14-737-cv
McCoy v. Morningside at Home Aging in America

                                    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 May, two thousand fifteen.

PRESENT:             JOSÉ A. CABRANES,
                     GERARD E. LYNCH,
                     CHRISTOPHER F. DRONEY,
                                  Circuit Judges.


BARBARA MCCOY,

                     Plaintiff-Appellant,

                               v.
                                                                    No. 14-737-cv
MORNINGSIDE AT HOME, and AGING IN AMERICA,

                     Defendants-Appellees.1



FOR PLAINTIFF-APPELLANT:                                    Barbara McCoy, pro se, New York, NY.

FOR DEFENDANT-APPELLEE:                                     Barbara E. Hoey, Alison L. MacGregor,
                                                            KELLEY DRYE & WARREN LLP, New York,
                                                            NY.




1         The Clerk of the Court is directed to amend the caption as noted.
       Appeal from a February 27, 2014 judgment of the United States District Court for the
Southern District of New York (Laura Taylor Swain, Judge).

     UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the District Court is AFFIRMED.

        Appellant Barbara McCoy, proceeding pro se, appeals the district court’s grant of summary
judgment dismissing her action brought under, inter alia, Title VII of the Civil Rights Act of 19642
and the Americans with Disabilities Act, and declining to exercise supplemental jurisdiction over her
state law claims. We assume the parties’ familiarity with the underlying facts, the procedural history
of the case, and the issues on appeal.

        We review de novo the district court’s grant of summary judgment, with the view that
“[s]ummary judgment is appropriate only if the moving party shows that there are no genuine issues
of material fact and that the moving party is entitled to judgment as a matter of law.” Miller v. Wolpof
& Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir. 2003). We resolve all ambiguities and draw all
inferences in favor of the non-movant. Nationwide Life Ins. Co. v. Bankers Leasing Ass’n, 182 F.3d 157,
160 (2d Cir. 1999). Summary judgment is appropriate “[w]here the record taken as a whole could
not lead a rational trier of fact to find for the non-moving party.” Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986).

        Upon de novo review, we conclude that McCoy’s claims on appeal that she was dismissed
because of her disabilities, that her employer failed to reasonably accommodate her, and that her
dismissal was in retaliation for her complaints about her disabilities are without merit, substantially
for the reasons stated in the district court’s opinion and order.3 See McCoy v. Morningside at Home &
Aging in Am., No. 11-cv-2575 (LTS), 2014 WL 737364, at *3-6 (S.D.N.Y. Feb. 25, 2014).

         McCoy’s remaining arguments on appeal are also without merit. To the extent she argues
that she received ineffective assistance of counsel, such a claim is not cognizable in a civil
proceeding. See, e.g., United States v. Coven, 662 F.2d 162, 176 (2d Cir. 1981). Her argument that
defendants discriminated against her because she filed complaints with the New York State Division
of Human Rights and the Equal Employment Opportunity Commission was not raised below, and
is therefore waived. See Norton v. Sam’s Club, 145 F.3d 114, 117 (2d Cir. 1998). Finally, her argument
that the district court erred in barring her from seeking relief in state court is at odds with the text of
the district court’s judgment, which explicitly dismissed without prejudice her state law claims.

2         McCoy describes her retaliation claim as a Title VII claim. She argues, however, that defendants
retaliated against her for complaints related to her disabilities. Accordingly, we construe her retaliation claim
as an ADA claim, rather than a Title VII claim. See 42 U.S.C. § 12203(a).
3         We need not reach the merits of McCoy’s retaliation claim, as we agree with the district court that
McCoy improperly raised this claim for the first time in opposing summary judgment. See Greenidge v. Allstate
Ins. Co., 446 F.3d 356, 361 (2d Cir. 2006).
                                                        2
       We have considered all of McCoy’s remaining arguments and find them to be without merit.
Accordingly, we AFFIRM the judgment of the district court.

                                                   FOR THE COURT:
                                                   Catherine O’Hagan Wolfe, Clerk




                                               3
