10-3317-cv
Nixon-Tinkelman v. N.Y.C. Dep’t of Health & Mental Hygiene

                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 Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of New
York, on the 10th day of August, two thousand eleven.
PRESENT:
            BARRINGTON D. PARKER,
            DENNY CHIN,
            RAYMOND J. LOHIER, JR.,
                           Circuit Judges.

- - - - - - - - - - - - - - - - -x

BARBARA K. NIXON-TINKELMAN,
          Plaintiff-Appellant,

                  -v.-                                  10-3317-cv

NEW YORK CITY DEPARTMENT OF HEALTH
AND MENTAL HYGIENE AND CITY OF
NEW YORK,
          Defendants-Appellees.

- - - - - - - - - - - - - - - - -x


FOR PLAINTIFF-APPELLANT:             ARNOLD H. PEDOWITZ, Pedowitz &
                                     Meister, LLP, New York, New York.

FOR DEFENDANTS-APPELLEES:            ELIZABETH I. FREEDMAN, Assistant
                                     Corporation Counsel of the City of
                                     New York (Francis F. Caputo,
                                     Christopher A. Seacord, on the
                                     brief), for Michael A. Cardozo,
                                     Corporation Counsel of the City of
                                     New York, New York, New York.
          Appeal from the United States District Court for the

Southern District of New York (Jones, J.).    UPON DUE

CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that

the judgment of the district court is AFFIRMED in part and

VACATED AND REMANDED in part.

          Plaintiff-appellant Barbara K. Nixon-Tinkelman

("Tinkelman") appeals from the district court's grant of summary

judgment in favor of defendants-appellees New York City

Department of Health and Mental Hygiene ("DOHMH") and the City of

New York, on her claims that they discriminated against her on

account of her disabilities under the Americans with Disabilities

Act (the "ADA"), 42 U.S.C. §§ 12101 et seq., and Sections 501 and
504 of the Rehabilitation Act, 29 U.S.C. §§ 791 and 794.

Tinkelman, who is hearing impaired and suffers from cancer, heart

problems, and asthma, challenges the district court's

determination that she was not denied reasonable accommodations

on account of these disabilities.1    We assume the parties'

familiarity with the underlying facts, the procedural history of

the case, and the issues on appeal.

          We review the grant of summary judgment de novo.     See

Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d

Cir.), cert. denied, 540 U.S. 823 (2003).    Summary judgment is


     1
          The district court also dismissed Tinkelman's
retaliation claims, including allegations that she was, for
retaliatory reasons, (1) denied a reasonable accommodation; (2)
"belittled"; and (3) given improper work assignments. Tinkelman
fails to brief sufficiently these issues on appeal. Therefore,
we consider them abandoned. Norton v. Sam's Club, 145 F.3d 114,
117 (2d Cir.), cert. denied, 525 U.S. 1001 (1998) ("Issues not
sufficiently argued in the briefs are considered waived and
normally will not be addressed on appeal.").

                                -2-
appropriate only if "there is no genuine dispute as to any

material fact" and the moving party "is entitled to judgment as a

matter of law."    Fed. R. Civ. P. 56(a).

          Section 504 of the Rehabilitation Act, which applies to

defendants, provides that "'[n]o otherwise qualified individual

with a disability . . . shall, solely by reason of her or his

disability, be excluded from the participation in, be denied the

benefits of, or be subjected to discrimination under' any covered

program or activity."    Powell v. Nat'l Bd. of Med. Exam'rs, 364

F.3d 79, 85 (2d Cir. 2004) (quoting 29 U.S.C. § 794(a)).       To

establish a prima facie violation under Section 504, a plaintiff

must demonstrate:    (1) she is a "qualified individual" with a

disability; (2) the defendants are subject to Section 504; and

(3) she was "denied the opportunity to participate in or benefit

from defendants' services, programs, or activities, or [was]

otherwise discriminated against by defendants, by reason of [her]

disabilit[y]."    Id. (alterations in original) (quoting Henrietta
D. v. Bloomberg, 331 F.3d 261, 272 (2d Cir. 2003)).2

          A plaintiff can base a discrimination claim on an

employer's failure to make a reasonable accommodation.    Fulton v.
Goord, 591 F.3d 37, 43 (2d Cir. 2009) (citing Tsombanidis v. W.

Haven Fire Dep't, 352 F.3d 565, 573 (2d Cir. 2003)).     The

Rehabilitation Act "prohibit[s] discrimination against qualified

disabled individuals by requiring that they receive 'reasonable



     2
          The defendants argue that Tinkelman is not a "qualified
individual" within the meaning of Section 504 of the
Rehabilitation Act. The district court, however, did not reach
this issue and we thus do not consider its merits.

