BEST v. DUANE READE INC (2018)

SUMMARY ORDER

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).

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.