Denise Payne v. Cornell University ( 2022 )

21-109-cv
Denise Payne v. Cornell University
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.
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
15th day of February, two thousand twenty-two.
Present: ROSEMARY S. POOLER,
ROBERT D. SACK,
MYRNA PÉREZ,
Circuit Judges.
_____________________________________________________
DENISE PAYNE,
Plaintiff-Appellant,
v. 21-109-cv
CORNELL UNIVERSITY,
Defendant-Appellee.
_____________________________________________________
Appearing for Appellant: Stephen Bergstein, Bergstein & Ullrich, New Paltz, N.Y.
Appearing for Appellee: Adam Pence, Cornell University Office of General Counsel
(Valerie Cross Dorn, on the brief), Ithaca, N.Y.
Appeal from the United States District Court for the Northern District of New York (Suddaby,
C.J.).
ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.
Denise Payne appeals from the January 5, 2021 judgment of the United States District
Court for the Northern District of New York (Suddaby, C.J.), granting summary judgment to
Cornell University. Payne brought various claims under the Americans with Disabilities 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”) alleging that Cornell (1) discriminated against her by subjecting her
to disparate treatment based on her disability; (2) subjected her to a hostile work environment
based on her disability; (3) failed to accommodate her disability by refusing to provide
reasonable accommodations; and (4) retaliated against her after she complained of disability
discrimination. We assume the parties’ familiarity with the underlying facts, procedural history,
and specification of issues for review.
“When a party challenges a district court’s evidentiary rulings underlying a grant of
summary judgment, we undertake a two-step inquiry.” Porter v. Quarantillo, 722 F.3d 94, 97 (2d
Cir. 2013). First, we review the trial court’s evidentiary rulings for abuse of discretion. See id.Second, “we review the trial court’s summary judgment decision de novo,” construing all
evidence in the light most favorable to the nonmoving party. Id. (quoting LaSalle Bank Nat’l
Ass’n v. Nomura Asset Cap. Corp., 424 F.3d 195, 205, 211 (2d Cir. 2005)).
Payne appeals the district court’s ruling disregarding portions of her declaration that do
not comport with Fed. R. Civ. P. 56(e). See Payne v. Cornell Univ., No. 18-CV-1442 (GTS/ML),
2021 WL 39684, at *14 (N.D.N.Y. Jan. 5, 2021). “A party asserting that a fact cannot be or is
genuinely disputed must support the assertion by . . . citing to particular parts of materials in the
record, including depositions, documents, electronically stored information, affidavits or
declarations[.]” Fed R. Civ. P. 56(c); see also N.D.N.Y. Local Rule 56.1(b) (“Each denial [of the
opposing party] shall set forth a specific citation to the record where the factual issue arises.”).
Moreover, “[a]n affidavit or declaration used to support or oppose a motion must be made on
personal knowledge, set out facts that would be admissible in evidence, and show that the affiant
or declarant is competent to testify on the matters stated.” Fed. R. Civ. P. 56(c)(4). Lastly, Fed.
R. Civ. P. 56(e) provides that “[i]f a party fails to properly support an assertion of fact or fails to
properly address another party’s assertion of fact as required by Rule 56(c), the court may . . .
consider the fact undisputed for purposes of the motion” or “grant summary judgment if the
motion and supporting materials--including the facts considered undisputed--show that the
movant is entitled to it.”
Here, the district court found that Payne’s “declaration fail[s] to properly support
numerous statements with adequate record citations” and “it attempts to assert inadmissible
evidence.” Payne, 2021 WL 39684, at *14. The district court found that Payne’s declaration
“contains hearsay, conclusory assertions not based on personal knowledge, and statements
contradicted by [Payne’s] own previous deposition testimony.” Id. Thus, the district court elected
to disregard those portions of Payne’s declaration.
The district court did not abuse its discretion. “[O]nly admissible evidence need be
considered by the trial court in ruling on a motion for summary judgment,” and a “district court
deciding a summary judgment motion has broad discretion in choosing whether to admit
evidence.” Porter, 722 F.3d at 97 (internal quotation marks omitted); see also Crawford v.
Franklin Credit Mgmt. Corp., 758 F.3d 473, 482 (2d Cir. 2014) (“[A] party may not create an
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issue of fact by submitting an affidavit in opposition to a summary judgment motion that, by
omission or addition, contradicts the affiant’s previous deposition testimony.”) (quoting Hayes v.
