MEMORANDUM DECISION AND ORDER
This case is before me on defendant’s motion for summary judgment. For the reasons set forth below, defendant’s motion is granted as to plaintiffs discrimination claim under the Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq., and granted in part and denied in part as to plaintiffs failure to accommodate claim under the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq.
BACKGROUND
The following facts are undisputed and are viewed in the light most favorable to plaintiff. Plaintiff is a special education teacher formerly employed by the Department of Education (“DOE”) at Fort Hamilton High School (“FHHS”) in Brooklyn, New York. Plaintiff began her employment with the DOE in September 1978 as a special education teacher, and was assigned to FHHS in September 1991. At the start of her career at FHHS, plaintiff was primarily assigned to teach math and science for five periods of “self-contained” classes, each with approximately 15 students. In or about 2003, until her retirement on June 30, 2014, plaintiff was assigned exclusively to teach “resource room.” Resource room is a class with eight students for every one instructor and operates as a tutorial for special education students. Plaintiffs duties included writing individualized education plans (“IEPs”), setting student goals, writing lesson plans, teaching, and administering and grading tests. Plaintiff normally taught five periods of resource room but, during the last two years of her employment, plaintiff taught six periods.
During the time period relevant to plaintiffs claims, Kaye Houlihan was the Principal of FHHS, and Christine Ciccarone was the Assistant Principal of the Instructional Support Services department and plaintiffs supervisor. The first time that plaintiff expressed her desire to retire in the somewhat near future occurred in February 2013 during a conversation with Cic-carone. At that time, a new system was being implemented which created additional paperwork, and plaintiff told Ciccarone, “Look, Cicc, I will try anything you want me to do. I just want to work five more
Ciccarone made no other comments to plaintiff or to others about plaintiffs age. Houlihan did not make comments about plaintiffs age or about anyone else’s age in plaintiffs presence, and plaintiff did not witness any other person at FHHS make age-related remarks besides Ciccarone.
Ciccarone observed plaintiffs lessons for the 2012-13 school year, which culminated in an annual performance review rating of “Satisfactory.” Ciccarone provided written feedback to plaintiff which commended her on discussing dates and tutoring with her students, incorporating study skills into her curriculum, and maintaining contact ■with students’ parents. Ciccarone also suggested areas in which plaintiff could improve, such as keeping consultation logs, revisiting weekly plans with students at the end of each week to allow students to reflect, and to rotating students’ seating arrangements to ensure equal access to plaintiff.
Beginning with the 2013-14 school year, all DOE schools, including FHHS, were required to adopt a new teacher evaluation system called “Advance.” Under Advance, teachers were to receive more frequent classroom observations than under the previous evaluation system with the aim of providing timely feedback and targeted support. Teachers were required to choose between two observation options, and would be scored in 22 teaching components on a four-point scale, with 1 being “Ineffective,” 2 being “Developing,” 3 being “Effective,” and 4 being “Highly Effective.”
Plaintiff chose the observation option under Advance that included a minimum of six informal, unannounced observations, each lasting at least 15 minutes. Ciccarone and Houlihan observed plaintiffs lessons and evaluated plaintiff under the Advance system using an evaluation form. Plaintiffs performance fluctuated throughout the 2013-14 school year. They rated plaintiff “Effective” on certain teaching components and rated “Developing” or “Ineffective” on others, with ratings for some components sometimes changing from lesson to lesson. Ciccarone and Houlihan also provided written feedback for these lessons, beginning with what appears to be the first informal observation of plaintiffs lesson on November 14, 2013, and ending with an observation on May 30, 2014. Plaintiff received an overall rating of “Developing” for the 2013-14 school year.
During the 2013-14 school year, plaintiff made requests to Houlihan, both personally and through representatives, for accommodations for the severe osteoarthritis plaintiff suffered in her knees. The first request was made by plaintiffs doctor, Dr. Bruce Garner, who sent a letter on October 9, 2013, to Houlihan requesting that plaintiff be excused, due to her disability, from participation in all Are drills involving stairs. Plaintiff, was not excused from Are drills altogether, but was permitted to find another teacher who would accompany plaintiffs class during fire drills so that plaintiff could exit the building on her own and at her own pace. Plaintiff found a
On or about March 21, 2014, plaintiffs union, on plaintiffs behalf, requested that plaintiff be assigned a parking space in the rear of FHHS. Plaintiff did not submit medical documentation in support of the request at that time, but believed there was medical documentation in her file. This would have included the documentation that she had submitted in relation to her request to be excused from fire drills. In addition, plaintiff had a handicapped parking permit and placard from the Parking Permits for People with Disabilities of the NYC Department of Transportation, which requires a medical assessment every other year.
