17-3456 (L) Ferraro v. N.Y.C. Dep’t of Educ.

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 Second Circuit, held at the Thurgood Marshall United St ates Courthouse, at 40 Foley Square, in the City of New York, on the 9 th day of November, two thousand eighteen.

PRESENT: R EENA R AGGI

, G ERARD E. L YNCH

, C HRISTOPHER F. D RONEY

, Circuit Judges

.

________________________________________________

P AUL F ERRARO

,

Plaintiff-Appellant

,

v. Nos. 17-3456, 17-3458

T HE N EW Y ORK C ITY D EPARTMENT OF E DUCATION

, R ALPH K. H ONORE

, AND M ARC S LIPPEN
,

Defendants-Appellees

.

________________________________________________

FOR PLAINTIFF-APPELLANT: A LAN E. W OLIN

, Wolin & Wolin, Jericho, NY.

FOR DEFENDANTS-APPELLEES: E LLEN R AVITCH

, Assistant Corporation Counsel (Richard Dearing, Devin Slack, Assistant Corporation Counsels, on the brief ), for Zachary W. Carter, Corporation Co unsel of the City of New York, NY.2 Appeal from a judgment of the United States District Court for the Eastern District of New York (DeArcy Hall, J .), following an order granting summary judgment to the Defendants-Appellees.

UPON DUE CONSIDERATION, IT IS HEREBY ORDE RED, ADJUDGED,
AND DECREED that the judgment of the district court is AFFIRMED.

Plaintiff-Appellant Paul Ferraro appeals from a September 30, 2017, order of the
United States District Court for the Easter n District of New York granting summary judgment in favor of Defenda nts-Appellees The New York C ity Department of Education (“DOE”), Ralph K. Honore, and Marc Slippen on Ferraro ’s claims of disability discrimination, retaliation, and hostile work e nvironment pursuant to the Americans with Disabilities Act of 1990 (“ADA”), New York State Human Rights Law (“NYSHRL”), and the New York City Human Rights Law (“NYCHR L”). We assume the parties’ familiarity with the underlying facts, the procedural hi story of the case, and the issues on appeal.

We review a grant of summary judgment de novo , “view[ing] the evidence in the light most favorable to the party opposing su mmary judgment, . . . dr aw[ing] all reasonable inferences in favor of that party, and . . . eschew[ing] cred ibility assessments.” Amnesty Am. v. Town of W. Hartford , 361 F.3d 113, 122 (2d Cir. 2004) (internal quotation marks omitted). “Summary judgment is appropriate on ly if the moving part y shows that there are no genuine issues of material fact and that the moving part y is entitled to judgment as a
matter of law.” Miller v. Wolpoff & Abramson, L.L.P. , 321 F.3d 292, 300 (2d Cir. 2003).

Paul Ferraro was a teacher for New York City public schools from 1997 until his employment was terminated in 2015. The DOE brought nine counts of incompetency and misconduct against Ferraro in 2014 based on charges dating to the 2011–12, 2012–13, and 2013–14 school years, as well as particular misconduct charges relating to those school years. In 2015, seven days of administrative hearings were held pursuant to New York Education Law § 3020-a, after wh ich the hearing officer issued findings sustaining most of the charges, determined that Ferraro’s empl oyment should be termin ated, and found that the “record d[id] not support the claim of retali ation or the claim that the observations and ratings were wrongfully motivated.” A pp’x at 685. Ferraro’s employment was accordingly terminated e ffective August 3, 2015

.

The New York State Supreme Court denied Ferraro’s pe tition to vacate or modify the 3020-a decision in an order and judgment da ted April 11, 2016. The Appellate Division affirmed the Supreme Court on December 27, 2018, stating that the “hearing officer’s determination . . . was amply supported by the record,” that the “rec ord [did] not include evidence that respondents discriminated agains t [Ferraro] or retaliat ed against him when he complained,” and that Ferraro’s “request s for accommodations were largely granted.”
Ferraro v. Farina , 69 N.Y.S.3d 266, 267 (N .Y. App. Div. 2017). After filing charges of disability discrimination with the Equal Employment Opportunity Commission and3 receiving right-to-sue letters, Ferraro filed complain ts in the district court in 2013 and 2015.
The actions were later consolidated.

