         13-639(L)
         Ayazi v. N.Y.C. Dep’t of Educ.


                                          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 TO 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 for the Second Circuit, held
 2       at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
 3       York, on the 14th day of January, two thousand fourteen.
 4
 5       PRESENT: REENA RAGGI,
 6                  DENNY CHIN,
 7                  CHRISTOPHER F. DRONEY,
 8                        Circuit Judges.
 9       _____________________________________
10       MARYAM AYAZI,
11                        Plaintiff-Appellant,
12
13                            v.                                         No. 13-639-cv(L);
14                                                                       No. 13-641-cv(con)
15       NEW YORK CITY DEPARTMENT OF
16       EDUCATION,
17                        Defendant-Appellee.
18       _____________________________________
19
20       APPEARING FOR APPELLANT:                     MARYAM AYAZI, pro se, Elmhurst,
21                                                    New York.
22
23       FOR APPELLEE:                                Tahirih M. Sadrieh, Edward F. X. Hart, Jane
24                                                    Anderson, for Michael A. Cardozo, Corporation
25                                                    Counsel for the City of New York, New York,
26                                                    New York.
 1          Appeals from the judgments of the United States District Court for the Eastern

 2   District of New York (Margo K. Brodie, Judge).

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

 4   AND DECREED that the judgments of the district court are AFFIRMED.

 5          In these consolidated cases, pro se plaintiff Maryam Ayazi appeals from adverse

 6   judgments in related actions alleging discrimination and retaliation in employment in

 7   violation of the Americans with Disabilities Act (“ADA”), see 42 U.S.C. § 12101 et seq.,

 8   and the Due Process Clause of the Fourteenth Amendment, see 42 U.S.C. § 1983.

 9   Ayazi’s first action, initiated in 1998 (the “1998 Action”), was resolved against her at

10   trial, and her second action, filed in 2008 (the “2008 Action”), was thereafter dismissed

11   on the defense’s motion. We assume the parties’ familiarity with the underlying facts

12   and the procedural history of the case, which we reference only as necessary to explain

13   our decision to affirm.

14   1.     Inability To Pursue § 12112(d)(4)(A) Claim

15          Ayazi argues that the district court erroneously prevented her from presenting an

16   ADA challenge to medical testing, see 42 U.S.C. § 12112(d)(4)(A), in her 1998 Action,

17   and then improperly ruled her “precluded” from pursuing that claim in her 2008 Action.

18          Her first argument fails because the district court correctly found that Ayazi had

19   not raised a medical testing challenge in her 1998 complaint. Accordingly, Ayazi’s

20   attempt to press that claim at trial effectively constituted a request to amend. We review

21   a denial of leave to amend for abuse of discretion. See Hutchison v. Deutsche Bank Sec.

22   Inc., 647 F.3d 479, 490 (2d Cir. 2011). We identify no such abuse here given that Ayazi


                                                 2
 1   raised the medical testing issue only two weeks before trial of the 1998 Action, and the

 2   addition of the new claim would prejudice defendant insofar as it required additional

 3   evidence and, possibly, motion practice. See Ruotolo v. City of New York, 514 F.3d

 4   184, 192 (2d Cir. 2008) (“Undue prejudice arises when an amendment [comes] on the eve

 5   of trial and would result in new problems of proof.” (internal quotation marks omitted)).

 6         Although Ayazi now asserts that the district court ignored her multiple earlier

 7   attempts to amend her 1998 complaint, the implication that she attempted to add a new

 8   ADA claim under 42 U.S.C. § 12112 is without foundation in the record. Specifically,

 9   she did not reference that theory of relief in any of the documents she identifies in her

10   brief as attempts to amend her complaint, none of which were styled as motions and only

11   one of which referenced an amended complaint.

12         As for the district court’s dismissal of Ayazi’s 2008 Action, our standard of review

13   is de novo, accepting all factual allegations in the complaint as true and drawing all

14   inferences in Ayazi’s favor. See Famous Horse Inc. v. 5th Ave. Photo Inc., 624 F.3d 106,

15   108 (2d Cir. 2010). Even when we construe her complaint in the 2008 Action to raise a

16   42 U.S.C. § 12112(d)(4)(A) claim, however, we must conclude that the claim was

17   properly dismissed as time-barred. In her amended complaint, Ayazi identified only two

18   instances when defendants required her to undergo a medical examination: once in 1996

19   before she received her first teaching license, and once in 1999 when she requested an

20   accommodation in connection with a part-time teaching position. Because Ayazi did not

21   file her second charge with the Equal Employment Opportunity Commission (“EEOC”)

22   until December 2006, any § 12112(d)(4)(A) claim that she sought to raise in the 2008


                                                 3
 1   Action fell well outside the ADA’s 300-day limitations period. See Butts v. N.Y. Dep’t

 2   of Hous. Pres. & Dev., 990 F.2d 1397, 1401 (2d Cir. 1993) (“When a plaintiff fails to file

 3   a timely charge with the EEOC, the claim is time-barred.”); See also Zerilli-Edelglass v.

