15‐957‐cv, 15‐1272‐cv Howard v. United Parcel Service, Inc.

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 28th day of April, two thousand sixteen.

PRESENT: RALPH K. WINTER, DENNY CHIN, SUSAN L. CARNEY, Circuit Judges. ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x

MARK HOWARD, Plaintiff‐Appellant‐Cross‐Appellee,

v. 15‐957‐cv, 15‐1272‐cv

UNITED PARCEL SERVICE, Defendant‐Appellee‐Cross‐Appellant.

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FOR PLAINTIFF‐APPELLANT‐ Philip Marcel Black, Sheldon Karasik, Andrew CROSS‐APPELLEE: Rozynski, Eisenberg & Baum LLP, New York, New York.

FOR DEFENDANT‐APPELLEE‐ Michael T. Bissinger, Day Pitney LLP, CROSS‐APPELLANT: Parsippany, New Jersey. Appeal from the United States District Court for the Southern District of

New York (Forrest, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the amended judgment of the district court is

AFFIRMED.

Plaintiff‐appellant‐cross‐appellee Mark Howard (ʺHowardʺ) appeals from an

amended judgment entered April 2, 2015 following the district courtʹs granting of

summary judgment in favor of defendant‐appellee‐cross‐appellant United Parcel

Service (ʺUPSʺ) dismissing his claims of discrimination and failure to accommodate

under the Americans with Disabilities Act (ʺADAʺ), 42 U.S.C. §§ 12112‐17, and New

York State Human Rights Law (ʺNYSHRLʺ),

et seq. UPS cross‐

appeals from the district courtʹs ruling that one aspect of Howardʹs claim under the

ADA was not time‐barred. We assume the partiesʹ familiarity with the underlying facts,

the procedural history of the case, and the issues on appeal.

Howard, who is hearing impaired, has worked at UPS in various jobs

since 1999. In 2009, he began efforts to become a full‐time driver. In April 2010, he

enrolled in a six‐day Driver Training Class (ʺDTCʺ) but was unable to complete it

because he missed one day due to car trouble. He took the course again in May 2010

and completed it, but then failed portions of the final examination twice. He requested

an American Sign Language (ʺASLʺ) interpreter for both courses; UPS declined that

‐ 2 ‐ request, but provided a number of other accommodations, including a seat in the front

row, the right to ask the instructor to face the class whenever possible, and extra time to

take the written examination.

Eventually, Howard completed the DTC and passed the examination,

with accommodations similar to what he had previously been provided. He began

work as a driver in September 2012, but in January 2013, while backing down a

customerʹs driveway in a UPS truck, he hit a basketball hoop. He failed to report the

accident, and was fired. Subsequently, after consultation with his Union, UPS reduced

the termination to a 30‐day suspension and Howard returned to a prior position as part‐

time car washer.

Howard thereafter filed charges of discrimination with the Equal

Employment Opportunity Commission and New York State Division of Human Rights.

Eventually, he brought the action below, alleging principally that UPS discriminated

against him by not providing an ASL interpreter for the April 2010 and May 2010 DTCs,

resulting in his failing the final examination.

We affirm the district courtʹs grant of summary judgment dismissing

Howardʹs claims, substantially for the reasons given by the district court in its amended

opinion and order. We emphasize the following.

First, a reasonable jury could not have found in favor of Howard with

respect to the April 2010 course because, as the undisputed facts showed, he was unable

‐ 3 ‐ to complete the mandatory six‐day course because of car trouble: he did not attend one

of the sessions.

Second, with respect to the May 2010 course, a reasonable jury could only

have concluded that Howard had not shown a causal link between the lack of an ASL

interpreter and his failure to pass the exam. See Parker v. Sony Pictures Entmʹt, Inc.,

(2d Cir. 2001) (holding that it is ʺessential to a finding of discrimination

that plaintiffʹs disability, or the lack of accommodation to that disability, played a

ʹsubstantialʹ role that ʹmade a differenceʹ to his employerʹs actionsʺ) (citing Fields v. New

York State Office of Mental Retardation and Developmental Disabilities,

(2d

Cir. 1997)). The portion of the test that Howard failed was based on written materials

he had received twice before. After he failed the test the first time, the instructor

reviewed the material he needed to learn to pass, and allowed him to take the exam

again. Unfortunately, he did not pass. Moreover, he did pass the DTC examination in

2012 without the assistance of an ASL interpreter, undercutting his argument that an

interpreter was vital to his ability to pass the exam.

‐ 4 ‐ We have reviewed the partiesʹ remaining arguments on appeal and

conclude they are without merit. In light of our disposition of Howardʹs appeal, we

need not reach the merits of UPSʹs cross‐appeal. Accordingly, we AFFIRM the

judgment of the district court.

FOR THE COURT: Catherine OʹHagan Wolfe, Clerk

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