11-4366-cv
McElwee v. County of Orange


                      U NITED S TATES C OURT OF A PPEALS
                           FOR THE S ECOND C IRCUIT


                              August Term 2012

(Argued: October 4, 2012                       Decided: November 15, 2012)

                         Docket No. 11-4366-cv


                       ________________________

                              J AMES C. M C E LWEE ,

                                                     Plaintiff-Appellant,

                                        v.

                              C OUNTY   OF   O RANGE ,

                                                     Defendant-Appellee.

                       ________________________

Before:
              R AGGI , C HIN , and C ARNEY , Circuit Judges.

           Appeal from a judgment of the United States

District Court for the Southern District of New York

(Duffy, J.), entered on September 30, 2011, dismissing

plaintiff's claims under Title II of the Americans with

Disabilities Act, 42 U.S.C. § 12131 et seq., and Section

504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 et
seq., following the district court's grant of defendant's

motion for summary judgment.

          AFFIRMED.

                         S TEPHEN B ERGSTEIN , Bergstein & Ullrich,
                         LLP, Chester, New York, for
                         Plaintiff-Appellant.

                         K AREN F OLSTER L ESPERANCE (David L.
                         Posner, on the brief), McCabe & Mack
                         LLP, Poughkeepsie, New York, for
                         Defendant-Appellee.

                         Brian D. East, Disability Rights
                         Texas, Austin, Texas, for Amici
                         Curiae National Disability Rights
                         Network and Autism Speaks.

C HIN , Circuit Judge:

          Plaintiff James C. McElwee appeals from a judgment

of the United States District Court for the Southern

District of New York (Duffy, J.).      McElwee served as a

volunteer at Valley View Center for Nursing Care and

Rehabilitation ("Valley View"), a federally funded entity

operated by defendant Orange County (the "County").         In

2009, McElwee was dismissed from Valley View's volunteer

program after engaging in erratic and harassing behavior

toward female staff members.     McElwee, who was previously

diagnosed with Pervasive Developmental Disorder, brought


                               -2-
this action against the County pursuant to Title II of the

Americans with Disabilities Act (the "ADA"), 42 U.S.C.

§ 12131 et seq., and Section 504 of the Rehabilitation Act

of 1973 (the "Rehabilitation Act"), 29 U.S.C. § 794 et

seq., alleging that he was denied a reasonable

accommodation for his disability.

            The district court found that McElwee was not

disabled within the meaning of the statutes and granted the

County's motion for summary judgment dismissing the

Complaint.    We affirm the district court's award of summary

judgment, albeit on different grounds.

                           BACKGROUND

            The following facts are undisputed, unless

otherwise noted.

A.   The Plaintiff

            McElwee is a man in his mid-thirties with a

neurodevelopmental disorder formally classified as

Pervasive Developmental Disorder - Not Otherwise Specified

("PDD-NOS") and informally called an autism spectrum

disorder.    He has an IQ of 79, placing him in the eighth

percentile of intellectual functioning.    He lives with his


                               -3-
mother, has never held a job, and likely will always

require assistance in managing money and completing non-

routine tasks.

         In 1996, McElwee began participating in a

volunteer program at Valley View, where he performed

janitorial and housekeeping duties and transported nursing

home residents to religious and social events.    McElwee

competently performed these assigned tasks without

hindrance from his alleged disability.   Meanwhile, t he

volunteer program improved his self-esteem by allowing him

to associate with other people in the community and provide

a service to the elderly and infirm.

B.   A Staff Member Complains

         On November 20, 2009, Martha Thompson, a staff

member at Valley View, informed Robin Darwin, the Assistant

Administrator, that McElwee was "acting inappropriately

towards her and making her feel uncomfortable."

Specifically, Thompson complained that on multiple

occasions, McElwee had waited for her and followed her in

the hallways, staring at her rear end.   Thompson also told

Darwin that she was aware of at least two other women at


                            -4-
Valley View who McElwee had "bothered" or made to feel

uncomfortable.

