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Summary: 17-2757 Natofsky v. City of New York 17-2757-cv Natofsky v. City of New York In the United States Court of Appeals For the Second Circuit _ AUGUST TERM, 2018 ARGUED: SEPTEMBER 21, 2018 DECIDED: APRIL 18, 2019 No. 17-2757 _ RICHARD NATOFSKY, Plaintiff-Appellant, v. THE CITY OF NEW YORK, SUSAN POGODA, SHAHEEN ULON, MARK PETERS, and JOHN and JANE DOE, said names being fictitious, the persons intended being those who aided and abetted the unlawful conduct of the named defendants, Defendants-Appellee
Summary: 17-2757 Natofsky v. City of New York 17-2757-cv Natofsky v. City of New York In the United States Court of Appeals For the Second Circuit _ AUGUST TERM, 2018 ARGUED: SEPTEMBER 21, 2018 DECIDED: APRIL 18, 2019 No. 17-2757 _ RICHARD NATOFSKY, Plaintiff-Appellant, v. THE CITY OF NEW YORK, SUSAN POGODA, SHAHEEN ULON, MARK PETERS, and JOHN and JANE DOE, said names being fictitious, the persons intended being those who aided and abetted the unlawful conduct of the named defendants, Defendants-Appellees..
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17-2757
Natofsky v. City of New York
17‐2757‐cv
Natofsky v. City of New York
In the
United States Court of Appeals
For the Second Circuit
________
AUGUST TERM, 2018
ARGUED: SEPTEMBER 21, 2018
DECIDED: APRIL 18, 2019
No. 17‐2757
________
RICHARD NATOFSKY,
Plaintiff‐Appellant,
v.
THE CITY OF NEW YORK, SUSAN POGODA, SHAHEEN ULON, MARK
PETERS, and JOHN and JANE DOE, said names being fictitious, the persons
intended being those who aided and abetted the unlawful conduct of the named
defendants,
Defendants‐Appellees.
________
Appeal from the United States District Court
for the Southern District of New York.
No. 14 Civ. 5498 – Naomi Reice Buchwald, Judge.
________
Before: WALKER, CHIN, Circuit Judges, and Keenan, District Judge.*
* Judge John F. Keenan, of the United States District Court for the Southern
District of New York, sitting by designation.
Plaintiff‐Appellant Richard Natofsky appeals from a judgment of
the United States District Court for the Southern District of New York (Naomi R.
Buchwald, Judge) granting summary judgment to Defendants‐Appellees the City
of New York and certain of its employees (jointly, ʺDefendantsʺ). Natofsky, who
suffers from a hearing disability, brought this action alleging violations of
Section 504 of Rehabilitation Act of 1973 (the ʺRehabilitation Actʺ), codified at 29
U.S.C. § 794(a)‐(d), and state and city law. Natofsky claims that, during his
tenure working for the New York City Department of Investigation (the ʺDOIʺ),
he experienced several adverse employment actions because of his hearing
disability, including his eventual demotion. He also claims that the DOI failed to
accommodate his disability and retaliated against him. The district court held
that no reasonable jury could conclude that Natofsky had experienced any
adverse employment action ʺsolely by reason ofʺ his disability and further held
that Natofsky failed to establish a failure‐to‐accommodate or retaliation claim.
We hold that a plaintiff alleging an employment discrimination claim under
Section 504 of the Rehabilitation Act must show that the plaintiff’s disability was
a but‐for cause of the employer’s action, not the sole cause. We conclude,
however, that Natofsky failed to demonstrate that the adverse employment
‐ 2 ‐
decisions he experienced would not have been made but for his disability.
Accordingly, the district courtʹs award of summary judgment to Defendants is
AFFIRMED.
Judge Chin dissents in a separate opinion.
________
FOR PLAINTIFF‐APPELLANT: WILLIAM W. COWLES (Samuel O.
Maduegbuna, on the brief), Maduegbuna
Cooper LLP, New York, New York.
FOR DEFENDANTS‐APPELLEES: MELANIE T. WEST, Assistant Corporation
Counsel (Richard Dearing, Claude S.
Platton, Of Counsel, on the brief), for
Zachary W. Carter, Corporation Counsel of
the City of New York, New York, New
York.
________
Keenan, District Judge:
Plaintiff Richard Natofsky appeals from a judgment of the United
States District Court for the Southern District of New York granting summary
judgment to Defendants (Buchwald, J.). Natofsky served as the Director of
Budget and Human Resources at the New York City Department of Investigation
(the ʺDOIʺ) from December 2012 until March 2014, when he was demoted. He
resigned from the DOI in June 2014. Natofsky, who suffers from a hearing
‐ 3 ‐
disability, brought this action against the City of New York and three former
high‐ranking employees at the DOI alleging violations of Section 504 of
Rehabilitation Act of 1973 (the ʺRehabilitation Actʺ), codified at 29 U.S.C. §
794(a)‐(d), and state and city law. Natofsky claims that, during his tenure at the
DOI, he experienced several adverse employment actions because of his hearing
disability, including his demotion. He also claims that the DOI failed to
accommodate his disability and retaliated against him.
