11-4473-cv
Davis v. N.Y.C. Health & Hosps. 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 January, two thousand thirteen.

PRESENT: BARRINGTON D. PARKER,
         REENA RAGGI,
         GERARD E. LYNCH,
                   Circuit Judges.

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MAURICE DAVIS,
                                                     Plaintiff-Appellant,
                               v.                                                       No. 11-4473-cv

THE NEW YORK CITY HEALTH AND HOSPITALS
CORPORATION, HARLEM HOSPITAL CENTER,
METROPOLITAN HOSPITAL CENTER, JUNE
BOBCOMBE, THE CITY OF NEW YORK,
                        Defendants-Appellees.
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APPEARING FOR APPELLANTS:                                  HARRY KRESKY, Esq., New York, New York.

APPEARING FOR APPELLEES:                                   ELLEN RAVITCH (Pamela Seider Dolgow,
                                                           Phyllis Gail Calistro, on the brief), Assistant
                                                           Corporation Counsel, for Michael A. Cardozo,
                                                           Corporation Counsel of the City of New York,
                                                           New York, New York.
       Appeal from a judgment of the United States District Court for the Southern District

of New York (Loretta A. Preska, Chief Judge).

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

DECREED that the judgment entered on September 30, 2011, is AFFIRMED.

       Plaintiff Maurice Davis appeals from an award of summary judgment in favor of

defendants on federal, state, and local claims of discrimination pursuant to the Americans

with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq.; the Rehabilitation Act of 1973,

29 U.S.C. § 701 et seq.; 42 U.S.C. § 1985(2); N.Y. Exec. Law § 296; and N.Y.C. Admin.

Code § 8-107.1; and retaliation for protected speech in violation of the First Amendment, see

42 U.S.C. § 1983.1 We review an award of summary judgment de novo, viewing the record

evidence in the light most favorable to Davis and drawing all reasonable inferences in her

favor. See Townsend v. Benjamin Enters., Inc., 679 F.3d 41, 47 (2d Cir. 2012). We assume

the parties’ familiarity with the facts and record of the underlying proceedings, which we

reference only as necessary to explain our decision to affirm.




       1
         Insofar as Davis asserts that the record also supports a “whistleblower” claim under
N.Y. Lab. Law § 740, the district court acted within its discretion in concluding that plaintiff
could not amend her complaint to plead such a claim by including it for the first time in her
opposition to summary judgment. See Grace v. Rosenstock, 228 F.3d 40, 53–54 (2d Cir.
2000); Wright v. Ernst & Young LLP, 152 F.3d 169, 178 (2d Cir. 1998). Thus, that claim
is not properly before us.


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1.     Disability Discrimination

       Davis asserts that the district court erred in awarding summary judgment on her

disability discrimination claims because the record reveals genuine issues of material fact as

to whether (1) the position for which she sought a reasonable accommodation was that of

staff nurse or head nurse, and (2) the accommodations she sought precluded her from

performing the essential functions of either of these positions. We disagree.

       Any conflicts present in the record as to whether the position for which Davis sought

accommodation was staff nurse or head nurse are not material to her claim because, as the

district court correctly recognized, both positions require that the nurse be able to provide

direct patient care. Davis contends that direct patient care is only a marginal responsibility

of a head nurse, see 29 C.F.R. § 1630.2(n)(1), whose fundamental responsibility is the

supervision and coordination of such care by others. The very document Davis relies on for

this argument defeats it. The listed responsibilities of a head nurse all serve to ensure proper

patient care. While a head nurse bears the responsibility for ensuring that the staff of nurses

under her supervision provides that care, she must also be able to provide direct patient care

herself whenever necessary. This evidence would not permit a factfinder to conclude that

direct patient care is not an essential function of the job of head nurse.

       Thus, we consider what constitutes direct patient care, and whether Davis sought a

reasonable accommodation to allow her to perform that essential job function. Defendants

adduced evidence that direct patient care at a large metropolitan hospital requires a nurse to

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be able to attend to the needs of patients at all times while on duty, to move and transport

patients, and to respond to medical emergencies, including assisting a patient who has

collapsed. The district court properly deferred to the employer’s judgment that these

functions were essential to the responsible provision of patient care in a hospital setting. See

D’Amico v. City of New York, 132 F.3d 145, 151 (2d Cir. 1998). Indeed, Davis does not

dispute this understanding of direct patient care, much less point to any evidence that it

meant anything different in various departments at the hospitals at issue. Cf. Stone v. City

of Mount Vernon, 118 F.3d 92, 95 (2d Cir. 1997) (citing record evidence that assignment to

Fire Alarm Bureau and Fire Prevention Bureau involved “light duty” that did not include

firefighting).2   Instead, she questions defendants’ professional judgment that nurses,

including head nurses, must be capable of providing all aspects of such direct patient care.

