22-872-cv Tillman v. New York City
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.
1 At a stated term of the United States Court of Appeals for the Second Circuit, 2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the 3 City of New York, on the 4th day of April, two thousand twenty-three. 4 5 PRESENT: BARRINGTON D. PARKER, 6 GERARD E. LYNCH, 7 RAYMOND J. LOHIER, JR., 8 Circuit Judges. 9 ------------------------------------------------------------------ 10 TAMMARA TILLMAN, 11 12 Plaintiff-Appellant, 13 14 v. No. 22-872-cv 15 16 NEW YORK CITY DEPARTMENT OF HUMAN 17 RESOURCES ADMINISTRATION, 18 19 Defendant-Appellee, 20 21 ROBERT HOUSER, MICHAEL GREENE, MARIA 22 CINIGLIO, RAD JACUH, KLARA 23
1 1 SHOUMAKER, STEPHANIE GRANT, 2 3 Defendants. 4 ------------------------------------------------------------------ 5 FOR PLAINTIFF-APPELLANT: Monique E. Aziza, Volunteer 6 Lawyer’s Project, Boston, MA 7 8 FOR DEFENDANT-APPELLEE: Richard Dearing, Claude S. 9 Platton, Jeremy Pepper, 10 Assistant Corporation 11 Counsel, for Sylvia O. Hinds- 12 Radix, Corporation Counsel of 13 the City of New York, New 14 York, NY 15 16 Appeal from a judgment of the United States District Court for the
17 Southern District of New York (Mary Kay Vyskocil, Judge).
18 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
19 AND DECREEED that the judgment of the District Court is AFFIRMED.
20 Tammara Tillman appeals from a March 24, 2022 judgment of the United
21 States District Court for the Southern District of New York (Vyskocil, J.)
22 dismissing her race and disability discrimination claims brought under the
23 Americans with Disabilities Act, 42 U.S.C. §§ 12101–12213 (“ADA”) and Title VII
24 of the Civil Rights Act of 1964, 42 U.S.C. § 2000e (“Title VII”) and declining to
25 exercise supplemental jurisdiction over her state and city law claims. We assume
26 the parties’ familiarity with the underlying facts and the record of prior
2 1 proceedings, to which we refer only as necessary to explain our decision to
2 affirm.
3 Tillman sued the New York City Department of Human Resources
4 Administration (“HRA”), her former employer, asserting primarily that HRA
5 had violated the ADA by failing to provide her with reasonable accommodations
6 for her disability. In particular, she alleges that she has “back spasms, sciatica,
7 fibromyalgia, [and] pinched nerves,” that she requested a “standing footrest”
8 and “ergonomic chair” as a reasonable accommodation for her disability, and
9 that the “rocking footrest” and “dilapidated ergonomic chair” that she was
10 provided were not reasonable accommodations. App’x 13-15.
11 We review de novo a district court’s grant of a motion to dismiss,
12 accepting all well-pleaded factual allegations in the complaint as true and
13 drawing all reasonable inferences in the plaintiff’s favor. See Fed. R. Civ. P.
14 12(b)(6); Palin v. N.Y. Times Co., 940 F.3d 804, 809 (2d Cir. 2019). To establish a
15 prima facie case for failure to accommodate a disability, a plaintiff must allege
16 that:
17 (1) [the p]laintiff is a person with a disability under the 18 meaning of the ADA; (2) an employer covered by the 19 statute had notice of h[er] disability; (3) with reasonable 20 accommodation, [the] plaintiff could perform the
3 1 essential functions of the job at issue; and (4) the 2 employer has refused to make such accommodations.
