12-2825-cv Deborah A. Davison v. Lagrange Fire Dist., et al. **UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT** 
**SUMMARY ORDER**

**R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT**  **. C**  **ITATION TO A SUMMARY ORDER FILED ON OR AFTER J** **ANUARY 1,**  **2007, IS PERMITTED AND IS GOVERNED BY**  **F EDERAL**  **R ULE OF**  **A PPELLATE**  **P ROCEDURE**  **32.1 AND THIS COURT**  **’ S**  **L OCAL**  **R ULE**  **32.1.1. W** **HEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT ,**  **A PARTY MUST CITE EITHER THE F**  **EDERAL A** **PPENDIX OR AN ELECTRONIC 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 1 for the Second Circuit, held at the Thurgood Marshall United 2 States Courthouse, 40 Foley Square, in the City of New York, 3 on the 7 thday of May, two thousand thirteen. 4 5 PRESENT: RICHARD C. WESLEY, 6 SUSAN L. CARNEY, 7 J. CLIFFORD WALLACE, * 8 Circuit Judges. 9 10 11 12 DEBORAH A. DAVIDSON, 13 14 Plaintiff-Appellant, 15 16 -v.- No. 12-2825-cv 17 18 LAGRANGE FIRE DISTRICT, BOARD OF 19 FIRE COMMISSIONERS OF LAGRANGE FIRE 20 DISTRICT, 21 22 Defendants-Appellees. ** 23 24 25 26 27

* The Honorable J. Clifford Wallace, of the United States Court of Appeals for the Ninth Circuit, sitting by designation.

**The Clerk of the Court is directed to amend the caption to conform with the caption above.FOR APPELLANT: LOUIS D. STOBER, JR., Garden City, New 1 York. 2 3 FOR APPELLEE: ROBERT A. RAUSCH, Maynard, O’Connor, 4 Smith & Catalinotto, LLP, Albany, New 5 York. 6 7 Appeal from the United States District Court for the 8 Southern District of New York (Briccetti, J. ). 9 10 **UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED** 11
**AND DECREED**that the order is **AFFIRMED**
. 12 Deborah Davidson appeals from the District Court’s 13 summary judgment in favor of Defendants. We assume the 14 parties’ familiarity with the underlying facts and history 15 of the case, as well as the issues on appeal. 16 Davidson alleges that the LaGrange Fire District (“the 17 District”) has discriminated against her on the basis of her 18 gender, age, and disability in violation of Title VII of the 19 Civil Rights Act of 1964, the Age Discrimination in 20 Employment Act, and the Americans with Disabilities Act 21 (“ADA”), inter alia . Many of the specific discriminatory 22 acts alleged fall outside of the 300-day statute of 23 limitations. See Davidson v. Lagrange Fire Dist., 2012 WL 24 2866248 at *9 (S.D.N.Y. June 19, 2012). We consider these 25 acts only as “background evidence” in evaluating the merits 26 of Davidson’s discrimination claims. See Nat’l R.R. 27 Passenger Corp. v. Morgan , 536 U.S. 101, 112 (2002). 28

2Davidson’s gender and age discrimination claims are 1 governed by the familiar burden-shifting framework of 2 McDonnell Douglas Corp. v. Green , 411 U.S. 792 (1973). 3 Because Davidson has failed to rebut Defendants’ non4 discriminatory explanations for all alleged adverse actions 5 that fell within the statute of limitations period, the 6 district court’s decision to award summary judgment as to 7 those claims was proper. 8 The District’s failure to promote Davidson to 9 Lieutenant in 2007 or 2008 was an adverse action 10 attributable to her disability. Her claim under the ADA 11 relies on a showing that: 12 ‘(1) [Her] employer is subject to the ADA; (2) 13 [s]he was disabled within the meaning of the ADA; 14 (3) [s]he was otherwise qualified to perform the 15 essential functions of h[er] job, with or without 16 reasonable accommodation; and (4) [s]he suffered 17 adverse employment action because of h[er] 18 disability.’ 19 20 McMillan v. City of New York , 711 F.3d 120, 125 (2d Cir. 21 2013) (quoting Sista v. CDC Ixis N. Am., Inc ., 445 F.3d 161, 22 169 (2d Cir. 2006)). Davidson does not allege that she is 23 qualified to perform the essential functions of the job of 24 Lieutenant. Moreover, the accommodation she requested 25 (surgery at the District’s expense) is not reasonable. 26

3Davidson has therefore failed to establish a prima facie 1 case of discrimination. 2 Davidson also contends that defendants failed to 3 accommodate her by giving her a light duty position. 4 Davidson has failed to demonstrate, however, that there were 5 any light-duty positions available for career firefighters, 6 and our case law makes clear that defendants were not 7 required to create a new position to accommodate Davidson. 8 See, e.g., Graves v. Finch Pruyn & Co. , 457 F.3d 181, 187 9 (2d Cir. 2006); Norville v. Staten Island Univ. Hosp. , 196 10 F.3d 89, 99 (2d Cir. 1999). 11 Davidson’s claims under 42 U.S.C. § 1983 seek to 12 vindicate the same rights as her Title VII claims and were 13 therefore properly dismissed. See Saulpaugh v. Monroe 14 Community Hosp. , 4 F.3d 134, 143 (2d Cir. 1993). 15 The district court’s judgment is affirmed as to 16 Davidson’s other claims for reasons discussed in the 17 district court’s thorough order. See Davidson , 2012 WL 18 2866248; see also Alfano v. Costello , 294 F.3d 365, 379 (2d 19 Cir. 2002). 20 21 22

4We have considered all of Davidson’s arguments and find 1 them to be without merit. For the reasons stated above, the 2 judgment of the district court is **AFFIRMED**
. 3 4 FOR THE COURT: 5 Catherine O’Hagan Wolfe, Clerk 6 7 8

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