McElwee v. County of Orange , 700 F.3d 635 ( 2012 )

11-4366-cv
McElwee v. County of Orange
U NITED S TATES C OURT OF A PPEALS
FOR THE S ECOND C IRCUIT
August Term 2012
(Argued: October 4, 2012 Decided: November 15, 2012)
Docket No. 11-4366-cv
________________________
J AMES C. M C E LWEE ,
Plaintiff-Appellant,
v.
C OUNTY OF O RANGE ,
Defendant-Appellee.
________________________
Before:
R AGGI , C HIN , and C ARNEY , Circuit Judges.
Appeal from a judgment of the United States
District Court for the Southern District of New York
(Duffy, J.), entered on September 30, 2011, dismissing
plaintiff's claims under Title II of the Americans with
Disabilities Act, 42 U.S.C. § 12131 et seq., and Section
504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 et
seq., following the district court's grant of defendant's
motion for summary judgment.
AFFIRMED.
S TEPHEN B ERGSTEIN , Bergstein & Ullrich,
LLP, Chester, New York, for
Plaintiff-Appellant.
K AREN F OLSTER L ESPERANCE (David L.
Posner, on the brief), McCabe & Mack
LLP, Poughkeepsie, New York, for
Defendant-Appellee.
Brian D. East, Disability Rights
Texas, Austin, Texas, for Amici
Curiae National Disability Rights
Network and Autism Speaks.
C HIN , Circuit Judge:
Plaintiff James C. McElwee appeals from a judgment
of the United States District Court for the Southern
District of New York (Duffy, J.). McElwee served as a
volunteer at Valley View Center for Nursing Care and
Rehabilitation ("Valley View"), a federally funded entity
operated by defendant Orange County (the "County"). In
2009, McElwee was dismissed from Valley View's volunteer
program after engaging in erratic and harassing behavior
toward female staff members. McElwee, who was previously
diagnosed with Pervasive Developmental Disorder, brought
-2-
this action against the County pursuant to Title II of the
Americans with Disabilities Act (the "ADA"), 42 U.S.C.
§ 12131 et seq., and Section 504 of the Rehabilitation Act
of 1973 (the "Rehabilitation Act"), 29 U.S.C. § 794 et
seq., alleging that he was denied a reasonable
accommodation for his disability.
The district court found that McElwee was not
disabled within the meaning of the statutes and granted the
County's motion for summary judgment dismissing the
Complaint. We affirm the district court's award of summary
judgment, albeit on different grounds.
BACKGROUND
The following facts are undisputed, unless
otherwise noted.
A. The Plaintiff
McElwee is a man in his mid-thirties with a
neurodevelopmental disorder formally classified as
Pervasive Developmental Disorder - Not Otherwise Specified
("PDD-NOS") and informally called an autism spectrum
disorder. He has an IQ of 79, placing him in the eighth
percentile of intellectual functioning. He lives with his
-3-
mother, has never held a job, and likely will always
require assistance in managing money and completing non-
routine tasks.
In 1996, McElwee began participating in a
volunteer program at Valley View, where he performed
janitorial and housekeeping duties and transported nursing
home residents to religious and social events. McElwee
competently performed these assigned tasks without
hindrance from his alleged disability. Meanwhile, t he
volunteer program improved his self-esteem by allowing him
to associate with other people in the community and provide
a service to the elderly and infirm.
B. A Staff Member Complains
On November 20, 2009, Martha Thompson, a staff
member at Valley View, informed Robin Darwin, the Assistant
Administrator, that McElwee was "acting inappropriately
towards her and making her feel uncomfortable."
Specifically, Thompson complained that on multiple
occasions, McElwee had waited for her and followed her in
the hallways, staring at her rear end. Thompson also told
Darwin that she was aware of at least two other women at
-4-
Valley View who McElwee had "bothered" or made to feel
uncomfortable.
