17‐4139 
Hazelwood v. Highland Hospital 

                         UNITED STATES COURT OF APPEALS
                             FOR THE SECOND CIRCUIT

                             AMENDED 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 1st day of March, two thousand and nineteen.

Present:
               REENA RAGGI,
               PETER W. HALL,
               RICHARD J. SULLIVAN
                   Circuit Judges.


Elizabeth A. Hazelwood,

               Plaintiff-Appellant,

v.                                                                     17-4139-cv



Highland Hospital, Mary Johnson, Individually,

              Defendants-Appellees.


For Appellee:                         STEPHEN J. JONES, Nixon Peabody LLP, Rochester,
                                      New York.

For Appellant:                        RYAN C. WOODWORTH, The Woodworth Law Firm,
                                      Rochester, New York.
         Appeal from a judgment entered November 30, 2017 in the Western District of

New York (Larimer, J.).


         UPON     DUE     CONSIDERATION,         IT    IS   HEREBY       ORDERED,

ADJUDGED, AND DECREED that the district court’s judgment is AFFIRMED.


         Appellant Elizabeth Hazelwood, who is deaf, appeals from an order granting

summary judgment to Appellees Highland Hospital and Mary Johnson (collectively

“Highland”) on her claims for failure to accommodate and unlawful retaliation under

the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq. We assume the

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

arguments presented on appeal, which we describe only as necessary to explain our

decision to affirm.

         We review de novo a district court’s grant of summary judgment. Lovejoy-

Wilson v. NOCO Motor Fuel, Inc., 263 F.3d 208, 212 (2d Cir. 2011). A court should

grant summary judgment if it finds “there is no genuine issue as to any material fact

and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

In deciding a motion for summary judgment, a court must “resolve all ambiguities

and draw all factual inferences in favor of the party against whom summary

judgment is sought.” Chambers v. TRM Copy Centers Corp., 43 F.3d 29, 36 (2d Cir.

1994).

         Hazelwood argues material issues of fact exist as to whether Highland

provided her with a reasonable accommodation. Drawing all factual inferences in

favor of Hazelwood, we find her argument to be without merit. A reasonable

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accommodation “enable[s] an individual with a disability who is qualified to perform

the essential functions of that position.” 29 C.F.R. § 1630.2(o)(1)(ii). Employers are

not required to provide an accommodation that the employee prefers—all that is

required is that the employer provide an effective accommodation. Noll v. Int’l Bus.

Machs. Corp., 787 F.3d 89, 95 (2d Cir. 2015) (citing U.S. Airways, Inc. v. Barnett, 535

U.S. 391, 400 (2002)).         Highland provided Hazelwood with an effective

accommodation by having her co-workers and supervisors relay, on Hazelwood’s

behalf, critical test results to requesting physicians.     Hazelwood concedes the

accommodation allowed her to fulfill her job duties and provides no evidence to

suggest any of those test results were not relayed to physicians or were delayed

beyond the requisite time frame for delivering them.

      Hazelwood also asserts material issues of fact exist concerning whether

Highland unlawfully retaliated against Hazelwood because she complained of

discrimination. We disagree.

      To establish a prima facie case of retaliation, a plaintiff must show that: (1)

she engaged in an activity protected by the ADA; (2) the employer was aware of this

activity; (3) the employer took an adverse employment action against her; and (4)

there is a causal connection between the alleged adverse action and the protected

activity. See Treglia v. Town of Manlius 313 F.3d 713, 719 (2d Cir. 2002). An

employee’s complaint can constitute protected activity “so long as the employee has a

good faith, reasonable belief that the underlying challenged actions of the employer




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violated [the ADA].” Gregory v. Daly, 243 F.3d 687, 701-02 (2d Cir. 2001) (internal

quotation marks omitted).

      When Hazelwood complained about the Critical Call form on December 13,

2012, that complaint did not demonstrate a good-faith, reasonable belief that

Highland was violating the ADA when implementing the Critical Call form.

Although the record reflects certain conclusory assertions that the Critical Call form

was “discriminatory in nature” J.A. 760, the only specific complaint articulated by

Hazelwood was that the form was “redundant,” not that it constituted discrimination

in violation of the ADA. J.A. 760-61, J.A. 115.

      Even if Hazelwood could establish that she engaged in protected activity when

she complained to management about the Critical Call form, she fails to establish a

causal connection between the protected activity and her termination. While a causal

connection can be established indirectly by showing that the protected activity was

closely followed in time by the adverse employment action, Gorzynski v. JetBlue

Airways Corp., 596 F.3d 93, 110 (2d Cir. 2010), the temporal nexus here – ten months

– is insufficient to establish such a connection, see Clark Cty. Sch. Dist. v. Breeden,

532 U.S. 268, 273-74 (2001) (noting that prior cases “uniformly hold that the temporal

proximity must be ‘very close’”). Additionally, Hazelwood’s supervisors began calling

performance deficiencies to her attention months before she complained to

management about the Critical Call form. “Where timing is the only basis for a claim

of retaliation, and gradual adverse job actions began well before the plaintiff had ever




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engaged in any protected activity, an inference of retaliation does not arise.” Slattery

v. Swiss Reinsurance America Corp., 248 F.3d 87, 95 (2d Cir. 2001).

      The judgment of the district court is AFFIRMED.

                                        FOR THE COURT:
                                        Catherine O’Hagan Wolfe, Clerk of Court




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