         12-2825-cv
         Deborah A. Davison v. Lagrange Fire Dist., et al.

                                      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.


 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 7th day of May, two thousand thirteen.
 5
 6       PRESENT: RICHARD C. WESLEY,
 7                SUSAN L. CARNEY,
 8                J. CLIFFORD WALLACE,*
 9                         Circuit Judges.
10
11
12
13       DEBORAH A. DAVIDSON,
14
15                                           Plaintiff-Appellant,
16
17                         -v.-                                             No. 12-2825-cv
18
19       LAGRANGE FIRE DISTRICT, BOARD OF
20       FIRE COMMISSIONERS OF LAGRANGE FIRE
21       DISTRICT,
22
23                                           Defendants-Appellees.**
24
25
26
27

                  *
                The Honorable J. Clifford Wallace, of the United States
         Court of Appeals for the Ninth Circuit, sitting by designation.
                  **
                The Clerk of the Court is directed to amend the
         caption to conform with the caption above.
 1   FOR APPELLANT:       LOUIS D. STOBER, JR., Garden City, New
 2                        York.
 3
 4   FOR APPELLEE:        ROBERT A. RAUSCH, Maynard, O’Connor,
 5                        Smith & Catalinotto, LLP, Albany, New
 6                        York.
 7
 8        Appeal from the United States District Court for the
 9   Southern District of New York (Briccetti, J.).
10
11       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

12   AND DECREED that the order is AFFIRMED.

13       Deborah Davidson appeals from the District Court’s

14   summary judgment in favor of Defendants.     We assume the

15   parties’ familiarity with the underlying facts and history

16   of the case, as well as the issues on appeal.

17       Davidson alleges that the LaGrange Fire District (“the

18   District”) has discriminated against her on the basis of her

19   gender, age, and disability in violation of Title VII of the

20   Civil Rights Act of 1964, the Age Discrimination in

21   Employment Act, and the Americans with Disabilities Act

22   (“ADA”), inter alia.     Many of the specific discriminatory

23   acts alleged fall outside of the 300-day statute of

24   limitations.     See Davidson v. Lagrange Fire Dist., 2012 WL

25   2866248 at *9 (S.D.N.Y. June 19, 2012).    We consider these

26   acts only as “background evidence” in evaluating the merits

27   of Davidson’s discrimination claims.     See Nat’l R.R.

28   Passenger Corp. v. Morgan, 536 U.S. 101, 112 (2002).

                                     2
1        Davidson’s gender and age discrimination claims are

2    governed by the familiar burden-shifting framework of

3    McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

4    Because Davidson has failed to rebut Defendants’ non-

5    discriminatory explanations for all alleged adverse actions

6    that fell within the statute of limitations period, the

7    district court’s decision to award summary judgment as to

8    those claims was proper.

9        The District’s failure to promote Davidson to

10   Lieutenant in 2007 or 2008 was an adverse action

11   attributable to her disability.   Her claim under the ADA

12   relies on a showing that:

13       ‘(1) [Her] employer is subject to the ADA; (2)
14       [s]he was disabled within the meaning of the ADA;
15       (3) [s]he was otherwise qualified to perform the
16       essential functions of h[er] job, with or without
17       reasonable accommodation; and (4) [s]he suffered
18       adverse employment action because of h[er]
19       disability.’
20
21   McMillan v. City of New York, 711 F.3d 120, 125 (2d Cir.

22   2013) (quoting Sista v. CDC Ixis N. Am., Inc., 445 F.3d 161,

23   169 (2d Cir. 2006)). Davidson does not allege that she is

24   qualified to perform the essential functions of the job of

25   Lieutenant.   Moreover, the accommodation she requested

26   (surgery at the District’s expense) is not reasonable.


                                   3
1    Davidson has therefore failed to establish a prima facie

2    case of discrimination.

3        Davidson also contends that defendants failed to

4    accommodate her by giving her a light duty position.

5    Davidson has failed to demonstrate, however, that there were

6    any light-duty positions available for career firefighters,

7    and our case law makes clear that defendants were not

8    required to create a new position to accommodate Davidson.

9    See, e.g., Graves v. Finch Pruyn & Co., 457 F.3d 181, 187

10   (2d Cir. 2006); Norville v. Staten Island Univ. Hosp., 196

11   F.3d 89, 99 (2d Cir. 1999).

12       Davidson’s claims under 42 U.S.C. § 1983 seek to

13   vindicate the same rights as her Title VII claims and were

14   therefore properly dismissed.       See Saulpaugh v. Monroe

15   Community Hosp., 4 F.3d 134, 143 (2d Cir. 1993).

16       The district court’s judgment is affirmed as to

17   Davidson’s other claims for reasons discussed in the

18   district court’s thorough order.       See Davidson, 2012 WL

19   2866248; see also Alfano v. Costello, 294 F.3d 365, 379 (2d

20   Cir. 2002).

21

22


                                     4
1       We have considered all of Davidson’s arguments and find

2   them to be without merit.   For the reasons stated above, the

3   judgment of the district court is AFFIRMED.

4
5                               FOR THE COURT:
6                               Catherine O’Hagan Wolfe, Clerk
7
8




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