1 15-3935 D’Eredita v. ITT Water Technology 

## UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT 

# SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDEN TIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 200 7, 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 DATABA SE (WITH THE NOTATION “SUMMARY ORDE R”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. At a stated term of the United St ates 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 26 th day of January, two thousand seventeen. PRESENT: ROBERT A. KATZMANN, Chief Judge , RALPH K. WINTER, GUIDO CALABRESI, Circuit Judges

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STEPHEN M. D’EREDITA, Plaintiff-Appellant , v. No. 15-3935 ITT WATER TECHNOLOGY, INC., * Defendant-Appellee ,

For Plaintiff-Appellant: Ryan C. Woodworth, The Woodworth Law Firm, Rochester, NY. For Defendant-Appellee: Joseph Scott Brown, Hodgson Russ LLP, Buffalo, NY.

* The Clerk of Court is respectfully directed to amend the caption to conform to the caption above.2 Appeal from a judgment of the United States District Court for the Western District of New York (Siragusa, J. ). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED

. Plaintiff-Appellant Stephen M. D’Eredita appeals from th e order and opinion of the United States District Court for the West ern District of New York (Siragusa, J. ) entered on November 6, 2015, granting the motion for summa ry judgment filed by Defendant-Appellee ITT Water Technology, Inc. (“ITT”) and dismissi ng D’Eredita’s complaint on all counts. See D’Eredita v. ITT Corp. , No. 11-CV-6575-CJS-MWP, 2015 WL 6801828 (W.D.N.Y. Nov. 5, 2015). We assume the parties’ familiarity with the underlying facts, procedural history, and issues on appeal. We review the district court’s grant of summary judgment de novo. See Jackson v. Fed. Express , 766 F.3d 189, 197 (2d Cir. 2014). Summary judgment may be gr anted only if “there is ‘no genuine issue as to any mate rial fact’ and ‘the moving party is entitled to a judgment as a matter of law.’” Cortes v. MTA N.Y. City Transit , 802 F.3d 226, 230 (2d Cir. 2015) (quoting Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247–48 (1986)); see generally Fed. R. Civ. P. 56(a). Plaintiff-Appellant has brought claims against ITT alleging unlawful discrimination and retaliation in viol ation of the Americans with Di sabilities Act, 42 U.S.C. § 12101 et seq. (“ADA”), and the New York State Human Rights Law, N.Y. Exec. Law § 290 et seq. (“NYSHRL”). D’Eredita alleges that ITT refu sed to accommodate his dyslexia disability, terminated his employment as a result of his disa bility, and retaliated against him for filing an earlier 2004 charge with the Equal Employment Opportunity Commission (“EEOC”) charging3 ITT with unlawful discrimination and retaliation in viol ation of the ADA. That EEOC charge led to D’Eredita’s first suit against ITT, which was resolved in ITT’s favor at summary judgment by Judge Siragusa in 2009, see D’Eredita v. ITT Indus. , No. 07-CV-6185-CJS, 2009 WL 1161618 (W.D.N.Y. Apr. 29, 2009), and affirmed by summary order by this Court, see D’Eredita v. ITT Corp. , 370 F. App’x 139 (2d Cir. 2010). D’Eredita here raises three issues on a ppeal, none of which warrants overturning the district court’s grant of summar y judgment for ITT. D’Eredita’s first argument is that, pursuant

to U.S. Airways, Inc. v. Barnett , 535 U.S. 391 (2002), ITT should have reasonably accommodated D’Eredita by transferring him to one of several vacant positions to which he applied, notwithstanding the fact that ITT’s labo r agreement required the company to fill vacant spots with the senior most quali fied applicant, a status which D’Eredita did not possess for any of the positions. Barnett places the burden squarely on the plai ntiff to demonstrate that “special circumstances” warrant a departure fr om an established seniority policy. Id. at 405–06 (“[T]he plaintiff must bear the burden of showing special circumstances that make an exception from the seniority system reasonable in the particular case.”). Barnett provided several illustrative examples of how a plaintiff might satisfy his burden. For instance, the plaintiff could provide evidence to show that the employer, “having reta ined the right to change the seniority system unilaterally, exercises that right fairly frequently, reducing em ployee expectations that the system will be followed.” Id. at 405. Alternatively, the “plainti ff might show that the system already contains exceptions such that, in the circumstances, one further exception is unlikely to
matter.” Id. Here, the record below indicates a single case in which there may have been an exception to the collective bargaining agreement’s se niority system. Specifically, Job No. 1088 was4 awarded to the candidate with the second greatest seniority. Ho wever, ITT’s labor agreement awards positions to the senior most qualified em ployee who is physically able to do the job, and so it is not clear that ITT awar ded the position in a manner that c onstituted an exception to its most qualified seniority system, since the reco rd does not indicate whet her the senior most candidate was equally qualified and also physically able to do the job. Regardless, however, a single exception as provided here falls short of establishing a genuine issue of material fact as to whether special circumstances may have exis ted. D’Eredita has not met his burden under
Barnett , and so summary judgment was pr operly granted to ITT below. Second, on appeal D’Eredita argues that the di strict court wrongly dismissed his claim that ITT retaliated against him during his su spension by limiting his interaction with the company and its management after D’Eredita visited the personal residence of a human resources director unannounced and uninvited, and also by late r discharging him. ITT has provided “legitimate, nonretaliatory” reasons for both its October 21, 2009, suspension with intent of discharge and the limits ITT placed on D’Eredita’s access to company facilities and personnel on April 1, 2010. Cifra v. G.E. Co. , 252 F.3d 205, 216 (2d Cir. 2001), and D’Eredita has failed to provide sufficient ev idence to establish that “a causal connection exists between the protected activity and the advers e action, i.e., that a retaliator y motive played a part in the adverse employment action.” Id. (quoting Sumner v. United States Postal Serv. , 899 F.2d 203, 208–09 (2d Cir. 1990)). Because D’Eredita has not provided sufficient evidence to establish a genuine issue of materi al fact as to whether ITT’s reasons were “merely a pretext for impermissible retaliation,” id. , we uphold the district court’s dism issal of his retaliation claim. D’Eredita also argues that the district court wrongly held that his claims arising under the ADA were time barred for failure to bring suit within 300 days of filing his EEOC charge, as is5 required under federal law. See 42 U.S.C. § 2000e-5(e)(1). Although the district court held that D’Eredita’s ADA claims were time barred, “[s]ince NYSHRL claims are analytically identical to the ADA,” the district court exercised supplemen tal jurisdiction and cons idered “D’Eredita’s state-based discrimination and retaliation claims.” D’Eredita , 2015 WL 6801828, at *5; see also Reed v. A.W. Lawrence & Co. , 95 F.3d 1170, 1177 (2d Cir. 1996). Because we uphold the district court’s disposition on the merits of D’Eredita’s substantively identical NYSHRL reasonable accommodation and retaliation claims, we need not decide whether the court properly concluded that D’Eredita’s ADA r easonable accommodation and retali ation claims were in fact time barred. We have considered all of D’Eredita’s cont entions on appeal and have found in them no basis for reversal. For the reasons stated he rein, the judgment of the district court is AFFIRMED

. FOR THE COURT: Catherine O’Hagan Wolfe, Clerk