Nixon-Tinkelman v. New York City Department of Health & Mental Hygiene , 434 F. App'x 17 ( 2011 )

10-3317-cv
Nixon-Tinkelman v. N.Y.C. Dep’t of Health & Mental Hygiene
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 Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of New
York, on the 10th day of August, two thousand eleven.
PRESENT:
BARRINGTON D. PARKER,
DENNY CHIN,
RAYMOND J. LOHIER, JR.,
Circuit Judges.
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BARBARA K. NIXON-TINKELMAN,
Plaintiff-Appellant,
-v.- 10-3317-cv
NEW YORK CITY DEPARTMENT OF HEALTH
AND MENTAL HYGIENE AND CITY OF
NEW YORK,
Defendants-Appellees.
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FOR PLAINTIFF-APPELLANT: ARNOLD H. PEDOWITZ, Pedowitz &
Meister, LLP, New York, New York.
FOR DEFENDANTS-APPELLEES: ELIZABETH I. FREEDMAN, Assistant
Corporation Counsel of the City of
New York (Francis F. Caputo,
Christopher A. Seacord, on the
brief), for Michael A. Cardozo,
Corporation Counsel of the City of
New York, New York, New York.
Appeal from the United States District Court for the
Southern District of New York (Jones, J.). UPON DUE
CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that
the judgment of the district court is AFFIRMED in part and
VACATED AND REMANDED in part.
Plaintiff-appellant Barbara K. Nixon-Tinkelman
("Tinkelman") appeals from the district court's grant of summary
judgment in favor of defendants-appellees New York City
Department of Health and Mental Hygiene ("DOHMH") and the City of
New York, on her claims that they discriminated against her on
account of her disabilities under the Americans with Disabilities
Act (the "ADA"), 42 U.S.C. §§ 12101 et seq., and Sections 501 and
504 of the Rehabilitation Act, 29 U.S.C. §§ 791 and 794.
Tinkelman, who is hearing impaired and suffers from cancer, heart
problems, and asthma, challenges the district court's
determination that she was not denied reasonable accommodations
on account of these disabilities.1 We assume the parties'
familiarity with the underlying facts, the procedural history of
the case, and the issues on appeal.
We review the grant of summary judgment de novo. See
Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d
Cir.), cert. denied, 540 U.S. 823 (2003). Summary judgment is
1
The district court also dismissed Tinkelman's
retaliation claims, including allegations that she was, for
retaliatory reasons, (1) denied a reasonable accommodation; (2)
"belittled"; and (3) given improper work assignments. Tinkelman
fails to brief sufficiently these issues on appeal. Therefore,
we consider them abandoned. Norton v. Sam's Club, 145 F.3d 114,
117 (2d Cir.), cert. denied, 525 U.S. 1001 (1998) ("Issues not
sufficiently argued in the briefs are considered waived and
normally will not be addressed on appeal.").
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appropriate only if "there is no genuine dispute as to any
material fact" and the moving party "is entitled to judgment as a
matter of law." Fed. R. Civ. P. 56(a).
Section 504 of the Rehabilitation Act, which applies to
defendants, provides that "'[n]o otherwise qualified individual
with a disability . . . shall, solely by reason of her or his
disability, be excluded from the participation in, be denied the
benefits of, or be subjected to discrimination under' any covered
program or activity." Powell v. Nat'l Bd. of Med. Exam'rs, 364
F.3d 79, 85 (2d Cir. 2004) (quoting 29 U.S.C. § 794(a)). To
establish a prima facie violation under Section 504, a plaintiff
must demonstrate: (1) she is a "qualified individual" with a
disability; (2) the defendants are subject to Section 504; and
(3) she was "denied the opportunity to participate in or benefit
from defendants' services, programs, or activities, or [was]
otherwise discriminated against by defendants, by reason of [her]
disabilit[y]." Id. (alterations in original) (quoting Henrietta
D. v. Bloomberg, 331 F.3d 261, 272 (2d Cir. 2003)).2
A plaintiff can base a discrimination claim on an
employer's failure to make a reasonable accommodation. Fulton v.
Goord, 591 F.3d 37, 43 (2d Cir. 2009) (citing Tsombanidis v. W.
Haven Fire Dep't, 352 F.3d 565, 573 (2d Cir. 2003)). The
Rehabilitation Act "prohibit[s] discrimination against qualified
disabled individuals by requiring that they receive 'reasonable
2
The defendants argue that Tinkelman is not a "qualified
individual" within the meaning of Section 504 of the
Rehabilitation Act. The district court, however, did not reach
this issue and we thus do not consider its merits.
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accommodations' that permit them to have access to and take a
meaningful part in . . . public accommodations." Powell, 364
F.3d at 85 (citing Henrietta D., 331 F.3d at 273; Felix v. N.Y.C.
Transit Auth., 324 F.3d 102, 104 (2d Cir. 2003)).
Two proposed accommodations are at issue here. First,
Tinkelman contends that defendants should have provided her with
a special telephone or device for the hearing impaired for the
thirteen months while she was stationed in Manhattan. Second,
after she was moved from Queens to Manhattan, she requested that
defendants accommodate her with respect to her commute to work.
We agree with the district court that Tinkelman's claim
based on her proposed accommodation, in the form of a special
telephone or device for the thirteen months in question, fails as
a matter of law. First, it is undisputed that Tinkelman did not
request a special telephone during the thirteen months in
question. While the failure to make a request is not fatal to a
claim for a reasonable accommodation, the failure to make a
request is a consideration because it is "'[g]enerally . . . 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)). Second,
when Tinkelman had previously asked for an amplification device,
she was given approval to purchase one and was subsequently
reimbursed. On another occasion as well, DOHMH provided
Tinkelman with a special telephone. Hence, when defendants had
previously been made aware of her needs, she was either
reimbursed for or furnished with a special telephone or device.
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Defendants' failure to spontaneously offer Tinkelman a special
telephone in the circumstances here did not constitute
discrimination. On this record, no reasonable jury could find
discriminatory intent with respect to the thirteen months in
question.
As for Tinkelman's second request, the district court
erred in granting summary judgment on the grounds that "commuting
falls outside the scope of [p]laintiff's job, and is thereby not
within the province of an employer's obligations under the ADA
and the Rehabilitation Act." Nixon-Tinkelman v. N.Y.C. Dep't of
Health & Mental Hygiene, No. 08-04509, slip op. at 28 (S.D.N.Y.
July 26, 2010). Our case law establishes that in certain
circumstances, an employer may have an obligation to assist in an
employee's commute. Indeed, this Court has stated that "there is
nothing inherently unreasonable . . . in requiring an employer to
furnish an otherwise qualified disabled employee with assistance
related to her ability to get to work." Lyons v. Legal Aid
Soc'y, 68 F.3d 1512, 1517 (2d Cir. 1995); accord DeRosa v. Nat'l
Envelope Corp., 595 F.3d 99, 104 (2d Cir. 2010) (suggesting that
employer had provided a reasonable accommodation by allowing
employee to work from home, which was "necessary to maintaining
his job").
Determining whether a particular commuting
accommodation is reasonable normally involves a fact-specific
inquiry. Lyons, 68 F.3d at 1517 (citing Borkowski v. Valley
Cent. Sch. Dist. 63 F.3d 131, 138-40 (2d Cir. 1995)). Here, the
district court erred because it concluded that an employer had no
obligation to assist in an employee's commute, when we have held
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that, in certain circumstances, such an obligation can exist. We
therefore remand for the district court to reconsider, in light
of the applicable law, whether it would have been reasonable for
defendants to provide assistance related to Tinkelman's ability
to get to work. Given that Tinkelman had worked for many years
in a more suitable location, for example, the district court
should have considered whether defendants could have reasonably
accommodated her needs simply by transferring her back to Queens
or another closer location, allowing her to work from home, or
providing a car or parking permit.
On remand, the district court shall consider factors
such as the number of employees employed by DOHMH, the number and
location of its offices, whether other available positions
existed for which Tinkelman showed that she was qualified,
whether she could have been shifted to a more convenient office
without unduly burdening DOHMH's operations, and the
reasonableness of allowing her to work without on-site
supervision. If the court determines that these issues may be
resolved without deciding disputed issues of fact, it need not
proceed to trial and may supplement the summary judgment decision
here appealed.
We therefore VACATE the district court's judgment with
respect to Tinkelman's request that defendants accommodate her
commute and REMAND for proceedings consistent with this opinion.
We AFFIRM the district court's judgment in all other respects.
FOR THE COURT:
CATHERINE O'HAGAN WOLFE, CLERK
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