On November 24, 2009, Darwin and Amy Fey, the
Director of Activities, met with McElwee to inform him that
someone had complained about his behavior and to discuss
the allegations with him. When Darwin asked McElwee if he
knew who the complainant might be, McElwee replied that it
might be a social worker named Lindsay because he "look[s]
at her and talk[s] to her." When Darwin told McElwee that
it was not Lindsay, he guessed that it might be a
particular nurse's aide, admitting, "I talk to her too, and
look at her." McElwee then said that God was trying to
punish him because of his "history," and he explained that
when he was in high school he "made a mean phone call to a
girl, saying nasty/dirty things." McElwee further stated,
"there needs to be punishment and now," and made a gesture
simulating slitting his throat. When Darwin asked him what
he meant, McElwee replied that he "deserve[d] to be
punished when [he does] bad things." McElwee then made an
angry face and said, "just when I think someone is going to
pat me on the back someone stabs me," simultaneously making
-5-
a gesture as if he were holding a knife and repeatedly
stabbing himself in the back. When Darwin informed McElwee
that it was Thompson who had complained about him, he said:
"Oh, I should have known. I had a feeling she was going to
turn me in."
C. Valley View Investigates Further
After her meeting with McElwee, Darwin spoke with
Valley View's Facility Administrator, who told her to
conduct a further investigation regarding McElwee's
behavior if she was considering terminating his volunteer
services.
On November 25, 2009, Darwin informed McElwee that
she was disturbed by the situation, she was going to
conduct an investigation, and he should leave Valley View
and not return until he heard from her. McElwee started to
cry, and said that Darwin was a conduit of God. He said
that God was telling him not to do these things anymore,
and was punishing him for what he had done in the past.
McElwee also said that he had been conducting research at
the library over the last several months to see if his
-6-
behavior could be considered domestic violence or sexual
harassment.
Darwin subsequently conducted an investigation by
interviewing individuals at Valley View about McElwee's
behavior. In total, five women reported that McElwee had
behaved inappropriately toward them, and a security guard
reported that he had seen McElwee bothering nursing
students and visitors.
Liz Murphy, a staff member in Valley View's
payroll department, told Darwin that McElwee watched her
and followed her on her breaks, and she recounted one
instance when McElwee sat in the lobby and watched her
while she distributed checks. Murphy told Darwin that this
behavior had been going on for a few years but had
increased since the previous spring. She said she gave
McElwee the cold shoulder and went out of her way to avoid
him. Barbara Decker, another payroll department employee,
told Darwin that McElwee used to carry around a stuffed
dolphin that he asked women to pet, in a manner she
perceived as sexually suggestive. Decker also said that
several years earlier McElwee had inquired about dating her
-7-
daughter, and that the way he spoke about her daughter made
her uncomfortable. Pat Matero, the Director of Admissions,
told Darwin that McElwee once asked her how he would look
in a Speedo, and that she had observed him in the past
"playing up" to young aides with sexual innuendo. Irene
Simpson, the Activities Supervisor at Valley View, told
Darwin that McElwee once said to her, "[d]o you realize
what I could do to you?" in what she felt was a threatening
way. Eric Gould, a security guard at Valley View, told
Darwin that Thompson and Murphy had complained to him that
McElwee's behavior made them feel uncomfortable. Gould
also said he had observed McElwee leering at and acting
inappropriately around female nursing students and
visitors.
D. McElwee is Dismissed
Based on her investigation, Darwin concluded that
McElwee was a potential liability for Valley View in that
he was sexually harassing staff, nursing students, and
-8-
visitors, and had exhibited disturbing behavior when
confronted with these allegations. 1
On November 30, 2009, McElwee's mother called
Darwin and told her that McElwee "is not like everyone
else" and that he should not be discriminated against
because he has a disability and because he was looking at
people. She asked Darwin to call McElwee's therapist, who
could better explain why he acted the way that he did.
Darwin never called the therapist.
Darwin consulted with Valley View's Facility
Administrator, the County Executive's Office, and the
County Law Department regarding the results of her
investigation. On December 1, 2009, she sent McElwee a
letter, stating that his volunteer services were no longer
needed at Valley View.
