Judge Rosemary S. Pooler, originally assigned to this panel, did not participate in *

the consideration of this appeal. The remaining two members of the panel, who are in

agreement, have determined this matter in accordance with Second Circuit Internal Operating

Procedure E(b).

08-5367-cv

Ragusa v. Malverne Union Free School District

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A

SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY

FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN

CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE

EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION

“SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY

PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held

at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of

New York, on the 21 day of June, two thousand ten. st

PRESENT: REENA RAGGI,

PETER W. HALL,

Circuit Judges.

*

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BILJANA RAGUSA,

Plaintiff-Appellant,

 v. No. 08-5367-cv

MALVERNE UNION FREE SCHOOL DISTRICT,

MALVERNE UNION FREE SCHOOL DISTRICT

BOARD OF EDU, MARY ELLEN FREELEY,

SUPERINTENDENT OF SCHOOLS,

Defendants-Appellees.

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APPEARING FOR APPELLANT: LOUIS D. STOBER, JR., Garden City, New York.

APPEARING FOR APPELLEES: MELISSA L. HOLTZER (Brian S. Sokoloff, on

the brief), Sokoloff Stern LLP, Westbury, New

York.
 Ragusa also contends that the district court erred by granting defendants’ motion for 1

summary judgment “without all discovery having been completed.” Pl.’s Br. at 10.

Reviewing the district court’s conduct of discovery for abuse of discretion, see In re Agent

Orange Prod. Liab. Litig., 517 F.3d 76, 102 (2d Cir. 2008), we detect none. As Ragusa

concedes, the district court granted summary judgment more than seven months after

deciding her motion to compel on February 19, 2008. See Ragusa v. Malverne Union Free

Sch. Dist., 549 F. Supp. 2d 288, 289 (E.D.N.Y. 2008). Further, Ragusa never complained

to the district court that filing her opposition to summary judgment before receiving a

decision on a motion to compel prevented her from presenting any evidence or argument in

support of her ADA claim. Indeed, after the grant of summary judgment, Ragusa relied on

new evidence disclosed pursuant to the grant of her motion to compel in moving for

reconsideration of her gender discrimination claim, but made no such argument with respect

2

Appeal from the United States District Court for the Eastern District of New York

(Denis R. Hurley, Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment entered on October 3, 2008, is AFFIRMED in part and

VACATED in part, and the case is REMANDED for further proceedings.

Biljana Ragusa, formerly a mathematics teacher in the Malverne Union Free School

District, appeals from a grant of summary judgment in favor of the school district, its board,

and its former superintendent (collectively, “defendants”) on her claims of discrimination and

retaliation on the basis of gender, age, and disability. See Ragusa v. Malverne Union Free

Sch. Dist., 582 F. Supp. 2d 326 (E.D.N.Y. 2008). Specifically, Ragusa challenges that part

of the summary judgment award dismissing her claims under the Americans with Disabilities

Act (“ADA”), 42 U.S.C. § 12101 et seq., based on the district court’s determination that she

failed to adduce sufficient evidence to permit a rational factfinder to conclude that (1) she

was an individual with a disability within the meaning of the ADA, (2) defendants subjected

her to a hostile work environment based on disability, or (3) defendants retaliated against her

for engaging in ADA-protected activity. We review an award of summary judgment de 1
to disability. See Ragusa v. Malverne Union Free Sch. Dist., 652 F. Supp. 2d 275, 278-79

(E.D.N.Y. 2009); see also Sousa v. Roque, 578 F.3d 164, 169 n.6 (2d Cir. 2009) (“These

claims were not raised before the District Court, and we do not address them here.”).

