Cortes v. MTA New York City Transit

14-713-cv
Cortes v. MTA New York City Transit
UNITED STATES COURT OF APPEALS
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FOR THE SECOND CIRCUIT 2
3
August Term, 2014 4
5
(Submitted: February 19, 2015 Decided: September 4, 2015) 6
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Docket No. 14-713-cv 8
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JUAN E. CORTES, 11
Plaintiff-Appellant, 12
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v. 14
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MTA NEW YORK CITY TRANSIT, 16
Defendant-Appellee.*
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B e f o r e: WINTER, POOLER, and SACK, Circuit Judges. 21
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Appeal from a grant of summary judgment by the United States 23
District Court for the Eastern District of New York (Eric N. 24
Vitaliano, Judge) dismissing appellant’s claims under the 25
Americans with Disabilities Act. We clarify the effect of prior 26
administrative proceedings and arbitration awards in the dispute 27
leading to the litigation and affirm in part, vacate in part, and 28
remand. 29
Stewart Lee Karlin (Natalia 30
Kapitonova on the brief), The Law 31
Offices of Stewart Lee Karlin, 32
P.C., New York, NY, for Plaintiff- 33
Appellant. 34
* The Clerk of the Court is directed to amend the case caption accordingly.
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Robert Kenneth Drinan (Lewis S. 1
Finkleman and Kristen M. Nolan on 2
the brief), New York City Transit 3
Law Department, Brooklyn, NY, for 4
Defendant-Appellee. 5
6
WINTER, Circuit Judge: 7
Juan E. Cortes appeals from Judge Vitaliano’s grant of 8
summary judgment to MTA New York City Transit (“MTA”), dismissing 9
appellant’s claims under the Americans with Disabilities Act 10
(“ADA”), 42 U.S.C. §§ 12112-12117. Before bringing the present 11
action, appellant filed a substantially similar disability 12
discrimination claim with the New York State Division of Human 13
Rights (“NYSDHR”), which dismissed it. Based on Collins v. New 14
York City Transit Authority, 305 F.3d 113 (2d Cir. 2002), the 15
district court gave almost preclusive weight to the NYSDHR’s 16
dismissal of this claim. Because Collins addresses only the 17
effect of arbitration awards under a collective bargaining 18
agreement and does not apply to the decisions of state 19
administrative agencies, we vacate and remand the dismissal of 20
appellant’s disability discrimination claim. However, we affirm 21
the dismissal of appellant’s retaliation claim. 22
BACKGROUND 23
This is an appeal from a grant of summary judgment, and we 24
view the factual record in the light most favorable to appellant. 25
McGuinness v. Lincoln Hall, 263 F.3d 49, 52 (2d Cir. 2001). 26
27
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On July 11, 1994, MTA hired appellant as a train conductor. 1
He was promoted to passenger train operator in 1998. In late 2
2001, he became a work train (no passengers) operator. On 3
October 15, 2006, appellant had a dispute with a supervisor. On 4
that day or soon thereafter, he also injured his back. A 5
subsequent MRI showed injury to four lumbar discs, and 6
appellant’s personal doctor ordered him not to work from November 7
3, 2006 until January 7, 2007. 8
Appellant’s employment was governed by a collective 9
bargaining agreement (“CBA”) that required him, before returning 10
to work, to undergo a full physical evaluation at MTA’s Medical 11
Assessment Center (“MAC”) and to obtain a fit-for-duty 12
certificate. On January 7, 2007, in the course of the physical 13
evaluation, an EKG test revealed a potentially dangerous cardiac 14
abnormality. MAC doctors barred appellant from operating trains 15
until he had undergone complete cardiac testing. Because 16
appellant’s job was “safety sensitive,” the MTA determined that 17
there were no train-operator duties appellant could perform until 18
he was medically cleared. 19
Appellant’s doctor confirmed the abnormal EKG and referred 20
him to a cardiologist, Dr. Jane Levine. On March 5, 2007, 21
appellant submitted documentation to MAC showing that Dr. Levine 22
confirmed the coronary artery disease diagnosis and, as a result, 23
he could not perform train-operator duties. Dr. Levine 24
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recommended additional diagnostic procedures including a nuclear 1
stress test and a cardiac catheterization or, alternatively, a 2
cardiac CT angiogram. 3
On March 20, 2007, appellant met with MAC doctors again. 4
