18-966-cv
Roth v. County of Nassau


                                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 January, two thousand nineteen.

PRESENT:           JOSÉ A. CABRANES,
                   ROSEMARY S. POOLER,
                   CHRISTOPHER F. DRONEY,
                                Circuit Judges.



CRAIG ROTH,

                           Plaintiff-Appellant,                  18-966-cv

                           v.

COUNTY OF NASSAU,

                           Defendant-Appellee.



FOR PLAINTIFF-APPELLANT:                              MICHAEL CONFUSIONE, Hegge &
                                                      Confusione, LLC, Mullica Hill, NJ.



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FOR DEFENDANT-APPELLEE:                                       KATHARINE SMITH SANTOS (Joseph
                                                              Covello, on the brief), Lynn, Gartner,
                                                              Dunne & Covello, LLP, Mineola, NY.

        Appeal from a March 27, 2018 judgment of the United States District Court for the Eastern
District of New York (Leonard D. Wexler, Judge).

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

        Plaintiff Craig Roth (“Roth”) appeals from the District Court’s grant of summary judgment
on the ground that Roth was collaterally estopped from asserting discrimination claims under the
Americans with Disabilities Act (“ADA”) and the New York State Human Rights Law
(“NYSHRL”). We assume the parties’ familiarity with the underlying facts, the procedural history of
the case, and the issues on appeal.

         “We review a district court’s grant of summary judgment de novo.” Utica Mut. Ins. Co. v.
Clearwater Ins. Co., 906 F.3d 12, 17 (2d Cir. 2018). “The district court’s judgment may be affirmed on
any ground fairly supported by the record.” Trikona Advisers Ltd. v. Chugh, 846 F.3d 22, 29 (2d Cir.
2017) (internal quotation marks omitted). We also review a district court’s application of the
doctrine of collateral estoppel de novo, accepting all factual findings of the district court unless clearly
erroneous. Id. Under New York law, collateral estoppel “may be invoked to preclude a party from
raising an issue (1) identical to an issue already decided (2) in a previous proceeding in which that
party had a full and fair opportunity to litigate.” Farrell v. Burke, 449 F.3d 470, 482 (2d Cir. 2006)
(internal quotation marks omitted). In addition, “the issue that was raised previously must be
decisive of the present action.” Id. at 482-83.

        Roth challenges the District Court’s conclusion that he was collaterally estopped from
asserting discrimination claims that he raised in an Article 78 proceeding before the New York
Supreme Court. Roth concedes that he is collaterally estopped from arguing that he could perform
the “essential functions” of a police officer’s job. He nevertheless contends that he is not collaterally
estopped from arguing that he could perform the essential functions of the job “with or without
reasonable accommodation.” Roth claims that the state court’s Article 78 order did not adequately
address the issue of accommodation, and that he is not barred from demonstrating that he was able
to perform the essential duties of the police officer job with or without such accommodation. See
Makinen v. City of New York, 857 F.3d 491, 495 n.3 (2d Cir. 2017) (“[B]oth the NYSHRL and the
ADA require a plaintiff to demonstrate as an element of [his] claim that [he] was able to perform the
essential duties of [his] job with or without a reasonable accommodation.”).



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        The District Court correctly concluded that Roth’s ADA and NYSHRL claims are precluded
under the doctrine of collateral estoppel. Roth’s complaint in the instant action seeks to relitigate
issues that were fully and fairly decided during his Article 78 proceeding in New York Supreme
Court. Roth’s Verified Petition before the New York Supreme Court specifically asserted that his
disqualification violated Section 296(1)(a) of the NYSHRL and “may be actionable pursuant to the
American’s [sic] with Disabilities Act as that Act protects individuals from employment
discrimination based upon an actual or perceived disability.” App. 831 ¶¶ 50-52. Moreover, in both
his memorandum and reply memorandum in support of the Verified Petition, Roth claimed to have
“established a prima facie case of discrimination in that [the County] medically disqualified [him] due
to his diabetes disability.” Id. at 852, 887. Finally, the parties’ briefs before the New York Supreme
Court made clear that to demonstrate “disability” within the meaning of the NYSHRL, a plaintiff
must show that he was able to perform the essential functions of the job with or without a
reasonable accommodation. See id. at 852 (Roth quoting the NYSHRL definition of “disability” as
being “limited to disabilities which, upon the provision of reasonable accommodations, do not prevent
the complainant from performing in a reasonable manner the activities involved in the job or
occupation sought or held.” (emphasis added) (quoting N.Y. EXEC. LAW § 292(21)); see also id. at 872
(County agreeing that “[u]nder the [NYS]HRL, an applicant must be able to perform the essential
functions of the job with or without a reasonable accommodation.” (emphasis added)).

        The New York Supreme Court explicitly acknowledged Roth’s discrimination argument, id.
at 810, but nevertheless denied the Verified Petition “in its entirety,” id. at 816. The gravamen of the
County medical experts’ medical conclusions was that there was a significant risk that Roth could
become mentally or physically incapacitated during bursts of severe exertion, including in pursuing
suspects, using force, and rescuing individuals. Given the particular nature of those functions, and
Roth’s conceded failure to request accommodations (or to suggest any in his briefing to the New
York Supreme Court), we think that—absent a clear indication to the contrary—the New York
Supreme Court reasonably concluded that there was “substantial evidence” to support a
determination that it would have been impossible to provide any reasonable accommodation for
those particular essential functions, see, e.g., McMillan v. City of New York, 711 F.3d 120, 125 (2d Cir.
2013) (“[A] reasonable accommodation can never involve the elimination of an essential [job]
function.” (internal quotation marks omitted)), and so it conclusively decided that element of Roth’s
discrimination claims.1 Cf. Vargas v. City of New York, 377 F.3d 200, 205, 207-08 (2d Cir. 2004)


    1
     Notably, Roth’s counsel conceded at oral argument that he did not seek to challenge that any
of the County’s purported essential functions were indeed essential. Thus, although what functions
are “essential” under the ADA is normally an issue of fact, see Stone v. City of Mount Vernon, 118 F.3d
92, 96-100 (2d Cir. 1997)—and reasonable accommodations can only be determined based on what
functions are essential, see Gilbert v. Frank, 949 F.2d 637, 641 (2d Cir. 1991)—we deem that argument
waived.


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(holding that the Rooker-Feldman doctrine—and by extension, issue preclusion—prevents re-litigation
of an equal protection claim that a plaintiff previously raised in an Article 78 proceeding); DiLauria v.
Town of Harrison, 64 F. App’x 267, 269-70 (2d Cir. 2003) (summary order) (granting summary
judgment on plaintiff’s ADA claims under the doctrine of collateral estoppel even where plaintiff
“raised no specific claims for relief under the ADA” in his Article 78 petition, but “presented to the
state court a description of the discriminatory actions that he believed played a role”). In sum,
Roth’s discrimination claims fail because he is precluded under the doctrine of collateral estoppel
from arguing that he was able to perform the essential functions of a police officer with or without a
reasonable accommodation.

                                           CONCLUSION

       We have reviewed all of the arguments raised by Roth on appeal and find them to be
without merit. For the foregoing reasons, we AFFIRM the March 27, 2018 judgment of the District
Court.


                                                        FOR THE COURT:
                                                        Catherine O’Hagan Wolfe, Clerk




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