 Although Congress amended the ADA in 2008 to expand its coverage, see Pub. L. 2

110-325, 112 Stat. 3553 (2008), we here apply the version of the statute in effect during the

time period at issue, which ended with Ragusa’s termination on June 30, 2005, see id. at

3559 (providing that ADA amendments “shall become effective on January 1, 2009”);

Fernandez-Vargas v. Gonzales, 548 U.S. 30, 37 (2006) (noting “rule of general application”

that statute “shall not be given retroactive effect unless such construction is required by

explicit language or by necessary implication” (internal quotation marks omitted)); Becerril

v. Pima County Assessor’s Office, 587 F.3d 1162, 1164 (9th Cir. 2009) (holding that 2008

ADA amendments did not operate retroactively); accord Thornton v. United Parcel Serv.,

Inc., 587 F.3d 27, 34 n.3 (1st Cir. 2009); Fredricksen v. United Parcel Serv. Co., 581 F.3d

516, 521 n.1 (7th Cir. 2009); Lytes v. D.C. Water & Sewer Auth., 572 F.3d 936, 941 (D.C.

Cir. 2009); EEOC v. Agro Distribution, LLC, 555 F.3d 462, 469 n.8 (5th Cir. 2009).

3

novo, resolving all ambiguities and drawing all permissible factual inferences in favor of the

non-moving party. See Burg v. Gosselin, 591 F.3d 95, 97 (2d Cir. 2010). In applying this

standard, we assume familiarity with the facts and procedural record, which we reference

only as necessary to explain our decision.

1. Disability

Upon de novo review, we agree with the district court that Ragusa’s discrimination

claim failed because of insufficient evidence that she is a “qualified individual” with a

“disability” within the meaning of the ADA. See 42 U.S.C. § 12112(a) (1991). Ragusa 2

asserts that surgery to remove a benign brain tumor left her impaired in the “major life

activities” of seeing, hearing, speaking, and walking. See 29 C.F.R. § 1630.2(i). The

evidence, however, was insufficient to support a finding of “substantial” limitation. See 42

U.S.C. § 12102(1); Colwell v. Suffolk County Police Dep’t, 158 F.3d 635, 643-44 (2d Cir.

1998); 29 C.F.R. § 1630.2(j).
4

The record contains no medical evidence other than a doctor’s note clearing Ragusa

to return to work following her surgery. See Heilweil v. Mount Sinai Hosp., 32 F.3d 718,

723 (2d Cir. 1994) (concluding that plaintiff failed to establish disability where, inter alia,

she offered “[n]o medical proof”). Nor does Ragusa’s own testimony establish the requisite

substantial limitation. While Ragusa explained that the surgery caused her to lose the hearing

in her left ear, she also stated that a “bone anchored hearing aid” compensated for this deficit.

See Sutton v. United Air Lines, Inc., 527 U.S. 471, 482 (1999) (permitting consideration of

corrective measures in determining whether impairment substantially limits major life

activity), superseded by 42 U.S.C. § 12102(4)(E)(i) (2008). With respect to vision, the

record contains no evidence as to the severity of Ragusa’s impairment. Ragusa testified that

her inability to blink her left eye caused her to experience painful infections and to require

vision-blurring eye drops several times an hour, but she acknowledged that in 2004 or 2005,

she began using a medication that eliminated the need for eye drops. Similarly, with respect

to walking, Ragusa testified that she fell down several times between her surgery and her

termination, once spraining her knee, but she offered specific evidence about only two falls.

As to the knee sprain, which occurred in the street, Ragusa acknowledged that she had

crossed the street in question without incident more than a hundred times during the 2004-05

school year, and that she did not know what caused her to fall. As to the second fall, she

testified that someone pushed her. Finally, with respect to speaking, Ragusa testified only

that she feared that others would be unable to understand her. No evidence indicated that

others had such difficulty. On this record, no reasonable factfinder could identify the

requisite substantial limitation.
 Assuming arguendo that Ragusa’s putative hostile work environment claim is 3

properly before us, and without deciding whether such a claim is available under the ADA,

we note that Ragusa’s failure to demonstrate that she is a qualified individual would defeat

any such claim. Cf. Kassner v. 2nd Ave. Delicatessen Inc., 496 F.3d 229, 241 (2d Cir. 2007)

(observing that to prove hostile work environment under Age Discrimination in Employment

