21

- 1679 Sabato Torres v. N.Y.C. Dep’t of Educ.



## 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 (WI TH 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, 1 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of 2 New York, on the 16 th day of November , two thousand twenty

- two. 3 4 PRESENT: 5 PIERRE N. LEVA L, 6 REENA RAGGI, 7 MYRNA PÉREZ, 8 Circuit Judges. 9

_____________________________________ 10 11 Sabato Torres , 12 13 Plaintiff

- Appel lant , 14 15

v. No. 21

- 1679 16 17 New York City Department of Education , 18 19 Defendant

- Appel lee

. 20

_____________________________________ 21 22 FOR PLAINTIFF

- APPELL ANT : T HOMAS R ICOTTA , 23 Ricotta & Marks , P.C., 24 Long Island City , NY. 25 26 FOR DEFENDANT

- APPELL EE : K ATE F LETCHER ( Richard 27 Dearing, Deborah A. 28 Brenner, on the brief ), for 29 Georgia M. Pestana, 30 Corporation Counsel of the 31 City of New York, New 32 York, NY. 332 Appe a l from a judgment of the United States Di strict Court for the Eastern District of New 1

York ( Rachel P. Kovner , J

. ). 2

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 3

DECREED that the judgment of the district court entered on June 8, 2021 , is AFFIRMED

. 4

Plaintiff Sabato Torres appeals from a grant of summary judgment in favor of his employer, 5
the New York City D epartment of Education (“DOE”), in a case brought under the American s 6

with Disabilities Act (“ADA”)
, 42 U.S.C. §§ 12101 et seq

. As explained below, Torres has entirely 7

failed to advance any evidence or argument sufficient to sustain a claim past this step. We assume 8
the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues 9

on appeal , which we reference only as necessary to explain our decision to affirm

. 10

Standard of Review 11
This Court reviews a district court’s award of summary judgment de novo

. See McBride 12

v. BIC Consumer Prod s. Mfg. Co. , 583 F.3d 92, 9 6 (2d Cir. 2009). Summary judgment is 13
warranted only where, construing the evi dence in the light most favorable to the non

- movant , and 14
drawing all reasonable inferences in that party’s favor, “there is no genuine dispute as to any 15

material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56 (a) . A 16

fa ct is “material” if it “might affect the outcome of the suit under the governing law,” and an i ssue 17
is “genuine” if “the evidence is such that a reasonable jury could return a verdict for the nonmoving 18

party.” Holtz v. Rockefeller & Co. , 258 F.3d 62, 69 ( 2d Cir. 2001) (internal quotation marks and 19
citation omitted)

. 20

“ A plaintiff who raises a disability discrimination claim bears the initial burden of 21
establishing a prima facie case. ” Wernick v. Fed. Rsrv. Bank of N.Y. , 91 F.3d 379, 383 (2d Cir. 223 1996). For Torres to carry this burden on his claim that DOE failed to accommodate his disability
, 1
he had to adduce evidence admitting an inference that : (1) he is “ a person with a disability under 2
the meaning of the ADA ” ; (2) D OE “ had notice of his disability ” ; (3) “ with reasonable 3

accommodation, [Torres] could perform the essential functions of the job at issue ” ; and (4) DOE 4

“ refused to make such accommodations.” Graves v. Finch Pruyn & Co. , 457 F.3d 181, 184 (2d 5
Cir. 2006) (q uoting Rodal v. Anesthesia Grp

. of Onondaga, P.C. , 369 F.3d 113, 118 (2d Cir. 6

2004) )

. Here, o ur inquiry concerns the third and fourth factors

. 1 7

This Court uses “a two

- step process to evaluate whether the failure to provide a proposed 8

accommodation constitutes a violation of the ADA.” Jackan v. N.Y. State Dep ’ t of Lab. , 205 F.3d 9

562, 566 (2d Cir. 2000). At the f irst step , Torres “bears the burdens of both produc tion and 10

persuasion as to the existence of some accommodation that would allow [him] to perform the 11

essential functions of [his] employment, including the existence of a vacant position for which [he] 12

is qualified.” McBride , 583 F.3d at 97. At the s econd step , we consider whether Torres’s proposed 13

accommodation is reasonable
, s ee Jackan , 205 F.3d at 566
, i.e. , whether it would enable him “ to 14
perform the essential functions of ” his position as a teacher, 29 C.F.R. § § 1630.2(o)(1)(ii). A 15
reasonable accommodation may include “reassignment to a vacant position.” 42 U.S.C. § 16

12111(9) (B) ; see also 29 C.F.R. § 1630.2(o)(2)(ii)

. At this step, “the plaintiff bears only a burden 17
of production
, ” which is not “ heavy

