19-2396 Blodgett v. 22 South Street Operations, LLC

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 TO 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 15th day of September, two thousand twenty.

PRESENT: ROBERT D. SACK, RICHARD C. WESLEY, RICHARD J. SULLIVAN, Judges. -------------------------------------------------------------- JENNIFER BLODGETT, Plaintiff-Appellant,

v. No. 19-2396

22 SOUTH STREET OPERATIONS, LLC, Defendant-Appellee. -------------------------------------------------------------- FOR APPELLANT: James V. Sabatini, Sabatini & Associates, LLC, Newington, CT.

FOR APPELLEE: Holly L. Cini, Kaelah Marie Smith, Jackson Lewis P.C., Hartford, CT.

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

of Connecticut (Victor Allen Bolden, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

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

AFFIRMED.

Plaintiff-Appellant Jennifer Blodgett appeals from an order of the District of

Connecticut (Bolden, J.), granting Defendant-Appellee’s motion for summary

judgment on Blodgett’s claims of discrimination, retaliation, and failure to

accommodate in violation of the Americans with Disabilities Act of 1990 (“ADA”)

and retaliation and interference with the exercise of rights under the Family and

Medical Leave Act (“FMLA”). Defendant-Appellee 22 South Street Operations,

LLC d/b/a Fox Hill Center (“Fox Hill”), a nursing home and rehabilitation facility

in Connecticut, terminated Blodgett following a profanity-laden outburst in front

of staff and residents at Fox Hill. Blodgett, who suffers from clinical depression,

contends that Fox Hill’s stated reason for the firing was pretextual, and that she

was in fact terminated because she requested a “reasonable accommodation” – a

2 leave of absence that was protected under the FMLA – following that outburst.

We assume the parties’ familiarity with the underlying facts, the procedural

history, and the issues on appeal, to which we refer only as necessary to explain

our decision.

The Court reviews “a district court’s grant or denial of summary judgment

de novo, viewing the evidence in the light most favorable to the non-moving party.”

Faulkner v. Nat’l Geographic Enters. Inc.,

, 34 (2d Cir. 2005). “Summary

judgment is only appropriate if . . . there is no genuine material issue of fact and

the moving party is entitled to judgment as a matter of law.” Id.

I. Blodgett’s ADA Discrimination Claims

The ADA prohibits an employer from discriminating against an employee

“on the basis of disability.”

(a). Claims alleging adverse

employment action based on disability discrimination are subject to the burden-

shifting analysis established in McDonnell Douglas Corp. v. Green,

(1973). See McBride v. BIC Consumer Prod. Mfg. Co.,

(2d Cir. 2009).

To establish a prima facie case of disability discrimination, a plaintiff must show by

a preponderance of the evidence that (1) her “employer is subject to the ADA;”

(2) she “was disabled within the meaning of the ADA;” (3) she “was otherwise

3 qualified to perform the essential functions of [her] job, with or without reasonable

accommodation;” and (4) she “suffered adverse employment action because of

[her] disability.” McMillan v. City of New York,

(2d Cir. 2013)

(citation omitted). The employer must then offer admissible evidence of a

legitimate non-discriminatory reason for the adverse employment action, which

the plaintiff can rebut by showing evidence that the proffered reason was

pretextual. McBride,

.

Discrimination under the ADA also includes failing to make a reasonable

accommodation.

(b)(5)(A); McMillan,

. A plaintiff

establishes a prima facie claim under a failure-to-accommodate theory if she shows

that (1) she “is a person with a disability under the meaning of the ADA;” (2) “an

employer covered by the statute had notice of [her] 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.”

McMillan, 711 F.3d at 125–26 (quoting McBride,

).

Blodgett has failed to establish a prima facie case of disability discrimination

under any theory. First, she was not a “qualified individual” under the ADA, as

she could not, “with or without reasonable accommodation, . . . perform the

4 essential functions of the employment position that such individual holds or

desires.”

(8). Blodgett testified during a Social Security

Administration hearing approximately six months after her termination that she

became fully disabled on December 16, 2015, the day of her outburst, and that she

remained disabled at the time of the hearing. Although a disability for the

purposes of Social Security Disability Insurance (“SSDI”) benefits can differ from

a disability for the purposes of an ADA claim, a plaintiff “cannot simply ignore

the apparent contradiction that arises out of the earlier SSDI total disability claim”

and must instead “proffer a sufficient explanation” for the discrepancy. Cleveland

v. Policy Mgmt. Sys. Corp.,

(1999).

Here, the only “reasonable accommodation” that Blodgett requested was a

brief period of time off following her outburst on December 16, 2015. And yet –

six months later – she testified that she remained disabled. Having failed to

address this discrepancy, or identify any other accommodation that might have

enabled her to perform the essential functions of her job, Blodgett has not

established even a prima facie case of disability discrimination.