5

We likewise agree with the district court that Ragusa failed to raise a jury question as

to whether defendants regarded her as disabled. See 42 U.S.C. § 12102(3). Under the

original statute, it was “not enough . . . that the employer regarded [the plaintiff] as somehow

disabled; rather, the plaintiff must show that the employer regarded [her] as . . . having an

impairment that substantially limited a major life activity.” Colwell v. Suffolk County Police

Dep’t, 158 F.3d at 646 (internal citation omitted), superseded by 42 U.S.C. § 12102(3)(A)

(2008). Ragusa has not made the required showing. She points to evaluations critical of her

teaching performance, but these demonstrate that defendants regarded her as ineffective, not

disabled. Our de novo review of the record reveals only one instance in which an evaluator

referenced Ragusa’s alleged disability: in response to Ragusa’s claim that “[her] disability

ma[de] it difficult to hear the students,” the evaluator suggested asking students to repeat

themselves or moving closer to them. Rather than regarding Ragusa as substantially limited,

the evaluator appears to have regarded her difficulty as easily accommodated. Nor is

Ragusa’s allegation that principal Glenda Good-Potter stated that Ragusa had “changed”

following her surgery sufficient to demonstrate that Good-Potter regarded her as substantially

limited in any major life activity.

Because we conclude that Ragusa failed to adduce evidence sufficient to establish that

she was a qualified individual with a disability, we affirm the grant of summary judgment

with respect to her ADA discrimination claim.3
Act, 29 U.S.C. § 621 et seq., “plaintiff must also demonstrate that she was subjected to the

hostility because of her membership in a protected class” (internal quotation marks omitted)).

 Ragusa need not be disabled within the meaning of the ADA to pursue her retaliation 4

claim, provided she can demonstrate “a good faith, reasonable belief that the underlying

challenged actions of the employer violated the law.” Sarno v. Douglas Elliman-Gibbons

& Ives, Inc., 183 F.3d 155, 159 (2d Cir. 1999).

6

2. Retaliation

To make out a prima facie claim of retaliation, Ragusa must show that (1) she 4

engaged in ADA-protected activity (2) of which defendants were aware, (3) she was

subjected to an adverse employment action, and (4) a causal connection existed between the

adverse employment action and her protected activity. See Treglia v. Town of Manlius, 313

F.3d 713, 719 (2d Cir. 2002). Defendants then must proffer a non-discriminatory rationale

for the challenged action, whereupon the burden shifts back to Ragusa to show that

defendants’ rationale is pretextual. See id. at 721.

Upon de novo review, we agree with the district court that, while the temporal

proximity between Ragusa’s termination and her attorney’s contacts with defendants satisfies

the causation element of her prima facie case, it is insufficient to create a question of fact as

to whether defendants’ proffered non-retaliatory rationale for terminating Ragusa, i.e., her

poor performance as documented in twenty-five detailed classroom evaluations, was

pretextual. Accordingly, we reject Ragusa’s challenge to the award of summary judgment

on her claim of retaliatory termination.

Ragusa contends that the district court nevertheless erred by not considering her

allegation that defendants’ retaliation was manifested by evidence that they subjected her to

employment conditions more difficult than those under which she had previously worked.
 Insofar as Ragusa alleges that defendants retaliated against her by refusing her 5

requests to (1) receive a new schedule upon her February 2003 return to school, (2) teach in

a single classroom during the 2003-04 school year, and (3) assume a departing teacher’s

schedule in January 2004, those actions are properly construed as failures to accommodate,

i.e., discrimination, not retaliation.

