Bost v. Nassau County Department of Social Services

• Court: Court of Appeals for the Second Circuit
• Decided: September 29, 2023
• Docket: 22-2547
• Status: Unpublished

Opinion

22-2547-cv Bost v. Nassau County Department of Social Services

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 29th day of September, two thousand twenty-three.

PRESENT: John M. Walker, Jr., Denny Chin, Alison J. Nathan, Circuit Judges. _____________________________________

Simona Bost,

Plaintiff-Appellant,

v. 22-2547

Nassau County Department of Social Services, Nassau County Office of Equal Employment Opportunity, Nassau County, Defendants-Appellees. _____________________________________ FOR PLAINTIFF-APPELLANT: Simona Bost, pro se, Hempstead, NY.

FOR DEFENDANTS-APPELLEES: Robert F. Van der Waag, Ian Bergstrom, Deputy County Attorneys, for Thomas A. Adams, Nassau County Attorney, Mineola, NY.

Appeal from a judgment of the United States District Court for the Eastern

District of New York (Gary R. Brown, Judge; Arlene R. Lindsay, Magistrate Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is

AFFIRMED.

Appellant Simona Bost, proceeding pro se, sued the Nassau County

Department of Social Services (DSS) and Equal Employment Office (EEO) for

failing to provide reasonable accommodations for her diabetes-related fatigue

under the Americans with Disabilities Act (ADA) and for retaliating against her

for filing an EEO complaint and requesting an earlier accommodation. She also

brought a failure-to-accommodate claim under the New York State Human Rights

Law (NYSHRL). All of these claims were based on the alleged denial of Bost’s 2 request to work weekend overtime hours. Adopting a magistrate judge’s report

and recommendation, the district court granted summary judgment to the

defendants, reasoning that Bost failed to make out a prima facie failure-to-

accommodate claim because she did not show that she had a disability, that she

was able to perform the essential functions of her job, or that DSS denied her a

reasonable accommodation. The court also reasoned that Bost failed to make a

prima facie case for retaliation because she failed to show both that she was

actually denied overtime and that there was a causal relationship between any

such denial and her earlier complaint and request. Bost timely appealed. We

assume the parties’ familiarity with the remaining underlying facts, the procedural

history, and the issues on appeal.

We review a grant of summary judgment de novo. Garcia v. Hartford Police

Dep’t, 706 F.3d 120, 126 (2d Cir. 2013) (per curiam). Summary judgment is

appropriate only if, after resolving all ambiguities and drawing all inferences

against the moving party, “there is no genuine dispute as to any material fact and

the movant is entitled to judgment as a matter of law.” Id. (quoting Fed. R. Civ.

P. 56(a)). “An issue of fact is genuine if the evidence is such that a reasonable jury

3 could return a verdict for the nonmoving party.” Jeffreys v. City of New York, 426

F.3d 549, 553 (2d Cir. 2005) (internal quotation marks omitted). Because Bost

proceeds pro se, we liberally construe her filings to raise the strongest arguments

they suggest. See Publicola v. Lomenzo, 54 F.4th 108, 111 (2d Cir. 2022) (per

curiam).

As an initial matter, Bost does not address the NYSHRL claim in her brief.

We therefore consider that claim to be abandoned. See Moates v. Barkley, 147 F.3d

207, 209 (2d Cir. 1998) (per curiam). On the merits of the remaining federal

claims, we agree with the district court that the defendants were entitled to

summary judgment, although we reach only Bost’s failure to show that DSS

denied her overtime request.

Bost’s failure-to-accommodate and retaliation claims under the ADA are

evaluated under the familiar McDonnell Douglas burden-shifting framework. See

McMillan v. City of New York, 711 F.3d 120, 125 (2d Cir. 2013) (citing McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973)). To establish a prima facie failure-to-

accommodate claim, a plaintiff must demonstrate the following:

(1) plaintiff is a person with a disability under the meaning of the ADA; (2) an employer covered by the statute had notice of h[er]

4 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.

Id. at 125–26 (citation omitted).

Here, even if we assume that Bost had a disability within the meaning of the

ADA, and that she would have been able to perform the essential functions of her

job with an accommodation, we agree with the district court that she failed to

demonstrate that DSS denied her a reasonable accommodation. The ADA

“envisions an interactive process by which employers and employees work

together to assess whether an employee’s disability can be reasonably

accommodated.” Tafolla v. Heilig, No. 21-2327, ___ F.4th ___, 2023 WL 5313520,

at *7 (2d Cir. Aug. 18, 2023) (cleaned up). And “where a breakdown in interactive

process was manifestly the employee’s fault,” a failure-to-accommodate claim

fails. Id. (cleaned up).

Bost initiated the interactive process by requesting overtime and DSS

responded by requesting a doctor’s note stating that she could work early

mornings on Saturdays despite receiving an earlier accommodation to begin work

late during the week due to insomnia and fatigue. Bost submitted a doctor’s note,

5 but it merely stated that she could work overtime. DSS requested further proof

and gave Bost six weeks to respond, allowing Bost to work overtime on Saturday

mornings in the meantime. Bost never responded. Sometime during these six

weeks, she no longer wished to receive overtime, and requested to be transferred

out of the Daycare unit to a less onerous position in February 2017. After

transferring her to a different Daycare unit and offering to transfer her to the

Telephone unit in late 2017, DSS eventually transferred her out of Daycare in

January 2019.

By failing to respond after DSS requested additional medical documentation,

Bost refused to participate in the process of determining the precise limitations

resulting from her disability. It was she who caused the interactive process to

stall and break down. We therefore conclude, on this record, that a reasonable

jury could not find that Bost was denied a reasonable accommodation.

Bost’s retaliation claim fails as well. To establish a prima facie case of

retaliation under the ADA, a plaintiff must show “(1) the employee was engaged

in an activity protected by the ADA, (2) the employer was aware of that activity,

(3) an employment action adverse to the plaintiff occurred, and (4) there existed a

6 causal connection between the protected activity and the adverse employment

action.” Sarno v. Douglas Elliman-Gibbons & Ives, Inc., 183 F.3d 155, 159 (2d Cir.

1999). Bost argues that DSS denied her overtime request in retaliation for her

EEO complaint and her earlier request for an altered work schedule during the

week. However, as explained above, she has not shown that DSS denied her

overtime request. Rather, Bost withdrew from the interactive process whereby

DSS was evaluating and responding to the request. Bost thus lacks the adverse

employment action necessary for her retaliation claim.

We have considered Bost’s remaining arguments and find them to be

without merit. Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court