         On November 24, 2009, Darwin and Amy Fey, the

Director of Activities, met with McElwee to inform him that

someone had complained about his behavior and to discuss

the allegations with him.     When Darwin asked McElwee if he

knew who the complainant might be, McElwee replied that it

might be a social worker named Lindsay because he "look[s]

at her and talk[s] to her."    When Darwin told McElwee that

it was not Lindsay, he guessed that it might be a

particular nurse's aide, admitting, "I talk to her too, and

look at her."    McElwee then said that God was trying to

punish him because of his "history," and he explained that

when he was in high school he "made a mean phone call to a

girl, saying nasty/dirty things."      McElwee further stated,

"there needs to be punishment and now," and made a gesture

simulating slitting his throat.      When Darwin asked him what

he meant, McElwee replied that he "deserve[d] to be

punished when [he does] bad things."      McElwee then made an

angry face and said, "just when I think someone is going to

pat me on the back someone stabs me," simultaneously making


                               -5-
a gesture as if he were holding a knife and repeatedly

stabbing himself in the back.    When Darwin informed McElwee

that it was Thompson who had complained about him, he said:

"Oh, I should have known.    I had a feeling she was going to

turn me in."

C.   Valley View Investigates Further

            After her meeting with McElwee, Darwin spoke with

Valley View's Facility Administrator, who told her to

conduct a further investigation regarding McElwee's

behavior if she was considering terminating his volunteer

services.

            On November 25, 2009, Darwin informed McElwee that

she was disturbed by the situation, she was going to

conduct an investigation, and he should leave Valley View

and not return until he heard from her.    McElwee started to

cry, and said that Darwin was a conduit of God.    He said

that God was telling him not to do these things anymore,

and was punishing him for what he had done in the past.

McElwee also said that he had been conducting research at

the library over the last several months to see if his




                               -6-
behavior could be considered domestic violence or sexual

harassment.

            Darwin subsequently conducted an investigation by

interviewing individuals at Valley View about McElwee's

behavior.     In total, five women reported that McElwee had

behaved inappropriately toward them, and a security guard

reported that he had seen McElwee bothering nursing

students and visitors.

            Liz Murphy, a staff member in Valley View's

payroll department, told Darwin that McElwee watched her

and followed her on her breaks, and she recounted one

instance when McElwee sat in the lobby and watched her

while she distributed checks.    Murphy told Darwin that this

behavior had been going on for a few years but had

increased since the previous spring.     She said she gave

McElwee the cold shoulder and went out of her way to avoid

him.   Barbara Decker, another payroll department employee,

told Darwin that McElwee used to carry around a stuffed

dolphin that he asked women to pet, in a manner she

perceived as sexually suggestive.     Decker also said that

several years earlier McElwee had inquired about dating her


                               -7-
daughter, and that the way he spoke about her daughter made

her uncomfortable.    Pat Matero, the Director of Admissions,

told Darwin that McElwee once asked her how he would look

in a Speedo, and that she had observed him in the past

"playing up" to young aides with sexual innuendo.     Irene

Simpson, the Activities Supervisor at Valley View, told

Darwin that McElwee once said to her, "[d]o you realize

what I could do to you?" in what she felt was a threatening

way.    Eric Gould, a security guard at Valley View, told

Darwin that Thompson and Murphy had complained to him that

McElwee's behavior made them feel uncomfortable.     Gould

also said he had observed McElwee leering at and acting

inappropriately around female nursing students and

visitors.

D.     McElwee is Dismissed

            Based on her investigation, Darwin concluded that

McElwee was a potential liability for Valley View in that

he was sexually harassing staff, nursing students, and




                               -8-
visitors, and had exhibited disturbing behavior when

confronted with these allegations. 1

          On November 30, 2009, McElwee's mother called

Darwin and told her that McElwee "is not like everyone

else" and that he should not be discriminated against

because he has a disability and because he was looking at

people.   She asked Darwin to call McElwee's therapist, who

could better explain why he acted the way that he did.

Darwin never called the therapist.

          Darwin consulted with Valley View's Facility

Administrator, the County Executive's Office, and the

County Law Department regarding the results of her

investigation.   On December 1, 2009, she sent McElwee a

letter, stating that his volunteer services were no longer

needed at Valley View.

