13‐1367‐cv Widomski v. State Univ. of N.Y. (SUNY) at Orange, AKA Orange Cnty. Cmty. Coll.

13‐1367‐cv Widomski v. State Univ. of N.Y. (SUNY) at Orange, AKA Orange Cnty. Cmty. Coll.

In the United States Court of Appeals For the Second Circuit

August Term, 2013 No. 13‐1367‐cv

CHESTER WIDOMSKI, Plaintiff‐Appellant,

v.

STATE UNIVERSITY OF NEW YORK (SUNY) AT ORANGE, AKA ORANGE COUNTY COMMUNITY COLLEGE, Defendant‐Appellee.

Appeal from the United States District Court for the Southern District of New York. No. 09‐cv‐7517 ― Kenneth M. Karas, Judge.

SUBMITTED: MARCH 20, 2014 DECIDED: APRIL 8, 2014

Before: STRAUB, SACK, and LOHIER, Circuit Judges.

WIDOMSKI V. SUNY

Appeal from an order of the United States District Court for the Southern District of New York (Kenneth M. Karas, Judge). We hold that Appellant failed to raise a genuine dispute of fact as to whether Appellee perceived him as being substantially limited in the major life activity of working, and failed to raise a genuine dispute of fact as to whether Appellee’s explanation for bringing disciplinary proceedings against him was pretext for retaliation. Accordingly, we AFFIRM the judgment of the District Court.

MICHAEL H. SUSSMAN, Sussman & Watkins, Goshen, New York, for Chester Widomski.

HYUN CHIN KIM, Senior Assistant County Attorney, Goshen, New York, for the State University of New York (SUNY) at Orange, AKA Orange County Community College.

PER CURIAM:

Chester Widomski appeals from the District Court’s grant of

summary judgment in favor of Defendant‐Appellee the State

University of New York (SUNY) at Orange, also known as Orange

County Community College (“OCCC”), on his claims of

discrimination on the basis of a “perceived disability” and

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retaliation in violation of Title II of the Americans with Disabilities

Act of 1990 (“ADA”),

et seq.

BACKGROUND

Widomski enrolled as a full‐time student in OCCC’s two‐year

Medical Laboratory Technology (“MLT”) program in the fall of 2007

in order to become a licensed medical laboratory technician. In fall

2008, Widomski began the clinical portion of the program, a course

called Clinical Training I. Widomski was assigned to the Catskill

Regional Medical Center, where Rebecca Sander, an employee of the

Center (and not OCCC), served as his proctor. As part of the course,

students were required to submit weekly clinical summary reports

signed by their proctors accompanied by weekly narratives relating

to the work performed.

On his third day at the Center, Sander told Widomski that he

would not be allowed to draw blood from patients because his

hands shook too much. She expressed this view to Rosamaria

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Contarino, the chair of OCCC’s Laboratory Technology Department,

and Contarino agreed. Although Widomski admits that his hands

sometimes shake when he is nervous, he denies any physical

impairment or disability of the hands.

On October 7, 2008, Contarino met with Widomski to discuss

the fact that Widomski had not submitted the required weekly

summary reports and narratives. At the meeting, Contarino and

Widomski executed an agreement providing that Widomski would

submit the required reports and narratives by October 9, 2008, to

avoid receiving an “F” in the course. Contarino also informed

Widomski that he would not be permitted to participate in the

phlebotomy portion of the course because of his shaky hands.

Contarino informed Widomski that he remained qualified to

graduate from the MLT program and thereafter obtain employment

as a laboratory technician, but he would not be permitted to receive

a MLT license that would permit him to work in a hospital or in any

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other setting where he would need to draw blood from patients. On

October 8, 2008, Widomski submitted hematology and urinalysis

summary reports to Contarino in accordance with their agreement

of the previous day.

On October 27, 2008, Widomski’s counsel sent a letter to

Contarino asking that she allow Widomski to complete the

phlebotomy rotation and denying that he had a disability of the

hands.