The district court held that no reasonable jury could conclude that
Natofsky had experienced any adverse employment action ʺsolely by reason ofʺ
his disability and further held that Natofsky failed to establish a failure‐to‐
accommodate or retaliation claim. Accordingly, the district court granted
summary judgment in favor of Defendants.
We hold that a plaintiff alleging an employment discrimination
claim under Section 504 of the Rehabilitation Act must show that the plaintiff’s
disability was a but‐for cause of the employer’s action, not the sole cause. We
conclude, however, that Natofsky failed to demonstrate that the adverse
employment decisions he experienced would not have been made but for his
disability. Thus, the district courtʹs award of summary judgment to Defendants
is AFFIRMED, albeit on different grounds.
‐ 4 ‐
BACKGROUND
The facts are summarized as follows:
A. Natofskyʹs Disability
Natofsky suffered nerve damage as an infant, leaving him with a
lasting and severe hearing impairment. He wears hearing aids and, to fully
understand what someone is saying, has to focus intently on the speaker and read
lips. He also speaks imperfectly and more slowly than the average person.
B. The DOI Hires Natofsky
The DOI hired Natofsky in December 2012 as the Director of Human
Resources and Budget with a starting salary of $125,000. His direct supervisor
was Shaheen Ulon, the then Deputy Commissioner for Administration. When
the DOI hired Natofsky, Rose Gill Hearn was the Commissioner of the DOI.
In November 2013, Bill de Blasio was elected mayor of New York
City. Shortly before the de Blasio administration came into office, Natofsky
received two awards: one for “going above and beyond” in his job performance
and one for a good record of performance. On December 31, 2013, Natofsky also
received a memo from Hearn informing him that the DOI was increasing his
salary by $4,000 for good performance.
‐ 5 ‐
At the end of 2013, as a result of the mayoral transition, Hearn left
the DOI. In February 2014, Mark Peters assumed the role of Commissioner. He
appointed Susan Pogoda as the DOIʹs Chief of Staff and Deputy Commissioner
for Agency Operations. Natofskyʹs supervisor, Ulon, remained in place.
C. Ulon’s Treatment of Natofsky
Natofsky testified that when he started at the DOI, he informed Ulon
that he had a severe hearing impairment and, consequently, might have trouble
hearing her. He also told her that she would have to face him when speaking
and that background noise made hearing more difficult for him.
Although the first three months of Natofskyʹs employment passed
without significant incident, in or about March 2013, Ulon asked Natofsky to
follow up on e‐mails more quickly. Natofsky replied that he could not respond
to emails as promptly as Ulon wanted because he had to put ʺextraordinary
effort into listeningʺ to a speaker during meetings and, thus, could not multitask
while listening in meetings. He also suggested that ʺif someone has an extremely
urgent or time sensitive issue, he or she contact [a secretary] so that she can alert
me.ʺ Ulon and Natofsky had no further discussions on the topic.
In June 2013, Ulon requested that Natofsky arrive at work between
9:00 a.m. and 10:00 a.m., as opposed to between 8:00 a.m. and 8:30 a.m., which
‐ 6 ‐
was when Natofsky usually arrived. She also requested he submit fewer leave
requests, although the requests could be for longer periods of time. Natofsky
contacted Hearn to object to Ulonʹs requests; he explained that an early arrival
allowed him to catch up on emails that he could not respond to while in
meetings, and that Ulon was not understanding of his hearing needs. Hearn
organized a meeting with Ulon and Natofsky to discuss Natofskyʹs concerns,
after which Ulon withdrew her demands.
On March 10, 2014, after Hearnʹs resignation and during Petersʹs and
Pogodaʹs tenures, Ulon wrote Natofsky a counseling memorandum addressing
his performance deficiencies. She asked him ʺto carefully review and edit the
work of [his] staff on routine HR assignments, including the new employee
welcome letters and job postingsʺ as there had been ʺnumerous, repeated
grammatical/typographical and other errors on this type of correspondence.ʺ
In April 2014, Pogoda informed Ulon that the DOI was eliminating
Ulonʹs position. Pogoda offered Ulon a job with a reduced salary in the newly
created New York Police Department Office of the Inspector General, but Ulon
declined and resigned on May 1, 2014.
On her last day, Ulon provided Natofsky with a written evaluation
of his work performance from January 2, 2012 to December 31, 2013. She rated
‐ 7 ‐
his overall performance a two out of five and gave him a ʺneeds improvementʺ
rating in seven of fourteen categories. She stated, among other complaints, that
ʺtasks have not been completed in a timely mannerʺ and ʺ[e]mail responsiveness
needs improvement.ʺ On May 8, 2014, Natofsky appealed his evaluation to
Pogoda, which she denied on September 11, 2014.
