20

- 3718

- cv Razzano v. Remsenburg

- Speonk Union Free School District 

## 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 ELECTR ONIC 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 for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 27 th da y of May , two thousand twenty
- two . PRESENT: REENA RAGGI , RICHARD C. WESLEY , SUSAN L. CARNEY , Circuit Judges.

_____________________________ _

___ ____ ___ ___ __ Janice Razzano , Plaintiff
- Appellant,

v. No. 20
- 3718 Remsenburg
- Speonk Union Free School District, Katherine Salomone, Thomas Kerr, Lisa Fox, Kevin Frederico, Cecilia Spellman
- Frey, Joel Petersen, in their official and individual capacities pursuant to NYEL:290 et seq . , Defendants
- Appellees .

_____________________________________________
FOR PLAINTIFF
- APPELLANT : J ANICE R AZZANO , pro se , East Moriches, NY

.2 FOR DEFENDANT S
- APPELLEE S : S COTT J. K REPP E IN , Devitt Spellman Barrett, LLP , Smithtown, NY

. Appeal from a judgment of the United States District Court for the Eastern District of New York ( Matsumoto , J .). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgm ent of the district court entered on September 30, 2020, is AFFIRMED . Pro se a ppellant Janice Razzano sued her former employer, the Remsenburg

- Speonk Union Free School District (the “District”), and six individuals (the District and the six individuals
to gether, “Defendants”) for disability discrimination, failure to accommodate, retaliation, and a hostile work environment under 42 U.S.C. § 1983 , the Americans with Disabilities Act (“ADA”), 42 U.S.C. § § 12101 et seq. , and the New York State Human Rights Law (“NYSHRL”), N.Y. Exec. Law § § 29 0 et seq. Razzano, who was represented by counsel in the district court, alleged that she was subjected to harassment and various adverse employment actions after she develop ed and complaine d of respiratory symptoms allegedly caused by workplace environmental conditions

. The district court initially dismissed her complaint for failure to prosecute and as barred by res judicata and collateral estoppel, and a panel of this Court remanded for f urther proceedings. See
Razzano v. Remsenburg

- Speonk Union Free Sch. Dist. , 751 F. App’x 24 (2d Cir. 2018) (summary order). On remand, D efendants moved for summary judgment and Razzano did not submit any evidence in opposition. The district court grant ed Defendants’ motion, ruling that Razzano abandoned her § 1983 claim and that collateral estoppel barred the remaining claims

. It found that the essential issues in her current suit were resolved against her in a prior state court3 proceeding , which confirm ed a state hearing officer’s decision to terminate her employment. See Razzano v. Remsenburg

- Speonk Union Free Sch. Dist ., 41 N.Y.S.3d 72, 74 ( 2d Dep’t 2016)

. On appeal, Razzano challenges the grant of summary judgment as to her ADA and NYSHRL claims. 1 We assume the parties ’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal , and refer to them only as necessary to explain our decision

. We review a grant of summary judgment de novo , “resolv[ing] all ambiguities and draw[ing] all inferences against the moving party.” Garcia v. Hartford Police Dep’t , 706 F.3d 120, 12 7 (2d Cir. 2013) . “Summary judgment is proper only when, construing the evidence in the light most favorable to the non

- movant, ‘the re is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.’” Doninger v. Niehoff , 642 F.3d 334, 344 (2d Cir. 2011) (quoting Fed. R. Civ. P. 56(a)). “ [T] he nonmoving party must come forward with specific facts showing that there is a genuine issue of material fact for trial,” however; “[c]onclusory allegations, conjecture, and speculation are insufficient to create a genuine issue of fact.” Shannon v. New York City Transit Auth. , 332 F.3d 95, 99 (2d Cir. 2003) (internal quotation marks and alteration omitted); see also Anderson v. Liberty Lobby, Inc ., 477 U.S. 242, 248 (1986) (a factual dispute is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving part y” )

. A district court’s application of collateral estoppel is also reviewed de

1 In this appeal, Razzano also moves for an order (1) initiating an investigation into D efendants’ handling of medical records that were part of the summary judgment evidence ; (2) seal ing a document purportedly containing private information ; and (3) granting her leave to file a supplemental appendix. Upon due consideration, those motions are DENIED. See Fed. R. App. P. 10(e)(2) (establishing standard for modification of the record); Greene v. United States , 13 F.3d 577, 586 (2d Cir. 1994) (“[I]t is a well

established general rule that an appellate court will not consider an issue raised for the first time on appeal.”). We conduct our review on the basis of the trial record and do not expand the record on appeal except in “ extraordinary c ircumstances

. ” Int’l Bus. Machines Corp. v. Edelstein , 526 F.2d 37, 45 (2d Cir. 1975)

.4 novo . See Trikona Advisers Ltd. v. Chugh , 846 F.3d 22, 29 (2d Cir. 2017). ADA and NYSHRL claims are reviewed under the burden

