1 13-4164-cv Wesley-Dickson v. Warwick Valley Cent. Sch. Dist. UNITED STATES COURT OF APPEALS FOR THE SECO ND CIRCUIT SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AF TER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROC EDURE 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 APPEND IX OR AN ELECTRONIC DATAB ASE (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 Seco nd Circuit, held at the Thurgood Marshall United Stat es Courthouse, 40 Foley Sq uare, in the City of New York, on the 6 th day of October, two thousand fourteen. PRESENT: RALPH K. WINTER, REENA RAGGI, PETER W. HALL, Circuit Judges.

---------------------------- ---------------------------- -------------- LYNNEA WESLEY-DICKSON, Plaintiff-Appellant , v. No. 13-4164-cv

WARWICK VALLEY CENTRA L SCHOOL DISTRICT, CHRIS FOX, in her individua l and official capacity, MARIJANE REINHARD, in her individual and official capacity, and KATHY CARMODY, in her individual and official capacity, Defendants-Appellees. *

-------------------------------------- -------------------------------- APPEARING FOR APPELLANT: MICH AEL H. SUSSMAN, Sussman & Watkins, Goshen, New York.

* The Clerk of Court is directed to ame nd the official caption as shown above.2 APPEARING FOR APPELLEES: SCOTT P. QUESNEL (Patrick J. Fitzgerald, on the brief ), Girvin & Ferlazzo, P.C., Albany, New York. Appeal from a judgment of the United States District Court for the Southern District of New York (John G. Koeltl, Judge ). UPON DUE CONSIDERATION, IT IS HEREBY ORDERE D, ADJUDGED, AND DECREED that the judgment entered on September 26, 2013, is AFFIRMED. Plaintiff Lynnea Wesley-Dickson appeals from an award of summary judgment in

favor of defendants on her claims of race (African-American) and disability (cancer) discrimination in employment under (1) Title VII of the Civil Rights Act of 1964 (“Title VII”), see 42 U.S.C. § 2000e et seq.; (2) th e Americans with Disabilities Act (“ADA”), see 42 U.S.C. § 12101 et seq.; (3 ) 42 U.S.C. § 1981; (4) 42 U.S. C. § 1983; and (5) New York State Human Rights Law (“NYSH RL”). We review a summary judgment award de novo, construing the evidence in the light most favorab le to the non-moving party. See Lynch v. City of New York, 737 F.3d 150 , 156 (2d Cir. 2013). We assume the parties’ familiarity

with the facts and the record of prior proceedings, which we reference only as necessary to explain our decision to affirm.

1. Discrimination Claims Plaintiff’s claims of race and disability discrimination in ha ving her probationary period as Supervisor of Special Educatio n extended and in being denied tenure are

evaluated under the framework set forth in McDonnell Dougla s Corp. v. Green, 411 U.S.3 792 (1973). See McMillan v. City of Ne w York, 711 F.3d 120, 125 (2d Cir. 2013) (applying McDonnell Douglas’s Title VII fram ework to ADA claim); Garcia v. Hartford Police Dep’t, 706 F.3d 120, 127 (2d Cir. 2013) (same as to § 1981 and § 1983 claims); Dawson v. Bumble & Bumble, 398 F.3d 211 , 217 (2d Cir. 2005) (same as to NYSHRL claim). Under this rubric, “plaintiff bears th e initial burden of estab lishing a prima facie

case of discrimination.” Holcomb v. Iona College, 521 F.3d 130, 138 (2d Cir. 2008). If she does so, “the burden shifts to the de fendant to articulate ‘some legitimate, non-discriminatory reason’ for its action, ” id. (quoting McDonnell Douglas Corp. v. Green, 411 U.S. at 802), whereupon “the burden then shifts back to the plaintiff to show that the employer’s explanation is a pretext” for unlawful discrimination, Kirkland v. Cablevision Sys., --- F.3d ---, 2014 WL 36 86090, at *2 (2d Cir. July 25, 2014). Plaintiff challenges the district court’s dete rmination that she failed to carry either her step one or step three burdens. We need not review the former because, even if we