 4   N.Y.C. Transit Auth., 333 F.3d 74, 80 (2d Cir. 2003) (affirming dismissal of plaintiff’s

 5   ADA claim as time-barred for failure to file EEOC complaint within 300-day limitations

 6   period).

 7   2.     Sufficiency of Trial Evidence

 8          Ayazi’s second argument on appeal, that defendant’s “affirmative defense” at trial

 9   in the 1998 Action was “false,” challenges the district court’s denial of her Rule 50

10   motion. See Fed. R. Civ. P. 50(a)(1) (permitting court to set aside jury verdict upon

11   finding that “a reasonable jury would not have a legally sufficient evidentiary basis to

12   find” as it did). While we review de novo a party’s claim that it was entitled to judgment

13   as a matter of law, see Highland Capital Mgmt. LP v. Schneider, 607 F.3d 322, 326 (2d

14   Cir. 2010), in doing so, we view the evidence in the light most favorable to the jury

15   verdict. See Zellner v. Summerlin, 494 F.3d 344, 370 (2d Cir. 2007) (holding that in

16   examining evidence as a whole, court “must disregard all evidence favorable to the

17   moving party that the jury is not required to believe.” (internal quotation marks and

18   emphasis omitted)).

19          When we do that here in our independent review of the trial evidence, we agree

20   with the district court that the defendant presented ample evidence that the “R” notation

21   placed on the medical screen of Ayazi’s records in defendant’s computerized human

22   resources database had no effect on the validity of her teaching licenses. On appeal,


                                                 4
 1   Ayazi identifies perceived inconsistencies in the testimony of the Appellee’s witnesses,

 2   most of which appear to stem from confusion regarding the differences between notations

 3   appearing on Ayazi’s actual teaching licenses and notations on the Appellee’s

 4   computerized database. Because the jury was “free to believe part and disbelieve part of

 5   any witness’s testimony,” it cannot be said, even in light of the inconsistencies Ayazi

 6   identifies, that the jury was “compelled” to rule in her favor.      Id. at 371 (internal

 7   quotation marks and emphasis omitted). Accordingly, we affirm for substantially the

 8   reasons set forth by the district court in its February 4, 2013 order denying Ayazi’s Rule

 9   50 motion.

10   3.    Jury Instruction

11         Finally, Ayazi argues that the district court improperly instructed the jury in the

12   1998 Action that, when deciding whether the defendant constructively revoked her

13   teaching licenses, it was required to consider the licenses collectively, rather than

14   individually. This argument challenges the district court’s denial of Ayazi’s motion for a

15   new trial pursuant to Fed. R. Civ. P. 59. Although generally we review the denial of a

16   Rule 59 motion for abuse of discretion, when the basis for the motion is an erroneous jury

17   instruction, our review is de novo. See Velez v. City of New York, 730 F.3d 128, 134

18   (2d Cir. 2013). Here, however, we review Ayazi’s instruction challenge only for plain

19   error because she failed to raise this objection in the district court. See Henry v. Wyeth

20   Pharms., 616 F.3d 134, 152 (2d Cir. 2010).

21         In denying Ayazi’s Rule 59 motion, the district court correctly concluded that the

22   challenged instructions were not plainly erroneous because considering the two licenses


                                                  5
1   separately was inconsistent with the theory Ayazi presented at trial. Ayazi has not raised

2   any specific arguments on appeal contesting this conclusion, and we therefore affirm for

3   substantially the reasons set forth by the district court in its February 4, 2013 order.

4          We have considered all of Ayazi’s remaining arguments and conclude that they

5   are without merit. Accordingly, we AFFIRM the judgments of the district court.

6
7                                              FOR THE COURT:
8                                              Catherine O’Hagan Wolfe, Clerk of Court
9




                                                  6
