charge of the construction
project. (Def.’s 56.1 ¶ 34; Pl.’s 56.1 ¶ 34.)
Plaintiff claims that she specifically
informed Owen that she needed access to a
parking spot closer to the building entrance
because if she fell, she might sustain a
serious injury. (Def.’s 56.1 ¶¶ 35, 42; Pl.’s
56.1 ¶¶ 35, 42.)
John Grillo (“Grillo”) was the architect
hired to oversee the construction at the
school. (Def.’s 56.1 ¶ 30; Pl.’s 56.1 ¶ 30.)
His responsibilities included determining
where the handicapped parking would be
relocated to, as well as how many
handicapped parking spaces would be
available to drivers. (Def.’s 56.1 ¶ 30; Pl.’s
56.1 ¶ 30.) It was determined that the
handicapped spaces located on the south
side of the building (i.e., in plaintiff’s
preferred parking location) needed to be
moved as the new building was to be
constructed where the old spaces were
located. (Def.’s 56.1 ¶ 31; Pl.’s 56.1 ¶ 31.)
The spaces were moved to just outside the
construction fence. (Def.’s 56.1 ¶ 31; Pl.’s
56.1 ¶ 31.)
Plaintiff continued to approach Baum
with concerns as to the handicapped parking
situation, like the number of spaces
available and their proximity to the building,
during the construction period. (See Def.’s
Summ. J. Mot. Ex. C at 79-81; id. Ex. E at
23-24.)
Plaintiff
also
subsequently
complained of persons parking in the
handicapped spots because the spaces’ lines
were obscured by snow, and of signs being
needed in order to clearly designate those
spots that were for handicapped parking.
(Def.’s 56.1 ¶ 40; Pl.’s 56.1 ¶ 40.) The same
day in which plaintiff complained as to the
lack of signage, the District had signs put
up. (See Def.’s 56.1 ¶ 40; Pl.’s 56.1 ¶ 40.)
Plaintiff also complained to Baum that a
security guard had asked her to move her
car, which was parked in a handicapped
space, during this time period. (See Def.’s
56.1 ¶ 41; Pl.’s 56.1 ¶ 41.)
On the first day of construction, plaintiff
arrived at school and asked a security guard
where the handicapped parking spaces were
located. (Def.’s 56.1 ¶ 32; Pl.’s 56.1 ¶ 32.)
The guard informed her that he did not know
and instructed her to park in the first
available spot that she saw. (Def.’s 56.1
¶ 32; Pl.’s 56.1 ¶ 32.) Plaintiff did so; she
did not try parking in one of the designated
handicapped spots located on the other side
of the building, supposedly because of their
far distance from the building’s entrance.
(Def.’s 56.1 ¶¶ 32, 33; Pl.’s 56.1 ¶¶ 32, 33.)
Although it is unclear whether plaintiff
complained that first day that the changes to
the handicapped spot parking locations were
implemented, it seems that sometime during
that first week, she raised complaints
According to plaintiff, she had
“perhaps a couple” of conversations with
Assistant Principal Baum concerning the
parking situation. (See Def.’s 56.1 ¶ 42; Pl.’s
56.1 ¶ 42.) Whenever she did, plaintiff
claims that Baum would refer the particular
5
although Owen allegedly chastised her on
one occasion for creating her own space.
(Def.’s 56.1 ¶ 44; Pl.’s 56.1 ¶ 44.)
matter to another individual, typically,
Owen or Grillo. (Def.’s 56.1 ¶ 36; Pl.’s 56.1
¶¶ 36.) Plaintiff describes these referrals a
bit more colorfully: her complaints were
“always [being] shoved off to somebody
else.” (Pl.’s 56.1 ¶ 36.) According to
plaintiff, tensions arose between Baum and
herself. In particular, in the summer of 2010,
plaintiff alleges that Baum screamed at her
and made an obscene arm gesture when she
came to him expressing her handicapped
parking concerns. (Id. ¶ 36.)
Mary Castiglie (“Castiglie”), the other
Assistant Principal (who was not working at
the school at that time), was not made aware
of any issues concerning the handicapped
parking spaces during the 2009 construction
period. (Def.’s 56.1 ¶ 45; Pl.’s 56.1 ¶ 45.)
She was never advised as to plaintiff’s
complaints, and by the time she returned to
the school for the 2010-2011 school year,
the construction was complete. (Def.’s 56.1
¶ 45; Pl.’s 56.1 ¶ 45.)
Sometime during the time frame in
which plaintiff was complaining about the
parking spaces, Baum had a conversation
with Grillo. (Def.’s 56.1 ¶ 38; Pl.’s 56.1
¶ 38.) This conversation confirmed that the
parking lot during the construction period
met the requirements for handicapped
parking spaces, and also, that there were no
other alternatives for placement of the
spaces, given the construction operation and
the need to try and place the spaces as close
to the entrance ways as possible. (Def.’s
56.1 ¶ 38.) Owen similarly checked in with
the construction management firm on a near
daily basis to ensure that the construction
project was impacting the school’s day-today operations as little as possible. (See id.)
4. Complaints Concerning Plaintiff’s
Performance and the District’s
Tenure Decision
On approximately October 28, 2010, the
District removed plaintiff from her job
coaching responsibilities on account of a
complaint from St. Charles’ Hospital, one of
the locations in which plaintiff worked with
students. (See Def.’s 56.1 ¶¶ 46, 48; Def.’s
Summ. J. Mot. at 6-7.) The complainant had
no affiliation with the District, nor did she
have any knowledge of plaintiff’s alleged
disabilities. (See Def.’s 56.1 ¶ 46.)
According to the complaint, plaintiff had
been “rude and forceful in giving directions
to the student that she was working with.”
(Id. ¶ 48.) Plaintiff allegedly had contended
that the student needed to be spoken to in
this way because they were on a time limit;
the student was “low-functioning and
possibly autistic.” (Id. ¶ 49.) The staff was
not pleased with plaintiff’s handling of the
matter and reported the incident to their
supervisor, who in turn reported the incident
to Carol Nickerson (“Nickerson”), one of
plaintiff’s supervisors at the District and the
job coach coordinator. (Id. ¶¶ 47-48.)
Although plaintiff asserts that Nickerson
“laughed at the absurdity of the complaint”
(Pl.’s 56.1 ¶ 48), whatever her reaction
Defendant claims that plaintiff did not
inform Baum or Owen that she needed a
handicapped parking spot so that she could
perform her job. (See Def.’s 56.1 ¶ 35.)
Additionally, plaintiff does not dispute that
she never put any of her complaints
concerning the parking situation into
writing. (Id.; Pl.’s 56.1 ¶ 43.) Although she
did not put her complaints into writing, it
seems that at least on one occasion, plaintiff
took matters into her own hands, cutting the
ribbons blocking off the handicapped spaces
in the construction area, or making her own
space next to the handicapped spots. (Def.’s
56.1 ¶ 44; Pl.’s 56.1 ¶ 44.) Plaintiff was not
formally disciplined for this practice,
6
According to defendant, Baum treated
this complaint concerning plaintiff and the
autistic student very seriously, particularly
given that it occurred right around the time
in which plaintiff was up for tenure. (Def.’s
56.1 ¶ 53.) As previously set forth, plaintiff
was working on a three-year probationary
period. During this time, the probationary
employee is observed by immediate
supervisors and given annual evaluations.
(Id. ¶ 54.)4 When the three-year period
comes to an end, recommendations are sent
to the human resources office regarding
those employees who should – or should
not, as the case may be – receive tenure.
(Id.) The human resources department will
then share these recommendations with the
school superintendent, who will then review
the recommendations and discuss them with
his or her cabinet. (Id.) Following this
consideration period, the superintendent
may then decide to recommend tenure, deny
tenure, or recommend an extension of a
given employee’s probationary period to the
Board of Education. (Id.)
might have been, it seems clear that
Nickerson reported the complaint to Patricia
Fore (“Fore”), the special education
chairperson, who then reported it to
Assistant Principal Castiglie. (Id. ¶ 48.)
Castiglie investigated the complaint,
speaking with the supervisor from St.
Charles, who essentially gave Castiglie the
same information concerning plaintiff’s
handling of the incident, as well as staff
members’ reactions to plaintiff’s alleged
mistreatment of the student. (Def.’s 56.1
¶ 50.) Castiglie also was informed that
plaintiff had been rude to the supervisor
when she was asked why she was not
wearing a hair net or apron while working in
the kitchen. (Id.)
On acquiring this information, Castiglie
went to Baum, who also performed an
investigation concerning the complaint. (Id.
¶ 51.) Meanwhile, Castiglie spoke with
plaintiff, who explained – as she had to the
St. Charles Hospital supervisor – that this
was the manner in which that particular
student needed to be spoken to. (Id.)
Plaintiff’s framing of this incident echoes a
similar sentiment, as she states that her
“directness towards the autistic student was
necessary and proper” (Pl.’s 56.1 ¶ 48), and
that she “was direct with this student
because he was autistic, and this was the
proper approach to take with a student with
autism” (id. ¶ 49). On completing its
investigation, the District determined that
inappropriate conduct had taken place, and it
removed plaintiff from her job coaching
responsibilities. (Def.’s 56.1 ¶ 51.) On being
removed
from
her
job
coaching
responsibilities, plaintiff was reassigned to
the library, where she continued to receive
her same salary and benefits. (Id. ¶ 52.)
According to plaintiff, the prestige
associated with her library responsibilities
was not “comparable to her prior duties.”
(Pl.’s 56.1 ¶ 52.)
As plaintiff’s three-year probationary
period drew to a close, her candidacy for
tenure was presented to the superintendent
and his cabinet. (Id. ¶ 55; see also Pl.’s 56.1
¶ 55.) In reviewing plaintiff’s file, the
superintendent and cabinet considered the
4
According to plaintiff, on September 17, 2010, she
received a memorandum indicating that two tenure
observations would be conducted before the
rendering of any CTA tenure decisions. (Compl.
¶ 28.) These observations were to be performed by
Castiglie and Fore. (Id. ¶ 29.) Plaintiff claims that she
did not undergo the type of tenure observations as
were represented in the September 2010 letter. In
particular, plaintiff claims that one of her
observations occurred on School Spirit Day, when
regular course work was not conducted; thus,
Castiglie’s observation consisted of nothing more
than watching plaintiff grade papers. (Id.) Plaintiff
claims that no other observations of her were ever
done. (Id.)
7
¶ 61.) At this meeting, plaintiff and Pedisich
discussed all that had transpired, including
plaintiff’s complaints concerning the lack of
handicapped parking. (Def.’s 56.1 ¶ 61; Pl.’s
56.1 ¶ 61.) Although defendant contends
that plaintiff did not inform Pedisich that she
thought she was being discriminated against
on account of her disability (Def.’s 56.1
¶ 61), plaintiff claims that she “explicitly
told Pedisich that she felt she was being
terminated because she had complained
about the lack of handicapped parking”
(Pl.’s 56.1 ¶ 61). Sometime following this
meeting, plaintiff was given the option of
resigning from her position, instead of being
terminated; she declined this option. (Id.
¶ 62.) On December 14, 2010, the Board of
Education approved the superintendent’s
recommendation to terminate plaintiff’s
employment at the end of her probationary
period. (Def.’s 56.1 ¶ 63.) Ten other CTAs
at the District also were terminated at the
end of their respective probationary periods.
