16-2556-cv Flieger v. E. Suffolk BOCES

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 ELECTRON IC 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 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the

1 st day of June, two thousand seventeen.

Present: JON O. NEWMAN, ROSEMARY S. POOLER, PETER W. HALL, Circuit Judges

.

_____________________________________________________

JEANNE FLIEGER,

Plaintiff-Appellant

,

v. 16-2556-cv

EASTERN SUFFOLK BOCES,

Defendant-Appellee

.

_____________________________________________________

Appearing for Appellant: Jonathan A. Tand, Jonathan A. Tand and Associates, P.C., Garden City, NY.

Appearing for Appellee: Adam I. Kleinberg, Sokoloff Stern LLP, Carle Place, NY.

Appeal from the United States District C ourt for the Eastern District of New York (Seybert, J. ).2 ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED

.

Plaintiff-Appellant Jeanne Flieger app eals the June 24, 2016 judgment of the United

States District Court for the Easter n District of New York (Seybert, J. ) granting summary judgment in favor of Defendant-Appellee Ea stern Suffolk BOCES (“BOCES”) on Flieger’s discrimination, retaliation, hostil e work environment, and failure to provide reasonable

accommodation claims under the American s with Disabilities Act (“ADA”). Flieger v. E. Suffolk

BOCES , 13-CV-6282, 2016 WL 3527519, at *1 (E.D.N .Y. June 23, 2016). We assume the parties’ familiarity with the underlying facts, pr ocedural history, and specification of issues for

review.

“We review a district court’ s grant of summary judgment de novo .” Marvel Characters, Inc. v. Kirby , 726 F.3d 119, 135 (2d Cir. 2013) (citation omitted).

“ADA employment discrimination claims ar e subject to the familiar burden-shifting analysis established by the Supreme Court in McDonnell Douglas Corp. v. Green , 411 U.S. 792 (1973).” Cortes v. MTA N.Y.C. Transit , 802 F.3d 226, 231 (2d Cir. 2015). In order to establish a prima facie case, the plaintiff must show by a preponderance of the evidence that: “(1) [her] employer is subject to the ADA; (2) [she] was disa bled within the meaning of the ADA; (3) [she] was otherwise qualified to perform the essent ial functions of [her] job, with or without reasonable accommodation; and (4) [she] suffered adverse employment ac tion because of [her] disability.” Sista v. CDC Ixis N. Am., Inc. , 445 F.3d 161, 169 (2d Cir. 2006). “Under the last element, a plaintiff must show that th e adverse employment action took place under circumstances giving rise to an inference of discrimination.” Davis v. N.Y.C. Dep’t of Educ. , 804 F.3d 231, 235 (2d Cir. 2015) (internal quotation marks omitted).

Flieger’s September 2011 back injury does not constitute a disability under the ADA. “The ADA defines disability as a physical or mental impairment that substantially limits one or more major life activities.” B.C. v. Mount Vernon Sch. Dist. , 837 F.3d 152, 159 (2d Cir. 2016) (internal quotation marks omitted) (citing 42 U. S.C. § 12102(1)(A)). On the day that Flieger injured herself in September 2011, Flieger stated in her deposition that she did not leave work early, but rather took some Alev e and kept working. Flieger expl ained that she came back to work the next day and required no time off as a re sult of her injury. Fliege r also reported that she

continued to be able to lift cases of water at work after her inju ry. Based on Flieger’s explanation of her own limitations after her September 2011 injury, we conclude that Flieger was not substantially impaired in any major life activity.

Flieger argues that she suffered three adve rse employment actions as a result of ADA disability discrimination: (1) denial of a Su mmer 2011 summer school position; (2) transfer to Josette Celiberti’s classroom; and (3) transfer to Joe Sicuranza’s classroom. “To qualify as an adverse employment action, the employer’s actions toward the plaintiff must be materially adverse with respect to the term s and conditions of employment.” Davis , 804 F.3d at 235 (internal quotation marks omitted). In addition, it is axiomatic that the adverse employment action must “t[a]k[e] place under circumstances givi ng rise to an inference of discrimination” in

order to be actionable under the ADA. Id

.3 The denial of the Summer 2011 summer school position does not constitute an actionable adverse employment action under the ADA because ther e is no inference that discrimination was the reason for the denial of the position. Flieger explained in her deposit ion that she understood from BOCES and her union that employment for a summer teaching position was discretionary and not guaranteed. The express terms of the Hi ring Guidelines for Summer 2011 indicated that Flieger would be at a disadvantage if she misse d more than seven days of school during the 2010-11 school year. Once the number of Flieger’s us ed sick days was decreased at her request, she was offered a summer position that was then available. This Court can find no inference of

discrimination under these circumstances.

