    16-582
    Graham v. Macy’s Inc.


                            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 ASUMMARY ORDER@). A PARTY CITING TO 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 31st day of January, two thousand seventeen.

    PRESENT:
                Robert A. Katzmann,
                       Chief Judge,
                Amalya L. Kearse,
                Debra Ann Livingston,
                       Circuit Judges.
    _____________________________________

    Evelyn Graham,

                             Plaintiff-Appellant,

                      v.                                                    No. 16-582

    Macy’s Inc., AKA Macy’s Retail Holdings, Inc.,

                             Defendant-Appellee,

    Paul A. Engelmayer, District Judge,

                      Defendant.
    _____________________________________


    FOR PLAINTIFF-APPELLANT:                            Evelyn Graham, pro se, New York, NY.


                                                    1
FOR DEFENDANT-APPELLEE:                               David H. Ganz, Gerber & Partners LLP,
                                                      Wayne, NJ.



       Appeal from a judgment of the United States District Court for the Southern District of

New York (Engelmayer, J.).


       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

       Plaintiff-appellant Evelyn Graham, proceeding pro se, appeals from a judgment in favor of

Macy’s Inc. (“Macy’s) in her suit under the Americans with Disabilities Act (“ADA”), 42 U.S.C.

§ 12101, et seq.. 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 dismissal of a complaint pursuant to Federal Rule of Civil

Procedure 12(b)(6), accepting all factual allegations as true and drawing all reasonable inferences

in plaintiff’s favor. Biro v. Condé Nast, 807 F.3d 541, 544 (2d Cir. 2015). The complaint must

plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

Although a court must accept as true all the factual allegations in the complaint, that requirement is

“inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678.

       Upon review, we conclude that the district court properly dismissed Graham’s Amended

Complaint. Except as discussed below, we affirm the judgment for substantially the reasons

stated by the district court in its thorough January 28, 2016 decision.




                                                  2
       The district court did not explicitly address several of Graham’s allegations. However, we

conclude that Graham’s unaddressed allegations were also insufficient to state a claim. Graham’s

allegation that Macy’s retaliated against her by opposing her application for unemployment

benefits was insufficient to identify “a materially adverse change in the terms and conditions of

employment.” Galabya v. N.Y.C. Bd. of Educ., 202 F.3d 636, 640 (2d Cir. 2000) (internal

quotation marks omitted). The opposition was withdrawn after a week, and the application for

unemployment benefits, by definition, postdated Graham’s employment. And with respect to

Graham’s allegations that Macy’s failed to accommodate her disability by allowing breaks every

thirty minutes, she failed to allege that she gave Macy’s notice that breaks were needed as a

reasonable accommodation.1 See Graves v. Finch Pruyn & Co., 457 F.3d 181, 184 (2d Cir. 2006)

(“[G]enerally, it is the responsibility of the individual with a disability to inform the employer that

an accommodation is needed.” (internal quotation marks omitted)).

       Additionally, Graham alleged in her amended complaint and opposition papers that she

was denied a reasonable accommodation on her return from a leave of absence in 2013, primarily

because Macy’s did not engage in an interactive process, as required by the ADA. On appeal,

Graham has reframed this claim: she now argues that Macy’s violated the ADA by attempting to

engage in an interactive process to determine how to accommodate Graham’s bipolar disorder, an

accommodation Graham never requested. However, we conclude that, even construing her

allegations to support a disability-discrimination claim rather than a failure-to-accommodate


1
  Graham repeatedly refers to a 2011 medical leave request form, which she attached to her
Amended Complaint, as a request for breaks as an accommodation. The document’s reference to a
short period of time in which Graham would be unable to, inter alia, stand for more than thirty
minutes was insufficient to give Macy’s notice that breaks would be required after she returned
from medical leave.

                                                  3
claim, these allegations fail to state a claim because Graham did not plausibly allege that, at the

time of her anticipated return from medical leave, she could perform the essential functions of her

job despite her disability. See McMillan v. City of N.Y., 711 F.3d 120, 125 (2d Cir. 2013) (listing

elements for ADA discrimination claim).

       We have considered Graham’s remaining arguments and find them to be without merit.

Accordingly, we AFFIRM the district court’s judgment.

                                             FOR THE COURT:
                                             Catherine O’Hagan Wolfe, Clerk




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