CHIN, Circuit Judge:
Plaintiff James C. McElwee appeals from a judgment of the United States District Court for the Southern District of New York (Duffy, J.). McElwee served as a volunteer at Valley View Center for Nursing Care and Rehabilitation ("Valley View"), a federally funded entity operated by defendant Orange County (the "County"). In 2009, McElwee was dismissed from Valley View's volunteer program after engaging in erratic and harassing behavior toward female staff members. McElwee, who was previously diagnosed with Pervasive Developmental Disorder, brought this action against the County pursuant to Title II of the Americans with Disabilities Act (the "ADA"), 42 U.S.C. § 12131 et seq., and Section 504 of the Rehabilitation Act of 1973 (the "Rehabilitation Act"), 29 U.S.C. § 794 et seq., alleging that he was denied a reasonable accommodation for his disability.
The district court found that McElwee was not disabled within the meaning of the statutes and granted the County's motion for summary judgment dismissing the Complaint. We affirm the district court's award of summary judgment, albeit on different grounds.
The following facts are undisputed, unless otherwise noted.
McElwee is a man in his mid-thirties with a neurodevelopmental disorder formally classified as Pervasive Developmental Disorder — Not Otherwise Specified ("PDD-NOS") and informally called an autism spectrum disorder. He has an IQ of 79, placing him in the eighth percentile of intellectual functioning. He lives with his mother, has never held a job, and likely will always require assistance in managing money and completing non-routine tasks.
In 1996, McElwee began participating in a volunteer program at Valley View, where he performed janitorial and housekeeping duties and transported nursing home residents to religious and social events. McElwee competently performed these assigned tasks without hindrance from his alleged disability. Meanwhile, the volunteer program improved his self-esteem by allowing him to associate with other people in the community and provide a service to the elderly and infirm.
On November 20, 2009, Martha Thompson, a staff member at Valley View, informed Robin Darwin, the Assistant Administrator, that McElwee was "acting inappropriately towards her and making her feel uncomfortable." Specifically, Thompson complained that on multiple occasions, McElwee had waited for her and followed her in the hallways, staring at her rear end. Thompson also told Darwin that she was aware of at least two other women at Valley View who McElwee had "bothered" or made to feel uncomfortable.
After her meeting with McElwee, Darwin spoke with Valley View's Facility Administrator, who told her to conduct a further investigation regarding McElwee's behavior if she was considering terminating his volunteer services.
On November 25, 2009, Darwin informed McElwee that she was disturbed by the situation, she was going to conduct an investigation, and he should leave Valley View and not return until he heard from her. McElwee started to cry, and said that Darwin was a conduit of God. He said that God was telling him not to do these things anymore, and was punishing him for what he had done in the past. McElwee also said that he had been conducting research at the library over the last several months to see if his behavior could be considered domestic violence or sexual harassment.
Darwin subsequently conducted an investigation by interviewing individuals at Valley View about McElwee's behavior. In total, five women reported that McElwee had behaved inappropriately toward them, and a security guard reported that he had seen McElwee bothering nursing students and visitors.
Liz Murphy, a staff member in Valley View's payroll department, told Darwin that McElwee watched her and followed her on her breaks, and she recounted one instance when McElwee sat in the lobby and watched her while she distributed checks. Murphy told Darwin that this behavior had been going on for a few years but had increased since the previous spring. She said she gave McElwee the cold shoulder and went out of her way to avoid him. Barbara Decker, another payroll department employee, told Darwin that McElwee used to carry around a stuffed dolphin that he asked women to pet, in a manner she perceived as sexually suggestive. Decker also said that several years earlier McElwee had inquired about dating her daughter, and that the way he spoke about her daughter made her uncomfortable. Pat Matero, the Director of Admissions, told Darwin that McElwee once asked her how he would look in a Speedo, and that she had observed him in the past "playing up" to young aides with sexual innuendo. Irene Simpson, the Activities Supervisor at Valley View, told
Based on her investigation, Darwin concluded that McElwee was a potential liability for Valley View in that he was sexually harassing staff, nursing students, and visitors, and had exhibited disturbing behavior when confronted with these allegations.
On November 30, 2009, McElwee's mother called Darwin and told her that McElwee "is not like everyone else" and that he should not be discriminated against because he has a disability and because he was looking at people. She asked Darwin to call McElwee's therapist, who could better explain why he acted the way that he did. Darwin never called the therapist.