The parking spot request was denied as unreasonable. Although there were no spaces designated as handicapped parking in the rear of the building, which also served as a delivery area, there were parking spaces. After the request was denied, plaintiff went to Houlihan to again ask for an accommodation, having heard that other employees had received parking in the rear of the school, and believing that Houl-ihan herself parked there. Plaintiff told Houlihan that she would like to park in the back of the school in one of the spaces, which would allow her to avoid steps altogether and to use her rollator.
Approximately one to two weeks after this conversation, Houlihan again denied plaintiffs request. Houlihan told plaintiff that her parking space would not be moved and that plaintiff, from her then-current parking space, would either need to use the employee entrance, which required plaintiff to go up the steps, or to use the handicapped accessible ramp to the main entrance of the building, which was used by approximately 4,000 students. The ramp also required plaintiff to walk a further distance and maneuver around gates. At the time, plaintiff was using a cane and a rollator, but could not use a rollator on the stairs; plaintiff testified that using the ramp or the steps was “brutal” and that she would be “wrecked for the rest of the day.” Plaintiff did not consider either of the two options feasible.
In addition to her duties during the regular school year, plaintiff was also available to teach summer school, and had done so for 31 consecutive years. Unlike during the school year, plaintiff had not taught resource room during the summer terms since 2010, but rather taught other subjects. On June 16, 2014, Houlihan extended an offer to plaintiff to teach school at FHHS for the 2014 summer term. Plaintiff had five business days to accept the offer. However, less than an hour later, plaintiff received another email stating that the offer had been withdrawn. Houli-han testified that there were no resource rooms available for that summer.
Also that spring, plaintiff received her tentative 2014-15 class schedule, which included a total of five periods, consisting of three resource room periods and two self-contained math periods. Two other resource room teachers were also tentatively assigned to teach self-contained classes.
Plaintiff raised the issue of her tentative 2014-15 class schedule in June 2014, when she told Houlihan that she was medically unable to teach both resource room and self-contained classes, because she believed that doing so would require her to
Plaintiff testified that she believed her schedule for the 2014-15 school year had changed because Houlihan and Ciccarone “wanted to change resource room,” and that it was “retaliation on [Houlihan’s] part, because [plaintiff] wanted a parking spot.” Plaintiff did not state that she believed the change in schedule was due to her age specifically, but stated that she knew Ciccarone wanted to get rid of her and that, despite being told that there were not enough resource room classes, there were enough students for 22 resource room classes, and thus enough for plaintiff to teach only resource room as she desired. Plaintiff did not believe that any other actions were taken against her because of her age.
During her deposition, plaintiff also stated that she knew she was retiring in February 2014, but that she had first intended to retire in September 2014. However, the union persuaded her to retire earlier to receive her back pay in one lump sum, and plaintiff therefore retired from the DOE with an effective date of June 30, 2014. After plaintiff retired, she filed a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”) on December 10, 2014, and received a Notice of Right to Sue letter on October 1, 2015.
Plaintiff filed this action on December 31, 2015, alleging that the DOE, Houlihan, ■ and Ciccarone had discriminated against her because of her age and failed to accommodate her disability in violation of 42 U.S.C. § 1983 and the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution; the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621, et seq.; and the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101, et seq. Plaintiff alleged that defendants’ conduct resulted in her retirement, which amounted to constructive discharge. Plaintiff also alleged a claim against the DOE under Monell v. Dep’t of Soc. Serv. of the City of New York,
On June 24, 2016,1 granted defendants’ unopposed motion to dismiss, dismissing plaintiffs claims against defendants Houli-han and Ciccarone and plaintiffs § 1983 claim.