                                 -3-
accommodations' that permit them to have access to and take a

meaningful part in . . . public accommodations."    Powell, 364

F.3d at 85 (citing Henrietta D., 331 F.3d at 273; Felix v. N.Y.C.

Transit Auth., 324 F.3d 102, 104 (2d Cir. 2003)).

            Two proposed accommodations are at issue here.    First,

Tinkelman contends that defendants should have provided her with

a special telephone or device for the hearing impaired for the

thirteen months while she was stationed in Manhattan.    Second,

after she was moved from Queens to Manhattan, she requested that

defendants accommodate her with respect to her commute to work.

            We agree with the district court that Tinkelman's claim

based on her proposed accommodation, in the form of a special

telephone or device for the thirteen months in question, fails as

a matter of law.    First, it is undisputed that Tinkelman did not

request a special telephone during the thirteen months in

question.     While the failure to make a request is not fatal to a

claim for a reasonable accommodation, the failure to make a

request is a consideration because it is "'[g]enerally . . . the
responsibility of the individual with a disability to inform the
employer that an accommodation is needed.'"    Brady v. Wal-Mart
Stores, Inc., 531 F.3d 127, 135 (2d Cir. 2008) (quoting Graves v.

Finch Pruyn & Co., 457 F.3d 181, 184 (2d Cir. 2006)).     Second,

when Tinkelman had previously asked for an amplification device,

she was given approval to purchase one and was subsequently

reimbursed.     On another occasion as well, DOHMH provided

Tinkelman with a special telephone.     Hence, when defendants had

previously been made aware of her needs, she was either

reimbursed for or furnished with a special telephone or device.


                                  -4-
Defendants' failure to spontaneously offer Tinkelman a special

telephone in the circumstances here did not constitute

discrimination.    On this record, no reasonable jury could find

discriminatory intent with respect to the thirteen months in

question.

            As for Tinkelman's second request, the district court

erred in granting summary judgment on the grounds that "commuting

falls outside the scope of [p]laintiff's job, and is thereby not

within the province of an employer's obligations under the ADA

and the Rehabilitation Act."    Nixon-Tinkelman v. N.Y.C. Dep't of

Health & Mental Hygiene, No. 08-04509, slip op. at 28 (S.D.N.Y.

July 26, 2010).    Our case law establishes that in certain

circumstances, an employer may have an obligation to assist in an

employee's commute.    Indeed, this Court has stated that "there is

nothing inherently unreasonable . . . in requiring an employer to

furnish an otherwise qualified disabled employee with assistance

related to her ability to get to work."   Lyons v. Legal Aid

Soc'y, 68 F.3d 1512, 1517 (2d Cir. 1995); accord DeRosa v. Nat'l
Envelope Corp., 595 F.3d 99, 104 (2d Cir. 2010) (suggesting that

employer had provided a reasonable accommodation by allowing

employee to work from home, which was "necessary to maintaining

his job").

            Determining whether a particular commuting

accommodation is reasonable normally involves a fact-specific

inquiry.    Lyons, 68 F.3d at 1517 (citing Borkowski v. Valley

Cent. Sch. Dist. 63 F.3d 131, 138-40 (2d Cir. 1995)).    Here, the

district court erred because it concluded that an employer had no

obligation to assist in an employee's commute, when we have held


                                 -5-
that, in certain circumstances, such an obligation can exist.     We

therefore remand for the district court to reconsider, in light

of the applicable law, whether it would have been reasonable for

defendants to provide assistance related to Tinkelman's ability

to get to work.   Given that Tinkelman had worked for many years

in a more suitable location, for example, the district court

should have considered whether defendants could have reasonably

accommodated her needs simply by transferring her back to Queens

or another closer location, allowing her to work from home, or

providing a car or parking permit.

          On remand, the district court shall consider factors

such as the number of employees employed by DOHMH, the number and

location of its offices, whether other available positions

existed for which Tinkelman showed that she was qualified,

whether she could have been shifted to a more convenient office

without unduly burdening DOHMH's operations, and the

reasonableness of allowing her to work without on-site

supervision.   If the court determines that these issues may be

resolved without deciding disputed issues of fact, it need not

proceed to trial and may supplement the summary judgment decision

here appealed.

         We therefore VACATE the district court's judgment with

respect to Tinkelman's request that defendants accommodate her

commute and REMAND for proceedings consistent with this opinion.

We AFFIRM the district court's judgment in all other respects.

                          FOR THE COURT:
                          CATHERINE O'HAGAN WOLFE, CLERK




                                -6-
