15-1098-cv
Forrester v. Corizon Health, Inc.

                                   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
6th day of June, two thousand sixteen.

Present:    AMALYA L. KEARSE,
            ROSEMARY S. POOLER,
            ROBERT D. SACK,
                        Circuit Judges.
_____________________________________________________

BERNICE FORRESTER,

                                      Plaintiff-Appellant,

                             v.                                                      15-1098-cv

PRISON HEALTH SERVICES, INC., CORIZON HEALTH INC.1,

                        Defendants-Appellees.
_____________________________________________________

Appearing for Appellant:              Joshua Alexander Bernstein, New York, NY.

Appearing for Appellee:               Jakob B. Halpern, Saiber LLC (Jennine DiSomma, on the brief),
                                      Florham Park, NJ.

       Appeal from the United States District Court for the Eastern District of New York
(Garaufis, J.).



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    The Clerk of the Court is respectfully directed to amend the caption as above.
     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the order of said District Court be and it hereby is AFFIRMED.

        Bernice Forrester appeals from the March 30, 2015 memorandum and order of the United
States District Court for the Eastern District of New York (Garaufis, J.) granting the motion for
summary judgment made by Corizon Health Inc. and Prison Health Services, Inc. (together,
“Defendants”). The district court found that Forrester failed to raise a question of material fact
on her claims for employment discrimination under federal law and declined to exercise
supplemental jurisdiction over her claims brought pursuant to the New York City Human Rights
Law. We assume the parties’ familiarity with the underlying facts, procedural history, and
specification of issues for review.

      Claims of discrimination brought under the Americans with Disabilities Act of 1990, 42
U.S.C. § 1201 et seq (“ADA”) are subject to the traditional burden-shifting framework set forth
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See McMillan v. City of New York,
711 F.3d 120, 125 (2d Cir. 2013) (applying McDonnell Douglas's Title VII framework to ADA
claim). Under this framework, “[a] plaintiff must establish a prima facie case; the employer
must offer through the introduction of admissible evidence a legitimate non-discriminatory
reason for the discharge; and the plaintiff must then produce evidence and carry the burden of
persuasion that the proferred reason is a pretext.” Cortes v. MTA N.Y.C. Transit, 802 F.3d 226,
231 (2d Cir. 2015) (quoting Sista v. CDC Ixis N. Am., Inc., 445 F.3d 161, 169 (2d Cir. 2006)).
“To establish a prima facie case under the ADA:”

               a plaintiff must show by a preponderance of the evidence that: ‘(1)
               his employer is subject to the ADA; (2) he was disabled within the
               meaning of the ADA; (3) he was otherwise qualified to perform
               the essential functions of his job, with or without reasonable
               accommodation; and (4) he suffered adverse employment action
               because of his disability.’

Id. (quoting Giordano v. City of New York, 274 F.3d 740, 747 (2d Cir. 2001)). It is questionable
whether ADA discrimination claims may proceed on a mixed-motive theory after the Supreme
Court's decision in Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009), where the Court
held that the Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. § 621 et
seq., does not authorize a mixed-motive age-discrimination claim. Bolmer v. Oliveira, 594 F.3d
134, 148 (2d Cir. 2010) (discussing Title II of the ADA). The Gross Court held that “age
discrimination must be the ‘but-for’ cause of an adverse employment action for ADEA liability
to attach.” Id. We need not decide whether Forrester may proceed under a mixed-motive theory,
as we find her claims fail regardless of the causation standard applied.

        Forrester argues that she adduced sufficient evidence to go to trial on the issue of whether
her disability contributed to the decision to demote her from a supervisory position in violation
of the ADA. We disagree. As set forth in the district court’s thorough analysis, Forrester failed to
raise a question of material fact on the issue of pretext. Defendants assert that Forrester was
removed from her leadership position because (1) she received a very low rating on her most
recent employee evaluation; and (2) the Department of Health (“DOH”) told defendants “all of


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the leadership” at the facility Forrester worked needed to be removed, threatening to take over
the facility if changes were not made. Supp. App’x at 829, 834. A representative from the DOH
rated Forrester’s work as “mediocre.” Supp. App’x at 830. There is simply not enough evidence
in the record to raise a triable issue as to whether Defendants’ proferred reason for the demotion
was pretextual.

        We also agree with the district court that Forrester failed to establish that the reason for
her firing was pretextual. A review of her work email account conducted by her employer
revealed a series of nine separate emails forwarding sensitive, confidential information,
including prisoner location and gang affiliations, from her work account to her home email
address. As a result of this breach, the Department of Corrections (“DOC”) indefinitely
suspended Forrester’s security clearance. Without a valid security clearance, Forrester could not
work on Riker’s Island, and her employment was terminated. Forrester argues that her
credentials could be reinstated if Defendants rehired her and asked DOC to reissue them, but the
record does not support such an inference. Nor is there record evidence to support Forrester’s
theory that the emails were deliberately planted in an effort to fire her. Even accepting her theory
that, if she were cleared, her security credentials could be restored, the Defendants were under no
obligation to clear her. The loss of her security clearance is a legitimate, nondiscriminatory
ground for Defendants’ decision to terminate her employment.

       We have considered the remainder of Forrester’s arguments and find them to be without
merit. Accordingly, the order of the district court hereby is AFFIRMED.


                                                     FOR THE COURT:
                                                     Catherine O’Hagan Wolfe, Clerk




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