DISCUSSION
Summary judgment is appropriate when “the movant shows that 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), and when “the record taken as a whole could not lead
The record must be construed in the light most favorable to plaintiff, Mihalik v. Credit Agricole Cheuvreux N. Am., Inc.,
I. Age Discrimination under the ADEA
Defendant first argues that plaintiffs claim under the ADEA must be dismissed because plaintiff cannot make out a prima facie case that she suffered an adverse employment action due to discrimination on the basis of her age. It is well-established that the burden-shifting framework set forth by the Supreme Court in McDonnell Douglas Corp. v. Green,
The Supreme Court’s decision in Gross v. FBL Financial Services, Inc.,
Once this burden is met, the defendant must then “articulate some legitimate, nondiscriminatory reason for its action.” Delaney,
The parties first dispute whether plaintiff suffered an adverse employment action under the third factor of McDonnell Douglas to establish a prima facie case of age discrimination. “[A] plaintiff may suffer an adverse employment action if she endures a materially adverse change in the terms and conditions of employment.” Richardson v. New York State Dep’t of
Plaintiff claims that she suffered three materially adverse changes in the terms and conditions of her employment: (1) downgraded performance evaluations; (2) the change in plaintiffs 2014-15 class schedule; and (3) the rescission of the offer to teach summer school for the summer 2014 term.
A. Adverse Employment Actions
1. Negative Performance Evaluations
Plaintiff argues that, after Cic-carone removed plaintiff as a school district representative for IEP meetings (an action that occurred outside the statute of limitations, and therefore does not constitute an adverse employment action for the purpose of her claim), Houlihan and Cic-carone began to downgrade plaintiffs ratings after informal observations. However, negative performance evaluations do not, without more, constitute adverse employment actions. Plaintiff attempts to argue that these negative evaluations “can lead to” disciplinary action, and possibly termination proceedings. Yet the evidence shows that plaintiff did not reach the necessary overall rating level that would lead to disciplinary action or termination proceedings. In fact, although plaintiff was downgraded to “Developing” and “Ineffective” for some of the teaching components, she also received some improved ratings over the same period.
Moreover, plaintiff does not allege any negative effect of the evaluations she was given, other than their existence in her file. “[I]t hardly needs saying that a criticism of an employee (which is part of training and necessary to allow employees to develop, improve and avoid discipline) is not an adverse employment action.” Weeks,
2. Tentative 20U-15 Class Schedule
Plaintiff also alleges that the 2014-15 change in class schedule was a materially adverse employment action because she was assigned three resource room classes and two self-contained classes, rather than five resource room classes. But she does not articulate how the change in her 2014-15 class schedule constitutes an adverse employment action. Plaintiff merely states that “the change is adverse” and that defendant was “contractually obligated” to offer plaintiff five resource room classes if they were available. But a contractual breach, even if present, does not alone mean that the change in the terms and conditions in plaintiffs employment was adverse. Nor can I decipher what makes
8. Rescission of Offer to Teach Summer School
However, although the negative performance evaluations and the tentative 2014-15 class schedule are not adverse employment actions, Houlihan’s rescission of the offer to teach summer was an adverse employment action. That Houlihan rescinded plaintiffs offer to teach summer school is undisputed. Plaintiff points to no actual adverse impacts of this change, though it appears, based on portions of plaintiffs testimony, that she would have received an extra salary for teaching summer classes, making it a clear adverse employment action. Plaintiff therefore satisfies the third factor of the prima facie case of age discrimination.
B. Actions Taken “Because of’ Plaintiffs Age
Plaintiff nontheless fails to make out a prima facie case of age discrimination on the basis of the rescission of her summer school offer because, as to the fourth factor of the prima facie case, plaintiff has not offered evidence upon which a reasonable jury could find that the adverse employment action was taken “because of’ her age. Plaintiff must “show more than possible age bias;” she must “adduce sufficient evidence to permit a reasonable jury to find that ‘but for’ [defendant’s] age bias, [plaintiff] would not have been terminated.” Fried v. LVI Servs., Inc.,
Plaintiffs proffered evidence shows that any discriminatory comments and actions relating to age were made by Ciccarone, and Ciccarone alone. It was Ciccarone who commented to plaintiff that she did not know that plaintiff was “that old,” and who made comments at departmental meetings about hiring younger teachers.
