Wade v. New York City Department of Education , 667 F. App'x 311 ( 2016 )

14-1201
Wade v. New York City Department of Education et al.
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 30th day of June, two thousand sixteen.
5
6 PRESENT: DENNIS JACOBS,
7 GUIDO CALABRESI,
8 REENA RAGGI,
9 Circuit Judges.
10
11 - - - - - - - - - - - - - - - - - - - -X
12 JACQUELINE WADE,
13 Plaintiff-Appellant,
14
15 -v.- 14-1201
16
17 NEW YORK CITY DEPARTMENT OF EDUCATION
18 & CITY OF NEW YORK,
19 Defendants-Appellees.
20 - - - - - - - - - - - - - - - - - - - -X
21
22 FOR APPELLANT: Stephen Bergstein, Bergstein &
23 Ullrich, LLP, Chester, New York.
24
25 FOR APPELLEES: Jonathan Popolow (with Cecelia
26 Chang on the brief) for Zachary
27 W. Carter, Corporation Counsel
28 of the City of New York, New
29 York, New York.
1
1 FOR AMICUS CURIAE EQUAL Donna J. Brusoski, P. David
2 EMPLOYMENT OPPORTUNITY Lopez, Jennifer S. Goldstein &
3 COMMISSION: Lorraine C. Davis, Equal
4 Employment Opportunity
5 Commission, Office of General
6 Counsel, Washington, D.C.
7
8 Appeal from a judgment of the United States District
9 Court for the Southern District of New York (Schofield, J.).
10
11 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
12 AND DECREED that the judgment of the district court be
13 AFFIRMED.
14
15 Jacqueline Wade appeals from the judgment of the United
16 States District Court for the Southern District of New York
17 (Schofield, J.), granting summary judgment in favor of
18 defendants-appellees on her claims under Title VII of the
19 Civil Rights Act of 1964 (“Title VII”), the Americans with
20 Disabilities Act of 1990 (“ADA”), the Age Discrimination in
21 Employment Act of 1976 (“ADEA”), the New York State Human
22 Rights Law (“NYSHRL”) and the New York City Human Rights Law
23 (“NYCHRL”). We assume the parties’ familiarity with the
24 underlying facts, the procedural history, and the issues
25 presented for review.
26
27 Because Wade’s complaint is devoid of any allegations
28 against the City of New York, all claims against the City of
29 New York were properly dismissed. Title VII, the ADEA, and
30 the ADA require a plaintiff to file a notice with the EEOC
31 within 300 days of an alleged adverse action. See Petrosino
32 v. Bell Atlantic, 385 F.3d 210, 219 (2d Cir. 2004) (Title
33 VII); Harris v. City of New York, 186 F.3d 243, 247 (2d Cir.
34 1999) (ADA); Hodge v. N.Y. Coll. of Podiatric Med., 157 F.3d
35 164, 166 (2d Cir. 1998) (ADEA). Wade’s EEOC notice was
36 filed exactly 300 days after her termination; accordingly,
37 Wade’s claims arising out of pre-termination conduct are
38 untimely, as the district court ruled. “[D]iscrete
39 discriminatory acts are not actionable if time barred, even
40 when they are related to acts alleged in timely filed
41 charges.” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S.
42 101, 113 (2002). The district court was similarly correct
43 to grant summary judgment on Wade’s NYSHRL and NYCHRL claims
44 because Wade filed those claims outside the prescribed one-
45 year statute of limitations applicable to claims against
46 these defendants. See N.Y. EDUC. Law § 3813 2-b.
47
2
1 Wade’s failure-to-accommodate claim based on her
2 inability to procure a chair with lumbar support fails
3 because nothing in the record shows that Wade put her
4 employer on notice of her foot surgery with the requisite
5 medical documentation. See McBride v. BIC Consumer Prods.
6 Mfg. Co. Inc., 583 F.3d 92, 97 (2d Cir. 2009).
7
8 Wade’s only remaining claims are her Title VII, ADEA,
9 and ADA claims stemming from her termination of her
10 probationary employment. For all three claims, the burden-
11 shifting framework in McDonnell Douglas Corp. v. Green, 411
12 U.S. 792, 802-04 (1973) applies. See McBride, 583 F.3d at
13 96 (ADA); D’Cunha v. Genovese/Eckerd Corp., 479 F.3d 193,
14 194-95 (2d Cir. 2007) (ADEA); Weinstock v. Columbia Univ.,
15 224 F.3d 33, 42 (2d Cir. 2000) (Title VII). Here,
16 defendants have articulated a “legitimate, nondiscriminatory
17 reason” for Wade’s termination–-namely reports that Wade
18 verbally abused students, reports that were eventually
19 substantiated by the Chancellor’s Office of Special
20 Investigation. McDonnell Douglas, 411 U.S. at 802. Wade’s
21 failure to adduce evidence that this proffered explanation
22 was pretextual is fatal to all three claims. The EEOC, in
23 an amicus brief, argues powerfully that Wade’s breast cancer
24 constitutes a disability under the ADA, and indeed Wade
25 would qualify under the ADA even if the employer perceived
26 her as disabled. But that, like Wade’s disagreement with
27 the findings of the investigation, is immaterial. See
28 McPherson v. New York City Dep’t of Educ., 457 F.3d 211, 216
29 (2d Cir. 2006) (“In a discrimination case, however, we are
30 decidedly not interested in the truth of the allegations
31 against plaintiff. We are interested in what ‘motivated the
32 employer’; the factual validity of the underlying imputation
33 against the employee is not at issue.” (emphasis in
34 original) (citation omitted) (quoting U.S. Postal Serv. Bd.
35 of Governors v. Aikens, 460 U.S. 711, 716 (1983))).
36
37 For the foregoing reasons, and finding no merit in
38 Wade’s other arguments, we hereby AFFIRM the judgment of the
39 district court.
40
41
42 FOR THE COURT:
43 CATHERINE O’HAGAN WOLFE, CLERK
44
3