- shifting framework articulated
in McDonnell Douglas Corp. v. Green , 411 U.S. 792 (1973). See Bey v. City of New York , 999 F.3d 157, 165 (2d Cir. 2021) (ADA); Spiegel v. Schulmann , 604 F.3d 72, 80 (2d Cir. 2010) (NYSHRL ). Under that framework, the plaintiff must first establish a prima facie case
. I f she succeeds in doing so, the burden then shifts to the defendant to proffer a legitimate, non

discriminatory reason for its actions

. Upon such a proffer, the burden returns to the plaintiff to show that the stated reason was pretext for unlawful discrimination or retaliation. See Abrams v. Dep’t of Pub. Safety , 764 F.3d 244, 251

– 52 (2d Cir. 2014).
A. Disparate Treatment and Retaliation Claims To establish a prima facie case of disparate treatment discrimination under the ADA, a plaintiff must show that : (1) her employer is subject to the ADA; (2) she was disabled within the meaning of the ADA; (3) she was qualified to perform the essential functions of her job, with or without reasonable accommodation; and (4) she suffered an adverse employment action beca use of her disability. See Woolf v. Strada , 949 F.3d 89, 93 (2d Cir. 2020) ; see also Kinneary v. City of New York , 601 F.3d 151, 158 (2d Cir. 2010) ( requiring “ the same elements” to establish ADA and NYSHRL disability claims ). To make out a prima facie case of retaliation, a plaintiff must establish, among other elements, “a causal connection” between the plaintiff’s protected activity and an adverse employment action. Natofsky v. City of New York , 921 F.3d 337, 353 (2d Cir. 2019)

. T he record at summary judgment reflected only two adverse employment actions : first, the District’s reclassification of Razzano’s position from full

- time to part

- time in the summer of 2010 ;5 and second, the 2013 disciplinary proceedings that result ed in her termination. 2 Even assuming that Razzano established a prima facie case of discrimination or retaliation based on these two events, however, the District proffered legitim ate, nondiscriminatory reasons for each action: respectively, its budgetary pressures and Razzano’s misconduct. Razzano is precluded from asserting that either of those reasons was pretextual by the outcomes of two prior state

- court proceedings: an N.Y. C .P.L.R. § 7801 (“Article 78”) proceeding in which she challenged the reclassification of her position, and an N.Y. C.P.L.R. § 7511 (“Article 75”) proceeding in which she challenged a hearing officer ’s determination , in a hearing held under N.Y. Educ. L. § 3020

- a , that her employment should be terminated. “Under New York law, collateral estoppel prevents a party from relitigating an issue decided against that party in a prior adjudication.” Curry v. City of Syracuse , 316 F.3d 324, 331 (2d Cir. 2003) (internal quotation marks and alteration omitted). Collateral estoppel “may be invoked to preclude a party from raising an issue (1) identical to an issue already decided (2) in a previous proceeding in which that party had a full and fair opportunity to litigate . . . [and] the issue that was rais ed previously must be decisive of the present action.” Id. ; see also Burkybile

v. Bd. of Educ. of Hastings

- o n - Hudson Union Free Sch. Dist. , 411 F.3d 306, 31 0 (2d Cir. 2005) ( “ New York courts give quasi

- judicial administrative fact

- finding preclusive effect where there has been a full and fair opportunity to litigate.”). Federal courts generally give state court and

2 Razzano refers to other alleged acts of discrimination, harassment, and retaliation in her brief on appeal , but she never presented the district court with any evidence that these events occurred or that other employees were treated differently, and she did not mention these allegations in her opposition to summary judgment filed in the district court

. Accordingly, we decline to consider them now. See Gree ne , 13 F.3d at 586.6 administrative proceedings the same preclusive effect as do courts of th e state in which the proceedings occurred

. See id. at 310

– 12 (giving preclusive effect to § 3020

- a hearing decision); LaFleur v. Whitman , 300 F.3d 256, 2 72 (2d Cir. 2002) ( “A judgment pursuant to Article 78 may preclude relitigation of issues already decided in that earlier judgment.” ). In the context of ADA claims, the Court gives preclusive effect only to a state agency’s findings that have been judicially reviewed. S ee Univ

. of Tenn. v
. Elliott , 478 U.S. 788, 796 (1986) (“Congress did not intend unreviewed state administrative proceedings to have preclusive effect on Title VII claims.” (emphasis added)); Joseph v. Athanasopoulos , 648 F.3d 58, 64 n.6 (2d Cir. 2011) ( applying Elliott ’s preclusion rule to ADA claims)

. Such review took place here as to both Razzano’s Article 78 and Article 75 proceedings.
In its review of the Article 78 proceedings, the Appellate Division ruled that the District reclassified Razzano’s position “based on valid budge t [ ary ] concerns and .

