    08-3949-cv
    Cusack v. News America Marketing In-Store, Inc., LLC



                              UNITED STATES COURT OF APPEALS
                                  FOR THE SECOND CIRCUIT

                                          SUMMARY ORDER

RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUM M ARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUM M ARY ORDER IN A
DOCUM ENT FILED W ITH THIS COURT, A PARTY M UST CITE EITHER TH E FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUM M ARY ORDER”). A PARTY CITING A SUM M ARY ORDER
M UST 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
    Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
    on the 30th day of March, two thousand ten.

    PRESENT:
                ROSEMARY S. POOLER,
                DEBRA ANN LIVINGSTON,
                            Circuit Judges,
                DAVID G. TRAGER,*
                            District Judge.
    _______________________________________________

    Devi Cusack,

                          Plaintiff-Appellant,

                   v.
                                                                 08-3949-cv
    News America Marketing In-Store, Inc., LLC,

                      Defendant-Appellee.
    _______________________________________

    FOR PLAINTIFF-APPELLANT:                     Devi Cusack, pro se, Richmond Hill, New York.

    FOR DEFENDANT-APPELLEE:                      Eric J. Wallach and Blythe E. Lovinger, for
                                                 Kasowitz, Benson, Torres & Friedman LLP, New
                                                 York, New York.


               *
                 David G. Trager, Senior Judge of the United States District Court for the Eastern
        District of New York, sitting by designation.
Appeal from the United States District Court for the Southern District of New York (Lynch, J.).


    UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, AND
DECREED that the judgment of said District Court be and hereby is AFFIRMED.

       Appellant Devi Cusack appeals from the district court’s judgment granting summary

judgment for News America Marketing In-Store (“NAMIS”) and dismissing her employment

discrimination complaint. We assume the parties’ familiarity with the facts, proceedings below,

and specification of issues on appeal.

       As an initial matter, Cusack’s pending motion to include additional exhibits in her

appendix is hereby DENIED. The exhibits were not filed in the district court, and Cusack has not

shown that the documents were material omissions to the record. See Fed. R. App. P. 10(e)(2).

       This Court reviews an order granting summary judgment de novo and asks whether the

district court properly concluded that there were no genuine issues of material fact and that the

moving party was entitled to judgment as a matter of law. Miller v. Wolpoff & Abramson, L.L.P.,

321 F.3d 292, 300 (2d Cir. 2003). In determining whether there are genuine issues of material

fact, this Court is “required to resolve all ambiguities and draw all permissible factual inferences

in favor of the party against whom summary judgment is sought.” Terry v. Ashcroft, 336 F.3d

128, 137 (2d Cir. 2003) (quotation marks omitted). However, “conclusory statements or mere

allegations [are] not sufficient to defeat a summary judgment motion.” Davis v. New York, 316

F.3d 93, 100 (2d Cir. 2002).

       Having conducted an independent and de novo review of the record in light of these

principles, we affirm the grant of summary judgment for substantially the same reasons stated by

the district court. On appeal, Cusack argues that NAMIS did not engage in the interactive
process envisioned by the ADA by which employers and employees work together to assess

whether an employee’s disability can be reasonably accommodated. See, e.g., Brady v. Wal-Mart

Stores, Inc., 531 F.3d 127, 135 (2d Cir. 2008). However, as the district court explained, Cusack

failed to establish the requisite causal connection between NAMIS’s alleged failure to

accommodate her disability and an adverse employment action. See Parker v. Sony Pictures

Entm’t, Inc., 260 F.3d 100, 108 (2d Cir. 2001). Because we find that it was undisputed that a

reasonable accommodation was not available, NAMIS was not required to engage in this

interactive process. See McBride v. BIC Consumer Prods. Mfg. Co., 583 F.3d 92, 100 (2d Cir.

2009).

         We have considered all of Cusack’s other arguments on appeal and have found them to be

without merit. Accordingly, the judgment of the district court is hereby AFFIRMED.


                                                    FOR THE COURT:
                                                    Catherine O’Hagan Wolfe, Clerk
