Colleen Dolac v. County of Erie

20-2044
Colleen Dolac v. County of Erie, 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
12th day of November, two thousand twenty one.
Present: DENNIS JACOBS,
ROSEMARY S. POOLER,
Circuit Judges.
DIANE GUJARATI, 1
District Judge.
_____________________________________________________
COLLEEN DOLAC,
Plaintiff-Appellant,
v. 20-2044-cv
COUNTY OF ERIE, ERIE COUNTY SHERIFF’S OFFICE,
AKA ERIE COUNTY SHERIFF’S DEPARTMENT, CHRISTA
CUTRONA, RN, MSN DIRECTOR OF CORRECTIONAL
HEALTH ESCO, IN HER OFFICIAL CAPACITY, MICHAEL
REARDON, FIRST DEPUTY SUPERINTENDENT OF
COMPLIANCE FOR THE ERIE COUNTY SHERIFF’S
DEPARTMENT, IN HIS OFFICIAL CAPACITY,
Defendants-Appellees.
_____________________________________________________
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Judge Diane Gujarati, United States District Court for the Eastern District of New York, sitting
by designation.
Appearing for Appellant: Raymond P. Kot, II, Williamsville, N.Y.
Appearing for Appellee: Daniel A. Spitzer, Hodgson Russ LLP (Pauline T. Muto, on the
brief), Buffalo, N.Y.
Appeal from the United States District Court for the Western District of New York (Sinatra, J.).
ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.
Colleen Dolac appeals from the June 1, 2020 judgment of the United States District
Court for the Western District of New York (Sinatra, J.), granting Defendants County of Erie,
Erie County Sheriff’s Office, Christa Cutrona, and Michael Reardon’s motion to dismiss
pursuant to Federal Rule of Civil Procedure 12(b)(6) and denying Dolac leave to amend her
complaint. We assume the parties’ familiarity with the underlying facts, procedural history, and
specification of issues for review.
Dolac concedes that her original complaint was deficient as a matter of law and does not
dispute that the district court’s dismissal was proper. Rather, Dolac argues that the district court
abused its discretion when it denied her motion for leave to amend her complain on the ground
that the amendments would be futile. Although we generally review determinations for denial of
leave to amend for abuse of discretion, “where the determination is based upon a legal
interpretation, de novo review is appropriate.” Mortimer Off Shore Services, Ltd. v. Fed.
Republic of Germany, 615 F.3d 97, 114 (2d Cir. 2010) (citation omitted). “It is well-established
that ‘[o]ne good reason to deny leave to amend is when such leave would be futile,’ specifically
when ‘the additional information d[oes] not cure the complaint.’” Id. (alterations in original)
(quoting Acito v. IMCERA Group, Inc., 47 F.3d 47, 55 (2d Cir.1995)). Therefore, we review de
novo a district court’s denial of leave to amend on the ground of futility. Smith v. Hogan, 794
F.3d 249, 253 (2d Cir. 2015).
Dolac’s first argument that the district court applied the wrong standard in denying leave
to amend is without merit. The district court properly reviewed the proposed amended
complaints pursuant to a Rule 15(a) standard but concluded that Dolac’s proposed amendments
were futile. See Dolac v. County of Erie, 17-cv-1214 (JLS), 2020 WL 2840071, at *2 (W.D.N.Y.
June 1, 2020).
Dolac’s substantive arguments are similarly without merit. To establish a prima facie
claim for failure to reasonably accommodate under the Americans with Disabilities Act, 42
U.S.C. § 12101 et seq. (“ADA”), a plaintiff must allege that: “(1) plaintiff is a person with a
disability under the meaning of the ADA; (2) an employer covered by the statute had notice of
[her] disability; (3) with reasonable accommodation, plaintiff could perform the essential
functions of the job at issue; and (4) the employer has refused to make such accommodations.”
McMillan v. City of New York, 711 F.3d 120, 125–26 (2d Cir. 2013) (quoting McBride v. BIC
Consumer Prods. Mfg. Co.,, 583 F.3d 92, 97 (2d Cir. 2009)).
