18-745
Jackson v. New York City Department of Education

                             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.

        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
1st day of May, two thousand nineteen.

Present:
            GUIDO CALABRESI,
            DEBRA ANN LIVINGSTON,
            RAYMOND J. LOHIER, JR.,
                  Circuit Judges.
_____________________________________

PHOEBE JACKSON,

                            Plaintiff-Appellant,

                   v.                                                         18-745

NEW YORK CITY DEPARTMENT OF EDUCATION,

                            Defendant-Appellee,

PRINCIPAL DAWN J. BOURSIQUOT, CHANCELLOR
CARMEN FARINA, P.S. 173, ASSISTANT PRINCIPAL
KEVIN GOODMAN, DIRECTOR CHARLES PEOPLES,

                            Defendants.*

_____________________________________


*
    The Clerk of Court is respectfully instructed to amend the caption as set forth above.


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For Plaintiff-Appellant:                   ANDREA RISOLI, Risoli Law Offices, New York, NY.

For Defendant-Appellee:                    JANET L. ZALEON, Assistant Corporation Counsel
                                           (Richard Dearing, Deborah A. Brenner, on the brief),
                                           for Zachary W. Carter, Corporation Counsel of the City
                                           of New York, New York, NY.

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

New York (Sullivan, J.).

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

DECREED that the judgment of the district court is AFFIRMED.

       Plaintiff-Appellant Phoebe Jackson (“Jackson”) appeals from an award of summary

judgment to Defendant-Appellee New York City Department of Education (“DOE”) entered on

February 16, 2018, on Jackson’s claims of discrimination, retaliation, and hostile work

environment brought pursuant to the Americans with Disabilities Act of 1990 (the “ADA”) and

the Rehabilitation Act of 1973.

       Under Federal Rule of Civil Procedure 56, “[t]he court shall grant summary judgment if

the movant shows that there is no genuine dispute as to any material fact and the movant is entitled

to judgment as a matter of law.” Fed. R. Civ. P. 56(a). To show a genuine dispute, the nonmoving

party must provide “evidence . . . from which a reasonable inference in . . . [its] favor may be

drawn.” Binder & Binder PC v. Barnhart, 481 F.3d 141, 148 (2d Cir. 2007) (internal quotation

marks omitted). “We review de novo a district court’s grant of summary judgment, ‘construing the

evidence in the light most favorable to the non-moving party and drawing all reasonable inferences

in its favor.’” Mitchell v. City of New York, 841 F.3d 72, 77 (2d Cir. 2016) (quoting Costello v.

City of Burlington, 632 F.3d 41, 45 (2d Cir. 2011)). We assume the parties’ familiarity with the

underlying facts, the procedural history of the case, and the issues on appeal.

       Claims under the ADA and the Rehabilitation Act proceed under the burden-shifting


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analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Reg’l Econ.

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

the McDonnell Douglas analysis to claims brought under the ADA and the Rehabilitation Act),

superseded by statute on other grounds. Pursuant to this framework, “[a] plaintiff must establish

a prima facie case; the employer must offer through the introduction of admissible evidence a

legitimate non-discriminatory reason for the [adverse employment action]; and the plaintiff must

then produce evidence and carry the burden of persuasion that the proffered reason is a

pretext.” Cortes v. MTA N.Y.C. Transit, 802 F.3d 226, 231 (2d Cir. 2015) (internal quotation marks

omitted).

       To establish a prima facie case under the ADA, a plaintiff must show that “(1) [her]

employer is subject to the ADA; (2) [she] was disabled within the meaning of the ADA; (3) [she]

was qualified to perform the essential functions of [her] job, with or without reasonable

accommodation; and (4) [she] suffered adverse employment action because of [her]

disability.” Giordano v. City of New York, 274 F.3d 740, 747 (2d Cir. 2001) (citation omitted); see

also Reg’l Econ. Cmty. Action Program, 294 F.3d at 48–49 (noting that the prima facie case for the

ADA and Rehabilitation Act is the same as relevant here).

       We conclude that even assuming that Jackson has established a prima facie case of

disability-based discrimination, she has failed to produce sufficient evidence for a reasonable

factfinder to conclude that the allegedly adverse employment actions were motivated by

discrimination rather than the DOE’s proffered reasons. See Weinstock v. Columbia Univ., 224

F.3d 33, 42 (2d Cir. 2000). The record reveals that the DOE has provided “legitimate, non-

discriminatory reason[s],” McDonnell Douglas, 411 U.S. at 802, for all of Jackson’s negative

performance evaluations and transfers, including contemporaneous letters detailing Jackson’s


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insufficient lesson plans and difficulties in supervising and disciplining students, evidence of an

incident in which Jackson left a student unattended in a classroom, and evidence of Jackson’s

attendance issues. Jackson has failed to offer evidence that would provide a basis for a reasonable

jury to conclude that the DOE’s rationales are pretextual and that she instead endured these

allegedly adverse employment actions as a result of discriminatory animus. See Schwapp v. Town

of Avon, 118 F.3d 106, 110 (2d Cir. 1997) (“[E]ven in the discrimination context, a plaintiff must

provide more than conclusory allegations of discrimination to defeat a motion for summary

judgment.”). Accordingly, we conclude that the district court did not err in dismissing Jackson’s

ADA and Rehabilitation Act discrimination claims and granting the DOE’s motion for summary

judgment.

       For similar reasons, we also affirm the district court’s decision to grant the DOE summary

judgment on Jackson’s retaliation claim. The McDonnell Douglas burden-shifting analysis also

applies to retaliation claims. See Treglia v. Town of Manlius, 313 F.3d 713, 719 (2d Cir. 2002).

Again, even assuming that Jackson adequately established a prima facie showing of retaliation,

the DOE has articulated “legitimate, non-retaliatory reasons for each of the alleged adverse

employment actions taken against” Jackson. Id. at 721. Jackson, for her part, has failed to produce

sufficient evidence that any actions taken against her were motivated by retaliation, rather than the

DOE’s stated reason.

       Finally, we affirm the district court’s decision to grant the DOE summary judgment on

Jackson’s “hostile work environment” claim, to the extent that her complaint can be read to raise

that claim. To bring such a claim, a plaintiff must show “(1) that the harassment was sufficiently

severe or pervasive to alter the conditions of [her] employment and create an abusive working

environment, and (2) that a specific basis exists for imputing the objectionable conduct to the


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employer.” Fox v. Costco Wholesale Corp., 918 F.3d 65, 74 (2d Cir. 2019) (internal quotation

marks omitted). Additionally, “the plaintiff also must show that the hostile conduct occurred

because of a protected characteristic.” Tolbert v. Smith, 790 F.3d 427, 439 (2d Cir. 2015).

Jackson’s generalized account of antagonism directed toward her by school administrators fails to

demonstrate that the conduct alleged rose to the level of pervasive hostility that is required to

survive summary judgment. Moreover, Jackson has failed to put forth sufficient evidence of a

causal connection between the school administration’s allegedly hostile conduct toward her and

her disability. Accordingly, the district court did not err in dismissing her hostile work environment

claim at the summary judgment stage.

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

Accordingly, we AFFIRM the judgment of the district court.



                                                      FOR THE COURT:
                                                      Catherine O’Hagan Wolfe, Clerk




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