22-2547-cv
Bost v. Nassau County Department of Social Services
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 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 29th day of September, two thousand twenty-three.
PRESENT:
John M. Walker, Jr.,
Denny Chin,
Alison J. Nathan,
Circuit Judges.
_____________________________________
Simona Bost,
Plaintiff-Appellant,
v. 22-2547
Nassau County Department of Social
Services, Nassau County Office of
Equal Employment Opportunity,
Nassau County,
Defendants-Appellees.
_____________________________________
FOR PLAINTIFF-APPELLANT: Simona Bost, pro se,
Hempstead, NY.
FOR DEFENDANTS-APPELLEES: Robert F. Van der Waag,
Ian Bergstrom, Deputy
County Attorneys, for
Thomas A. Adams,
Nassau County
Attorney, Mineola, NY.
Appeal from a judgment of the United States District Court for the Eastern
District of New York (Gary R. Brown, Judge; Arlene R. Lindsay, Magistrate Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court is
AFFIRMED.
Appellant Simona Bost, proceeding pro se, sued the Nassau County
Department of Social Services (DSS) and Equal Employment Office (EEO) for
failing to provide reasonable accommodations for her diabetes-related fatigue
under the Americans with Disabilities Act (ADA) and for retaliating against her
for filing an EEO complaint and requesting an earlier accommodation. She also
brought a failure-to-accommodate claim under the New York State Human Rights
Law (NYSHRL). All of these claims were based on the alleged denial of Bost’s
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request to work weekend overtime hours. Adopting a magistrate judge’s report
and recommendation, the district court granted summary judgment to the
defendants, reasoning that Bost failed to make out a prima facie failure-to-
accommodate claim because she did not show that she had a disability, that she
was able to perform the essential functions of her job, or that DSS denied her a
reasonable accommodation. The court also reasoned that Bost failed to make a
prima facie case for retaliation because she failed to show both that she was
actually denied overtime and that there was a causal relationship between any
such denial and her earlier complaint and request. Bost timely appealed. We
assume the parties’ familiarity with the remaining underlying facts, the procedural
history, and the issues on appeal.
We review a grant of summary judgment de novo. Garcia v. Hartford Police
Dep’t, 706 F.3d 120, 126 (2d Cir. 2013) (per curiam). Summary judgment is
appropriate only if, after resolving all ambiguities and drawing all inferences
against the moving party, “there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.” Id. (quoting Fed. R. Civ.
P. 56(a)). “An issue of fact is genuine if the evidence is such that a reasonable jury
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could return a verdict for the nonmoving party.” Jeffreys v. City of New York, 426
F.3d 549, 553 (2d Cir. 2005) (internal quotation marks omitted). Because Bost
proceeds pro se, we liberally construe her filings to raise the strongest arguments
they suggest. See Publicola v. Lomenzo, 54 F.4th 108, 111 (2d Cir. 2022) (per
curiam).
As an initial matter, Bost does not address the NYSHRL claim in her brief.
We therefore consider that claim to be abandoned. See Moates v. Barkley, 147 F.3d
207, 209 (2d Cir. 1998) (per curiam). On the merits of the remaining federal
claims, we agree with the district court that the defendants were entitled to
summary judgment, although we reach only Bost’s failure to show that DSS
denied her overtime request.
Bost’s failure-to-accommodate and retaliation claims under the ADA are
evaluated under the familiar McDonnell Douglas burden-shifting framework. See
McMillan v. City of New York, 711 F.3d 120, 125 (2d Cir. 2013) (citing McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973)). To establish a prima facie failure-to-
accommodate claim, a plaintiff must demonstrate the following:
(1) plaintiff is a person with a disability under the meaning of the
ADA; (2) an employer covered by the statute had notice of h[er]
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disability; (3) with reasonable accommodation, plaintiff could
perform the essential functions of the job at issue; and (4) the
employer has refused to make such accommodations.
Id. at 125–26 (citation omitted).
Here, even if we assume that Bost had a disability within the meaning of the
ADA, and that she would have been able to perform the essential functions of her
job with an accommodation, we agree with the district court that she failed to
demonstrate that DSS denied her a reasonable accommodation. The ADA
“envisions an interactive process by which employers and employees work
together to assess whether an employee’s disability can be reasonably
accommodated.” Tafolla v. Heilig, No. 21-2327, ___ F.4th ___, 2023 WL 5313520,
at *7 (2d Cir. Aug. 18, 2023) (cleaned up). And “where a breakdown in interactive
process was manifestly the employee’s fault,” a failure-to-accommodate claim
fails. Id. (cleaned up).
Bost initiated the interactive process by requesting overtime and DSS
responded by requesting a doctor’s note stating that she could work early
mornings on Saturdays despite receiving an earlier accommodation to begin work
late during the week due to insomnia and fatigue. Bost submitted a doctor’s note,
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but it merely stated that she could work overtime. DSS requested further proof
and gave Bost six weeks to respond, allowing Bost to work overtime on Saturday
mornings in the meantime. Bost never responded. Sometime during these six
weeks, she no longer wished to receive overtime, and requested to be transferred
out of the Daycare unit to a less onerous position in February 2017. After
transferring her to a different Daycare unit and offering to transfer her to the
Telephone unit in late 2017, DSS eventually transferred her out of Daycare in
January 2019.
By failing to respond after DSS requested additional medical documentation,
Bost refused to participate in the process of determining the precise limitations
resulting from her disability. It was she who caused the interactive process to
stall and break down. We therefore conclude, on this record, that a reasonable
jury could not find that Bost was denied a reasonable accommodation.
Bost’s retaliation claim fails as well. To establish a prima facie case of
retaliation under the ADA, a plaintiff must show “(1) the employee was engaged
in an activity protected by the ADA, (2) the employer was aware of that activity,
(3) an employment action adverse to the plaintiff occurred, and (4) there existed a
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causal connection between the protected activity and the adverse employment
action.” Sarno v. Douglas Elliman-Gibbons & Ives, Inc., 183 F.3d 155, 159 (2d Cir.
1999). Bost argues that DSS denied her overtime request in retaliation for her
EEO complaint and her earlier request for an altered work schedule during the
week. However, as explained above, she has not shown that DSS denied her
overtime request. Rather, Bost withdrew from the interactive process whereby
DSS was evaluating and responding to the request. Bost thus lacks the adverse
employment action necessary for her retaliation claim.
We have considered Bost’s remaining arguments and find them to be
without merit. Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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Bost v. Nassau County Department of Social Services
Combined Opinion