     10-4120-cv
     Palmer v. N.Y. State Office of Court Admin., et al.

                          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.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 7th day of May, two thousand thirteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                              Chief Judge,
 8                ROBERT D. SACK,
 9                              Circuit Judge,
10                JED S. RAKOFF,*
11                              District Judge.
12
13       - - - - - - - - - - - - - - - - - - - -X
14       DIANE PALMER,
15                Plaintiff-Appellant,
16
17                    -v.-                                               10-4120-cv
18
19       NEW YORK STATE OFFICE OF COURT
20       ADMINISTRATION, and THE STATE OF NEW
21       YORK,
22                Defendants-Appellees,
23       - - - - - - - - - - - - - - - - - - - -X


                *
                  The Honorable Jed S. Rakoff, United States
         District Judge for the Southern District of New York,
         sitting by designation.
                                                  1
 1
 2   FOR APPELLANT:             A.J. Bosman, Bosman Law Firm,
 3                              Rome, New York.
 4
 5   FOR APPELLEES:             Barbara D. Underwood (Andrea
 6                              Oser, Zainab A. Chaudhry, on the
 7                              brief), for Eric T.
 8                              Schneiderman, New York State
 9                              Attorney General, Albany, New
10                              York.
11
12        Appeal from a judgment of the United States District
13   Court for the Northern District of New York (Scullin, J.).
14
15        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
16   AND DECREED that the judgment of the district court be
17   AFFIRMED.
18
19        Plaintiff Diane Palmer appeals from the judgment of the
20   United States District Court for the Northern District of
21   New York (Scullin, J.), granting summary judgment in favor
22   of defendants-appellees. Palmer sued the New York State
23   Office of Court Administration (“OCA”) and the State of New
24   York (the “State”) for allegedly discriminating against her
25   on the basis of her disabilities--hypoglycemia and asthma--
26   and unlawfully retaliating against her while she was
27   employed by Defendants as a court reporter. We assume the
28   parties’ familiarity with the underlying facts, the
29   procedural history, and the issues presented for review.
30
31        We review a district court’s decision granting summary
32   judgment de novo. Miller v. Wolpoff & Abramson, L.L.P., 321
33   F.3d 292, 300 (2d Cir. 2003). “Summary judgment is
34   appropriate only if the moving party shows that there are no
35   genuine [disputes] of material fact and that the moving
36   party is entitled to judgment as a matter of law.” Id. In
37   determining whether there are genuine disputes of material
38   fact, this Court is “required to resolve all ambiguities and
39   draw all permissible factual inferences in favor of the
40   party against whom summary judgment is sought.” Terry v.
41   Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003) (internal
42   quotations omitted).
43
44        “We review de novo a district court’s dismissal of a
45   suit pursuant to a motion for judgment on the pleadings.”
46   Desiano v. Warner-Lambert & Co., 467 F.3d 85, 89 (2d Cir.
47   2006).

                                  2
 1        We review the district court’s denial of leave to amend
 2   de novo to the extent it rests on a legal conclusion;
 3   otherwise, we review for abuse of discretion. See Arrowood
 4   Indem. Co. v. King, 699 F.3d 735, 739 (2d Cir. 2012).
 5
 6        1.  Palmer’s claims under Title II of the Americans
 7   with Disabilities Act (“ADA”) and the Rehabilitation Act of
 8   1973 (“Rehabilitation Act”) are time-barred, and the
 9   district court therefore did not err in denying Palmer leave
10   to amend her complaint to include those claims. Equitable
11   tolling is unavailable because no “extraordinary
12   circumstances prevented [Palmer] from timely performing a
13   required act.” Walker v. Jastremski, 430 F.3d 560, 564 (2d
14   Cir. 2005) (internal quotation marks omitted). The Supreme
15   Court’s intervening decision in Board of Trustees of the
16   University of Alabama v. Garrett, 531 U.S. 356 (2001),
17   foreclosed Palmer’s claim under Title I of the ADA; however,
18   Garrett did not affect Palmer’s ability to bring claims
19   under Title II or the Rehabilitation Act. Cf. Rochester Gas
20   & Elec. V. GPU, Inc., No. 00-CV-6369, 2006 U.S. Dist. LEXIS
21   96167, at *4-5 (W.D.N.Y. Sept. 25, 2006) (“I agree with RG&E
22   that the Consolidated Edison decision clearly and
23   unequivocally provides plaintiff with what this Court and
24   others thought was a previously unavailable theory of
25   recovery . . . .” (emphasis added)). Palmer should have
26   brought all of her claims at the outset.
27
28        2.  Palmer’s claim for prospective injunctive relief
29   under Title I of the ADA fails because she neglected to name
30   a state official acting in his or her official capacity as a
31   defendant. See Santiago v. N.Y. State Dep’t of Corr.
32   Servs., 945 F.2d 25, 32 (2d Cir. 1991). Palmer was required
33   to do so in order to attempt to avail herself of the
34   exception to Eleventh Amendment immunity under Ex parte
35   Young, 209 U.S. 123 (1908). See id. Since Palmer never
36   asked the district court for leave to amend her Second
37   Amended Complaint in order to add a state official as a
38   defendant (and never identified the person she would sue),
39   the district court did not abuse its discretion in denying
40   leave to do so.
41
42        3.  Palmer’s claim against the State under Title VII
43   of the Civil Rights Act of 1964 fails because Palmer never
44   alleged discrimination on the basis of “race, color,
45   religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a).
46   Her earlier state administrative complaints are therefore
47   not “protected activit[ies],” and she may not allege

                                  3
 1   retaliation under Title VII in this case. See Reed v. A.W.
 2   Lawrence & Co., Inc., 95 F.3d 1170, 1178 (2d Cir. 1996) (“To
 3   establish a prima facie case for retaliation, a plaintiff
 4   must show that (1) the employee was engaged in protected
 5   activity; (2) the employer was aware of that activity; (3)
 6   the employee suffered an adverse employment action; and (4)
 7   there was a causal connection between the protected activity
 8   and the adverse employment action.”).
 9
10        For the foregoing reasons, and finding no merit in
11   Palmer’s other arguments, we hereby AFFIRM the judgment of
12   the district court.
13
14                              FOR THE COURT:
15                              CATHERINE O’HAGAN WOLFE, CLERK
16




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