13‐2646‐cv Holt v. Crossmark

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 COURTʹS 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 ʺSUMMARY ORDERʺ). 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 25th day of September, two thousand fourteen.

PRESENT: PIERRE N. LEVAL, DENNY CHIN, SUSAN L. CARNEY, Circuit Judges. ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x

BILLIE L. HOLT, Plaintiff‐Appellant,

v. 13‐2646‐cv

SAMS CLUB, CROSSMARK, Defendants‐Appellees.

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FOR PLAINTIFF‐APPELLANT: Billie L. Holt, pro se, Rochester, NY.

FOR DEFENDANT‐APPELLEE Ginger Donna Schröder (Nicole M. Middleton, SAMʹS EAST, INC.: on the brief), Schröder, Joseph & Associates, LLP, Buffalo, NY.

FOR DEFENDANT‐APPELLEE Aaron Warshaw, Ogletree, Deakins, Nash, CROSSMARK, INC.: Smoak & Stewart, P.C., New York, NY.

Appeal from a judgment of the United States District Court for the

Western District of New York (Telesca, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment is AFFIRMED.

Plaintiff‐appellant Billie Holt, proceeding pro se, appeals from the district

courtʹs judgment entered June 28, 2013 dismissing her complaint against defendants‐

appellees CROSSMARK, Inc. (ʺCrossmarkʺ) and Samʹs East, Inc. (ʺSamʹs Clubʺ) alleging

claims under the Americans with Disabilities Act (ʺADAʺ) and the New York Human

Rights Law for failure to promote, retaliation, and termination of employment because

of a disability. By decision and order entered June 27, 2013, the district court granted

defendantsʹ motions to dismiss, holding that Holt had failed to exhaust her

administrative remedies with respect to her failure to promote and retaliation claims,

and that she had failed to state a claim of disability discrimination under the ADA or

state law. We assume the partiesʹ familiarity with the facts, procedural history, and

issues for review.

We review the district courtʹs dismissal de novo. See Chambers v. Time

Warner, Inc.,

(2d Cir. 2002). To survive a motion to dismiss under Rule

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12(b)(6), the complaint must plead ʺenough facts to state a claim to relief that is

plausible on its face.ʺ Bell Atlantic Corp. v. Twombly,

(2007). We are

ʺfree to affirm an appealed decision on any ground which finds support in the record,

regardless of the ground upon which the trial court relied.ʺ McCall v. Pataki,

(2d Cir. 2000) (internal quotation marks omitted). We affirm the dismissal of all

three of Holtʹs claims on the ground that her complaint failed to state a claim upon

which relief can be granted.

In the district court, Holt submitted a form complaint and selected

ʺTermination of my employment,ʺ ʺFailure to promote me,ʺ and ʺRetaliation because I

complained about discrimination or harassment directed toward meʺ as her causes of

action. In their entirety, Holtʹs substantive allegations are as follows:

June 8 recruiter offered job based on disability ʺprogram.ʺ June 10 offer accepted began working July promoted to assistant manager November manager became unavailable December manager became unavailable January manager became unavailable February manager became unavailable March manager became unavailable April terminated and told because I was disabled and Alanna Salls did not know. [] During the time I worked for Crossmark inside of Sams Club, Shelly the Sams manager would harass me, as well as the other workers. Shelly and her cohorts lied about me and said I steal from Sams Club which is not true. This is on my record. Wal‐mart refused to hire me as store manager in Greece because of Crossmarks referral about Sams Club.

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Record on Appeal Doc. 1 ¶ 19. Even ʺconstru[ing] the complaint in the light most

favorable to the plaintiff,ʺ York v. Assʹn of the Bar of the City of N.Y.,

(2d

Cir. 2002), we conclude that Holt failed to make sufficient factual allegations in support

of her claims. Among other things, Holt failed to allege that she was denied a

promotion, that she participated in a protected activity, or that she was fired because of

a disability. She did not identify what her disability was, nor did she allege that she

suffered from ʺa physical or mental impairment that substantially limit[ed] one or more

major life activitiesʺ within the meaning of the ADA.

. Finally, she

alleged that her manager ʺwould harass me, as well as the other workers.ʺ Record on

Appeal Doc. 1 ¶ 19 (emphasis added). The ADA, of course, does not protect against

general harassment. Consequently, Holt failed to state a plausible claim for termination

of her employment, retaliation, or failure to promote and we affirm the district courtʹs

dismissal of the complaint.

* * *

We have considered Holtʹs 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

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