12-3905-cv
Troeger v. Ellenville Cent. Sch. Dist.



                                         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 9th
day of May, two thousand thirteen.

PRESENT:

                      PIERRE N. LEVAL,
                      JOSÉ A. CABRANES,
                      BARRINGTON D. PARKER,

                                           Circuit Judges.

_____________________________________

MICHAEL TROEGER,

                                          Plaintiff-Appellant,

                      v.                                                          No. 12-3905-cv

ELLENVILLE CENTRAL SCHOOL DISTRICT,

                      Defendant-Appellee.
_____________________________________

FOR PLAINTIFF-APPELLANT:                                             Michael H. Sussman, Sussman & Watkins,
                                                                     Goshen, NY.

FOR DEFENDANT-APPELLEE:                                              Stephen J. Gaba, Drake, Loeb, Heller,
                                                                     Kennedy, Gogerty, Gaba & Rodd, PLLC,
                                                                     New Windsor, NY.

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     Appeal from a judgment of the United States District Court for the Northern District of
New York (Gary L. Sharpe, Chief Judge).

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

        Plaintiff-appellant Michael Troeger brought this suit under the Americans with Disabilities
Act (“ADA”), 42 U.S.C. § 12101 et seq.,1 alleging that his employer, defendant-appellee Ellenville
Central School District (the “School District”), discriminated against him because of his disability.
Particularly, Troeger alleges that, following on-the-job back injuries in 2004 and 2005, the School
District improperly forced him to use “sick days” for his absences caused by these injuries and
refused to reasonably accommodate his condition.

         In a Memorandum Decision and Order dated May 8, 2012, the District Court granted
summary judgment to the School District with regard to all of Troeger’s claims that arose from the
School District’s actions prior to November 7, 2007, on the basis that those claims were made in his
administrative complaint2 more than 300 days after their accrual and were therefore untimely.
Troeger v. Ellenville Cent. Sch. Dist., No. 1:10-cv-718 (GLS/DRH), 2012 WL 1605532, at *3–4
(N.D.N.Y. May 8, 2012) (“Troeger I”). In the same decision, the District Court denied the School
District’s motion for summary judgment with regard to Troeger’s other failure to accommodate
claim, which was based on the School District’s actions after November 2007. The Court concluded
that “a reasonable jury could find that his back ailments constitute a qualifying disability.” Id. at *4.

         Following the School District’s motion for reconsideration, however, the District Court
reversed course, granting summary judgment on the remaining claim in a Memorandum Decision
and Order dated August 23, 2012. This time, the Court concluded that Troeger had not shown “a
substantial limitation of any major life activities during the relevant time period” and therefore did
not qualify as “disabled” within the meaning of the ADA following his return to work in 2007.
Troeger v. Ellenville Cent. Sch. Dist., No. 1:10-cv-718 (GLS/DRH), 2012 WL 3643839, at *4 (N.D.N.Y.
Aug. 23, 2012) (“Troeger II”).

        This appeal followed. We assume the parties’ familiarity with the facts and procedural
history of this case.

      1 As the District Court explained, “[b]ecause the conduct in question occurred prior to 2009,” the governing law

does not incorporate amendments to the ADA that became effective in 2009. Troeger I, 2012 WL 1605532, at *2 n.5;
see also, e.g., Wega v. Cntr. for Disability Rights Inc., 395 Fed. App’x 782, 784 n.1 (2d Cir. 2010) (unpublished) (noting “an
intervening act of Congress” amending the ADA but finding “no indication that Congress intended the ADA
Amendments to have retroactive effect”). Neither party disputes this aspect of the District Court’s decision.
     2 Troeger filed an administrative action with the Equal Employment Opportunity Commission (“EEOC”) on

September 2, 2008. The EEOC issued Troeger a right-to-sue letter in 2010, having not reached a conclusive
determination regarding his claims.

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                                                      DISCUSSION

         We review de novo the District Court’s grant of summary judgment, construing the evidence
in the light most favorable to the non-moving party and drawing all reasonable inferences in his
favor.3 See McElwee v. County of Orange, 700 F.3d 635, 640 (2d Cir. 2012). Summary judgment is
appropriate where “there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law,” Fed. R. Civ. P. 56(a), i.e., “[w]here the record taken as a whole could
not lead a rational trier of fact to find for the non-moving party.” Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986).

