18-1308 

Harvin v. Manhattan & Bronx Surface Transit Operating Auth. 

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 ASUMMARY ORDER@). A PARTY CITING TO 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 16th day of April, two thousand nineteen. 

PRESENT: 

 ROBERT A. KATZMANN, 

Chief Judge, 

 JOSÉ A. CABRANES, 

 SUSAN L. CARNEY, 

Circuit Judges. 

_____________________________________ 

Stephanie Harvin, 

Plaintiff-Appellant, 

v. 18-1308 

Manhattan and Bronx Surface Transit Operating 

Authority, 

Defendant-Appellee.

____________________________________ 

FOR PLAINTIFF-APPELLANT: Stephanie Harvin, pro se, Brooklyn, NY. 

FOR DEFENDANT-APPELLEE: Gregory M. Ainsley for James B. Henly, 

Vice President and General Counsel, New 

York City Transit Authority, Brooklyn, NY. 
 

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Appeal from a judgment of the United States District Court for the Eastern District of New 

York (Amon, J.). 

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

DECREED that the judgment of the district court is AFFIRMED. 

 Appellant Stephanie Harvin, pro se, sued her former employer, the Manhattan and Bronx 

Surface Transit Operating Authority (“Transit Authority”), under the Americans with Disabilities 

Act (“ADA”), 42 U.S.C. § 12101 et seq., asserting failure-to-accommodate, discrimination, hostile 

work environment, and retaliation claims. She primarily alleges that her supervisors in the Transit 

Authority’s payroll department, Wanda Amerson and Jacqueline Moore, harassed her, refused to 

accommodate her disability (rheumatoid arthritis, fibromyalgia, and bilateral carpal tunnel 

syndrome), and discriminated and retaliated against her. The district court dismissed her amended 

complaint for failure to state a claim. We assume the parties’ familiarity with the underlying facts, 

the procedural history of the case, and the issues on appeal. 

 “We review de novo a district court’s dismissal of a complaint pursuant to Rule 12(b)(6), 

construing the complaint liberally, accepting all factual allegations in the complaint as true, and 

drawing all reasonable inferences in the plaintiff’s favor.” Chambers v. Time Warner, Inc., 282 

F.3d 147, 152 (2d Cir. 2002).1

 The complaint must plead “enough facts to state a claim to relief 

that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); see also Ashcroft 

v. Iqbal, 556 U.S. 662, 678 (2009). Although a court must accept as true all the factual allegations 

in the complaint, that requirement is “inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678. 

 1 Unless otherwise indicated, case quotations omit all internal citations, quotation marks, 

and alterations. 
 

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I. Failure-to-Accommodate 

 The district court properly dismissed Harvin’s failure-to-accommodate claims. “[A] 

plaintiff makes out a prima facie case of disability discrimination arising from a failure to 

accommodate by showing . . . [that] (1) [p]laintiff is a person with a disability under the meaning 

of the ADA; (2) an employer covered by the statute had notice of [her] disability; (3) with 

reasonable accommodation, plaintiff could perform the essential functions of the job at issue; and 

(4) the employer has refused to make such accommodations.” McBride v. BIC Consumer Prods. 

Mfg. Co., 583 F.3d 92, 96-97 (2d Cir. 2009). 

 We conclude that Harvin failed to plausibly allege that she requested reasonable 

accommodations for her disability. Harvin’s March 2013 request to transfer back to scheduling, 

which required less typing, was unreasonable. The ADA provides that reassignment to a vacant

position is a reasonable accommodation, but it does not require employers to create entirely new 

positions. Graves v. Finch Pruyn & Co., 457 F.3d 181, 187 (2d Cir. 2006). The employee bears the 

burden of showing that a reasonable accommodation exists, including the existence of a vacant 

position for which she is qualified. McBride, 583 F.3d at 97. Harvin did not allege that there was 

an open position in scheduling in March 2013 when she asked to transfer.2

 To the extent Harvin 

also asserted that she should have been promoted as an accommodation, that also was not a 

reasonable accommodation. See McBride, 583 F.3d at 98. In addition, Harvin’s request that other 

employees take on some of her work assignments—including the part-time employee payroll and 

 2 Harvin also alleged that she requested to be transferred back to her former position on 

March 28, 2012, at which point the spot was vacant, and that this request was effectively denied 

two days later when the job was given to someone else. However, claims arising out of alleged 

adverse employment actions occurring more than three hundred days before Harvin filed her 

administrative charge with the New York State Division of Human Rights (that is, before 

December 15, 2012) are statutorily time-barred. See McGullam v. Cedar Graphics, Inc., 609 F.3d 

70, 75 (2d Cir. 2010). 
 

