     14-713-cv
     Cortes v. MTA New York City Transit

                             UNITED STATES COURT OF APPEALS
 1
 2                                 FOR THE SECOND CIRCUIT
 3
 4                                   August Term, 2014
 5
 6   (Submitted:        February 19, 2015                Decided: September 4, 2015)
 7
 8                               Docket No. 14-713-cv
 9   - - - - - -         - - - - - - - - - - - - - - - - - - - - - - - - - -
10
11   JUAN E. CORTES,
12             Plaintiff-Appellant,
13
14                         v.
15
16   MTA NEW YORK CITY TRANSIT,
17             Defendant-Appellee.*
18
19   - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
20
21   B e f o r e:        WINTER, POOLER, and SACK, Circuit Judges.
22
23         Appeal from a grant of summary judgment by the United States

24   District Court for the Eastern District of New York (Eric N.

25   Vitaliano, Judge) dismissing appellant’s claims under the

26   Americans with Disabilities Act.               We clarify the effect of prior

27   administrative proceedings and arbitration awards in the dispute

28   leading to the litigation and affirm in part, vacate in part, and

29   remand.

30                                             Stewart Lee Karlin (Natalia
31                                             Kapitonova on the brief), The Law
32                                             Offices of Stewart Lee Karlin,
33                                             P.C., New York, NY, for Plaintiff-
34                                             Appellant.


           *
               The Clerk of the Court is directed to amend the case caption accordingly.

                                                                     1
 1                                  Robert Kenneth Drinan (Lewis S.
 2                                  Finkleman and Kristen M. Nolan on
 3                                  the brief), New York City Transit
 4                                  Law Department, Brooklyn, NY, for
 5                                  Defendant-Appellee.
 6
 7   WINTER, Circuit Judge:

 8        Juan E. Cortes appeals from Judge Vitaliano’s grant of

 9   summary judgment to MTA New York City Transit (“MTA”), dismissing

10   appellant’s claims under the Americans with Disabilities Act

11   (“ADA”), 42 U.S.C. §§ 12112-12117.   Before bringing the present

12   action, appellant filed a substantially similar disability

13   discrimination claim with the New York State Division of Human

14   Rights (“NYSDHR”), which dismissed it.   Based on Collins v. New

15   York City Transit Authority, 305 F.3d 113 (2d Cir. 2002), the

16   district court gave almost preclusive weight to the NYSDHR’s

17   dismissal of this claim.   Because Collins addresses only the

18   effect of arbitration awards under a collective bargaining

19   agreement and does not apply to the decisions of state

20   administrative agencies, we vacate and remand the dismissal of

21   appellant’s disability discrimination claim.   However, we affirm

22   the dismissal of appellant’s retaliation claim.

23                               BACKGROUND

24        This is an appeal from a grant of summary judgment, and we

25   view the factual record in the light most favorable to appellant.

26   McGuinness v. Lincoln Hall, 263 F.3d 49, 52 (2d Cir. 2001).

27


                                      2
 1        On July 11, 1994, MTA hired appellant as a train conductor.

 2   He was promoted to passenger train operator in 1998.   In late

 3   2001, he became a work train (no passengers) operator.     On

 4   October 15, 2006, appellant had a dispute with a supervisor.     On

 5   that day or soon thereafter, he also injured his back.     A

 6   subsequent MRI showed injury to four lumbar discs, and

 7   appellant’s personal doctor ordered him not to work from November

 8   3, 2006 until January 7, 2007.

 9        Appellant’s employment was governed by a collective

10   bargaining agreement (“CBA”) that required him, before returning

11   to work, to undergo a full physical evaluation at MTA’s Medical

12   Assessment Center (“MAC”) and to obtain a fit-for-duty

13   certificate.   On January 7, 2007, in the course of the physical

14   evaluation, an EKG test revealed a potentially dangerous cardiac

15   abnormality.   MAC doctors barred appellant from operating trains

16   until he had undergone complete cardiac testing.   Because

17   appellant’s job was “safety sensitive,” the MTA determined that

18   there were no train-operator duties appellant could perform until

19   he was medically cleared.