3 Williams v. MTA Bus Co., 44 F.4th 115, 125 (2d Cir. 2022) (quotation marks
4 omitted). 1
5 The parties dispute whether HRA refused to provide Tillman with a
6 reasonable accommodation. A reasonable accommodation “is one that enables
7 an individual with a disability . . . to perform the essential functions of that
8 position or to enjoy equal benefits and privileges of employment.” Noll v. Int’l
9 Bus. Machs. Corp., 787 F.3d 89, 94 (2d Cir. 2015) (cleaned up). The
10 accommodation “must be effective,” but the ADA does not require employers to
11 “provide a perfect accommodation or the very accommodation most strongly
12 preferred by the employee.” Id. at 95. Tillman acknowledges that, in response to
13 her request, HRA provided her with an ergonomic chair and footrest, but alleges
14 that the ergonomic chair was “dilapidated” and the “rocking footrest agitate[d
15 her] . . . physical impairments.” App’x 15. Tillman concedes that she was able to
16 “perform[] the essential functions of her job despite the unreasonable
1 Tillman’s brief does not refer to her hostile work environment claims or her claims under state or local law. We therefore conclude that she has abandoned any challenge to the dismissal of those claims. See Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 294 (2d Cir. 2008). 4 1 accommodation that she received,” Appellant’s Br. 8, and she identifies no
2 “benefits or privileges of employment” that she was not able to enjoy because of
3 the chair and footrest that she was provided, Noll, 787 F.3d at 95–96. Although
4 Tillman also alleges that she was at times forced to take extended medical leave
5 due in part to injuries sustained at work, she does not attribute any such injury to
6 the footrest. And while Tillman does attribute her September 2015 leave of
7 absence to an injury caused by the first ergonomic chair provided by HRA, she
8 concedes that after she complained about that chair, another was provided for
9 her, and does not attribute any of her subsequent leaves to that second chair. 2
2 To the extent Tillman asserts a separate failure to accommodate claim based solely on HRA’s allegedly unreasonable delay in providing what might otherwise have been reasonable accommodations, we likewise see no reason to disturb the District Court’s conclusions. Although we have never endorsed the test applied by the District Court — requiring a plaintiff to plead that the delay was motivated by discriminatory intent — Tillman has failed to allege facts sufficient to demonstrate unreasonable delay even under other Circuits’ more permissive approaches. See Perkins v. City of New York, No. 22-196-cv, 2023 WL 370906, at *3 (2d Cir. Jan. 24, 2023) (summary order) (observing that “[w]e have never specifically addressed in a precedential opinion this intent issue in the context of an alleged delay in providing the accommodation” in the substantively identical ADA or Rehabilitation Act contexts); see also, e.g., Swain v. Wormuth, 41 F.4th 892, 898 (7th Cir.
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22-872-cv Tillman v. New York City
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.
1 At a stated term of the United States Court of Appeals for the Second Circuit, 2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the 3 City of New York, on the 4th day of April, two thousand twenty-three. 4 5 PRESENT: BARRINGTON D. PARKER, 6 GERARD E. LYNCH, 7 RAYMOND J. LOHIER, JR., 8 Circuit Judges. 9 ------------------------------------------------------------------ 10 TAMMARA TILLMAN, 11 12 Plaintiff-Appellant, 13 14 v. No. 22-872-cv 15 16 NEW YORK CITY DEPARTMENT OF HUMAN 17 RESOURCES ADMINISTRATION, 18 19 Defendant-Appellee, 20 21 ROBERT HOUSER, MICHAEL GREENE, MARIA 22 CINIGLIO, RAD JACUH, KLARA 23
1 1 SHOUMAKER, STEPHANIE GRANT, 2 3 Defendants. 4 ------------------------------------------------------------------ 5 FOR PLAINTIFF-APPELLANT: Monique E. Aziza, Volunteer 6 Lawyer’s Project, Boston, MA 7 8 FOR DEFENDANT-APPELLEE: Richard Dearing, Claude S. 9 Platton, Jeremy Pepper, 10 Assistant Corporation 11 Counsel, for Sylvia O. Hinds- 12 Radix, Corporation Counsel of 13 the City of New York, New 14 York, NY 15 16 Appeal from a judgment of the United States District Court for the
17 Southern District of New York (Mary Kay Vyskocil, Judge).
18 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
19 AND DECREEED that the judgment of the District Court is AFFIRMED.
20 Tammara Tillman appeals from a March 24, 2022 judgment of the United
21 States District Court for the Southern District of New York (Vyskocil, J.)
22 dismissing her race and disability discrimination claims brought under the
23 Americans with Disabilities Act, 42 U.S.C. §§ 12101–12213 (“ADA”) and Title VII
24 of the Civil Rights Act of 1964, 42 U.S.C. § 2000e (“Title VII”) and declining to
25 exercise supplemental jurisdiction over her state and city law claims. We assume
26 the parties’ familiarity with the underlying facts and the record of prior
2 1 proceedings, to which we refer only as necessary to explain our decision to
2 affirm.
3 Tillman sued the New York City Department of Human Resources
4 Administration (“HRA”), her former employer, asserting primarily that HRA
5 had violated the ADA by failing to provide her with reasonable accommodations
6 for her disability. In particular, she alleges that she has “back spasms, sciatica,
7 fibromyalgia, [and] pinched nerves,” that she requested a “standing footrest”
8 and “ergonomic chair” as a reasonable accommodation for her disability, and
9 that the “rocking footrest” and “dilapidated ergonomic chair” that she was
10 provided were not reasonable accommodations. App’x 13-15.
11 We review de novo a district court’s grant of a motion to dismiss,
12 accepting all well-pleaded factual allegations in the complaint as true and
13 drawing all reasonable inferences in the plaintiff’s favor. See Fed. R. Civ. P.