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Dolac’s proposed amendments to her complaint fail to set out a prima facie claim under
the ADA. “[G]enerally, 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 & Hosp. Corp., 951
F.3d 77, 81 (2d Cir. 2020) (alteration in original) (quoting Graves v. Finch Pruyn & Co., 457
F.3d 181, 184 (2d Cir. 2006)). “[W]here ‘the disability is obvious—which is to say, if the
employer knew or reasonably should have known that the employee was disabled,’ the employer
is obligated to engage in ‘an interactive process with their employees and in that way work
together to assess whether an employee’s disability can be reasonably accommodated.’” Id.(quoting Brady v. Wal-Mart Stores, Inc., 531 F.3d 127, 135 (2d Cir. 2008)). But to trigger the
duty to engage in the interactive accommodations process, “the employer must have known, or
have had sufficient notice such that the employer reasonably should have known, that the
employee has a disability within the meaning of the Act, as opposed to a mere impairment.” Id.The allegations and attached exhibits of the proposed amended complaint fail to state a
prima facie claim. The proposed amended complaint fails to state a prima facie claim because
Dolac did not allege that she had a disability, or that she identified a disability to her employer,
or sought an accommodation. The allegations indicate no mote than that Dolac submitted three
faxed notes from a nurse practitioner stating “off work DBL,” “continue DBL,” and “continue
disability.” There is no allegation that the Department received any further information, or that
Dolac responded to any inquiries from the Department. In Costabile, we held that although the
plaintiff was sending regular updates to his employer, the plaintiff at most “alleged that his
doctor informed Defendants that his condition required leave. We cannot reasonably infer from
that general allegation that the updates adequately informed Defendants about the nature of
Plaintiff's condition such that Defendants should have known he was disabled and that Plaintiff
was thereby excused from the requirement that he request an accommodation.” Costabile, 951
F.3d at 82. Here, Dolac alleges she sent three notes and the exhibits appear to indicate she
refused to engage in further communication. In her briefing, Dolac argues that she was suffering
from extreme stress and therefore could not communicate with her employer. But she cites to no
cases that support her proposition that she did not have to communicate with her employer. Her
interpretation would put the onus on the employer to determine whether its employee was
suffering from a disability and then inquire as to what accommodation the employee would
seek—actions not required by either the statute or case law.
Dolac also brings a claim for associational discrimination under the ADA, which
prohibits, inter alia, “excluding or otherwise denying equal jobs or benefits to a qualified
individual because of the known disability of an individual with whom the qualified individual is
known to have a relationship or association . . . .” 42 U.S.C. § 12112(b)(4). To sustain an
“associational discrimination” claim, a plaintiff must plausibly allege: “1) that she was qualified
for the job at the time of adverse employment action; 2) that she was subjected to adverse
employment action; 3) that she was known at the time to have a relative or associate with a
disability; and 4) that the adverse employment action occurred under circumstances raising a
reasonable inference that the disability of the relative or associate was a determining factor in the
employer's decision.” Graziadio v. Culinary Inst. of Am., 817 F.3d 415, 432 (2d Cir. 2016).
Dolac alleges a claim of associational discrimination under the expense theory, which
may arise when “an employee suffers adverse action because of his association with a disabled
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individual covered by the employer's insurance, which the employer believes (rightly or
wrongly) will be costly.” Id. (quoting Larimer v. Int’l Bus. Mach. Corp., 370 F.3d 698, 700 (7th
Cir. 2004)).
Dolac’s proposed second amended complaint alleges that defendants terminated her
position “to save what it considered a sizeable sum of money for extended sick leave
compensation for Plaintiff and health insurance payouts for Plaintiff’s terminally ill husband’s
medical bills.” Dolac further alleges that the Sheriff’s Department “had access to her
employment file” and was “aware at all times relevant to this case that Plaintiff possessed health
insurance coverage that provided benefits to her terminally ill husband and due to the nature of
his illness, metastatic cancer, the cost of health insurance benefits to Plaintiff’s husband was a
significant expense to their [sic] employer.” But beyond these conclusory allegations, Dolac does
not allege that defendants knew about her husband’s medical expenses or that they were a
motivating factor in her termination. Without more, Dolac’s proposed amendments are futile.