The district court held that Ferraro’s discrimination and reta liation claims were collaterally estopped by the findings of the § 3020-a proceeding and that Ferraro had failed
to create a triable issue as to his claims for hostile work environment. The district court also found, in the altern ative, that Ferraro ha d failed to establish a prima facie case as to his discrimination and retaliation claims. Ferraro challenges each of these rulings on appeal.

1. Claims Precluded by Collateral Estoppel

We first consider whether some or all of Ferraro’s claims are barred by collateral estoppel. The doctrine bars the re-litigation of an issue th at was previously decided, regardless of whether the two proceedings are based on the same cause of action.
Postlewaite v. McGraw-Hill , 333 F.3d 42, 48 (2d Cir. 2003).

We generally give preclusive effect to a state agency’s administrative findings if the
state’s courts would do the same. Burkybile v. Bd. of Educ . of Hastings-On-Hudson , 411 F.3d 306, 311–12 (2 d Cir. 2005). In Burkybile , we observed that New York courts afford preclusive effect to “administrat ive determinations . . . if made in a quasi-judicial capacity and with a full and fair opportu nity to litigate the issue.” Id . We determined that section 3020-a proceedings satisfy these requirements, a nd so we give them preclusive effect as to
most claims. 1 Id .; Hunt v. Klein , 476 F. App'x 889, 891–92 (2d Cir. 2012) (summary order). However, as to certain federal civ il rights claims, includi ng those brought under Title VII and the ADA, there is an additional prerequisite: We give preclusive effect only to a state agency’s findings that have been judicially reviewed. Solimino v. Astoria Fed.
Sav. & Loan Ass’n , 901 F.2d 1148, 1150 (2d Cir. 1990) (citing Univ. of Tenn. v. Elliott, 478 U.S. 788, 795–96 (1986)); see Joseph v. Athanasopoulous , 648 F.3d 58, 64 n.6 (2d Cir. 2011) (agreeing that the Supreme Court’s holding in Elliott , 478 U.S. at 795–96, applies to ADA claims).

In addition, for findings fro m a 3020-a proceeding to pr eclude re-litigation of an issue, “the issue must have been material to the . . . proceeding and essential to the decision
rendered therein.” Burkybile , 411 F.3d at 313 (quoting Ryan v. N.Y. Tel. Co. , 467 N.E.2d 487, 500 (N.Y. 1984)). Our decision in Mazur v. New York City Department of Education

, 621 F. App’x 88, 89 (2d Cir. 20 15) (summary order), is instruc tive on this point. There, the DOE brought similar charge s against a teacher in a se ction 3020-a proceeding. Id . The appellant had presented discrimi nation theories as defenses to the charges, and the hearing officer rejected them, finding that the appe llant was subject to discipline for justified

1 Ferraro has not advanced any argument to suggest that his particular 3020-a proceedings failed to provide a full and fair opportunity to litigate the issues at hand.4 reasons. Id. We viewed this finding as sufficiently material and essential to the 3020-a decision so as to preclude re-litigation of th e appellant’s claims under 42 U.S.C. § 1983, 2 the NYSHRL, and the NYCHRL. See id

.

Here, Ferraro admits that he raised disa bility discrimination- and retaliation-based defenses in the 3020-a proceeding. He also does not dispute that the hearing officer made findings sufficient to defeat th e claims for discrimination and retaliation in this case, nor that—for purposes of his ADA claims—the findings were judicially reviewed. Ferraro argues, however, that these defenses were not “key components” on which he “heavily relied.” App. Br. at 11–12. By this, we understand Ferraro to contend that he did not rely exclusively on these defenses. And so, in hi s view, the defenses were not litigated, nor were they essential to th e 3020-a proceedings.