N.Y.C. Dep’t of Corr., 84 F.3d 614, 619 (2d Cir. 1996)). Payne’s declaration included statements
not based on personal knowledge (claiming a colleague jumped from a D-band level salary to an
F-band); statements contradicting her own prior deposition testimony and documentary evidence
(claiming she “always” followed the requirements of her flex agreements and sought preapproval
but testifying that she did not log time off on her supervisor’s personal calendar as requested);
and statements that are inadmissible hearsay (referencing emails not part of the record that she
claimed confirmed she would develop the administrative role “into a full-time position”). App’x
at 957 ¶ 5; 959 ¶ 18; 962 ¶ 35. The district court’s decision to disregard portions of the declaration
were well “within the range of permissible decisions” that preclude us from finding the district
court abused its discretion. Porter, 722 F.3d at 97 (citation omitted).
We also agree with the district court that Payne failed to establish a genuine dispute of
material fact to preclude summary judgment on her ADA and NYSHRL claims.
Disparate treatment disability discrimination claims under the ADA and NYSHRL are
analyzed under the McDonnell Douglas burden shifting framework. See McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973); see also Graves v. Finch Pruyn & Co., 457 F.3d 181,
184 n.3 (2d Cir. 2006) (“A claim of disability discrimination under the [NYSHRL] is governed
by the same legal standards as govern federal ADA claims.”). “To satisfy the first step of the
McDonnell Douglas burden shifting framework and establish a prima facie case of
discrimination based on disparate treatment,” Payne must show by a preponderance of the
evidence that: (1) Cornell is subject to the ADA; (2) she was disabled within the meaning of the
ADA; (3) she was otherwise qualified to perform the essential functions of her job, with or
without reasonable accommodation; and (4) she suffered adverse employment action because of
her disability. Fox v. Costco Wholesale Corp., 918 F.3d 65, 71 (2d Cir. 2019). The burden then
shifts to the defendant to articulate a “legitimate, nondiscriminatory reason” for the employer’s
conduct. Id. (quoting McDonnell Douglas, 411 U.S. at 802). After the employer articulates a
legitimate, nondiscriminatory reason, the burden shifts back to plaintiff to demonstrate that the
proffered reason is in fact a pretext for discrimination. Id. at 71.
At the prima facie stage, a plaintiff may raise an inference of disability discrimination by
“show[ing] she was similarly situated in all material respects to the [non-disabled] individuals
with whom she seeks to compare herself.” Mandell v. Cnty. of Suffolk, 316 F.3d 368, 379 (2d
Cir. 2003) (quoting Graham v. Long Island R.R., 230 F.3d 34, 39 (2d Cir. 2000)). We agree with
the district court that Payne failed to raise an inference of discrimination because she failed to
“compare, let alone identify, a similarly situated employee” and that the evidence “demonstrates
mere speculation [or] conjecture.” Payne, 2021 WL 39684, at *15; see Bickerstaff v. Vassar
Coll., 196 F.3d 435, 448 (2d Cir. 1999) (“[Courts] must also carefully distinguish between
evidence that allows for a reasonable inference of discrimination and evidence that gives rise to
mere speculation and conjecture. This undertaking is not one of guesswork or theorization.”).
Turning to the elements of her prima facie claim, the parties do not dispute that Cornell is
subject to the ADA or NYSHRL or that Payne was disabled, and do not explicitly address
whether she was otherwise qualified to perform the essential functions of her job. That leaves
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whether Payne suffered an adverse employment action because of her disability. See Fox, 918
F.3d at 71. The ADA and NYSHRL require “a plaintiff alleging a claim of employment
discrimination to prove that discrimination was the but-for cause of any adverse employment
action.” Natofsky v. City of New York, 921 F.3d 337, 348 (2d Cir. 2019). Although Payne
identifies a number of grievances as adverse employment actions, the only adverse employment
actions here include Payne’s layoff and Cornell’s subsequent employment decisions to not rehire
Payne for different roles. See, e.g., Tepperwien v. Entergy Nuclear Operations, Inc., 663 F.3d
556, 570 (2d Cir. 2011) (“Criticism of an employee (which is part of training and necessary to
allow employees to develop, improve and avoid discipline) is not an adverse employment
action.”).
We agree with the district court that Payne failed to demonstrate that her disability was
the but-for cause of her adverse employment actions. Payne, 2021 WL 39684, at *15 (N.D.N.Y.
Jan. 5, 2021). The record is clear that neither of the adverse employment actions occurred
because of her disability—Cornell had valid business justifications for both decisions and both
occurred well after the disclosure of her disability on June 13, 2016. In any event, even if Payne
were able to establish a prima facie case of discrimination, Cornell had legitimate,
nondiscriminatory reasons for its actions including concerns over Payne’s ability to perform well
in her position due to her skill set and communication style as well as whether she had the
necessary analytical skills and demeanor to communicate successfully with colleagues and
faculty. Furthermore, Cornell made a number of business changes including shuttering
departments and combining others which were high-level business decisions that cannot be
considered to have been done on account of Payne’s diagnosis and disability accommodations.