          On December 10, 2009, McElwee went to Valley View

to sing Christmas carols for the residents.     When he



    1
          McElwee argues that some of the identified incidents
occurred many years earlier, it was not his intention to harass
or make people feel uncomfortable, and his actions must be
viewed in the context of his disability; he does not dispute,
however, that the incidents occurred or that they were reported
to Darwin as described.


                              -9-
arrived at the facility, a security guard told him he was

not allowed inside the building because of "what had

happened recently."

E.   Procedural History

            McElwee filed the action below on January 8, 2010,

alleging that the County had violated the ADA and the

Rehabilitation Act by dismissing him from the volunteer

program and subsequently excluding him from Valley View

altogether without providing him a reasonable accommodation

for his mental impairment.

            Following discovery, the County moved for summary

judgment.    On September 29, 2011, the district court

granted the County's motion, holding that McElwee was not

"'substantially limited' in the major life activity of

interacting with others" and therefore was not " disabled"

under the ADA or the Rehabilitation Act.    See McElwee v.

Cnty. of Orange, No. 10 Civ. 00138 (KTD), 2011 U.S. Dist.

LEXIS 114663, at *20 (S.D.N.Y. Sept. 29, 2011).    In

particular, the court held, "while Plaintiff may suffer

from a diagnosed disorder, . . . Plaintiff has not

demonstrated that his mental impairment substantially


                              -10-
impairs his ability 'to connect with others, i.e., to

initiate contact with other people and respond to them, or

to go among other people –- at the most basic level of

these activities.'"    Id. at *16 (quoting Jacques v.

DiMarzio, Inc., 386 F.3d 192, 201 (2d Cir. 2004)).

            The court did not consider whether McElwee was

otherwise qualified to be a volunteer at Valley View or

whether the accommodations he sought were reasonable.

Judgment dismissing the Complaint was entered on September

30, 2011.

            This appeal followed.

                           DISCUSSION

A.   Applicable Law

     1.     Standard of Review

            We review an award of summary judgment de novo,

construing the evidence in the light most favorable to the

nonmoving party and drawing all reasonable inferences in

his favor.    McBride v. BIC Consumer Prods. Mfg. Co., 583

F.3d 92, 96 (2d Cir. 2009).       Summary judgment is

appropriate where the record reveals that there is "no

genuine dispute as to any material fact and the movant is


                                 -11-
entitled to judgment as a matter of law."     Fed. R. Civ. P.

56(a).   A factual dispute is genuine "if the evidence is

such that a reasonable jury could return a verdict for t he

nonmoving party."   Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 248 (1986).   We may affirm summary judgment on

any ground supported by the record, even if it is not one

on which the district court relied.     10 Ellicott Sq. Ct.

Corp. v. Mountain Valley Indem. Co., 634 F.3d 112, 125 (2d

Cir. 2010).

    2.    The ADA and the Rehabilitation Act

          Title II of the ADA provides that "no qualified

individual with a disability shall, by reason of such

disability, be excluded from participation in or be denied

the benefits of the services, programs, or activities of a

public entity, or be subjected to discrimination by any

such entity."   42 U.S.C. § 12132.    Similarly, Section 504

of the Rehabilitation Act prohibits programs and activities

receiving federal financial assistance from excluding,

denying benefits to, or discriminating against "otherwise

qualified" disabled individuals.     29 U.S.C. § 794(a).

Because the standards adopted by the two statutes are


                            -12-
nearly identical, we consider the merits of these claims

together.    See Abrahams v. MTA Long Island Bus, 644 F.3d

110, 115 n.3 (2d Cir. 2011).

            To assert a claim under Title II of the ADA or

section 504 of the Rehabilitation Act, a plaintiff must

demonstrate that (1) he is a qualified individual with a

disability; (2) the defendant is subject to one of the

Acts; and (3) he was denied the opportunity to participate

in or benefit from the defendant's services, programs, or

activities, or was otherwise discriminated against by the

defendant because of his disability.    Henrietta D. v.