20        Appellant’s doctor confirmed the abnormal EKG and referred

21   him to a cardiologist, Dr. Jane Levine.   On March 5, 2007,

22   appellant submitted documentation to MAC showing that Dr. Levine

23   confirmed the coronary artery disease diagnosis and, as a result,

24   he could not perform train-operator duties.   Dr. Levine


                                      3
 1   recommended additional diagnostic procedures including a nuclear

 2   stress test and a cardiac catheterization or, alternatively, a

 3   cardiac CT angiogram.

 4        On March 20, 2007, appellant met with MAC doctors again.

 5   The stress test revealed coronary artery disease, but appellant

 6   refused to undergo a catheterization.   Appellant claimed that he

 7   refused catheterization only because was waiting for his

 8   insurer’s approval of an angiogram.   Because appellant had not

 9   provided the requisite documentation, MAC doctors left the work

10   restrictions in place and gave him until May 15, 2007 to submit

11   the results of an angiogram.   Appellant failed to submit the

12   results by the deadline.   Consequently, his work restrictions

13   were changed from temporary to permanent, which allowed him to be

14   reclassified to a position encompassing duties he was physically

15   fit to perform.

16        In late August 2007, appellant received the results of the

17   angiogram, which revealed no heart or artery disease.   Appellant,

18   however, did not give these results to the MTA and missed a

19   September 25, 2007 appointment with MAC for a reclassification

20   evaluation.   At a rescheduled appointment on November 28,

21   appellant produced the August diagnostic results.   On March 31,

22   2008, based on the new information, the MTA doctors altered

23   appellant’s work restrictions to allow him to operate work (non-

24   passenger) trains, as he had done since 2001.


                                      4
1         On April 16, 2007, during the various medical examinations,

2    appellant’s counsel filed a complaint with the NYSDHR, claiming

3    the MTA had illegally discriminated against him under state and

4    federal law by failing to accommodate his disability, i.e., his

5    cardiac problem and neck injury.       On January 23, 2009, the NYSDHR

6    issued a decision holding that appellant had not met his burden

 7   of proof on the discrimination claim.       The NYSDHR found, in

 8   relevant part, the following facts.      Appellant had not complied

 9   with the CBA requirement that he obtain a fit-for-duty

10   certificate from MAC to return to work.      Although the MTA was

11   ready to consider lifting appellant’s job restriction if further

12   testing ruled out a heart condition serious enough to endanger

13   passengers, appellant failed to submit the diagnostic results in

14   a timely manner.   As soon as appellant submitted the results of

15   the further cardiac testing, the MTA modified his work

16   restrictions and allowed him to return to operating work trains.

17   Because appellant could not fulfill the essential duties of his

18   safety-sensitive position as passenger train operator without

19   medical clearance, the NYSDHR concluded that no reasonable

20   accommodation would have been possible.       The NYSDHR further noted

21   that appellant never requested an accommodation for his

22   disability.   The NYSDHR opinion became final on January 25, 2010.

23   The EEOC adopted its findings on June 10, 2012.      42 U.S.C. §

24   2000e-5(b) (“[T]he Commission shall accord substantial weight to


                                        5
 1   the final findings and orders made by state or local authorities

 2   . . . .”).     Appellant did not challenge the NYSDHR’s decision

 3   administratively or in state court.

 4         On September 10, 2010, appellant commenced the present

 5   action by filing a pro se complaint against the MTA in the

 6   Eastern District of New York.           The complaint asserted claims

 7   under Title VII, the ADEA, and the ADA.1              42 U.S.C. §§ 2000e to

 8   2000e-17, 29 U.S.C. §§ 621-634, 42 U.S.C. §§ 12112-12117.                    The

 9   only facts alleged in the complaint were that “[I] have never had

10   a medical appeal of my case according to our collective

11   bargaining agreement” and “I had a neck injury 12-26-1996 and

12   believe the Transit Authority is retaliating against me because

13   of this.”     J. App’x at 13.       The complaint did not assert

14   discrimination because of appellant’s back or cardiac conditions

15   or retaliation because of his NYSDHR complaint.