14 12(b)(6); Palin v. N.Y. Times Co., 940 F.3d 804, 809 (2d Cir. 2019). To establish a
15 prima facie case for failure to accommodate a disability, a plaintiff must allege
16 that:
17 (1) [the p]laintiff is a person with a disability under the 18 meaning of the ADA; (2) an employer covered by the 19 statute had notice of h[er] disability; (3) with reasonable 20 accommodation, [the] plaintiff could perform the
3 1 essential functions of the job at issue; and (4) the 2 employer has refused to make such accommodations.
3 Williams v. MTA Bus Co., 44 F.4th 115, 125 (2d Cir. 2022) (quotation marks
4 omitted). 1
5 The parties dispute whether HRA refused to provide Tillman with a
6 reasonable accommodation. A reasonable accommodation “is one that enables
7 an individual with a disability . . . to perform the essential functions of that
8 position or to enjoy equal benefits and privileges of employment.” Noll v. Int’l
9 Bus. Machs. Corp., 787 F.3d 89, 94 (2d Cir. 2015) (cleaned up). The
10 accommodation “must be effective,” but the ADA does not require employers to
11 “provide a perfect accommodation or the very accommodation most strongly
12 preferred by the employee.” Id. at 95. Tillman acknowledges that, in response to
13 her request, HRA provided her with an ergonomic chair and footrest, but alleges
14 that the ergonomic chair was “dilapidated” and the “rocking footrest agitate[d
15 her] . . . physical impairments.” App’x 15. Tillman concedes that she was able to
16 “perform[] the essential functions of her job despite the unreasonable
1 Tillman’s brief does not refer to her hostile work environment claims or her claims under state or local law. We therefore conclude that she has abandoned any challenge to the dismissal of those claims. See Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 294 (2d Cir. 2008). 4 1 accommodation that she received,” Appellant’s Br. 8, and she identifies no
2 “benefits or privileges of employment” that she was not able to enjoy because of
3 the chair and footrest that she was provided, Noll, 787 F.3d at 95–96. Although
4 Tillman also alleges that she was at times forced to take extended medical leave
5 due in part to injuries sustained at work, she does not attribute any such injury to
6 the footrest. And while Tillman does attribute her September 2015 leave of
7 absence to an injury caused by the first ergonomic chair provided by HRA, she
8 concedes that after she complained about that chair, another was provided for
9 her, and does not attribute any of her subsequent leaves to that second chair. 2
2 To the extent Tillman asserts a separate failure to accommodate claim based solely on HRA’s allegedly unreasonable delay in providing what might otherwise have been reasonable accommodations, we likewise see no reason to disturb the District Court’s conclusions. Although we have never endorsed the test applied by the District Court — requiring a plaintiff to plead that the delay was motivated by discriminatory intent — Tillman has failed to allege facts sufficient to demonstrate unreasonable delay even under other Circuits’ more permissive approaches. See Perkins v. City of New York, No. 22-196-cv, 2023 WL 370906, at *3 (2d Cir. Jan. 24, 2023) (summary order) (observing that “[w]e have never specifically addressed in a precedential opinion this intent issue in the context of an alleged delay in providing the accommodation” in the substantively identical ADA or Rehabilitation Act contexts); see also, e.g., Swain v. Wormuth, 41 F.4th 892, 898 (7th Cir. 2022) (factors relevant to unreasonable delay “include[e], but [are] not limited to, such factors as the employer’s good faith in attempting to accommodate the disability, the length of the delay, the reasons for the delay, the nature, complexity, and burden of the accommodation requested, and whether the employer offered alternative accommodations”). 5 1 We agree with the District Court that Tillman’s allegations in support of
2 her claim that the accommodations HRA provided are too conclusory and thus
3 fail to establish a prima facie case for failure to accommodate a disability.
4 Tillman also argues that the District Court erred in dismissing her
5 discrimination claims under the ADA and Title VII. On appeal, Tillman fails to
6 develop her legal theory in support of this argument. See Corren v. Condos, 898
7 F.3d 209, 225 n.8 (2d Cir. 2018) (“It is a settled appellate rule that issues adverted
8 to in a perfunctory manner, unaccompanied by some effort at developed
9 argumentation, are deemed waived.” (quotation marks omitted)). But even if we
10 consider the argument, and even assuming that the conduct that Tillman argues
11 qualifies as adverse employment actions — for example, the assignment of duties
12 outside of her job description and the failure to hire her to another position —
13 does meet that standard, Tillman does not allege facts sufficient to raise an
14 inference that those actions were taken because of her race or disability. See
15 Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 85 (2d Cir. 2015) (holding
16 that, on a motion to dismiss, a plaintiff alleging employment discrimination
17 based on her race bears the “minimal burden of alleging facts suggesting an
18 inference of discriminatory motivation” (quotation marks omitted)).
6 1 We have considered Tillman’s remaining arguments and conclude that
2 they are without merit. For the foregoing reasons, the judgment of the District
3 Court is AFFIRMED.
4 FOR THE COURT: 5 Catherine O’Hagan Wolfe, Clerk of Court