With respect to the two challenged transfers, we have explained that “a transfer is an adverse employment action if it re sults in a change in responsi bilities so significant as to constitute a setback to the plaintiff’s career.” Kessler v. Westchester Ct y. Dep’t of Soc. Servs.

, 461 F.3d 199, 206 (2d Cir. 2006). “Moreover, we have held that an involuntary transfer may constitute an adverse employmen t action if the plaintiff shows that the transfer created a materially significant disadvantage with re spect to the terms of her employment.” Id. at 207 (internal quotation marks, brackets, and emphasis omitted). In contrast, “a transfer that does not change the conditions of employment is a me re inconvenience or an alternation of job responsibilities, and hence is not materially adverse.” Id. (internal quotation marks and brackets omitted). Thus, “if a transfer is truly lateral a nd involves no significant changes in an employee’s conditions of employment, the f act that the employee views the transfer either positively or negatively does not of itself render the denial or receipt of the transfer an adverse employment

action.” Id. (internal quotation marks and brackets omitted).

Flieger presented no facts in her summary judgment motion and no argument before this Court that would suggest the transfer to Celiberti’s classroom involved a demotion, a disadvantage, or a setback with respect to her ca reer. Instead, at the time the transfer was made, Flieger only expressed a concern about Celiberti being a low talk er. Flieger never expressed any other concern about transferring to Celiberti’s classroom, and specifically never expressed that she felt the transfer was anything other than a la teral move (notwithstandi ng that she would have preferred not to have been transferred). The transf er to Celiberti’s classr oom was therefore not an adverse employment action.

With respect to Flieger’s transfer to Sicu ranza’s classroom, assuming for the purposes of argument that Flieger’s allegations that Principa l Nancy Smalling had “refus[ed] to speak clearly to [Flieger]” prior to the transfer and had declin ed to consider Flieger’s requested transfers are sufficient to meet Flieger’s burden at the prima facie stage, Appellant’s Br. at 16, 20, BOCES has proffered a legitimate, non-discriminatory re ason for Flieger’s transfer. Smalling expressed concern about Flieger’s “behavior with adults” and wanted to keep Flieger in a supervised setting. App’x at 564-65. Both of the alternat ive transfers that F lieger proposed were unsupervised. Smalling decided Flie ger would not be an appropriate fit for those programs and accordingly transferred Flieger to Sicuranza’s classroom instead.

Flieger has failed to meet her burden of pe rsuasion to show that BOCES’ proffered legitimate reasons for the transfer are pretextual. See Weinstock v. Columbia Univ. , 224 F.3d 33,4 42 (2d Cir. 2000) (explaining a pl aintiff must “produce not simply some evidence, but sufficient evidence to support a rational finding that the le gitimate, non-discriminatory reasons proffered by the defendant were false, and that more likel y than not discrimination was the real reason for the employment action” (internal quotation marks, brackets, and citation omitted)). Flieger has failed to offer any evidence that Smalling disc riminated against Fliege r on the basis of her hearing loss—indeed, Flieger expl ained at her deposition that Sm alling helped her receive funds to travel to the Mayo Clinic and Flieger sent Smalling an incredibly effusive e-mail after her transfer to Sicuranza’s classroom thanking Sma lling for transferring her and referring to the change in glowingly positive terms. The e-mail constitutes uncontroverted evidence that Flieger did not believe she had been discriminated agains t in being transferred to Sicuranza’s classroom at the time she was transferred. Flieger has also failed to offer any eviden ce that Smalling did not have concerns about Flieger’s work in an uns upervised setting. Although Flieger points to her strong evaluations from previous years, receipt of strong reviews in a supervised setting in the past does not equate to an individual necessa rily being considered fit to perform in an unsupervised setting given more recent performance concerns.

