         09-2317-cv
         D’Eredita v. ITT Industries


                                   UNITED STATES COURT OF APPEALS
                                       FOR THE SECOND CIRCUIT

                                                 SUMMARY ORDER

R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . C ITATION TO A SUMMARY ORDER FILED ON OR AFTER J ANUARY 1,
2007, IS PERMITTED AND IS GOVERNED BY F EDERAL R ULE OF A PPELLATE P ROCEDURE 32.1 AND THIS COURT ’ S L OCAL R ULE 32.1.1.
W HEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT , A PARTY MUST CITE EITHER THE F EDERAL A PPENDIX 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
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 17 th day of March, two thousand and ten.
 5
 6       PRESENT: RICHARD C. WESLEY,
 7                DEBRA ANN LIVINGSTON,
 8                         Circuit Judges
 9                RICHARD K. EATON,
10                         Judge. *
11
12
13
14       STEVE D’EREDITA,
15
16                                       Plaintiff-Appellant,
17
18                       -v.-                                                   09-2317-cv
19
20       ITT CORPORATION,
21       GOULDS PUMPS, INC.,
22
23                                       Defendants-Appellees. **
24
25       FOR APPELLANT:                  CHRISTINA A. AGOLA, Christina A. Agola,
26                                       Attorneys and Counselors at Law, PLLC,
27                                       Rochester, NY.
28
29       FOR APPELLEES:                  JOSEPH S. BROWN, Hodgson Russ LLP,
30                                       Buffalo, NY.
31

                 *
                 The Honorable Richard K. Eaton, of the United States Court of
         International Trade, sitting by designation.

                 **
                  The Clerk of the Court is respectfully directed to amend the official
         caption in this action to conform with that of this order.


                                                            1
1         Appeal from the United States District Court for the
2    Western District of New York (Siragusa, J.).
3
4        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

5    AND DECREED that the judgment of the district court be

6    AFFIRMED.

7        Steve D’Eredita (“Appellant”) appeals from a judgment

8    of the United States District Court for the Western District

9    of New York (Siragusa, J.), which granted summary judgment

10   to the Defendants-Appellees (“ITT”) and dismissed the

11   Appellant’s complaint in its entirety.    We assume the

12   parties’ familiarity with the underlying facts, the

13   procedural history, and the issues presented for review.

14       Appellant commenced this action by filing a complaint

15   on April 5, 2007, alleging causes of action for

16   discrimination and retaliation in violation of Title VII of

17   the Civil Rights Act of 1964 and the New York State Human

18   Rights Law, Executive Law Section 290.    Specifically, he

19   alleges that ITT discriminated against him because of his

20   dyslexia.   The parties have treated Appellant’s claims as

21   arising under the Americans with Disabilities Act, and the

22   district court did likewise.    D’Eredita v. ITT Industries,

23   No. 07-cv-6185, 2009 WL 1161618, at *1 (W.D.N.Y. Apr. 29,

24   2009).   We will do the same.



                                     2
1        This Court reviews an order granting summary judgment

2    de novo and asks whether the district court properly

3    concluded that there were no genuine issues of material fact

4    and that the moving party was entitled to judgment as a

5    matter of law.   See Miller v. Wolpoff & Abramson, L.L.P.,

6    321 F.3d 292, 300 (2d Cir. 2003).       In determining whether

7    there are genuine issues of material fact, this Court is

8    “required to resolve all ambiguities and draw all

9    permissible factual inferences in favor of the party against

10   whom summary judgment is sought.”       Terry v. Ashcroft, 336

11   F.3d 128, 137 (2d Cir. 2003) (internal quotation marks

12   omitted).

13       We are unpersuaded by Appellant’s argument that he was

14   capable of performing the essential job functions of a

15   Commercial Assembler without a reasonable accommodation.         “A

16   court must give considerable deference to an employer’s

17   judgment regarding what functions are essential for service

18   in a particular position.”   D’Amico v. City of New York, 132

19   F.3d 145, 151 (2d Cir. 1998).       Because ITT has shown that

20   accuracy with speed is essential to the Commercial Assembler

21   position at its Auburn facility – and the record is replete

22   with evidence that Appellant was incapable of satisfying

23   that standard – the district court was correct to hold that


                                     3
1    Appellant was unable to perform his essential job functions

2    without an accommodation as a matter of law.

3           Appellant next argues that he was capable of performing

4    the essential functions of his job with a reasonable

5    accommodation, and ITT neglected to extend such an

6    accommodation.     “Discrimination in violation of the ADA

7    includes, inter alia, not making reasonable accommodations

8    to the known physical or mental limitations of an otherwise

9    qualified individual with a disability.”     McBride v. BIC

10   Consumer Prods. Mfg. Co., Inc., 583 F.3d 92, 96 (2d Cir.

11   2009) (internal quotation marks omitted).     Appellant’s

12   argument fails because his proposed accommodations are not

13   reasonable.    See Fink v. New York City Dep’t of Personnel,

14   53 F.3d 565, 567 (2d Cir. 1995).     Moreover, ITT did extend a

15   reasonable accommodation by permitting Appellant to bid on

16   non-assembly jobs while continuing his medical benefits in

17   the interim.     See, e.g., Jay v. Intermet Wagner, Inc., 233

18   F.3d 1014, 1017 (7th Cir. 2000).     A reasonable accommodation

19   “does not require the employer to provide every

20   accommodation the disabled employee may request, so long as

21   the accommodation provided is reasonable.”     Fink, 53 F.3d at

22   567.


                                     4
1        Finally, Appellant’s claim for retaliatory

2    discrimination is meritless.   There is nothing to indicate

3    that ITT laid off Appellant due to his claims of

4    discrimination; instead, the evidence is overwhelming that

5    he was disciplined and transferred due to his persistent

6    errors on the assembly line.   And, while he argues that

7    other employees who made similar mistakes were treated less

8    harshly, Appellant has failed to demonstrate that those

9    individuals were “similarly situated in all material

10   respects.”   See Graham v. Long Island R.R., 230 F.3d 34, 39

11   (2d Cir. 2000) (internal quotation marks omitted).     His

12   claim was thus rightly dismissed by the district court.

13       We have considered the Appellant’s remaining arguments

14   and find them to be without merit.   For the foregoing

15   reasons, the judgment of the district court is hereby

16   AFFIRMED.

17
18                               FOR THE COURT:
19                               Catherine O’Hagan Wolfe, Clerk
20
21




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