16         The MTA moved for summary judgment, submitting, inter alia,

17   a copy of the NYSDHR/EEOC order.              In response to the MTA’s Rule

18   56.1 statement of material facts, appellant admitted that he had

19   filed an NYSDHR complaint alleging that the MTA discriminated

20   against him on the basis of his initial injury and his cardiac

21   condition.     He also conceded that the NYSDHR had held a hearing



           1
             Cortes withdrew his ADEA and Title VII claims and proceeded only on his ADA
     claim. The district court nevertheless addressed and granted summary judgment to the
     defendants on Cortes’s Title VII claims. We therefore have addressed neither those
     portions of the district court’s opinion nor Cortes’s Title VII claims on appeal.

                                               6
 1   at which he was represented by counsel and gave sworn testimony.

 2   He did not contest any of the NYSDHR’s findings of fact.

 3        Appellant’s response to the MTA’s Rule 56.1 statement

 4   further stated, for the first time, that the alleged

 5   discrimination stemmed not only from an injury sustained at home

 6   and a verbal confrontation with a superior, but also from his

 7   cardiac condition and a neck injury suffered in 1996.   The neck

 8   injury pre-dated by many years his promotion from conductor to

 9   train operator.   He alleged that he was facing disciplinary

10   charges “for being injured.”   J. App’x at 86.   In addition, the

11   parties’ summary judgment briefing discussed additional acts of

12   alleged disability discrimination during the period after Cortes

13   returned to work, including restricted work assignments and

14   overtime.

15        The district court granted summary judgment to the MTA.      The

16   court held that appellant’s claims were not precluded by virtue

17   of the NYSDHR’s prior administrative ruling based on the same

18   facts.   With regard to appellant’s disability discrimination

19   claim, the court assigned substantial weight to the NYSDHR’s

20   findings of fact because they were the product of an “independent

21   and unbiased” hearing.   J. App’x at 121 (quoting Collins, 305

22   F.3d at 115).   Relying on this court’s opinion in Collins, 305

23   F.3d at 115, the court held that appellant “utterly fail[ed] to

24   confront much less carry” the burden of showing that the NYSDHR’s

                                      7
 1   decision was wrong as a matter of fact or that its impartiality

 2   was tainted.    Instead of presenting the district court with “any

 3   evidence related to his 2007-2008 claims that was not already

 4   presented,” appellant “rehash[ed]” the same facts and arguments

 5   he provided to the NYSDHR.    Therefore, the court granted the MTA

 6   summary judgment on the ADA discrimination claims.

 7          Appellant’s briefing in the district court also claimed that

 8   he was retaliated against for filing a complaint with the NYSDHR.

 9   This claim “appear[ed] nowhere in his complaint.”    J. App’x at

10   122.   Nonetheless, because appellant filed the complaint pro se

11   and the court would have granted permission to amend it to add a

12   retaliation claim, the court deemed the retaliation claim as

13   properly before it.

14          However, the district court held that appellant failed to

15   make out a prima facie retaliation case.    Although he had filed

16   an NYSDHR complaint, a protected activity of which the MTA had

17   knowledge, and he was put under work restrictions, an adverse

18   employment action, the district court held that appellant had not

19   shown a causal connection between the NYSDHR complaint and the

20   adverse employment action.    It concluded that, because the NYSDHR

21   complaint was filed in April 2007 and the claimed retaliation

22   took place 14 months later, there was not even a “tenuous

23   temporal connection” to suggest retaliatory intent.   J. App’x at

24   124.   The court moreover found that even assuming appellant could


                                       8
 1   show causation, the medical evidence clearly established that the

 2   MTA had a non-retaliatory basis to place appellant on work

 3   restrictions.    Therefore, the MTA was granted judgment on the

 4   retaliation claims as well.