(Id. ¶ 64.)
St. Charles Hospital complaint, as well as
another incident in plaintiff’s file concerning
a classroom teacher, which occurred
sometime in 2005. (Def.’s 56.1 ¶ 55; see
also Def.’s Summ. J. Mot. Ex. E at 52-53;
id. Ex. N.) On considering plaintiff’s work
history,
record,
recommendations,
evaluations, as well as the aforementioned
complaints, the superintendent – as well as
Baum – were of the position that plaintiff
should not be awarded tenure. (Def.’s 56.1
¶ 56.) The decision being made, Baum
decided to personally give plaintiff the
news. (Id. ¶ 57.) In November 2010, Baum
had plaintiff attend a meeting in his office,
which was also attended by Assistant
Principal Castiglie, a union representative,
and “possibly the special education
chairperson Patti Fore.” (Id.) Subsequent to
the meeting, plaintiff received a letter – also
in November 2010 – informing her that the
superintendent did not plan to recommend
her for tenure. (Id. ¶ 58.) She similarly was
informed that her termination date would be
effective January 28, 2011. (Id.) Plaintiff
was not alone – other CTAs, who also had
been on a probationary period – were
advised that they would not be receiving
tenure, either. (Def.’s 56.1 ¶ 59; Pl.’s 56.1
¶ 59.)
5. The District’s Awareness of
Plaintiff’s Disability and the EEOC
Complaint
It is undisputed that plaintiff did not file
any internal complaints about any alleged
discrimination she suffered during her
employment. (Def.’s 56.1 ¶ 71; Pl.’s 56.1
¶ 71.) Although the District had a policy,
which included a complaint procedure,
prohibiting discrimination based on
impermissible considerations (like a
disability), plaintiff claims that she was
unaware of this policy at all times prior to
this dispute. (Def.’s 56.1. ¶ 70; Pl.’s 56.1
¶ 70.)
On November 17, 2010, plaintiff asked
the District for an explanation as to its
proposed action. (Def.’s 56.1 ¶ 60; Pl.’s 56.1
¶ 60.) On November 22, 2010, the District
sent plaintiff a letter citing excessive
absences, a failure to work well with staff,
and an improper execution of job coaching
responsibilities in support of its decision to
deny tenure. (Def.’s 56.1 ¶ 60; Pl.’s 56.1
¶ 60.) Unsatisfied with this explanation,
plaintiff requested a meeting with the
superintendent; although she was unable to
meet with the superintendent, plaintiff was
able to meet with then Assistant
Superintendent
Cheryl
Pedisich
(“Pedisich”). (Def.’s 56.1 ¶ 61; Pl.’s 56.1
Multiple District employees contend that
they were unaware of plaintiff’s alleged
disability until the filing of this lawsuit. (See
Def.’s 56.1 ¶¶ 65-68 (stating that Castiglie,
Baum, Owen, and Fore lacked any
8
showing that he or she is entitled to
summary judgment.
See Huminski v.
Corsones, 396 F.3d 53, 69 (2d Cir. 2005).
The court “is not to weigh the evidence but
is instead required to view the evidence in
the light most favorable to the party
opposing summary judgment, to draw all
reasonable inferences in favor of that party,
and to eschew credibility assessments.”
Amnesty Am. v. Town of W. Hartford, 361
F.3d 113, 122 (2d Cir. 2004) (citation and
internal quotation marks omitted); see
Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986) (summary judgment is
unwarranted if “the evidence is such that a
reasonable jury could return a verdict for the
nonmoving party”).
knowledge concerning plaintiff’s disability,
but that they were aware that she parked in
handicapped parking spaces).)
On approximately March 25, 2011,
plaintiff filed a complaint with the Equal
Employment Opportunity Commission
(“EEOC”), receiving a notice of right to sue
on July 28, 2011. (Def.’s 56.1 ¶ 74; Pl.’s
56.1 ¶ 74.) This action followed.
B. Procedural History
Plaintiff filed her complaint in this
action on October 25, 2011. Defendant
answered her complaint on December 15,
2011. On November 16, 2012, defendant
submitted a letter requesting a pre-motion
conference in anticipation of moving for
summary judgment. The Court granted
defendant’s request and held a pre-motion
conference on December 5, 2012. During
the conference, the Court set a briefing
schedule for defendant’s summary judgment
motion. On January 22, 2013, defendant
submitted its motion for summary judgment.
Plaintiff filed her opposition papers on April
10, 2013, and defendant submitted its reply
on May 3, 2013. Oral argument was held on
June 19, 2013. This matter is fully
submitted.
Once the moving party has met its
burden, the opposing party “‘must do more
than simply show that there is some
metaphysical doubt as to the material facts .
. . . [T]he nonmoving party must come
forward with specific facts showing that
there is a genuine issue for trial.’”
Caldarola v. Calabrese, 298 F.3d 156, 160
(2d. Cir. 2002) (alteration in original)
(quoting Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 586-87
(1986)). As the Supreme Court stated in
Anderson, ‘[i]f the evidence is merely
colorable, or is not significantly probative,
summary judgment may be granted.”
Anderson, 477 U.S. at 249-50 (citations
omitted). Indeed, “the mere existence of
some alleged factual dispute between the
parties alone will not defeat an otherwise
properly supported motion for summary
judgment.” Id. at 247-48. Thus, the
nonmoving party may not rest upon mere
conclusory allegations or denials but must
set forth “‘concrete particulars’” showing
that a trial is needed. R.G. Grp., Inc. v.
Horn & Hardart Co., 751 F.2d 69, 77 (2d
Cir. 1984) (quoting SEC v. Research
Automation Corp., 585 F.2d 31, 33 (2d Cir.
II. STANDARD OF REVIEW
The standard for summary judgment is
well settled. Pursuant to Federal Rule of
Civil Procedure 56(c), a court may not grant
a motion for summary judgment unless “the
pleadings,
depositions,
answers
to
interrogatories, and admissions on file,
together with affidavits, if any, show that
there is no genuine issue as to any material
fact and that the moving party is entitled to
judgment as a matter of law.” Fed. R. Civ.
P. 56(c); Globecon Group, LCC v. Hartford
Fire Ins. Co., 434 F.3d 165, 170 (2d Cir.
2006). The moving party bears the burden of
9
1978)). Accordingly, it is insufficient for a
party opposing summary judgment “‘merely
to assert a conclusion without supplying
supporting arguments or facts.’” BellSouth
Telecomms., Inc. v. W.R. Grace & Co., 77
F.3d 603, 615 (2d Cir. 1996) (quoting
Research Automation Corp., 585 F.2d at
33).
Health for Jamaica Cmty. Adolescent
Program, Inc., 198 F.3d 68, 72 (2d Cir.
1999); see also Wernick v. Fed. Reserve
Bank of N.Y., 91 F.3d 379, 383 (2d Cir.
1996) (“A plaintiff who raises a disability
discrimination claim bears the initial burden
of establishing a prima facie case.”).
With respect to a claim under the ADA
for failure to accommodate, an employer
may be liable if it “fails to make ‘reasonable
accommodations to the known physical or
mental limitations of an otherwise qualified
individual with a disability who is . . . an
employee.’” Cody v. Cnty. of Nassau, 577 F.
Supp. 2d 623, 643 (E.D.N.Y. 2008) (quoting
Sussle v. Sirina Protection Sys. Corp., 269
F. Supp. 2d 285, 312 (S.D.N.Y. 2003)). “A
plaintiff can state a claim for discrimination
based upon an employer’s failure to
accommodate her disability by alleging facts
showing: (1) that she has a disability within
the meaning of the [ADA]; (2) that the
defendants, who are covered by the ADA,
had notice of her disability; (3) that with
reasonable accommodations she could
perform the essential functions of the
position sought; and (4) that defendant
refused to make such accommodations.”
Feeley v. N.Y.C. Police Dep’t, No. 97-CV02891-RJD, 2001 WL 34835239, at *9
(E.D.N.Y. Sept. 4, 2001). Once a plaintiff
has set forth a prima facie case, “the burden
shifts to the employer to demonstrate that
the employee’s proposed accommodation
would result in an undue hardship.” Scalera
v. Electrograph Sys., Inc., 848 F. Supp. 2d
352, 360 (E.D.N.Y. 2012). For the following
reasons, plaintiff’s accommodation claim
cannot survive summary judgment.
III. DISCUSSION
Defendant
raises
the
following
challenges to plaintiff’s allegations. First,
defendant contends that plaintiff does not
have an ADA-qualifying disability. Second,
defendant asserts that plaintiff cannot
establish a failure-to-accommodate claim. In
particular, defendant argues that plaintiff
never requested accommodations, but when
she raised various concerns, defendant
always engaged in an interactive process
with her, fully addressing her respective
issues. Lastly, defendant contends that
plaintiff cannot establish a prima facie case
of retaliation, and even if she can, that
defendant has set forth a legitimate, nondiscriminatory reason for its termination
decision, which plaintiff cannot show was
pretextual. The Court considers each claim
in turn, after first summarizing the
applicable law.
A. ADA Failure to Accommodate
Claim
The ADA provides that “[n]o covered
entity shall discriminate against a qualified
individual on the basis of disability in regard
to job application procedures, the hiring,
advancement, or discharge of employees,
employee compensation, job training, and
other terms, conditions, and privileges of
employment.” 42 U.S.C. § 12112(a). It is the
plaintiff who “bears the initial burden of
proving by a preponderance of the evidence
a prima facie case of discrimination.”
Heyman v. Queen Vill. Comm. for Mental
In this case, the parties do not dispute
that the District constitutes an employer
subject to the ADA. Instead, defendant
argues
that
plaintiff’s
failure
to
accommodate
claim
cannot
survive
summary judgment because there is no
10
the statute were not changed, the
interpretation of those terms was modified.”
Brtalik v. S. Huntington Union Free Sch.
Dist., No. CV-10-0010, 2010 WL 3958430,
at *7 (E.D.N.Y. Oct. 6, 2010). Pursuant to
this definition, an asserted “disability” will
“be construed in favor of broad coverage of
individuals under this chapter, to the
maximum extent permitted by the terms of
the chapter.” 42 U.S.C. § 12102(4).
evidence that the plaintiff was disabled
within the meaning of the ADA and further,
there is no evidence that defendant failed to
make a reasonable accommodation for any
alleged disability. As set forth below, the
Court agrees and concludes that, even
construing the evidence most favorably to
defendant, no rational jury could find that
plaintiff was disabled or had a record of
disability for purposes of this claim. The
Court also concludes, even assuming
arguendo that plaintiff could meet that
requirement, that no rational jury could find
that defendant failed to make a reasonable
accommodation, given the uncontroverted
facts in this case.
Because the contested events at issue
occurred subsequent to the effective date of
the ADAAA, the statute governs here. Cf.
McCowan v. HSBC Bank USA, N.A., 689 F.
