18-3473
Camoia v. City of New York

                              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 13th day of December, two thousand nineteen.

PRESENT:
           DENNIS JACOBS,
           SUSAN L. CARNEY,
           MICHAEL H. PARK,
                       Circuit Judges.
_________________________________________

RENEE CAMOIA,

              Plaintiff-Appellant,

                      v.                                               No. 18-3473

CITY OF NEW YORK, DR. ELOISE ARCHIBALD,
DIRECTOR OF THE PSYCHOLOGICAL SERVICES
SECTION, DR. MICHAEL MARSHALL, OF THE
PSYCHOLOGICAL SERVICES SECTION, SERGEANT
LANARIS, INDIVIDUALLY AND IN THEIR OFFICIAL
CAPACITIES AS EMPLOYEES OF THE CITY OF NEW
YORK POLICE DEPARTMENT, SERGEANT HAMILTON,
SERGEANT WHYE,

              Defendants-Appellees,

POLICE COMMISSIONER RAYMOND W. KELLY,
DEPUTY COMMISSIONER NELDRA M. ZEIGLER,
OFFICE OF EQUAL EMPLOYMENT OPPORTUNITY,
JANE DOE 1, JANE DOE 2,

           Defendants.
_________________________________________

FOR PLAINTIFF-APPELLANT:                           THOMAS RICOTTA, White, Ricotta &
                                                   Marks, P.C., Long Island City, NY.

FOR DEFENDANTS-APPELLEES:                          ANNA WOLONCIEJ (Richard Dearing, on
                                                   the brief), of Counsel for James Johnson,
                                                   Corporation Counsel of the City of New
                                                   York, New York, NY.

       Appeal from the judgment of the United States District Court for the Eastern
District of New York (Garaufis, J.).

       UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment entered on October 19, 2018, is
AFFIRMED.

       Plaintiff-Appellant Renee Camoia appeals from the judgment of the District Court
(Garaufis, J.) dismissing her complaint at summary judgment. Camoia appeals the judgment
only as to her perceived disability discrimination claims under the Americans with
Disabilities Act (“ADA”), the New York State Human Rights Law (“NYSHRL”), and the
New York City Human Rights Law (“NYCHRL”). Camoia’s operative complaint bases her
discrimination claims solely on the perceived disability of bipolar disorder. The record
reflects that the New York City Police Department (“NYPD”) terminated Camoia in July
2008 during her training at the Police Academy based primarily on its discovery of an
undisclosed medical history of anxiety and panic attacks that led the NYPD to believe that
she was unfit to serve as a police officer. The NYPD began the investigation that resulted in
the discovery of the undisclosed medical history—a medical history not consistent with
Camoia’s prior representations to the NYPD—after an anonymous caller to the NYPD
alleged that Camoia suffered from bipolar disorder. Defendants-Appellees are the City of
New York and several NYPD employees (collectively, the “City”). We assume the parties’

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familiarity with the underlying facts, procedural history, and arguments on appeal, to which
we refer only as necessary to explain our decision to affirm the District Court’s judgment.

       Camoia contests the court’s dismissal of her discrimination claims, contending that
although her discrimination claims based on the perceived disability of bipolar disorder may
fall short as they are stated in her operative complaint, the District Court erred by failing to
consider similar discrimination claims that her complaint did not allege and that would have
been based on the perceived disability of anxiety and vulnerability to panic attacks.

       We review de novo a district court’s grant of summary judgment. Feingold v. New York,
366 F.3d 138, 148 (2d Cir. 2004). Summary judgment may be entered upon a showing “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). A genuine dispute of material fact “exists for
summary judgment purposes where the evidence, viewed in the light most favorable to the
nonmoving party, is such that a reasonable jury could decide in that party’s favor.” Guilbert v.
Gardner, 480 F.3d 140, 145 (2d Cir. 2007).
       To succeed on a disability discrimination claim under the ADA, a plaintiff must first
make out a prima facie case. Sista v. CDC Ixis N. Am., Inc., 445 F.3d 161, 169 (2d Cir. 2006)
(“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 discharge;
and the plaintiff must then produce evidence and carry the burden of persuasion that the
proffered reason is a pretext.”). A plaintiff establishes a prima facie case by showing that:

       (1) the defendant is covered by the ADA; (2) plaintiff suffers from or is regarded
       as suffering from a disability within the meaning of the ADA; (3) plaintiff was
       qualified to perform the essential functions of the job, with or without
       reasonable accommodation; and (4) plaintiff suffered an adverse employment
       action because of his disability or perceived disability.