We agree with the district court that these defenses we re litigated and resolved in the administrative proceeding. There is no dis pute that Ferraro raised these defenses, the hearing officer considered and addressed them, and that, if the hearing officer had credited one or more of the them, Ferraro c ould have prevailed. Thus, as in Mazur , 621 F. App’x at 89, the issues were suffici ently litigated and esse ntial to warrant preclusive effect.

Ferraro also argues that his claims of di scrimination and retaliation are broader in scope than those considered at the 3020-a hearing “and go fa r beyond his termination.” App. Br. at 13. In support, he points, without further explan ation, to over forty paragraphs
in his Local Rule 56.1 St atement of Facts. We generally decline to “scour the record” to construct arguments on a party’s behalf, Sioson v. Knights of Columbus , 303 F.3d 458, 460 (2d Cir. 2002), and we will not do so here. Acco rdingly, that argument is deemed waived. In any event, we identify no error in the dist rict court’s conclusion that Ferraro’s “claims are not substantiated by admissible evidence . . . [and] there is no suppor t in the record that [Ferraro] was treated worse than other teachers because of his disability.” Ferraro v. N.Y.C. Dep’t of Educ. , 13-cv-5837 (LDH) (JO), 15-cv-1117 (LDH) (JO), 2017 WL 4402436, at *18 (E.D.N.Y . Sept. 30, 2017).

The district court’s grant of summary judgment as to Ferraro’s claims of
discrimination and retaliation under the AD A, NYSHRL, and NYCHRL was therefore

proper.

2. Claims for Hostile Work Environment

Ferraro has also failed to properly support his claims for hostile work environment on appeal. Rather than cite to specific facts, Ferraro merely “refers the Court to all of the

2 The Supreme Court held in Elliott , 478 U.S. at 795–96, that a state agency’s findings need not be judicially reviewed in order to give them preclusive effect as to claims brought under § 1983. Solimino

, 901 F.2d at 1150.5 allegations” in his Local Rule 56.1 Statement of F acts. App. Br. at 42. This argument, too,
is deemed waived. See Sioson , 303 F.3d at 460.

3. ADA Claim for Failure to Accommodate

Ferraro also contends that the district court improperly granted summary judgment
as to his ADA claim for failure to accommodate . As an initial matter, it does not appear
that the district court consider ed such a claim, as distinct from Ferraro’s claims that he faced adverse employment acti on on account of his disability . Nor did Ferraro explicitly
raise a failure-to-accommodate clai m in his operative complaints.

In any event, Ferraro’s failure-to-accomm odate claim would be barred by collateral estoppel. To succeed on such a cl aim, Ferraro must prove that, inter alia , he could have performed the essential functions of th e job at issue if provided reasonable
accommodations. McBride v. BIC Consumer Prods. Mfg. Co., Inc. , 583 F.3d 92, 96–97 (2d Cir. 2009). Here, the 3020-a hearing offi cer considered Ferraro’s defense that the appellees had provi ded insufficient accommodations fo r his disabilities. The hearing
officer found the record “devoid of eviden ce” that any reasonable accommodation would
cure the “deficiencies estab lished by the Department,” in cluding Ferraro’s failure to “perform the essential aspect of his job, which is to teach and to provi de a valid educational experience for his students.” App’x at 686. As such, the hearing officer made a finding that conclusively precludes Ferraro from estab lishing a claim for failure to accommodate
under the ADA.

The district court therefore properly gran ted summary judgment as to each of
Ferraro’s claims. We have considered Ferra ro’s remaining arguments and conclude they are without merit. Accordingly, the order of the district court is AFFIRMED.

FOR THE COURT:
Catherine O = Hagan Wolfe, Clerk of Court