The stress test revealed coronary artery disease, but appellant 5
refused to undergo a catheterization. Appellant claimed that he 6
refused catheterization only because was waiting for his 7
insurer’s approval of an angiogram. Because appellant had not 8
provided the requisite documentation, MAC doctors left the work 9
restrictions in place and gave him until May 15, 2007 to submit 10
the results of an angiogram. Appellant failed to submit the 11
results by the deadline. Consequently, his work restrictions 12
were changed from temporary to permanent, which allowed him to be 13
reclassified to a position encompassing duties he was physically 14
fit to perform. 15
In late August 2007, appellant received the results of the 16
angiogram, which revealed no heart or artery disease. Appellant, 17
however, did not give these results to the MTA and missed a 18
September 25, 2007 appointment with MAC for a reclassification 19
evaluation. At a rescheduled appointment on November 28, 20
appellant produced the August diagnostic results. On March 31, 21
2008, based on the new information, the MTA doctors altered 22
appellant’s work restrictions to allow him to operate work (non- 23
passenger) trains, as he had done since 2001. 24
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On April 16, 2007, during the various medical examinations, 1
appellant’s counsel filed a complaint with the NYSDHR, claiming 2
the MTA had illegally discriminated against him under state and 3
federal law by failing to accommodate his disability, i.e., his 4
cardiac problem and neck injury. On January 23, 2009, the NYSDHR 5
issued a decision holding that appellant had not met his burden 6
of proof on the discrimination claim. The NYSDHR found, in 7
relevant part, the following facts. Appellant had not complied 8
with the CBA requirement that he obtain a fit-for-duty 9
certificate from MAC to return to work. Although the MTA was 10
ready to consider lifting appellant’s job restriction if further 11
testing ruled out a heart condition serious enough to endanger 12
passengers, appellant failed to submit the diagnostic results in 13
a timely manner. As soon as appellant submitted the results of 14
the further cardiac testing, the MTA modified his work 15
restrictions and allowed him to return to operating work trains. 16
Because appellant could not fulfill the essential duties of his 17
safety-sensitive position as passenger train operator without 18
medical clearance, the NYSDHR concluded that no reasonable 19
accommodation would have been possible. The NYSDHR further noted 20
that appellant never requested an accommodation for his 21
disability. The NYSDHR opinion became final on January 25, 2010. 22
The EEOC adopted its findings on June 10, 2012. 42 U.S.C. § 23
2000e-5(b) (“[T]he Commission shall accord substantial weight to 24
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the final findings and orders made by state or local authorities 1
. . . .”). Appellant did not challenge the NYSDHR’s decision 2
administratively or in state court. 3
On September 10, 2010, appellant commenced the present 4
action by filing a pro se complaint against the MTA in the 5
Eastern District of New York. The complaint asserted claims 6
under Title VII, the ADEA, and the ADA. 1 42 U.S.C. §§ 2000e to 7
2000e-17, 29 U.S.C. §§ 621-634, 42 U.S.C. §§ 12112-12117. The 8
only facts alleged in the complaint were that “[I] have never had 9
a medical appeal of my case according to our collective 10
bargaining agreement” and “I had a neck injury 12-26-1996 and 11
believe the Transit Authority is retaliating against me because 12
of this.” J. App’x at 13. The complaint did not assert 13
discrimination because of appellant’s back or cardiac conditions 14
or retaliation because of his NYSDHR complaint. 15
The MTA moved for summary judgment, submitting, inter alia, 16
a copy of the NYSDHR/EEOC order. In response to the MTA’s Rule 17
56.1 statement of material facts, appellant admitted that he had 18
filed an NYSDHR complaint alleging that the MTA discriminated 19
against him on the basis of his initial injury and his cardiac 20
condition. He also conceded that the NYSDHR had held a hearing 21
1 Cortes withdrew his ADEA and Title VII claims and proceeded only on his ADA
claim. The district court nevertheless addressed and granted summary judgment to the
defendants on Cortes’s Title VII claims. We therefore have addressed neither those
portions of the district court’s opinion nor Cortes’s Title VII claims on appeal.
