17-380
Best v. Duane Reade, Inc.

                                 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
22nd day of March, two thousand eighteen.

Present:    ROSEMARY S. POOLER,
            REENA RAGGI,
            CHRISTOPHER F. DRONEY,
                        Circuit Judges.
_____________________________________________________
JANICE ALISE BEST,

                                   Plaintiff-Appellant,

                            v.                                                 17-380-cv

DUANE READE, INC.,

                        Defendant-Appellee.
_____________________________________________________

Appearing for Appellant:           Janice Alise Best, pro se, New York, N.Y.

Appearing for Appellee:            Christine Hogan, Littler Mendelson, P.C., New York, N.Y.

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

     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.
         Appellant Janice Alise Best appeals from the January 11, 2017 decision and order of the
United States District Court for the Southern District of New York (McMahon, J.) granting her
former employer, Duane Reade, Inc., summary judgment. Best’s complaint alleged employment
discrimination claims under the Americans with Disabilities Act (“ADA”).. We assume the
parties’ familiarity with the underlying facts, procedural history, and specification of issues for
review.

        We review the district court’s grant of summary judgment de novo, and examine whether
the district court properly concluded that there was no genuine issue as to any material fact and
the moving party was entitled to judgment as a matter of law. Sotomayor v. City of New York,
713 F.3d 163, 164 (2d Cir. 2013). ADA claims are analyzed under the burden-shifting
framework established for discrimination claims: the plaintiff must establish a prima facie case;
the employer must then demonstrate a non-discriminatory reason for the adverse employment
action; and the plaintiff must then demonstrate that the reason was pretextual. Cortes v. MTA
N.Y.C. Transit, 802 F.3d 226, 231 (2d Cir. 2015). To establish a prima facie case, the plaintiff
must demonstrate that (1) she suffered from a disability; (2) the employer was aware of the
disability; (3) the plaintiff could perform the essential functions of the job with a reasonable
accommodation; and (4) the employer refused to make such accommodation. Parker v.
Columbia Pictures Indus., 204 F.3d 326, 332 (2d Cir. 2000).

        The district court correctly ruled that Best failed to make out a prima facie claim. Even
assuming that Best was disabled within the meaning of the ADA, she did not counter Duane
Reade’s evidence that it attempted to accommodate her disability, a shoulder injury. When Best
gave her supervisor a doctor’s note stating that she could not lift heavy objects, the supervisor
told her to “go do whatever she wanted around the store.” Appellee’s App’x at 220 ¶ 59. Such
reassignment or “job restructuring” may be considered a reasonable accommodation under the
ADA. 42 U.S.C. § 12111(9)(B); 29 C.F.R. § 1630.2(o)(1)(ii) (reasonable accommodations
include “[m]odifications or adjustments to the work environment, or to the manner or
circumstances under which the position held or desired is customarily performed, that enable an
individual with a disability who is qualified to perform the essential functions of that position”);
see also Graves v. Finch Pruyn & Co., 457 F.3d 181, 187 (2d Cir. 2006) (“The ADA lists
reassignment to an existing, vacant position as a possible reasonable accommodation.”).

       Further, the district court correctly held that Duane Reade established that it fired Best
because of attendance issues, not because of her disability or in retaliation for her complaints.
Her supervisor issued four disciplinary write-ups, and referred Best’s file to human resources for
a termination decision, before Best submitted a doctor’s note describing her alleged disability.
Nothing in the record indicates that the attendance issues were a pretext for firing her. See
Cortes, 802 F.3d at 231 (plaintiff must rebut employer’s evidence of non-discriminatory motive).




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        We have considered the remainder of Best’s arguments and find them to be without
merit. Accordingly, the order 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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