Darwin consulted with Valley View's Facility Administrator, the County Executive's Office, and the County Law Department regarding the results of her investigation. On December 1, 2009, she sent McElwee a letter, stating that his volunteer services were no longer needed at Valley View.
On December 10, 2009, McElwee went to Valley View to sing Christmas carols for the residents. When he arrived at the facility, a security guard told him he was not allowed inside the building because of "what had happened recently."
McElwee filed the action below on January 8, 2010, alleging that the County had violated the ADA and the Rehabilitation Act by dismissing him from the volunteer program and subsequently excluding him from Valley View altogether without providing him a reasonable accommodation for his mental impairment.
Following discovery, the County moved for summary judgment. On September 29, 2011, the district court granted the County's motion, holding that McElwee was not "`substantially limited' in the major life activity of interacting with others" and therefore was not "disabled" under the ADA or the Rehabilitation Act. See McElwee v. Cnty. of Orange, No. 10 Civ. 00138(KTD), 2011 WL 4576123, at *7, 2011 U.S. Dist. LEXIS 114663, at *20 (S.D.N.Y. Sept. 29, 2011). In particular, the court held, "while Plaintiff may suffer from a diagnosed disorder, ... Plaintiff has not demonstrated that his mental impairment substantially impairs his ability `to connect with others, i.e., to initiate contact with other people and respond to them, or to go among other people — at the most basic level of these activities.'" Id. at *6, 2011 U.S. Dist. LEXIS 114663, at *16 (quoting Jacques v. DiMarzio, Inc., 386 F.3d 192, 201 (2d Cir.2004)).
The court did not consider whether McElwee was otherwise qualified to be a volunteer at Valley View or whether the accommodations he sought were reasonable. Judgment dismissing the Complaint was entered on September 30, 2011.
This appeal followed.
We review an award of summary judgment de novo, construing the evidence in the light most favorable to the nonmoving party and drawing all reasonable inferences in his favor. McBride v. BIC Consumer Prods. Mfg. Co., 583 F.3d 92, 96 (2d Cir.2009). Summary judgment is appropriate where the record reveals that there is "no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). A factual dispute is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). We may affirm summary judgment on any ground supported by the record, even if it is not one on which the district court relied. 10 Ellicott Sq. Ct. Corp. v. Mountain Valley Indem. Co., 634 F.3d 112, 125 (2d Cir.2011).
Title II of the ADA provides that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C. § 12132. Similarly, Section 504 of the Rehabilitation Act prohibits programs and activities receiving federal financial assistance from excluding, denying benefits to, or discriminating against "otherwise qualified" disabled individuals. 29 U.S.C. § 794(a). Because the standards adopted by the two statutes are nearly identical, we consider the merits of these claims together. See Abrahams v. MTA Long Island Bus, 644 F.3d 110, 115 n. 3 (2d Cir.2011).
To assert a claim under Title II of the ADA or section 504 of the Rehabilitation Act, a plaintiff must demonstrate that (1) he is a qualified individual with a disability; (2) the defendant is subject to one of the Acts; and (3) he was denied the opportunity to participate in or benefit from the defendant's services, programs, or activities, or was otherwise discriminated against by the defendant because of his disability. Henrietta D. v. Bloomberg, 331 F.3d 261, 272 (2d Cir.2003).
A "qualified individual with a disability" is "an individual with a disability who, with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity." 42 U.S.C. § 12131. A "disability" is defined as "a physical or mental impairment that substantially limits one or more major life activities." Id. § 12102(1)(A).
Under both statutes, a defendant discriminates when it fails to make a reasonable accommodation that would permit a qualified disabled individual "to have access to and take a meaningful part in public services."
Although a public entity must make "reasonable accommodations," it does not have to provide a disabled individual with every accommodation he requests or the accommodation of his choice. See Fink v. N.Y.C. Dep't of Personnel, 53 F.3d 565, 567 (2d Cir.1995). An accommodation is not reasonable if it would impose an undue hardship on a program's operation or "would fundamentally alter the nature of the service, program, or activity." Powell, 364 F.3d at 88 (citing 28 C.F.R. §§ 41.53, 35.130(b)(7)) (internal quotation marks omitted). Moreover, under the ADA, workplace misconduct is a legitimate and nondiscriminatory reason for terminating employment, even when such misconduct is related to a disability.