. . not .

. . in bad faith or to retaliate for the petitioner’s complaints” about the school building. Razzano v. Remsenburg

Speonk UFSD , 80 N.Y.S. 3d 347, 349 ( 2d Dep’t 2018)

. I n its review of the Article 75 proceedings, the Appellate Division affirmed the hearing officer’s findings that Razzano should be terminated because she had engaged in misconduct and was mentally unfit for her position

. See Razzano , 41 N.Y.S.3d 72, 73

– 7 4 ( 2d Dep’t 2016) . It also affirmed the hearing officer’s rejection of her defense that the District was retaliating against her for her complaints. Id

. at 74. This case raises identical issues

— i.e. , whether the reasons the District gave for its actions were legitimate or pretextual , and wheth er the District was in fact motivated by Razzano’s claims that she suffered from a medical condition, her complaints of environmental hazards, and her requests for accommodations . T hose issues are decisive here. See Curry , 316 F.3d at 332 ( stating that a n7 issue is “ ‘ decisive in the present action ’ if it would prove or disprove, without more, an essential element of any of the claims set forth in the complaint” ). Razzano’s arguments to the contrary are unpersuasive. She principally argues that the nature of the issues raised in the disciplinary hea ring is insufficiently clear from the present record. Unlike the record before this Court in her earlier appeal , however, the district court record now show s that it considered the psychiatric report that the administrative hearing officer relied upon, th e New York Supreme Court’s summary of the hearing, and the allegations made in Razzano’s Article 75 petition

. These documents show what issues were raised before

— and necessarily decided by

— the hearing officer. See In re Razzano v. Remsenburg

- S peonk Union Free Sch

. Dist. , No. 13

- 16057, 2014 WL 655294, at *1 (N.Y. Sup. Ct. Jan. 31, 2014)

. The record before the district court on remand was also expanded to include the results of Razzano’s Article 78 proceeding and its decision so reflects

. 3 Even if Razzano were correct that collateral estoppel is inapplicable here, however, she presented no evidence in opposition to Defendants’ motion for summary judgment, and she identifies no basis in D efendants’ evidence o n which a reasonable jury could rule in her favor.
T he burden rests on a party opposing summary judgment to identify specific evidence establishing the existence of a genuine dispute of material fact for trial

. S ee Shannon , 332 F.3d at 99

. Razzano has f ailed to carry this burden. Razzano’s appellate arguments regarding the
in completeness of the evidentiary record before the district court are not persuasive and do not satisfy her obligation to have produced relevant evidence in the district court

.

3 We decline to consider Razzano’s remaining arguments against applying collateral estoppel because they are raised for the first time on appeal. See Greene , 13 F.3d at 586.8 B. F ailure
- to
- Accommodate Claims To make out a prima facie failure

- to

- acco mmodate claim, a p laintif f must present evidence establishing, inter alia , that she could perform the essential functions of her position with an accommodation, but her employer refused to make a requested accommodation. See Bey , 999 F.3d at 165. Razzano asserts in her brief on appeal that she requested and was denied an office with a window, and that the District failed to maint ain accommodations that it initially afforded.
B ut she points to no record evidence to support those assertions. Absent any such evidence , the district court correctly found that there was no genuine dispute of material fact for trial. See Amnesty Am. v. Town of West Hartford , 288 F.3d 467, 470 (2d Cir. 2002) (“Fed. R. Civ. P. 56 does not impose an obligation on a district court to perform an independent review of the record to find proof of a factual dispute.”).
C. Hostile Work Environment Claims To prevail on a hostile work environme nt claim, a plaintiff must show, inter alia , that “a workplace is so severely permeated with discriminatory intimidation, ridicule, and insult that the terms and conditions of her employment were thereby altere d.” Desardouin v. City of Rochester , 708 F.3d 102, 105 (2d Cir. 2013) (internal quotation marks omitted). As discussed above, the record here contains only limited evidence of adverse actions, and Razzano is collaterally estopped from asserting that either the reduction in her work hours or the disciplinary proceedings w as unjustified. To the extent that Razzano now refers to other alleged adverse emplo yment events in her appellate brief to support her hostile work environment claim , she does not identify any record evidence from which a reasonable jury could conclude that those events occurred

— and much less evidence from which a reasonable jury could co nclude that they9 amounted to harassment so pervasive and severe that they altered the terms and conditions of her employment. See id

. Absent such evidence, the district court properly granted summary judgment to D efendants on Razzano’s hostile work envir onment claims. We have considered all of Razzano’s remaining arguments and find in them no basis for reversal . Accordingly, we AFFIRM the judgment of the district court and DENY Razzano’s motions for an inquiry, to seal, and for leave to file a supplemental appendix.
FOR THE COURT: Catherine O ’ Hagan Wolfe, Clerk of Court