14-1798-cv
Jesyca Greene v. Enlarged City School District of Middletown, NY


                                  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 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 22nd day of April, two thousand fifteen.
PRESENT: RALPH K. WINTER,
                 JOHN M. WALKER, JR.,
                 CHRISTOPHER F. DRONEY,
                                 Circuit Judges.
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JESYCA GREENE,
                                 Plaintiff-Appellant,

                               v.                                                         No. 14-1798-cv

ENLARGED CITY SCHOOL DISTRICT OF MIDDLETOWN,
NEW YORK,
                    Defendant-Appellee.
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 FOR PLAINTIFF-APPELLANT:                                              MICHAEL H. SUSSMAN, Sussman &
                                                                       Watkins, Goshen, NY.

 FOR DEFENDANT-APPELLEE:                                               MATTHEW J. MEHNERT (Sharon N.
                                                                       Berlin, on the brief), Lamb & Barnosky,
                                                                       LLP, Melville, NY.




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       Appeal from the judgment of the United States District Court for the Southern
District of New York (Cote, J.).

    UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the order of the district court is AFFIRMED.

       Plaintiff-Appellant Jesyca Greene appeals from a judgment of the United States
District Court for the Southern District of New York (Cote, J.), dismissing Greene’s claims
under the Americans with Disability Act (“ADA”), 42 U.S.C. § 12101 et seq., against
Defendant-Appellee the Enlarged City School District of Middletown, New York
(“Middletown”), alleging that she was terminated from her position on the basis of her
disability. We review de novo the district court’s grant of Middletown’s motion for
summary judgment, viewing the record in the light most favorable to the non-moving
party. See Graham v. Long Island R.R., 

, 38 (2d Cir. 2000). We assume the
parties’ familiarity with the underlying facts, the procedural history of the case, and the
issues on appeal.

        Greene contends that a comment by the Superintendent of Middletown that she is
“one of those poor woe [i]s me types” and a glance toward her amputated arm are probative
of discriminatory animus against her on the basis of her disability. Even assuming,
arguendo, that Greene successfully established a prima facie case of discrimination, see
McDonnell Douglas Corp. v. Green, 

, 802 (1973); see also Henry v. Wyeth
Pharm., Inc., 

, 149-50 (2d Cir. 2010) (outlining factors to determine whether a
stray remark is probative of discriminatory animus), Middletown presented a list of 13
performance-based, non-discriminatory reasons for terminating Greene, thus meeting its
burden. See Texas Dep’t of Cmty. Affairs v. Burdine, 

, 253 (1981) (“[I]f the
plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant to
articulate some legitimate, nondiscriminatory reason for the employee’s rejection.”
(internal quotations marks omitted)). The presumption of discrimination raised by
Greene’s prima facie case was rebutted and “drop[ped] from the case.” See St. Mary’s
Honor Ctr. v. Hicks, 

, 207 (1993) (internal quotation marks omitted).

        Greene has not put forth evidence to rebut Middletown’s non-discriminatory
reasons for her termination. Greene does not contend that any of the supervisors who
wrote the negative performance evaluations and filed the complaints on which her
termination was allegedly based were themselves motivated by discriminatory animus.
Nor does she point to other evidence that shows that the reasons for her termination were
pretextual. See 

(“[S]hould the defendant carry this burden, the
plaintiff must then have an opportunity to prove by a preponderance of the evidence that
the legitimate reasons offered by the defendant were not its true reasons, but were a pretext
for discrimination.”). She only alleges that the Superintendent decided to recommend her

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termination without having considered the negative evaluations. But she did not submit
any evidence to refute that she had previously met with the Superintendent and that they
discussed several issues, including her performance evaluations, the same which were
subsequently cited in the letter explaining her termination. There is no genuine issue of
material fact as to whether the Superintendent was apprised of the content of the
evaluations. Thus, Greene’s evidence is not enough to permit a jury to find that the real
reason she was fired was because of her disability. See Slattery v. Swiss Reins. Am. Corp.,

, 94 (2d Cir. 2001) (“We have repeatedly held that, in the end this burden [as to
pretext] rests on the plaintiff . . . .”). The district court properly granted summary
judgment in favor of Middletown.

       Accordingly, we AFFIRM the judgment of the district court.

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




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