7

Specifically, Ragusa alleges that in response to her 2003-05 requests that she be permitted

to teach in a single classroom, defendants not only denied those requests, requiring Ragusa

in 2004-05 to teach four subjects in four different classrooms, but assigned her to teach a

sixth-grade class that (1) was located in a separate building across the street, (2) fell outside

Ragusa’s certification, and (3) included numerous special education students requiring close

supervision.5

While Ragusa’s complaint might have been clearer in articulating this theory of

retaliation, we conclude that it was sufficient to place defendants on notice that she intended

to pursue such an argument. See Compl. ¶ 49 (“Defendants ignored Ragusa’s repeated

requests for a reasonable accommodation, and instead actively created a more challenging

and dangerous work environment for her . . . .” (emphasis added)). Further, in opposing

defendants’ summary judgment motion, Ragusa indicated that she viewed her termination

as the culmination, not the entirety, of defendants’ retaliation. See Pl.’s Mem. Opp. Summ.

J. at 17 (“When Ragusa requested accommodations for her disability, the Defendants began

a systematic program of retaliating against her for her request, which climaxed after Ragusa’s

lawyer contacted the District on her behalf.”).

Ragusa’s verbal requests that defendants accommodate her asserted disability satisfy

the first two elements of the prima facie test for retaliation, see Weixel v. Bd. of Educ. of

City of N.Y., 287 F.3d 138, 149 (2d Cir. 2002), and the temporal proximity between
8

Ragusa’s requests and her receipt of the 2004-05 sixth-grade assignment is sufficient to

permit an inference of causation, see Quinn v. Green Tree Credit Corp., 159 F.3d 759, 769

(2d Cir. 1998). Thus, we examine whether that assignment could be found to constitute an

adverse employment action, mindful that the key inquiry is whether the effect of defendants’

decision was “materially adverse,” i.e., “‘harmful to the point that [it] could well dissuade

a reasonable worker from making or supporting a charge of discrimination.’” Hicks v.

Baines, 593 F.3d 159, 165 (2d Cir. 2010) (quoting Burlington N. & Santa Fe Ry. v. White,

548 U.S. 53, 69 (2006)) (analyzing retaliation claim under Title VII, 42 U.S.C. § 2000e et

seq.); see also Lovejoy-Wilson v. NOCO Motor Fuel, Inc., 263 F.3d 208, 223 (2d Cir. 2001)

(noting that same analytical framework governs Title VII and ADA retaliation claims).

Under other circumstances, the 2004-05 sixth-grade assignment of which Ragusa

complains might fall short of an adverse employment action. Construing the facts in the light

most favorable to Ragusa, however, a reasonable jury could conclude that, although Ragusa

was not “disabled” within the meaning of the ADA, the added challenge of the sixth-grade

assignment caused her the requisite “injury or harm,” Hicks v. Baines, 593 F.3d at 165

(internal quotation marks omitted), to constitute an adverse employment action, see

Burlington N. & Santa Fe Ry. v. White, 548 U.S. at 69 (noting that “the significance of any

given act of retaliation will often depend upon the particular circumstances,” so that “an act

that would be immaterial in some situations is material in others”).

We further conclude that because Ragusa was not certified to teach sixth grade and

the new assignment presented her with particular teaching challenges, the record is sufficient

to raise a question of pretext regarding defendants’ proffered rationale for her 2004-05
9

teaching assignment, i.e., increasing her chances of success during her third probationary

year. Construing this record in the light most favorable to Ragusa, a reasonable jury could

find that defendants made the 2004-05 assignment not to enhance Ragusa’s likelihood of

success but to guarantee her failure. See generally Terry v. Ashcroft, 336 F.3d 128, 140-47

(2d Cir. 2003) (holding that plaintiff raised question of pretext by adducing evidence, inter

alia, that “his supervisors transferred him in order to induce him to resign”).

Accordingly, we vacate that part of the summary judgment award dismissing Ragusa’s

retaliation claim based on her 2004-05 teaching assignment.

We have considered Ragusa’s remaining arguments on appeal, and we conclude that

they are without merit. The judgment of the district court is VACATED insofar as it

dismisses Ragusa’s retaliation claim based on her 2004-05 teaching assignment and

AFFIRMED in all other respects. The case is REMANDED for further proceedings

consistent with this decision.

FOR THE COURT:

CATHERINE O’HAGAN WOLFE, Clerk of Court