13-3478-cv
Rosario v. Western Reg’l Off Track Betting Corp.


                                  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 ASUMMARY 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 14th day of May, two thousand fourteen.

PRESENT: ROBERT D. SACK,
                 REENA RAGGI,
                 DENNY CHIN,
                                 Circuit Judges.
----------------------------------------------------------------------
JAVIER ROSARIO,
                                 Plaintiff-Appellant,

                                v.                                            No. 13-3478-cv

WESTERN REGIONAL                              OFF    TRACK   BETTING
CORPORATION,
                                 Defendant-Appellee.
----------------------------------------------------------------------
APPEARING FOR APPELLANT:                          JAVIER ROSARIO, pro se, Albion, New York;
                                                  Christina A. Agola, Esq., Brighton, New York.1

APPEARING FOR APPELLEE:                                CHARLES E. GRANEY, Donall O’Carroll,
                                                       Webster Szanyi LLP, Buffalo, New York.

1
 By letter dated February 7, 2014, Plaintiff Javier Rosario informed the court that he
would be proceeding pro se. His brief, filed October 17, 2013, was prepared by counsel,
Christina A. Agola.

                                                         1
      Appeal from a judgment of the United States District Court for the Western

District of New York (Michael A. Telesca, Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment entered on August 14, 2013, is AFFIRMED.

      Plaintiff Javier Rosario, now proceeding pro se, appeals from an award of

summary judgment in favor of his former employer Western Regional Off Track Betting

Corporation (“OTB”), on Rosario’s claims of discrimination and retaliation in violation

of the Family Medical Leave Act (“FMLA”), 29 U.S.C. § 2601 et seq., the Americans

with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., and the New York State

Human Rights Law (“NYSHRL”), N.Y. Exec. Law § 290 et seq. We review an award of

summary judgment de novo, resolving all ambiguities and drawing all inferences in favor

of the nonmovant, and we will affirm only if the record reveals no genuine dispute of

material fact. See Fed. R. Civ. P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

247–48 (1986); Nagle v. Marron, 663 F.3d 100, 104–05 (2d Cir. 2011). We assume the

parties’ familiarity with the underlying facts, the procedural history of the case, and the

issues on appeal, which we reference only as necessary to explain our decision to affirm.

      Rosario, who was suffering from Hodgkin’s Lymphoma, worked as a printer at

OTB. He took several months’ medical leave in 2005 and was fired in 2006. Rosario

claims that he raised genuine issues of material fact as to whether (1) he was disabled, or

perceived to be disabled, under the ADA; (2) OTB discriminated against him on the basis

of actual or perceived disability by terminating his employment and refusing to prove

                                            2
requested accommodations; and (3) OTB interfered with his rights under the FMLA and

retaliated against him for taking FMLA leave. Upon independent review of the record

and relevant caselaw, we uphold the award of summary judgment for substantially the

reasons stated by the district court in its thorough and well-reasoned order.2

       Rosario also faults the district court for not applying the ADA Amendments Act of

2008 (“ADAAA”). Like the district court, we find this argument unavailing. Rosario’s

claims accrued in 2005 and 2006. The amendments became effective January 1, 2009,

see Pub. L. No. 110-325 § 8, and, as this court has held, do not apply retroactively. See

Parada v. Banco Industrial de Venezuela, C.A., --F.3d--, 2014 WL 1202959, at *3 n.2 (2d

Cir. 2014); see also Fernandez-Vargas v. Gonzales, 548 U.S. 30, 37 (2006) (noting “a

statute shall not be given retroactive effect unless such construction is required by

explicit language or by necessary implication” (internal quotation marks omitted)).

       We have considered Rosario’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




2
  To the extent Rosario argues that a recommendation letter from his supervisor raised a
genuine issue of material fact as to pretext regarding OTB’s asserted non-discriminatory
reason for Rosario’s termination, we decline to consider this argument because it is raised
for the first time on appeal. See Schnabel v.Trilegiant Corp., 697 F.3d 110, 130 (2d Cir.
2012).

                                             3