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at which he was represented by counsel and gave sworn testimony. 1
He did not contest any of the NYSDHR’s findings of fact. 2
Appellant’s response to the MTA’s Rule 56.1 statement 3
further stated, for the first time, that the alleged 4
discrimination stemmed not only from an injury sustained at home 5
and a verbal confrontation with a superior, but also from his 6
cardiac condition and a neck injury suffered in 1996. The neck 7
injury pre-dated by many years his promotion from conductor to 8
train operator. He alleged that he was facing disciplinary 9
charges “for being injured.” J. App’x at 86. In addition, the 10
parties’ summary judgment briefing discussed additional acts of 11
alleged disability discrimination during the period after Cortes 12
returned to work, including restricted work assignments and 13
overtime. 14
The district court granted summary judgment to the MTA. The 15
court held that appellant’s claims were not precluded by virtue 16
of the NYSDHR’s prior administrative ruling based on the same 17
facts. With regard to appellant’s disability discrimination 18
claim, the court assigned substantial weight to the NYSDHR’s 19
findings of fact because they were the product of an “independent 20
and unbiased” hearing. J. App’x at 121 (quoting Collins, 305 21
F.3d at 115). Relying on this court’s opinion in Collins, 305 22
F.3d at 115, the court held that appellant “utterly fail[ed] to 23
confront much less carry” the burden of showing that the NYSDHR’s 24
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decision was wrong as a matter of fact or that its impartiality 1
was tainted. Instead of presenting the district court with “any 2
evidence related to his 2007-2008 claims that was not already 3
presented,” appellant “rehash[ed]” the same facts and arguments 4
he provided to the NYSDHR. Therefore, the court granted the MTA 5
summary judgment on the ADA discrimination claims. 6
Appellant’s briefing in the district court also claimed that 7
he was retaliated against for filing a complaint with the NYSDHR. 8
This claim “appear[ed] nowhere in his complaint.” J. App’x at 9
122. Nonetheless, because appellant filed the complaint pro se 10
and the court would have granted permission to amend it to add a 11
retaliation claim, the court deemed the retaliation claim as 12
properly before it. 13
However, the district court held that appellant failed to 14
make out a prima facie retaliation case. Although he had filed 15
an NYSDHR complaint, a protected activity of which the MTA had 16
knowledge, and he was put under work restrictions, an adverse 17
employment action, the district court held that appellant had not 18
shown a causal connection between the NYSDHR complaint and the 19
adverse employment action. It concluded that, because the NYSDHR 20
complaint was filed in April 2007 and the claimed retaliation 21
took place 14 months later, there was not even a “tenuous 22
temporal connection” to suggest retaliatory intent. J. App’x at 23
124. The court moreover found that even assuming appellant could 24
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show causation, the medical evidence clearly established that the 1
MTA had a non-retaliatory basis to place appellant on work 2
restrictions. Therefore, the MTA was granted judgment on the 3
retaliation claims as well. 4
DISCUSSION 5
We review the district court’s grant of summary judgment de 6
novo. See Jackson v. Fed. Express, 766 F.3d 189, 197 (2d Cir. 7
2014). Summary judgment is not appropriate unless there is “no 8
genuine issue as to any material fact” and “the moving party is 9
entitled to a judgment as a matter of law.” Anderson v. Liberty 10
Lobby, Inc., 477 U.S. 242, 247-48 (1986). To survive summary 11
judgment, the nonmovant must merely show that “reasonable minds 12
could differ as to the import of the evidence . . . in the 13
record.” R.B. Ventures, Ltd. v. Shane, 112 F.3d 54, 59 (2d Cir. 14
1997) (internal quotation marks omitted). 15
a) ADA Claim 16
Appellant argues that the district court misapplied Collins 17
and our caselaw regarding the weight to be given the NYSDHR 18
ruling. Collins concerns the effect of binding arbitration 19
pursuant to a collective bargaining agreement to which the 20
employer was a party on a Title VII claim. 2 The district court 21
2 We treat Collins and the other Title VII cases cited in
this opinion as applicable to Cortes’s ADA claim because “the ADA
explicitly incorporates all of the enforcement powers, remedies,
and procedures of Title VII.” Smith v. Perkins Bd. Of Educ., 708
F.3d 821, 827-28 (6th Cir. 2013); cf. Joseph V. Athanasopoulos,
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appears to have equated such binding arbitration to a decision of 1
a state administrative agency. We agree that this was error and 2
write to clarify the difference. 3
“ADA employment discrimination claims are subject to the 4
familiar burden-shifting analysis established by the Supreme 5
Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973): 6
A plaintiff must establish a prima facie case; the employer must 7
offer through the introduction of admissible evidence a 8
legitimate non-discriminatory reason for the discharge; and the 9
plaintiff must then produce evidence and carry the burden of 10
persuasion that the proffered reason is a pretext.” Sista v. CDC 11
Ixis N. Am., Inc., 445 F.3d 161, 169 (2d Cir. 2006) (citing 12
Heyman v. Queens Vill. Comm. for Mental Health for Jamaica Cmty. 13
Adolescent Program, 198 F.3d 68, 72 (2d Cir. 1999)). 14
A plaintiff establishes a prima facie case of discrimination 15
by demonstrating that he “suffered an adverse employment action 16
under circumstances giving rise to an inference of discriminatory 17
intent.” Maraschiello v. City of Buffalo Police Dep’t, 709 F.3d 18
87, 92 (2d Cir. 2013) (internal quotation marks and ellipses 19
omitted). Once the plaintiff shows this, the burden shifts to 20
the employer to articulate “some legitimate, nondiscriminatory 21
reason for the adverse employment action.” Id. (internal 22
quotation marks omitted). 23
648 F.3d 58, 64 (2d Cir. 2011) (“[W]e are aware of no distinction
between the [ADA and Title VII] that would require affording a
state court judgment a different preclusive effect.”).