On December 10, 2009, McElwee went to Valley View
to sing Christmas carols for the residents. When he
1
McElwee argues that some of the identified incidents
occurred many years earlier, it was not his intention to harass
or make people feel uncomfortable, and his actions must be
viewed in the context of his disability; he does not dispute,
however, that the incidents occurred or that they were reported
to Darwin as described.
-9-
arrived at the facility, a security guard told him he was
not allowed inside the building because of "what had
happened recently."
E. Procedural History
McElwee filed the action below on January 8, 2010,
alleging that the County had violated the ADA and the
Rehabilitation Act by dismissing him from the volunteer
program and subsequently excluding him from Valley View
altogether without providing him a reasonable accommodation
for his mental impairment.
Following discovery, the County moved for summary
judgment. On September 29, 2011, the district court
granted the County's motion, holding that McElwee was not
"'substantially limited' in the major life activity of
interacting with others" and therefore was not " disabled"
under the ADA or the Rehabilitation Act. See McElwee v.
Cnty. of Orange, No. 10 Civ. 00138 (KTD), 2011 U.S. Dist.
LEXIS 114663, at *20 (S.D.N.Y. Sept. 29, 2011). In
particular, the court held, "while Plaintiff may suffer
from a diagnosed disorder, . . . Plaintiff has not
demonstrated that his mental impairment substantially
-10-
impairs his ability 'to connect with others, i.e., to
initiate contact with other people and respond to them, or
to go among other people –- at the most basic level of
these activities.'" Id. at *16 (quoting Jacques v.
DiMarzio, Inc., 386 F.3d 192, 201 (2d Cir. 2004)).
The court did not consider whether McElwee was
otherwise qualified to be a volunteer at Valley View or
whether the accommodations he sought were reasonable.
Judgment dismissing the Complaint was entered on September
30, 2011.
This appeal followed.
DISCUSSION
A. Applicable Law
1. Standard of Review
We review an award of summary judgment de novo,
construing the evidence in the light most favorable to the
nonmoving party and drawing all reasonable inferences in
his favor. McBride v. BIC Consumer Prods. Mfg. Co., 583
F.3d 92, 96 (2d Cir. 2009). Summary judgment is
appropriate where the record reveals that there is "no
genuine dispute as to any material fact and the movant is
-11-
entitled to judgment as a matter of law." Fed. R. Civ. P.
56(a). A factual dispute is genuine "if the evidence is
such that a reasonable jury could return a verdict for t he
nonmoving party." Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). We may affirm summary judgment on
any ground supported by the record, even if it is not one
on which the district court relied. 10 Ellicott Sq. Ct.
Corp. v. Mountain Valley Indem. Co., 634 F.3d 112, 125 (2d
Cir. 2010).
2. The ADA and the Rehabilitation Act
Title II of the ADA provides that "no qualified
individual with a disability shall, by reason of such
disability, be excluded from participation in or be denied
the benefits of the services, programs, or activities of a
public entity, or be subjected to discrimination by any
such entity." 42 U.S.C. § 12132. Similarly, Section 504
of the Rehabilitation Act prohibits programs and activities
receiving federal financial assistance from excluding,
denying benefits to, or discriminating against "otherwise
qualified" disabled individuals. 29 U.S.C. § 794(a).
Because the standards adopted by the two statutes are
-12-
nearly identical, we consider the merits of these claims
together. See Abrahams v. MTA Long Island Bus, 644 F.3d
110, 115 n.3 (2d Cir. 2011).
To assert a claim under Title II of the ADA or
section 504 of the Rehabilitation Act, a plaintiff must
demonstrate that (1) he is a qualified individual with a
disability; (2) the defendant is subject to one of the
Acts; and (3) he was denied the opportunity to participate
in or benefit from the defendant's services, programs, or
activities, or was otherwise discriminated against by the
defendant because of his disability. Henrietta D. v.
Bloomberg, 331 F.3d 261, 272 (2d Cir. 2003).