Bloomberg, 331 F.3d 261, 272 (2d Cir. 2003).

            A "qualified individual with a disability" is "an

individual with a disability who, with or without

reasonable modifications to rules, policies, or practices,

the removal of architectural, communication, or

transportation barriers, or the provision of auxi liary aids

and services, meets the essential eligibility requirements

for the receipt of services or the participation in

programs or activities provided by a public entity."      42

U.S.C. § 12131.    A "disability" is defined as "a physical


                              -13-
or mental impairment that substantially limits one or more

major life activities."    Id. § 12102(1)(A).

         Under both statutes, a defendant discriminates

when it fails to make a reasonable accommodation that would

permit a qualified disabled individual "to have access to

and take a meaningful part in public services." 2    Powell v.

Nat'l Bd. of Med. Exam'rs, 364 F.3d 79, 85 (2d Cir. 2004);

see also 42 U.S.C. § 12112(b)(5)(A) (the term

"discriminate" under the ADA includes "not making

reasonable accommodations to the known physical or mental

limitations of an otherwise qualified individual with a


    2
          Although McElwee brought the instant case pursuant to
Title II of the ADA, we may look for guidance to case law under
Title I of the ADA, which governs employment discrimination,
because (i) courts use the terms "reasonable modifications" in
Title II and "reasonable accommodations" in Title I
interchangeably, see, e.g., Powell v. Nat'l Bd. of Med. Exam'rs,
364 F.3d 79, 85, 88 (2d Cir. 2004) (discussing "accommodations"
provided in Title II case); Robertson v. Las Animas Cnty.
Sheriff's Dep't, 500 F.3d 1185, 1195 n.8 (10th Cir. 2007)
(noting that "Title II's use of the term 'reasonable
modifications' is essentially equivalent to Title I's use of the
term 'reasonable accommodation'"); and (ii) McElwee's volunteer
position at Valley View was analogous to that of an employee,
see, e.g., Bauer v. Muscular Dystrophy Ass'n, Inc., 427 F.3d
1326, 1333 (10th Cir. 2005) (noting that reference to Title I
case law was appropriate in Title III case where plaintiffs, who
were volunteers, "act[ed] in a capacity at least somewhat
analogously to that of an employee").




                              -14-
disability who is an applicant or employee").        "A

'reasonable accommodation' is one that gives the otherwise

qualified plaintiff with disabilities 'meaningful access'

to the program or services sought."   Henrietta D., 331 F.3d

at 282 (quoting Alexander v. Choate, 469 U.S. 287, 301

(1985)).

           Although a public entity must make "reasonable

accommodations," it does not have to provide a disabled

individual with every accommodation he requests or the

accommodation of his choice.   See Fink v. N.Y.C. Dep't of

Personnel, 53 F.3d 565, 567 (2d Cir. 1995).     An

accommodation is not reasonable if it would impose an undue

hardship on a program's operation or "would fundamentally

alter the nature of the service, program, or activity. "

Powell, 364 F.3d at 88 (citing 28 C.F.R. §§ 41.53,

35.130(b)(7)) (internal quotation marks omitted).

Moreover, under the ADA, workplace misconduct is a

legitimate and nondiscriminatory reason for terminating

employment, even when such misconduct is related to a




                             -15-
disability. 3   A requested accommodation that simply excuses

past misconduct is unreasonable as a matter of law. 4

          Although it is generally "the responsibility of

the individual with a disability to inform the employer

that an accommodation is needed," Brady v. Wal-Mart Stores,

Inc., 531 F.3d 127, 135 (2d Cir. 2008) (quoting Graves v.