On the same day, Contarino again reminded Widomski to

submit outstanding summary reports. Widomski sent additional

hematology and urinalysis forms on November 4, 2008. These forms

were almost identical to the forms Widomski submitted on October

8. Widomski’s explanation for the similarity is that “Sander . . .

refuse[d] to sign new forms, so [he] changed the date of his

previously‐submitted . . . forms to October 29, 2008, which is the

date Sander filled ‘yes’ and ‘Y’ in the competency columns on each

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respectively.” Sanders testified to the contrary that she did not write

the “yes” and “Y” for competency.

On November 5, 2008, Contarino initiated disciplinary

proceedings against Widomski by referring charges of document

falsification to the Vice President of Student Services, Paul Broadie,

II. Broadie referred the matter to a Board of Inquiry. Following a

formal hearing before the Board of Inquiry, and its determination

that he had falsified the documents, Widomski was expelled from

the MLT program.

Widomski then brought this lawsuit in the United States

District Court for the Southern District of New York. The District

Court granted summary judgment to OCCC. It concluded that

Widomski had failed to establish that OCCC perceived his shaking

hands to substantially limit a major life activity, and granted the

motion for summary judgment as to the ADA discrimination claim.

Widomski v. State Univ. of N.Y. (SUNY) at Orange,

,

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543‐45 (S.D.N.Y. 2013) (citing Sutton v. United Air Lines,

,

490‐91, 493 (1999)).

Regarding his retaliation claim, Widomski characterized the

protected activity as his attorney’s October 27, 2008, letter, and the

retaliation as Contarino’s referral of the disciplinary matter to

Broadie.

. The District Court concluded that Widomski

established his prima facie case, but that Contarino’s good faith

belief that he had falsified documents was a legitimate, non‐

discriminatory reason for the disciplinary referral.

at 549‐50.

Because Widomski had not presented any evidence that OCCC’s

“explanation [wa]s a false pretext for a retaliatory motive,” the court

granted summary judgment for OCCC on the retaliation claim as

well.

.

Widomski appeals.

DISCUSSION

We review a district court’s grant of summary judgment de

novo. Gorzynski v. JetBlue Airways Corp.,

(2d Cir.

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2010). We conclude that the definition of “disability” in Section

12102 of the ADA applies to all Titles of the ADA. We also conclude

that the District Court properly granted summary judgment, and

reject Widomski’s arguments that genuine factual disputes exist as

to whether OCCC perceived him as having a disability within the

meaning of the ADA and as to whether OCCC’s articulated reason

for initiating disciplinary proceedings against him was a pretext for

retaliation.

I. The definition of “disability” set forth in Section 12102 of the ADA applies to all Titles of the ADA.

The District Court’s holding that the definition of “disability”

in the ADA applies to Title II of the ADA is correct. Section 12102 of

the ADA provides that “[a]s used in this chapter,” “[t]he term

‘disability’ means, with respect to an individual—(A) a physical or

mental impairment that substantially limits one or more of the major

life activities of such individual; (B) a record of such an impairment;

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or (C) being regarded as having such an impairment.”

(2) (2006).

The “[a]s used in this chapter” language unambiguously

incorporates the definition of disability into all Titles of the ADA.

Section 12102 is contained in Chapter 126 of Title 42 of the United

States Code. Titles I through IV of the ADA are codified as

subchapters of Chapter 126. A definition that applies to “this

chapter” applies to that chapter’s subchapters.

Indeed, the Supreme Court has expressly stated that the

ADA’s definition of disability applies to all Titles of the Act, and is

not meant to be applied only to Title I: “[T]he fact that the Act’s

definition of ‘disability’ applies not only to Title I of the Act, which

deals with employment, but also to the other portions of the Act,

which deal with subjects such as public transportation and privately

provided public accommodations demonstrates that the definition is

intended to cover individuals with disabling impairments regardless

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of whether the individuals have any connection to a workplace.”1

Toyota Motor Mfg., Ky., Inc. v. Williams,

(2002)

(internal citations omitted), superseded by statute, ADA Amendments

Act of 2008, Pub. L. No. 110‐325,

(2008). If the statute’s

text and the Supreme Court’s holding leave any doubt, we have said

that the “definition of ‘disability’ applies to all of the ADA.” See

Henrietta D. v. Bloomberg,

, 273 n.7 (2d Cir. 2003) (internal

quotation marks omitted).