 5                                 DISCUSSION

 6           We review the district court’s grant of summary judgment de

 7   novo.     See Jackson v. Fed. Express, 766 F.3d 189, 197 (2d Cir.

 8   2014).    Summary judgment is not appropriate unless there is “no

 9   genuine issue as to any material fact” and “the moving party is

10   entitled to a judgment as a matter of law.”    Anderson v. Liberty

11   Lobby, Inc., 477 U.S. 242, 247-48 (1986).     To survive summary

12   judgment, the nonmovant must merely show that “reasonable minds

13   could differ as to the import of the evidence . . . in the

14   record.”    R.B. Ventures, Ltd. v. Shane, 112 F.3d 54, 59 (2d Cir.

15   1997) (internal quotation marks omitted).

16   a) ADA Claim

17           Appellant argues that the district court misapplied Collins

18   and our caselaw regarding the weight to be given the NYSDHR

19   ruling.    Collins concerns the effect of binding arbitration

20   pursuant to a collective bargaining agreement to which the

21   employer was a party on a Title VII claim.2    The district court


          2
            We treat Collins and the other Title VII cases cited in
     this opinion as applicable to Cortes’s ADA claim because “the ADA
     explicitly incorporates all of the enforcement powers, remedies,
     and procedures of Title VII.” Smith v. Perkins Bd. Of Educ., 708
     F.3d 821, 827-28 (6th Cir. 2013); cf. Joseph V. Athanasopoulos,

                                        9
 1   appears to have equated such binding arbitration to a decision of

 2   a state administrative agency.   We agree that this was error and

 3   write to clarify the difference.

 4        “ADA employment discrimination claims are subject to the

 5   familiar burden-shifting analysis established by the Supreme

 6   Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973):

 7   A plaintiff must establish a prima facie case; the employer must

 8   offer through the introduction of admissible evidence a

 9   legitimate non-discriminatory reason for the discharge; and the

10   plaintiff must then produce evidence and carry the burden of

11   persuasion that the proffered reason is a pretext.”    Sista v. CDC

12   Ixis N. Am., Inc., 445 F.3d 161, 169 (2d Cir. 2006) (citing

13   Heyman v. Queens Vill. Comm. for Mental Health for Jamaica Cmty.

14   Adolescent Program, 198 F.3d 68, 72 (2d Cir. 1999)).

15        A plaintiff establishes a prima facie case of discrimination

16   by demonstrating that he “suffered an adverse employment action

17   under circumstances giving rise to an inference of discriminatory

18   intent.”    Maraschiello v. City of Buffalo Police Dep’t, 709 F.3d

19   87, 92 (2d Cir. 2013) (internal quotation marks and ellipses

20   omitted).   Once the plaintiff shows this, the burden shifts to

21   the employer to articulate “some legitimate, nondiscriminatory

22   reason for the adverse employment action.”   Id. (internal

23   quotation marks omitted).


     648 F.3d 58, 64 (2d Cir. 2011) (“[W]e are aware of no distinction
     between the [ADA and Title VII] that would require affording a
     state court judgment a different preclusive effect.”).

                                      10
 1         We will assume, without deciding, that appellant established

 2   a prima facie case by alleging that he was not allowed to return

 3   to work after being injured as well as alleging discriminatory

 4   treatment upon his initial return to work.3               With respect to the

 5   first issue, the MTA countered with the NYSDHR’s findings of fact

 6   as evidence of a legitimate non-discriminatory reason for barring

 7   appellant from working.         The burden then shifted to appellant to

 8   produce evidence showing that the various reasons relied upon by

 9   the NYSDHR were a pretext.          In response, appellant made arguments

10   substantially similar to those he made in proceedings before the

11   NYSDHR.

12         A claimant may bring federal ADA and Title VII claims even

13   if they have been rejected in a state administrative proceeding.