This is important because of two additional points conceded by plaintiff—that plaintiff was offered a position at the school by Houlihan, who then rescinded it a mere hour later, and that Houlihan had never made any comments about plaintiffs age. Because Houlihan was the one who offered plaintiff the summer school position, and then rescinded that offer, but had not made any comments or acted in such a way that gave rise to an inference of age discrimination, plaintiff must provide some evidence from which a jury could infer that the rescission would not have happened “but for” plaintiffs age.
Here, plaintiff offers no evidence that Houlihan’s rescission was related to plaintiffs age at all. That would require somehow connecting Ciccarone’s discriminatory comments with Houlihan’s actions, and plaintiff offers no evidence from which a jury could reasonably infer the connection between the two. Plaintiff proffers no evidence that Houlihan was ever aware of Ciccarone’s comments, that she shared
Plaintiff has failed to make out a prima facie case of age discrimination, and therefore her claim under the ADEA is dismissed.
II. Failure to Accommodate under the ADA
Defendant ■ next argues that plaintiffs remaining claim for failure to accommodate her disability in violation of the ADA, must-be dismissed because she was not discriminated against or denied any reasonable accommodation.
A reasonable accommodation is one that “enable[s] an individual with a disability who is qualified to perform the essential functions of that position ... [or] to enjoy equal benefits' and privileges of employment.” 29 C.F.R. § 1630.2(o )(l)(ii)— (iii). A reasonable accommodation may include, among other things, “a modification of job duties and schedules, alteration of the facilities in which a job is performed, acquisition of devices to assist the performance of job duties, and, under certain circumstances, reassignment to a vacant position.” McBride,
The parties do not dispute that plaintiff has established the first three elements of a failure to accommodate claim. As to whether the employer refused to make a reasonable accommodation, the parties dis
a. Failure to Accommodate 2014-16 Class Schedule
Defendant disputes whether plaintiff made a reasonable request for an accommodation for her class schedule. For this point, defendant notes that plaintiff herself testified that, other than the fire drill and parking space accommodations, she did not make any other requests. Further, Houlihan also testified that these were the only two accommodation requests, and that plaintiffs grievance about her tentative 2014-15 class schedule was “a grievance of class assignment, not to make an accommodation based on a disability.” However, plaintiff also testified that she went to Houlihan to specifically discuss her inability to teach both resource room and self-contained classes due to her disability, and it is reasonable to assume Houlihan saw it that way, too, because she scheduled plaintiff for a medical examination.
Regardless of whether plaintiff reasonably requested the accommodation on the basis of her disability, the record shows that plaintiff abandoned this request by failing to attend the medical examination and instead choosing to retire two days later. Plaintiff cannot unreasonably discontinue a process through which she could have been accommodated and then use the abandoned request as the basis for a failure to accommodate claim. See Nugent v. St. Lukes-Roosevelt Hosp. Ctr.,
Although courts have struggled to analyze cases where the interactive process has broken down, in the instant case, it is not a difficult to determine why the interactive process was unsuccessful. Plaintiff refused to interact in the process altogether. Plaintiff argues that Houlihan wanted plaintiff to submit to a medical evaluation to embarrass or humiliate her, implying that Houlihan’s request for a medical examination was made in bad faith. If this were the reason plaintiff failed to submit to the medical examination, a jury could well reason that it was not that plaintiff abandoned the interactive process, but that Houlihan used the process to deny the requested accommodation.
However, plaintiffs failure to submit to the process was not because of the unreasonableness of Houlihan’s request. Plaintiff conceded during her deposition that she did not attend a medical examination because she had already decided to retire. The retirement, in turn, was not related to Houlihan scheduling plaintiff for a medical examination.
This is clear first from the timing of her decision. Plaintiff testified that she “knew [she] was retiring in February,” but she did not approach Houlihan about her tentative schedule for the 2014-15 term until June. Therefore, plaintiff knew that she was planning to retire before the examination was scheduled for June 24, 2014.
Second, plaintiff also testified specifically that she made the decision to retire
Q: And you had made up your mind in February—
A: Yeah.
Q: —of 2014 that you were going to retire?
A: Yeah.
Q: Was that based on any specific action at that time?
A: When your principal tells you you’re not in pain, how do I really know you’re in pain. And when they give a parking spot to a guidance counselor, because he injured his finger, yeah.
[■••]
Q: Did you say anything to [Houlihan]?
A: Yeah.