        We first address the claims that the District Court dismissed in its Memorandum Decision
and Order dated May 8, 2012, particularly concerning whether Troeger’s claims based on events
prior to November 2007 are time barred. We then consider whether Troeger’s medical condition
after that date qualifies as a “disability” under the ADA.

                                                               A.

        It is undisputed that a claimant pursuing claims under the ADA must file charges with the
EEOC within 300 days of the purportedly unlawful acts, see 42 U.S.C. § 12117(a), and that Troeger
therefore generally cannot sue the School District for its acts prior to November 7, 2007, because he
did not file administrative charges with the EEOC until September 2, 2008, see note 2, ante.
Nonetheless, Troeger argues that his claims based on such acts are still viable because of the
“continuing violation doctrine,” which applies to claims that by “their very nature involve[ ] repeated
conduct,” and therefore “[t]he ‘unlawful employment practice’ . . . cannot be said to occur on any
particular day.” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 115 (2002). The District Court
disagreed, holding that “[t]he [School] District’s alleged failure to accommodate Troeger’s disability
during the 2007-08 school year is the only act which falls within the limitations period.” Troeger I,
2012 WL 1605532, at *3.

     3 Troeger also argues that the District Court “abused its discretion” by reconsidering its prior denial of the School

District’s motion for summary judgment. Although we review for an “abuse of discretion” a district court’s decision to
reconsider an earlier order, see Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995), a district court’s decision prior
to final judgment to correct an earlier mistake will rarely, if ever, be an “abuse” of its discretion. See In re Sims, 534 F.3d
117, 132 (2d Cir. 2008) (explaining that an “abuse of discretion” includes errors of law, a clearly erroneous assessment of
the evidence, or “a decision that cannot be located within the range of permissible decisions” (internal quotation marks
omitted)). It is true, of course, that motions for reconsideration “should not be granted where the moving party seeks
solely to relitigate an issue already decided,” Shrader, 70 F.3d at 257, but when the finality of a judgment is not at issue,
and the district court merely wishes to correct an error in an earlier denial of a motion to dismiss or motion for summary
judgment, the district court is fully within its discretion to do so based on material facts or relevant law that it
overlooked or misunderstood in its earlier decision. See id. (articulating the standard for motions to reconsider); see also
I.N.S. v. Doherty, 502 U.S. 314, 330 (1992) (Scalia, J., concurring in part and dissenting in part) (“Whether discretion has
been abused in a particular case depends, of course, upon the scope of the discretion.”). Accordingly, because the
District Court correctly decided that summary judgment was appropriate under governing law, the Court did not err,
much less “abuse its discretion,” by granting the School District’s motion for reconsideration.

                                                               3
        We agree with the District Court’s conclusion for substantially the reasons stated in the
Court’s Memorandum Decision and Order dated May 8, 2012. See id. at *3–4. The School District
informed Troeger prior to November 2007 that his absences would count as sick days. Any claim
based on that decision is thus based on a “discrete act” rather than a continuing violation, since that
“single act” would, if unlawful, “be actionable on its own.” Morgan, 536 U.S. at 115.4

        Similarly, any alleged failure to accommodate Troeger’s disability during the 2006-07 school
year would have been actionable at the time of the relevant decisions refusing to accommodate
Troeger’s disability. Troeger cannot file an untimely claim simply by alleging that the School
District’s noncompliance “continued,” or that the School District engaged in similar unlawful
actions during subsequent years. See Morgan, 536 U.S. at 113 (“[D]iscrete discriminatory acts are not
actionable if time barred, even when they are related to acts alleged in timely filed charges.”).

                                                           B.

         We now turn to Troeger’s remaining claim for failure to accommodate based on the School
District’s actions between November 2007 and the end of the 2007-08 school year. Having
conducted a de novo review of the record, construing all evidence in Troeger’s favor, we conclude
that Troeger has failed to establish a prima facie case of failure to accommodate for substantially the
reasons stated in the District Court’s Memorandum Decision and Order dated August 23, 2012. See
Troeger II, 2012 WL 3643839, at *1–4.

