15-3935
D’Eredita v. ITT Water Technology
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 26th day of January, two thousand seventeen.
PRESENT:
ROBERT A. KATZMANN,
Chief Judge,
RALPH K. WINTER,
GUIDO CALABRESI,
Circuit Judges.
STEPHEN M. D’EREDITA,
Plaintiff-Appellant,
v. No. 15-3935
ITT WATER TECHNOLOGY, INC.,*
Defendant-Appellee,
For Plaintiff-Appellant: Ryan C. Woodworth, The Woodworth Law
Firm, Rochester, NY.
For Defendant-Appellee: Joseph Scott Brown, Hodgson Russ LLP,
Buffalo, NY.
*
The Clerk of Court is respectfully directed to amend the caption to conform to the caption above.
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Appeal from a judgment of the United States District Court for the Western District of
New York (Siragusa, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.
Plaintiff-Appellant Stephen M. D’Eredita appeals from the order and opinion of the
United States District Court for the Western District of New York (Siragusa, J.) entered on
November 6, 2015, granting the motion for summary judgment filed by Defendant-Appellee ITT
Water Technology, Inc. (“ITT”) and dismissing D’Eredita’s complaint on all counts. See
D’Eredita v. ITT Corp., No. 11-CV-6575-CJS-MWP, 2015 WL 6801828 (W.D.N.Y. Nov. 5,
2015). We assume the parties’ familiarity with the underlying facts, procedural history, and
issues on appeal.
We review the district court’s grant of summary judgment de novo. See Jackson v. Fed.
Express, 766 F.3d 189, 197 (2d Cir. 2014). Summary judgment may be granted only if “there is
‘no genuine issue as to any material fact’ and ‘the moving party is entitled to a judgment as a
matter of law.’” Cortes v. MTA N.Y. City Transit, 802 F.3d 226, 230 (2d Cir. 2015) (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986)); see generally Fed. R. Civ. P.
56(a).
Plaintiff-Appellant has brought claims against ITT alleging unlawful discrimination and
retaliation in violation of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq.
(“ADA”), and the New York State Human Rights Law, N.Y. Exec. Law § 290 et seq.
(“NYSHRL”). D’Eredita alleges that ITT refused to accommodate his dyslexia disability,
terminated his employment as a result of his disability, and retaliated against him for filing an
earlier 2004 charge with the Equal Employment Opportunity Commission (“EEOC”) charging
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ITT with unlawful discrimination and retaliation in violation of the ADA. That EEOC charge led
to D’Eredita’s first suit against ITT, which was resolved in ITT’s favor at summary judgment by
Judge Siragusa in 2009, see D’Eredita v. ITT Indus., No. 07-CV-6185-CJS, 2009 WL 1161618
(W.D.N.Y. Apr. 29, 2009), and affirmed by summary order by this Court, see D’Eredita v. ITT
Corp., 370 F. App’x 139 (2d Cir. 2010).
D’Eredita here raises three issues on appeal, none of which warrants overturning the
district court’s grant of summary judgment for ITT. D’Eredita’s first argument is that, pursuant
to U.S. Airways, Inc. v. Barnett, 535 U.S. 391 (2002), ITT should have reasonably
accommodated D’Eredita by transferring him to one of several vacant positions to which he
applied, notwithstanding the fact that ITT’s labor agreement required the company to fill vacant
spots with the senior most qualified applicant, a status which D’Eredita did not possess for any
of the positions. Barnett places the burden squarely on the plaintiff to demonstrate that “special
circumstances” warrant a departure from an established seniority policy. Id. at 405–06 (“[T]he
plaintiff must bear the burden of showing special circumstances that make an exception from the
seniority system reasonable in the particular case.”). Barnett provided several illustrative
examples of how a plaintiff might satisfy his burden. For instance, the plaintiff could provide
evidence to show that the employer, “having retained the right to change the seniority system
unilaterally, exercises that right fairly frequently, reducing employee expectations that the
system will be followed.” Id. at 405. Alternatively, the “plaintiff might show that the system
already contains exceptions such that, in the circumstances, one further exception is unlikely to
matter.” Id.
Here, the record below indicates a single case in which there may have been an exception
to the collective bargaining agreement’s seniority system. Specifically, Job No. 1088 was
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awarded to the candidate with the second greatest seniority. However, ITT’s labor agreement
awards positions to the senior most qualified employee who is physically able to do the job, and
so it is not clear that ITT awarded the position in a manner that constituted an exception to its
most qualified seniority system, since the record does not indicate whether the senior most
candidate was equally qualified and also physically able to do the job. Regardless, however, a
single exception as provided here falls short of establishing a genuine issue of material fact as to
whether special circumstances may have existed. D’Eredita has not met his burden under
Barnett, and so summary judgment was properly granted to ITT below.
Second, on appeal D’Eredita argues that the district court wrongly dismissed his claim
that ITT retaliated against him during his suspension by limiting his interaction with the
company and its management after D’Eredita visited the personal residence of a human
resources director unannounced and uninvited, and also by later discharging him. ITT has
provided “legitimate, nonretaliatory” reasons for both its October 21, 2009, suspension with
intent of discharge and the limits ITT placed on D’Eredita’s access to company facilities and
personnel on April 1, 2010. Cifra v. G.E. Co., 252 F.3d 205, 216 (2d Cir. 2001), and D’Eredita
has failed to provide sufficient evidence to establish that “a causal connection exists between the
protected activity and the adverse action, i.e., that a retaliatory motive played a part in the
adverse employment action.” Id. (quoting Sumner v. United States Postal Serv., 899 F.2d 203,
208–09 (2d Cir. 1990)). Because D’Eredita has not provided sufficient evidence to establish a
genuine issue of material fact as to whether ITT’s reasons were “merely a pretext for
impermissible retaliation,” id., we uphold the district court’s dismissal of his retaliation claim.
D’Eredita also argues that the district court wrongly held that his claims arising under the
ADA were time barred for failure to bring suit within 300 days of filing his EEOC charge, as is
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required under federal law. See 42 U.S.C. § 2000e-5(e)(1). Although the district court held that
D’Eredita’s ADA claims were time barred, “[s]ince NYSHRL claims are analytically identical to
the ADA,” the district court exercised supplemental jurisdiction and considered “D’Eredita’s
state-based discrimination and retaliation claims.” D’Eredita, 2015 WL 6801828, at *5; see also
Reed v. A.W. Lawrence & Co., 95 F.3d 1170, 1177 (2d Cir. 1996). Because we uphold the
district court’s disposition on the merits of D’Eredita’s substantively identical NYSHRL
reasonable accommodation and retaliation claims, we need not decide whether the court properly
concluded that D’Eredita’s ADA reasonable accommodation and retaliation claims were in fact
time barred.
We have considered all of D’Eredita’s contentions on appeal and have found in them no
basis for reversal. For the reasons stated herein, the judgment of the district court is
AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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