16-3171-cv
Wenc v. New London Bd. 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 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 21st day of August, two thousand seventeen.

PRESENT: REENA RAGGI,
                 RAYMOND J. LOHIER, JR.,
                                 Circuit Judges,
                 JOAN M. AZRACK,
                                 District Judge.*
----------------------------------------------------------------------
JON WENC,
                                 Plaintiff-Appellant,

                             v.                                          No. 16-3171-cv

NEW LONDON BOARD OF EDUCATION,
                                 Defendant-Appellee.†
----------------------------------------------------------------------
APPEARING FOR APPELLANT:                          JACQUES J. PARENTEAU (Magdalena B.
                                                  Wiktor, on the brief), Madsen, Prestley &
                                                  Parenteau, LLC, New London, Connecticut.




*
 Judge Joan M. Azrack, of the United States District Court for the Eastern District of
New York, sitting by designation.
†
    The Clerk of Court is directed to amend the case caption as set forth above. 
APPEARING FOR APPELLEE:                  JOHANNA G. ZELMAN (Cindy M. Cieslak,
                                         on the brief), FordHarrison, LLP, Hartford,
                                         Connecticut.

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

Connecticut (Victor A. Bolden, Judge).

      UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment entered on August 18, 2016, is AFFIRMED.

      Plaintiff Jon Wenc, an amputee who uses a leg prosthesis for mobility, appeals

from an award of summary judgment in favor of defendant, the New London Board of

Education (the “Board”), on Wenc’s claims of disability discrimination and retaliation in

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

seq., and the Connecticut Fair Employment Practices Act (“CFEPA”), Conn. Gen. Stat.

§§ 46a-60 et seq.1 Wenc, who works as an elementary school teacher, argues that the

Board violated the ADA by failing timely to grant his accommodation request to teach

sixth grade rather than first grade. Wenc challenges the district court’s determination

that (1) the Board’s allowance of medical leave and provision of a classroom aide on

Wenc’s return to his first-grade assignment reasonably accommodated his disability, and

(2) the Board’s recommendation that Wenc apply for unpaid leave under the Family and

Medical Leave Act (“FMLA”) was not actionable retaliation. We review a summary

judgment award de novo, construing the evidence in the light most favorable to the

1
  Although Wenc’s notice of appeal also identifies the district court’s denial of his
cross-motion for summary judgment, Wenc does not address that decision in his briefing.
Indeed, he affirmatively waives any argument on that score, asking instead that we
“remand this case for a jury trial.” Appellant’s Br. 50.

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non-movant, and we may affirm on any ground supported by the record if no dispute of

material fact precludes judgment as a matter of law. See McElwee v. County of Orange,

700 F.3d 635, 640 (2d Cir. 2012). In applying these principles, we assume the parties’

familiarity with the facts and record of prior proceedings, which we reference only as

necessary to explain our decision to affirm.

1.     Discrimination Claims

       The ADA prohibits disability discrimination, including an employer’s failure to

make “reasonable accommodations to the known physical or mental limitations of an

otherwise qualified [employee] with a disability.” McBride v. BIC Consumer Prods.

Mfg. Co., 583 F.3d 92, 96 (2d Cir. 2009) (internal quotation marks omitted).   A plaintiff

makes out a prima facie case of disability discrimination based on a failure to

accommodate by showing that (1) he has a disability within the meaning of the ADA;

(2) his employer is covered by the statute and had notice of that disability; (3) with

reasonable accommodation, plaintiff could perform the essential functions of the job at

issue; and (4) his employer has refused to make such accommodations. See id. at 96–

97. Plaintiff “bears the burdens of both production and persuasion as to the existence of

some accommodation that would allow him to meet the essential eligibility requirements”

of the position, after which defendant “bears the burden of proving that the requested

accommodation is not reasonable.” McElwee v. County of Orange, 700 F.3d at 642.

