     14-1201
     Wade v. New York City Department of Education 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.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 30th day of June, two thousand sixteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                GUIDO CALABRESI,
 8                REENA RAGGI,
 9                              Circuit Judges.
10
11       - - - - - - - - - - - - - - - - - - - -X
12       JACQUELINE WADE,
13                Plaintiff-Appellant,
14
15                    -v.-                                               14-1201
16
17       NEW YORK CITY DEPARTMENT OF EDUCATION
18       & CITY OF NEW YORK,
19                Defendants-Appellees.
20       - - - - - - - - - - - - - - - - - - - -X
21
22       FOR APPELLANT:                        Stephen Bergstein, Bergstein &
23                                             Ullrich, LLP, Chester, New York.
24
25       FOR APPELLEES:                        Jonathan Popolow (with Cecelia
26                                             Chang on the brief) for Zachary
27                                             W. Carter, Corporation Counsel
28                                             of the City of New York, New
29                                             York, New York.

                                                  1
 1   FOR AMICUS CURIAE EQUAL   Donna J. Brusoski, P. David
 2   EMPLOYMENT OPPORTUNITY    Lopez, Jennifer S. Goldstein &
 3   COMMISSION:               Lorraine C. Davis, Equal
 4                              Employment Opportunity
 5                             Commission, Office of General
 6                             Counsel, Washington, D.C.
 7
 8        Appeal from a judgment of the United States District
 9   Court for the Southern District of New York (Schofield, J.).
10
11        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
12   AND DECREED that the judgment of the district court be
13   AFFIRMED.
14
15        Jacqueline Wade appeals from the judgment of the United
16   States District Court for the Southern District of New York
17   (Schofield, J.), granting summary judgment in favor of
18   defendants-appellees on her claims under Title VII of the
19   Civil Rights Act of 1964 (“Title VII”), the Americans with
20   Disabilities Act of 1990 (“ADA”), the Age Discrimination in
21   Employment Act of 1976 (“ADEA”), the New York State Human
22   Rights Law (“NYSHRL”) and the New York City Human Rights Law
23   (“NYCHRL”). We assume the parties’ familiarity with the
24   underlying facts, the procedural history, and the issues
25   presented for review.
26
27        Because Wade’s complaint is devoid of any allegations
28   against the City of New York, all claims against the City of
29   New York were properly dismissed. Title VII, the ADEA, and
30   the ADA require a plaintiff to file a notice with the EEOC
31   within 300 days of an alleged adverse action. See Petrosino
32   v. Bell Atlantic, 385 F.3d 210, 219 (2d Cir. 2004) (Title
33   VII); Harris v. City of New York, 186 F.3d 243, 247 (2d Cir.
34   1999) (ADA); Hodge v. N.Y. Coll. of Podiatric Med., 157 F.3d
35   164, 166 (2d Cir. 1998) (ADEA). Wade’s EEOC notice was
36   filed exactly 300 days after her termination; accordingly,
37   Wade’s claims arising out of pre-termination conduct are
38   untimely, as the district court ruled. “[D]iscrete
39   discriminatory acts are not actionable if time barred, even
40   when they are related to acts alleged in timely filed
41   charges.” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S.
42   101, 113 (2002). The district court was similarly correct
43   to grant summary judgment on Wade’s NYSHRL and NYCHRL claims
44   because Wade filed those claims outside the prescribed one-
45   year statute of limitations applicable to claims against
46   these defendants. See N.Y. EDUC. Law § 3813 2-b.
47

                                  2
 1        Wade’s failure-to-accommodate claim based on her
 2   inability to procure a chair with lumbar support fails
 3   because nothing in the record shows that Wade put her
 4   employer on notice of her foot surgery with the requisite
 5   medical documentation. See McBride v. BIC Consumer Prods.
 6   Mfg. Co. Inc., 583 F.3d 92, 97 (2d Cir. 2009).
 7
 8        Wade’s only remaining claims are her Title VII, ADEA,
 9   and ADA claims stemming from her termination of her
10   probationary employment. For all three claims, the burden-
11   shifting framework in McDonnell Douglas Corp. v. Green, 411
12   U.S. 792, 802-04 (1973) applies. See McBride, 583 F.3d at
13   96 (ADA); D’Cunha v. Genovese/Eckerd Corp., 479 F.3d 193,
14   194-95 (2d Cir. 2007) (ADEA); Weinstock v. Columbia Univ.,
15   224 F.3d 33, 42 (2d Cir. 2000) (Title VII). Here,
16   defendants have articulated a “legitimate, nondiscriminatory
17   reason” for Wade’s termination–-namely reports that Wade
18   verbally abused students, reports that were eventually
19   substantiated by the Chancellor’s Office of Special
20   Investigation. McDonnell Douglas, 411 U.S. at 802. Wade’s
21   failure to adduce evidence that this proffered explanation
22   was pretextual is fatal to all three claims. The EEOC, in
23   an amicus brief, argues powerfully that Wade’s breast cancer
24   constitutes a disability under the ADA, and indeed Wade
25   would qualify under the ADA even if the employer perceived
26   her as disabled. But that, like Wade’s disagreement with
27   the findings of the investigation, is immaterial. See
28   McPherson v. New York City Dep’t of Educ., 457 F.3d 211, 216
29   (2d Cir. 2006) (“In a discrimination case, however, we are
30   decidedly not interested in the truth of the allegations
31   against plaintiff. We are interested in what ‘motivated the
32   employer’; the factual validity of the underlying imputation
33   against the employee is not at issue.” (emphasis in
34   original) (citation omitted) (quoting U.S. Postal Serv. Bd.
35   of Governors v. Aikens, 460 U.S. 711, 716 (1983))).
36
37        For the foregoing reasons, and finding no merit in
38   Wade’s other arguments, we hereby AFFIRM the judgment of the
39   district court.
40
41
42                              FOR THE COURT:
43                              CATHERINE O’HAGAN WOLFE, CLERK
44




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