09-2317-cv
D’Eredita v. ITT Industries
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
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 COURT ’ S L OCAL R ULE 32.1.1.
W HEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT , 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 .
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 17 th day of March, two thousand and ten.
5
6 PRESENT: RICHARD C. WESLEY,
7 DEBRA ANN LIVINGSTON,
8 Circuit Judges
9 RICHARD K. EATON,
10 Judge. *
11
12
13
14 STEVE D’EREDITA,
15
16 Plaintiff-Appellant,
17
18 -v.- 09-2317-cv
19
20 ITT CORPORATION,
21 GOULDS PUMPS, INC.,
22
23 Defendants-Appellees. **
24
25 FOR APPELLANT: CHRISTINA A. AGOLA, Christina A. Agola,
26 Attorneys and Counselors at Law, PLLC,
27 Rochester, NY.
28
29 FOR APPELLEES: JOSEPH S. BROWN, Hodgson Russ LLP,
30 Buffalo, NY.
31
*
The Honorable Richard K. Eaton, of the United States Court of
International Trade, sitting by designation.
**
The Clerk of the Court is respectfully directed to amend the official
caption in this action to conform with that of this order.
1
1 Appeal from the United States District Court for the
2 Western District of New York (Siragusa, J.).
3
4 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
5 AND DECREED that the judgment of the district court be
6 AFFIRMED.
7 Steve D’Eredita (“Appellant”) appeals from a judgment
8 of the United States District Court for the Western District
9 of New York (Siragusa, J.), which granted summary judgment
10 to the Defendants-Appellees (“ITT”) and dismissed the
11 Appellant’s complaint in its entirety. We assume the
12 parties’ familiarity with the underlying facts, the
13 procedural history, and the issues presented for review.
14 Appellant commenced this action by filing a complaint
15 on April 5, 2007, alleging causes of action for
16 discrimination and retaliation in violation of Title VII of
17 the Civil Rights Act of 1964 and the New York State Human
18 Rights Law, Executive Law Section 290. Specifically, he
19 alleges that ITT discriminated against him because of his
20 dyslexia. The parties have treated Appellant’s claims as
21 arising under the Americans with Disabilities Act, and the
22 district court did likewise. D’Eredita v. ITT Industries,
23 No. 07-cv-6185, 2009 WL 1161618, at *1 (W.D.N.Y. Apr. 29,
24 2009). We will do the same.
2
1 This Court reviews an order granting summary judgment
2 de novo and asks whether the district court properly
3 concluded that there were no genuine issues of material fact
4 and that the moving party was entitled to judgment as a
5 matter of law. See Miller v. Wolpoff & Abramson, L.L.P.,
6 321 F.3d 292, 300 (2d Cir. 2003). In determining whether
7 there are genuine issues of material fact, this Court is
8 “required to resolve all ambiguities and draw all
9 permissible factual inferences in favor of the party against
10 whom summary judgment is sought.” Terry v. Ashcroft, 336
11 F.3d 128, 137 (2d Cir. 2003) (internal quotation marks
12 omitted).
13 We are unpersuaded by Appellant’s argument that he was
14 capable of performing the essential job functions of a
15 Commercial Assembler without a reasonable accommodation. “A
16 court must give considerable deference to an employer’s
17 judgment regarding what functions are essential for service
18 in a particular position.” D’Amico v. City of New York, 132
19 F.3d 145, 151 (2d Cir. 1998). Because ITT has shown that
20 accuracy with speed is essential to the Commercial Assembler
21 position at its Auburn facility – and the record is replete
22 with evidence that Appellant was incapable of satisfying
23 that standard – the district court was correct to hold that
3
1 Appellant was unable to perform his essential job functions
2 without an accommodation as a matter of law.
3 Appellant next argues that he was capable of performing
4 the essential functions of his job with a reasonable
5 accommodation, and ITT neglected to extend such an
6 accommodation. “Discrimination in violation of the ADA
7 includes, inter alia, not making reasonable accommodations
8 to the known physical or mental limitations of an otherwise
9 qualified individual with a disability.” McBride v. BIC
10 Consumer Prods. Mfg. Co., Inc., 583 F.3d 92, 96 (2d Cir.
11 2009) (internal quotation marks omitted). Appellant’s
12 argument fails because his proposed accommodations are not
13 reasonable. See Fink v. New York City Dep’t of Personnel,
14 53 F.3d 565, 567 (2d Cir. 1995). Moreover, ITT did extend a
15 reasonable accommodation by permitting Appellant to bid on
16 non-assembly jobs while continuing his medical benefits in
17 the interim. See, e.g., Jay v. Intermet Wagner, Inc., 233
18 F.3d 1014, 1017 (7th Cir. 2000). A reasonable accommodation
19 “does not require the employer to provide every
20 accommodation the disabled employee may request, so long as
21 the accommodation provided is reasonable.” Fink, 53 F.3d at
22 567.
4
1 Finally, Appellant’s claim for retaliatory
2 discrimination is meritless. There is nothing to indicate
3 that ITT laid off Appellant due to his claims of
4 discrimination; instead, the evidence is overwhelming that
5 he was disciplined and transferred due to his persistent
6 errors on the assembly line. And, while he argues that
7 other employees who made similar mistakes were treated less
8 harshly, Appellant has failed to demonstrate that those
9 individuals were “similarly situated in all material
10 respects.” See Graham v. Long Island R.R., 230 F.3d 34, 39
11 (2d Cir. 2000) (internal quotation marks omitted). His
12 claim was thus rightly dismissed by the district court.
13 We have considered the Appellant’s remaining arguments
14 and find them to be without merit. For the foregoing
15 reasons, the judgment of the district court is hereby
16 AFFIRMED.
17
18 FOR THE COURT:
19 Catherine O’Hagan Wolfe, Clerk
20
21
5