determining that because alleged injury only required several weeks of leave, it could not be considered a disability under the ADA
How later courts described this case
- determining that because alleged injury only required several weeks of leave, it could not be considered a disability under the ADA
- dismissing a reasonable accommodation claim because the complaint did “not allege when, if ever,” the plaintiff “sought any kind of accommodation”
- “The NYSHRL and NYCHRL ‘have a broader definition of ‘disability’ than does the ADA; neither statute requires any showing that the disability substantially limits a major life activity.”
- plaintiff failed to state a failure-to-accommodate claim under the ADA where she did “not allege when, if ever, she notified the defendant of her disability”
Written by the judges who cited it.
The opinion
15-3363
Thomson v. Odyssey House
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 “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 16th day of June, two thousand Sixteen.
5
6 PRESENT: AMALYA L. KEARSE,
7 RALPH K. WINTER,
8 DENNIS JACOBS,
9 Circuit Judges.
10
11 - - - - - - - - - - - - - - - - - - - -X
12 GEORGINA THOMSON,
13 Plaintiff-Appellant,
14
15 SHEILA CLARK,
16 Plaintiff,
17
18 -v.- 15-3363
19
20 ODYSSEY HOUSE,
21 Defendant-Appellee,
22
23 VANCE HERBERT, DARRIN BROWN, GAIL
24 HARRISON, DOES 1-10,
25 Defendants.*
26 - - - - - - - - - - - - - - - - - - - -X
*
The Clerk of Court is directed to amend the
caption as written above.
1
1
2 FOR APPELLANT: Nkereuwem Umoh, Umoh Law Firm,
3 PLLC, Brooklyn, New York.
4
5 FOR APPELLEE: Wendy J. Mellk and Damon W.
6 Silver, Jackson Lewis, P.C., New
7 York, New York.
8
9 Appeal from a judgment of the United States District
10 Court for the Eastern District of New York (Brodie, J.).
11
12 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
13 AND DECREED that the judgment of the district court be
14 AFFIRMED.
15
16 Georgina Thomson appeals from the judgment of the
17 United States District Court for the Eastern District of New
18 York (Brodie, J.), dismissing her complaint for failure to
19 state a claim.1 The complaint alleges retaliation in
20 violation of 42 U.S.C. § 1981 and claims of violation of the
21 Americans with Disabilities Act (“ADA”).2 We assume the
22 parties’ familiarity with the underlying facts, the
23 procedural history, and the issues presented for review.
24
25 1. To establish a prima facie case of retaliation
26 under § 1981, a plaintiff must allege (1) that she engaged
27 in a protected activity; (2) defendant was aware of that
28 activity; (3) she suffered an adverse employment action; and
29 (4) there was sufficient causal connection between the
30 protected activity and the adverse employment action. See
31 Fincher v. Depository Trust & Clearing Corp., 604 F.3d 712,
32 720 (2d Cir. 2010). Causation “can be shown either:
33 (1) indirectly, by showing that the protected activity was
34 followed closely by discriminatory treatment, or through
1
The defendant’s motion to dismiss was denied in
part as to the other plaintiff, Sheila Clark; the defendants
agreed to settle Clark’s remaining claim, and so she is not
part of this appeal.
2
The district court’s order also dismissed
Thomson’s New York State and City Human Rights Law claims
and her Title VII claims, which she does not appeal from.
All claims against the individual defendants (Vance Herbert,
Darrin Brown, and Gail Harrison) were dismissed sua sponte
for failure to serve.
2
1 other circumstantial evidence such as disparate treatment of
2 fellow employees who engaged in similar conduct; or
3 (2) directly, through evidence of retaliatory animus
4 directed against the plaintiff.” Gordon v. N.Y.C. Bd. of
5 Educ., 232 F.3d 111, 117 (2d Cir. 2000).
6
7 The district court ruled that Thomson had not alleged
8 facts demonstrating a sufficient causal connection between
9 her alleged internal complaints in 2011 and her alleged
10 termination in 2014. The plaintiff does not contest this
11 ruling; rather, she argues that the adverse action by
12 defendant was not the termination, but the “closer
13 supervision” to which she was subjected. However, excessive
14 scrutiny is not an actionable adverse employment action.
15 See Kessler v. Westchester Cty. Dep't of Soc. Servs., 461
16 F.3d 199, 207 (2d Cir. 2006) (“[A] plaintiff must show that
17 a reasonable employee would have found the challenged action
18 materially adverse, which in this context means it well
19 might have dissuaded a reasonable worker from making or
20 supporting a charge of discrimination.” (quoting Burlington
21 N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006)); see
22 also, e.g., Murray v. Town of N. Hempstead, 853 F. Supp. 2d
23 247, 267 (E.D.N.Y. 2012) (“[W]ith regard to the heightened
24 supervision and surveillance, even if assumed to be true,
25 the facts as alleged here would not, as a matter of law,
26 constitute adverse employment actions.”).
27
28 2. Plaintiff’s ADA discrimination and reasonable
29 accommodation claims fail because no facts are pled to
30 support an inference that any alleged disability was
31 causally linked to her termination. See Smith v. Hogan, 794
32 F.3d 249, 253 (2d Cir. 2015) (“In order to establish a prima
33 facie case of employment discrimination under the ADA . . .
34 a plaintiff must adequately plead that he was terminated
35 because of a qualifying disability.” (emphasis added)).
36
37 Likewise, the plaintiff has not alleged enough facts to
38 establish a prima facie reasonable accommodation claim. To
39 allege a violation of the ADA for failure to provide a
40 reasonable accommodation, a plaintiff must allege that
41 (1) plaintiff is a person with a disability under the
42 meaning of the ADA; (2) an employer covered by the statute
43 had notice of his disability; (3) with reasonable
44 accommodation, plaintiff could perform the essential
45 functions of the job at issue; and (4) the employer has
46 refused to make such accommodations. McMillan v. City of
47 New York, 711 F.3d 120, 125-26 (2d Cir. 2013). Even
3
1 assuming the validity of her disability, Thomson does not
2 allege when, if ever, she notified the defendant of her
3 disability or sought any kind of accommodation.
4 Accordingly, her reasonable accommodation claim also fails.
5
6 For the foregoing reasons, and finding no merit in the
7 plaintiff’s other arguments, we hereby AFFIRM the judgment
8 of the district court.
9
10 FOR THE COURT:
11 CATHERINE O’HAGAN WOLFE, CLERK
12
4