13-3998-cv
Krasner v. City of New York

                                   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 28th
day of August, two thousand fourteen.

PRESENT:
            JOSÉ A. CABRANES,
            CHESTER J. STRAUB,
            RAYMOND J. LOHIER, JR.,
                          Circuit Judges.
_____________________________________

GLENN KRASNER,

                   Plaintiff-Appellant,

                              v.                                              No. 13-3998-cv

THE CITY OF NEW YORK, THE FIRE DEPARTMENT OF THE CITY OF NEW YORK,

            Defendants-Appellees.
_____________________________________

FOR PLAINTIFF-APPELLANT:                              STEWART LEE KARLIN, The Law Offices of
                                                      Stewart Lee Karlin, P.C., New York, NY.

FOR DEFENDANTS-APPELLEES:                             JONATHAN A. POPOLOW (Edward F.X. Hart,
                                                      Adam E. Collyer, Allen Arthur Shoikhetbrod,
                                                      on the brief), for Zachary W. Carter, Corporation
                                                      Counsel of the City of New York, New York,
                                                      NY.
     Appeal from a judgment of the United States District Court for the Southern District of
New York (Paul G. Gardephe, Judge).

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

        Plaintiff Glenn Krasner appeals from the District Court’s judgment, entered September 24,
2013, granting summary judgment in favor of defendants the City of New York and the Fire
Department of the City of New York1 on Krasner’s claims under the Americans with Disabilities
Act (“ADA”), 42 U.S.C. § 12111 et seq., the New York State Human Rights Law (“NYSHRL”), N.Y.
Exec. Law § 296, and the New York City Human Rights Law (“NYCHRL”), N.Y.C. Admin. Code
§ 8–107. We assume the parties’ familiarity with the underlying facts and the procedural history of
the case, to which we refer only as necessary to explain our decision to affirm.

        We review orders granting summary judgment de novo and focus on whether the district court
properly concluded that there was no genuine dispute as to any material fact and that the moving
party was entitled to judgment as a matter of law. See Miller v. Wolpoff & Abramson, LLP, 321 F.3d
292, 300 (2d Cir. 2003). 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). We are required to resolve all ambiguities and draw all
inferences in favor of the nonmovant; the inferences to be drawn from the underlying facts revealed
in materials such as affidavits, exhibits, interrogatory answers, and depositions must be viewed in the
light most favorable to the nonmoving party. See Nationwide Life Ins. Co. v. Bankers Leasing Assoc., 182
F.3d 157, 160 (2d Cir. 1999).

                                     I. Intentional Discrimination Claims

          Krasner’s first set of claims are premised upon allegations that the City terminated his
employment because he suffers from Asperger’s syndrome. Krasner’s ADA and NYSHRL claims of
disability discrimination are governed by the familiar burden-shifting framework set forth in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See, e.g., Sista v. CDC Ixis N. Am., Inc., 445 F.3d
161, 169 (2d Cir. 2006).2 On appeal, Krasner argues that the District Court erred in holding that he

           1 Plaintiff does not challenge on appeal the District Court’s dismissal of all claims against the Fire

Department—a municipal agency—on the basis that the Fire Department is not a suable entity. We also do not consider
plaintiff’s claim predicated on the alleged denial of his request for a reasonable accommodation, insofar as plaintiff failed
to brief the dismissal of these claims on appeal.
         2  Krasner emphasizes on appeal that his claim of disability discrimination under the NYCHRL is governed by a
more lenient standard—namely, whether a reasonable jury could find the City liable under any evidentiary route: the
McDonnell Douglas framework, a mixed-motive theory, or by direct or circumstantial evidence. See Mihalik v. Credit Agricole
Cheuvreux N. Am., Inc., 715 F.3d 102, 110 n.8, 112-13 (2d Cir. 2013) (establishing general considerations to guide federal
courts reviewing NYCHRL claims). Even assuming this test is distinct from the federal standard, we conclude that his
NYCHRL claim still fails because the record establishes as a matter of law that “discrimination play[ed] no role” in the
City’s actions. Williams v. N.Y.C. Hous. Auth., 872 N.Y.S.2d 27, 38 (1st Dep’t 2009); see also Mihalik, 715 F.3d at 113

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failed to establish a prima facie case of discrimination because the evidence did not establish that he
was “otherwise qualified” for his job.

