15-1637 Clarke v. White Plains Hospital 

## 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 JA NUARY 1, 2007, IS PE RMITTED AND IS GOVERNE D 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 (W ITH THE NOTATION A SUMMARY 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, 1 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of 2 New York, on the 25 th day of May, two thousand sixteen. 3 4 PRESENT: 5 AMALYA L. KEARSE, 6 DENNIS JACOBS, 7 BARRINGTON D. PARKER, 8 Circuit Judges. 9

_____________________________________ 10 11 MARGUERITE ELLEN CLARKE, 12 13 Plaintiff-Appellant , 14 15 v. 15-1637 16 17 WHITE PLAINS HOSPITAL, 18 19 Defendant-Appellee ,* 20 21 22

_____________________________________ 23 24 FOR PLAINTIFF-APPELLANT: Marguerite Ellen Clarke, pro se, White 25 Plains, NY. 26 27 FOR DEFENDANT-APPELLEE: Francis Carling, Francis Carling Law 28 Offices, New York, NY. 29

* The Clerk of Court is respectfully directed to amend th e official caption in this case to conform with the caption above.2 1 Appeal from a judgment of the United States Di strict Court for the Southern District of 2 New York (Seibel, J .). 3 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 4 DECREED that the judgment of the district court is AFFIRMED

. 5 Appellant Marguerite Ellen Cl arke, pro se, appeals from a judgment in favor of White 6 Plains Hospital (“the Hospital”) in her suit under, inter alia, Title VII of the Civil Rights Act of 7 1964 (“Title VII”), 42 U.S.C. § 2000e et seq. ; the Age Discrimination in Employment Act 8 (“ADEA”), 42 U.S.C. § 621 et seq. ; and the Americans with Disabi lities Act (“ADA”), 42 U.S.C. 9 § 12101 et seq. We assume the parties’ familiarity with the underlying facts, the procedural 10 history of the case, a nd the issues on appeal. 11

We “review de novo a district court’s dismissal of a complaint pursuant to [Federal] Rule 12 [of Civil Procedure] 12(b)(6), c onstruing the complaint liberally, accepting all factual allegations 13 in the complaint as true, and drawing all reas onable inferences in th e plaintiff’s favor.” 14 Chambers v. Time Warner, Inc. , 282 F.3d 147, 152 (2d Cir. 2002). The complaint must plead 15 “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly , 16 550 U.S. 544, 570 (2007); see also Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009). Although a court 17 must accept as true all the factual allegations in th e complaint, that requirement is “inapplicable to 18 legal conclusions.” Iqbal , 556 U.S. at 678. 19

We conclude that the district court properly dismissed Clar ke’s complaint. Clarke’s 20 claims were subject to an exhaustion requirement, i.e., that they, or claims that are reasonably 21 related, first be asserted in administrative proceedings, see, e.g ., Fitzgerald v. Henderson , 251 F.3d 22 345, 359 (2d Cir. 2001) (“If a claimant has faile d to pursue a given claim in administrative 233 proceedings, the federal court generally lacks jurisdiction to adjudicate that claim.”); Brown v. 1 Coach Stores, Inc. , 163 F.3d 706, 712 (2d Cir. 1998). However, her Title VII and ADEA claims 2 were not “reasonably related” to the alleged discrimination in her New York State Division of 3 Human Rights complaint, which was dual-file d with the Equal Employment Opportunity 4 Commission; it did not even menti on Clarke’s race, nationa l origin, or age. And Clarke presents 5 no argument to the contrary on appeal. To the extent that her ADA retaliation claim was 6 reasonably related, and therefore exhausted, Clarke argues that she engaged in a protected activity 7 by complaining that a unit supervisor was creating an intimidating and hostile work environment. 8 As the district court properly observed, however, Clarke failed to allege that the complaint she 9

made was “directed at conduct prohibited by [ the ADA ].” See Rojas v. Roman Catholic Diocese 10 of Rochester , 660 F.3d 98, 107–08 (2d Cir. 2011) (e mphasis in original) (quoting 11 Galdieri-Ambrosini v. Nat’l Realty & Development Corp ., 136 F.2d 276, 292 (2d Cir. 1998)). 12

We affirm the dismissal of Clarke’s ADA claims for discrimination and failure to 13 accommodate on the following bases. See In re Adderall XR Antitrust Litig. , 754 F.3d 128, 134 14 n.4 (2d Cir. 2014) (We may “affirm on any ground that finds support in the record sufficient to 15 permit a conclusion of law, even one not relied on by the district cour t.”). Clarke failed to allege 16 that there were light-duty positions available for nurse technicians at the time of her June 2011 17 request for light duty, nor was the Hospital requ ired to create a new position to accommodate 18

Clarke. See, e.g. , Graves v. Finch Pruyn & Co. , 457 F.3d 181, 187 (2d Cir. 2006); Norville v. 19 Staten Island Univ. Hosp. , 196 F.3d 89, 99 (2d Cir. 1999). And Clarke’s complaint, which was 20 drafted by counsel and not deserving of the specia l solicitude due pro se litigants, did not allege 21 that she sought internal tran sfers in May and July 2012 as a reasonable accommodation, that the 224 Hospital should have perceived the requests as be ing for a reasonable acco mmodation, or even that 1 a recovery room position entailed light-duty work. See Graves , 457 F.3d at 184 (“[G]enerally, it 2 is the responsibility of the individual with a disability to inform the employer that an 3 accommodation is needed.” (int ernal quotation marks omitted)). 4 Finally, Clarke contends that when the Ho spital discharged her in October 2012, it 5 improperly considered several unexcused absences that were allegedly due to treatment for her 6 back injury. Clarke failed, however, to allege that the Hospital knew that these absences were due 7 to her back injury; she alle ged only that she attempted, after the Hospital had decided to terminate 8 her employment, to explain that these absences should not have been considered unexcused. 9 Although Clarke asserted that the Hospital in fact knew of her back injury, that provided no basis 10 to infer any causal connection betw een that knowledge and her termin ation, as it was alleged that 11 the Hospital had known of the inju ry for nearly two years. See Clark Cty. Sch. Dist. v. Breeden , 12 532 U.S. 268, 273-74 (2001) (“The cases that accep t mere temporal proximity between an 13 employer’s knowledge of protected activity and an adverse employment action as sufficient 14 evidence of causality to establis h a prima facie case uniformly hold that the temporal proximity 15 must be very close . . . . Action taken . . . 20 mont hs later suggests, by itself, no causality at all.” 16 (internal quotation marks omitted)). Accordingly, Cl arke’s allegations were insufficient to “give 17 plausible support to a minimal inferen ce of discriminato ry motivation.” Vega v. Hempstead 18

Union Free Sch. Dist. , 801 F.3d 72, 84 (2d Cir. 2015) (internal quotation marks omitted). 19

20

215 We have considered Clarke’s remaining argumen ts and find them to be without merit. 1 Accordingly, we AFFIRM the district court’s judgment. 2

FOR THE COURT: 3 Catherine O’Hagan Wolfe, Clerk 4