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We will assume, without deciding, that appellant established 1
a prima facie case by alleging that he was not allowed to return 2
to work after being injured as well as alleging discriminatory 3
treatment upon his initial return to work. 3 With respect to the 4
first issue, the MTA countered with the NYSDHR’s findings of fact 5
as evidence of a legitimate non-discriminatory reason for barring 6
appellant from working. The burden then shifted to appellant to 7
produce evidence showing that the various reasons relied upon by 8
the NYSDHR were a pretext. In response, appellant made arguments 9
substantially similar to those he made in proceedings before the 10
NYSDHR. 11
A claimant may bring federal ADA and Title VII claims even 12
if they have been rejected in a state administrative proceeding. 13
See Joseph v. Athanasopoulos, 648 F.3d 58, 62, 64 n.6 (2d Cir. 14
2011); see also Staats v. Cty. of Sawyer, 220 F.3d 511, 514 (7th 15
Cir. 2000); Thomas v. Contoocook Valley Sch. Dist., 150 F.3d 31, 16
39 n.5 (1st Cir. 1998) (The ADA incorporates Title VII deferral 17
procedures; therefore, Title VII precedents “apply with equal 18
force in the ADA context”). 19
3 Despite the parties’ briefing on this issue, the district court did not
consider Cortes’s allegations of disability discrimination upon his return to work in
the form of restricted work assignments and overtime, instead apparently considering
these contentions relevant only to appellant’s retaliation claim. Although we take no
position on the merits of these post-return allegations or whether they are properly
exhausted, the district court is instructed to consider them on remand as part of its
consideration of appellant’s disability discrimination claim.
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Because we do not give preclusive effect to state agency 1
decisions unless they have been reviewed in a state court 2
proceeding, see Nestor v. Pratt & Whitney, 466 F.3d 65, 73 (2d 3
Cir. 2006) (citing Univ. of Tenn. v. Elliott, 478 U.S. 788 4
(1986)), an unreviewed NYSDHR decision is not binding on a trier 5
of fact in an ADA action. The unreviewed findings of an agency 6
are, however, admissible as evidence under Fed. R. Evid. 7
803(8)(A)(iii) as “factual findings from a legally authorized 8
investigation” by a public office. See also Arroyo v. WestLB 9
Admin., Inc., 54 F. Supp. 2d 224, 230 (S.D.N.Y. 1999), aff’d, 213 10
F.3d 625 (2d Cir. 2000); Henry v. Daytop Vill., Inc., 42 F.3d 89, 11
96 (2d Cir. 1994). 12
Discrimination claims are also often brought in federal 13
court after being submitted to binding arbitration pursuant to a 14
collective bargaining agreement. In that context, we have held 15
that “a decision of an independent and unbiased arbitrator based 16
on substantial evidence after a fair hearing . . . has probative 17
weight regarding the requisite causal link between an employee’s 18
termination and the employer’s illegal motive.” Collins, 305 19
F.3d at 115. When an employee submits his claim of unlawful 20
treatment to arbitration, “a decision by an independent tribunal 21
that is not itself subject to a claim of bias will attenuate a 22
plaintiff’s proof of the requisite causal link.” Id. at 119. 23
Therefore, when an arbitrator’s “decision follows an evidentiary 24
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hearing and is based on substantial evidence, the Title VII 1
plaintiff, to survive a motion for summary judgment, must present 2
strong evidence that the decision was wrong as a matter of fact 3
–- e.g. new evidence not before the tribunal –- or that the 4
impartiality of the proceeding was somehow compromised.” Id. 5
The district court appears to have equated binding 6
arbitration and judicially unreviewed agency findings. It held 7
that, based upon Collins, appellant “utterly fail[ed] to confront 8
much less carry” the burden of showing that the NYSDHR’s decision 9
was factually wrong or biased. J. App’x at 121. Although it is 10
not clear that application of the distinction between binding 11
arbitration under a collective bargaining agreement and an agency 12
decision would alter the outcome in this particular case, we 13
expressly reject the view that Collins applies to agency 14
decisions. 15
In Collins, the appellant had challenged his termination by 16
his employer through his collective bargaining agreement’s multi- 17
step grievance procedure ending in binding arbitration. 305 F.3d 18
at 115-16. His grievance claimed racial discrimination and 19
retaliation. Id. The arbitration board upheld the termination. 20
Id. at 117. In Collins, we held that the appellant failed to 21