         We need not resolve whether Krasner established a prima facie case because the City
sufficiently articulated a legitimate, nondiscriminatory explanation for his termination. See U.S. Postal
Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715 (1983). The evidence was undisputed that Krasner
repeatedly engaged in serious misconduct, as evidenced by his extensive disciplinary history, which
included instances of insubordination, use of profane language, and threats to co-workers of serious
physical harm.3 The fact that such aberrant behavior may be a result of Krasner’s Asperger’s is
immaterial, inasmuch as “workplace misconduct is a legitimate and nondiscriminatory reason for
terminating employment, even when such misconduct is related to a disability.” McElwee v. Cnty. of
Orange, 700 F.3d 635, 641 (2d Cir. 2012); see also Sista, 445 F.3d at 172 (“The [ADA] does not require
an employer to retain a potentially violent employee. Such a requirement would place the employer
on a razor’s edge—in jeopardy of violating the [ADA] if it fired such an employee, yet in jeopardy of
being deemed negligent if it retained him and he hurt someone.” (internal quotation marks
omitted)).

         The burden having shifted back to Krasner to provide competent evidence of pretext, he
failed to raise a genuine factual dispute as to whether the City’s justification for termination was
pretextual. Accordingly, the District Court did not err in holding that Krasner failed to show that a
rational juror could find that his termination was based on disability discrimination.

                                               II. Retaliation Claims

         The District Court granted the City’s motion for summary judgment on Krasner’s retaliation
claims because Krasner failed to establish a genuine dispute over whether his protected activity
caused his termination. Retaliation claims under the ADA and NYSHRL are analyzed under the
same burden-shifting framework. See Treglia v. Town of Manlius, 313 F.3d 713, 719 (2d Cir. 2002).
Retaliation claims under the NYCHRL cover a broader range of conduct than their state and federal
counterparts. In order “[t]o prevail on a retaliation claim under the NYCHRL, the plaintiff must
show that [he] took an action opposing [his] employer’s discrimination, and that, as a result, the
employer engaged in conduct that was reasonably likely to deter a person from engaging in such
action.” Mihalik, 715 F.3d at 112 (internal citation omitted). We have instructed, however, that “a
defendant is not liable if the plaintiff fails to prove the conduct is caused at least in part by . . .
retaliatory motives.” Id. at 113.


(noting that “summary judgment is still appropriate in NYCHRL cases” when “the record establishes as a matter of law
that a reasonable jury could not find the employer liable under any theory”).
         3 An ALJ also made similar findings of misconduct, which the District Court held are entitled to preclusive
effect under the doctrine of collateral estoppel. See Leventhal v. Knapek, 266 F.3d 64, 71-72 (2d Cir. 2001). Krasner does
not challenge the District Court’s application of this doctrine on appeal.


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         After review of the record and applicable case law, we conclude there is not a genuine
dispute as to whether the defendants retaliated against plaintiff. Krasner claims he engaged in
protected activity on two occasions. First, Krasner states that, on January 9, 2009, he called the
Equal Employment Opportunity Unit of the Fire Department to report an outburst by a supervisor
against him. Second, Krasner contends that, on February 25, 2009, he contacted this same unit to
request an accommodation for his disability. The sole basis upon which Krasner relies to show that
these events resulted in retaliation is temporal proximity with the formal presentation of proposed
disciplinary charges on February 25, 2009.4

         Although temporal proximity, by itself, can be sufficient to show causation, we have held
that, as here, “[w]here timing is the only basis for a claim of retaliation, and gradual adverse job
actions began well before the plaintiff had ever engaged in any protected activity, an inference of
retaliation does not arise.” Slattery v. Swiss Reinsurance Am. Corp., 248 F.3d 87, 95 (2d Cir. 2001). In
addition, Krasner does not describe any of the circumstances surrounding his January 9, 2009 report,
and his February 25, 2009 request occurred after the presentation of the proposed charges that same
day. Accordingly, the District Court did not err in concluding that Krasner failed to put forth
sufficient evidence of retaliation to survive summary judgment.

                                                  CONCLUSION

       We have considered all of the arguments raised by Krasner on appeal and find them to be
without merit. For the reasons stated above, we AFFIRM the District Court’s September 24, 2013
judgment.

                                                                  FOR THE COURT:
                                                                  Catherine O’Hagan Wolfe, Clerk




         4 We note at the outset the District Court’s holding, uncontested by plaintiff on appeal, that a claim regarding
the February 25, 2009 presentation of charges would be time-barred because it concerns conduct that took place more
than 300 days before Plaintiff filed his June 17, 2010 EEOC complaint. Yet even assuming such events were not time-
barred, plaintiff has still failed to show that a rational juror could conclude that the City’s proffered reasons for
termination were a pretext for retaliation.


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