Finch Pruyn & Co., 457 F.3d 181, 184 (2d Cir. 2006))

     3
          See Sista v. CDC Ixis N. Am., Inc., 445 F.3d 161, 172
(2d Cir. 2006) (the ADA does not "require that employers
countenance dangerous misconduct, even if that misconduct is the
result of a disability"); see also Raytheon Co. v. Hernandez,
540 U.S. 44, 54 n.6 (2003) (rejecting suggestion that employer's
refusal to rehire someone because of his disability-related
misconduct would violate the ADA); Halpern v. Wake Forest Univ.
Health Scis., 669 F.3d 454, 465 (4th Cir. 2012) ("[M]isconduct
-- even misconduct related to a disability -- is not itself a
disability and may be a basis for dismissal." (citation and
internal quotation marks omitted)).
     4
          See Canales-Jacobs v. N.Y.S. Office of Ct. Admin., 640
F. Supp. 2d 482, 500 (S.D.N.Y. 2009) ("The ADA does not excuse
workplace misconduct because the misconduct is related to a
disability."); Fahey v. City of N.Y., No. 10 Civ. 4609 (ILG)
(MDG), 2012 U.S. Dist. LEXIS 15104, at *31 (E.D.N.Y. Feb. 7,
2012) (rejecting plaintiff's failure to accommodate claim where
requested accommodation was to receive penalty other than
termination for past misconduct); Whalley v. Reliance Grp.
Holdings, Inc., No. 97 Civ. 4018 (VM), 2001 U.S. Dist. LEXIS
427, at *27 (S.D.N.Y. Jan. 22, 2001) (holding that plaintiff's
belated request for accommodation after learning of employer's
decision to terminate him amounted to a request for a second
chance); U.S. Equal Emp't Opportunity Comm'n, Enforcement
Guidance: Reasonable Accommodation and Undue Hardship under the
Americans with Disabilities Act, question 36 (2002) ("Since
reasonable accommodation is always prospective, an employer is
not required to excuse past misconduct even if it is the result
of the individual's disability.").


                              -16-
(internal quotation marks omitted), under certain

circumstances, an employer is required to act proactively

and engage in an interactive process to accommodate the

disability of an employee even if the employee does not

request accommodation, see id.; see also 29 C.F.R.

§ 1630.2(o)(3) ("To determine the appropriate reasonable

accommodation it may be necessary for the covered entity to

initiate an informal, interactive process with the

individual with a disability in need of the

accommodation.").    Nevertheless, an employee may not

recover based on his employer's failure to engage in an

interactive process if he cannot show that a reasonable

accommodation existed at the time of his dismissal.      See

McBride, 583 F.3d at 99-101.

         A plaintiff alleging that he was denied a

reasonable accommodation bears the burdens of both

production and persuasion as to the existence of some

accommodation that would allow him to meet the essential

eligibility requirements of the service, program, or

activity at issue.    See id. at 97.   Once the plaintiff has

demonstrated that there is a "plausible accommodation, the


                             -17-
costs of which, facially, do not clearly exceed its

benefits," the defendant bears the burden of proving that

the requested accommodation is not reasonable.   Borkowski

v. Valley Cent. Sch. Dist., 63 F.3d 131, 138 (2d Cir.

1995).

B.   Application

         In this case, the parties agree that McElwee has

satisfied the second element of his claim:   Valley View is

a federally funded entity of the County, and therefore is

subject to the ADA and the Rehabilitation Act.   See 42

U.S.C. § 12131(1)(B) (defining "public entity" as, inter

alia, "any department, agency, special purpose district, or

other instrumentality of a State or States or local

government"); 29 U.S.C. § 794(a) (prohibiting

discrimination by "any program or activity receiving

Federal financial assistance").

         The parties dispute, however, whether the first

and third elements are satisfied, i.e., whether McElwee is

a qualified individual with a disability and whether the

County discriminated against him by denying him a




                           -18-
reasonable accommodation.     We discuss these elements in

turn.

       1.   Whether McElwee is a Qualified Individual with a
            Disability

            The question whether McElwee is a qualified

individual with a disability has two aspects, namely,

whether he is disabled and whether he is qualified.       We

consider both aspects below.

            a.   Whether McElwee is Disabled

            The district court found that McElwee was not

substantially limited in the major life activity of

interacting with others and concluded that McElwee was not

disabled.    See McElwee, 2011 U.S. Dist. LEXIS 114663, at

*20.    On appeal, McElwee argues that the district court

erred by failing to consider the ADA Amendments Act of 2008

("ADAAA"), Pub. L. No. 110-325, 122 Stat. 3553 (2008),

which amended the ADA to provide that the definition of

"disability" shall be construed broadly "to the maximum

extent permitted by the terms of this chapter" an d "[t]he

term 'substantially limits' shall be interpreted

consistently with the findings and purposes of the




                               -19-
[ADAAA]."     42 U.S.C. § 12102(4)(A), (B). 5   Similarly, the

amici curiae argue that, in light of the ADAAA, the

district court erred in concluding that McElwee is not

disabled.