were to resolve that issue in plaintiff’s favor, we neverthe less conclude, largely for the reasons stated by the district court in its de tailed opinion, see Wesl ey-Dickson v. Warwick Valley Cent. Sch. Dist., 973 F. Supp. 2d 386 (S.D.N.Y. 2013), that plaintiff failed to raise a triable issue of fact at the third step of analysis. At the outset, we note that plaintiff con fronted a particularly high hurdle at step three because not only had defendants proffe red a non-discriminatory reason—poor work performance—for the challenged actions, but also they detailed particular concerns with4 plaintiff’s ability timely to organize and clea rly to write special education plans for disabled children that persis ted throughout her employment. Indeed, plaintiff’s first supervisor, Tammy Cosgrove—whom plaintiff doe s not charge with discriminatory bias and who praised plaintiff’s in terpersonal skills—repeatedly not ed defects in plaintiff’s writing, editing, and ab ility timely to complete tasks, and expressed “grave concern” as to plaintiff’s “ability to adequate ly perform a major component of her job.” J.A. 278. Plaintiff’s three subsequent supervisors and then-Superin tendent Dr. Frank Greenhall

echoed these same concerns. In nevertheless arguing that these persis tent work performance concerns were a pretext for race and disability discrimination, plaintiff charges the district court with ignoring her responses to “overblown” negative evaluatio ns. Appellant’s Br. 36. Because plaintiff failed adequately to raise this argument below, we deem it forfeited on appeal. See Zalaski v. City of Hartford, 723 F.3d 382, 395 (2d Cir. 2013). We turn to plaintiff’s preserved arguments.

a. Race Discrimination Plaintiff argues that various comments by named defendants or school district supervisors raised a triable issue that racial bias, rather than poor work performance, was a motivating reason for the challenged employmen t actions. Specifically, she alleges that, in September 2007, while she was undergoing chemotherapy and wearing a headscarf,

defendant Reinhard told her th at when she spoke in a southern accent she sounded “like5 Aunt Jemima” and as if she were “down on th e plantation.” J.A. 445. Plaintiff also attributes to defendant Fox a September 2007 re mark dismissing a school district diversity conference to be led by African-Americans as “a waste of her time.” Id. at 432. Finally, plaintiff asserts that, in May 2006, Superinte ndent Greenhall recounted that he had been severely assaulted by “six black boys,” but had “showed them.” Id. at 417. She further alleges that in response to concerns e xpressed no later than March 2008 by union representative Mary Jane Hamburger about plaintiff’s negative performance evaluations,

Greenhall stated that he was “not afraid to fire black people.” Id. at 452. In determining whether remarks are probative of discriminatory intent, a court properly considers (1) who made the remark (i.e., a decisi on-maker, a supervisor, or a low-level co-worker); (2) when the remark was made in relation to the employment decision at issue; (3) the content of the remark (i.e., whether a reasonable juror could view the remark as discrimi natory); and (4) the context in which the remark was made (i.e., whether it was related to the decision-making process). Henry v. Wyeth Pharm., Inc., 616 F.3d 134, 149 (2d Cir. 2010). Assuming that a reasonable juror could identify racial bias in the cited remarks, we nevertheless conclude that they do not raise a triable issue of employment discrimination. Reinhard did not review plaintiff’s work, wr ite any performance reviews, or otherwise influence school superi ntendents’ decisions to extend plai ntiff’s probationary term or to deny her tenure. See Tomassi v. Insignia Fin. Grp., 478 F.3d 111, 115 (2d Cir. 2007) (holding that remarks by someone other than decision-maker “may have little tendency to6 show that the decision-maker was motived by the discrimina tory sentiment expressed in the remark”), abrogated on othe r grounds by Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 177–78 (2009) (holding that under Age Disc rimination in Employment Act plaintiff must prove that age was “‘but-for’ cause of the challenged employer decision”); cf. Nagle v. Marron, 663 F.3d 100, 117–18 (2d Cir. 2011) (observing that under “cat’s paw” theory, “final decision maker that relies entirely on an improperly mo tivated recommendation from a subordinate may render the municipa lity liable”). Moreover, Reinhard’s comments were made 6 months before plain tiff was first recomme nded not to receive

