         09-3364-cv
         McPhatter v. New York City Police Department

                                   UNITED STATES COURT OF APPEALS
                                         F OR T HE S ECOND C IRCUIT

                                                  SUMMARY ORDER

R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . C ITATION TO A SUMMARY ORDER FILED ON OR AFTER J ANUARY 1,
2007, IS PERMITTED AND IS GOVERNED BY F EDERAL R ULE OF A PPELLATE P ROCEDURE 32.1 AND THIS C OURT ’ S L OCAL R ULE 32.1.1.
W HEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS C OURT , A PARTY MUST CITE EITHER THE F EDERAL A PPENDIX 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 24 th day of May, two thousand and ten.

         Present: AMALYA L. KEARSE,
                  ROBERT D. SACK,
                  RICHARD C. WESLEY,
                                Circuit Judges.
         ________________________________________________

         ROSETTA MCPHATTER,

                                         Plaintiff-Appellant,

                         - v. -                                                  (09-3364-cv)

         NEW YORK CITY, NEW YORK CITY
         POLICE DEPARTMENT,

                           Defendants-Appellees.
         __________________________________________________

         Appearing for Appellant:                        ROSETTA MCPHATTER, pro se,
                                                         Brooklyn, New York.

         Appearing for Appellees:                        DONA B. MORRIS, Assistant
                                                         Corporation Counsel, City of New
                                                         York Law Department, for Michael
                                                         A. Cardozo, Corporation Counsel,
                                                         New York, New York.
          Appeal from the United States District Court for the
     Eastern District of New York (Gershon, J.).

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

 2   AND DECREED that the judgment of the United States District

 3   Court for the Eastern District of New York be AFFIRMED.

 4       Plaintiff Rosetta McPhatter appeals, pro se, from the

 5   August 3, 2009, judgment of the district court granting

 6   summary judgment to defendants, the New York City Police

 7   Department (“NYPD”) and New York City (“the City”).

 8   Plaintiff, a former employee of the NYPD, brought this

 9   action pursuant to Title VII of the Civil Rights Act of

10   1964, 42 U.S.C. § 2000e et seq., the Age Discrimination in

11   Employment Act, 29 U.S.C. § 621 et seq., and the Americans

12   with Disabilities Act, 42 U.S.C. § 12101 et seq. (“ADA”).

13   Before this Court, plaintiff appeals only the dismissal of

14   her claims brought pursuant to the ADA and the dismissal of

15   her claim of improper retaliation for bringing a charge

16   before the Equal Employment Opportunity Commission. [Pl. Br.

17   at 1-2]

18       We presume the parties’ familiarity with the underlying

19   facts, the procedural history of the case, and the issues on

20   appeal.   After conducting a de novo review of the record,



                                   2
 1   drawing all reasonable factual inferences in favor of the

 2   plaintiff, we conclude that the district court’s grant of

 3   summary judgment in favor of the defendants was proper.         See

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

 5   Cir. 2003).

 6       We agree with the district court that, even assuming

 7   plaintiff made out a prima facie case that she had a history

 8   of a disability as defined by the ADA, or was perceived by

 9   her employer as disabled within the meaning of the statute,

10   she did not show that her suspension — the act upon which

11   her claim was founded — was based on discrimination.      See

12   McPhatter v. N.Y. City, No. 06 Civ. 1181 (NG) (LB), 2009 WL

13   2412980, at *9 (E.D.N.Y. July 30, 3009).   Defendants offered

14   a legitimate, non-discriminatory reason for McPhatter’s

15   suspension, and her subsequent termination.   Plaintiff

16   failed to offer any “argument at all that this reason was

17   merely a pretext for a discriminatory motive.”   Id.; see

18   also Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.

19   133, 148 (2000).

20       With respect to McPhatter’s retaliation claim, we hold

21   that she failed to establish a causal connection between the

22   filing of her discrimination charge and any adverse


                                  3
 1   employment action.   See Clark County Sch. Dist. v. Breeden,

 2   532 U.S. 268, 273-74 (2001).   As the district court noted,

 3   “plaintiff was subject to escalating disciplinary actions .

 4   . . well before she engaged in any protected activity.”

 5   McPhatter, 2009 WL 2412980, at *7.     Even assuming arguendo

 6   that plaintiff established a prima facie case of

 7   retaliation, her claim must fail.     McPhatter did not proffer

 8   any material evidence that would permit a rational

 9   factfinder to conclude that defendants’ legitimate, non-

10   discriminatory reasons for their actions were pretextual.

11       The Court has reviewed all of plaintiff’s arguments and

12   finds them to be without merit.     Accordingly, the judgment

13   of the district court is hereby AFFIRMED.

14

15                               For the Court
16                               Catherine O’Hagan Wolfe, Clerk
17
18
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