Although the reasonableness of an employer’s accommodation is “a fact-specific

question that often must be resolved by a factfinder,” an employer is nevertheless


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“entitled to summary judgment if, on the undisputed record, the existing accommodation

is plainly reasonable,” without any “need to engage in further burden-shifting.” Noll v.

Int’l Bus. Machs. Corp., 787 F.3d 89, 94 (2d Cir. 2015) (internal quotation marks

omitted).   The parties agree that the same framework applies to Wenc’s state-law

claims. See Curry v. Allan S. Goodman, Inc., 286 Conn. 390, 415–16, 944 A.2d 925,

940 (2008) (applying ADA framework to CFEPA claims).                 With respect to the

discrimination claim, the Board does not contest that Wenc was disabled, or that it is

subject to the ADA or CFEPA. The parties dispute only whether Wenc was able to

perform the essential functions of his job and whether the Board reasonably

accommodated his disability.

       a.     2011–2012 School Year

       The Board was entitled to summary judgment on Wenc’s discrimination claim for

the 2011–2012 school year because he was then on physician-ordered medical leave, and

therefore unable to perform his job as an elementary school teacher. The notes from

Wenc’s physician aver that it was “in [Wenc’s] best interest” not to return to work during

that school year due to a painful lesion created by his prosthesis. App’x 324, 326, 328,

330, 332, 334. It is not apparent, as Wenc urges, that he was cleared to return to work

by an April 2012 physician’s note indicating that a sixth-grade classroom would “be

more suitable” to him, as that same note states that it remained in Wenc’s “best interest to

be out of work.” Id. at 334. Wenc’s contention that it was the Board’s responsibility

to be more proactive in opening a dialogue with him regarding his return to work fails for


                                             4
the same reason, as an employer cannot be liable for “failing to engage in a sufficient

interactive process” when the employee is unable to perform the essential functions of his

job. McBride v. BIC Consumer Prods. Mfg. Co., 583 F.3d at 101.

       Even if Wenc had been able to work in spite of his doctor’s medical-leave

recommendation, no reasonable jury could conclude that the Board failed reasonably to

accommodate him by adopting that recommendation, rather than by transferring Wenc to

a higher grade level. Although we have not squarely addressed in a published opinion

when a medical leave may constitute a “reasonable accommodation” under the ADA, see

Graves v. Frinch Pruyn & Co., Inc., 457 F.3d 181, 185 n.5 (2d Cir. 2006), we need not

do so here because Wenc concedes that such leave, whether “paid or unpaid,” is a

reasonable accommodation to the extent it is requested by the employee and affords the

employee the opportunity to “heal or otherwise address a medical condition that prevents

the employee from working.” Appellant’s Br. 20. Wenc contends that the Board’s

provision of medical leave became unreasonable in April 2012 because he then felt

“medically fit to return to work” and did not want to transition to unpaid FMLA leave.

Appellant’s Br. 39. The argument is not supported by the record. Wenc’s May 18,

2012 journal entry and his deposition testimony show that he was not then trying to

return to his job as an elementary school teacher. Although Wenc argues that a jury

might infer his intent to start a “dialogue” regarding a return to work, id. at 39, from his

submission to the Board of an April 2012 doctor’s note expressing a preference for




                                             5
teaching “higher grades,” App’x 334, we have already explained that this note stated that

Wenc was not then cleared to return to work.

       b.     2012–2013 School Year

       As to the following school year, Wenc agreed to return to school after submitting

to a functional capacity examination by a neutral physician. That doctor opined that

Wenc could be reasonably accommodated as a first-grade teacher with “the assistance of

two classroom aides.” App’x 353. The Board’s provision of a second classroom aide

to assist Wenc in teaching the first grade was thus a “plainly reasonable” accommodation

of Wenc’s difficulties in attending to the higher physical demands of first grade students.

Noll v. Int’l Bus. Machs. Corp., 787 F.3d at 94. Indeed, Wenc admitted at deposition

that the aides assigned to his classroom were satisfactory.