tenure and 18 months before tenure was denied. See Tomassi v. Insignia Fin. Grp., 478 F.3d at 115 (holding that more remote and obliq ue remarks are in relation to adverse action, less they prove discriminatory motivation). Although Fox was one of plaintiff’s reviewing supervisors, and although Superintendents Greenhall and Br yant indicated that they re lied on performance reviews in making tenure recommendations, both the contex t of Fox’s isolated comment (about a district conference) and its timing (6 months before plaintiff’s probationary term was

extended and 18 months before she was denied tenure) are too remote and oblique to raise a triable issue of pretext. See id. (statin g that comment is probative insofar as it

demonstrates that adverse action is motivated by discriminatory intent); see also Antonia v. Sigma Network, Inc., 458 F.3d 1177, 1184 (10t h Cir. 2006) (holding that isolated racist comment by one of four decision-makers made approximately 9 months before termination7 did not raise issue of fact as to pretext). This is particularly so given that Fox’s criticisms of plaintiff’s work only reiterate those earlier voiced by superv isor Cosgrove, whom plaintiff does not accuse of bias. See Weinst ock v. Columbia Univ., 224 F.3d 33, 45 (2d Cir. 2000) (observing that “consistency of the viewpoint expressed” by supervisor “further supports” employer’s “proffered non-discriminatory reason” for denying tenure); cf. Back v. Hastings On Hudson Union Free Sch. Dist., 365 F.3d 107, 125 (2d Cir. 2004) (identifying pretext where “sudden decline in performance evaluations” occurred “only after the alleged discriminatory comments began”). 1 Greenhall’s May 2006 report of a past assaul t by “black boys” is also too remote in time and oblique in context to support an inference of pretext. See Tomassi v. Insignia Fin. Grp., 478 F.3d at 115. As for his st atement to Hamburger, plaintiff has failed to demonstrate admissibility. See CILP Assocs., L.P. v. PriceWaterhouse Coopers LLP, 735 F.3d 114, 123 (2d Cir. 2014) (requiring admissible evidence in oppositio n to summary judgment). Hamburger’s alleged recoun ting of Greenhall’s statement—which she denies—to plaintiff was made in her capacity as a union representative, not as an agent of

1 In the district court, plaintiff argued that Fox’s disparate discipline of her compared to white and non-disabled employees was an additional adverse employment action. Because she does not pursue th at argument on appeal, we de em it abandoned. See Hoffler v. Bezio, 726 F.3d 144, 154 n. 9 (2d Cir. 2013). To the exte nt she argues that disparate discipline shows that Fox’s pe rformance criticisms were pretextual, plaintiff fails to demonstrate that she was sufficiently similarly situated to her compar ators to support such an inference, see Shumway v. United Parcel Se rv., Inc., 118 F.3d 60, 64–65 (2d Cir. 1997) (affirming grant of summary judgment where Title VII plaintiff failed to demonstrate that other employees were “sim ilarly situated in all material respects” (internal quotation marks omitted)), particularly where, as here, Fox’s negativ e evaluations reiterate Cosgrove’s.8 defendant school district, and thus does not qu alify as a non-hearsay statement of a party opponent under Fed. R. Evid . 801(d)(2)(D). See generally Crigger v. Fahnestock & Co., 443 F.3d 230, 238 (2d Cir. 2 006) (holding that 801(d)(2)(D ) proponent must establish (1) existence of agency relationship, (2) th at statement was made in course of that relationship, and (3) that statement relate s to matter within sc ope of agency). In sum, even when the record is viewed in the light most favorable to plaintiff, we must conclude, as the district court did, that no reasonable jury coul d find that detailed and consistent concerns with plaintiff’s work performance were only a pretext for adverse employment actions that were really motivated by racial bias. See Richardson v. Comm’n on Human Rights & Opportunities, 532 F.3d 11 4, 125–26 (2d Cir. 2008) (upholding summary judgment given overwhelming evidence that te rmination was for non-discriminatory reason). b. Disability Discrimination

The same conclusion obtains with respect to plaintiff’s step-three burden as to disability discrimination. No reasonable ju ry could infer disab ility discrimination from the fact that Superintendent Greenhall—who himself later died of cancer—occasionally inquired as to plaintiff’s hea lth. The inquiries were solicitous and not reflective of bias.