14   See Joseph v. Athanasopoulos, 648 F.3d 58, 62, 64 n.6 (2d Cir.

15   2011); see also Staats v. Cty. of Sawyer, 220 F.3d 511, 514 (7th

16   Cir. 2000); Thomas v. Contoocook Valley Sch. Dist., 150 F.3d 31,

17   39 n.5 (1st Cir. 1998) (The ADA incorporates Title VII deferral

18   procedures; therefore, Title VII precedents “apply with equal

19   force in the ADA context”).




           3
             Despite the parties’ briefing on this issue, the district court did not
     consider Cortes’s allegations of disability discrimination upon his return to work in
     the form of restricted work assignments and overtime, instead apparently considering
     these contentions relevant only to appellant’s retaliation claim. Although we take no
     position on the merits of these post-return allegations or whether they are properly
     exhausted, the district court is instructed to consider them on remand as part of its
     consideration of appellant’s disability discrimination claim.

                                              11
 1        Because we do not give preclusive effect to state agency

 2   decisions unless they have been reviewed in a state court

 3   proceeding, see Nestor v. Pratt & Whitney, 466 F.3d 65, 73 (2d

 4   Cir. 2006) (citing Univ. of Tenn. v. Elliott, 478 U.S. 788

 5   (1986)), an unreviewed NYSDHR decision is not binding on a trier

 6   of fact in an ADA action.   The unreviewed findings of an agency

 7   are, however, admissible as evidence under Fed. R. Evid.

 8   803(8)(A)(iii) as “factual findings from a legally authorized

 9   investigation” by a public office.    See also Arroyo v. WestLB

10   Admin., Inc., 54 F. Supp. 2d 224, 230 (S.D.N.Y. 1999), aff’d, 213

11   F.3d 625 (2d Cir. 2000); Henry v. Daytop Vill., Inc., 42 F.3d 89,

12   96 (2d Cir. 1994).

13        Discrimination claims are also often brought in federal

14   court after being submitted to binding arbitration pursuant to a

15   collective bargaining agreement.     In that context, we have held

16   that “a decision of an independent and unbiased arbitrator based

17   on substantial evidence after a fair hearing . . . has probative

18   weight regarding the requisite causal link between an employee’s

19   termination and the employer’s illegal motive.”    Collins, 305

20   F.3d at 115.   When an employee submits his claim of unlawful

21   treatment to arbitration, “a decision by an independent tribunal

22   that is not itself subject to a claim of bias will attenuate a

23   plaintiff’s proof of the requisite causal link.”    Id. at 119.

24   Therefore, when an arbitrator’s “decision follows an evidentiary


                                     12
 1   hearing and is based on substantial evidence, the Title VII

 2   plaintiff, to survive a motion for summary judgment, must present

 3   strong evidence that the decision was wrong as a matter of fact

 4   –- e.g. new evidence not before the tribunal –- or that the

 5   impartiality of the proceeding was somehow compromised.”   Id.

 6        The district court appears to have equated binding

 7   arbitration and judicially unreviewed agency findings.    It held

 8   that, based upon Collins, appellant “utterly fail[ed] to confront

 9   much less carry” the burden of showing that the NYSDHR’s decision

10   was factually wrong or biased.   J. App’x at 121.   Although it is

11   not clear that application of the distinction between binding

12   arbitration under a collective bargaining agreement and an agency

13   decision would alter the outcome in this particular case, we

14   expressly reject the view that Collins applies to agency

15   decisions.

16        In Collins, the appellant had challenged his termination by

17   his employer through his collective bargaining agreement’s multi-

18   step grievance procedure ending in binding arbitration.    305 F.3d

19   at 115-16.    His grievance claimed racial discrimination and

20   retaliation.   Id.   The arbitration board upheld the termination.

21   Id. at 117.    In Collins, we held that the appellant failed to

22   make out a prima facie case under Title VII because he did not

23   show a causal link between the employer’s alleged bias and his

24   termination.   Id. at 119.


