     12-805
     Hodges v. Holder



                         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 6th day of May, two thousand thirteen.

     PRESENT:
                 GUIDO CALABRESI,
                 DEBRA ANN LIVINGSTON,
                 GERARD E. LYNCH,
                       Circuit Judges.
     _________________________________________



     JERRY HODGES,

                                    Plaintiff-Appellant,

                             v.                                           12-805-cv

     ERIC H. HOLDER, JR., Attorney General Dep’t of
     Justice, Federal Bureau of Prisons, Agency,

                             Defendant-Appellee.*
     _________________________________________




              *
               The Clerk of Court is directed to amend the official caption to conform to the above.
                                           Jerry Hodges, pro se, Baldwin, NY, Plaintiff-Appellant

                                           Alicia Marie Simmons and Benjamin H. Torrance, for
                                           Preet Bharara, United States Attorney for the Southern
                                           District of New York, New York, NY, for Defendant-
                                           Appellee

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

 2   District of New York (Gorenstein, M.J.).

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

 4   DECREED that the judgment and order of the district court are AFFIRMED.

 5          Jerry Hodges, proceeding pro se, appeals from the district court’s grant of summary

 6   judgment, dismissing his employment discrimination complaint alleging intentional

 7   discrimination, failure to reasonably accommodate his disability, and retaliation in violation

 8   of the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq.,1 as well as from the denial of his

 9   motion for reconsideration. We assume the parties’ familiarity with the underlying facts,

10   procedural history of the case, and issues on appeal.

11          We review orders granting summary judgment de novo and focus on whether the

12   district court properly concluded that there was no genuine issue as to any material fact and

13   that the moving party was entitled to judgment as a matter of law. See Miller v. Wolpoff &

14   Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir. 2003). In determining whether there are genuine

15   issues of material fact, we are “required to resolve all ambiguities and draw all permissible



            1
              Hodges’s complaint mentions only the Americans with Disabilities Act, 42 U.S.C. §
     12101 et seq. Since that Act does not provide federal employees like Hodges with a remedy for
     employment discrimination, the district court fairly construed his pro se complaint as alleging
     the same claims under the Rehabilitation Act. See Fulton v. Goord, 591 F.3d 37, 42 n.1 (2d Cir.
     2009) (“[T]he same factual allegations generally will support both ADA and Rehabilitation Act
     claims.”) (citation omitted).

                                                   2
 1   factual inferences in favor of the party against whom summary judgment is sought.” Terry v.

 2   Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003) (internal quotation marks omitted). Summary

 3   judgment is appropriate “[w]here the record taken as a whole could not lead a rational trier of

 4   fact to find for the non-moving party.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475

 5   U.S. 574, 587 (1986).

 6           As an initial matter, a plaintiff bringing claims under the ADA or the Rehabilitation

 7   Act must exhaust certain administrative remedies before initiating suit in the district court. See

 8   Boos v. Runyon, 201 F.3d 178, 181 (2d Cir. 2000). “[A] plaintiff typically may raise in a

 9   district court complaint only those claims that either were included in or are reasonably related

10   to the allegations contained in [his] EEOC charge.” Holtz v. Rockefeller & Co., Inc., 258 F.3d

11   62, 83 (2d Cir. 2001) (internal quotation marks omitted). The record reveals that Hodges

12   failed to raise his retaliation claim in his EEOC charge. Accordingly, the magistrate judge

13   correctly dismissed this claim for failure to exhaust administrative remedies.

14           Because the ADA and the Rehabilitation Act are very similar, we may “look to caselaw

15   interpreting one statute to assist us in interpreting the other.” Francis v. City of Meriden, 129

16   F.3d 281, 284 n.4 (2d Cir. 1997).         Intentional discrimination claims pursuant to the

17   Rehabilitation Act are subject to the burden-shifting analysis originally established by the

18   Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Reg’l Econ.

19   Cmty. Action Program v. City of Middletown, 294 F.3d 35, 48–49 (2d Cir. 2002). As relevant

20   here, “[a] plaintiff must establish a prima facie case; the employer must offer through the

21   introduction of admissible evidence a legitimate non-discriminatory reason for the discharge;

22   and the plaintiff must then produce evidence and carry the burden of persuasion that the

23   proffered reason is a pretext.” McBride v. BIC Consumer Prods. Mfg. Co., 583 F.3d 92, 96
                                                     3
 1   (2d Cir. 2009) (quoting Sista v. CDC Ixis N. Am., Inc., 445 F.3d 161, 169 (2d Cir. 2006)). In

 2   order to establish a prima facie case under the Rehabilitation Act, a plaintiff must show that

 3   the discrimination occurred “solely” because of his or her disability. City of Middletown, 294

 4   F.3d at 49.

 5          Here, the magistrate judge properly granted summary judgment on Hodges’s failure-to-

 6   accommodate claim. In discrimination claims based on a failure to accommodate, the plaintiff

 7   “bears the burdens of both production and persuasion as to the existence of some

 8   accommodation that would allow [him] to perform the essential functions of [his]

 9   employment.” McBride, 583 F.3d at 97; Borkowski v. Valley Cent. Sch. Dist., 63 F.3d 131,

10   137–38 (2d Cir. 1995). That is, the plaintiff “must demonstrate the existence, at or around the

11   time when accommodation was sought, of an existing vacant position to which she could have

12   been reassigned.” McBride, 583 F.3d at 97–98. “Mere speculation” will not suffice. See

13   Jackan v. N.Y. State Dep’t of Labor, 205 F.3d 562, 566–67 (2d Cir. 2000). Here, the

14   magistrate judge correctly determined that Hodges had failed to submit evidence sufficient to

15   raise a genuine issue as to whether there was a vacant position that he was qualified for and

16   to which he could have been assigned.

17          The magistrate judge also properly granted summary judgment to the Appellee on

18   Hodges’s intentional discrimination claim. As the magistrate judge correctly noted, even

19   assuming that Hodges established a prima facie case of disability discrimination, he failed to

20   present sufficient evidence from which a reasonable jury could find that the stated reason for

21   his termination—that Hodges could not perform any available position with or without

22   reasonable accommodation—was pretextual. See McDonnell Douglas, 411 U.S. at 804–05;


                                                   4
 1   McBride, 583 F.3d at 96. Because, for the reasons just noted, no reasonable jury could find,

 2   on the evidence presented, that a suitable position was available at the time of Hodges’s

 3   termination, Hodges cannot show on the record here that his termination was due “solely” to

 4   disability discrimination, at the Rehabilitation Act requires. See 29 U.S.C. § 794(a).

 5           Lastly, although Hodges may have intended to appeal the district court’s order denying

 6   his motion for reconsideration, he has failed to challenge that decision on appeal. Therefore,

 7   he has abandoned this argument. See LoSacco v. City of Middletown, 71 F.3d 88, 92–93 (2d

 8   Cir. 1995) (holding, in the context of a pro se appeal, that issues not raised in an appellate brief

 9   are abandoned). In any event, our review reveals no abuse of discretion in the denial of

10   reconsideration.

11           We have considered all of Hodges’s remaining arguments and find them to be without

12   merit. For the foregoing reasons, the judgment of the district court and order denying

13   reconsideration are hereby AFFIRMED.

14                                                   FOR THE COURT:
15                                                   Catherine O’Hagan Wolfe, Clerk




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