UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
April 3, 2012
MARIE-ANGE JOSEPH, PLAINTIFF-APPELLANT,
NORTH SHORE UNIVERSITY HOSPITAL, DEFENDANT-APPELLEE.
Appeal from a judgment of the United States District Court for the Eastern District of New York (Lindsay, M.J.).
Marie-Ange Joseph v. North Shore University Hospital
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 2 Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on 3 the 3rd day of April, two thousand twelve.
4 Present: 5 DEBRA ANN LIVINGSTON, 6 GERARD E. LYNCH, 7 CHRISTOPHER F. DRONEY, 8 Circuit Judges.
UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, and
that the judgment of the district court is AFFIRMED.
Plaintiff-Appellant Marie-Ange Joseph ("Joseph") appeals from a February 16, 2011 6 judgment of the United States District Court for the Eastern District of New York (Lindsay, M.J.), 7 granting summary judgment in favor of Defendant-Appellee North Shore University Hospital (the 8 "Hospital") on Joseph's claims under the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 9 12101-213, and Title VII of the Civil Rights Act of 1964 ("Title VII"), as amended, 42 U.S.C. § 10 2000e et seq.*fn1 On appeal, Joseph argues that the court erred in ruling that Joseph failed to 11 demonstrate that she suffered from a disability for the purposes of the ADA; in holding that Joseph 12 failed to establish a prima facie case of discrimination on the basis of her national origin; and in 13 determining that Joseph was not subject to a hostile work environment on the basis of either her 14 alleged disability or her national origin. We assume the parties' familiarity with the underlying 15 facts, the procedural history of the case, and the issues on appeal.
16 We review de novo a district court's order granting summary judgment. Molinari v. 17 Bloomberg, 564 F.3d 587, 595 (2d Cir. 2009). "Summary judgment is appropriate where there exists 18 no genuine issue of material fact and, based on the undisputed facts, the moving party is entitled to 19 judgment as a matter of law." 10 Ellicott Square Court Corp. v. Mtn. Valley Indem. Co., 634 F.3d 20 112, 119 (2d Cir. 2011) (internal quotation marks omitted). The burden is on the moving party to 1 demonstrate that no genuine issue respecting any material fact exists. See id. In reviewing a court's 2 decision granting summary judgment, the appellate court must consider "the evidence in the light 3 most favorable to the non-moving party and draw[ ] all reasonable inferences in its favor." Palmieri 4 v. Allstate Ins. Co., 445 F.3d 179, 187 (2d Cir. 2006).
"Nevertheless, the non[-]moving party must come forward with specific facts showing that there is a genuine issue of material fact for trial." 6 Shannon v. N.Y. City Transit Auth., 332 F.3d 95, 99 (2d Cir. 2003). "Conclusory allegations, 7 conjecture, and speculation . . . are insufficient to create a genuine issue of fact." Id. (internal 8 quotation marks omitted); see also Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000) 9 ("[U]nsupported allegations do not create a material issue of fact."). 10 First, we agree with the magistrate judge that Joseph failed to adduce sufficient evidence of 11 a disability to satisfy that element of a prima facie ADA claim. See Giordano v. City of N.Y., 274 12 F.3d 740, 747 (2d Cir. 2001). The version of the ADA in effect at the time of Joseph's termination 13 in 2007 defined "disability" as: "(A) a physical or mental impairment that substantially limits one 14 or more of the major life activities of such individual; (B) a record of such impairment; or (C) being 15 regarded as having such an impairment." EEOC v. J.B. Hunt Transp., Inc., 321 F.3d 69, 74 (2d Cir. 16 2003) (quoting 42 U.S.C. § 12102(2) (1991)), superseded by 42 U.S.C. § 12102(3) (2009). On de 17 novo review of the record, we identify evidence that Joseph suffered from a bunion and pain on her 18 toenail following surgery which prevented her from wearing stockings with closed shoes.
While 19 these symptoms caused Joseph some difficulty with walking,*fn2 see 29 C.F.R. § 1630.2(i) (1991), 1 Joseph did not adduce sufficient evidence to support a finding that she was "significantly restricted 2 in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared 3 to the average person having comparable training, skills and abilities." 29 C.F.R. § 1630.2(j)(3)(i) 4 (1991), superseded by 29 C.F.R. § 1630.2(j) (2011). Indeed, Joseph testified that she was not 5 limited in performing her work duties by her foot condition. Further, Joseph failed to demonstrate 6 that the Hospital perceived her as suffering from a disability, as her doctors' communications to the 7 Hospital indicate no more than that she was suffering from foot pain and therefore could not wear 8 stockings. See Colwell v. Suffolk Cnty. Police Dep't, 158 F.3d 635, 646 (2d Cir. 1998) (requiring 9 showing that employer regarded plaintiff as having "an impairment that substantially limited a major 10 life activity"). We therefore find no error in the granting of summary judgment to the Hospital on 11 Joseph's ADA claims.*fn3
12 We next conclude that Joseph failed to establish a prima facie case of discrimination on the 13 basis of her national origin. Under the McDonnell Douglas framework applicable to Title VII 14 claims, a plaintiff must first demonstrate a prima facie case of discrimination by showing that: 1) 15 she was in a protected group; 2) she was qualified for the position; 3) she was subject to an adverse 16 employment action; and 4) the adverse employment action occurred under circumstances giving rise 17 to an inference of discrimination. See Terry v. Ashcroft, 336 F.3d 128, 137-38 (2d Cir. 2003); 18 Collins v. N.Y. City Trans. Auth., 305 F.3d 113, 118 (2d Cir. 2002). Joseph principally cited as 19 evidence of discrimination on the basis of her Haitian origin an August 14, 2007 disciplinary notice 20 reprimanding her for speaking in her native French in violation of the Hospital's policy to speak 1 English in the office unless the employee was assisting a patient who spoke another language.
2 However, Joseph adduced no evidence to support her claim that other employees were permitted to 3 speak Spanish in the workplace without being disciplined and thus no evidence that she was treated 4 differently by the Hospital because of her Haitian origin. See Soberal-Perez v. Heckler, 717 F.2d 5 36, 42 (2d Cir. 1983) (observing that a policy having a preference for English over all other 6 languages is not evidence of discriminatory intent). Accordingly, the magistrate judge did not err 7 in granting summary judgment to the Hospital on Joseph's discrimination claim. 8 Finally, we conclude that Joseph did not establish a claim for a hostile work environment 9 based on either disability or national origin discrimination. Harassment is actionable when it creates 10 a hostile work environment which is "so severely permeated with discriminatory intimidation, 11 ridicule, and insult that the terms and conditions of [plaintiff's] employment were thereby altered."
12 Alfano v. Costello, 294 F.3d 365, 373 (2d Cir. 2002). The record is devoid of evidence suggesting 13 that Joseph was disabled within the meaning of the ADA, or that she was ridiculed or harassed 14 because of an alleged disability. Nor does the record support a claim that Joseph was discriminated 15 against on the basis of her Haitian origin or that she was harassed or ridiculed on this basis. See 16 Brennan v. Metro. Opera Ass'n, Inc., 192 F.3d 310, 318 (2d Cir. 1999) ("A plaintiff must also 17 demonstrate that she was subjected to the hostility because of her membership in a protected class."). 18 Consequently, the magistrate judge did not err in rejecting this claim.
1 We have reviewed the parties' remaining arguments and find them to be moot, waived, or 2 without merit. See Norton v. Sam's Club, 145 F.3d 114, 117 (2d Cir. 1998). The judgment of the 3 district court is therefore AFFIRMED.
FOR THE COURT:
Catherine O'Hagan Wolfe, Clerk