11-4478-cv
Noel v. BNY-Mellon Corp.

                             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 the 14th
day of March, two thousand thirteen.

Present:    GUIDO CALABRESI,
            ROSEMARY S. POOLER,
            REENA RAGGI,
                        Circuit Judges.
_____________________________________________________

BEVERLY NOEL,

                                 Plaintiff-Appellant,

                           -v-                                             11-4478-cv

BNY-MELLON CORPORATION,

                        Defendant-Appellee.
_____________________________________________________

Appearing for Appellant:                Nkereuwem Umoh, Umoh Law Firm, PLLC, Brooklyn, NY

Appearing for Appellee:                 Neal Kumar Katyal, Hogan Lovells, Washington, DC
                                        (Elizabeth Barchas Prelogar, Hogan Lovells, Washington,
                                        DC; Kenneth Kirschner, Vi T. Vu, Hogan Lovells, New
                                        York, NY, on the brief)

       Appeal from the United States District Court for the Southern District of New York
(Rakoff, J.).

     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.
        Plaintiff-Appellant, Beverly Noel seeks review of the judgment of the district court, dated
October 4, 2011, granting summary judgment to BNY-Mellon Corporation (“BNY-Mellon”) on
her failure to accommodate and retaliation claims under the Americans with Disabilities Act
(“ADA”), 42 U.S.C. § 12101 et seq., the New York State Human Rights Law (“NYSHRL”),
N.Y. Exec. Law § 296, and the New York City Human Rights Law (“NYCHRL”), N.Y.C.
Admin. Code § 8-107. We assume the parties’ familiarity with the underlying facts, procedural
history, and specification of issues for review.

        “We review a district court’s grant of summary judgment de novo, construing the
evidence in the light most favorable to the nonmoving party and drawing all reasonable
inferences in that party’s favor.” Kuebel v. Black & Decker Inc., 643 F.3d 352, 358 (2d Cir.
2011). “Summary judgment may be granted if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to a judgment as a
matter of law.” Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997) (internal quotation
marks omitted). Where the moving party demonstrates “the absence of a genuine issue of
material fact,” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986), the non-moving party must
then present specific evidence demonstrating a genuine dispute, Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986).

        The federal regulations implementing the ADA require that both the employee and the
employer engage in an “interactive process” to “identify the precise limitations resulting from
the disability and potential reasonable accommodations that could overcome those limitations.”
29 C.F.R. § 1630.2(o)(3). As the district court found, Noel abandoned this interactive process
and cannot, therefore, recover on her claim for a failure to accommodate. The NYSHRL and the
NYCHRL also require participation in such an interactive process to sustain a failure to
accommodate claim, see Romanello v. Intesa Sanpaolo S.p.A., 949 N.Y.S.2d 345, 348 (1st Dep’t
2012), and Noel is likewise unable to maintain a claim under these enactments. In any event,
Noel has failed to show a genuine issue of fact as to the final element of the prima facie case for
failure to accommodate: that the employer “refused to make” the requisite accommodations.
Stone v. City of Mount Vernon, 118 F.3d 92, 97 (2d Cir. 1997). The record reflects not only that
BNY agreed in 2008 to accommodate Noel but also that it renewed the offer in February 2009 if
Noel were offered a new position at BNY-Mellon, which she did not pursue.

        Claims for retaliation under the ADA “are analyzed under the same burden-shifting
framework established for Title VII cases.” Treglia v. Town of Manlius, 313 F.3d 713, 719 (2d
Cir. 2002). First, the burden lies on the plaintiff to establish a prima facie case of retaliation. Id.
Once the prima facie case has been made, the burden shifts to the employer to “articulate a
legitimate, non-retaliatory reason for the challenged employment decision.” Id. at 721. Once
this showing has been made, the burden shifts back to the plaintiff to “point to evidence that
would be sufficient to permit a rational factfinder to conclude that the employer’s explanation is
merely a pretext for impermissible retaliation.” Id. (quoting Cifra v. Gen. Elec. Co., 252 F.3d
205, 216 (2d Cir. 2001)). Assuming Noel made out her prima facie case, the burden shifted back
to BNY-Mellon, which then proffered a legitimate non-retaliatory reason for her dismissal, based
upon her failure to apply for an open position with the company. Noel has failed to make any
showing from which a reasonable jury could conclude that BNY-Mellon’s offered explanation
was pretextual. Therefore, Noel cannot maintain her retaliation claim.

                                                  2
        Noel is correct to argue that the NYCHRL has been amended to “abolish the
‘parallelism’ between the [NYCHRL] and federal and state anti-discrimination law,” Loeffler v.
Staten Island Univ. Hosp., 582 F.3d 268, 278 (2d Cir. 2009), and that under the NYCHRL, a
plaintiff need not have suffered a “materially adverse change in the terms and conditions of
employment” to establish a prima facie case of retaliation, see N.Y.C. Admin. Code § 8-107(7).
None of this is relevant, however, since we have assumed that Noel made out her prima facie
case even under the more restrictive federal standard.

       We have considered Noel’s remaining arguments and find them to be without merit.
Accordingly, the judgment of the district court hereby is AFFIRMED. Each side to bear its own
costs.


                                                   FOR THE COURT:
                                                   Catherine O’Hagan Wolfe, Clerk




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