Dolac also seeks to plead a disability retaliation claim. To establish a prima facie case of
retaliation, a plaintiff must plead that: (1) she engaged in an activity protected by the ADA; (2)
the employer was aware of this activity; (3) the employer took adverse employment action
against her; 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). Requesting a
reasonable accommodation for a disability constitutes a protected activity under the ADA.
Weixel v. Bd. of Educ. of N.Y., 287 F.3d 138, 149 (2d Cir. 2002). A “‘reasonable
accommodation’ is one that gives the otherwise qualified plaintiff with disabilities ‘meaningful
access’ to the program or services sought.” Henrietta D. v. Bloomberg, 331 F.3d 261, 282 (2d
Cir. 2003) (citing Alexander v. Choate, 469 U.S. 287, 301 (1985)). Nevertheless, a “reasonable
accommodation” cannot “mean elimination of any of the job's essential functions.” Gilbert v.
Frank, 949 F.2d 637, 644 (2d Cir. 1991). Dolac suggests that the three faxed notes from a nurse
practitioner stating “off work DBL,” “continue DBL,” or “continue disability” constitute a
request for a reasonable accommodation. These notes provide no notice to the employer that
Plaintiff was disabled or that she was requesting a reasonable accommodation for a disability.
Finally, Dolac brings claims for age discrimination under the Age Discrimination in
Employment Act (“ADEA”), 29 U.S.C. § 621 et seq. In particular, she alleges that she and four
other registered nurses, all in their 50s and 60s, were employed at the Erie County Holding
Center, were wrongfully terminated, and then reinstated. Dolac was over the age of 40 years at
the time of the events alleged in her proposed second amended complaint. Plaintiff further
alleges that four registered nurses were hired in the recent past by the Department to work for the
Erie County Holding Center who were in their early 30s and late 20s.
The ADEA makes it “unlawful for an employer . . . to discharge any
individual . . . because of such individual's age.” 29 U.S.C. § 623(a). To prevail on an ADEA age
discrimination claim, it is not sufficient for a plaintiff to allege “that age was simply a motivating
factor” in the employer's adverse action. Lively v. WAFRA Investment Advisory Group Inc., 6
F.4th 293, 302–03 (2d Cir. 2021) (citing Gross v. FBL Fin. Servs., 557 U.S. 167, 174 (2009)).
Rather, to establish age discrimination under the ADEA, “a plaintiff must prove that age was the
‘but-for’ cause of the employer's adverse decision.” Id. at 303 (quoting Gross, 557 U.S. at 176).
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This but-for causation standard applies at the pleading stage, such that “to defeat a motion to
dismiss or a motion for judgment on the pleadings, an ADEA plaintiff must plausibly allege that
he would not have been terminated but for his age.” Id.Dolac’s allegations do not satisfy this standard. Much of Dolac’s briefing explains that
she would like the chance to replead so she can more clearly state the ages of the younger nurses
who allegedly replaced the older nurses. Such allegations fail to cure the fatal defect in her
pleading: the lack of any allegation that she was fired because of her age. Alleging that four older
nurses were fired and replaced by four younger nurses does not give rise to any inference that
Dolac herself was fired because of her age. “[T]he replacement of an older worker with a
younger worker or workers does not itself prove unlawful discrimination.” Fagan v. New York
State Elec. & Gas Corp., 186 F.3d 127, 134 (2d Cir. 1999). Without more, Dolac cannot plead a
viable age discrimination claim under the ADEA.
We have considered the remainder of Dolac’s arguments and find them to be without
merit. Accordingly, the judgment of the district court hereby is AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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