Supp. 2d 390, 398 (E.D.N.Y. 2010) (“[T]his
Court and other courts have stated that the
ADAAA does not apply to conduct that
occurred prior to the effective date of the
statute.”). Accordingly, although the parties
brief their arguments under the previous
standard for disability claims, the Court
applies the newer standard.5
1. Whether Plaintiff Has an ADAQualifying Disability
The ADA Amendment Act of 2008
(“ADAAA”), effective January 1, 2009,
altered the analysis for assessing ADAdisability claims, “substantially broaden[ing]
the definition of a disability under the law,
in explicit response to Sutton v. United Air
Lines, 527 U.S. 471 (1999) and Toyota
Motor Mfg. v. Williams, 534 U.S. 184
(2002), in which the ADA’s terms defining
disability had been strictly defined.” Green
v. DGG Properties Co., Inc., No. 11-CV1989 (VLB), 2013 WL 395484, at *9 (D.
Conn. Jan. 31, 2013) (citation and internal
quotation marks omitted); see also Kravtsov
v. Town of Greenburgh, No. 10-CV3142(CS), 2012 WL 2719663, at *10
(S.D.N.Y. July 9, 2012) (“In enacting the
ADA, Congress intended to provide broad
coverage for individuals with disabilities,
and in enacting the ADAAA in 2008,
rejected Supreme Court precedent in Toyota
Motor Mfg. v. Williams, 534 U.S. 184
(2002),
as
interpreting
the
term
‘substantially limits’ to require a greater
degree of limitation than was intended.”
(alteration, citation, and internal quotation
marks omitted)). Thus, “[w]hile the terms of
The ADAAA defines “disability” as:
(A) a physical or mental
impairment that substantially
limits one or more major life
activities of such individual;
(B) a record of such an
impairment; or
(C) being regarded as having
such an impairment.
42 U.S.C. § 12102(1).
In this case, plaintiff claims that she has
a disability as defined under each of the
5
Although the Court applies the post-ADAAA
standard, it cites some pre-ADAAA cases where the
analysis contained therein is illustrative, even under
the more liberal ADAAA standard.
11
ADA’s three prongs. (See Pl.’s Opp’n at 7.)6
However, the ADAAA now makes clear that
no failure to accommodate claim can be
made, as a matter of law, for an individual
who was “regarded as” disabled, rather than
who was actually disabled. In other words,
the “regarded as” theory of disability is no
longer actionable in the context of a failure
to accommodate claim. See 42 U.S.C.
§ 12201(h) (“A covered entity under
subchapter I, a public entity under
subchapter II, and any person who owns,
leases (or leases to), or operates a place of
public accommodation under subchapter III,
need
not
provide
a
reasonable
accommodation
or
a
reasonable
modification to policies, practices, or
procedures to an individual who meets the
definition of disability in section 12102(1)
of this title solely under subparagraph (C) of
this title solely under subparagraph (C) of
such section.”); see also Powers v. USF
Holland, Inc., 667 F.3d 815, 823 n.7 (7th
Cir. 2011) (“[T]he ADAAA clarified that an
individual ‘regarded as’ disabled (as
opposed to actually disabled) is not entitled
to a ‘reasonable accommodation.” (quoting
42 U.S.C. § 12201(h))). Thus, this Court
only addresses, for purposes of plaintiff’s
failure to accommodate claim, whether there
is evidence from which a rational jury could
find that plaintiff was disabled or had a
record of disability.
physical or mental impairment, (2) identify
the activity claimed to be impaired and
establish that it constitutes a major life
activity, and (3) show that [her] impairment
substantially limits the major life activity
previously identified.” Green, 2013 WL
395484, at *9 (quoting Kravtsov, 2012 WL
2719663, at *10) (internal quotation marks
omitted).
Significantly, the ADAAA enlarged the
three-category definition of “disability,”
clarifying (and broadening) that which
constitutes a “major life activity” under the
amended legal framework. See Pub. L. No.
110-325, § 4(a), 122 Stat. 3553 (2008); see
also Wilkins v. J.C. Penney Corp., Inc., No.
11-CV-989(VLB), 2013 WL 3816588, at *6
n.1 (D. Conn. July 22, 2013) (noting the
ADAAA’s expansion of the ADA’s threecategory disability definition); Shah v.
Eclipsys
Corp.,
No.
08-CV-2528
(JFB)(WDW), 2010 WL 2710618, at *6 &
n.5 (E.D.N.Y. July 7, 2010). Thus, postADAAA, major life activities include, but
are not limited to, “caring for oneself,
performing manual tasks, seeing, hearing,
eating, sleeping, walking, standing, lifting,
bending, speaking, breathing, learning,
reading,
concentrating,
thinking,
communicating, and working.” 42 U.S.C.
§ 12102(2). Major life activities also may
include “the operation of a major bodily
function, including but not limited to,
functions of the immune system, normal cell
growth,
digestive,
bowel,
bladder,
neurological, brain, respiratory, circulatory,
endocrine, and reproductive functions.” Id.
Notably,
post-ADAAA,
“major
life
activities no longer need to be of ‘central
importance.’” D’Entremont v. Atlas Health
Care Linen Servs., Co., No. 12-CV-0060
(LEK/RFT), 2013 WL 998040, at *6
(N.D.N.Y. Mar. 13, 2013) (quoting SamSekur v. Whitmore Grp., Ltd., No. 11-CV4938, 2012 WL 2244325, at *6 (E.D.N.Y.
a. Whether Plaintiff Has a Physical
Impairment that Affects a Major Life
Activity
For a plaintiff to establish that she has a
disability under the statute’s first subsection,
she must “(1) show that [she] suffers from a
6
As noted previously, the parties’ arguments appear
to have been briefed under the previous ADA
standard. For simplicity’s sake, the Court refers to the
newer standard in its discussion of the applicable law
and parties’ positions.
12
Plaintiff’s claimed disability here is the
injury to her hip, which she first sustained in
1983 and which she claims limited her
mobility. Defendant argues that there is no
evidence that plaintiff’s alleged impairment
substantially limits a major life activity. (See
Def.’s Mot. for Summ. J. at 13 (noting that
simply having an impairment does not make
one disabled for purposes of the ADA, but
rather, if that impairment substantially limits
a major life activity, and arguing that
plaintiff has not shown that she has an
impairment “that substantially limits one or
more of her major life activity”)); see also
id. at 14-16 (limiting argument to whether
plaintiff’s alleged impairment substantially
prevents her from engaging in major life
activities).)
June 15, 2012)); see also 42 U.S.C.
§ 12102(2)(A).
The ADA does not set forth a definition
for what constitutes a substantial limitation.
See Kravtsov, 2012 WL 2719663, at *10
(stating that “[t]he ADA does not define the
term ‘substantially limited,’ but postADAAA regulations” clarify the term).
However, post-enactment of the ADAAA, it
is clear that the standard “is not meant to be
[] demanding,” 29 C.F.R. § 1630.2(j)(1)(i),
and “should not demand extensive analysis,”
id. 1630.2(j)(1)(iii). Thus, an impairment
will be considered a disability under the
statute “if it substantially limits the ability of
an individual to perform a major life activity
as compared to most people in the general
population.” Risco v. McHugh, 868 F. Supp.
2d 75, 108 (S.D.N.Y. 2012) (quoting 29
C.F.R.
§
1630.2(j1)(1)(ii))
(internal
quotation marks omitted). An impairment
“need not prevent, or significantly or
severely restrict, the individual from
performing a major life activity in order to
be considered substantially limiting.”
Kravtsov, 2012 WL 2719663, at *10
(quoting 29 C.F.R. § 1630.2(j)(1)(ii))
(internal quotation marks omitted); see also
Brandon v. O’Mara, No. 10-CV-5174(RJH),
2011 WL 4478492, at *7 (S.D.N.Y. Sept.
28, 2011) (“[T]he revised EEOC regulations
provide that ‘[a]n impairment is a
disability . . . if it substantially limits the
ability of an individual to perform a major
life activity as compared to most people in
the general population[; t]hat is, while [a]n
impairment
need
not
prevent,
or
significantly or severely restrict, the
individual from performing a major life
activity in order to be considered
substantially limiting, . . . the substantially
limits analysis is comparative.” (second and
fourth alterations in original) (citation and
internal quotation marks omitted)).
The alleged major life activities that
plaintiff contends her claimed disability
interfered with include “performing manual
tasks, walking, standing, lifting, and
bending.” (Def.’s Mot. for Summ. J. Ex. A
¶ 53.) However, plaintiff has failed to show
that her alleged physical impairment
substantially limits this activity when
compared to most people in the general
population. For instance, although plaintiff
claims to have had difficulty walking or
performing tasks at work, both her
deposition testimony, as well as the
uncontroverted evidence in the record,
indicates to the contrary:
Q: [In 1987] [w]ere you able to walk?
A: Yes . . .
Q: Did your job include walking or
moving about the school building?
A: Yes, it did.
Q: Were you able to do that without
difficulty?
13
Q: Were there any functions of your job
that you had done before you were
injured [during the 1998-1999 school
year] that you weren’t able to do after
you were injured?
A: Yes.
(Pl.’s Opp’n Ex. 1, at 50.)
*
*
*
A: No.
Q: Did you recall if you returned to
school during that 1998/1999 school
year?
(Id. at 55.)
*
A: Yes, I did.
*
*
Q: When you returned to work following
[the 2009] incident, was there any aspect
of your job that you were not able to
perform without modification or change
to it?
Q: At the time you returned, were you
able to walk?
A: Yes.
(Id. at 55.)
A: No.
Moreover, after each of plaintiff’s onthe-job injuries, she was able to walk
without difficulty and perform all of her
normal job function upon her return to work:
(Id. at 62.)
Q: When you returned to work [after the
third school injury in fall 2010] were
you able to resume all your normal job
responsibilities?
Q: How, if at all, did the prior injury to
your hip affect your ability to do your
job in 1987?
A: I was . . .
A: I don’t think it hampered my ability
whatsoever.
(Id. at 66-67.)
(Pl.’s Opp’n Ex. 1, at 49.)
*
*
*
A: Only the times that I was hurt and
they took me away by ambulance. I
couldn’t finish out the days.
A: No.
Q: Other than those times, the times that
you reported to work and completed the
workdays, were there any times during
(Id. at 51.)
*
*
Q: Were there any times during your
time with Three Village that you weren’t
able to do your job because of your
disabilities?
*
Q: From 1987 up until 1999, did you
have any conditions or injuries that
affected your ability to do your job at
Three Village?
*
*
*
14
entrance” at all times relevant to this
dispute, this is not sufficient for purposes of
establishing an impairment that substantially
limits her abilities as compared to most
people in the general population, particularly
given that plaintiff concedes she was able to
walk around the school building throughout
the day without difficulty or hindrance to
her abilities to perform her work functions.
(See Pl.’s Opp’n at 9.) The most plaintiff’s
testimony shows is that she could not
perform such tasks as horseback riding,
skiing, ice skating, running, or rollerskating. (See Pl.’s Opp’n Ex. 1, at 49.)
These, however, do not constitute major life
activities under the ADAAA, nor were these
activities ones in which she had to engage as
part of her job responsibilities as a CTA.
Those major life activities that plaintiff
claims were substantially impaired by her
alleged disability – namely, walking,
standing, bending, and performing manual
tasks – are directly countered by her own
testimony, which confirms that she was able
to walk, do normal work functions, and even
drive to school without any assistance
required.
those times that you weren’t able to do
your job because of your disabilities?
A: No.
(Id. at 124-25.)
Additionally, plaintiff testified that she
did not need any accommodations in order
to perform her normal job functions,
whether pre or post the alleged injuries.
