18-3072
Moschetti v. New York City Department of Education

                              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
4th day of October, two thousand nineteen.

Present:    GUIDO CALABRESI,
            ROSEMARY S. POOLER,
            MICHAEL H. PARK,
                        Circuit Judges.
_____________________________________________________

DRITA MOSCHETTI,

                                  Plaintiff-Appellant,

                         v.                                                18-3072-cv

NEW YORK CITY DEPARTMENT OF EDUCATION,

                        Defendant-Appellee.
_____________________________________________________

Appearing for Appellant:          Michael H. Sussman, Sussman & Associates, Goshen, N.Y.

Appearing for Appellee:           Zachary W. Carter, New York City Law Department (Janet L.
                                  Zaleon, New York City Law Department, on the brief), New York,
                                  N.Y.

Appeal from the United States District Court for the Southern District of New York (Karas, J.).

     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.
        Drita Moschetti appeals from the September 28, 2018 decision and order of the United
States District Court for the Southern District of New York (Karas, J.), granting the New York
City Department of Education (“DOE”) summary judgment on Moschetti’s claim under Title VII
of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., for national origin discrimination and
her claims under the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101, et seq., for
discrimination and failure to make reasonable accommodation. We assume the parties’
familiarity with the underlying facts, procedural history, and specification of issues for review.

        “We review de novo a district court’s grant of a motion for summary judgment.” Walsh v.
N.Y.C. Hous. Auth., 828 F.3d 70, 74 (2d Cir. 2016). We rely on the three-part burden-shifting
scheme articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), to analyze Title
VII discrimination claims. See Abrams v. Dep’t of Pub. Safety, 764 F.3d 244, 251 (2d Cir. 2014).
“Under McDonnell Douglas, a plaintiff bears the initial burden of proving by a preponderance of
the evidence a prima facie case of discrimination; it is then the defendant’s burden to proffer a
legitimate non-discriminatory reason for its actions; the final and ultimate burden is on the
plaintiff to establish that the defendant’s reason is in fact pretext for unlawful discrimination.” Id.
at 251.

        To make out a prima facie case of discrimination under Title VII, a plaintiff must
establish “(1) that he belonged to a protected class; (2) that he was qualified for the position he
sought; (3) that he suffered an adverse employment action; and (4) that the adverse employment
action occurred under circumstances giving rise to an inference of discriminatory intent.” Id. at
251-52. “An adverse employment action is a materially adverse change in the terms and
conditions of employment.” Mathirampuzha v. Potter, 548 F.3d 70, 78 (2d Cir. 2008) (internal
quotation marks, citation, and emphasis omitted).

        On appeal, Moschetti argues that the district court erred in finding that she failed to
establish that DOE took any adverse employment action against her.

         We affirm the district court’s decision for substantially the same reasons given by the
district court in its thorough analysis. Based on our review of the record, we find that the
purported adverse employment actions that Moschetti asserts are directly contradicted by the
record. Moschetti’s evaluation at the Bronx High School of Business was consistent with the
policies as articulated in BHSB’s faculty handbook. She received instructional support at BHSB
throughout the school year through teacher observations. She was not, as Moschetti urges us to
find, threatened with a poor year-end rating; rather, the BHSB principal informed her that
missing a formal evaluation could affect her year-end rating. Moschetti received multiple
authoritative confirmations that she was not in the Absent Teacher Reserve. Finally, the delay in
the approval of her application for a Line of Duty Injury leave of absence was, as the district
court suggested, essentially due to her actions with respect to the required forms and thus does
not constitute an adverse employment action taken by DOE.

        The ADA prohibits discrimination against “qualified individual[s] on the basis of
disability,” defining such discrimination to include, inter alia, “not making reasonable
accommodations to the known physical or mental limitations of an otherwise qualified individual



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with a disability who is an applicant or employee, unless such covered entity can demonstrate
that the accommodation would impose an undue hardship on the operation of the business of
such covered entity.” 42 U.S.C. §§ 12112(a), 12112(b)(5)(A). “[A] plaintiff makes out a prima
facie case of disability discrimination arising from a failure to accommodate by showing each of
the following: (1) Plaintiff is a person with a disability under the meaning of the ADA; (2) an
employer covered by the statute had notice of his disability; (3) with reasonable accommodation,
plaintiff could perform the essential functions of the job at issue; and (4) the employer has
refused to make such accommodations.” McBride v. BIC Consumer Prods. Mfg. Co., 583 F.3d
92, 96-97 (2d Cir. 2009) (internal quotation marks, citations, and alterations omitted).

       On this record, we easily find that DOE reasonably accommodated Moschetti’s mobility
impairment by granting a hardship transfer to Moschetti and assigning her to two schools at a
campus location she requested. Even accepting Moschetti’s contention that the job she received
at Gateway School was no job at all, DOE did not refuse to make accommodations, because it
assigned her to a different position shortly after Moschetti arrived at Gateway School.

        We have considered the remainder of Moschetti’s arguments and find them to be without
merit. Accordingly, the order of the district court hereby is AFFIRMED. Each side to bear its
own costs.


                                                   FOR THE COURT:
                                                   Catherine O’Hagan Wolfe, Clerk




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