Cite as: Stephan v. West Irondequoit Central School District, 11-300-cv., NYLJ 1202578178786, at *1 (App. Div., 2nd, Decided December 13, 2011)

Before: Jon O. Newman, Ralph K. Winter, Robert A. Katzmann, C.JJ.

Decided: December 13, 2011

ATTORNEYS

For Plaintiff-Appellant: Bryan D. Hetherington (Jonathan Feldman, Bernard F. Sheehan, of counsel, Karun Ahuja, Law Student, on the brief), Empire Justice Center, Rochester, N.Y.

For Defendant-Appellee: Michael P. McClaren (Ryan G. Smith, on the brief), Webster Szanyi LLP, Buffalo, N.Y.

For the National Disability Rights Network, for Amicus Curiae: Susan J. Pappy, White & Case LLP, New York, N.Y.

SUMMARY ORDER

 

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ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

Plaintiff-appellant Crystal M. Stephan ("Stephan") appeals from a final judgment entered on January 5, 2011 by the United States District Court for the Western District of New York (Larimer, J.), in favor of defendant West Irondequoit Central School District (the "District"), based on a January 4, 2011 decision and order in which the district court granted defendant's motion for summary judgment in its entirety and dismissed Stephan's complaint with prejudice. We assume the parties' familiarity with the facts and procedural history of the case.

We review a district court's grant of summary judgment de novo. Opals on Ice Lingerie, Designs by Bernadette, Inc. v. Body Lines Inc., 320 F.3d 362, 367-68 (2d Cir. 2003). A district court must grant summary judgment if "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

The ADA "prohibits discrimination against any `qualified individual with a disability because of the disability of such individual in regard to,' inter alia, `discharge of employees.'" Giordano v. City of New York, 274 F.3d 740, 747 (2d Cir. 2001) (quoting 42 U.S.C. §12112(a)).1 Plaintiff's claims of employment discrimination are subject to the burden-shifting analysis articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973). First, a plaintiff must show that:

 

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(1) h[er] employer is subject to the ADA; (2) [s]he was disabled within the meaning of the ADA; (3) [s]he was otherwise qualified to perform the essential functions of h[er] job, with or without reasonable accommodation; and (4) [s]he suffered adverse employment action because of h[er] disability.

Giordano, 274 F.3d at 747. "[T]he standards adopted by Titles II and III of the ADA are, in most cases, the same as those required under the Rehabilitation Act." Powell v. Nat'l Bd. of Medical Exam'rs, 364 F.3d 79, 85 (2d Cir. 2004). Once a plaintiff has established a prima facie case, the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for the adverse employment action. See James v. New York Racing Ass'n, 233 F.3d 149, 154 (2d Cir. 2000). The burden then returns to the plaintiff to furnish evidence that the reason offered by the employer is a pretext. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507-08 (1993).

As a threshold matter, in order for Stephan to survive summary judgment on her discrimination claims, as well as her failure to accommodate and hostile work environment claims, there must be sufficient evidence in the record from which a reasonable jury could find that Stephan is disabled within the meaning of the ADA. Under the ADA, a disability means: "(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment." EEOC v. J.B. Hunt Transp., Inc., 321 F.3d 69, 74 (2d Cir. 2003) (quoting 42 U.S.C. §12102(2)).

Here, we conclude that the district court properly granted the District summary judgment on Stephan's discrimination claims, including her failure to accommodate claim and hostile work environment claim. As we observed in Bartlett v. New York State Bd. of Law Exam'rs, 226 F.3d 69 (2d Cir. 2000), there must be a "causal `nexus' between [the plaintiff's] impairment and her purported substantial limitation with respect to [a major life activity]," id. at 82, and, here, there is insufficient evidence that Stephan's alleged disability substantially limits her ability to perform a major life activity. The school records presented by Stephan point merely to an unspecified learning disability as opposed to a medically diagnosed impairment, and while Stephan testified that she has difficulty remembering appointments and paying bills, these problems alone do not demonstrate that Stephan is substantially limited in a major life activity as compared to most people. See, e.g., E.E.O.C. v. Sara Lee Corp., 237 F.3d 349, 353 (4th Cir. 2001) (holding that occasional forgetfulness is not a substantial limitation as "many…adults in the general population suffer from a few incidents of forgetfulness a week, and indeed must write things down in order to remember them"). As to Stephan's theory that she was regarded as disabled, although Stephan has testified that her supervisor, Lisa Gianforte, referred to her by derogatory names, such as "retard," "Special Edna," and "Crystal Meth," see J.A. 360-64, 386-87, because Gianforte did not have ultimate authority over hiring or firing decisions, these comments are insufficient to demonstrate that Stephan's employer regarded her as disabled. See J.B. Hunt, 321 F.3d at 76 (noting that "comments[] made by people other than the ultimate hiring authorities[] simply are not sufficient" to indicate that the employer regarded job candidates as disabled).

Having concluded that there is insufficient evidence to establish that Stephan was disabled within the meaning of the ADA, we next turn to Stephan's retaliation claim. To prove a case of retaliation, the plaintiff must demonstrate that (1) she was engaged in an activity protected by the ADA; (2) the employer was aware of the activity; (3) an employment action adverse to the plaintiff occurred; and (4) there was a causal connection between the protected activity and the adverse employment action. See McMenemy v. City of Rochester, 241 F.3d 279, 282-83 (2d Cir. 2001). Here, the summary judgment record demonstrates that the District made the decision to fire Stephan before she filed any complaint with the District. While Stephan submitted her complaint to the District on January 24, 2007, email records confirm that the decision to terminate Stephan was made on January 19, 2007, just a few days after Stephan was witnessed giving away free food.2 Thus, because there was no causal connection between Stephan's protected activity and her termination, we affirm the district court's grant of summary judgment with respect to this claim as well.

 

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We have considered Stephan's remaining arguments and find them to be without merit. Accordingly, for the foregoing reasons, the judgment of the district court is AFFIRMED.

1. Although Congress amended the ADA in 2008 in order to expand its coverage, in this case we apply the version of the statute in effect during the time period at issue, which ended with Stephan's termination on February 13, 2007. See ADA Amendments Act of 2008, Pub. L. 110-325 §8, 112 Stat. 3553, 3559 (2008) (providing that ADA amendments "shall become effective on January 1, 2009").

2. While Stephan contends that she initially made a complaint either two months or five months before she was fired, she did not previously argue that this oral complaint constituted protected activity, and the argument is thus waived. Baker v. Dorfman, 239 F.3d 415, 423 (2d Cir. 2000).