Although it is generally "the responsibility of the individual with a disability to inform the employer that an accommodation is needed," Brady v. Wal-Mart Stores, Inc., 531 F.3d 127, 135 (2d Cir. 2008) (quoting Graves v. Finch Pruyn & Co., 457 F.3d 181, 184 (2d Cir.2006)) (internal
A plaintiff alleging that he was denied a reasonable accommodation bears the burdens of both production and persuasion as to the existence of some accommodation that would allow him to meet the essential eligibility requirements of the service, program, or activity at issue. See id. at 97. Once the plaintiff has demonstrated that there is a "plausible accommodation, the costs of which, facially, do not clearly exceed its benefits," the defendant bears the burden of proving that the requested accommodation is not reasonable. Borkowski v. Valley Cent. Sch. Dist., 63 F.3d 131, 138 (2d Cir.1995).
In this case, the parties agree that McElwee has satisfied the second element of his claim: Valley View is a federally funded entity of the County, and therefore is subject to the ADA and the Rehabilitation Act. See 42 U.S.C. § 12131(1)(B) (defining "public entity" as, inter alia, "any department, agency, special purpose district, or other instrumentality of a State or States or local government"); 29 U.S.C. § 794(a) (prohibiting discrimination by "any program or activity receiving Federal financial assistance").
The parties dispute, however, whether the first and third elements are satisfied, i.e., whether McElwee is a qualified individual with a disability and whether the County discriminated against him by denying him a reasonable accommodation. We discuss these elements in turn.
The question whether McElwee is a qualified individual with a disability has two aspects, namely, whether he is disabled and whether he is qualified. We consider both aspects below.
The district court found that McElwee was not substantially limited in the major life activity of interacting with others and concluded that McElwee was not disabled. See McElwee, 2011 WL 4576123, at *7, 2011 U.S. Dist. LEXIS 114663, at *20. On appeal, McElwee argues that the district court erred by failing to consider the ADA Amendments Act of 2008 ("ADAAA"), Pub.L. No. 110-325, 122 Stat. 3553 (2008), which amended the ADA to provide that the definition of "disability" shall be construed broadly "to the maximum extent permitted by the terms of this chapter" and "[t]he term `substantially limits' shall be interpreted consistently with the findings and purposes of the [ADAAA]." 42 U.S.C. § 12102(4)(A), (B).
Both McElwee and amici raise fair concerns as to whether the district court erred in not addressing whether McElwee was substantially limited in the major life activities of working, caring for himself, communicating, thinking, and brain function. See 42 U.S.C. § 12102(2). (providing that "major life activities include, but are not limited to" caring for oneself, learning, concentrating, thinking, communicating, working, and the operation of major bodily functions such as brain function); 29 C.F.R. § 1630.2(j)(1)(i) (instructing courts to construe the term "substantially limits" broadly); id. § 1630.2(j)(3)(iii) (specifically identifying autism as an impairment that substantially limits brain function in virtually all cases). Nonetheless, we need not decide whether the district court erred in finding McElwee was not disabled because even assuming arguendo that a reasonable jury could find McElwee disabled, the County is entitled to summary judgment for the reasons set forth below.
Although the parties disputed before the district court whether McElwee is a qualified individual, the court did not address this issue. See McElwee, 2011 WL 4576123, at *1, *5 2011 U.S. Dist. LEXIS 114663, at *1, *12.
McElwee asserts that he is qualified to participate in Valley View's volunteer program because he adequately performed his volunteer duties for years. The County, on the other hand, argues that McElwee's "longstanding course of inappropriate conduct with numerous female employees, nursing students, and visitors to the facility" disqualified him from serving as a volunteer.
As noted, an individual is qualified to participate in a program if he meets the essential eligibility requirements for participation in the program, with or without reasonable accommodations. See 42 U.S.C. § 12131(2). To determine whether an individual is qualified, courts look to a program's "formal legal eligibility requirements." Henrietta D., 331 F.3d at 277 (citing 42 U.S.C. §§ 12131-12132). An eligibility requirement is not considered "essential" if a "reasonable accommodation would enable an individual to qualify for the benefit." Castellano v. City of N.Y., 946 F.Supp. 249, 253 (S.D.N.Y.1996), aff'd on other grounds, 142 F.3d 58 (2d Cir. 1998).