Claims of retaliation under the ADA ar e analyzed under the same burden-shifting

framework as are ADA discrimination claims. See Treglia v. Town of Manlius , 313 F.3d 713, 719 (2d Cir. 2002). “In order to es tablish a prima facie case for re taliation, [a plaintiff] must show that: (1) [s]he engaged in an activity pr otected by the ADA; (2) the employer was aware of this activity; (3) the employer t ook adverse employment action against [the plaintiff]; and (4) a causal connection exists between the alleged adverse action and the protected activity.” Id. Activities protected by the ADA include comp laints of ADA discrimination, including complaints on a good faith belief that the employe r’s actions violated th e ADA, and requests for

reasonable accommodations. See, e.g.

, Weixel v. Bd. of Educ. of City of N.Y. , 287 F.3d 138, 149 (2d Cir. 2002) (requests for accomm odations are protected activity); Weissman v. Dawn Joy Fashions, Inc. , 214 F.3d 224, 234 (2d Cir. 2000) (complaints based on a good faith belief that employer is violating the ADA are protected activity).

Although there is an unsettled question of law in this Circui t as to whether a plaintiff must show, in order to succeed on her ADA retaliati on claim, that the retali ation was a “but for” cause of the adverse employment action or merely a “motivating factor,” we need not decide this point of law as Flieger’s ADA reta liation claim fails under both tests. See, e.g.

, Eisner v.
Cardozo , No. 16-872-cv, 2017 WL 1103437, at *1 (2d Cir. Mar. 24, 2017) (summary order).

Flieger identifies as adverse employment acti ons for her retaliation claim the same three

actions that she identified under he r discrimination claim. As with Flieger’s discrimination claim, the denial of a Summer 2011 summer school positi on does not give rise to an inference of retaliation because Flieger’s vi sit to the Mayo Clinic neithe r constituted a complaint of ADA discrimination nor a request for accommodation and thus was not a protected activity. See, e.g.

, Weixel , 287 F.3d at 149 (requests for accommodations are protected activity); Weissman , 214 F.3d at 234 (complaints based on a good faith be lief that employer is violating the ADA are protected activity). Similarly, Fl ieger’s transfer to Celiberti’s classroom was not an adverse employment action and therefore cannot be the basi s for an ADA retaliation claim. With respect to Flieger’s transfer to Sicuranza’s classroom, the district court correctly determined that Flieger

had stated a prima facie case based on the temporal proximity between her complaint about5 Celiberti’s comment with respect to Flieger’s he aring and Flieger’s transfer. BOCES proffers the same legitimate, non-retaliatory reasons for the transfer as it did with respect to Flieger’s discrimination claim. And, again, Flieger has fail ed to meet her burden of persuasion to show that BOCES’ reasons are pretextual as she ha s provided no more evidence than she did with respect to her discrimination claim.

The Second Circuit has “not yet decided wh ether a hostile work environment claim is cognizable under the ADA.” Robinson v. Dibble , 613 F. App’x 9, 12 n.2 (2d Cir. 2015) (summary order). “For purposes of this discu ssion, we assume, without deciding, that it is.” Id.

“To establish a prima facie case of hostile work environment, the plai ntiff must show that the discriminatory harassment was sufficiently seve re or pervasive to alter the conditions of the victim’s employment and create an abusive working environment, and that a specific basis exists for imputing the objectionable conduct to the employer.” Tolbert v. Smith , 790 F.3d 427, 439 (2d Cir. 2015) (internal quotation marks omitted). “Isola ted acts, unless very serious, do not meet the threshold of severity or pervasiveness.” Id. (internal quotation marks omitted). “It is axiomatic that the plaintiff also must show that the hostile conduct occurred be cause of a protected

characteristic.” Id.