(See, e.g., Pl.’s Opp’n Ex. 1, at 50 (“Q:
Upon starting at Three Village in 1987, did
you request any special accommodations for
your workplace? A: I didn’t need to, so
no.”); id. at 52 (“Q: During that 12 or 13
year period from the time you started, up
until [the] 1999 incident, did you make any
special requests from the District for
accommodations or advise them in any way
you needed certain things to do your job? A:
No.); id. at 55 (Q: [Post 1999 accident][d]id
you make any special requests for
consideration or accommodation from the
District when you returned to work? A:
None that I can think about.”); id. at 62
(referring to 2009 incident and stating: “Q:
Did you request any accommodations from
the District as a result of this incident? A:
No.); id. at 67 (referring to fall 2010 injury
and stating: “Q: Did you request any
accommodations as a result of your injuries?
A: I did not.”).)
When comparing her alleged condition
to that of most members of the general
population, the Court finds it difficult to
decipher a distinguishable limitation here.
That is, plaintiff seems to have been able to
perform all of her alleged major life
activities with little to no restriction. While
the revised ADAAA standard broadens the
definition of a disability, it does not
relinquish plaintiff of having to show a
limitation of some sort; i.e., while the
alleged impairment “need not prevent, or
significantly or severely restrict,” an
individual’s ability to perform a major life
activity, a plaintiff still must show that the
alleged impairment substantially limits a
major life activity when compared to others.
See Brandon, 2011 WL 4478492, at *7
(“While Congress undoubtedly intended to
Thus, plaintiff’s own testimony
confirms that her alleged physical
impairment did not substantially limit the
asserted major life activities of walking,
standing, bending, lifting, or performing
manual tasks; it did not affect her ability to
perform her normal job functions; and it did
not require plaintiff to make any
accommodation requests. Although plaintiff
contends this is not so in her opposition
motion, asserting that she “needed a
handicapped parking space providing a safe
pathway from the parking lot to her building
15
occasion, he fell while attempting to avoid
being struck by a vehicle[; f]inally, as the
district court noted, [plaintiff] has not
presented any medical opinions supporting a
disability under the Act[, and w]e agree with
the district court’s analysis that [plaintiff]
has not presented sufficient evidence to
allow a reasonable juror to find a
‘substantial limitation’ on [plaintiff’s] ability
to walk”); Moore v. J.B. Hunt Transport,
Inc., 221 F.3d 944, 951-52 (7th Cir. 2000)
(finding that physical ailment of arthritis,
which limited plaintiff’s rate and pace of
walking, was insufficient to rise to the level
of an ADA-qualifying disability); Weber v.
Strippit, 186 F.3d 907, 914 (8th Cir. 1999)
(stating that a plaintiff who had “difficulty
walking long distances or climbing stairs
without getting fatigued” only suffered from
“moderate limitations on major life activities
[which] d[id] not suffice to constitute a
‘disability’ under the ADA”); Talk v. Delta
Airlines, Inc., 165 F.3d 1021, 1025 (5th Cir.
1999) (fact that plaintiff walked with a limp,
walked slower than the average person, and
had difficulty walking in extreme cold, was
not sufficient to satisfy the first subsection
of an ADA disability claim); Kelly v. Drexel
Univ., 94 F.3d 102, 106 (3d Cir. 1996)
(finding physical ailment of a limp, which
required plaintiff to walk slowly and
prevented her from walking more than one
mile, was not sufficient for purposes of
establishing an ADA-qualifying disability
under first subsection); Sussle v. Sirina Prot.
Sys. Corp., 269 F. Supp. 2d 285, 312
(S.D.N.Y. 2003) (stating that “[t]he
‘inability to walk long distances or to climb
stairs does not in itself substantially limit’ an
individual’s ability to perform a major life
activity (quoting Stewart v. Weast, 228 F.
Supp. 2d 660, 662 (D. Md. 2002))).
broaden the scope of the ADA beyond the
boundaries recognized in Toyota, it remains
the case that ‘not every impairment will
constitute a disability . . . .’” (quoting 29
C.F.R. § 1630.2(j)(1)(ii))). Here, by her own
words, plaintiff acknowledges that she has
been able to perform the identified major
life activities without issue; therefore, it is
difficult – if not impossible – for the Court
to determine whether or how plaintiff’s
alleged impairment limited her abilities to
perform these acts “as compared to most
people in the general population.” See id.
(quoting 29 C.F.R. § 1630.2(j)(1)(ii)).
Finally, not only does plaintiff’s own
testimony contradict her assertion that she
suffers from a disability under the ADAAA
definition, but plaintiff has not provided any
other evidence – medical or otherwise – that
without a handicapped parking spot, she
would not be able to perform the identified
impacted major life activities, or suggesting
– at the least – that her ability to perform
such functions was “substantially limited”
when compared to the general population.
For these reasons, the Court concludes that
plaintiff has failed to produce evidence from
which a rational jury could conclude that her
alleged impairment with respect to a major
life activity was substantially limiting.
Accordingly, even construing the evidence
most favorably to plaintiff, she cannot
demonstrate a disability under subsection
one of the ADAAA. See generally Colwell
v. Suffolk Cnty. Police Dep’t, 158 F.3d 635,
645 (2d Cir. 1998); see also Curtis v.
Humana Military Healthcare Servs., Inc.,
No. 10-5614, 448 F. App’x 578, 581 (6th
Cir. 2011) (affirming summary judgment on
claim that employer’s refusal to provide a
closer parking space was a failure to provide
a reasonable accommodation; noting that
“[t]he record here shows that [plaintiff]
walked from his car to work almost every
day . . . . [Plaintiff] fell only once while
walking to his workplace and, on that
b. The “Record” of a Disability Prong
Even if a plaintiff cannot show a
substantial limitation of a major life activity,
16
she still may be able to establish an ADAqualifying disability if she can show “a
record” of such an impairment. See 42
U.S.C. § 12102(1)(B). The EEOC
previously stated that this “part of the
definition is satisfied if a record relied on by
an employer indicates that the individual has
or has had a substantially limiting
impairment. The impairment indicated in the
record must be an impairment that would
substantially limit one or more of the
individual’s major life activities.” Colwell,
158 F.3d at 645 (quoting 29 C.F.R. pt. 1630
App., § 1630.2(k)) (emphasis added). In
other words, “a record reflecting a plaintiff’s
classification as disabled for other purposes
or other standards is not enough.” Id.7
sufficient, in and of itself, to establish that
plaintiff has a record of an impairment that
qualifies as an ADA-disability. See Cody,
577 F. Supp. 2d at 642; see also Howard v.
Wal-Mart Stores, Inc., No. 05-CV-250, 2005
WL 2861107, at *2 (N.D. Ohio Nov. 1,
2005) (“The fact [ ] that Plaintiff drives a car
with . . . a [handicapped] sticker . . . does not
reveal that he suffers from an ADA
protected disability . . . .”); Robinson v.
Hoover Enters. LLC, 03-CV-2565 (TWT),
2004 WL 2792057, at *5 (N.D. Ga. Oct. 20,
2004) (“Certification or diagnosis of a
disability for purposes of a [handicapped]
parking permit falls short of the exacting
standards of qualifying as disabled under the
ADA.”).
Plaintiff contends that she satisfies this
subsection of the statute’s definition of a
disability because she suffered three on-thejob injuries, which required medical
treatment and hospitalization, as well as the
filing of internal accident reports with
defendant. (See Pl.’s Opp’n at 9.)
Additionally, plaintiff asserts that she filed
worker’s compensation claims for each
injury. (Id.) Lastly, plaintiff states that she
held a handicapped parking permit
throughout her period of employment with
defendant, and that defendant knew of this
permit. For these reasons, plaintiff asserts
that her “disability and surrounding frailty
has been well documented.” (Id.)
Additionally, the Court notes that
plaintiff cites to no documentation in the
record confirming her alleged filing of
accident reports or worker’s compensation
claims, other than her own testimony. (See
Pl.’s Opp’n at 9 (citing to 56.1 Statement
and own deposition testimony)); see also
Jeffries
v.
Verizon,
No.
10-CV2686(JFB)(AKT), 2012 WL 4344197, at
*10 (stating that “[d]istrict courts in the
Second Circuit have repeatedly held that a
plaintiff’s personal testimony which
describes the alleged limits that affect a
major life activity, without supporting
medical testimony, simply is not sufficient
to establish his prima facie case under the
ADA” (alteration in original) (quoting
Sussle, 269 F. Supp. 2d at 301) (internal
quotation marks omitted)); Cody, 577 F.
Supp. 2d at 642 (concluding that plaintiff’s
“record of impairment” claim fails, in part,
because plaintiff “offers no evidence to
support a finding that she has a record of an
impairment that substantially limits a major
life activity,” and that “the only statement
offered by plaintiff that even addresses this
argument is contained in the affidavit of her
counsel”).
To begin with, the fact that plaintiff had
a handicapped parking permit is not
7
Most recently, “the EEOC has expressed its view
that the ‘record’ of a disability does not depend on
whether an employer relied on a record in making an
employment decision,” but instead, better relates to
the employer’s “knowledge of an individual’s past
substantially limiting impairment” and “whether the
employer engaged in discrimination.” Behringer v.
Lavelle Sch. For Blind, No. 08-CV-4899(JGK), 2010
WL 5158644, at *10 & n.10 (S.D.N.Y. Dec. 17,
2010) (emphasis added).
17
v. N.Y.C. Dep’t of Health, 25 F. App’x 57,
61 n.2 (2d Cir. 2001) (considering plaintiff’s
argument that “the documents contained in
his employee file, including the complaints,
grievances,
records,
and
Worker’s
Compensation Board findings, constitute a
record of impairment sufficient to meet the
definition of disability”; noting that “[i]n
order to establish a substantial limitation,
[the court] must conduct the same analysis
of the effect of the impairment on
[plaintiff’s alleged physical impairments] as
reflected in those records”; and concluding
that “[w]hile these may establish a record of
the physical impairment, they do not
establish a record that the physical
impairment
created
a
substantial
limitation”). That is, plaintiff’s asserted
records of impairment – which the Court has
been unable to review, but of which the
Court accepts plaintiff’s description –
simply confirm that she was injured three
times on the job, which caused her to miss
work, but that she had no other limitations
on her ability to perform major life activities
prior or subsequent to her alleged injuries.
Indeed, according to her own testimony,
plaintiff confirms that she was able to return
to work and perform her same normal job
functions, including walking, without having
to request any accommodations from the
District following her on-the-job injuries
and filing of workers compensation claims.
This is insufficient for purposes of
establishing a record of impairment. See
Sam-Sekur, 2012 WL 2244325, at *7 n.4
(applying post-ADAAA disability standard
and concluding that plaintiff had not
established a record of an impairment
because she did “not sufficiently allege an
impairment that substantially limited a
major life activity under 42 U.S.C.
§ 12102(1)(A), and plaintiff does not allege
that there were records relied on by her
employer indicating a greater degree of
limitation than she alleged in her
In any event, even if plaintiff had
provided such materials, records of
hospitalization or other medical treatment do
not per se establish a record of an ADAqualifying disability; rather, the evidence
must establish a physical impairment that
substantially impaired a major life activity.
See, e.g., Colwell, 158 F.3d at 645 (record of
previous hospital stay did not, by itself,
constitute a record of impairment); see also
Dupre v. Charter Behavioral Health Sys. of
Lafayette, Inc., 242 F.3d 610, 615 (5th Cir.