       In now urging otherwise, Wenc contends that the examining physician’s

recommendation might be construed as recommending the provision of two additional

classroom aides rather than the two total aides that he received.2 The argument fails

because the assigned additional aide was intended to substitute for the physical efforts of

only one person, and Wenc himself agreed that the aide was satisfactory. His professed

preference for a second additional classroom aide, or transfer to a sixth-grade classroom

without any aides, warrants no different conclusion because the ADA does not “require

the employer to provide every accommodation the disabled employee may request” so

long as the accommodation provided was reasonable. Id. at 95. Moreover, transfer to

2
  One aide was already assigned to Wenc’s classroom to assist a student with an
Individualized Education Program. 

                                             6
the sixth grade was not an option, as there were no open sixth-grade positions when

Wenc returned to work in the 2012–2013 school year. See McBride v. BIC Consumer

Prods. Mfg. Co., 583 F.3d at 97 (“‘[A]n employer need not reassign an employee if no

position is vacant.     Nor is the employer obliged to create a new position to

accommodate the employee.’” (quoting Norville v. Staten Island Univ. Hosp., 196 F.3d

89, 99 (2d Cir. 1999))).3

       Accordingly, we conclude that summary judgment on Wenc’s discrimination

claims was correctly granted to the Board.

2.     Retaliation Claims

       Wenc argues that the Board “forced” him to take unpaid FMLA leave in

retaliation for requesting a transfer to the sixth grade. Appellant’s Br. 19. “Claims for

retaliation [under the ADA] are analyzed under the same burden-shifting framework

established for Title VII cases.” Widomski v. State Univ. of N.Y. (SUNY) at Orange, 748

F.3d 471, 476 (2d Cir. 2014) (internal quotation marks omitted); see Kaytor v. Elec. Boat

Corp., 609 F.3d 537, 556 (2d Cir. 2010) (explaining that CFEPA “discrimination and

retaliation claims” are also governed by Title VII framework). Such claims require a

showing of (1) ADA-protected activity by the employee, (2) employer awareness of that

activity, (3) an adverse employment action against the employee, and (4) a causal

connection between that adverse action and the protected activity. See Treglia v. Town


3
  In the 2013–2014 school year, the Board transferred Wenc to the fifth grade, providing
him with two classroom aides, a wheelchair, and a swiveling office chair. After the
2014–2015 school year, Wenc was transferred to the sixth grade.

                                             7
of Manlius, 313 F.3d 713, 719 (2d Cir. 2002). In granting the Board summary judgment

on Wenc’s retaliation claims, the district court reasoned that Wenc’s unpaid medical

leave was not an adverse employment action, and that the evidence did not admit a causal

inference that he was “forced” to take such leave. App’x 62. We need not address the

former point because the latter suffices to support the challenged judgment.

       As already discussed, the record evidence shows that Wenc was not cleared to

return to his elementary school employment during the 2011–2012 school year and that

he did not wish to do so. When Wenc exhausted his paid sick leave, the Board advised

him that if he was still unable to return to work in May, he could apply for unpaid leave

under the FMLA. Wenc chose to apply for such leave, and the Board approved it. To

the extent Wenc contends that the Board was required to pay for his FMLA leave, that

argument is unsupported by law or fact.      The Board had no policy authorizing further

paid leave, and the FMLA does not require it. See 29 U.S.C. § 2612(c) (“[L]eave

granted under [the FMLA] may consist of unpaid leave.”); Sista v. CDC Ixis N. Am. Inc.,

445 F.3d 161, 174 (2d Cir. 2006) (“The FMLA gives eligible employees an ‘entitlement’

to twelve workweeks per year of unpaid leave . . . .”).

       Accordingly, we affirm the district court’s grant of summary judgment on Wenc’s

retaliation claims.




                                             8
3.    Conclusion

      We have considered Wenc’s other arguments and conclude that they are without

merit. Accordingly, we AFFIRM the judgment of the district court.

                                       FOR THE COURT:
                                       Catherine O’Hagan Wolfe, Clerk of Court




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