Nor is a different conclusion warranted becau se the inquiries were posed around March 2008, when Greenhall stated hi s intent to recommend against granting plaintiff tenure. Greenhall had indicated as early as May 2007 th at he might not support plaintiff’s tenure.9 In these circumstances, neutral inquiries about the health of an empl oyee whose illness was well known are not enough to admit a reasona ble jury finding that consistent poor performance reviews were a pr etext for disability discrimi nation in denying plaintiff

tenure. Plaintiff argues that pretex t is also evident in the December 2006 statement of supervisor Carmody when plaintiff requested leave to undergo chemotherapy, i.e., that Carmody had had a colleague on chemotherapy who became forgetful and came to work unkempt. Even if we assume that this statement evinced some disability bias, the context and timing are too remote from either the 2008 extension of plai ntiff’s probationary employment or the 2010 denial of tenure to support a conclusion that disability bias was the

real reason for these adverse actions. See Tomassi v. Insignia Fin. Grp., 478 F.3d at 115.

Nor can such an inference be drawn from the fact that Carmody gave plaintiff a negative performance review in June 20 07 because the concerns she e xpressed only reiterated those already raised by Cosgrove. Accordingly, summary judgment was correc tly awarded in favor of defendants on plaintiff’s claims of race and disability discrimination.

2. Hostile Work Environment Plaintiff relies on the same comments by Re inhard, Greenhall, Fox, and Carmody to challenge the summary judgment award on he r Title VII, ADA, and NYSHRL claims of a10 hostile work environment. 2 To prevail on a hostile environment claim, plaintiff must show (1) “a workplace that is so severely permeated with discriminatory intimidation, ridicule, and insult that the

terms and conditions of her em ployment were thereby altered, ” Desardouin v. City of Rochester, 708 F.3d 102, 105 (2d Cir. 2013) (internal quotation marks omitted); and (2) a “specific basis” for imputing the challenged conduct to the employer, Duch v. Jakubek, 588 F.3d 757, 762 (2d Cir. 2009). Like the district court, we conclude that the statements attributed to defendants were too infreque nt and insufficiently severe to interfere unreasonably with plaintiff’s work performance. See Harri s v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993); accord De sardouin v. City of Roches ter, 708 F.3d at 105; see also Thomas v. iStar Fin., Inc., 65 2 F.3d 141, 151 (2d Cir. 2011) (affirming dismissal of hostile work environment claim challenging “occasiona l and isolated” events that did not alter terms and conditions of employment (interna l quotation marks omitted)). Thus, summary judgment was correctly entered in favor of defendants on plaintiff’s hostile work

environment claim.

3. Retaliation We similarly uphold the aw ard of summary judgment on plaintiff’s retaliation

2 Although this court has not yet decided whether a hostile work environment claim may be made under the ADA, we need not resolve that question here beca use plaintiff’s claim fails, in any event, on the merits. See Margherita v. Fe dEx Exp., 511 F. App’x 71, 73 (2d Cir. Feb. 7, 2013) (summary or der) (“Assuming that the ADA provides a basis for a hostile work environment claim, an i ssue not yet decided by this Co urt, Margherita has failed to present sufficient evidence to support this claim.”).11 claims under Title VII, the ADA, § 1981, a nd the NYSHRL, which are also evaluated under the McDonnell Douglas fra mework and fail at the thir d step of analysis. See Kirkland v. Cablevision Sys ., 2014 WL 3686090, at *1 (Title VII); Widomski v. State Univ. of N.Y. (SUNY) at Orange, 748 F.3d 471, 476 (2d Cir. 2014) (ADA); Kelly v. Howard I. Shapiro & Assocs. Consulting En g’rs, P.C., 716 F.3d 10, 14 (2d Cir. 2013) (NYSHRL); Fincher v. Depos itory Trust & Clearing Corp., 604 F.3d 712, 720 (2d Cir. 2010) (§ 1981). 3 The only protected activity plaintiff asserts is her Ma y 2008 NYSHRL complaint alleging race and disability discrimination. Because Bryant’s recommendation that plaintiff not be granted tenure occurred nearly two years later in March 2010, the district court correctly concluded that plaintiff fail ed to carry her step-three burden to adduce evidence supporting an inferenc e that poor work pe rformance was only a pretext for the retaliation that really motivated this advers e employment action. See Bucalo v. Shelter