Capobianco v. City of New York, 422 F.3d 47, 56 (2d Cir. 2005).

       The District Court awarded summary judgment to the City on Camoia’s ADA claim
because the record did not contain evidence sufficient for a jury to conclude that Camoia
satisfied the second prong, i.e., that she showed that the NYPD regarded her as suffering



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from the disability of bipolar disorder as she alleged in her operative complaint. Instead, on
summary judgment, the record leaves no doubt that the NYPD terminated Camoia based
on, inter alia, her “significant history of anxiety and panic attacks.” App’x 605. The
significance of this history is amplified by Camoia’s failure to disclose it in her application
for employment as a NYPD officer despite being required to do so. Camoia concedes as
much in her brief. She writes in her brief: “[I]t is respectfully submitted that . . . there was
not a record upon which a reasonable fact-finder could . . . find” that “Defendants-
Appellees perceived or diagnosed Plaintiff-Appellant to be bipolar.” Appellant’s Br. at 20.
Therefore, Camoia’s challenge to the District Court’s judgment in favor of the City on
Camoia’s perceived disability discrimination claims under the ADA fails. Because the same
standards apply to claims brought under the NYSHRL, Camoia’s claim under that statute
fails as well. See Weinstock v. Columbia Univ., 224 F.3d 33, 42 n.1 (2d Cir. 2000).

       Camoia’s claim also fails under the lower bar of the NYCHRL, which must be
analyzed separately from federal and state claims. See Velazco v. Columbus Citizens Found., 778
F.3d 409, 411 (2d Cir. 2015) (per curiam) (“[C]ourts must analyze NYCHRL claims
separately and independently from any federal and state law claims.”). The NYCHRL
requires only a showing that a perception of bipolar disorder caused some negative effect,
not that it was the but-for cause of Camoia’s termination. Mihalik v. Credit Agricole Cheuvreux
N. Am., Inc., 715 F.3d 102, 110 n.8 (2d Cir. 2013) (explaining that under the NYCHRL the
“plaintiff need only show that her employer treated her less well, at least in part for a
discriminatory reason”). We agree with the District Court that the record contains no
evidence that would allow a jury to conclude that the NYPD perceived that Camoia suffered
from bipolar disorder or that the NYPD treated her less well—even only in part—because
of such a perception.

       Camoia argues that the District Court erred in declining to entertain her unpled
perceived disability discrimination claims based on the NYPD’s perception of her as
suffering from anxiety and panic attacks, rather than bipolar disorder. But Camoia’s Third
Amended Complaint premised her perceived disability discrimination claim explicitly and
solely on the allegation that “Defendants . . . perceived Plaintiff to suffer from bi-polar


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disorder.” Third Am. Compl. ¶ 23, Camoia v. City of New York, No. 09-cv-2545 (E.D.N.Y.
Mar. 7, 2013), ECF No. 53; see also id. ¶¶ 26-47. In her response to the City’s motion for
summary judgment, Camoia for the first time attempted to base her perceived discrimination
claims on the new factual predicate of perceived disability arising from anxiety and panic
attacks. App’x 718 (“[B]y Defendants’ own admission, Plaintiff can show that, at a
minimum, Defendants perceived her or regarded her as someone that suffers from anxiety
and panic attacks.”). The Magistrate Judge who first considered the motion for summary
judgment did not consider this unpled factual predicate in fashioning her report and
recommendation. Camoia did not object. The District Court also did not consider these
unpled claims in its decision.

       This Court has “held that plaintiffs who failed to include a claim in their complaint
can move to amend the complaint; if summary judgment has been granted to their
opponents, they can raise the issue in a motion for reconsideration.” Greenidge v. Allstate Ins.
Co., 446 F.3d 356, 361 (2d Cir. 2006). Merely raising the argument for the first time in
opposition to a motion for summary judgment is inadequate. Id. Camoia neither moved to
amend her Third Amended Complaint nor raised the issue before the District Court in a
motion for reconsideration. Accordingly, the District Court did not err in declining to
consider these new and unpled discrimination claims. We also decline to entertain them now
on appeal. Westinghouse Credit Corp. v. D’Urso, 371 F.3d 96, 103 (2d Cir. 2004) (“In general we
refrain from passing on issues not raised below.”).

                                                * * *

       We have considered all of Camoia’s remaining arguments and conclude that they are
without merit. The District Court’s judgment is AFFIRMED.

                                                        FOR THE COURT:
                                                        Catherine O’Hagan Wolfe, Clerk of Court




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