            Both McElwee and amici raise fair concerns as to

whether the district court erred in not addressing whether

McElwee was substantially limited in the major life

activities of working, caring for himself, communicating,

thinking, and brain function.     See 42 U.S.C. § 12102(2)

(providing that "major life activities include, but are not

limited to" caring for oneself, learning, concentrating,

thinking, communicating, working, and the operatio n of

major bodily functions such as brain function); 29 C.F.R.

§ 1630.2(j)(1)(i) (instructing courts to construe the term

"substantially limits" broadly); id. § 1630.2(j)(3)(iii)

(specifically identifying autism as an impairment that

substantially limits brain function in virtually all

cases).     Nonetheless, we need not decide whether the



    5
          The ADAAA became effective on January 1, 2009 and
applies to claims, such as McElwee's, that arose after that
date. See ADA Amendments Act of 2008, Pub. L. No. 110-325, 122
Stat. 3553, 3559 (2008).


                               -20-
district court erred in finding McElwee was not disabled

because even assuming arguendo that a reasonable jury could

find McElwee disabled, the County is entitled to summary

judgment for the reasons set forth below.

         b.   Whether McElwee is Qualified

         Although the parties disputed before the district

court whether McElwee is a qualified individual, the court

did not address this issue.    See McElwee, 2011 U.S. Dist.

LEXIS 114663, at *1, *12.

         McElwee asserts that he is qualified to

participate in Valley View's volunteer program because he

adequately performed his volunteer duties for years.   The

County, on the other hand, argues that McElwee's

"longstanding course of inappropriate conduct with numerous

female employees, nursing students, and visitors to the

facility" disqualified him from serving as a volunteer.

         As noted, an individual is qualified to

participate in a program if he meets the essential

eligibility requirements for participation in the program,

with or without reasonable accommodations.    See 42 U.S.C.

§ 12131(2).   To determine whether an individual is


                              -21-
qualified, courts look to a program's "formal legal

eligibility requirements."    Henrietta D., 331 F.3d at 277

(citing 42 U.S.C. §§ 12131-12132).    An eligibility

requirement is not considered "essential" if a "reasonable

accommodation would enable an individual to qualify for the

benefit."    Castellano v. City of N.Y., 946 F. Supp. 249,

253 (S.D.N.Y. 1996), aff'd on other grounds, 142 F.3d 58

(2d Cir. 1998).

            The "benefit" here at issue is the ability to

participate in Valley View's volunteer program.    To be

qualified for such participation, a person must have been

not only mentally and physically able to perform the tasks

assigned to him, but also emotionally able to conduct

himself in an appropriate manner when dealing with

residents, supervisors, and other staff members.       There is

no dispute that McElwee was always qualified to perform the

former functions.    But by at least 2009, his sexual

harassment of female staff members appears to have rendered

him unqualified as to the latter.    See, e.g., Higgins v.

Md. Dep't of Agric., No. L-11-0081, 2012 U.S. Dist. LEXIS

25303, at *18 (D. Md. Feb. 28, 2012) (finding plaintiff's


                              -22-
inappropriate workplace behavior rendered him unqualified

because "[t]he 'essential functions' of [plaintiff's]

position included courteous and professional interactions

with the public, fellow staff, subordinates, and

supervisors").

         The extent to which McElwee's aberrant behavior,

which he attributed to his disability, disqualified him

from participating in Valley View's volunteer program is

perhaps more easily addressed by asking whether a

reasonable accommodation for his disability existed.     See

Sista v. CDC Ixis N. Am. Inc., 445 F.3d 161, 171 (2d Cir.

