17-2899
Dooley v. JetBlue Airways Corp.

                                  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 TO 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 25th day of September, two thousand eighteen.

PRESENT:
                  ROBERT A. KATZMANN,
                      Chief Judge,
                  DENNY CHIN,
                  RAYMOND J. LOHIER, JR.,
                      Circuit Judges.


SHARI DOOLEY,

                            Plaintiff-Appellant,

                  v.                                                No. 17-2899

JETBLUE AIRWAYS CORPORATION,

                            Defendant-Appellee.



 For Plaintiff-Appellant:                          John R. Olsen, Louisville, CO.
 For Defendant-Appellee:                             Matthew A. Steinberg, Akerman LLP, New
                                                     York, NY.


       Appeal from a judgment of the United States District Court for the Southern District of

New York (Furman, J.).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

       This appeal involves a discrimination claim brought by Shari Dooley against her former

employer, JetBlue Airways Corporation (“JetBlue”), under the Americans with Disabilities Act

of 1990, 42 U.S.C. § 12101 et seq. (“ADA”). Dooley appeals from a judgment of the United

States District Court for the Southern District of New York (Furman, J.), entered in favor of the

defendant on August 30, 2017. We assume the parties’ familiarity with the underlying facts, the

procedural history of the case, and the issues on appeal, including as set forth in a prior summary

order, Dooley v. JetBlue Airways Corp., 636 F. App’x 16 (2d Cir. 2015).

       Dooley, a flight attendant with JetBlue, injured her right wrist while working in May

2013. She was diagnosed with a “crushing” fracture, applied for workers’ compensation, and was

placed on occupational leave. Two months later, in July 2013, her doctor cleared her to return to

work with the proviso that she not lift more than ten pounds with her right hand. JetBlue

confirmed that she could return to work in a temporary light duty position as an airport greeter

while her hand healed.

       Shortly after Dooley accepted the light duty position, Dooley’s supervisor, Andrea Isear,

emailed her about absences she had accrued prior to her injury. Isear explained that six of

Dooley’s absences were categorized as “unavailable for assignment” occurrences or “UNAs”—

instances where an employee cannot report to work because of an “unusual circumstance.”



                                                 2
Emphasizing that six UNAs made Dooley eligible for final employment review, Isear asked

Dooley to substantiate the UNAs immediately. Over the course of several days, Dooley protested

Isear’s categorization of her absences but did not provide the requested documentation. By the

end of the week, with Dooley having worked just two shifts as a greeter, JetBlue notified her that

it was suspending her without pay and opening an investigation into her attendance record. The

following month she was terminated.

       In June 2014, Dooley filed suit against JetBlue, asserting various claims under the ADA

and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”). This Court

previously affirmed the dismissal of all of Dooley’s claims except her ADA discrimination

claim, as to which we vacated the decision below in light of an intervening change in the law

announced in Littlejohn v. City of New York, 795 F.3d 297, 311 (2d Cir. 2015). See Dooley, 636

F. App’x at 18, 21 n.1. We held that Dooley stated a plausible claim for relief under the ADA

because she alleged (1) she was not afforded the multi-step process usually associated with

JetBlue’s progressive discipline policy and (2) she was terminated shortly after her injury

occurred. Id. at 21. On remand, the parties conducted full discovery, after which the district

court granted JetBlue’s motion for summary judgment. Dooley v. JetBlue Airways Corp., No. 14-

CV-4432, 2017 WL 3738721, at *1 (S.D.N.Y. Aug. 29, 2017).

       Dooley challenges the district court’s conclusion that she failed to make out a prima facie

case of disability discrimination. The parties dispute whether Dooley was qualified to perform

her job and whether she was terminated “under circumstances giving rise to an inference of

discrimination.” Davis v. New York City Dep’t of Educ., 804 F.3d 231, 235 (2d Cir. 2015)

(citation omitted); see also id. (setting out elements of an ADA discrimination claim).




                                                 3
       We need not decide this issue, however, because, even assuming that Dooley adequately

established a prima facie case of discrimination, JetBlue offered evidence of a legitimate non-

discriminatory basis for Dooley’s termination. The testimony of JetBlue’s employees and the

company’s internal documents consistently show that Dooley was terminated because she

accrued six UNA absences in a rolling twelve-month period, which renders an employee eligible

for termination. After suspending Dooley, the company conducted an investigation and

ultimately concluded that she violated company policy by making several false statements during

the investigation, including denying that she had cited medical leave (for which she was not

authorized) as the basis for a few of her callouts and falsely stating that she reported an April

2013 no-show prior to her scheduled report time. Although Dooley disputes JetBlue’s

characterization of these absences and the types of corroboration the company insisted on, in the

absence of evidence that these decisions were motivated by disability discrimination, we will not

“act as a super personnel department that second guesses [JetBlue’s] business judgments.”

Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, 103 (2d Cir. 2001) (internal quotation

marks omitted).

       Dooley has not identified sufficient admissible evidence of pretext to permit a jury to

return a verdict in her favor. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 803-05

(1973); Stern v. Trs. of Columbia Univ., 131 F.3d 305, 312 (2d Cir. 1997) (stating that evidence

of pretext must be admissible). As to the lack of any pre-termination discipline, JetBlue’s

crewmember handbook explains that if a flight attendant accrues additional absences before she

has an opportunity to meet with her supervisor, when the meeting ultimately takes place, the

flight attendant will be given the level of discipline associated with the total number of absences

at that time. That is exactly what happened here. And, as to temporal proximity, because



                                                  4
Dooley’s repeated false invocations of medical leave each took several weeks for JetBlue to

verify and correct, JetBlue did not confirm that Dooley had hit the threshold of six UNA

absences until after she was injured, which explains why the company raised this issue with

Dooley immediately upon her return to work. In addition, although Dooley claims that other

employees with absences were treated differently, she has not produced any admissible evidence

to this effect. Finally, because there is no evidence that the discipline Dooley received because of

her infractions while serving as an airport greeter was motivated by her disability, it is not

indicative of pretext.

       We have considered all of Dooley’s remaining contentions and have found in them no

basis for reversal. For the reasons stated herein, the judgment of the district court is

AFFIRMED.

                                               FOR THE COURT:
                                               Catherine O’Hagan Wolfe, Clerk




                                                  5