        As relevant here, a claim for failure to accommodate under the ADA requires the plaintiff to
show that he suffers from a “disability.” For the purposes of Troeger’s claim―based on the School
District’s relevant conduct in 2007 and 2008―the ADA defined “disability” as “a physical or mental
impairment that substantially limits one or more major life activities of such individual.” 42 U.S.C.
§ 12102(2)(A) (2008). As the Supreme Court explained, “these terms need to be interpreted strictly
to create a demanding standard for qualifying as disabled.” Toyota Motor Mfg., Ky., Inc. v. Williams, 534
U.S. 184, 197 (2002) (“Toyota”). Under this approach, a “major” life activity is one that is “of central
importance to daily life,” such as “walking, seeing, and hearing.” Id. Moreover, the degree of

     4 While Troeger was absent during the 2005-06 and 2006-07 school years, he received his normal salary because

worker’s compensation proceedings were ongoing. Following the decision in August 2007 that Troeger did not qualify
for worker’s compensation, the School District charged his prior absences against his sick leave, resulting in accumulated
sick leave of negative 200 days, as of June 30, 2007. The School District has since applied Troeger’s annual sick days to
“recoup” his previous overuse of sick days. Troeger argues that he did not learn about this “recoupment” policy until
January 2009, and therefore his claim of discrimination with respect to that policy is timely. We need not consider this
argument in terms of its timeliness, however, because Troeger has not presented any evidence suggesting that the School
District’s “recoupment” policy is discriminatory. Troeger’s sick days are being “recouped” simply because he did not
have sufficient sick days to cover his absences from 2005 to 2007. See Troeger I, 2012 WL 1605532, at *6 (“Although
considerable caution is required at this stage of a discrimination case, Troeger has offered only conclusory allegations
that the District docked his sick leave because of his disability. Accordingly, to the extent that Troeger’s sick leave
claims may be construed as having accrued after November 7, 2007, they are dismissed.”).


                                                            4
impairment must be significant enough to “substantially limit[ ]” the major life activity. 42 U.S.C.
§ 12102(2)(A) (2008). “Although almost any impairment may, of course, in some way affect a major
life activity, the ADA clearly does not consider every impaired person to be disabled.” Ryan v. Grae
& Rybicki, P.C., 135 F.3d 867, 870 (2d Cir. 1998). Rather, “in assessing whether a plaintiff has a
disability, courts have been careful to distinguish impairments which merely affect major life
activities from those that substantially limit those activities.” Id. (emphases omitted) (citing Roth v.
Lutheran Gen. Hosp., 57 F.3d 1446, 1454 (7th Cir. 1995)).

          When Troeger returned to work in late 2007, his physician explained that he had recovered
such that he “has no significant restrictions on driving, walking, standing, sitting, or climbing stairs,”
but Troeger’s lifting restriction of 20 pounds remained in effect. Joint App’x 148. Based in part on
this evidence, the District Court correctly concluded that Troeger has not shown a genuine issue of
fact regarding a substantial limitation of a major life activity. See Toyota, 534 U.S. at 197. As the
District Court explained, Troeger was capable of both sitting and working. See id. at 200 (“[E]ven
assuming that working is a major life activity, a claimant would be required to show an inability to
work in a broad range of jobs, rather than a specific job.” (internal quotation marks omitted)). And
although lifting light objects may be a major life activity, see Ryan, 135 F.3d at 870 (citing U.S. Equal
Employment Opportunity Commission, Americans with Disabilities Act Handbook I-27 (1992)), an
individual is not “disabled” merely because he cannot lift heavier objects weighing, for instance,
around twenty pounds, see Colwell v. Suffolk Cnty. Police Dep’t, 158 F.3d 635, 644 (2d Cir. 1998); see also,
e.g., Reynolds v. Am. Nat’l Red Cross, 701 F.3d 143, 152 (4th Cir. 2012) (restriction from lifting heavy
objects did not constitute a “disability”); Lytes v. DC Water & Sewer Auth., 572 F.3d 936, 944 (D.C.
Cir. 2009) (collecting similar cases and concluding that, “under the ‘demanding standard’ of Toyota,”
evidence of not being able to lift heavy objects “creates no triable issue as to whether [an individual]
had a substantial limitation with respect to lifting”).

                                            CONCLUSION

       We have reviewed all of Troeger’s arguments and find them to be without merit.
Accordingly, the judgment is AFFIRMED.



                                                          FOR THE COURT:
                                                          Catherine O’Hagan Wolfe, Clerk




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