2001) (health screening form, which
indicated that new employee was under the
care of physician and had undergone
surgery, did not show that plaintiff’s
impairment substantially limited any major
life activity, and therefore, was insufficient
as a record of disability); Hilburn v. Murata
Elecs. N. Am., Inc., 181 F.3d 1220, 1229-30
(11th Cir. 1999) (employer record that
employee missed work following a heart
attack and in the following years did not
establish that the employee had a record of
disability); Dicara v. Conn. Rivers Council,
663 F. Supp. 2d 85, 93 (D. Conn. 2009)
(noting that the fact that employee
underwent surgery and was hospitalized was
insufficient to create a record of a
substantially limiting impairment).
In this case, even construing the record
in plaintiff’s favor and crediting her
description of these alleged records of
impairment, her claim still cannot survive
summary judgment. Again, her alleged
impairment involves no greater degree of
limitation on major life activities than those
impairments previously considered and
rejected supra. Stated differently, accepting
plaintiff’s description of these documents’
contents as true, these records simply reflect
a physical impairment, in and of itself; they
do not show that the impairment
substantially limited her in major life
activities, which is the key component to
establishing a disability claim. See Schapiro
18
complaint”). Accordingly, even construing
the evidence most favorably to plaintiff, no
rational jury could find that plaintiff had a
record of impairment, particularly where the
alleged records demonstrate no greater
degree of impairment than that already
considered and rejected.
*
*
failed to provide plaintiff with a reasonable
accommodation.
Pursuant to the second requirement of a
reasonable accommodation claim, plaintiff
must show that defendant had notice of
plaintiff’s disability. The most notice that
plaintiff points to here consists of the
following: she had a handicapped parking
sticker, she commonly parked in a
handicapped parking spot, and at least one
District employee noticed that she walked
with a limp. Regarding the handicapped
parking sticker and parking space, as
previously set forth, the law is clear that a
handicapped parking permit is not sufficient,
standing alone, to give an entity knowledge
of an ADA-qualifying disability. See Cody,
577 F. Supp. 2d at 642 (citing Howard,
2005 WL 2861107, at *2); Robinson, 2004
WL 279205, at *5. Similarly, the fact that an
individual has a visible limp or type of
walking impairment does not per se
establish an ADA-qualifying disability. See,
e.g., Kelly, 94 F.3d at 105 (plaintiff with
severe post-traumatic hip impairment, who
was unable to walk more than a mile, could
not jog, and who had to use a hand rail to
ascend stairs, did not have an ADAqualifying disability by virtue of such
evidence); Penny v. United Parcel Serv.,
128 F.3d 408, 416 (6th Cir. 1997) (plaintiff
who had an impairment of less than 20% of
his body and who had difficulty walking did
not have an ADA-disability); Ricardson v.
William Powell Co., No. C-1-93-528, 1994
WL 760695, at *7 (S.D. Ohio Nov. 10,
1994) (a severe arthritis that caused a
noticeable limp and difficulty climbing
stairs did not constitute an ADA-qualifying
disability).
*
In sum, plaintiff has failed to set forth
any evidence from which a rational jury
could find that she has a physical
impairment that substantially limits a major
life activity as compared to the general
population, or a record of such an
impairment. Accordingly, plaintiff’s ADA
reasonable accommodation claim fails as a
matter of law.
2. Alleged Failure to Accommodate8
The Court’s analysis of plaintiff’s failure
to accommodate claim may properly end
here, as plaintiff has failed the first
requirement of such a claim. See Cody, 577
F. Supp. 2d at 643 (concluding that because
plaintiff had failed to show she had an
ADA-qualifying disability under her
disability
discrimination
claim,
her
reasonable accommodation claim could not
prevail). However, the Court, in an
abundance of caution, will address the
parties’ other arguments concerning her
reasonable accommodation claim. In
particular, even assuming arguendo that
there was sufficient evidence from which
plaintiff could establish that she has a
disability within the meaning of the ADA,
no rational jury could find that defendant
Although the fact that plaintiff walked
with a limp and parked in a handicapped
parking space certainly might have alerted
the District that plaintiff had some form of
an ailment that was not shared by others,
8
Although the overwhelming majority of plaintiff’s
referenced accommodation requests sound more of a
complaint regarding parking inconveniences than of
an accommodation request, the Court views the
record in plaintiff’s favor and construes her parking
space requests as requests for accommodation.
19
were needed in order for her to complete her
essential job functions (which, based on
plaintiff’s own testimony, seems clear was
not, in fact, the case),9 defendant did not
provide her with such.
there is absolutely no evidence that the
District was on notice of a disability. This is
particularly so in light of the fact that
whenever plaintiff complained to the
District concerning the handicapped spaces,
she did not refer to herself as disabled,
describe her condition as one that prevented
or impeded her from performing or
completing her job functions, or otherwise
make clear to the District the alleged
severity of her physical impairment. (See
Pl.’s Opp’n. Ex. 1, at 104 (“Q: Did you
discuss with [the Assistant Principal] your
particular disabilities and how this impacted
you? A: Yes. I told him that I needed the
closest accessible entrance. Q: What did you
tell him about your disability or disabilities?
A: That I needed a safe pathway from where
I parked my car to the doorway. Q: Did you
ever tell Mr. Owen the particular disabilities
that you were suffering from? A: Yes. I told
him that if I should fall just the right way, I
could lose my leg.”).) The most plaintiff
seems to have established in her complaints
and requests to the District is that she
needed a safe pathway between her parking
space and the building, and that should she
fall a certain way, she might severely injure
herself. The Court fails to see how this
situation, however, is unique to plaintiff –
the same concern might be said of any
school employee who might be walking to
and from the parking area, and who, for
whatever reason, might take a bad tumble
and fall. The Court disagrees with plaintiff’s
contention that such requests for a
handicapped spot or raising of concerns
regarding clear, safe pathways were
sufficient for purposes of providing the
District with notice of a disability.
Specifically, plaintiff testified that any
requests she ever made to the District
concerning her alleged disability were, in
fact, honored. (See Id. at 126 (“Q: Were
there any requests that you made to the
District for assistance or accommodation
with respect to disabilities that were not
honored? A: No.”).) A review of the record
reveals the same.
For instance, when plaintiff asked Baum
(during construction) about the absence of
handicapped parking spaces on the
building’s south side, he directed her to
9
It is well established that in order for a plaintiff to
state a failure to reasonably accommodate claim, she
must show that she could perform the essential
functions of her job with or without reasonable
accommodation. Scalera, 848 F. Supp. 2d at 363 (“A
plaintiff who brings an action under the ADA for
failure to make reasonable accommodations must
establish that he or she can perform the essential
functions of the job, either unaided or with the
assistance of a reasonable accommodation.”); see
also 42 U.S.C. § 12111(8). Regarding this argument,
defendant does not appear to dispute that plaintiff
was able to perform her essential job functions at all
times relevant to this dispute. Indeed, if anything,
defendant takes the opposite position, contending that
plaintiff, with or without her handicapped parking
spot, was able to effectively perform her normal job
functions. Moreover, plaintiff repeatedly testified that
her abilities to perform her job functions were not
affected or impaired by her alleged disability or onthe-job injuries. (See, e.g., Pl.’s Opp’n Ex. 1 at 49,
51, 55, 62, 67, 124-25.) Additionally, plaintiff
testified that she did not need any accommodations in
order to perform her normal job functions, whether
pre or post her alleged on-the-job injuries. (See, e.g.,
id. at 50; id. at 52; id. at 55; id. at 62; id. at 67.) Thus,
the Court, construing the allegations in plaintiff’s
favor, accepts that plaintiff could perform her
essential job functions with her alleged physical
impairment for purposes of her failure to reasonably
accommodate claim.
Even if the Court were to conclude,
however, that plaintiff had shown that the
District had notice of her alleged disability,
plaintiff’s reasonable accommodation claim
still fails because plaintiff does not show
that, even if reasonable accommodations
20
reflect an interactive process: “meet[ing]
with the employee who requests an
accommodation
request,
request[ing]
information about the condition and what
limitations the employee has, ask[ing] the
employee what he or she specifically wants,
show[ing] some sign of having considered
[the] employee’s request, and offer[ing] and
discuss[ing] available alternatives when the
request is too burdensome.” Taylor v.
Phoenixville Sch. Dist., 174 F.3d 142, 162
(3d Cir. 1999). The aforementioned
evidence shows just this: defendant meeting
with plaintiff, listening to her concerns, and
taking actions that reflected its having
considered her request, whether by having
Owen speak with Grillo concerning the
location of the handicapped spots, or by
having signs immediately erected to clearly
identify
those
spots
reserved
for
handicapped parking permitted individuals.
Moreover, it is not as though defendant
denied plaintiff a handicapped parking space
– it was made clear to her that she was free
to park in the moved handicapped parking
spaces at all times during construction.
Plaintiff chose not to avail herself of these
parking spaces. Although plaintiff contends
that no accommodation was made because
her former handicapped parking space was
not restored to her during that time, the
Court fails to see how the District
reasonably could have taken such action,
given that the entire section of the building
in which plaintiff’s prior parking space was
located was under construction at the time.
Had defendant chosen to accommodate
plaintiff in the manner she requested, it
would have been exposing her to a
hazardous situation – namely, an active
construction site with a potentially unsafe
pathway to the school. These are the precise
concerns plaintiff claims to have voiced to
the District on several occasions for
purposes of giving it notice of her disability;
she cannot now contend that it was
Owen, who was in charge of the
construction project. Owen took steps to
address plaintiff’s inquiries. In particular,
Owen’s conversations with Grillo, the
District’s architect (which plaintiff does not
dispute occurred on an almost daily basis
(see Pl.’s 56.1 ¶ 37)), confirmed that the
parking lot met the requirements for
handicapped spaces during the construction,
that there was no alternative in terms of the
handicapped spots’ location, and that the
spots were located as close to the entrance
doors as possible. (See Def.’s 56.1 ¶¶ 3438.) On a subsequent occasion, when
plaintiff complained to Baum about persons
improperly parking in handicapped spots
because the spaces’ lines had become
obscured by snow and bore no other
designations, the District had signs put up
that same day identifying the spaces as
handicapped parking. (See Def.’s 56.1 ¶ 40;
Pl.’s 56.1 ¶ 40.) Regarding the sign postings,
plaintiff testified that she possibly recalled
sending Baum a thank you letter for his
prompt attention to her request. (See Pl.’s
Opp’n Ex. 1 at 86.) Where plaintiff took
actions into her own hands, attempting to
create a handicapped parking spot in its
former location by either cutting the ribbons
to the cordoned off spots or making her own
spot next to the handicapped ones, the
District did not discipline plaintiff or prevent
her from doing so. (See Def.’s 56.1 ¶ 44.)
A review of the uncontroverted evidence
in the record, including plaintiff’s testimony,
shows that defendant engaged in an
interactive process with her when trying to
provide
her
with
the
requested
accommodations. See Jackan v. N.Y. State
Dep’t of Labor, 205 F.3d 562, 566 (2d Cir.
