514 F. App'x 9
2d Cir.
2013

Beverly NOEL, Plaintiff-Appellant, v. BNY-MELLON CORPORATION, Defendant-Appellee.

No. 11-4478-cv.

United States Court of Appeals, Second Circuit.

March 14, 2013.

court did not deny Brown‘s motion to compel on the basis of privilege; rather, it denied the motion as moot based on the sworn declaration of a CBS representative that the requested information had been destroyed during the regular course of business in 2006, long before Brown filed her lawsuit. Accordingly, Brown‘s argument that the district court improperly denied the motion to compel on the ground of privilege is without foundation. In addition, even if Brown has challenged the mootness ruling on appeal, it cannot be said that the district court abused its discretion in denying a motion to compel the production of information in the face of a sworn declaration that such evidence no longer existed and only vague assertions to the contrary.

III. Motion for Summary Judgment

We review orders granting summary judgment de novo, asking whether the record reveals any genuine dispute of material fact and the moving party was entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a); Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir.2003). In doing so, we are “required to resolve all ambiguities and draw all permissible factual inferences in favor of the party against whom summary judgment is sought.” Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir.2003) (internal quotation marks omitted). However, “conclusory statements or mere allegations [are] not sufficient to defeat a summary judgment motion.” Davis v. New York, 316 F.3d 93, 100 (2d Cir.2002).

Brown submits that, in granting summary judgment, the district court erroneously characterized her claim to charge Wemm with permitting Coleman to “remove fat from a part of her body from which she did not want it removed,” when the court should have stated that she charged Wemm with allowing Coleman “to inject large amounts of fat to [her] face.” This argument is without merit because Brown herself repeatedly asserted in her summary judgment filings that Wemm was negligent in failing to stop Coleman from harvesting fat from areas of her body to which she did not consent. Accordingly, because Brown claims no other error in the grant of summary judgment to Wemm, the district court‘s order is affirmed.

We have considered all of Brown‘s remaining arguments and find them to be without merit. Accordingly, the judgment of the district court hereby is AFFIRMED.

Nkereuwem Umoh, Umoh Law Firm, PLLC, Brooklyn, NY, for Appellant.

Neal Kumar Katyal, Hogan Lovells, Washington, DC, (Elizabeth Barchas Prelogar, Hogan Lovells, Washington, DC; Kenneth Kirschner, Vi T. Vu, Hogan Lovells, New York, NY, on the brief,) for Appellee.

Present: GUIDO CALABRESI, ROSEMARY S. POOLER, and REENA RAGGI, Circuit Judges.

SUMMARY ORDER

ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.

Plaintiff-Appellant, Beverly Noel seeks review of the judgment of the district court, dated October 4, 2011, granting summary judgment to BNY-Mellon Corporation (“BNY-Mellon“) on her failure to accommodate and retaliation claims under the Americans with Disabilities Act (“ADA“), 42 U.S.C. § 12101 et seq., the New York State Human Rights Law (“NYSHRL“), N.Y. Exec. Law § 296, and the New York City Human Rights Law (“NYCHRL“), N.Y.C. Admin. Code § 8-107. We assume the parties’ familiarity with the underlying facts, procedural history, and specification of issues for review.

“We review a district court‘s grant of summary judgment de novo, construing the evidence in the light most favorable to the nonmoving party and drawing all reasonable inferences in that party‘s favor.” Kuebel v. Black & Decker Inc., 643 F.3d 352, 358 (2d Cir.2011). “Summary judgment may be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997) (internal quotation marks omitted). Where the moving party demonstrates “the absence of a genuine issue of material fact,” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), the non-moving party must then present specific evidence demonstrating a genuine dispute, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

The federal regulations implementing the ADA require that both the employee and the employer engage in an “interactive process” to “identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations.” 29 C.F.R. § 1630.2(o)(3). As the district court found, Noel abandoned this interactive process and cannot, therefore, recover on her claim for a failure to accommodate. The NYSHRL and the NYCHRL also require participation in such an interactive process to sustain a failure to accommodate claim, see Romanello v. Intesa Sanpaolo S.p.A., 97 A.D.3d 449, 949 N.Y.S.2d 345, 348 (1st Dep‘t 2012), and Noel is likewise unable to maintain a claim under these enactments. In any event, Noel has failed to show a genuine issue of fact as to the final element of the prima facie case for failure to accommodate: that the employer “refused to make” the requisite accommodations. Stone v. City of Mount Vernon, 118 F.3d 92, 97 (2d Cir.1997). The record reflects not only that BNY agreed in 2008 to accommodate Noel but also that it renewed the offer in February 2009 if Noel were offered a new position at BNY-Mellon, which she did not pursue.

Claims for retaliation under the ADA “are analyzed under the same burden-shifting framework established for Title VII cases.” Treglia v. Town of Manlius, 313 F.3d 713, 719 (2d Cir.2002). First, the burden lies on the plaintiff to establish a prima facie case of retaliation. Id. Once the prima facie case has been made, the burden shifts to the employer to “articulate a legitimate, non-retaliatory reason for the challenged employment decision.” Id. at 721. Once this showing has been made, the burden shifts back to the plaintiff to “point to 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. (quoting Cifra v. Gen. Elec. Co., 252 F.3d 205, 216 (2d Cir.2001)). Assuming Noel made out her prima facie case, the burden shifted back to BNY-Mellon, which then proffered a legitimate non-retaliatory reason for her dismissal, based upon her failure to apply for an open position with the company. Noel has failed to make any showing from which a reasonable jury could conclude that BNY-Mellon‘s offered explanation was pretextual. Therefore, Noel cannot maintain her retaliation claim.

Noel is correct to argue that the NYCHRL has been amended to “abolish the ‘parallelism’ between the [NYCHRL] and federal and state anti-discrimination law,” Loeffler v. Staten Island Univ. Hosp., 582 F.3d 268, 278 (2d Cir.2009), and that under the NYCHRL, a plaintiff need not have suffered a “materially adverse change in the terms and conditions of employment” to establish a prima facie case of retaliation, see N.Y.C. Admin. Code § 8-107(7). None of this is relevant, however, since we have assumed that Noel made out her prima facie case even under the more restrictive federal standard.

We have considered Noel‘s remaining arguments and find them to be without merit. Accordingly, the judgment of the district court hereby is AFFIRMED. Each side to bear its own costs.

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