. ” Borkowski v. Valley Cent. Sc h. Dist. , 63 F.3d 131, 138 (2d 18

Cir. 1995). But an employer need not grant a facially unreasonable accommodation

. S ee U.S. 19

Airways, Inc. v. Barnett , 535 U.S. 391, 401 (2002 ). 20

1 We assume, without deciding, that Torres was disabled within the meaning of the ADA at the relevant times. And there is no dispute that DOE had notice of Torres ’s claimed disability.4 Discussion 1

1. August 2016 Transfer Request 2

I n August 2016, DOE twice granted Torres precisely the relief that he requested : first, a 3

hardship transfer, and then
, a restoration

- of

- health leave for the duration of the 2016

– 17 school 4

year. There is no question that the hardship transfer constituted a reasonable accommodation. See 5
42 U.S.C. § 12111(9)(B)

. 2 Torres , however, elected to take the leave rather than to effectuate the 6

transfer

. 7

Torres faults DOE for forc ing him to choose between two accommodations rather than 8
allowing him to take leave while also effecting his transfer

. The record does not support this 9

characterization. While DOE did not effect Torres’s transfer while he was on leave, it did not 10
foreclose the possibility of a t ransfer if Torres returned to work n or force him to return to P.S. 11

2 95Q

. Rather, DOE required Torres to reapply for a transfer closer to his return date. It was not 12

then certain that Torres would return for the 20 17

– 18 school year . Indeed, Torres ultimately 13

remained on restoration

- of

- health leave until February 2018. Under th o se circumstances, no 14

reasonable factfinder could conclude that DOE ’s reasonable accommodation obligation required 15

it to hold open Torres’s approved transfer for a t least the one

- year leave period he requested

. See 16
Vangas v. Montefiore Med. Ctr ., 823 F.3d 174, 181 (2d Cir. 2016) (construing New York State 17
Human Rights Law, N.Y. Exec. Law §§ 290 et seq.) ; see also Graves , 457 F.3d at 186 n.6

. 18

2. April 2017 Transfer R equest 19

Torres erroneously contends that he satisfied his burden of production and persuasion

. T o 20

2 We do not decide whether a school

- year

- long unpaid leave of absence can constitute a reasonable accommodation under the ADA. This Court has not squarely a rticulated when, if ever, a leave of absence for a finite period might qualify as a reasonable accommodation
, but we have noted that the idea of unpaid leave is a “troublesome problem,” in part because of the “oxymoronic anomaly it harbors

— the idea that allowing disabled employee to leave a job allows him to perform that job’s functions.” Graves , 457 F.3d at 185 n.5 (intern al quotation marks and citation omitted).5 demonstrate the existence of a vacant position in April 2017
, Torres offers only : (1) his counsel’s 1
conclusory statement that there are “virtually always” open teaching positions within DOE
, and 2
(2) the urged inference that because there was a position available in August 2016, there was also 3

a position available in April 2017

. 4

The first assertion is formulaic and speculative, which i s insufficient to defeat summary 5
judgment. See McBride , 583 F.3d at 97

– 98 (holding that “ [a]n ADA plaintiff does not satisfy her 6
burden to identify a potential accommodation merely by reciting the formula that h er employer 7
could have reassigned her”) ; Jackan , 205 F.3d at 566 (“The burden of persuasion on the existence 8
of an effective accommodation is not satisfied by mere speculation.” (internal quotation marks 9

omitted) )

. The second claim is also unavailing becaus e a plaintiff must demonstrate the existence 10

of an available position “ within a reasonable amount of time” of his request. Shannon v. N.Y.C. 11

Transit Auth. , 332 F.3d 95, 104 (2d Cir. 2003)

. Th e availability of a position in August 2016 is 12

not a reasonable indicator of a vacant position eight months later at an entirely different point in 13
the school year. 14

3. Interactive Process 15

Nor does Torres succeed on his claim of failure to accommodate by failing to engage in an 16

interactive process. Torres contends that DOE’s failure to engage in an interactive process when 17
he sought both transfers also violated the ADA. Though “[ t ] he ADA envisions an interactive 18
process by which employers and employees work together to asses s whether an employee’s 19
disability can be reasonably accommodated
, ” Jackan

, 205 F.3d at 566 (internal quotation marks 20
omitted) , an employer’s failure to comply with the interactive process requirement does not 21

provide the basis for an independent ADA claim. S ee Noll
, 787 F.3d at 9 8 ; Williams v. MTA Bus 226 Co. , 44 F.4th 115, 136 (2d Cir. 2022)

. 1

We have considered all of Torres’s remaining arguments and conclude they are without 2
merit. For the foregoing reasons, we AFFIRM the judgment of the district court. 3

FOR THE COURT: 4 Catherine O ’ Hagan Wolfe, Clerk of Court 5 6