2006) (concluding that plaintiff's misconduct is "distinct

. . . from the issue of minimal qualification to perform a

job" (quoting Owens v. N.Y.C. Hous. Auth., 934 F.2d 405,

409 (2d Cir. 1991)) (internal quotation marks omitted)).

We address that issue below.

    2.   Whether the County Discriminated Against McElwee

         McElwee alleges that his dismissal from Valley

View's volunteer program was unlawful discrimination

because he was not provided a reasonable accommodation for

his disability.   In particular, he claims that Darwin


                            -23-
should have (1) worked with him and his therapist to help

him behave more appropriately in the workplace; and (2)

worked with the Valley View employees who complained about

him to educate them about McElwee's disability so that they

would be more tolerant of his behavior .

         As an initial matter, McElwee's claim is as much a

request to excuse his past misconduct as it is a request

for future accommodation.    He does not dispute that he

followed and stared at female employees or that his conduct

was reasonably perceived by others as inappropriate.       It is

also undisputed that when Darwin asked him about this

behavior, he engaged in perseveration and made disturbing

statements and gestures.    This inappropriate behavior is

indisputably a legitimate non-discriminatory reason for

dismissing McElwee from the volunteer program , even if the

behavior resulted from his disability.     See Canales-Jacobs

v. N.Y.S. Office of Ct. Admin., 640 F. Supp. 2d 482, 500

(S.D.N.Y. 2009); U.S. Equal Emp't Opportunity Comm'n,

Enforcement Guidance: Reasonable Accommodation and Undue

Hardship under the Americans with Disabilities Act ,

question 36 (2002).   "The ADA mandates reasonable


                             -24-
accommodation of people with disabilities in order to put

them on an even playing field with the non-disabled; it

does not authorize a preference for disabled people

generally."   Felix v. N.Y.C. Transit Auth., 324 F.3d 102,

107 (2d Cir. 2003).

         Further, even if, as McElwee argues, Darwin should

have known he was disabled and proactively engaged in an

interactive process to assess whether his disability could

be reasonably accommodated, see Brady, 531 F.3d at 135-36,

he has not met his burden of showing that the proposed

accommodations are plausible, see McBride, 583 F.3d at 99-

101; Borkowski, 63 F.3d at 138.     On the contrary, as

discussed below, both of the accommodations McElwee now

claims he was denied are unreasonable on their face, as a

matter of law.

         The first accommodation McElwee proposes is that

Valley View should have spoken to his therapist or

"encourage[d] him to obtain particularized therapy to help

him behave more appropriately in the workplace and . . .

better interact with colleagues."    Nothing in the record

before us, however, indicates that fur ther therapy would


                            -25-
have helped McElwee to refrain from his inappropriate

conduct, either immediately or at any time in the near

future. 6   On the contrary, a psychological evaluation

conducted in August 2009 -- three months before McElwee was

dismissed from Valley View -- indicated that he had a long-

standing pattern of repeatedly approaching girls and women

and obsessing about their rejection of him, and that this

behavior was consistent with his PDD-NOS diagnosis.       The

evaluation also suggested that his perseverative behavior

and inability to take constructive criticism were

characteristics of his impairment.

            Further, McElwee's psychiatrist of 14 years wrote

a letter to McElwee's counsel in January 2011 -- a year

after McElwee filed the Complaint in this case -- reporting

that "[Mr. McElwee] does not respond to social cues (and

body language) such as when people are having a private


     6
          See McBride v. BIC Consumer Prods. Mfg. Co., 583 F.3d
92, 97-98 (2d Cir. 2009) (noting that a plaintiff requesting a
reassignment as an accommodation must demonstrate that a vacant
position existed "at or around the time when accommodation was
sought"); see also Myers v. Hose, 50 F.3d 278, 283 (4th Cir.
1995) ("[R]easonable accommodation is by its terms most
logically construed as that which presently, or in the immediate
future, enables the employee to perform the essential functions
of the job in question.").


