Jones v. City of New York ( 2023 )

22-1867-pr
Jones v. City of New York
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 25th day of September, two thousand
twenty-three.
PRESENT:
REENA RAGGI,
RAYMOND J. LOHIER, JR.,
SUSAN L. CARNEY,
Circuit Judges.
_____________________________________
Erin Jones,
Plaintiff-Appellant, 22-1867
v.
The City of New York,
Defendant-Appellee.
_____________________________________
FOR PLAINTIFF-APPELLANT: Erin Jones, pro se, Ozone Park, NY.
FOR DEFENDANT-APPELLEE: Deborah A. Brenner, Karin Wolfe,
Assistant Corporation Counsel, for
Sylvia O. Hinds-Radix, Corporation
Counsel of the City of New York,
New York, NY.
Appeal from a judgment of the United States District Court for the
Southern District of New York (Analisa Torres, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the District Court is AFFIRMED.
Appellant Erin Jones sued her former employer, the City of New York
(the City), under the Americans with Disabilities Act (ADA), the New York
State Human Rights Law (NYSHRL), and the New York City Human Rights
Law (NYCHRL), alleging failure to accommodate her disability, discrimination
based on that disability, and retaliation based on her request for an
accommodation. Jones, who worked as a secretary with the New York City
Police Department (NYPD), alleged that she was denied a reasonable
accommodation for her respiratory and cardiac conditions, fired because of her
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disability, and retaliated against for filing a charge with the Equal Employment
Opportunity Commission (EEOC). The District Court granted partial
summary judgment to the City on the discrimination and retaliation claims, but
determined that triable issues of fact existed with respect to her failure to
accommodate claim. After trial, at which Jones was represented by pro bono
counsel, the jury returned a verdict in favor of the City. The District Court
entered judgment on July 27, 2022. Jones appeals pro se, challenging both the
summary judgment decision and purported errors committed by the District
Court at trial. We assume the parties’ familiarity with the underlying facts
and the record of prior proceedings, to which we refer only as necessary to
explain our decision to affirm.
I. Summary Judgment
We review a grant of summary judgment de novo, “resolv[ing] all
ambiguities and draw[ing] all inferences against the moving party.” Garcia v.
Hartford Police Dep’t, 706 F.3d 120, 126–27 (2d Cir. 2013). “Summary judgment
is proper only when, construing the evidence in the light most favorable to the
non-movant, ‘there is no genuine dispute as to any material fact and the
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movant is entitled to judgment as a matter of law.’” Doninger v. Niehoff, 642
F.3d 334, 344 (2d Cir. 2011) (quoting Fed. R. Civ. P. 56(a)).
A. Disparate Treatment
The District Court properly granted summary judgment in favor of the
City on Jones’s disparate treatment claims. Claims alleging disparate
treatment under the ADA, NYSHRL, and NYCHRL are analyzed under the
familiar McDonnell Douglas burden-shifting framework. 1 See Ferraro v.
Kellwood Co, 440 F.3d 96, 99 (2d Cir. 2006). This standard first requires the
plaintiff to “establish a prima facie case of discrimination.” Fox v. Costco
Wholesale Corp., 918 F.3d 65, 71 (2d Cir. 2019). To make a prima facie case of
discrimination, the plaintiff must show that: (1) her employer is subject to the
relevant federal, state, or local law, (2) she is disabled within the meaning of
1
“[C]ourts must analyze NYCHRL claims separately and independently from any
federal and state law claims, construing the NYCHRL’s provisions broadly in favor of
discrimination plaintiffs, to the extent that such a construction is reasonably possible.”
Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d 102, 109 (2d Cir.
2013) (quotation marks and citations omitted). Accordingly, NYCHRL claims “must
be analyzed under both the familiar framework of McDonnell Douglas . . . and under
the newer mixed motive framework, which imposes a lesser burden on a plaintiff
opposing such a motion.” Bilitch v. New York City Health & Hosps. Corp., 148 N.Y.S.3d
238, 244 (2d Dep’t 2021) (quotation marks and citations omitted).
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those laws, (3) she is otherwise qualified to perform the essential functions of
her job with or without a reasonable accommodation, and (4) she suffered an
adverse employment action because of her disability. Id.; see McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802–04 (1973). Once the plaintiff
establishes a prima facie case, the employer must demonstrate a legitimate,
non-discriminatory reason for the adverse employment decision. Fox, 918 F.3d
at 71. If the employer meets this burden, the plaintiff must demonstrate that
the employer’s proffered reason is a pretext and that the real reason is
discriminatory. Id. If the plaintiff fails to do so, the employer is entitled to
summary judgment. See James v. N.Y. Racing Ass’n, 233 F.3d 149, 154 (2d Cir.
2000).
Even assuming Jones established a prima facie case of disability
discrimination, the City proffered a legitimate, nondiscriminatory reason for
her termination. New York Civil Service Law § 73 “governs separations and
reinstatements of employees who are disabled by other than an occupational
disease or injury.” Duncan v. N.Y. Dev. Ctr., 63 N.Y.2d 128, 134 (1984); see N.Y.
Civ. Serv. Law § 73. The statute provides that “[w]hen an employee has been
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continuously absent from and unable to perform the duties of h[er] position for
one year or more by reason of a disability, . . . h[er] employment status may be
terminated and h[er] position may be filled by a permanent appointment.”).