A "qualified individual with a disability" is "an
individual with a disability who, with or without
reasonable modifications to rules, policies, or practices,
the removal of architectural, communication, or
transportation barriers, or the provision of auxi liary aids
and services, meets the essential eligibility requirements
for the receipt of services or the participation in
programs or activities provided by a public entity." 42
U.S.C. § 12131. A "disability" is defined as "a physical
-13-
or mental impairment that substantially limits one or more
major life activities." Id. § 12102(1)(A).
Under both statutes, a defendant discriminates
when it fails to make a reasonable accommodation that would
permit a qualified disabled individual "to have access to
and take a meaningful part in public services." 2 Powell v.
Nat'l Bd. of Med. Exam'rs, 364 F.3d 79, 85 (2d Cir. 2004);
see also 42 U.S.C. § 12112(b)(5)(A) (the term
"discriminate" under the ADA includes "not making
reasonable accommodations to the known physical or mental
limitations of an otherwise qualified individual with a
2
Although McElwee brought the instant case pursuant to
Title II of the ADA, we may look for guidance to case law under
Title I of the ADA, which governs employment discrimination,
because (i) courts use the terms "reasonable modifications" in
Title II and "reasonable accommodations" in Title I
interchangeably, see, e.g., Powell v. Nat'l Bd. of Med. Exam'rs,
364 F.3d 79, 85, 88 (2d Cir. 2004) (discussing "accommodations"
provided in Title II case); Robertson v. Las Animas Cnty.
Sheriff's Dep't, 500 F.3d 1185, 1195 n.8 (10th Cir. 2007)
(noting that "Title II's use of the term 'reasonable
modifications' is essentially equivalent to Title I's use of the
term 'reasonable accommodation'"); and (ii) McElwee's volunteer
position at Valley View was analogous to that of an employee,
see, e.g., Bauer v. Muscular Dystrophy Ass'n, Inc., 427 F.3d
1326, 1333 (10th Cir. 2005) (noting that reference to Title I
case law was appropriate in Title III case where plaintiffs, who
were volunteers, "act[ed] in a capacity at least somewhat
analogously to that of an employee").
-14-
disability who is an applicant or employee"). "A
'reasonable accommodation' is one that gives the otherwise
qualified plaintiff with disabilities 'meaningful access'
to the program or services sought." Henrietta D., 331 F.3d
at 282 (quoting Alexander v. Choate, 469 U.S. 287, 301
(1985)).
Although a public entity must make "reasonable
accommodations," it does not have to provide a disabled
individual with every accommodation he requests or the
accommodation of his choice. See Fink v. N.Y.C. Dep't of
Personnel, 53 F.3d 565, 567 (2d Cir. 1995). An
accommodation is not reasonable if it would impose an undue
hardship on a program's operation or "would fundamentally
alter the nature of the service, program, or activity. "
Powell, 364 F.3d at 88 (citing 28 C.F.R. §§ 41.53,
35.130(b)(7)) (internal quotation marks omitted).
Moreover, under the ADA, workplace misconduct is a
legitimate and nondiscriminatory reason for terminating
employment, even when such misconduct is related to a
-15-
disability. 3 A requested accommodation that simply excuses
past misconduct is unreasonable as a matter of law. 4
Although it is generally "the responsibility of
the individual with a disability to inform the employer
that an accommodation is needed," Brady v. Wal-Mart Stores,
Inc., 531 F.3d 127, 135 (2d Cir. 2008) (quoting Graves v.
Finch Pruyn & Co., 457 F.3d 181, 184 (2d Cir. 2006))
3
See Sista v. CDC Ixis N. Am., Inc., 445 F.3d 161, 172
(2d Cir. 2006) (the ADA does not "require that employers
countenance dangerous misconduct, even if that misconduct is the
result of a disability"); see also Raytheon Co. v. Hernandez,
540 U.S. 44, 54 n.6 (2003) (rejecting suggestion that employer's
refusal to rehire someone because of his disability-related
misconduct would violate the ADA); Halpern v. Wake Forest Univ.