2000) (“The ADA envisions an ‘interactive
process’ by which employers and employees
work together to assess whether an
employee’s disability can be reasonably
accommodated.”) At least one circuit court
has described possible actions that might
21
engage in an interactive process with her
concerning her requests. Instead, based on
the uncontroverted evidence, including
plaintiff’s own testimony, the Court
concludes that summary judgment is
warranted on the question of whether
defendants
reasonably
accommodated
plaintiff’s accommodation requests.
unreasonable of the District to have failed to
have taken these considerations and needs
into account when she requested a parking
space amidst a construction site. In fact,
other than parking within the hazardous
construction site (which was not an option
for obvious reasons), plaintiff has failed to
identify any other accommodation that she
did request (or even could have requested)
of the District. Thus, summary judgment on
this claim is warranted.
B. Retaliation Claim10
Plaintiff also claims that defendant
retaliated against her repeated requests for
accommodation (i.e., replacement of her
former handicapped parking space) when it
decided to terminate her in November 2010.
(See Pl.’s Opp’n at 12-20.) In particular,
plaintiff claims that she (1) engaged in
protected activity, namely, repeated
complaints, (2) of which the District was
aware, (3) and suffered an adverse
employment
action
(specifically,
termination) which (4) had a causal
connection with her protected activity. See
Sarno v. Douglas Elliman-Gibbons & Ives,
Inc., 183 F.3d 155, 159 (2d Cir. 1999)
(setting forth the prima facie standard for
retaliation). Defendant counters that plaintiff
cannot show engagement in a protected
activity, and even if she can, she cannot
establish a causal connection between the
alleged protected activity and the adverse
action. (See Def.’s Summ. J. Mot. at 20-23.)
Generally, a plaintiff’s burden at the
summary judgment stage is “‘minimal’ and
In Trepka v. Board of Education, the
Sixth Circuit reached the same conclusion in
analogous circumstances. 28 F. App’x 455
(6th Cir. 2002). Specifically, the plaintiff
school teacher claimed that the school board
had failed to make a reasonable
accommodation to her alleged permanent
disability – which caused permanent pain to
her back and neck and made it difficult to
climb stairs and carry oversized loads – by
denying her a room closer to where she
parked her car. Id. at 460. However, the
Sixth Circuit found summary judgment on
that claim was proper because, inter alia,
“[t]he only relevant difference between the
requested Room 108 and her assigned Room
104 is the distance that [plaintiff] would be
required to navigate inside the building from
her car” and plaintiff “presented no evidence
that her condition limited her ability to
walk.” Id. The Sixth Circuit also rejected the
related claim that she was not provided with
adequate handicapped parking. Id. In
particular, the court noted that “[a]bsent any
evidence of more profound physical
limitations arising from her condition, we
hold that [plaintiff] has not demonstrated a
genuine issue of material fact as to whether
her parking needs were reasonably
accommodated.” Id.
10
Although this Court has determined that plaintiff
cannot demonstrate that she was disabled during the
relevant period because of a lack of evidence, that
conclusion does not preclude a claim of retaliation.
“[C]ourts generally have recognized that nondisabled individuals who request reasonable
accommodation are protected against retaliation,
provided the request was made in good faith.”
Keating v. Gaffney, 182 F. Supp. 2d 278, 288
(E.D.N.Y. 2001) (citing Weissman v. Dawn Joy
Fashions, Inc., 214 F.3d 224, 233 (2d Cir. 2000)).
In sum, even construing the evidence
most favorably to plaintiff, no rational jury
could find that the District failed to
reasonably accommodate plaintiff or to
22
30, 2013); see also Univ. of Texas Sw. Med.
Ctr. v. Nassar, 133 S. Ct. 2517, 2534 (2013)
(stating that a plaintiff “must establish that
his or her protected activity was a but-for
cause of the alleged adverse action by the
employer”).
‘de minimis’”; thus, “the court’s role . . . is
to determine only whether proffered
admissible evidence would be sufficient to
permit a rational finder of fact to infer a
retaliatory motive.” Jute v. Hamilton
Sundstrand Corp., 420 F.3d 166, 173 (2d
Cir. 2005). The Court begins its analysis
with the applicable legal framework.
Subsequent to briefing in this case, the
Supreme Court modified the standard for
employment discrimination in University of
Texas Southwestern Med. Ctr. v. Nassar,
133 S. Ct. 1517 (2013). In this decision, the
Supreme Court set forth a higher standard
for plaintiffs seeking to establish a
retaliation claim under Title VII. In
particular, the Supreme Court held that
“Title VII retaliation claims must be proved
according to traditional principles of but-for
causation, not the lessened causation test
stated in § 2000e-2(m)” of Title VII. Id. at
2533; see also Brooks v. D.C. 9 Painters
Union, No. 10-CV-7800 (JPO), 2013 WL
3328044, at *4 (S.D.N.Y. July 2, 2013) (“If
the defendant [articulates a legitimate, nonretaliatory reason], the plaintiff must offer
‘proof that the unlawful retaliation would
have occurred in the absence of the alleged
wrongful action or actions of the
employer.’” (quoting Nassar, 133 S. Ct. at
2534)).
Retaliation claims brought under the
ADA are examined under the McDonnell
Douglas
burden-shifting
test.
See
McDonnell Douglas Corp. v. Green, 411
U.S. 792, 802 (1973); see also Heyman, 198
F.3d at 72. Pursuant to this test, a plaintiff
first must set forth a prima facie case of
retaliation. See Fincher v. Depository Trust
& Clearing Corp., 604 F.3d 712, 720 (2d
Cir. 2010). That is, the plaintiff must show
“[1] participation in a protected activity
known to the defendant; [2] an employment
action disadvantaging the plaintiff; and [3] a
causal connection between the protected
activity and the adverse employment
action.” Terry v. Ashcroft, 336 F.3d 128, 141
(2d Cir. 2003) (quoting Quinn v. Green Tree
Credit Corp., 159 F.3d 759, 769 (2d Cir.
1998)) (internal quotation marks omitted). If
the plaintiff is able to establish a prima facie
case of discrimination, the burden then shifts
to the defendant to set forth “some
legitimate, nondiscriminatory reason” for
the complained-of conduct. McDonnell
Douglas, 411 U.S. at 802; see also Fincher,
604 F.3d at 720 (stating that where the
plaintiff succeeds in establishing a prima
facie case, “then a presumption of retaliation
arises and the employer must articulate a
legitimate, non-retaliatory reason for the
action that the plaintiff alleges was
retaliatory”).
Where
the
defendant
articulates such a reason, the burden shifts
back to plaintiff to establish that “but for the
protected activity, [she] would not have
been terminated.” Moore v. Kingsbrook
Jewish Med. Ctr., No. 11-CV-3625(MKB),
2013 WL 3968748, at *14 (E.D.N.Y. July
For the reasons set forth below, the
Court concludes that, even if plaintiff can
establish a prima facie case of retaliation,
her claim must fail because no rational jury
could find that her termination was a pretext
for retaliation. In other words, even
accepting all of plaintiff’s evidence as true
and construing it in her favor, no rational
jury could find that but for her handicapped
parking requests, she would not have been
terminated.
23
instead showed “that while [plaintiff] did
complain about certain problems she was
having at work, she did not complain that
she was being discriminated against”).
1. Prima Facie Case
a. Protected Activity
Plaintiff asserts that she engaged in
protected activity when she complained
about the “remov[al]” of her handicapped
parking space, requesting that it be returned.
(Pl.’s Opp’n at 12.) Defendant disagrees,
arguing that plaintiff’s handicapped parking
requests do not constitute protected activity
as she “has produced no evidence of any
complaint, formal or informal, sufficient to
place the defendant on notice that she was
referring to discriminatory activity.” (Def.’s
Summ. J. Mot. at 20.) In particular,
defendant challenges the notion that
plaintiff’s “generalized complaints about the
inconvenience caused by disruption of the
parking lot during construction” were
sufficient to have alerted the District to a
disability, “particularly given the fact that
plaintiff [] never advised anyone at the
district that she had a disability.” (Id. at 21.)
In responding to defendant’s arguments,
plaintiff notes that she “did not specifically
complain of discrimination” when raising
her complaints. (Pl.’s Opp’n at 13.)
However, the Court need not resolve this
issue. In particular, even if plaintiff’s
complaints, concerning the movement of
handicapped parking spaces due to
construction, may be construed as
participation in protected activity of which
defendant was aware, plaintiff’s retaliation
claim still fails for the reasons set forth
infra.
b. Adverse Employment Action
Plaintiff
satisfies
the
adverse
employment action prong of her prima facie
case. The uncontroverted evidence in the
record shows that plaintiff was, in fact,
terminated. “Being fired is an adverse
employment action.” Moore, 2013 WL
3968748, at *18; see also Feingold v. New
York, 366 F.3d 138, 156 (2d Cir. 2004)
(“[Plaintiff] suffered an adverse employment
action when he was fired.”). The evidence
also shows that, prior to her termination,
plaintiff’s job responsibilities changed; that
is, she lost her job coaching privileges and
was reassigned to the library. (See Def.’s
56.1 ¶ 52.) According to plaintiff, this
constituted a less prestigious position,
although she did receive the same benefits
and salary. The Court need not conclude
whether the library reassignment, standing
alone, constituted an adverse employment
action, as plaintiff’s termination is sufficient
here for purposes of satisfying the adverse
action prong of her retaliation claim. See
Miller v. Praxair, Inc., 408 F. App’x 408,
410 (2d Cir. 2010) (noting that “typical
examples of actionable adverse employment
actions include ‘termination of employment,
a demotion evidenced by a decrease in wage
or salary, a less distinguished title, a
material loss of benefits, [or] significantly
The Court is not persuaded that
plaintiff’s complaints concerning the
handicapped parking spaces are a clear-cut
protected activity of which the District was
aware. See Cook v. CBS, Inc., 47 F. App’x
594, 596 (2d Cir. 2002) (concluding that
plaintiff did not engage in protected activity
where plaintiff sent a letter “request[ing]
additional training and reassignment without
ever mentioning, or even alluding to,
[plaintiff’s] belief that [defendant’s] failure
to comply with his requests would constitute
unlawful discrimination”); Foster v.
Humane Soc. of Rochester & Monroe Cnty.,
Inc., 724 F. Supp. 2d 382, 395 (W.D.N.Y.
2010) (concluding that plaintiff’s allegations
and supporting documents did not show that
plaintiff engaged in protected activity, but
24
v. Am. Cyanamid Co., 895 F.2d 80, 85-86
(2d Cir. 1990) (concluding that a three-anda-half month interview was too much time
to establish causation without other
probative evidence); Browne v. City of N.Y.,
419 F. Supp. 2d 315, 336 (E.D.N.Y. 2005)
(concluding that there was no causal
connection where challenged adverse action
occurred nearly six months after plaintiff
filed internal complaint). However, because
the Second Circuit has found periods well
beyond two months to be sufficient to
suggest a causal relationship under certain
circumstances, courts must carefully
consider the time lapse in light of the entire
record. See, e.g., Grant v. Bethlehem Steel
Corp., 622 F.2d 43, 45–46 (2d Cir. 1980)
(eight-month gap between EEOC complaint
and retaliatory action suggested a causal
relationship); see also Richardson v. N.Y.S.