Payne also failed to establish a genuine dispute of material fact on her hostile work
environment claim. “To prevail on a hostile work environment claim, [Payne] must show (1) that
the harassment was sufficiently severe or pervasive to alter the conditions of [her] employment
and create an abusive working environment, and (2) that a specific basis exists for imputing the
objectionable conduct to the employer.” Fox, 918 F.3d at 74 (citations and internal quotation
marks omitted). Based on the totality of the circumstances, the remarks and actions Payne
complains of fall well short of the conditions necessary to establish an abusive work environment
because they are largely legitimate reprimands by her employer. See, e.g, Duplan v. City of New
York, 888 F.3d 612, 618, 627 (2d Cir. 2018) (affirming dismissal of claim where plaintiff was
“ostracized” by his supervisors over a three-year period and suspended without pay for ten
business days); Fox, 918 F.3d at 75 (concluding that being reprimanded at work does not, alone,
make a hostile work environment).
Nor did Payne establish a genuine dispute of material fact on her reasonable
accommodation claim. An accommodation is reasonable when it “enable[s] an individual with a
disability who is qualified to perform the essential functions of that position . . . [or] to enjoy
equal benefits and privileges of employment.” 29 C.F.R. § 1630.2(o)(1)(ii), (iii). Although the
reasonableness of an employer’s accommodation is a “fact specific” question that is usually
resolved by the fact finder, where “the employer has already taken (or offered) measures to
accommodate the disability, the employer is entitled to summary judgment if, on the undisputed
record, the existing accommodation is ‘plainly reasonable.’” Noll v. Int’l Bus. Machs. Corp., 787
F.3d 89, 94 (2d Cir. 2015) (quoting Wernick v. Fed. Rsrv. Bank of N.Y., 91 F.3d 379, 385 (2d
Cir. 1996)). As the district court found, Cornell offered multiple reasonable accommodations to
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Payne through various flex agreements and medical leave even before her formal
accommodation request. Payne, 2021 WL 39684, at *17. Although Payne complains that
Cornell, through its employees, failed to allow Payne to take advantage of the accommodations,
“employers are not required to provide a perfect accommodation or the very accommodation
most strongly preferred by the employee.” Noll, 787 F.3d at 95 (citing 29 C.F.R. § 1630 app.).
Regardless, Payne’s claims are severely undermined by the fact that she told the Medical Leave
Administration representative that the accommodations were “working fine.” App’x at 390 ¶
118.
Finally, Payne failed to establish a genuine dispute of material fact as to whether Cornell
retaliated against her for her protected activity. “To make out a prima facie case of retaliation, a
plaintiff must make four showings: that (1) she engaged in a protected activity; (2) her employer
was aware of this activity; (3) the employer took adverse employment action against her; and (4)
a causal connection exists between the alleged adverse action and the protected activity.” Summa
v. Hofstra Univ., 708 F.3d 115, 125 (2d Cir. 2013) (citations and internal quotation marks
omitted). We agree with the district court that Payne established a prima facie case for the first
three elements, but not on the fourth one.
“A causal connection in retaliation claims can be shown either (1) indirectly, by showing
that the protected activity was followed closely by discriminatory treatment, or through other
circumstantial evidence such as disparate treatment of fellow employees who engaged in similar
conduct; or (2) directly, through evidence of retaliatory animus directed against the plaintiff by
the defendant.” Littlejohn v. City of New York, 795 F.3d 297, 319 (2d Cir. 2015) (citations and
internal quotation marks omitted). While this Court has not “drawn a bright line rule to define
the outer limits beyond which a temporal relationship is too attenuated,” Gormon-Bakos v.
Cornell Coop. Extension of Schenectady Cnty., 252 F.3d 545, 554 (2d Cir. 2001), district courts
in this circuit have generally found that “the passage of two to three months between the
protected activity and the adverse employment action does not allow for an inference of
causation.” Barton v. Warren Cnty., 19-CV-1061, 2020 WL 4569465, at *14 (N.D.N.Y. Aug. 7,
2020) (quoting Choi v. Ferrellgas, Inc., 17-CV-3518, 2020 WL 122976, at *8 (E.D.N.Y. Jan. 10,
2020)). Even if Payne could establish a prima facie case of retaliation, Cornell had legitimate,
nondiscriminatory reasons for its actions. Payne’s layoff was reviewed and approved at multiple
administrative levels and the search committees who decided not to rehire Payne felt other
candidates were better qualified.
We have considered the remainder of Payne’s arguments and find them to be without
merit. Accordingly, the order of the district court hereby is AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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