  10-150-cv
  Christine Duttweiller v. Eagle Janitorial Inc., 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.

         At a stated term of the United States Court of Appeals for the Second Circuit, held at the
  Daniel Patrick Moynihan Courthouse, 500 Pearl Street, in the City of New York, on the 28th day
  of January, two thousand eleven.

  Present:
           JOHN M. WALKER, JR.,
           CHESTER J. STRAUB,
           ROBERT A. KATZMANN,
                       Circuit Judges.
  ________________________________________________

  CHRISTINE DUTTWEILLER,

                 Plaintiff-Appellant,

                          v.                                          No. 10-150-cv

  UPSTATE BUILDING MAINTENANCE COMPANIES,
  INC., EAGLE JANITORIAL SERVICES, INC.,

                 Defendants,

  EAGLE JANITORIAL INC., EAGLE BUILDING SERVICES
  INC., LOCAL 200 UNITED SERVICE EMPLOYEES
  INTERNATIONAL UNION, AFL-CIO,

           Defendants-Appellees.*
  ________________________________________________

           *
               The Clerk of the Court is directed to amend the caption as set forth above.
For Plaintiff-Appellant:                  WOODRUFF LEE CARROLL, Carroll & Carroll Lawyers
                                          PC, Syracuse, N.Y.

For Defendant-Appellee Local 200
United Service Employees
International Union, AFL-CIO:             MAIREAD E. CONNOR, Law Offices of Mairead E.
                                          Connor, PLLC, Syracuse, N.Y.


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

New York (Suddaby, J.).

       ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and

DECREED that the judgment of the district court is AFFIRMED.

        Plaintiff-Appellant Christine Duttweiller appeals from a December 22, 2009 judgment of

the United States District Court for the Northern District of New York (Suddaby, J.) dismissing

her complaint in its entirety. Duttweiller commenced this action against her former union,

Defendant-Appellee Local 200 United Service Employees International Union, AFL-CIO (the

“Union”), and her former employer, Defendants-Appellees Eagle Janitorial Inc. and Eagle

Building Services Inc. (collectively, “Eagle”), asserting various claims arising from her

termination by Eagle in January 2005. In her corrected and amended complaint, she alleges, inter

alia, that the Union violated its duty of fair representation implied under the National Labor

Relations Act, 29 U.S.C. § 159(a), that Eagle breached its collective bargaining agreement with

the Union, and that both the Union and Eagle failed to accommodate her alleged disability and

discriminated against her in violation of the Americans with Disabilities Act of 1990 (“ADA”),

42 U.S.C. § 12101 et seq., and the New York State Human Rights Law (“NYSHRL”), N.Y.

Exec. Law § 290 et seq. The Union and Eagle separately moved for summary judgment, and the


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district court granted those motions in decisions and orders respectively dated June 4, 2009 and

December 22, 2009. We assume the parties’s familiarity with the underlying facts, the remaining

procedural history, and the issues presented on appeal.

         “We review a grant of summary judgment de novo, examining the evidence in the light

most favorable to, and drawing all inferences in favor of, the non-movant.” Sheppard v.

Beerman, 317 F.3d 351, 354 (2d Cir. 2003). Summary judgment should be granted “only if there

is no genuine issue as to any material fact, and if the moving party is entitled to a judgment as a

matter of law.” Allianz Ins. Co. v. Lerner, 416 F.3d 109, 113 (2d Cir. 2005). We review the

district court’s discovery and evidentiary rulings for abuse of discretion. In re “Agent Orange”

Prod. Liab. Litig., 517 F.3d 76, 102 (2d Cir. 2008); Arlio v. Lively, 474 F.3d 46, 51 (2d Cir.

2007).

         We turn first to Duttweiller’s challenges to the district court’s discovery and evidentiary

rulings. In this regard, Duttweiller principally contends that it was error for the district court to

have denied her application, made by letter dated October 13, 2008, to supplement the record

with respect to the Union’s motion for summary judgment with an affidavit and letter from Dr.