Dep't of Corr. Servs., 180 F.3d 426, 446–47
(2d Cir.1999), abrogated on other grounds,
Burlington N. & Santa Fe Ry. Co. v. White,
548 U.S. 53 (2006) (abusive acts within one
month of receipt of deposition notices may
be retaliation for initiation of lawsuit more
than one year earlier).
diminished
material
responsibilities’”
(quoting Galabya v. N.Y.C. Bd. of Educ.,
202 F.3d 636, 640 (2d Cir. 2000)); Reynoso
v. All Foods, Inc., 908 F. Supp. 2d 330, 342
(E.D.N.Y. 2012) (stating that plaintiff’s
“termination clearly constitutes an adverse
employment action”).
c. Causal Connection
Assuming arguendo that plaintiff can
show that she engaged in protected activity,
and further, that defendant was aware of
such
protected-activity-participation,
plaintiff cannot establish a causal connection
between her alleged protected activity and
her termination. “[A] plainitiff can indirectly
establish a causal connection to support a
discrimination or retaliation claim by
showing that the protected activity was
closely followed in time by the adverse
employment action.” Gorzynski v. JetBlue
Airways Corp., 596 F.3d 93, 110 (2d Cir.
2010)) (quoting Gorman-Bakos v. Cornell
Coop. Extension of Schenectady Cnty., 252
F.3d 545, 554 (2d Cir. 2001); see also
Treglia v. Town of Manlius, 313 F.3d 713,
720 (2d Cir. 2002) (“We have held that a
close temporal relationship between a
plaintiff’s participation in protected activity
and an employer’s adverse actions can be
sufficient
to
establish
causation.”).
Although the Second Circuit “has not drawn
a bright line to define the outer limits
beyond which a temporal relationship is too
attenuated to establish a causal relationship
between the exercise of a federal
constitutional right and an allegedly
retaliatory action,” Gorman–Bakos, 252
F.3d at 554, some district courts have
generally concluded that “a passage of two
months between the protected activity and
the adverse employment action seems to be
the dividing line,” Cunningham v. Consol.
Edison, Inc., No. 03–CV–3522 (CPS), 2006
WL 842914, at *19 (E.D.N.Y. Mar. 28,
2006) (collecting cases); see also Hollander
Here, plaintiff alleges that she first
complained in March 2009 about the
inaccessibility of the handicapped parking
spaces in March 2009 due to the
construction at the school. (See Compl.
¶¶ 18-22.) Plaintiff does generally assert that
she continued to complain about the parking
throughout the 2009-10 academic year. (See
Compl. ¶¶ 24-27.) Therefore, in the instant
case, because her termination was not
recommended until November 2010 – which
was over eighteen months after her first
complaint in March 2009, and at least four
months after her last complaint at the end of
the 2009-10 academic year – no causal
connection can be inferred based upon
25
temporal proximity.11 The Court recognizes
that, if the adverse action had been taken at
the first opportunity after the protected
activity, an inference of causation could
have been drawn, notwithstanding the
passage of a longer period of time between
the protected activity and the adverse action.
See Bucalo v. Shelter Island Union Free
Sch. Dist., 691 F.3d 119, 125-26 (2d Cir.
2012). However, that is not the case here. It
is undisputed that plaintiff was a
probationary employee and, thus, defendant
could have terminated her employment at
any time, including at the end of the 20092010 academic year. Thus, the fact that she
was
not
terminated
before
the
commencement of the 2010-2011 academic
year negates any inference of causation from
the timing of the relevant events. In any
event, even assuming arguendo that plaintiff
can establish temporal proximity and can
satisfy the elements of a prima facie case,
her claim still cannot survive summary
judgment because, as discussed below, in
the wake of defendant’s articulated nondiscriminatory reason, plaintiff has no
evidence from which a rational jury could
find such reason to be a pretext for
retaliation.
2. Legitimate, Non-Discriminatory
Reason for Retaliatory Act
As previously set forth, “[o]nce a prima
facie case of retaliation is established, the
burden of production shifts to the employer
to
demonstrate
that
a
legitimate,
nondiscriminatory reason existed for its
action.” Summa v. Hofstra Univ., 708 F.3d
115, 125 (2d Cir. 2013) (quoting Raniola v.
Bratton, 243 F.3d 610, 625 (2d Cir. 2001))
(internal
quotation
marks
omitted).
Defendant here has satisfied that burden.
11
Plaintiff also notes – for the first time, in her
opposition papers – that she complained in summer
2010, without providing any additional information,
details, or context concerning the complaint. (See
Pl.’s Opp’n at 14.) In response, defendant argues:
“The federal complaint, which goes on for
paragraphs about plaintiff’s complaints to the
District, does not reference a complaint in summer
2010; the last complaint referenced is during the
2009-2010 academic year when plaintiff alleges Dr.
Baum screamed and gestured at her (Ex. A ¶ 27).
Similarly, when questioned at length at her
deposition about the contents of any and all
complaints she made, Graham did not note any
complaints beyond the 2009-10 school year. Now,
however, in an attempt to stave off summary
judgment, plaintiff makes reference to a complaint in
the summer of 2010, without providing any further
information about the content of the complaint, who
she complained to, the date of the complaint, or how
the complaint was made.” (Def.’s Reply at 9 n.2.)
The Court agrees with defendant that plaintiff is not
permitted to introduce evidence for the first time in
her opposition for summary judgment, especially
where such evidence is inconsistent with her detailed
allegations in the complaint. See Morritt v. Stryker
Corp., No. 07–CV–2319, 2011 WL 3876960, at *5–8
(E.D.N.Y. Sept. 1, 2011) (holding that a party may
not submit evidence for the first time in connection
with their opposition to a summary judgment
motion). In any event, as discussed infra, even if such
evidence is considered and could be used to establish
temporal proximity, such evidence alone is
insufficient for plaintiff’s claim to survive summary
judgment.
Defendant’s proffered reasons for
terminating plaintiff were that plaintiff was a
probationary employee; she was therefore
subject to observation and evaluation before
any change in a position title could occur;
the superintendent had clearly articulated
that if any concerns arose concerning an
employee, he would not support a tenure
recommendation; and concerns did arise
concerning plaintiff’s performance. (See
Def.’s Summ. J. Mot. at 23.) Specifically,
complaints surfaced concerning plaintiff’s
treatment of both a student and staff
members at St. Charles Hospital, where
plaintiff held job coaching responsibilities.
(Id. at 23-24.) While it seems that the
complaints concerning plaintiff’s treatment
of an autistic child at the hospital largely
underlay defendant’s termination decision,
26
3. Pretext
defendant also states that there was a prior
complaint concerning plaintiff’s conduct
dating from the 2005-2006 school year. (Id.
at 24.) Additionally, defendant notes that
plaintiff was not the only CTA to be denied
tenure; instead, approximately eleven other
CTAs were recommended for termination.
(Id. at 23 (citing Def.’s Summ. J. Mot. Ex.
L).)
As previously set forth, under the
Supreme Court’s revised standard for
retaliation claims, plaintiff must show that
“the unlawful retaliation would not have
occurred in the absence of the alleged
wrongful action or actions of the employer.”
Nassar, 133 S. Ct. at 2533. Thus, plaintiff
here “must show that retaliation was a butfor cause of the adverse employment
action.” Moore, 2013 WL 3968748, at *19;
see also Brooks, 2013 WL 3328044, at *3
(stating that plaintiff had to show that
alleged age discrimination “was the ‘but-for’
cause of the adverse action and not merely
one of the motivating factors”). To satisfy
this but-for causation element, plaintiff must
“prove that [her] termination would not have
occurred in the absence of a retaliatory
motive.” Moore, 2013 WL 3968748, at *20.
Here, plaintiff was a probationary
employee who could have been fired at any
point in time and for no stated reason during
her period of employment. See Matter of
Rossetti-Boerner v. Hampton Bays Union
Free Sch. Dist., 1 A.D.3d 367, 368 (2d
Dep’t 2003) (“It is well settled that a
probationary employee may be discharged
without a hearing and without a statement of
reason in the absence of any demonstration
that dismissal was for a constitutionallyimpermissible purpose or in violation of
statutory or decisional law.”). Moreover,
plaintiff had at least two recent complaints
against her around the time she was up for
tenure. The superintendent had notified
District employees that he would not support
a tenure recommendation for an employee
with concerns surrounding his or her
performance. This is precisely what plaintiff
had on her record at the time she was being
considered for tenure. Additionally, the
uncontroverted evidence in the record shows
that defendant was terminated soon after the
complaint from St. Charles Hospital was
received, as the St. Charles Hospital
complaint is from October 28, 2010, and
plaintiff received notice of the termination
recommendation in November 2010. For
these reasons, the Court concludes that
defendant has set forth a legitimate, nondiscriminatory reason for its actions, and the
burden, accordingly, shifts back to plaintiff
to provide evidence from which a rational
jury could find pretext.
Plaintiff cannot show, nor does the
uncontroverted evidence in the record
support the conclusion, that plaintiff would
not otherwise have been terminated in the
absence of her handicapped parking
complaints and defendant’s denial of the
same. The record shows that plaintiff was
terminated soon after a serious complaint
came to the District’s attention concerning
plaintiff’s inappropriate treatment of an
autistic student while on-the-job. The
uncontroverted evidence also reflects the
seriousness with which the District treated
the complaint, passing it up the chain of
command while investigations were ongoing
until it reached the superintendent himself.
The record also shows that plaintiff’s record
prior to termination included an additional
complaint concerning her treatment of staff
at the St. Charles Hospital. Lastly, it is
undisputed that plaintiff was a probationary
employee prior to her termination, giving
the District the freedom to terminate her at
any point in time and for no stated reason. In
the face of these uncontroverted facts,
27
there is no such analysis for any separate
claim of termination because of the
disability. In fact, aside from a cursory
citation to the legal standard for a
discriminatory discharge claim (see id. at 7),
the only conclusory reference at all to such a
contention is in the retaliation section (see
id. at 15), which cites a paragraph of
Plaintiff’s 56.1 Statement that only makes
reference to the termination being a pretext
for retaliation (see Pl.’s 56.1 ¶ 53 (“Thus, it
is apparent the District used the complaint
against Plaintiff as a pretext to terminate her
employment.”)). Thus, any separate ADA
claim for termination based upon the
disability (as opposed to retaliation) could
be deemed to have been abandoned.
However, in an abundance of caution, the
Court has separately examined any such
claim and concludes that, even assuming
arguendo that plaintiff has evidence to
satisfy a prima facie case, the claim would
still fail for the reasons discussed below.
plaintiff has failed to provide any evidence
from which a rational jury could find that,
but for her alleged acts of protected activity
– in the form of complaining about the
movement of the handicapped spaces during
construction and requesting restoration of
her same parking spot – plaintiff would not
have been fired. Indeed, as noted above, the
uncontroverted evidence suggests the exact
opposite, especially given that plaintiff
seems to have first begun complaining about
the parking spaces in fall 2009, and she was
terminated well over a year following the
complaints’ commencement. For these
reasons, the Court concludes that plaintiff
has failed to establish that defendant’s
decision to terminate her was a pretext for
retaliation. Accordingly, the Court grants
defendant’s motion for summary judgment
in its entirety.
C. ADA Disability Claim Regarding
Termination
For purposes of a discriminatory
discharge claim, an employee must show
that: “(1) her employer is subject to the
ADA; (2) she suffers from a disability
within the meaning of the ADA; (3) she
could perform the essential functions of her
job
with
or
without
reasonable
accommodation; and (4) she was fired
because of her disability.” Ryan v. Grae &
Rybicki, P.C., 135 F.3d 867, 869-70 (2d Cir.