Q: What did you say?
A: I said to her I’m in pain. And she said, well, I don’t really know that.
Q: Did she ever refer you to a doctor?
A: She sent me for a physical. When I knew I had retired, so I postponed it.
Plaintiff did not testify to any issue with the medical examination itself, or even that the medical examination was the last straw, causing her to retire. Plaintiffs stated reason for retiring and the timing of her decision demonstrate that plaintiffs retirement was not connected to the request for a medical examination; it was related to a previous request for accommodation, that is, for a parking space, and Houlihan’s response to that request. At the time Houlihan sent plaintiff in for a medical examination, plaintiff already knew she was retiring due to Houlihan’s past actions, and that was why plaintiff did not appear. Plaintiffs choice to terminate the accommodation process belies any claim that defendant failed to accommodate that request, where the cause of plaintiffs withdrawal from the process was independent of what plaintiff believed was Houlihan’s bad faith in initiating it. Plaintiff therefore cannot make a prima facie case for a failure to accommodate on the basis of her tentative 2014-15 class schedule.
b. Failure to Accommodate Parking Space Request
Nevertheless, plaintiff does state a claim on the basis of defendant’s unwillingness to accommodate her request for a parking space at the rear of the school that would have allowed her to avoid steps and take the shortest distance to the entrance to the school. As to this accommodation request, defendant disputes whether Houlihan denied a reasonable accommodation for plaintiff.
Defendant attempts to avoid the undue burden test applicable to denials of accommodation by arguing summary judgment is appropriate because the accommodation it had already provided was a “plainly reasonable” one. Determination of whether an existing accommodation is plainly reasonable, of course, occurs only in cases where some type of accommodation has already been offered or given to the plaintiff. Here, plaintiff used a handicapped parking pass and placard to park in handicapped parking at the school. When plaintiff asked to park at the rear of the school, Houlihan denied this request. Instead, plaintiff was “offered” two options, both of which were options already available to her before she made the request: use the stairs at the faculty entrance, or use the ramp at the main entrance. Neither option changed her parking space to put her closer to the entrance she desired at the rear of the school, which did not have a long ramp or stairs.
Whether or not the accommodation request was denied outright versus denied only as to the specific accommodation requested by plaintiff changes the relevant issue of fact at summary judgment. Where a plaintiff claims she was denied an
In either formulation of the factual issue, plaintiffs failure to accommodate claim survives summary judgment. Assuming that defendant’s “offer” was an alternative accommodation rather than an outright denial, the record before me does not evidence that plaintiffs then-current parking space was reasonable as a matter of law. It is true that employers are not required to provide “a perfect accommodation or the very accommodation most strongly preferred by the employee.” Noll,
Such is the case here. Plaintiffs disability and the limitations it placed on her movement is evidenced through past accommodations, others’ knowledge of her limitations and the informal assistance they provided, discussions with Houlihan, and plaintiffs testimony as to why her current parking space was ineffective and why she requested an accommodation. That evidence is sufficient to raise an issue of fact as to whether the parking space she currently had was effective, Le., that it allowed her to “perform the essential functions of [her] position ... [or] enjoy equal benefits and privileges of employment.” 29 C.F.R. § 1630.2(o)(l)(ii)-(iii).
Defendant’s reliance on Noll is therefore misplaced. In Noll, the plaintiff, who was deaf, requested an accommodation for captioning work videos, but was given an accommodation whereby ASL interpreters were provided to the plaintiff on demand whenever the plaintiff watched a video. In affirming summary judgment for the defendant, the Second Circuit stated that an accommodation for deafness cannot be rendered ineffective “by the need to divide visual attention, without more,” and that merely tiring or annoying the plaintiff was not a disadvantage that would render the employer’s accommodations ineffective. Noll,
Plaintiff here has created an issue of material fact as to the existence of that something “more” that the Second Circuit described in Noll. It is not just that plaintiff was tired from having to walk from her then-current parking space; it was that doing so was, in her words, “brutal” and “wrecked” plaintiff for the rest of the day. There is a substantial and meaningful difference between tired eyes, as in Noll, and potentially severe physical pain, as here.