Health Scis., 669 F.3d 454, 465 (4th Cir. 2012) ("[M]isconduct
-- even misconduct related to a disability -- is not itself a
disability and may be a basis for dismissal." (citation and
internal quotation marks omitted)).
4
See Canales-Jacobs v. N.Y.S. Office of Ct. Admin., 640
F. Supp. 2d 482, 500 (S.D.N.Y. 2009) ("The ADA does not excuse
workplace misconduct because the misconduct is related to a
disability."); Fahey v. City of N.Y., No. 10 Civ. 4609 (ILG)
(MDG), 2012 U.S. Dist. LEXIS 15104, at *31 (E.D.N.Y. Feb. 7,
2012) (rejecting plaintiff's failure to accommodate claim where
requested accommodation was to receive penalty other than
termination for past misconduct); Whalley v. Reliance Grp.
Holdings, Inc., No. 97 Civ. 4018 (VM), 2001 U.S. Dist. LEXIS
427, at *27 (S.D.N.Y. Jan. 22, 2001) (holding that plaintiff's
belated request for accommodation after learning of employer's
decision to terminate him amounted to a request for a second
chance); U.S. Equal Emp't Opportunity Comm'n, Enforcement
Guidance: Reasonable Accommodation and Undue Hardship under the
Americans with Disabilities Act, question 36 (2002) ("Since
reasonable accommodation is always prospective, an employer is
not required to excuse past misconduct even if it is the result
of the individual's disability.").
-16-
(internal quotation marks omitted), under certain
circumstances, an employer is required to act proactively
and engage in an interactive process to accommodate the
disability of an employee even if the employee does not
request accommodation, see id.; see also 29 C.F.R.
§ 1630.2(o)(3) ("To determine the appropriate reasonable
accommodation it may be necessary for the covered entity to
initiate an informal, interactive process with the
individual with a disability in need of the
accommodation."). Nevertheless, an employee may not
recover based on his employer's failure to engage in an
interactive process if he cannot show that a reasonable
accommodation existed at the time of his dismissal. See
McBride, 583 F.3d at 99-101.
A plaintiff alleging that he was denied a
reasonable accommodation bears the burdens of both
production and persuasion as to the existence of some
accommodation that would allow him to meet the essential
eligibility requirements of the service, program, or
activity at issue. See id. at 97. Once the plaintiff has
demonstrated that there is a "plausible accommodation, the
-17-
costs of which, facially, do not clearly exceed its
benefits," the defendant bears the burden of proving that
the requested accommodation is not reasonable. Borkowski
v. Valley Cent. Sch. Dist., 63 F.3d 131, 138 (2d Cir.
1995).
B. Application
In this case, the parties agree that McElwee has
satisfied the second element of his claim: Valley View is
a federally funded entity of the County, and therefore is
subject to the ADA and the Rehabilitation Act. See 42
U.S.C. § 12131(1)(B) (defining "public entity" as, inter
alia, "any department, agency, special purpose district, or
other instrumentality of a State or States or local
government"); 29 U.S.C. § 794(a) (prohibiting
discrimination by "any program or activity receiving
Federal financial assistance").
The parties dispute, however, whether the first
and third elements are satisfied, i.e., whether McElwee is
a qualified individual with a disability and whether the
County discriminated against him by denying him a
-18-
reasonable accommodation. We discuss these elements in
turn.
1. Whether McElwee is a Qualified Individual with a
Disability
The question whether McElwee is a qualified
individual with a disability has two aspects, namely,
whether he is disabled and whether he is qualified. We
consider both aspects below.
a. Whether McElwee is Disabled
The district court found that McElwee was not
substantially limited in the major life activity of
interacting with others and concluded that McElwee was not
disabled. See McElwee, 2011 U.S. Dist. LEXIS 114663, at
*20. On appeal, McElwee argues that the district court
erred by failing to consider the ADA Amendments Act of 2008
("ADAAA"), Pub. L. No. 110-325, 122 Stat. 3553 (2008),
which amended the ADA to provide that the definition of
"disability" shall be construed broadly "to the maximum
extent permitted by the terms of this chapter" an d "[t]he
term 'substantially limits' shall be interpreted
consistently with the findings and purposes of the
-19-
[ADAAA]." 42 U.S.C. § 12102(4)(A), (B). 5 Similarly, the
amici curiae argue that, in light of the ADAAA, the
district court erred in concluding that McElwee is not
disabled.