The law, however, does not afford a disabled individual the right to redefine, much less

eliminate, the functions of a job deemed essential by an employer. It affords a right to such

reasonable accommodations as will allow the disabled individual to perform those functions.

See Shannon v. N.Y.C. Transit Auth., 332 F.3d 95, 100 (2d Cir. 2003) (“A reasonable

accommodation can never involve the elimination of an essential function of a job.”).



       2
         In response to a leading question, the deputy director of defendants’ Equal
Employment Opportunity and Affirmative Action Office acknowledged that the duties of a
head nurse can vary from department to department, but no evidence indicates that any such
variance ever resulted in a head nurse being excused from the requirement that she be fully
able to provide patient care herself throughout her time on duty.

                                               4
       Davis claimed that various infirmities precluded her from, among other things, any

lifting of patients, as well as any pushing or pulling of wheelchairs, stretchers, or heavy carts.

She further represented that she could not sit or stand in any one location for more than

20–30 minutes at a time. These limitations, which went beyond those accommodated by

defendants in the past, would plainly prevent a nurse—whether a staff nurse or a head

nurse—from providing direct care to hospital patients at all times while on duty, particularly

if that care required lifting a patient, pushing a wheelchair or stretcher, or addressing an

emergency that required the nurse to stand for more than 20–30 minutes. Davis did not seek,

nor did defendants deny, an accommodation that would have allowed her to perform these

functions despite her limitations. Rather, she sought to be excused permanently from

performing these aspects of direct patient care while serving as a staff nurse or head nurse.

Like the district court, we conclude as a matter of law that this request was not a reasonable

accommodation. See id.3

       Accordingly, summary judgment was properly entered in favor of defendants on

Davis’s disability claims.




       3
         An employer’s willingness to accommodate an employee’s temporary inability to
perform a job function while the employee recovers from some injury, does not render the
job function inessential or support a conclusion that it can be eliminated permanently. See
Norville v. Staten Island Univ. Hosp., 196 F.3d 89, 99 (2d Cir. 1999) (“[T]he employer [is
not] obliged to create a new position to accommodate the employee.”).


                                                5
2.     First Amendment Retaliation

       Davis claims that defendants violated her First Amendment rights by retaliating

against her for complaining to her supervisors, the president of the Health and Hospital

Corporation (“HHC”), and the New York State Nurses Association (“NYSNA”) about

supposedly illegal practices in Harlem Hospital’s Eye Clinic. Although the district court did

not specifically address this claim in granting summary judgment, on de novo review, we

conclude that the matter was properly resolved in favor of defendants.

       The Supreme Court has ruled that when “public employees make statements pursuant

to their official duties, the employees are not speaking as citizens for First Amendment

purposes, and the Constitution does not insulate their communications from employer

discipline.” Garcetti v. Ceballos, 547 U.S. 410, 421 (2006); see Weintraub v. Bd. of Educ.,

593 F.3d 196, 203–04 (2d Cir. 2010), cert denied, 131 S.Ct. 444 (2010). That Davis’s

complaints about practices followed in the Eye Clinic were statements made pursuant to her

official duties as the clinic’s head nurse is evident from her memorandum to NYSNA

acknowledging that she reported the conduct to her superiors because she “believe[d] in

obeying HHC Policies and Procedures” and did “not want to lose [her] professional license

because [she] did not report what was wrong.” Appx. 68. Likewise, plaintiff’s letter to the

president of HHC stated that she was complaining about “an excessive abuse of power in[

]terms of not following HHC’s Policies and Procedures.” Id. at 102. Because plaintiff spoke

pursuant to what she herself perceived to be her official duties, her complaints do not

                                             6
constitute protected speech. See Ross v. Breslin, 693 F.3d 300, 307 (2d Cir. 2012) (“Taking

a complaint up the chain of command to find someone who will take it seriously does not,

without more, transform [her] speech into protected speech made as a private citizen.”

(alteration in original; internal quotation marks omitted)); Anemone v. Metro. Transp. Auth.,

629 F.3d 97, 115 (2d Cir. 2011) (rejecting argument that statements to a “neutral third party”

were not made pursuant to official duties). Accordingly, plaintiff’s First Amendment claim

fails as a matter of law.

3.     Conclusion

       We have considered plaintiff’s remaining arguments and conclude that they are

without merit. The award of summary judgment in favor of defendants is AFFIRMED.

                                    FOR THE COURT:
                                    CATHERINE O’HAGAN WOLFE, Clerk of Court




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