make out a prima facie case under Title VII because he did not 22
show a causal link between the employer’s alleged bias and his 23
termination. Id. at 119. 24
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Collins had “challenged the Transit Authority's decision to 1
fire him and was finally discharged only after the arbitration 2
board made an independent inquiry, including the taking of 3
evidence.” Id. at 118. The arbitration board was a “fully 4
independent and unbiased decisionmaker.” Id. at 119. We further 5
noted that “the CBA established [the arbitration] process both to 6
deprive the Transit Authority of the power to terminate an 7
employee unilaterally and to ensure fair and probatively sound 8
decisions for aggrieved employees.” Id. “Appellant's 9
termination occurred, therefore, only after a decision, based on 10
substantial evidence, of an undisputedly independent, neutral, 11
and unbiased adjudicator that had the power to prevent the 12
termination. This fact is highly probative of the absence of 13
discriminatory intent in that termination.” Id. 14
In Collins, therefore, we held only that while “a negative 15
arbitration decision rendered under a CBA does not preclude a 16
Title VII action by a discharged employee[,] . . . a decision by 17
an independent tribunal that is not itself subject to a claim of 18
bias will attenuate a plaintiff's proof of the requisite causal 19
link.” Id. (internal citation omitted). Under such 20
circumstances, when an arbitral decision “follows an evidentiary 21
hearing and is based on substantial evidence, the Title VII 22
plaintiff, to survive a motion for summary judgment, must present 23
strong evidence that the decision was wrong as a matter of fact 24
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-- e.g. new evidence not before the tribunal -- or that the 1
impartiality of the proceeding was somehow compromised.” Id. 2
We note here that Collins is applicable only to decisions of 3
a tribunal to which an employer has contractually surrendered the 4
final power to discipline or discharge employees. The analysis 5
Collins requires is the same as that required in all Title VII or 6
ADA cases regarding a causal connection between the prohibited 7
motive and the adverse employment action. If a company’s Vice- 8
President for sales is discharged, the bias of a janitorial 9
foreman will be irrelevant because the foreman is not the 10
decision-maker regarding the Vice-President’s employment. 11
Similarly, when the final decision on discipline or discharge is 12
made by an arbitrator whose lack of bias is conceded, enough 13
evidence linking the employer’s motive and the arbitration 14
decision must be proffered to allow a reasonable trier of fact to 15
find that the decision was affected by acts resulting from that 16
motive. In this case, appellant did not submit to binding 17
arbitration under his CBA. Therefore, appellant was not required 18
to meet the burden established by Collins for Title VII 19
plaintiffs to survive a motion for summary judgment or at trial. 20
Again, the NYSDHR’s findings are admissible evidence, and we 21
hold only that consideration of them on a motion for summary 22
judgment, or, if appropriate, at a trial, is not governed by 23
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Collins. We of course intimate no view on the outcome of further 1
proceedings on summary judgment. 2
b) Retaliation Claim 3
On the retaliation claim, appellant did not make out a prima 4
facie case. While he participated in a protected activity known 5
to the MTA and suffered an adverse employment action, we agree 6
with the district court that he failed to proffer enough evidence 7
to support a finding of a causal connection between the protected 8
activity and the adverse employment action. See Gorman-Bakos v. 9
Cornell Coop. Extension of Schenectady Cty., 252 F.3d 545, 554 10
(2d Cir. 2001) (collecting cases). The filing of the NYSDHR 11
complaint in April 2007 is too remote from the alleged adverse 12
employment action in June 2008 to support by itself an inference 13
of retaliation. The record indicates no other retaliatory 14
behavior. Indeed, appellant was allowed to return to work after 15
he produced the appropriate diagnostic results. 4 Thus, we affirm 16
the district court’s dismissal of appellant’s retaliation claim. 17
CONCLUSION 18
For the foregoing reasons, the judgment of the district 19
court is affirmed as to appellant’s retaliation claims, but the 20
dismissal of the ADA discrimination claims is vacated and 21
remanded. 22
4 Appellant does not argue that those results entitled him to return to
passenger-train operation.
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