                                      13
 1        Collins had “challenged the Transit Authority's decision to

 2   fire him and was finally discharged only after the arbitration

 3   board made an independent inquiry, including the taking of

 4   evidence.”   Id. at 118.   The arbitration board was a “fully

 5   independent and unbiased decisionmaker.”    Id. at 119.    We further

 6   noted that “the CBA established [the arbitration] process both to

 7   deprive the Transit Authority of the power to terminate an

 8   employee unilaterally and to ensure fair and probatively sound

 9   decisions for aggrieved employees.”   Id.   “Appellant's

10   termination occurred, therefore, only after a decision, based on

11   substantial evidence, of an undisputedly independent, neutral,

12   and unbiased adjudicator that had the power to prevent the

13   termination.   This fact is highly probative of the absence of

14   discriminatory intent in that termination.”   Id.

15        In Collins, therefore, we held only that while “a negative

16   arbitration decision rendered under a CBA does not preclude a

17   Title VII action by a discharged employee[,] . . . a decision by

18   an independent tribunal that is not itself subject to a claim of

19   bias will attenuate a plaintiff's proof of the requisite causal

20   link.”   Id. (internal citation omitted).   Under such

21   circumstances, when an arbitral decision “follows an evidentiary

22   hearing and is based on substantial evidence, the Title VII

23   plaintiff, to survive a motion for summary judgment, must present

24   strong evidence that the decision was wrong as a matter of fact


                                      14
 1   -- e.g. new evidence not before the tribunal -- or that the

 2   impartiality of the proceeding was somehow compromised.”    Id.

 3        We note here that Collins is applicable only to decisions of

 4   a tribunal to which an employer has contractually surrendered the

 5   final power to discipline or discharge employees.   The analysis

 6   Collins requires is the same as that required in all Title VII or

 7   ADA cases regarding a causal connection between the prohibited

 8   motive and the adverse employment action.   If a company’s Vice-

 9   President for sales is discharged, the bias of a janitorial

10   foreman will be irrelevant because the foreman is not the

11   decision-maker regarding the Vice-President’s employment.

12   Similarly, when the final decision on discipline or discharge is

13   made by an arbitrator whose lack of bias is conceded, enough

14   evidence linking the employer’s motive and the arbitration

15   decision must be proffered to allow a reasonable trier of fact to

16   find that the decision was affected by acts resulting from that

17   motive.   In this case, appellant did not submit to binding

18   arbitration under his CBA.   Therefore, appellant was not required

19   to meet the burden established by Collins for Title VII

20   plaintiffs to survive a motion for summary judgment or at trial.

21        Again, the NYSDHR’s findings are admissible evidence, and we

22   hold only that consideration of them on a motion for summary

23   judgment, or, if appropriate, at a trial, is not governed by




                                     15
 1   Collins.     We of course intimate no view on the outcome of further

 2   proceedings on summary judgment.

 3   b) Retaliation Claim

 4         On the retaliation claim, appellant did not make out a prima

 5   facie case.      While he participated in a protected activity known

 6   to the MTA and suffered an adverse employment action, we agree

 7   with the district court that he failed to proffer enough evidence

 8   to support a finding of a causal connection between the protected

 9   activity and the adverse employment action.                 See Gorman-Bakos v.

10   Cornell Coop. Extension of Schenectady Cty., 252 F.3d 545, 554

11   (2d Cir. 2001) (collecting cases).              The filing of the NYSDHR

12   complaint in April 2007 is too remote from the alleged adverse

13   employment action in June 2008 to support by itself an inference

14   of retaliation.       The record indicates no other retaliatory

15   behavior.     Indeed, appellant was allowed to return to work after

16   he produced the appropriate diagnostic results.4                  Thus, we affirm

17   the district court’s dismissal of appellant’s retaliation claim.

18                                       CONCLUSION

19         For the foregoing reasons, the judgment of the district

20   court is affirmed as to appellant’s retaliation claims, but the

21   dismissal of the ADA discrimination claims is vacated and

22   remanded.


           4
             Appellant does not argue that those results entitled him to return to
     passenger-train operation.



                                               16