As the District Court noted in its opinion below, a line of cases

from the United States District Court for the Northern District of

New York holds that the definition of “disability” in Section 12102

applies only to Title I of the ADA. See Lee v. City of Syracuse,

(N.D.N.Y. 2009); Farid v. Bouey,

, 327 n.19 (N.D.N.Y. 2008); see also Jones v. Fischer, No. 9:10‐CV‐

1331 (GLS/ATB),

, at *7 (N.D.N.Y. May 1, 2012)

1 The relevant events in this case took place prior to the effective date of the ADA Amendments Act of 2008, Pub. L. 110‐325,

(2008), which, among other things, modified the definition of a “perceived disability.”

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(adopting without comment narrower definition of “disability” from

Farid), adopted by

(N.D.N.Y. May 23, 2012);

Silvagnoli v. Fischer, No. 9:07‐CV‐561 (NAM/GJD),

,

at *16 (N.D.N.Y. Mar. 1, 2010) (same), adopted by

(N.D.N.Y. Mar. 22, 2010). The District Court rejected the suggestion

that the definition of disability applies only to Title I of the ADA, as

do we.

II. Widomski failed to demonstrate that OCCC perceived him as having an impairment that substantially limited a major life activity.

To establish discrimination based on a perceived disability

under the version of the ADA in effect during the period at issue in

this case, a plaintiff must show that he is regarded as having an

impairment that “substantially limits” a major life activity. See

Sutton v. United Air Lines, Inc.,

(1999), superseded by

statute, ADA Amendments Act of 2008, Pub. L. No. 110‐325,

(2008). Widomski argues that the statements and actions of

Sander, who is not an employee of OCCC, and Contarino, the

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Department Chair of OCCC’s MLT Department, demonstrate that

OCCC perceived him as having a shaky hands impairment that

“substantially limits” him in the major life activity of working—in

other words, that renders him “unable to work in a broad class of

jobs.”

. Specifically, Widomski points to Sander’s decision

to prevent him from performing phlebotomy procedures during his

clinical rotation at her medical clinic, and Contarino’s support for

Sander’s decision.

There is no record evidence that Contarino or any other

OCCC employee believed that Widomski’s shaky hands excluded

him from a broad class of jobs. To the contrary, Contarino told

Widomski that he would still be employable as a medical technician,

and testified that many hospitals and clinics hire medical technicians

for jobs that do not require phlebotomy. Widomski fails on this

record to raise a genuine dispute of fact as to whether OCCC

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perceived him as being substantially limited in the major life activity

of working and thus as having a disability under the ADA.2

III. Widomski failed to demonstrate that OCCC’s explanation for its decision to bring disciplinary proceedings against him was pretext for retaliation.

“Claims for retaliation [under the ADA] are analyzed under

the same burden‐shifting framework established for Title VII cases.”

Treglia v. Town of Manlius,

(2d Cir. 2002). For

substantially the reasons set forth in the District Court’s Opinion

and Order entered March 21, 2013, we agree that Widomski has not

produced evidence that would permit a reasonable factfinder to

conclude that the initiation of disciplinary proceedings against him

was a pretext for retaliation. Contarino’s good faith belief that

Widomski fabricated two assignments constitutes a legitimate, non‐

retaliatory reason for bringing a disciplinary action against him. The

burden having shifted back to Widomski to provide competent

2 We decline to address Widomski’s argument, raised for the first time on appeal, that OCCC regarded him as substantially limited in the major life activity of learning. See Allianz Ins. Co. v. Lerner,

(2d Cir. 2005).

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evidence of pretext, Widomski fails to raise a genuine factual

dispute as to whether this explanation is false or otherwise

pretextual. See Weinstock v. Columbia Univ.,

(2d Cir.

2000).

CONCLUSION

We have considered Widomski’s remaining arguments and

conclude that they are without merit. For the foregoing reasons, the

judgment of the District Court is AFFIRMED.

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