     15-3363
     Thomson v. Odyssey House

                          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 16th day of June, two thousand Sixteen.
 5
 6       PRESENT: AMALYA L. KEARSE,
 7                RALPH K. WINTER,
 8                DENNIS JACOBS,
 9                              Circuit Judges.
10
11       - - - - - - - - - - - - - - - - - - - -X
12       GEORGINA THOMSON,
13                Plaintiff-Appellant,
14
15       SHEILA CLARK,
16                Plaintiff,
17
18                    -v.-                                               15-3363
19
20       ODYSSEY HOUSE,
21                Defendant-Appellee,
22
23       VANCE HERBERT, DARRIN BROWN, GAIL
24       HARRISON, DOES 1-10,
25                Defendants.*
26       - - - - - - - - - - - - - - - - - - - -X


                *
                  The Clerk of Court is directed to amend the
         caption as written above.
                                                  1
 1
 2   FOR APPELLANT:             Nkereuwem Umoh, Umoh Law Firm,
 3                              PLLC, Brooklyn, New York.
 4
 5   FOR APPELLEE:              Wendy J. Mellk and Damon W.
 6                              Silver, Jackson Lewis, P.C., New
 7                              York, New York.
 8
 9        Appeal from a judgment of the United States District
10   Court for the Eastern District of New York (Brodie, J.).
11
12        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
13   AND DECREED that the judgment of the district court be
14   AFFIRMED.
15
16        Georgina Thomson appeals from the judgment of the
17   United States District Court for the Eastern District of New
18   York (Brodie, J.), dismissing her complaint for failure to
19   state a claim.1 The complaint alleges retaliation in
20   violation of 42 U.S.C. § 1981 and claims of violation of the
21   Americans with Disabilities Act (“ADA”).2 We assume the
22   parties’ familiarity with the underlying facts, the
23   procedural history, and the issues presented for review.
24
25        1.   To establish a prima facie case of retaliation
26   under § 1981, a plaintiff must allege (1) that she engaged
27   in a protected activity; (2) defendant was aware of that
28   activity; (3) she suffered an adverse employment action; and
29   (4) there was sufficient causal connection between the
30   protected activity and the adverse employment action. See
31   Fincher v. Depository Trust & Clearing Corp., 604 F.3d 712,
32   720 (2d Cir. 2010). Causation “can be shown either:
33   (1) indirectly, by showing that the protected activity was
34   followed closely by discriminatory treatment, or through


         1
              The defendant’s motion to dismiss was denied in
     part as to the other plaintiff, Sheila Clark; the defendants
     agreed to settle Clark’s remaining claim, and so she is not
     part of this appeal.
         2
              The district court’s order also dismissed
     Thomson’s New York State and City Human Rights Law claims
     and her Title VII claims, which she does not appeal from.
     All claims against the individual defendants (Vance Herbert,
     Darrin Brown, and Gail Harrison) were dismissed sua sponte
     for failure to serve.
                                  2
 1   other circumstantial evidence such as disparate treatment of
 2   fellow employees who engaged in similar conduct; or
 3   (2) directly, through evidence of retaliatory animus
 4   directed against the plaintiff.” Gordon v. N.Y.C. Bd. of
 5   Educ., 232 F.3d 111, 117 (2d Cir. 2000).
 6
 7        The district court ruled that Thomson had not alleged
 8   facts demonstrating a sufficient causal connection between
 9   her alleged internal complaints in 2011 and her alleged
10   termination in 2014. The plaintiff does not contest this
11   ruling; rather, she argues that the adverse action by
12   defendant was not the termination, but the “closer
13   supervision” to which she was subjected. However, excessive
14   scrutiny is not an actionable adverse employment action.
15   See Kessler v. Westchester Cty. Dep't of Soc. Servs., 461
16   F.3d 199, 207 (2d Cir. 2006) (“[A] plaintiff must show that
17   a reasonable employee would have found the challenged action
18   materially adverse, which in this context means it well
19   might have dissuaded a reasonable worker from making or
20   supporting a charge of discrimination.” (quoting Burlington
21   N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006)); see
22   also, e.g., Murray v. Town of N. Hempstead, 853 F. Supp. 2d
23   247, 267 (E.D.N.Y. 2012) (“[W]ith regard to the heightened
24   supervision and surveillance, even if assumed to be true,
25   the facts as alleged here would not, as a matter of law,
26   constitute adverse employment actions.”).
27
28        2.   Plaintiff’s ADA discrimination and reasonable
29   accommodation claims fail because no facts are pled to
30   support an inference that any alleged disability was
31   causally linked to her termination. See Smith v. Hogan, 794
32   F.3d 249, 253 (2d Cir. 2015) (“In order to establish a prima
33   facie case of employment discrimination under the ADA . . .
34   a plaintiff must adequately plead that he was terminated
35   because of a qualifying disability.” (emphasis added)).
36
37        Likewise, the plaintiff has not alleged enough facts to
38   establish a prima facie reasonable accommodation claim. To
39   allege a violation of the ADA for failure to provide a
40   reasonable accommodation, a plaintiff must allege that
41   (1) plaintiff is a person with a disability under the
42   meaning of the ADA; (2) an employer covered by the statute
43   had notice of his disability; (3) with reasonable
44   accommodation, plaintiff could perform the essential
45   functions of the job at issue; and (4) the employer has
46   refused to make such accommodations. McMillan v. City of
47   New York, 711 F.3d 120, 125-26 (2d Cir. 2013). Even

                                  3
 1   assuming the validity of her disability, Thomson does not
 2   allege when, if ever, she notified the defendant of her
 3   disability or sought any kind of accommodation.
 4   Accordingly, her reasonable accommodation claim also fails.
 5
 6        For the foregoing reasons, and finding no merit in the
 7   plaintiff’s other arguments, we hereby AFFIRM the judgment
 8   of the district court.
 9
10                              FOR THE COURT:
11                              CATHERINE O’HAGAN WOLFE, CLERK
12




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