Brian Rieger, a rehabilitation psychologist who had been treating Duttweiller since February

2006.1 Two days later, in denying this application without prejudice, the district court noted the

following:

         Plaintiff has not shown cause as to why she did not include the affidavit in question in her
         original papers in opposition to [the Union’s] motion for summary judgment, which
         raises a challenge to whether Plaintiff has a disability under the ADA. Should the Court


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        Pursuant to the district court’s briefing schedule, which had already been extended at
Duttweiller’s request and which indicated that no further extensions would be considered, all
answering papers were to be filed by no later than September 2, 2008.

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       decide that the affidavit in question is material to the proceedings, it will entertain future
       requests.

J.A. 20 (citation omitted). On November 2, 2009, as part of her submission opposing Eagle’s

separate, later-filed summary judgment motion, Duttweiller filed a more detailed affidavit from

Dr. Rieger dated October 30, 2009. The district court considered this October 30 affidavit not

only in connection with Eagle’s motion, but also in light of its earlier decision to grant the

Union’s motion, which it reaffirmed on the basis that the affidavit did not establish facts that

were material to Duttweiller’s allegations of disability discrimination. By ultimately considering

the affidavit as it bore upon the claims against the Union, the district court provided Duttweiller

with the very relief that she sought in her October 13, 2008 letter. Against this background, we

find no error in the district court’s treatment of Dr. Rieger’s affidavits.

       Next, insofar as Duttweiller challenges the district court’s decision to grant in part the

Union’s motion to strike certain portions of Duttweiller’s own affidavit in opposition to the

Union’s summary judgment motion, we conclude that her presentation of that challenge is too

perfunctory to preserve appellate review. Duttweiller’s opening brief purports to reserve her

arguments regarding that ruling until the filing of her reply brief, at which point she would

respond to the defendants’ contentions. While the reply brief does contain limited argument in

support of the affidavit’s admissibility in toto, an appellant’s failure to advance argument on an

issue in her opening brief generally precludes our review of that issue, see Norton v. Sam’s Club,

145 F.3d 114, 117 (2d Cir. 1998); see also Tolbert v. Queens Coll., 242 F.3d 58, 75 (2d Cir.

2001), and we see no reason to relax this prudential rule in the circumstances of this case.

       As to the merits of the district court’s decisions granting summary judgment in favor of



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the defendants on all claims, after careful review of the record, we affirm substantially for the

reasons stated in the district court’s thorough and well-reasoned orders. See Duttweiller v. Eagle

Janitorial, Inc., No. 05-cv-0886, 2009 WL 5171834 (N.D.N.Y. Dec. 22, 2009); Duttweiller v.

Eagle Janitorial, Inc., 2009 WL 1606351 (N.D.N.Y. June 4, 2009). With respect to

Duttweiller’s claims of disability discrimination, we note in particular our agreement with the

district court’s conclusions that Duttweiller failed to provide sufficient evidence that she suffered

an adverse employment action because of her alleged disability, or, alternatively, that Eagle’s

non-discriminatory reason for terminating Duttweiller was pretextual. These conclusions provide

sufficient reason to dismiss these claims, even if we were to assume arguendo that Duttweiller

had created genuine issues of material fact as to the other elements of her prima facie disability

discrimination case under the ADA or the NYSHRL. See Spiegel v. Schulmann, 604 F.3d 72, 80

(2d Cir. 2010) (per curiam); Shannon v. N.Y.C. Transit Auth., 332 F.3d 95, 99 (2d Cir. 2003).

       We have considered Duttweiller’s remaining arguments on appeal and find them to be

without merit. Accordingly, for the foregoing reasons, the judgment of the district court is

AFFIRMED.

                                          FOR THE COURT:
                                          CATHERINE O’HAGAN WOLFE, CLERK




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