14-68-cv
Turner v. Eastconn Regional Education Service Center, et al.

                                    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 17th day of December, two thousand fourteen.

PRESENT:             JOSÉ A. CABRANES,
                     RICHARD C. WESLEY,
                     PETER W. HALL,
                                  Circuit Judges.


REBECCA A. TURNER,

                     Plaintiff-Appellant,

                               v.                                            No. 14-68-cv

EASTCONN REGIONAL EDUCATION SERVICE
CENTER, PAULA COLEN, STEVEN WAPEN, DORIS
DYER, THOMAS CRONIN, RONALD MORIN,

                     Defendants-Appellees.


FOR PLAINTIFF-APPELLANT:                                       PHILIP G. KENT, Susman, Duffy & Segaloff,
                                                               P.C., New Haven, CT.

FOR DEFENDANTS-APPELLEES:                                      MARK J. SOMMARUGA (Zachary D. Schurin, on
                                                               the brief), Pullman & Comley LLC, Hartford,
                                                               CT.
        Appeal from a December 4, 2013 judgment of the United States District Court for the
District of Connecticut (Vanessa L. Bryant, Judge).

     UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the District Court be and hereby is
AFFIRMED.

         Plaintiff-appellant Rebecca Turner (“Turner”), a special education teacher formerly
employed at the Autism Program of defendant Eastconn Regional Education Service Center,
appeals the December 4, 2013 judgment of the district court granting in part defendants’ motion for
summary judgment. Turner had asserted claims against Eastconn and the individual defendants,
who were plaintiff’s supervisors at Eastconn, for violations, inter alia, of the Connecticut Fair
Employment Practices Act; Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq.
(“Title VII”), as amended by the Pregnancy Discrimination Act, 42 U.S.C. § 2000e(k) (“PDA”); the
Family Medical Leave Act, 29 U.S.C. § 2611, et seq. (“FMLA”); and the Americans with Disabilities
Act, 42 U.S.C. § 12101, et seq. (“ADA”). Turner’s complaint alleged that defendants engaged in
employment discrimination on the basis of her pregnancy by failing to provide reasonable
accommodations, placing her on FMLA leave involuntarily, and later terminating her employment
after refusing to extend her FMLA leave following the birth of her children and the exhaustion of
her statutory twelve-week entitlement. We assume the parties’ familiarity with the underlying facts,
the procedural history of the case, and the issues on appeal.

         We review de novo an order granting summary judgment and “resolv[e] all ambiguities and
draw[] all permissible factual inferences in favor of the party against whom summary judgment is
sought.” Burg v. Gosselin, 591 F.3d 95, 97 (2d Cir. 2010) (internal quotation marks omitted). We
must affirm a summary judgment order when “there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “A defendant is
entitled to summary judgment where the plaintiff has failed to come forth with evidence sufficient to
permit a reasonable juror to return a verdict in his or her favor on an essential element of a claim on
which the plaintiff[] bear[s] the burden of proof.” Selevan v. N.Y. Thruway Auth., 711 F.3d 253, 256
(2d Cir. 2013) (quotation marks and alterations omitted). “[C]onclusory statements or mere
allegations [are] not sufficient to defeat a summary judgment motion.” Davis v. New York, 316 F.3d
93, 100 (2d Cir. 2002).

        Upon de novo review of the record on appeal and upon consideration of the arguments
advanced by the parties, we affirm the judgment of the District Court, substantially for the reasons
set forth in its December 2, 2013 Memorandum and Order.

        Turner’s claims of discrimination under the ADA and Title VII, as amended by the PDA, as
well as her claim of FMLA retaliation, are analyzed pursuant to the burden-shifting framework set
forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See McBride v. BIC Consumer Prods. Mfg.

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Co., Inc., 583 F.3d 92, 96 (2d Cir. 2009) (applying McDonnell Douglas to ADA claim); Kerzer v. Kingly
Mfg., 156 F.3d 396, 400 (2d Cir. 1998) (applying McDonnell Douglas to PDA claim); Potenza v. City of
New York, 365 F.3d 165, 167-68 (2d Cir. 2004) (applying McDonnell Douglas to FMLA retaliation
claim). In the McDonnell Douglas analysis, plaintiff must first establish a prima facie case of violation,
which shifts the burden to the defendant to articulate a legitimate, non-discriminatory reason for its
conduct, at which point the burden shifts back to the plaintiff to show that defendant’s explanations
are a pretext for impermissible discrimination. Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708,
714 (2d Cir. 1996). In each instance, even assuming for the sake of argument that plaintiff has
established a prima facie case of unlawful discrimination, she fails to carry her burden of showing that
defendant’s legitimate, non-discriminatory explanations are mere pretext.

         In her complaint, Turner advanced two types of disability claims under the ADA. First, she
alleged discrimination based upon a failure to accommodate, for which claim she must show that
“(1) [p]laintiff 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.” McBride, 583 F.3d at 96-97 (internal quotation marks omitted). Secondly, she
alleges discrimination via an adverse employment action, for which claim plaintiff must show “(a)
that [her] employer is subject to the ADA; (b) that [she] is disabled within the meaning of the ADA
or perceived to be so by [her] employer; (c) that [she] was otherwise qualified to perform the
essential functions of the job with or without reasonable accommodation; and (d) that [she] suffered
an adverse employment action because of [her] disability.” Brady v. Wal-Mart Stores, Inc., 531 F.3d
127, 134 (2d Cir. 2008) (internal quotation marks omitted). On appeal, Turner appears to have
abandoned her claim that her pregnancy itself constituted a disability and focuses her challenge
instead on allegations that defendants regarded her condition as a disability. If so, Turner
undermines her claim for failure to accommodate, which, as noted above, requires a showing of
disability.