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making checkmarks in the payroll—was not reasonable because that work was an essential function 

of her job. See Shannon v. N.Y.C. Transit Auth., 332 F.3d 95, 100 (2d Cir. 2003) (“A reasonable 

accommodation can never involve the elimination of an essential function of a job.”). 

 Lastly, Harvin argues for the first time on appeal that Moore could have provided her with 

an ergonomic chair and keyboard. But Harvin did not allege that she requested these 

accommodations. We will not consider this claim. See Virgilio v. City of New York, 407 F.3d 105, 

116 (2d Cir. 2005) (generally, this Court “refrain[s] from passing on issues not raised below”). 

II. Disparate Treatment 

 Claims alleging disparate treatment under the ADA are analyzed under the burden-shifting 

analysis established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Heyman v. 

Queens Village Comm. for Mental Health for Jamaica Cmty. Adolescent Program, Inc., 198 F.3d 

68, 72 (2d Cir. 1999). To establish a prima facie case of discrimination under the ADA, a plaintiff 

must show: (1) her employer is subject to the ADA; (2) she is disabled within the meaning of the 

ADA; (3) she is otherwise qualified to perform the essential functions of her job with or without 

accommodation; and (4) she suffered an adverse employment action because of her disability. See 

Jacques v. DiMarzio, Inc., 386 F.3d 192, 198 (2d Cir. 2004). 

 Harvin failed to state a disparate treatment claim based on the denial of promotions. She 

conclusorily alleged that she was denied nine different promotions because of her disability, but 

Harvin sought to be promoted into positions for which she was not qualified because those positions 

required a bachelor’s degree, which she did not have. While Harvin also alleged that she sought 

positions that permitted the applicant to satisfy the job requirements through a combination of 

experience and education, she did not allege any facts showing that she had the requisite experience 

or that the Transit Authority denied her these jobs because of her disability. Her conclusory 
 

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assertions are insufficient. See Kirch v. Liberty Media Corp., 449 F.3d 388, 398 (2d Cir. 2006) 

(“[C]onclusory allegations or legal conclusions masquerading as factual conclusions will not 

suffice to [defeat] a motion to dismiss.”). 

 Harvin’s allegation that she was denied training, overtime, and tools also fails. She did not 

allege any facts showing that Moore denied her training or tools because of her disability. Similarly, 

Harvin noted that her computer was broken, but alleged no facts suggesting the computer problems 

or delay in resolving the issue were a result of her disability. Indeed, Harvin alleged that a computer 

assigned to another employee in the payroll department suffered from the same issues. Next, Harvin 

alleged she was given overtime only on Saturdays, while Amerson received it every day. However, 

Harvin alleged no facts to show that the discrepancy was because of her disability or that Amerson 

was a similarly situated employee. See Shumway v. United Parcel Serv. Inc., 118 F.3d 60, 64 (2d 

Cir. 1997) (while similarly situated employees who receive different treatment can be evidence of 

discrimination, the employees “must be similarly situated in all material aspects”); Norville v. 

Staten Island Univ. Hosp., 196 F.3d 89, 96 (2d Cir. 1996) (holding that similarly situated means 

being subject to the same performance standards and engaging in similar conduct). 

 Finally, Harvin alleged that Moore and Amerson were rude to her on two occasions in 2013. 