1998). Of course, this claim is also subject
to analysis under the three-step, burdenshifting framework established by the
Supreme Court in McDonnell Douglas. See
McBride v. BIC Consumer Prods. Mfg. Co.,
583 F.3d 92, 96 (2d Cir. 2009) (applying
McDonnell Douglas standard to disability
discrimination claim brought under the
ADA). The Court assumes, for purposes of
this motion, that plaintiff can establish a
Although plaintiff made a conclusory
claim in the complaint that the termination
(in addition to being retaliatory) was on
account of her disability, it is unclear from
the opposition papers whether plaintiff is
continuing to make that assertion.
Specifically, in her brief, plaintiff submits
that the issues are: “(1) whether Plaintiff is
disabled under the ADA; (2) whether
Defendant was aware of Plaintiff’s
disability; (3) whether Plaintiff requested
reasonable
accommodations
from
Defendant; and (4) whether Plaintiff was
retaliated against by Defendant for engaging
in protected activities.” (Pl.’s Opp. at 1.)
There is no mention of a disputed issue as to
whether plaintiff’s termination was because
of her alleged disability (as opposed to in
retaliation for her alleged requests for
accommodation). In fact, although there is a
detailed analysis in plaintiff’s opposition as
to why she contends that her termination
was retaliatory (see Pl.’s Opp’n at 12-20),
28
prima facie case.12 As discussed in detail in
connection with the retaliation claim,
defendant
has
articulated
a
nondiscriminatory reason for the termination –
namely, job performance – and, based on the
Court’s review of the uncontroverted
evidence in the record, no rational jury could
find that the reason given for plaintiff’s
termination was a pretext for her alleged
disability. See Primmer v. CBS Studios, Inc.,
667 F. Supp. 2d 248, 259 (“To satisfy
[plaintiff’s] burden on the fourth prong of
her prima facie claim, [plaintiff] must show
that she was terminated under circumstances
that give rise to an inference of
discriminatory intent.” (emphasis omitted)).
12
The Court notes that, for a disability
discrimination claim, the “regarded as” theory of
disability would be available to plaintiff (unlike for
her reasonable accommodation claim). The Court
briefly addresses this third definition of a disability.
The ADAAA has dramatically expanded the
definition of “regarded as” disabled. In particular,
pre-ADAAA, a plaintiff who alleged that she was
“regarded as” having a disability had to show that the
perceived disability was one that “substantially
limited a major life activity.” Joseph, 2011 WL
573582, at *9; see also Cody, 577 F. Supp. 2d at 643
(setting forth pre-ADAAA standard, stating that “the
mere fact that an employer is aware of an employee’s
impairment is insufficient to demonstrate either that
the employer regarded the employee as disabled or
that perception caused the adverse employment
action,” but “[r]ather, [p]laintiff must demonstrate
that defendants perceived [her] impairment as
substantially limiting the exercise of a major life
activity” (alteration in original) (internal citations and
quotation marks omitted)).
Post-ADAAA, however, there is “a new, more
lenient, standard for determining whether an
individual is ‘regarded as disabled’: [a]n individual
meets the requirement of ‘being regarded as having
such an impairment’ if the individual establishes that
he or she has been subjected to an action prohibited
under this chapter because of an actual or perceived
physical or mental or impairment whether or not the
impairment limits or is perceived to limit a major life
activity.” Davis v. N.Y.C. Dep’t of Educ., No. 10-CV3812 (KAM)(LB), 2012 WL 139255, at *5 (E.D.N.Y.
Jan. 18, 2012) (quoting Laurent v. G&G Bus Serv.,
Inc., No. 10-cv-4055, 2011 WL 2683201, at *5
(S.D.N.Y. May 17, 2011)) (internal quotation marks
omitted); see also Nelson v. City of N.Y., No. 11-CV2732(JPO), 2013 WL 4437224, at *7 (Aug. 19, 2013)
(same); George v. TJX Cos., Inc., No. 08-CV275(ARR)(LB), 2009 WL 4718840, at *8 (E.D.N.Y.
Dec. 9, 2009) (“[T]he ADAAA dramatically
expanded the reach of the ADA by protecting
individuals who are ‘regarded as’ having a disabling
impairment even when the impairment neither is, nor
is perceived to be, substantially limiting.”). Under
this more relaxed standard, an employee need not
“show that the disability [s]he is perceived as
suffering from is one that actually limits, or is
perceived to limit, a major life activity.” Darcy v.
City of N.Y., No. 06-CV-2246 (RJD), 2011 WL
841375, at *4 (E.D.N.Y. Mar. 8, 2011).
First, as noted supra, it is undisputed
that plaintiff was a probationary employee
during the period of employment relative to
the Court’s analysis. She, therefore, could
have been fired at any time and for any
reason, as long as it was not for an
impermissible purpose. See Matter of
Rossetti-Boerner, 1 A.D.3d at 368 (“It is
well settled that a probationary employee
may be discharged without a hearing and
without a statement of reason in the absence
of any demonstration that dismissal was for
a constitutionally-impermissible purpose or
in violation of statutory or decisional law.”).
Additionally, a plaintiff also is not required to
“show that the employer had a reasonable basis for
perceiving [her] as suffering from a disability; [the
statute] merely requires [her] to show that the
employer did so perceive [her].” Davis, 2012 WL
139255, at *5; see also Jordan v. Forfeiture Support
Assocs., No. 11-CV-3001, 2013 WL 828496, at *16
(E.D.N.Y. Mar. 5, 2013). Lastly, the ADAAA makes
clear that the “regarded as” definition of disability
“does not apply to impairments that are both
transitory and minor.” Davis, 2012 WL 139255, at *5
(citing 42 U.S.C. § 12102(3)(B)).
However, the Court need not address this issue in
this case because, as discussed below, even if
plaintiff were disabled or regarded as disabled, this
claim cannot survive summary judgment because no
rational jury could find that the termination was a
pretext for disability discrimination given the
uncontroverted evidence in the record.
29
Additionally, at the time of plaintiff’s
consideration for tenure, it is uncontroverted
that she had at least two complaints against
her. The superintendent had notified District
employees that he would not support a
tenure recommendation for an employee
with concerns surrounding his or her
performance. Unfortunately for plaintiff, this
is precisely what she had on her record –
and more than once – at the time she was
being considered for tenure.
that plaintiff began to experience the alleged
adverse employment actions at issue,
including her termination.
In addition, there is uncontroverted
evidence that plaintiff was not the only
employee who was denied tenure at the
conclusion of her probationary period. (See
Def.’s Summ. J. Mot. at 23 (citing id. Ex.
L.) In fact, approximately ten other certified
teaching assistants were terminated, and a
number of non-disabled CTAs (thirty-two in
total) were given JUUL agreements, having
their probationary period extended (but their
tenure determination delayed) (see id. at 23).
While not a dispositive factor, this evidence
also supports defendant’s position.
Moreover, plaintiff points to nothing in
the record from which a rational jury could
find her termination was “because of” her
hip impairment, or that the District’s
underlying motive to terminate her was
attributable to a discriminatory intent, and
not to her job performance. Instead, plaintiff
only offers conclusory allegations that are
devoid of any factual support. A review of
the record shows that there is no evidence
that the District harbored any type of
discriminatory intent against her. In fact,
there is uncontroverted evidence that
defendant made efforts to accommodate
plaintiff’s requests, to tend to her
complaints, to overlook where she took
matters into her own hands (e.g., cutting the
ribbons roping off the construction site), and
to explain why – if a request were made that
could not be granted – it was being denied.13
Indeed, it was not until significant concerns
arose (and quickly went up the relevant
chain of command to the superintendent)
concerning plaintiff’s performance abilities
Finally, although there is no dispute that
an administrator at St. Charles contacted
defendant to complain that plaintiff was very
demeaning to a special education student,
plaintiff attempts to attack the merits of the
complaint by the St. Charles administrator.
However, plaintiff's arguments raise issue
only as to the accuracy or the wisdom of
defendants' decision to terminate plaintiff,
but fail to create a triable issue of fact as to
whether the proffered reasons for plaintiff's
termination
were
a
pretext
for
discrimination. The question in any
discrimination case is not whether
defendant's decision to fire plaintiff was
correct, but whether it was discriminatory.
See, e.g., McPherson v. N.Y.C. Dep’t. of
Educ., 457 F.3d 211, 216 (2d Cir. 2006) (“In
a discrimination case . . . we are decidedly
not interested in the truth of the allegations
against plaintiff. We are interested in what
‘motivated the employer . . . .’” (emphasis
omitted) (quoting U.S. Postal Serv. Bd. of
Governors v. Aikens, 460 U.S. 711, 716
(1983))); Kolesnikow v. Hudson Valley
Hosp. Ctr., 622 F. Supp. 2d 98, 111
(S.D.N.Y. 2009) (“Where a plaintiff has
been terminated for misconduct, the
question is not ‘whether the employer
13
Regarding this last point, it is clear that, contrary to
plaintiff’s framing of the facts, the District never
denied her a handicapped parking space during the
construction period. Instead, it allowed her to
continue using her handicapped parking pass; it
simply required her to park in the new handicapped
spaces, which had been located in a different area to
ensure employee safety and minimize the risk of
employee injury during the construction period,
issues which were clearly of import to plaintiff, given
the substance of her complaints.
30
Brandon David Okano, David H. Rosenberg,
and Thomas Ricotta of Leeds Brown Law,
P.C., One Old Country Road, Carle Place,
New York 11514, and by Gregory Nicholas
Filosa of The Ottinger Firm, P.C., 20 West
55th Street, 6th Floor, New York, NY
10019. Defendant is represented by Jeltje
DeJong, Kelly E. Wright, and David S.
Shteierman of Devitt Spellman Barrett, LLP,
50 Route 11, Smithtown, NY 11787.
reached a correct conclusion in attributing
fault [to the plaintiff] . . ., but whether the
employer made a good-faith business
determination.’”
(quoting
Baur
v.
Rosenberg, Minc, Falkoff & Wolff, No. 07–
CV–8835 (GEL), 2008 WL 5110976, at *5
(S.D.N.Y. Dec. 2, 2008))); Agugliaro v.
Brooks Bros., Inc., 927 F. Supp. 741, 747
(S.D.N.Y.
1996)
(“Even
assuming
defendants were wrong in their belief that
plaintiff had engaged in sexual misconduct,
what is significant is that they based their
decision to dismiss plaintiff on that belief,
and not on his age, gender, or pension
status.”).
In sum, even construing the evidence
most favorably to plaintiff, there is no
evidence from which a rational jury could
find that the District’s actions here were
motivated by a discriminatory intent against
plaintiff and her alleged disability.
Accordingly, to the extent this claim was not
abandoned, summary judgment as to this
claim is also granted.
IV. CONCLUSION
For the reasons set forth above,
defendant’s motion for summary judgment
is granted in its entirety. The Clerk of the
Court shall enter judgment accordingly and
close the case.
SO ORDERED.
_____________________
JOSEPH F. BIANCO
United States District Judge
Dated: September 30, 2013
Central Islip, New York
*
*
*
Plaintiff is represented by Rick Ostrove,
31
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