Both McElwee and amici raise fair concerns as to
whether the district court erred in not addressing whether
McElwee was substantially limited in the major life
activities of working, caring for himself, communicating,
thinking, and brain function. See 42 U.S.C. § 12102(2)
(providing that "major life activities include, but are not
limited to" caring for oneself, learning, concentrating,
thinking, communicating, working, and the operatio n of
major bodily functions such as brain function); 29 C.F.R.
§ 1630.2(j)(1)(i) (instructing courts to construe the term
"substantially limits" broadly); id. § 1630.2(j)(3)(iii)
(specifically identifying autism as an impairment that
substantially limits brain function in virtually all
cases). Nonetheless, we need not decide whether the
5
The ADAAA became effective on January 1, 2009 and
applies to claims, such as McElwee's, that arose after that
date. See ADA Amendments Act of 2008, Pub. L. No. 110-325, 122
Stat. 3553, 3559 (2008).
-20-
district court erred in finding McElwee was not disabled
because even assuming arguendo that a reasonable jury could
find McElwee disabled, the County is entitled to summary
judgment for the reasons set forth below.
b. Whether McElwee is Qualified
Although the parties disputed before the district
court whether McElwee is a qualified individual, the court
did not address this issue. See McElwee, 2011 U.S. Dist.
LEXIS 114663, at *1, *12.
McElwee asserts that he is qualified to
participate in Valley View's volunteer program because he
adequately performed his volunteer duties for years. The
County, on the other hand, argues that McElwee's
"longstanding course of inappropriate conduct with numerous
female employees, nursing students, and visitors to the
facility" disqualified him from serving as a volunteer.
As noted, an individual is qualified to
participate in a program if he meets the essential
eligibility requirements for participation in the program,
with or without reasonable accommodations. See 42 U.S.C.
§ 12131(2). To determine whether an individual is
-21-
qualified, courts look to a program's "formal legal
eligibility requirements." Henrietta D., 331 F.3d at 277
(citing 42 U.S.C. §§ 12131-12132). An eligibility
requirement is not considered "essential" if a "reasonable
accommodation would enable an individual to qualify for the
benefit." Castellano v. City of N.Y., 946 F. Supp. 249,
253 (S.D.N.Y. 1996), aff'd on other grounds, 142 F.3d 58(2d Cir. 1998).
The "benefit" here at issue is the ability to
participate in Valley View's volunteer program. To be
qualified for such participation, a person must have been
not only mentally and physically able to perform the tasks
assigned to him, but also emotionally able to conduct
himself in an appropriate manner when dealing with
residents, supervisors, and other staff members. There is
no dispute that McElwee was always qualified to perform the
former functions. But by at least 2009, his sexual
harassment of female staff members appears to have rendered
him unqualified as to the latter. See, e.g., Higgins v.
Md. Dep't of Agric., No. L-11-0081, 2012 U.S. Dist. LEXIS
25303, at *18 (D. Md. Feb. 28, 2012) (finding plaintiff's
-22-
inappropriate workplace behavior rendered him unqualified
because "[t]he 'essential functions' of [plaintiff's]
position included courteous and professional interactions
with the public, fellow staff, subordinates, and
supervisors").
The extent to which McElwee's aberrant behavior,
which he attributed to his disability, disqualified him
from participating in Valley View's volunteer program is
perhaps more easily addressed by asking whether a
reasonable accommodation for his disability existed. See
Sista v. CDC Ixis N. Am. Inc., 445 F.3d 161, 171 (2d Cir.