         In any event, as the District Court properly concluded, both ADA claims fail on the
grounds, among others, that Turner has not adequately established the existence of a reasonable
accommodation. “A reasonable accommodation can never involve the elimination of an essential
function of a job.” Shannon v. N.Y.C. Transit Auth., 332 F.3d 95, 100 (2d Cir. 2003). Here, Turner
herself testified that two thirds of her job involved the direct instruction of potentially aggressive
students, the very activity for which she sought an accommodation and that her two doctor’s notes
prohibited her from doing. See App’x at 149-50, 251. Turner now unpersuasively attempts to cast
her doctor’s notes of September 7, 2010, and September 24, 2010, which respectively prohibited her
from “working closely with children who can become aggressive” and from “having one[-]on[-]one
contact with aggressive children,” see App’x at 149-50, as merely proscribing her participation in
restraining aggressive students, see Appellant’s Br. 20. This characterization is singularly
unpersuasive for the simple reason that when Turner previously requested to be excused, pursuant

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to a doctor’s note, from “restraining activities” in April 2010, defendants readily honored the request
and supplied the requested accommodation. See App’x at 148. It was only in September 2010, when
Turner requested to be excused from “working closely with” or “having one[-]on[-]one contact
with” her students that the requested accommodation became an elimination of an essential job
function, which defendants were not required to provide.

         Turner’s secondary requested accommodation—that she be permitted for the duration of
her pregnancy to replace a colleague who at that time held the position of “lead teacher”—fails for
the reason that reasonable accommodation only includes, in certain circumstances, “reassignment to
a vacant position” and plaintiff here fails to carry her burden of showing the existence of any such
vacant position. McBride, 583 F.3d at 97 (emphasis added).

         The District Court also did not err in dismissing upon summary judgment Turner’s claim of
violation of the PDA, which expressly extends Title VII’s protections against sex discrimination to
cover discrimination on the basis of pregnancy. See Saks v. Franklin Covey Co., 316 F.3d 337, 343 (2d
Cir. 2003). In her complaint, Turner alleges that she suffered unlawful adverse employment actions
when defendants placed her on FMLA leave as of October 4, 2010, shortly after receipt of her
September 2010 doctor’s notes, and subsequently terminated her in January 2011 when her FMLA
leave expired. The record here, however, indicates that defendants acted to initiate FMLA leave
early in accordance with plaintiff’s own requests and doctor’s notes, since no reasonable
accommodation was available, and only terminated plaintiff’s employment after she declined to
return to work upon the expiration of her twelve week leave. Further, as the District Court rightly
opined in its judgment on the motion to dismiss, “Turner’s allegation that a similarly situated
pregnant employee, Allyson Carter, received favorable treatment would undermine any inference
that the Defendants were motivated by anti-pregnancy animus.” Turner v. Eastconn Reg’l Educ. Serv.
Ctr., No. 3:12-cv-788 (VLB), 2013 WL 1092907, *9 (D. Conn. 2013). Since defendants have
provided a neutral, non-discriminatory explanation, which plaintiff has failed to rebut with evidence
of pretext, Turner’s PDA claim fails. See Quarantino v. Tiffany & Co., 71 F.3d 58, 64 (2d Cir. 1995)
(“The plaintiff has the ultimate burden of persuading the trier of fact that the defendant intentionally
discriminated against her on account of her pregnancy.”).

        Finally, the District Court properly dismissed upon summary judgment Turner’s FMLA
claims for interference and retaliation. Plaintiff here has failed to demonstrate that defendants
interfered with her FMLA rights by forcing an early start to her leave period or otherwise denied her
the benefits to which she was entitled under the FMLA. See Sista v. CDC Ixis N. Am., Inc., 445 F.3d
161, 175 (2d Cir. 2006) (holding that the employer’s imposition of involuntary FMLA leave, by itself,
was not actionable under the FMLA). On the contrary, and in the absence of a showing of
reasonable accommodation, defendants’ initiation of the FMLA period were prompted by plaintiff’s
own doctor-requested restrictions.



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         Similarly unavailing is Turner’s claim under the FMLA that her termination was in retaliation
for taking the FMLA leave to which she was legally entitled. The record reflects that defendants
provided plaintiff with the full extent of required FMLA leave, but after its expiration Turner herself
decided not to return to work after being denied an extension of her leave in order to care for her
children. Plaintiff does not—and, indeed, cannot—argue that she was legally entitled to additional
FMLA leave. Even assuming that plaintiff has adequately established a prima facie case for FMLA
retaliation, which is doubtful, she has failed to produce the required evidence of pretext to rebut
defendants’ legitimate, non-discriminatory reason for her termination—i.e., that Turner failed to
return to the job.

                                          CONCLUSION

       We have considered all of the arguments raised by plaintiff on appeal and find them to be
without merit. For the foregoing reasons, we AFFIRM the District Court’s December 4, 2013
judgment.


                                                       FOR THE COURT:
                                                       Catherine O’Hagan Wolfe, Clerk




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