In addition, plaintiff has satisfied the light burden of production regarding the reasonableness of her proposed accommodation. In this case, plaintiff had merely requested a parking space in the rear of the building, where she testified that at least six parking spaces were available and where Houlihan and other senior school officials parked. Notably, defendant does not argue that there were no parking spaces; it merely asserts that “there are no parking spaces for disabled people (so called ‘handicapped parking’) in the rear of the FHHS school building.” Such a characterization makes clear that there were parking spaces in the rear of the building,
This is beside the point. “There is nothing inherently unreasonable about requiring that an employer accommodate an employee by providing a reserved parking space.” Price v. City of New York,
Defendant conflates plaintiffs request for a parking space in the spring semester of 2014 with her request for a change in her tentative class schedule for the 2014-15 school year. Defendant contends that plaintiff did not provide medical records, and therefore Houlihan scheduled a medical examination. As discussed above, the medical examination was scheduled in relation to a requested change for the 2014-15 class schedule; by that time, Houlihan had already denied plaintiffs request for a parking space and, as plaintiff remembers it, questioned whether plaintiff was disabled at all.
That plaintiff failed to submit medical documentation does not mean that there is no material factual issue as to whether FHHS provided a reasonable accommodation. Defendant appears to argue that Houlihan failed accommodate plaintiff on the grounds that Houlihan did not know of the disability or, at the very least, did not know the extent of plaintiffs disability.
Putting aside the fact that, based on the record, Houlihan did not attempt to determine the extent of plaintiffs limitations until June 2014, plaintiff has put sufficient evidence in the record whereby a jury could find that Houlihan knew of plaintiffs disability and denied plaintiffs request for a reasonable accommodation. Defendant’s own statement of facts acknowledges that plaintiffs doctor had submitted a letter to Houlihan in the fall semester of the 2013-14 school year, requesting the fire drill accommodation. Plaintiff also testified that she and Houlihan had discussed her disability in the context of monthly staff meetings:
Q: And other than being denied the parking space in the rear of the school, was there anything else that made you upset with Principal Houlihan?
A: Every time we had a faculty meeting she—okay. You can go in on the first floor from the main lobby or from the back going downstairs and going in, but it was a decline. So down the stairs, I would actually come in from the thing and sit in the very first seat in the back and she would always come and say, “I want you to move up.” And I said, “I’m sorry, I can’t because if I moved up it would have been brutal coming back up that incline to leave.[”] “And every faculty meeting I’d like you to move, Ms. Durick.”
Q: And how often were faculty meetings?
A: Once a month. To the point where she actually got the yellow tape and sectioned off that part and you can’t sit there, and I broke off the tape and I sat there anyway.
Nor does defendant dispute that plaintiff used handicapped parking; indeed, defendant relies on handicapped parking as a reason why Houlihan’s denial was accepts able under the ADA, that is, because the handicapped parking plaintiff already had was a reasonable accommodation. It cannot also argue that Houlihan did not know plaintiff had a disability; either Houlihan knew about the disability at the time plain
Regardless of whether the issue is that her request was reasonable on its face or that defendant’s accommodation was not plainly reasonable, plaintiffs evidence has shown facts in dispute as to both.
III. Constructive Discharge
Having found that plaintiffs failure to accommodate claim survives defendant’s motion for summary judgment, I also find that plaintiff has produced sufficient evidence to create a genuine issue of material fact as to whether the failure to accommodate plaintiffs claim constituted constructive discharge. Plaintiff has offered evidence upon which a reasonable jury could find that Houlihan’s deliberate denial of plaintiffs requested parking accommodation made plaintiffs working conditions intolerable, that is, that her working conditions would have been “so unpleasant that a reasonable person in [plaintiffs] shoes would have felt compelled to resign.” Morris v. Schroder Capital Mgmt. North America, Inc.,
CONCLUSION
Defendant’s motion for summary judgment is granted in part and denied in part as set forth above.
SO ORDERED.
Notes
. A rollator is a rolling walker with a seat.
. Having already dismissed plaintiff’s underlying § 1983 claim, plaintiff cannot make out a Monell claim, and that claim is also dismissed. See Segal v. City of New York,
. The parties both discuss whether Houlihan "discriminated” against plaintiff, but plaintiff has not asserted a separate disability discrimination claim under the ADA. She alleges only that she was discriminated against on the basis of her disability insofar as she was denied a reasonable accommodation.