18

‐ 632

‐ cv

Molina v. City of Rochester

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 ELECTRONIC DATABASE

(WITH THE NOTATION A SUMMARY ORDER @ ). 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 States Court of Appeals for the Second Circuit, 1

held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the 2

City of New York, on the 26 th day of March, two thousand nineteen. 3

4

PRESENT: PIERRE N. LEVAL, 5

RAYMOND J. LOHIER, JR., 6

Circuit Judges

, 7

LEWIS A. KAPLAN, * 8

District Judge. 9

10

11

‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ ‐‐‐‐ 12

RICHARD MOLINA, 13

14

Plaintiff

‐ Appellant

, 15

16

v. No. 18

‐ 632

‐ cv 17

18

CITY OF ROCHESTER, 19

* Judge Lewis A. Kaplan, of the United States District Court for the Southern District of

New York, sitting by designation.2 1

Defendant

‐ Appellee

, 2

3

COMMISSIONER PAUL HOLAHAN, 4

Individually and in His Official Capacity as 5

Commissioner of the Department of 6

Environmental Services of the City of Rochester, 7

THEO MAXEY, CHARLES LUNDY, THOMAS 8

BELKNAP, BAR MEESH, KAREN SIMONI, 9

NORMAN JONES, Individually and in their 10

official capacities as Officers of Defendant City of 11

Rochester, 12

13

Defendants. 14

‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ ‐‐‐‐ 15

FOR APPELLANT: J OHN M. R EGAN

, J R

., Rochester, 16

NY. 17

18

FOR APPELLEE: J OHN M. C AMPOLIETO

, Office of 19

the Corporation Counsel, City 20

of Rochester, Rochester, NY. 21

22

Appeal from a judgment of the United States District Court for the 23

Western District of New York (Jonathan W. Feldman, Magistrate Judge ). 24

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, 25

AND DECREED that the judgment of the District Court is AFFIRMED. 26

Richard Molina appeals from a judgment of the District Court (Feldman, 27

M.J.) dismissing his claims against the City of Rochester for disability 283 discrimination and retaliation under the Americans with Disabilities Act, as 1

amended (ADA) and New York State Human Rights Law (NYSHRL). We 2

assume the parties’ familiarity with the facts and record of the prior proceedings, 3

to which we refer only as necessary to explain our decision to affirm. 4

On appeal, Molina challenges three conclusions of the District Court: (1) 5

Molina was not disabled after he returned to work in January 2012; (2) Molina 6

did not show the existence of an accommodation that would allow him to 7

perform the essential functions of his employment; and (3) Molina did not 8

produce evidence sufficient to show discrimination or retaliation. We need not 9

decide the first challenge

— whether the District Court erred in determining that 10

Molina was disabled after January 2012. Even assuming Molina was disabled 11

after that date, his claims fail as a matter of law. 1 12

First, Molina “bears the burdens of both production and persuasion as to 13

the existence of some accommodation that would allow [him] to perform the 14

essential functions of [his] employment.” McBride v. BIC Consumer Prods. 15

1 We note that Molina has not argued that the District Court erred by dismissing his

NYSHRL claims for the same reasons as his ADA claims.4 Mfg. Co., 583 F.3d 92, 97 (2d Cir. 2009); see also Shannon v. N.Y.C. Transit Auth., 1

332 F.3d 95, 100 (2d Cir. 2003); 29 C.F.R. § 1630.2(n)(1). Molina failed to provide 2

such evidence of a reasonable accommodation, which “may include, inter 3

alia

, modification of job duties and schedules, alteration of the facilities in which 4

a job is performed, acquisition of devices to assist the performance of job duties, 5

and, under certain circumstances, reassignment to a vacant position.” McBride, 6

583 F.3d at 97 (quotation marks omitted); see 42 U.S.C. § 12111(9)(B). In 7

particular, we agree with the District Court that Molina failed to identify a 8

reasonable accommodation that would allow him to perform the essential 9

functions of his job, or to “demonstrate the existence, at or around the time when 10

accommodation was sought, of an existing vacant position to which [he] could 11

have been reassigned.” McBride, 583 F.3d at 97–98; see Joint App’x 134–40. 12

Molina counters that a reasonable accommodation would have been to assign 13

him to part

‐ time or modified work schedules, trash routes, or less physically 14

demanding recycling routes. But Molina produced no evidence that (and does 15

not describe how) he would be able to complete the essential functions of his job 16

even with any of his proposed accommodations. His failure to accommodate 175 claim thus fails as a matter of law. See Borkowski v. Valley Cent. Sch. Dist., 63 1

F.3d 131, 140 (2d Cir. 1995); 29 C.F.R. § 1630.2(o). 2

Next, Molina argues that the District Court erred in granting summary 3

judgment on his discrimination and retaliation claims based on his three

‐ day 4

suspension in 2009 and later termination. As evidence of discriminatory or 5

retaliatory intent, Molina relies on (1) the temporal proximity between his 6

placement on light duty on January 2, 2009, and his suspension the following 7

business day on January 5, 2009, and (2) the City’s failure to engage with him in 8

an interactive process to identify a potential reasonable accommodation. In 9

response, the City explains that the 2009 suspension and later termination 10

resulted from Molina’s numerous disciplinary infractions, several of which pre

‐ 11

date the time of his first injury in late 2008. 12

“A plaintiff can indirectly establish a causal connection to support a 13

discrimination or retaliation claim by showing that the protected activity was 14

closely followed in time by the adverse employment action.” Gorzynski v. 15

JetBlue Airways Corp., 596 F.3d 93, 110 (2d Cir. 2010) (quotation marks omitted). 16

In addition, we have recognized that “an employer’s failure to engage in a good 176 faith interactive process [to identify a reasonable accommodation] can be 1

introduced as evidence tending to show disability discrimination.” Sheng v. 2

M&T Bank Corp., 848 F.3d 78, 87 (2d Cir. 2017); see McBride, 583 F.3d at 101. 3

However, temporal proximity alone is “insufficient to satisfy [plaintiff’s] 4

burden” at the third stage of the McDonnell Douglas analysis. El Sayed v. 5

Hilton Hotels Corp., 627 F.3d 931, 933 (2d Cir. 2010). Here, in light of his 6

prolific and longstanding disciplinary record, Molina has not adduced sufficient 7

evidence for a reasonable jury to conclude that the City suspended or terminated 8

him for discriminatory or retaliatory reasons rather than as a result of his 9

disciplinary problems. 10

Finally, for the same reasons stated above, even assuming without 11

deciding that an ADA mixed

‐ motive discrimination claim under the framework 12

in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) is still viable after Gross v. 13

FBL Fin. Servs., Inc., 557 U.S. 167 (2009), Molina has not produced evidence 14

warranting a shift in burden under Price Waterhouse. See Sista v. CDC Ixis N. 15

Am., Inc., 445 F.3d 161, 173–74 (2d Cir. 2006) (“[T]o warrant a mixed

‐ 16

motive burden shift, the plaintiff must be able to produce a smoking gun or at 177 least a thick cloud of smoke to support his allegations of discriminatory 1

treatment.” (quotation marks omitted)). 2

We have considered Molina’s remaining arguments and conclude that 3

they are without merit. For the foregoing reasons, the judgment of the District 4

Court is AFFIRMED. 5

FOR THE COURT: 6

Catherine O = Hagan Wolfe, Clerk of Court 7