3 Unlike with her discrimina tion claims, plaintiff must es tablish under Title VII that unlawful retaliation “was a ‘but-for’ cause of the adverse action, and not simply a ‘substantial’ or ‘motivating’ factor in the employer’s decision.” Zann Kwan v. Andalex Grp., 737 F.3d 834, 845 (2d Cir. 2013) (quoting Univers ity of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2526, 2533 (2013)). Th is “but-for” standard might also apply to her ADA retaliation claim. See Lewis v. Hu mboldt Acquisition Corp ., 681 F.3d 312, 321 (6th Cir. 2013) (applying “but-for” causation to ADA claims in light of Gross v. FBL Fin. Servs., Inc., 557 U.S. 167 (200 9), which interpreted Age Di scrimination in Employment Act); cf. Parker v. Columbia Pictures Indu s., 204 F.3d 326, 336 (2d Cir. 2000) (holding pre-Gross that “mixed-motive an alysis available in the Title VII context applies equally to cases brought under the ADA”). We need not decide that question, however, or even apply “but for” causation because plaintiff fa ils to satisfy the more lenient “motivating factor” standard.12 Isl. Union Free Sch. Dist., 691 F. 3d 119, 131 (2d Cir. 2012) (s tating that although no bright

line establishes causal relati onship between protected activ ity and retaliatory action, “courts in this circuit have typically measured that gap as a matter of months, not years”). Plaintiff urges us to view her protecte d activity as continuing through the litigation of her NYSHRL complaint, whic h she submits then led to her March 17, 2010 filing of the complaint in this action, follo wed two days later by the recommendation that she be denied tenure. Even if we were to adopt this vi ew, plaintiff would not be entitled to relief from summary judgment because the record does not support an inference of retaliation while plaintiff litigated her NYSHRL complaint. To the cont rary, she remained employed during this litigation, was permitted to take a year-long leave of ab sence, and upon her return, was granted her request to be assigned new supervisors and different responsibilities. 4 In such circumstances, and partic ularly in light of the persistent

concerns with her substantive work performance that prompted Greenhall, even before any protected activity, to signal that he might well not recommend tenure, plaintiff fails to raise a triable issue of fact that pr otected activity was a motivating factor in the decision not to award her tenure. See El Sayed v. Hilton Ho tels Corp., 627 F.3d 9 31, 933 (2d Cir. 2010) (holding temporal proximity between prot ected activity and adverse employment action “insufficient . . . to bring forward some evidence of pretext”); see also Abrams v. Dep’t of

4 Plaintiff does not argue that her leave of abse nce diminishes the effect of the passage of time between her supervisors’ alleged discri minatory remarks and the adverse employment actions.13 Pub. Safety, --- F.3d ---, 2014 WL 4191178, at *8 (2d Cir. Aug. 26, 2014) (observing that five-month interval between protected activ ity and adverse employment action might establish prima facie retaliation case, but fa ils to raise triable issue of pretext).

4. Conclusion We have considered plaintiff’s remaini ng arguments and concl ude that they are

without merit. 5 We therefore AFFIRM the judgment of the district court.

FOR THE COURT: CATHERINE O’HAGAN WOLF E, Clerk of Court

5 Because we dispose of plaintiff’s race and di sability claims on the merits, we need not address the question of whether she properly pr esented her claims to the school district under N.Y. Educ. Law § 3813(1).