         11-1014-cv
         Marie-Ange Joseph v. North Shore University Hospital

                                       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, held at the
2        Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on
3        the 3rd day of April, two thousand twelve.

 4       Present:
 5                DEBRA ANN LIVINGSTON,
 6                GERARD E. LYNCH,
 7                CHRISTOPHER F. DRONEY,
 8                         Circuit Judges.
 9       _____________________________________________

10       MARIE-ANGE JOSEPH,

11                    Plaintiff-Appellant,

12                                v.                                     No. 11-1014-cv

13       NORTH SHORE UNIVERSITY HOSPITAL,

14                    Defendant-Appellee.

15       _____________________________________________

16       For Plaintiff-Appellant:              ALAN E. WOLIN, Wolin & Wolin, Jericho, N.Y.

17       For Defendant-Appellee:               LEONARD M. ROSENBERG (Marianne Monroy, Lauren M.
18                                             Levine, Salvatore Puccio, on the brief), Garfunkel Wild, P.C.,
19                                             Great Neck, N.Y.




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

 2   York (Lindsay, M.J.).

 3          UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, and DECREED

 4   that the judgment of the district court is AFFIRMED.

 5          Plaintiff-Appellant Marie-Ange Joseph (“Joseph”) appeals from a February 16, 2011

 6   judgment of the United States District Court for the Eastern District of New York (Lindsay, M.J.),

 7   granting summary judgment in favor of Defendant-Appellee North Shore University Hospital (the

 8   “Hospital”) on Joseph’s claims under the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§

 9   12101-213, and Title VII of the Civil Rights Act of 1964 (“Title VII”), as amended, 42 U.S.C. §

10   2000e et seq.1 On appeal, Joseph argues that the court erred in ruling that Joseph failed to

11   demonstrate that she suffered from a disability for the purposes of the ADA; in holding that Joseph

12   failed to establish a prima facie case of discrimination on the basis of her national origin; and in

13   determining that Joseph was not subject to a hostile work environment on the basis of either her

14   alleged disability or her national origin. We assume the parties’ familiarity with the underlying

15   facts, the procedural history of the case, and the issues on appeal.

16          We review de novo a district court’s order granting summary judgment. Molinari v.

17   Bloomberg, 564 F.3d 587, 595 (2d Cir. 2009). “Summary judgment is appropriate where there exists

18   no genuine issue of material fact and, based on the undisputed facts, the moving party is entitled to

19   judgment as a matter of law.” 10 Ellicott Square Court Corp. v. Mtn. Valley Indem. Co., 634 F.3d

20   112, 119 (2d Cir. 2011) (internal quotation marks omitted). The burden is on the moving party to



            1
              The parties consented to the magistrate judge’s exercise of jurisdiction pursuant to 28
     U.S.C. § 636(c).

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 1   demonstrate that no genuine issue respecting any material fact exists. See id. In reviewing a court’s

 2   decision granting summary judgment, the appellate court must consider “the evidence in the light

 3   most favorable to the non-moving party and draw[ ] all reasonable inferences in its favor.” Palmieri

 4   v. Allstate Ins. Co., 445 F.3d 179, 187 (2d Cir. 2006). “Nevertheless, the non[-]moving party must

 5   come forward with specific facts showing that there is a genuine issue of material fact for trial.”

 6   Shannon v. N.Y. City Transit Auth., 332 F.3d 95, 99 (2d Cir. 2003). “Conclusory allegations,

 7   conjecture, and speculation . . . are insufficient to create a genuine issue of fact.” Id. (internal

 8   quotation marks omitted); see also Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000)

 9   (“[U]nsupported allegations do not create a material issue of fact.”).

10          First, we agree with the magistrate judge that Joseph failed to adduce sufficient evidence of

11   a disability to satisfy that element of a prima facie ADA claim. See Giordano v. City of N.Y., 274

12   F.3d 740, 747 (2d Cir. 2001). The version of the ADA in effect at the time of Joseph’s termination

13   in 2007 defined “disability” as: “(A) a physical or mental impairment that substantially limits one

14   or more of the major life activities of such individual; (B) a record of such impairment; or (C) being

15   regarded as having such an impairment.” EEOC v. J.B. Hunt Transp., Inc., 321 F.3d 69, 74 (2d Cir.