                              -26-
conversation, when the topic is inappropriate to the

situation, when it is time to change the subject, when he

is making someone uncomfortable."    The psychiatrist did not

suggest that further therapy would enable McElwee to behave

appropriately.   Accordingly, McElwee's proposed

accommodation for Valley View to work with him to obtain

additional therapy was unreasonable as a matter of law

because he has failed to offer any assurance that it would

have enabled him to meet the essential eligibility

requirements of Valley View's volunteer program at any time

in the near future. 7




    7
          See, e.g., Mole v. Buckhorn Rubber Prods., Inc., 165
F.3d 1212, 1218 (8th Cir. 1999) (finding requested accommodation
unreasonable because plaintiff "could offer no assurance the
requested accommodations would remedy her many job performance
deficiencies," especially where a letter from her doctor warned
that plaintiff "has a lifelong illness that 'will likely
fluctuate considerably'"); K.H. ex rel. K.C. v. Vincent Smith
Sch., No. 06-CV-319 (ERK) (JO), 2006 U.S. Dist. LEXIS 22412, at
*24 (E.D.N.Y. Mar. 29, 2006) (finding requested accommodation
unreasonable because it likely would not "make it possible for
[plaintiff] to continue to attend the School and benefit from
its educational program"); Higgins v. Md. Dep't of Agric., No.
L-11-0081, 2012 U.S. Dist. LEXIS 25303, at *21 (D. Md. Feb. 28,
2012) (dismissing plaintiff's failure to accommodate claim
because plaintiff "has not identified an accommodation that
would have enabled him to conform his behavior to an acceptable
standard").


                              -27-
         McElwee's second requested accommodation -- for

Valley View to work with the women who complained about his

behavior "to educate [them] about plaintiff's disability or

to [help them] better understand the nature of [their]

concerns about plaintiff" -- is also unreasonable as a

matter of law.   This proposed accommodation does not even

purport to address McElwee's inappropriate behavior;

instead, it simply demands that others be more tolerant.

Requiring others to tolerate misconduct, however, is not

the kind of accommodation contemplated by the ADA. 8

Further, nursing home employees, volunteers, and visitors
    8
          See Lovejoy-Wilson v. NOCO Motor Fuel, Inc., 263 F.3d
208, 217 (2d Cir. 2001) (noting that Title I and the associated
regulations define "reasonable accommodation" as including but
not limited to job restructuring, modified work schedules,
reassignment, and adjustments to work environment) (citing 42
U.S.C. § 12111(9)(B) and 29 C.F.R. § 1630.2(o)(1)(ii)); 42
U.S.C. § 12131(2) (accommodations available in Title II case
include "modifications to rules, policies, or practices, the
removal of architectural, communication, or transportation
barriers, or the provision of auxiliary aids and services");
see, e.g., K.H., 2006 U.S. Dist. LEXIS 22412, at *23 (finding
request for plaintiff's psychiatrist to meet with school
officials "to talk things over" and psychiatrist's statement
that officials "needed to have more patience and more tolerance"
with plaintiff, without recommending a particular plan to manage
plaintiff's behavior, was not a reasonable accommodation); Hall
v. Wal-Mart Assocs., 373 F. Supp. 2d 1267, 1272 (M.D. Ala. 2005)
(holding that plaintiff's "sought-after accommodation --
tolerance of his dishonesty -- . . . materially differs in kind
from the more common accommodations previously recognized by
this court").


                              -28-
should not be required to tolerate harassing behavior, and

it would be an undue hardship for Valley View to have to

countenance behavior of this kind. 9

         In sum, McElwee failed to present sufficient

evidence below to raise a genuine issue of fact as to

whether he was discriminated against because of his

disability.

                          CONCLUSION

         For the reasons stated above, the judgment of the

district court is affirmed.




    9
          See, e.g., Darcangelo v. Verizon Md., Inc., No. WDQ-
02-816, 2005 U.S. Dist. LEXIS 37660, at *11 (D. Md. June 7,
2005) ("Requiring [plaintiff's] coworkers and supervisors to
suffer her tirades and harassment . . . constitutes an undue
hardship which [her employer] cannot be expected to bear."),
aff'd, 189 F. App'x 217, 218-19 (4th Cir. 2006) (per curiam).


                              -29-