But even assuming that Blodgett was qualified to perform the essential

functions of her job, and even assuming that her request for a leave of absence

5 constituted a request for a reasonable accommodation, the record is clear that Fox

Hill in fact granted her request for leave following her tirade. As a result, Blodgett

has failed to demonstrate that her “employer . . . refused to make such

accommodations,” McMillan,

, which is fatal to her prima facie case

of disability discrimination. 1

II. Blodgett’s ADA Retaliation Claim

An employee can establish a retaliation claim under the ADA if she shows

that she “suffered an adverse employment action after – and causally connected

to – [her] engagement in a protected activity.” Fox v. Costco Wholesale Corp.,

(2d Cir. 2019). Here, the ostensibly protected activity was Blodgett’s

request for a “reasonable accommodation” of time off. As with a discrimination

claim, if a plaintiff makes a prima facie case, her employer must “articulate a

legitimate, non-retaliatory reason for the challenged employment decision.”

Treglia v. Town of Manlius,

(2d Cir. 2002). The plaintiff must then

“point to evidence that would be sufficient to permit a rational factfinder to

1 While Blodgett now claims that her prompt termination following her return from leave somehow deprived her of the requested accommodation, this is really a variation on her retaliation claim, which is addressed below.

6 conclude that the employer’s explanation is merely a pretext for impermissible

retaliation.”

(internal quotation marks omitted).

Even assuming that Blodgett has established a prima facie case, which is

tenuous at best, she has not overcome Fox Hill’s proffered non-retaliatory reason

for her termination – that she flew into a violent rage, yelling at staff and patients

alike, after learning of her son’s firing. Her bare allegations of temporal proximity

– even though she requested leave after her outburst – and allusion to various other

employees, who she has not shown were similarly situated to her, are insufficient

to overcome a motion for summary judgment. See El Sayed v. Hilton Hotels Corp.,

(2d Cir. 2010) (noting that temporal proximity, without more, is

“insufficient to satisfy appellant's burden to bring forward some evidence of

pretext”).

III. Blodgett’s FMLA Claims

Blodgett also raises several FMLA claims. The FMLA “entitle[s] employees

to take reasonable leave for medical reasons,”

(b)(2), and it is

unlawful for “any employer to interfere with, restrain, or deny the exercise of or

the attempt to exercise, any right provided” by that law,

§ 2615(a)(1). Blodgett

brings both an interference and a retaliation claim. The former generally addresses

7 a case in which the plaintiff’s “employer has prevented or otherwise impeded [her]

ability to exercise rights under the FMLA,” whereas the latter “involve[s] an

employee actually exercising her rights or opposing perceived unlawful conduct

under the FMLA and then being subjected to some adverse employment action by

the employer.” Woods v. START Treatment & Recovery Ctrs., Inc.,

(2d Cir. 2017).

To succeed on a claim of FMLA interference, a plaintiff must establish that

(1) “she is an eligible employee under the FMLA;” (2) “the defendant is an

employer as defined by the FMLA;” (3) “she was entitled to take leave under the

FMLA;” (4) “she gave notice to the defendant of her intention to take leave;” and

(5) “she was denied benefits to which she was entitled under the FMLA.” Graziadio

v. Culinary Inst. of Am.,

(2d Cir. 2016). To obtain relief, however,

a litigant must show that the violation was prejudicial. See Ragsdale v. Wolverine

World Wide, Inc.,

(2002).

Here, it is undisputed that Fox Hill (unbeknownst to Blodgett) denied

Blodgett’s request for FMLA leave. But it is also undisputed that Fox Hill

ultimately granted Blodgett the full amount of time that she requested as

“personal leave.” Because she received all the time she requested and has not

8 otherwise shown that her personal leave was somehow inferior to leave under the

FMLA, Blodgett has not shown that she was denied a benefit owed to her under

the FMLA. See Graziadio,

.

Blodgett’s retaliation claim fares no better. Such claims are also subject to

the McDonnell Douglas burden shifting framework.

. Even assuming that

Blodgett has established a prima facie case, she has done nothing more than show

a tenuous temporal connection between her request for FMLA leave – which

occurred after she was placed on administrative leave following her outburst –

and her termination. While she points to alleged comparators who she claims

violated hospital rules but were not terminated, she has not demonstrated that

those comparators were similarly situated, as they had different roles and vastly

different violations. Moreover, two of those comparators had, in fact, taken FMLA

leave in the past, yet were not terminated. Accordingly, Blodgett did not rebut

Fox Hill’s non-retaliatory explanation for her termination.

IV. Blodgett’s State Law Claims

Because the district court properly dismissed Blodgett’s federal claims, it

did not abuse its discretion in declining to exercise supplemental jurisdiction over

her claims for disability discrimination and failure to accommodate in violation of

9 the Connecticut Fair Employment Practices Act. Klein & Co. Futures, Inc. v. Bd. of

Trade of New York,

(2d Cir. 2006) (“It is well settled that where, as

here, the federal claims are eliminated in the early stages of litigation, courts

should generally decline to exercise pendent jurisdiction over remaining state law

claims.”).

We have considered the rest of Blodgett’s arguments and conclude that they

are without merit. Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT: Catherine O=Hagan Wolfe, Clerk of Court

10