According to the City, Jones was fired under § 73 because she failed to resume
her duties as a secretary for more than one year. Jones took a leave of absence
in July 2015 and was scheduled to return in July 2016 but never did so. The
City thus proffered a legitimate, non-discriminatory reason for terminating
Jones in compliance with § 73.
Jones responds that she was able to perform the functions of her job as
required under § 73 and that she should not have been faulted for failing to
return to work within a year. But Jones failed to offer any evidence that the
City’s proffered reason for terminating her was pretextual and discriminatory.
We therefore affirm the District Court’s grant of summary judgment in favor of
the City on Jones’s claims that she was terminated in violation of the ADA,
NYSHRL, and NYCHRL.
B. Retaliation
The District Court also properly granted summary judgment to the City
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on Jones’s retaliation claims. A claim of retaliation under the ADA requires an
employee to “show that [s]he engaged in a protected activity, that [s]he
suffered an adverse employment action, and that a causal connection exists
between that protected activity and the adverse employment action.” Fox, 918
F.3d at 72–73. “The burden-shifting framework under McDonnell Douglas also
applies to retaliation claims under both the ADA and the NYSHRL.” Tafolla v.
Heilig, No. 21-2327, ___ F.4th ___, 2023 WL 5313520, at *10 (2d Cir. Aug. 18,
2023).
We agree with the District Court that Jones failed to adduce sufficient
evidence establishing that retaliation was the but-for cause of the denial of her
request for a reasonable accommodation or her termination. See Tafolla, 2023
WL 5313520, at *10. Jones argues that the short period of time between her
December 2016 EEOC charge and the January 2017 revocation of her temporary
accommodation and the May 2017 termination is sufficient, at this stage, to
establish causation. But the May 2017 termination occurred more than four
months after Jones filed her EEOC charge. This time period does not, by itself,
demonstrate a causal relationship between Jones’s protected activity and the
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adverse employment actions of which she complains. See Clark Cnty. Sch. Dist.
v. Breeden, 532 U.S. 268, 273–74 (2001) (noting that time periods greater than
three months can be insufficient to establish causal relationship). Jones does
not point to any other evidence in the record that demonstrates that the City
revoked her accommodation or terminated her for retaliatory reasons, as would
be required to prevail on her claim. See El Sayed v. Hilton Hotels Corp., 627 F.3d
931, 933 (2d Cir. 2010) (“The temporal proximity of events may give rise to an
inference of retaliation for the purposes of establishing a prima facie case . . .
but without more, such temporal proximity is insufficient to satisfy appellant’s
burden to bring forward some evidence of pretext.”).
As noted above, claims under the NYCHRL must be analyzed separately.
Mihalik v. Credit Agricole Cheuvreux N. Am. Inc., 715 F.3d 102, 109 (2d Cir. 2013).
Although the District Court did not separately analyze Jones’s NYCHRL
retaliation claim, we conclude that it did not err in granting summary judgment
to the City on that claim because, as discussed above, Jones failed to offer any
evidence of a retaliatory motive.
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II. Trial
A. Sufficiency of the Evidence
We likewise reject Jones’s challenge to the sufficiency of the evidence at
trial. “[A] party must raise a sufficiency-of-the-evidence claim in a post-trial
motion to preserve it for appeal.” Dupree v. Younger, 598 U.S. 729, 734 (2023).
Because Jones never filed such a motion before the District Court, we will not
review her challenge on appeal.
Even if she had preserved this issue, however, she would not be entitled
to relief from judgment because the record reveals that the jury’s verdict was
supported by sufficient evidence. See Highland Cap. Mgmt. LP v. Schneider, 607
F.3d 322, 326 (2d Cir. 2010). At trial, Sergeant Mayo and Staff Analyst
Atkinson testified that Jones was granted, on a temporary basis, the
accommodations she had requested and that these accommodations would
have been extended if she had returned to work and submitted additional
information about her medical condition. In light of this evidence, which we
must assume the jury credited, the jury reasonably found that the City offered
Jones a reasonable accommodation.
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B. Evidentiary Rulings
Finally, Jones challenges the District Court’s admission of certain
evidence. We review the District Court’s evidentiary rulings at trial for abuse
of discretion and will reverse only for manifest error. Cameron v. City of New
York, 598 F.3d 50, 61 (2d Cir. 2010). We find no such error here. In particular,
the District Court properly admitted communication reports introduced
through witness Sergeant Rebecca Mayo, whose testimony laid a proper
foundation for admitting the reports as business records. Ret. Plan of UNITE
HERE Nat. Ret. Fund v. Kombassan Holding A.S., 629 F.3d 282, 289 (2d Cir. 2010)
(quotation marks omitted) (A “custodian or other qualified witness must testify
that the document was kept in the course of a regularly conducted business
activity and also that it was the regular practice of that business activity to
make the record.”). Sergeant Mayo was not further required to show that the
business records were on official letterhead with supervisory signatures or
agency timestamps, or were authorized by the NYPD Police Commissioner.
Nor did the District Court err by permitting testimony related to Jones’s
request for an accommodation in 2014, even though the District Court had
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concluded that Jones’s claim relating to that request was time barred. Jones’s
counsel did not object to this testimony and, in any event, conduct that falls
outside the statute of limitations can be referenced as “background evidence”
relating to a "timely claim.” National R.R. Passenger Corp. v. Morgan, 536 U.S.
101, 113 (2002).
* * *
We have considered Jones’s remaining arguments and conclude that they
are without merit. For the foregoing reasons, the judgment of the District
Court is AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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