2006) (concluding that plaintiff's misconduct is "distinct
. . . from the issue of minimal qualification to perform a
job" (quoting Owens v. N.Y.C. Hous. Auth., 934 F.2d 405,
409 (2d Cir. 1991)) (internal quotation marks omitted)).
We address that issue below.
2. Whether the County Discriminated Against McElwee
McElwee alleges that his dismissal from Valley
View's volunteer program was unlawful discrimination
because he was not provided a reasonable accommodation for
his disability. In particular, he claims that Darwin
-23-
should have (1) worked with him and his therapist to help
him behave more appropriately in the workplace; and (2)
worked with the Valley View employees who complained about
him to educate them about McElwee's disability so that they
would be more tolerant of his behavior .
As an initial matter, McElwee's claim is as much a
request to excuse his past misconduct as it is a request
for future accommodation. He does not dispute that he
followed and stared at female employees or that his conduct
was reasonably perceived by others as inappropriate. It is
also undisputed that when Darwin asked him about this
behavior, he engaged in perseveration and made disturbing
statements and gestures. This inappropriate behavior is
indisputably a legitimate non-discriminatory reason for
dismissing McElwee from the volunteer program , even if the
behavior resulted from his disability. See Canales-Jacobs
v. N.Y.S. Office of Ct. Admin., 640 F. Supp. 2d 482, 500
(S.D.N.Y. 2009); U.S. Equal Emp't Opportunity Comm'n,
Enforcement Guidance: Reasonable Accommodation and Undue
Hardship under the Americans with Disabilities Act ,
question 36 (2002). "The ADA mandates reasonable
-24-
accommodation of people with disabilities in order to put
them on an even playing field with the non-disabled; it
does not authorize a preference for disabled people
generally." Felix v. N.Y.C. Transit Auth., 324 F.3d 102,
107 (2d Cir. 2003).
Further, even if, as McElwee argues, Darwin should
have known he was disabled and proactively engaged in an
interactive process to assess whether his disability could
be reasonably accommodated, see Brady, 531 F.3d at 135-36,
he has not met his burden of showing that the proposed
accommodations are plausible, see McBride, 583 F.3d at 99-
101; Borkowski, 63 F.3d at 138. On the contrary, as
discussed below, both of the accommodations McElwee now
claims he was denied are unreasonable on their face, as a
matter of law.
The first accommodation McElwee proposes is that
Valley View should have spoken to his therapist or
"encourage[d] him to obtain particularized therapy to help
him behave more appropriately in the workplace and . . .
better interact with colleagues." Nothing in the record
before us, however, indicates that fur ther therapy would
-25-
have helped McElwee to refrain from his inappropriate
conduct, either immediately or at any time in the near
future. 6 On the contrary, a psychological evaluation
conducted in August 2009 -- three months before McElwee was
dismissed from Valley View -- indicated that he had a long-
standing pattern of repeatedly approaching girls and women
and obsessing about their rejection of him, and that this
behavior was consistent with his PDD-NOS diagnosis. The
evaluation also suggested that his perseverative behavior
and inability to take constructive criticism were
characteristics of his impairment.
Further, McElwee's psychiatrist of 14 years wrote
a letter to McElwee's counsel in January 2011 -- a year
after McElwee filed the Complaint in this case -- reporting
that "[Mr. McElwee] does not respond to social cues (and
body language) such as when people are having a private
6
See McBride v. BIC Consumer Prods. Mfg. Co., 583 F.3d
92, 97-98 (2d Cir. 2009) (noting that a plaintiff requesting a
reassignment as an accommodation must demonstrate that a vacant
position existed "at or around the time when accommodation was
sought"); see also Myers v. Hose, 50 F.3d 278, 283 (4th Cir.
1995) ("[R]easonable accommodation is by its terms most
logically construed as that which presently, or in the immediate
future, enables the employee to perform the essential functions
of the job in question.").
