Thomson v. Odyssey House

652 F. App'x 44

2d Cir.

2016

Check Treatment

Docket

Georgina THOMSON, Plaintiff-Appellant, v. ODYSSEY HOUSE, Defendant-Appellee, Vance Herbert, Darrin Brown, Gail Harrison, Does 1-10, Defendants.

15-3363

United States Court of Appeals, Second Circuit.

June 16, 2016

652 Fed. Appx. 44

it “inadequate to stop consideration of a federal question.” See id. (quoting Lee, 534 U.S. at 376, 122 S.Ct. 877). First, perfect compliance would not have changed the outcome because the trial court rejected Liggan‘s argument that he was denied a right to present a defense in his motion for a new trial. And overwhelming state precedent required compliance with the rule: substantial compliance would have been insufficient because, as noted, New York requires a specific objection and will not imply a constitutional claim. Finally, Liggan could have raised the constitutional claim during the recess at trial.

II. Merits

Even if Liggan‘s claim were not procedurally barred, it is meritless. The question is whether the Appellate Division unreasonably applied federal law. See Gutierrez v. McGinnis, 389 F.3d 300, 306 (2d Cir. 2004) (“[W]hen a state court explicitly conducts harmless error review of a constitutional error, a habeas court must evaluate whether the state unreasonably applied [federal law].“). To obtain habeas relief under the “unreasonable application” prong, a petitioner must show that the Appellate Division‘s conclusion that any error was harmless was objectively unreasonable. See Wade v. Mantello, 333 F.3d 51, 58-60 (2d Cir. 2003).

In considering a habeas petitioner‘s claim that he was denied his right to present a defense, we consider (1) whether the evidence was improperly excluded; and (2) if so, “whether ‘the omitted evidence evaluated in the context of the entire record creates a reasonable doubt that did not otherwise exist.‘” Hawkins v. Costello, 460 F.3d 238, 244 (2d Cir. 2006) (quoting Justice v. Hoke, 90 F.3d 43, 47 (2d Cir. 1996)) (brackets omitted). Here, the State appears to concede that the trial court incorrectly excluded Liggan‘s testimony. See People v. Robinson, 17 N.Y.3d 868, 933 N.Y.S.2d 192, 957 N.E.2d 761, 762-63 (2011) (concluding that trial court erred in preventing defendant from testifying about what he had meant in a post-arrest statement). Nevertheless, the omitted testimony, in light of the entire record, does not create a reasonable doubt that did not otherwise exist. The evidence presented against Liggan may not have been overwhelming considering that the jury did not convict him on most charges. But the Appellate Division‘s conclusion that Liggan was not prejudiced was not unreasonable because there was evidence that he supplied weapons, possessed weapons, and planned to use weapons during the planned burglary. Moreover, defense counsel was able to present Liggan‘s theory that the letter should be interpreted in a non-incriminating light—a theory that the jury apparently rejected.

We have considered all of Liggan‘s remaining arguments and find them to be without merit. Accordingly, we AFFIRM the judgment of the district court.

Georgina THOMSON, Plaintiff-Appellant, v. ODYSSEY HOUSE, Defendant-Appellee, Vance Herbert, Darrin Brown, Gail Harrison, Does 1-10, Defendants.^*

For Appellant: Nkereuwem Umoh, Umoh Law Firm, PLLC, Brooklyn, New York.

For Appellee: Wendy J. Mellk and Damon W. Silver, Jackson Lewis, P.C., New York, New York.

PRESENT: AMALYA L. KEARSE, RALPH K. WINTER, DENNIS JACOBS, Circuit Judges.

SUMMARY ORDER

Georgina Thomson appeals from the judgment of the United States District Court for the Eastern District of New York (Brodie, J.), dismissing her complaint for failure to state a claim.¹ The complaint alleges retaliation in violation of 42 U.S.C. § 1981 and claims of violation of the Americans with Disabilities Act (“ADA“).² We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues presented for review.

1. To establish a prima facie case of retaliation under § 1981, a plaintiff must allege (1) that she engaged in a protected activity; (2) defendant was aware of that activity; (3) she suffered an adverse employment action; and (4) there was sufficient causal connection between the protected activity and the adverse employment action. See Fincher v. Depository Trust & Clearing Corp., 604 F.3d 712, 720 (2d Cir. 2010). Causation “can be shown either: (1) indirectly, by showing that the protected activity was followed closely by discriminatory treatment, or through other circumstantial evidence such as disparate treatment of fellow employees who engaged in similar conduct; or (2) directly, through evidence of retaliatory animus directed against the plaintiff.” Gordon v. N.Y.C. Bd. of Educ., 232 F.3d 111, 117 (2d Cir. 2000).

The district court ruled that Thomson had not alleged facts demonstrating a sufficient causal connection between her alleged internal complaints in 2011 and her alleged termination in 2014. The plaintiff does not contest this ruling; rather, she argues that the adverse action by defendant was not the termination, but the “closer supervision” to which she was subjected. However, excessive scrutiny is not an actionable adverse employment action. See Kessler v. Westchester Cty. Dep‘t of Soc. Servs., 461 F.3d 199, 207 (2d Cir. 2006) (“[A] plaintiff must show that a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” (quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006))); see also, e.g., Murray v. Town of N. Hempstead, 853 F.Supp.2d 247, 267 (E.D.N.Y. 2012) (“[W]ith regard to the heightened supervision and surveillance, even if assumed to be true, the facts as alleged here would not, as a matter of law, constitute adverse employment actions.“).

2. Plaintiff‘s ADA discrimination and reasonable accommodation claims fail because no facts are pled to support an inference that any alleged disability was causally linked to her termination. See Smith v. Hogan, 794 F.3d 249, 253 (2d Cir. 2015) (“In order to establish a prima facie case of employment discrimination under the ADA ... a plaintiff must adequately plead that he was terminated because of a qualifying disability.” (emphasis added)).

Likewise, the plaintiff has not alleged enough facts to establish a prima facie reasonable accommodation claim. To allege a violation of the ADA for failure to provide a reasonable accommodation, 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 his 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). Even assuming the validity of her disability, Thomson does not allege when, if ever, she notified the defendant of her disability or sought any kind of accommodation. Accordingly, her reasonable accommodation claim also fails.

For the foregoing reasons, and finding no merit in the plaintiff‘s other arguments, we hereby AFFIRM the judgment of the district court.

Notes

The defendant‘s motion to dismiss was denied in part as to the other plaintiff, Sheila Clark; the defendants agreed to settle Clark‘s remaining claim, and so she is not part of this appeal.

The district court‘s order also dismissed Thomson‘s New York State and City Human Rights Law claims and her Title VII claims, which she does not appeal from. All claims against the individual defendants (Vance Herbert, Darrin Brown, and Gail Harrison) were dismissed sua sponte for failure to serve.

The Clerk of Court is directed to amend the caption as written above.

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