The "benefit" here at issue is the ability to participate in Valley View's volunteer program. To be qualified for such participation, a person must have been not only mentally and physically able to perform the tasks assigned to him, but also emotionally able to conduct himself in an appropriate manner when dealing with residents, supervisors, and other staff members. There is no dispute that McElwee was always qualified to perform the former functions. But by at least 2009, his sexual harassment of female staff members appears to have rendered him unqualified as to the latter. See, e.g., Higgins v. Md. Dep't of Agric., No. L-11-0081, 2012 WL 665985, at *5, 2012 U.S. Dist. LEXIS 25303, at *18 (D.Md. Feb. 28, 2012) (finding plaintiff's inappropriate workplace behavior rendered him unqualified because "[t]he `essential functions' of [plaintiff's] position included courteous and professional interactions with the public, fellow staff, subordinates, and supervisors").
The extent to which McElwee's aberrant behavior, which he attributed to his disability, disqualified him from participating in Valley View's volunteer program is perhaps more easily addressed by asking
McElwee alleges that his dismissal from Valley View's volunteer program was unlawful discrimination because he was not provided a reasonable accommodation for his disability. In particular, he claims that Darwin should have (1) worked with him and his therapist to help him behave more appropriately in the workplace; and (2) worked with the Valley View employees who complained about him to educate them about McElwee's disability so that they would be more tolerant of his behavior.
As an initial matter, McElwee's claim is as much a request to excuse his past misconduct as it is a request for future accommodation. He does not dispute that he followed and stared at female employees or that his conduct was reasonably perceived by others as inappropriate. It is also undisputed that when Darwin asked him about this behavior, he engaged in perseveration and made disturbing statements and gestures. This inappropriate behavior is indisputably a legitimate non-discriminatory reason for dismissing McElwee from the volunteer program, even if the behavior resulted from his disability. See Canales-Jacobs v. N.Y.S. Office of Ct. Admin., 640 F.Supp.2d 482, 500 (S.D.N.Y.2009); U.S. Equal Emp't Opportunity Comm'n, Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, question 36 (2002). "The ADA mandates reasonable accommodation of people with disabilities in order to put them on an even playing field with the non-disabled; it does not authorize a preference for disabled people generally." Felix v. N.Y.C. Transit Auth., 324 F.3d 102, 107 (2d Cir.2003).
Further, even if, as McElwee argues, Darwin should have known he was disabled and proactively engaged in an interactive process to assess whether his disability could be reasonably accommodated, see Brady, 531 F.3d at 135-36, he has not met his burden of showing that the proposed accommodations are plausible, see McBride, 583 F.3d at 99-101; Borkowski, 63 F.3d at 138. On the contrary, as discussed below, both of the accommodations McElwee now claims he was denied are unreasonable on their face, as a matter of law.
The first accommodation McElwee proposes is that Valley View should have spoken to his therapist or "encourage[d] him to obtain particularized therapy to help him behave more appropriately in the workplace and ... better interact with colleagues." Nothing in the record before us, however, indicates that further therapy would have helped McElwee to refrain from his inappropriate conduct, either immediately or at any time in the near future.
Further, McElwee's psychiatrist of 14 years wrote a letter to McElwee's counsel in January 2011 — a year after McElwee filed the Complaint in this case — reporting that "[Mr. McElwee] does not respond to social cues (and body language) such as when people are having a private conversation, when the topic is inappropriate to the situation, when it is time to change, the subject, when he is making someone uncomfortable." The psychiatrist did not suggest that further therapy would enable McElwee to behave appropriately. Accordingly, McElwee's proposed accommodation for Valley View to work with him to obtain additional therapy was unreasonable as a matter of law because he has failed to offer any assurance that it would have enabled him to meet the essential eligibility requirements of Valley View's volunteer program at any time in the near future.
McElwee's second requested accommodation — for Valley View to work with the women who complained about his behavior "to educate [them] about plaintiff's disability or to [help them] better understand the nature of [their] concerns about plaintiff — is also unreasonable as a matter of law. This proposed accommodation does not even purport to address McElwee's inappropriate behavior; instead, it simply demands that others be more tolerant. Requiring others to tolerate misconduct, however, is not the kind of accommodation contemplated by the ADA.
In sum, McElwee failed to present sufficient evidence below to raise a genuine issue of fact as to whether he was discriminated against because of his disability.
For the reasons stated above, the judgment of the district court is affirmed.