-26-
conversation, when the topic is inappropriate to the
situation, when it is time to change the subject, when he
is making someone uncomfortable." The psychiatrist did not
suggest that further therapy would enable McElwee to behave
appropriately. Accordingly, McElwee's proposed
accommodation for Valley View to work with him to obtain
additional therapy was unreasonable as a matter of law
because he has failed to offer any assurance that it would
have enabled him to meet the essential eligibility
requirements of Valley View's volunteer program at any time
in the near future. 7
7
See, e.g., Mole v. Buckhorn Rubber Prods., Inc., 165
F.3d 1212, 1218 (8th Cir. 1999) (finding requested accommodation
unreasonable because plaintiff "could offer no assurance the
requested accommodations would remedy her many job performance
deficiencies," especially where a letter from her doctor warned
that plaintiff "has a lifelong illness that 'will likely
fluctuate considerably'"); K.H. ex rel. K.C. v. Vincent Smith
Sch., No. 06-CV-319 (ERK) (JO), 2006 U.S. Dist. LEXIS 22412, at
*24 (E.D.N.Y. Mar. 29, 2006) (finding requested accommodation
unreasonable because it likely would not "make it possible for
[plaintiff] to continue to attend the School and benefit from
its educational program"); Higgins v. Md. Dep't of Agric., No.
L-11-0081, 2012 U.S. Dist. LEXIS 25303, at *21 (D. Md. Feb. 28,
2012) (dismissing plaintiff's failure to accommodate claim
because plaintiff "has not identified an accommodation that
would have enabled him to conform his behavior to an acceptable
standard").
-27-
McElwee's second requested accommodation -- for
Valley View to work with the women who complained about his
behavior "to educate [them] about plaintiff's disability or
to [help them] better understand the nature of [their]
concerns about plaintiff" -- is also unreasonable as a
matter of law. This proposed accommodation does not even
purport to address McElwee's inappropriate behavior;
instead, it simply demands that others be more tolerant.
Requiring others to tolerate misconduct, however, is not
the kind of accommodation contemplated by the ADA. 8
Further, nursing home employees, volunteers, and visitors
8
See Lovejoy-Wilson v. NOCO Motor Fuel, Inc., 263 F.3d
208, 217 (2d Cir. 2001) (noting that Title I and the associated
regulations define "reasonable accommodation" as including but
not limited to job restructuring, modified work schedules,
reassignment, and adjustments to work environment) (citing 42
U.S.C. § 12111(9)(B) and 29 C.F.R. § 1630.2(o)(1)(ii)); 42
U.S.C. § 12131(2) (accommodations available in Title II case
include "modifications to rules, policies, or practices, the
removal of architectural, communication, or transportation
barriers, or the provision of auxiliary aids and services");
see, e.g., K.H., 2006 U.S. Dist. LEXIS 22412, at *23 (finding
request for plaintiff's psychiatrist to meet with school
officials "to talk things over" and psychiatrist's statement
that officials "needed to have more patience and more tolerance"
with plaintiff, without recommending a particular plan to manage
plaintiff's behavior, was not a reasonable accommodation); Hall
v. Wal-Mart Assocs., 373 F. Supp. 2d 1267, 1272 (M.D. Ala. 2005)
(holding that plaintiff's "sought-after accommodation --
tolerance of his dishonesty -- . . . materially differs in kind
from the more common accommodations previously recognized by
this court").
-28-
should not be required to tolerate harassing behavior, and
it would be an undue hardship for Valley View to have to
countenance behavior of this kind. 9
In sum, McElwee failed to present sufficient
evidence below to raise a genuine issue of fact as to
whether he was discriminated against because of his
disability.
CONCLUSION
For the reasons stated above, the judgment of the
district court is affirmed.
9
See, e.g., Darcangelo v. Verizon Md., Inc., No. WDQ-
02-816, 2005 U.S. Dist. LEXIS 37660, at *11 (D. Md. June 7,
2005) ("Requiring [plaintiff's] coworkers and supervisors to
suffer her tirades and harassment . . . constitutes an undue
hardship which [her employer] cannot be expected to bear."),
aff'd, 189 F. App'x 217, 218-19 (4th Cir. 2006) (per curiam).
-29-