Flieger argues that she suffered from a hostile work environment based on “the circumstances of [her] tenure in Celiberti’s clas sroom.” Appellant’s Br. at 26. Flieger, however, stated at her deposition that Celiberti did not learn about Flie ger’s ADA-covered disability until October 26, 2011 when Flieger told Celiberti that she has hearing loss. The only instance of

Celiberti’s hostile conduct that occurred because of Flieger’s protected disa bility, therefore, was Celiberti’s comment immediately af ter learning of Flieger’s disabili ty that she “didn’t ask for a deaf assistant.” App’x at 247; see Tobert , 790 F.3d at 439 (explaining plaintiff “must show that

the hostile conduct occu rred because of a protected charac teristic”). This comment, while inappropriate, does not rise to the level of seve rity required in order for a single comment to support a claim for hostile work environment. In a ddition, Flieger conceded at her deposition that

she was transferred out of Celiberti’s classroom e ither on the same day or within a few days of Celiberti’s comment. Flieger makes no allegations of any discriminatory or hostile conduct by Sicuranza, even though her brief states the host ile work environment continued “until December of 2011.” Appellant’s Br. at 26. Indeed, Flieger ev en thanked Smalling for transferring her into Sicuranza’s classroom, explaining she felt she was be ing “treated with resp ect and as an equal.” App’x at 800. Flieger has failed to state a prima facie case of hostile work environment.

“Discrimination in violation of the ADA includes, inter alia , not making reasonable accommodations to the known physical or mental lim itations of an otherwise qualified individual with a disability.” Sheng v. M&TBank Corp. , 848 F.3d 78, 86 (2d Cir. 201 7) (internal quotation marks omitted). “A qualified individual is an individual who, with or without reasonable accommodation, can perform the essential functio ns of the employment position that such

individual holds or desires.” Id. (internal quotation marks omi tted) (citing 42 U.S.C. § 12111(8)). “In evaluating whether a particular job function is essential, this Court considers the employer’s judgment, written job descriptions, the amount of time spent on the job performing the function, the mention of the function in a collective bargai ning agreement, the work experience of past employees in the position, and the work experience of current employees in similar positions.”6 Stevens v. Rite Aid Corp. , 851 F.3d 224, 229 (2d Cir. 2017) (internal quotation marks omitted). “Of course, a reasonable accommodation can neve r involve the elimination of an essential function of a job.” McMillan v. City of New York , 711 F.3d 120, 127 (2d Cir. 2013) (internal quotation marks and brackets omitted).

As set forth in Flieger’s disc ussions with BOCES, and as sh e does not contest, Flieger is currently unable to physically hold or escort a student in danger of causing injury to him or herself or others, or perform or administer crisis intervention or prevention tec hniques because she cannot engage in any kind of restricting. Flieger also does not contest, and readily admits, that she is presently unable to assist or work with any students who are in wheelchairs. As an accommodation for her present disability, Flieger aske d to be placed in a role in which she will never be required to work with wheelchair-bound students or be faced with a student who needs to be restrained in order to pr otect that student, to protect other students, to prevent a crisis situation, or to diffuse a crisis situation. These tasks, however, comprise seven of the top eleven bullet points on BOCES’ written j ob description for the Teaching Assistant position. In addition, Jill Diamond, a school personnel officer responsible for Teaching Assistants at BOCES, testified that the ability to restrain a student was esse ntial as “every single pers on that is staffing [a BOCES] classroom needs to be able to intervene in a situation that may turn into a crisis or may be a crisis in process.” App’x at 683-84. Flieger al so conceded in her deposition that the ability to restrain a student was part of a BOCES Teaching Assistant’s job regardless of to what room the Teaching Assistant was assigned. Flieger further noted that she had had to restrain a handful of children while she was employed as a Teach ing Assistant at BOCE S, and Flieger’s own experience with wheelchair-bound students indicates th at assisting such stude nts is not an out of the ordinary task that Teaching Assistants are requ ired to perform. Flieger, therefore, has failed to meet her burden of identifying an accommodation that would allow her to continue to perform

all of the essential functions of th e Teaching Assistant job she once held. See McMillan , 711

F.3d at 127.

We have considered the remainder of Flie ger’s arguments and find them to be without merit. Accordingly, the judgment of th e district court hereby is AFFIRMED.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk