Frantti v. State of New York ( 2021 )

19-3999-cv
Frantti v. State of New York, 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.
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 9th day of March, two thousand twenty-one.
PRESENT: JOSÉ A. CABRANES,
REENA RAGGI,
Circuit Judges,
Lewis A. Kaplan,
District Judge. *
TRAVIS JARRETT FRANTTI,
Plaintiff-Appellant, 19-3999-cv
v.
STATE OF NEW YORK, SUSAN KNAPP, MARY BETH
LABATE, KAREN DAVIS, KAREN ORCUTT,
CHRISTOPHER AMADO, ROBERT MUJICA,
Defendants-Appellees.
FOR PLAINTIFF-APPELLANT: ALLEN A. SHOIKHETBROD, Tully Rinckey,
PLLC, Albany, NY.
Judge Lewis A. Kaplan, of the United States District Court for the Southern District of New
*
York, sitting by designation.
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FOR DEFENDANTS-APPELLEES: JOSEPH M. SPADOLA, Assistant Solicitor
General (Barbara D. Underwood, Solicitor
General; Andrea Oser, Deputy Solicitor
General; on the brief), for Letitia James,
Attorney General for the State of New
York, Albany, NY.
Appeal from a judgment of the United States District Court for the Northern District of
New York (David N. Hurd, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the District Court entered on October 30, 2019 is
AFFIRMED.
Travis Frantti (“Frantti”) sued his former employer, the State of New York, and various
employees and officials at the State Division of Budget and the Division of Criminal Justice Services
(jointly, “New York”), alleging discrimination and retaliation under Titles I and V of the Americans
with Disabilities Act (“ADA”), see 42 U.S.C. § 12101 et seq., and discrimination under Section 504 of
the Rehabilitation Act, see 29 U.S.C. § 794. The District Court granted summary judgment to New
York because, (1) as to Frantti’s discrimination claim, no reasonable accommodation would have
enabled him to perform the essential functions of his job; and, (2) as to Frantti’s retaliation claim, he
failed to oppose New York’s motion for summary judgment, and, in any event, there was no record
evidence that New York had taken an “adverse action” against him. We assume the parties’
familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.
We review a grant of summary judgment de novo. See Beckford v. Portuondo, 234 F.3d 128, 130
(2d Cir. 2000). In doing so, we “view the record in the light most favorable [to the non-moving
party].” Jackson v. Fed. Express, 766 F.3d 189, 192 (2d Cir. 2014). “Summary judgment may be granted
only if there is no genuine issue of material fact to be tried and the moving party is therefore entitled
to judgment as a matter of law.” Winter v. United States, 196 F.3d 339, 346 (2d Cir. 1999) (citing Fed.
R. Civ. P. 56(a)).
A. Local Rule 7.1(a)(3)
On appeal, Frantti argues that the District Court abused its discretion when it adopted New
York’s statement of undisputed material facts as true when Frantti, represented by counsel, “failed
to properly oppose the statement . . . in accordance with Local Rule 7.1(a)(3).” SPA 43. That rule
states, in relevant part, “The opposing party shall file a response to the [movant’s] Statement of
Material Facts.” N.D.N.Y. R. 7.1(a)(3) (2019). The rule also warns that “[t]he Court shall deem
admitted any properly supported facts set forth in the Statement of Material Facts that the opposing
party does not specifically controvert.” Id. (emphasis in original). But we have held that district
courts have “considerable latitude [to] fashion[] rules that will assist them in determining whether
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summary judgment is appropriate.” Amnesty America v. Town of West Hartford, 288 F.3d 467, 471 (2d
Cir. 2002). Such rules serve the interests of judicial economy, “streamlin[ing] the consideration of
summary judgment motions by freeing district courts from the need to hunt through voluminous
records without guidance from the parties.” Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 74 (2d Cir.
2001). While “[r]eliance on a party’s statement of undisputed facts may not be warranted where
those facts are unsupported by the record,” N.Y. State Teamsters Conf. Pension and Ret. Fund v. Express
Servs., Inc., 426 F.3d 640, 649 (2d Cir. 2005), the District Court here undertook its own thorough
review of the summary judgment record and found the defendants’ summary judgment filing to be
“properly supported,” SPA 45. Accordingly, we cannot find that the District Court abused its
discretion when it adopted New York’s statement of undisputed material facts.
B. Disability Discrimination Claim
In employment discrimination cases, “the plaintiff has the burden of proving by the
preponderance of the evidence a prima facie case of discrimination.” Texas Dep’t of Cmty. Affs. v.
Burdine, 450 U.S. 248, 252–53 (1981). ADA and Rehabilitation Act claims are governed under the
familiar burden-shifting analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
Both the ADA and the Rehabilitation Act require employers to make “reasonable accommodations
to the known physical or mental limitations of an otherwise qualified individual.” McBride v. BIC
Consumer Prods. Mfg. Co., 583 F.3d 92, 96 (2d Cir. 2009) (quoting 42 U.S.C. § 12112(b)(5)(A)). To
establish a prima facie case for failure to accommodate, a plaintiff must show (1) he is a “person
with a disability;” (2) “an employer covered by the statute had notice of his disability;” (3) “with
reasonable accommodation, [he] could perform the essential functions of the job;” and (4) “the
employer . . . refused to make such accommodations.” Id. at 97.
Not all accommodations are reasonable, however. As the quoted language indicates, an
accommodation “is not reasonable if it, in essence, requires an employer to eliminate an essential
function of a job.” Rodal v. Anesthesia Grp. of Onondaga, P.C., 369 F.3d 113, 120 (2d Cir. 2004).
“Although the term ‘essential functions’ is not defined by the ADA, regulations promulgated by the
Equal Employment Opportunity Commission . . . indicate that it encompasses ‘the fundamental job
duties of the employment position.’” McBride, 583 F.3d at 98 (quoting 29 C.F.R. § 1630(2)(n)(1)). “In
approaching this inquiry, a court must give considerable deference to an employer’s judgment
regarding what functions are essential for service in a particular position.” Shannon v. New York City
Transit Auth., 332 F.3d 95, 100 (2d Cir. 2003) (internal quotation marks and alterations omitted). It
may also consider as evidence “written job descriptions, the amount of time spent on the job
performing the function, and the consequences of not requiring the plaintiff to perform the
function.” Rodal, 369 F.3d 120–21.
Assuming that Frantti has established that (1) he has a disability and (2) New York had
notice of his disability, our review of the record reveals that Frantti has not raised a genuine issue of
material fact with respect to his ability to perform the essential functions of his job even with
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reasonable accommodations. In his brief, Frantti identifies as reasonable accommodations being
allowed to work remotely from home or an alternative work schedule. Appellant’s Br. at 42-45. But,
as the District Court noted, the undisputed evidence indicated that Frantti’s job required him “to
perform involved analysis on complex, collaborative projects that unfolded over long periods of
time.” SPA 49 (internal quotation marks omitted). He also needed to be “in the office and available
on a consistent basis, for assignments” and to communicate with co-workers and other parties. Id.His employer, the Division of Criminal Justice Services, could not technically accommodate remote
work—quaint as that may seem to us now during this extraordinary era of pandemic-necessitated
remote work. Moreover, record evidence of Frantti’s extensive absences from work and his
incapacitation even at home, indicates that his gastrointestinal illness was so severe that he could not
work with regularity, even with his suggested accommodations.
Finally, we can find no evidence in the record that Frantti requested these accommodations
from his employer. We have held that “it is the responsibility of the individual with a disability to
inform the employer that an accommodation is needed.” Costabile v. N.Y.C. Health & Hosps. Corp.,
951 F.3d 77, 81 (2d Cir. 2020). In his brief, Frantti points to an email he sent to Human Resources
“to explore the possibility of a modified work schedule,” but he identifies nothing in the record
showing that he followed up after Human Resources directed him to online information about New
York’s policies and provided him with a copy of the application. Appellant’s Br. at 29. Later, after
Frantti identified the psychological root of his gastrointestinal symptoms, he resigned instead of
seeking accommodations. Accordingly, Frantti has also failed to raise a genuine issue of material fact
with respect to whether New York “refused” to make accommodations. McBride, 583 F.3d at 97.
C. Retaliation
Finally, Frantti argues both that he did not abandon any retaliation claim before the District
Court and that he established a prima facie case of retaliation. We disagree with respect to both
arguments.
First, Frantti did not brief his retaliation claim in opposition to New York’s motion for
summary judgment. “[I]t is a well-established rule that an appellate court will not consider an issue
raised for the first time on appeal.” Greene v. United States, 13 F.3d 577, 586 (2d Cir. 1994). While we
may exercise our discretion to consider forfeited arguments, the circumstances “normally do not
militate in favor of an exercise of discretion to address new arguments on appeal where those
arguments were available to the parties below and they proffer no reason for their failure to raise the
arguments below.” Bogle-Assegai v. Connecticut, 470 F.3d 498, 504 (2d Cir. 2006) (quotation marks and
alterations omitted).
But even if we were to consider Frantti’s retaliation claim, it would fail. Like discrimination
claims, retaliation claims are analyzed using the McDonnell Douglas burden-shifting framework.
Lovejoy-Wilson v. NOCO Motor Fuel, Inc., 263 F.3d 208, 223 (2d Cir. 2001). To establish a prima facie
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case of retaliation, Frantti must show that: “(1) he engaged in an activity protected by the ADA;
(2) the employer was aware of this activity; (3) the employer took adverse employment action against
him; and (4) a causal connection exists between the alleged adverse action and the protected
activity.” Treglia v. Town of Manlius, 313 F.3d 713, 719 (2d Cir. 2002). Once a plaintiff establishes a
prima facie case, the burden then shifts to the defendant to articulate a legitimate non-retaliatory
reason for the challenged employment action. If the defendant meets the burden, the plaintiff must
adduce evidence “that would be sufficient to permit a rational factfinder to conclude that the
employer’s explanation is merely a pretext for impermissible retaliation.” Id. at 721.
In support of his retaliation claim, Frantti cites as an example of protected activity a January
2014 email he sent seeking reassignment to the Division of Budget. The email does not constitute a
“protected” activity, however, because Frantti there neither complains of discrimination nor seeks
an accommodation. See, e.g., id. at 720 (“[A]ttempts to assert [] rights against discrimination are
protected activities”); Weixel v. Bd. of Educ. of City of N.Y., 287 F.3d 138, 149 (2d Cir. 2002)
(“[S]eeking reasonable accommodation . . . constitutes protected activity under Section 504/ADA.”).
Because the January 2014 email was not a protected activity, the two adverse actions Frantti cites—a
“disciplinary meeting” in January 2014 and Frantti’s placement on “documentation status” in March
2014—cannot support his claim because the “causal connection needed for a proof of retaliation
claim” requires “showing that the protected activity was . . . followed in time by the adverse action.”
Cifra v. G.E. Co., 252 F.3d 205, 217 (2d Cir. 2001) (quotation marks omitted) (emphasis added).
Frantti also identifies discrimination complaints that he filed from May to September 2015 as
protected activities. There is no triable issue, however, regarding whether the adverse actions Frantti
complains of from 2015—including (1) the denial of his “General Salary Increase and Performance
Advance,” (2) his “below-expectations performance evaluation,” and (3) the docking of his pay
following undocumented work absences—are causally connected to these 2015 complaints. As the
District Court correctly observed, Frantti’s employer applied the same absence and tardiness policies
to him before and after his 2015 complaints. Moreover, “[w]here timing is the only basis for a claim
of retaliation, and gradual adverse job actions began well before the plaintiff had ever engaged in any
protected activity, an inference of retaliation does not arise.” Slattery v. Swiss Reins. Am. Corp., 248
F.3d 87, 95 (2d Cir. 2001) (rejecting retaliation claim where allegedly adverse actions “were both
part, and the ultimate product, of an extensive period of progressive discipline, which began . . . a
full five months prior to [plaintiff’s] filing of the EEOC charges” (quotation marks and emphasis
omitted)). Accordingly, Frantti has also failed to raise a genuine issue of material fact as to his
retaliation claim.
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CONCLUSION
We have reviewed all of the arguments raised by Frantti on appeal and find them to be
without merit. For the foregoing reasons, we AFFIRM the October 30, 2020 judgment of the
District Court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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