Although Harvin plausibly alleged that Moore and Amerson were rude to her, rudeness is not an 

adverse employment action and Harvin did not allege that she was ever formally disciplined by 

either Amerson or Moore, despite their criticism. See Weeks v. New York State (Div. of Parole), 

273 F.3d 76, 85-86 (2d Cir. 2001) (notice of discipline that had no material effect was not adverse 

for disparate treatment and retaliation claims), abrogated on other grounds by Nat’l R.R. Passenger 

Corp. v. Morgan, 536 U.S. 101 (2002). Harvin did not allege that she was formally disciplined at 

any time. Therefore, the district court properly dismissed this claim. 
 

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III. Hostile Work Environment 

 This Court recently concluded that hostile work environment claims are cognizable under 

the ADA. Fox v. Costco Wholesale Corp., 918 F.3d 65, 74 (2d Cir. 2019). This Court applies the 

standards applicable to claims under the Title VII of the Civil Rights Act. See id. Thus, to establish 

a hostile work environment claim, Harvin must show, inter alia, that “the workplace was permeated 

with discriminatory intimidation that was sufficiently severe or pervasive to alter the conditions of 

. . . her work environment” and that the harassment was based on her protected group. Petrosino v. 

Bell Atl., 385 F.3d 210, 221-22 (2d Cir. 2004). A “[p]laintiff must show not only that she 

subjectively perceived the environment to be abusive, but also that the environment was objectively 

hostile and abusive.” Demoret v. Zegarelli, 451 F.3d 140, 149 (2d Cir. 2006). “[A] mild, isolated 

incident does not make a work environment hostile[.] [T]he test is whether the harassment is of 

such quality or quantity that a reasonable employee would find the conditions of her employment 

altered for the worse.” Terry v. Ashcroft, 336 F.3d 128, 148 (2d Cir. 2003). 

 Harvin failed to state a claim for hostile work environment. Run-of-the-mill workplace 

conflicts, troubling though they may be, do not rise to the level of an objectively hostile workplace. 

See Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998) (holding that “the ordinary 

tribulations of the workplace, such as the sporadic use of abusive language,” do not rise to a level 

constituting a hostile work environment); Brennan v. Metro. Opera Ass’n, 192 F.3d 310, 318 (2d 

Cir. 1999) (“Isolated, minor acts or occasional episodes do not warrant relief.”). Harvin alleged that 

Moore and Amerson were rude and hostile on various occasions, but these incidents reflect only 

fraught relationships with her supervisors. Further, only two of the many incidents could have 

referred to Harvin’s disability, which is insufficient to state a claim for hostile work environment. 

See Brown v. Coach Stores, Inc., 163 F.3d 706, 713 (2d Cir. 1998) (occasional racist remarks, 
 

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though despicable, did not create a hostile work environment based on race). Harvin therefore does 

not allege facts sufficient to state a hostile work environment claim. 

IV. Retaliation 

 Claims for retaliation under the ADA are analyzed under the burden-shifting framework 

that is established for Title VII cases. Treglia v. Town of Manlius, 313 F.3d 713, 719 (2d Cir. 2002). 

This framework requires “(1) participation in a protected activity; (2) that [the employer] knew of 

[plaintiff’s] participation in that protected activity; (3) that [plaintiff] suffered an adverse 

employment action; and (4) that there exists a causal relationship between the protected activity 

and the adverse employment action.” Hicks v. Baines, 593 F.3d 159, 166 (2d Cir. 2010). To 

establish an adverse employment action in the retaliation context, “a plaintiff must show that a 

reasonable employee would have found the challenged action materially adverse, which in [the 

retaliation] context means it well might have dissuaded a reasonable worker from making or 

supporting a charge of discrimination.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 

68 (2006). “Trivial harms,” “slights,” and “annoyances,” do not constitute adverse acts. Tepperwien 

v. Entergy Nuclear Operations, Inc., 663 F.3d 556, 568 (2d Cir. 2011). None of incidents described 

by Harvin rise to the level of an adverse action; at most they consist of interpersonal slights. 

Accordingly, the district court properly dismissed Harvin’s retaliation claim. 

 We have reviewed the remainder of Harvin’s arguments and find them to be without merit. 

For the foregoing reasons, the judgment of the district court is AFFIRMED. 

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk of Court