16   2003) (quoting 42 U.S.C. § 12102(2) (1991)), superseded by 42 U.S.C. § 12102(3) (2009). On de

17   novo review of the record, we identify evidence that Joseph suffered from a bunion and pain on her

18   toenail following surgery which prevented her from wearing stockings with closed shoes. While

19   these symptoms caused Joseph some difficulty with walking,2 see 29 C.F.R. § 1630.2(i) (1991),



            2
              Although Joseph indicated that she had some difficulty standing, standing was not
     considered a “major life activity” under the prior version of the regulations applicable here. See 29
     C.F.R. § 1630.2 (1991) (“Major Life Activities means functions such as caring for oneself,
     performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.”).

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 1   Joseph did not adduce sufficient evidence to support a finding that she was “significantly restricted

 2   in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared

 3   to the average person having comparable training, skills and abilities.” 29 C.F.R. § 1630.2(j)(3)(i)

 4   (1991), superseded by 29 C.F.R. § 1630.2(j) (2011). Indeed, Joseph testified that she was not

 5   limited in performing her work duties by her foot condition. Further, Joseph failed to demonstrate

 6   that the Hospital perceived her as suffering from a disability, as her doctors’ communications to the

 7   Hospital indicate no more than that she was suffering from foot pain and therefore could not wear

8    stockings. See Colwell v. Suffolk Cnty. Police Dep’t, 158 F.3d 635, 646 (2d Cir. 1998) (requiring

9    showing that employer regarded plaintiff as having “an impairment that substantially limited a major

10   life activity”). We therefore find no error in the granting of summary judgment to the Hospital on

11   Joseph’s ADA claims.3

12          We next conclude that Joseph failed to establish a prima facie case of discrimination on the

13   basis of her national origin. Under the McDonnell Douglas framework applicable to Title VII

14   claims, a plaintiff must first demonstrate a prima facie case of discrimination by showing that: 1)

15   she was in a protected group; 2) she was qualified for the position; 3) she was subject to an adverse

16   employment action; and 4) the adverse employment action occurred under circumstances giving rise

17   to an inference of discrimination. See Terry v. Ashcroft, 336 F.3d 128, 137-38 (2d Cir. 2003);

18   Collins v. N.Y. City Trans. Auth., 305 F.3d 113, 118 (2d Cir. 2002). Joseph principally cited as

19   evidence of discrimination on the basis of her Haitian origin an August 14, 2007 disciplinary notice

20   reprimanding her for speaking in her native French in violation of the Hospital’s policy to speak


            3
             Because Joseph has not established that she is a person with a disability within the meaning
     of the ADA, her failure to accommodate claim against the Hospital also fails. See McBride v. BIC
     Consumer Prods. Mfg. Co., Inc., 583 F.3d 92, 96-97 (2d Cir. 2009).

                                                        4
 1   English in the office unless the employee was assisting a patient who spoke another language.

 2   However, Joseph adduced no evidence to support her claim that other employees were permitted to

 3   speak Spanish in the workplace without being disciplined and thus no evidence that she was treated

 4   differently by the Hospital because of her Haitian origin. See Soberal-Perez v. Heckler, 717 F.2d

 5   36, 42 (2d Cir. 1983) (observing that a policy having a preference for English over all other

 6   languages is not evidence of discriminatory intent). Accordingly, the magistrate judge did not err

 7   in granting summary judgment to the Hospital on Joseph’s discrimination claim.

 8          Finally, we conclude that Joseph did not establish a claim for a hostile work environment

 9   based on either disability or national origin discrimination. Harassment is actionable when it creates

10   a hostile work environment which is “so severely permeated with discriminatory intimidation,

11   ridicule, and insult that the terms and conditions of [plaintiff’s] employment were thereby altered.”

12   Alfano v. Costello, 294 F.3d 365, 373 (2d Cir. 2002). The record is devoid of evidence suggesting

13   that Joseph was disabled within the meaning of the ADA, or that she was ridiculed or harassed

14   because of an alleged disability. Nor does the record support a claim that Joseph was discriminated

15   against on the basis of her Haitian origin or that she was harassed or ridiculed on this basis. See

16   Brennan v. Metro. Opera Ass’n, Inc., 192 F.3d 310, 318 (2d Cir. 1999) (“A plaintiff must also

17   demonstrate that she was subjected to the hostility because of her membership in a protected class.”).

18   Consequently, the magistrate judge did not err in rejecting this claim.




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1          We have reviewed the parties’ remaining arguments and find them to be moot, waived, or

2   without merit. See Norton v. Sam’s Club, 145 F.3d 114, 117 (2d Cir. 1998). The judgment of the

3   district court is therefore AFFIRMED.

4                                                     FOR THE COURT:
5                                                     Catherine O’Hagan Wolfe, Clerk
6




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