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Howard v. United Parcel Service, Inc.

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 ʹ 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

ʺ SUMMARY ORDER ʺ ). 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 States Courthouse, 40 Foley Square, in

the City of New York, on the 28 th day of April, two thousand sixteen.

PRESENT: RALPH K. WINTER,

DENNY CHIN,

SUSAN L. CARNEY,

Circuit Judges

.

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MARK HOWARD,

Plainti ff‐ Appellant

‐ Cross

‐ Appellee,

v. 15

‐ 957

‐ cv, 15

‐ 1272

‐ cv

UNITED PARCEL SERVICE,

Defendant

‐ Appellee

‐ Cross

‐ Appellant.

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FOR PLAINTIFF

‐ APPELLANT

‐ Philip Marcel Black, Sheldon Karasik, Andrew

CROSS

‐ APPELLEE: Rozynski, Eisenberg & Baum LLP, New York, New

York.

FOR DEFENDANT

‐ APPELLEE

‐ Michael T. Bissinger, Day Pitney LLP,

CROSS

‐ APPELLANT: Parsippany, New Jersey.‐ 2

‐ Appeal from the United States District Court for the Southern District of

New York (Forrest, J. ).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the amended judgment of the district court is

AFFIRMED

.

Plaintiff

‐ appellant

‐ cross

‐ appellee Mark Howard ( ʺ Howard ʺ ) appeals from an

amended judgment entered April 2, 2015 following the district court ʹ s granting of

summary judgment in favor of defendant

‐ appellee

‐ cross

‐ appellant United Parcel

Service ( ʺ UPS ʺ ) dismissing his claims of discrimination and failure to accommodate

under the Americans with Disabilities Act ( ʺ ADA ʺ ), 42 U.S.C. §§ 12112

‐ 17, and New

York State Human Rights Law ( ʺ NYSHRL ʺ ), N.Y. Exec. Law § 290 et seq. UPS cross

‐

appeals from the district court ʹ s ruling that one aspect of Howard ʹ s claim under the

ADA was not time

‐ barred. We assume the parties ʹ familiarity with the underlying facts,

the procedural history of the case, and the issues on appeal.

Howard, who is hearing impaired, has worked at UPS in various jobs

since 1999. In 2009, he began e ff orts to become a full

‐ time driver. In April 2010, he

enrolled in a six

‐ day Driver Training Class ( ʺ DTC ʺ ) but was unable to complete it

because he missed one day due to car trouble. He took the course again in May 2010

and completed it, but then failed portions of the fi nal examination twice. He requested

an American Sign Language ( ʺ ASL ʺ ) interpreter for both courses; UPS declined that‐ 3

‐ request, but provided a number of other accommodations, including a seat in the front

row, the right to ask the instructor to face the class whenever possible, and extra time to

take the wri tt en examination.

Eventually, Howard completed the DTC and passed the examination,

with accommodations similar to what he had previously been provided. He began

work as a driver in September 2012, but in January 2013, while backing down a

customer ʹ s driveway in a UPS truck, he hit a basketball hoop. He failed to report the

accident, and was fi red. Subsequently, after consultation with his Union, UPS reduced

the termination to a 30

‐ day suspension and Howard returned to a prior position as part

‐

time car washer.

Howard thereafter fi led charges of discrimination with the Equal

Employment Opportunity Commission and New York State Division of Human Rights.

Eventually, he brought the action below, alleging principally that UPS discriminated

against him by not providing an ASL interpreter for the April 2010 and May 2010 DTCs,

resulting in his failing the fi nal examination.

We a ffi rm the district court ʹ s grant of summary judgment dismissing

Howard ʹ s claims, substantially for the reasons given by the district court in its amended

opinion and order. We emphasize the following.

First, a reasonable jury could not have found in favor of Howard with

respect to the April 2010 course because, as the undisputed facts showed, he was unable‐ 4

‐ to complete the mandatory six

‐ day course because of car trouble: he did not a tt end one

of the sessions.

Second, with respect to the May 2010 course, a reasonable jury could only

have concluded that Howard had not shown a causal link between the lack of an ASL

interpreter and his failure to pass the exam. See Parker v. Sony Pictures Entm ʹ t, Inc.

, 260

F.3d 100, 108 (2d Cir. 2001) (holding that it is ʺ essential to a finding of discrimination

that plaintiff ʹ s disability, or the lack of accommodation to that disability, played a

ʹ substantial ʹ role that ʹ made a difference ʹ to his employer ʹ s actions ʺ ) (citing Fields v. New

York State Office of Mental Retardation and Developmental Disabilities

, 115 F.3d 116, 120 (2d

Cir. 1997)). The portion of the test that Howard failed was based on written materials

he had received twice before. After he failed the test the first time, the instructor

reviewed the material he needed to learn to pass, and allowed him to take the exam

again. Unfortunately, he did not pass. Moreover, he did pass the DTC examination in

2012 without the assistance of an ASL interpreter, undercutting his argument that an

interpreter was vital to his ability to pass the exam.‐ 5

‐ We have reviewed the parties ʹ remaining arguments on appeal and

conclude they are without merit. In light of our disposition of Howard ʹ s appeal, we

need not reach the merits of UPS ʹ s cross

‐ appeal. Accordingly, we AFFIRM the

judgment of the district court.

FOR THE COURT:

Catherine O ʹ Hagan Wolfe, Clerk