D. Pogoda and Peters’s Treatment of Natofsky
Pogoda met Natofsky for the first time on February 21, 2014.
According to Natofsky, Pogoda kept staring at his ears and observing him while
he spoke. Natofsky testified that, on or about March 6, 2014, he told Pogoda
about his hearing disability and that, in response, she shook her head and rolled
her eyes at him. Natofsky further testified that throughout March and April
2014, Pogoda was noticeably impatient when speaking to him and told him that
he needed to speak more clearly and quickly.
In March 2014, Peters had at least one meeting with Pogoda, Ulon,
and Natofsky in which Peters asked about the number of additional people he
could hire based on the budget. Ulon and Natofsky did not know the answer,
prompting Peters to express his frustration with them to Pogoda. On March 5,
2014, Pogoda emailed a DOI Associate Commissioner that ʺShaheen [Ulon] and
Richard [Natofsky] are clueless.ʺ
‐ 8 ‐
In May 2014, Pogoda wrote Natofsky informing him that he would
be demoted to Associate Staff Analyst, and that his salary would be decreased to
$68,466. Natofskyʹs position was temporarily assumed by two non‐disabled
employees: Edgardo Rivera, the new Assistant Commissioner for
Administration, and Shayvonne Nathaniel, the new Director of Administration
for the Office of the Inspector General. Peters testified that he made the decision
to demote Natofsky, although he discussed it with Pogoda.
E. Retaliation and Natofsky’s Resignation
Natofsky wrote an email to both Peters and Pogoda on May 28, 2014,
protesting their decision to demote him. On June 6, 2014, Pogoda informed
Natofsky that he would be moved from his private office to a cubicle. The
cubicle was in a high‐traffic, high‐volume area, and had been used previously by
Natofskyʹs secretary. Natofsky alerted Rivera to the loud volume, and Natofsky
was subsequently moved to a different location.
On June 18, 2014, Natofsky appealed his demotion to the Deputy
Commissioner for Administration in the Department of Citywide Administrative
Services (the ʺDCASʺ), stating that he ʺwas given no justifiable reason as to why
[his] salary was so drastically cut,ʺ and that his demotion was ʺillegitimate and
contrary to law.ʺ On June 23, 2014, DCAS wrote to Rivera regarding Natofskyʹs
‐ 9 ‐
nearly fifty percent pay cut: ʺIn general, managers should not lose more than
20% of their salary when they are reassigned to a lower managerial level or to
their permanent leave line.ʺ However, DCAS noted that a twenty percent cut
from $125,000 ‐‐ Natofskyʹs prior salary ‐‐ would result in a salary above the
maximum allowed for an Associate Staff Analyst, Natofskyʹs new position.
DCAS thus ordered Natofskyʹs salary be raised from $68,466 to $88,649 ‐‐ the
maximum permitted for Natofskyʹs new title. Natofskyʹs salary was readjusted
one month later.
In December 2014, Natofsky resigned from the DOI and began
working as an Operations and Budget Administrator at the New York City
Department of Transportation with a salary of $100,437.
F. The District Court’s Decision
Natofsky filed the complaint in this action on July 22, 2014, alleging
that the City of New York, Pogoda, Ulon, and Peters violated the Rehabilitation
Act by discriminating against Natofsky on the basis of his disability, by failing to
accommodate his hearing impairment, and by retaliating against him when he
complained about their discriminatory actions. He brought similar claims under
state and local law, although he also premised those claims on age
discrimination.
‐ 10 ‐
Following discovery, Defendants moved for summary judgment,
which, on August 8, 2017, the district court granted. Addressing Natofskyʹs
employment discrimination claims, the district court held that (1) Ulonʹs request
that Natofsky adjust his work hours and vacation time was not an adverse
employment action; (2) Natofsky failed to show that Ulon gave her negative
performance review ʺsolely because of Natofskyʹs disability,ʺ (3) Natofsky failed
to demonstrate that Peters demoted Natofsky for any discriminatory reason, and
(4) Pogodaʹs purported discriminatory animus could not be imputed to Peters.
The district court also held that Natofsky had failed to establish a failure‐to‐
accommodate or retaliation claim under the Rehabilitation Act. The district court
declined to exercise supplemental jurisdiction over Natofskyʹs state and city law
claims as it had dismissed all of the claims over which it had original jurisdiction.
This appeal followed.
DISCUSSION
I. MOTION TO SUPPLEMENT THE RECORD
As a preliminary matter, Natofsky has moved pursuant to Federal
Rule of Appellate Procedure 10(e)(2) to supplement the record to include
deposition testimony that he failed to present to the district court. Specifically,
he seeks to include additional transcript pages from Pogodaʹs and Petersʹs
‐ 11 ‐
depositions in an attempt to show that Pogoda, along with Peters, had the
authority to demote Natofsky. Rule 10(e)(2) only permits a party to supplement
the record when that party omitted material evidence ʺby error or accident.ʺ Fed.
R. App. P. 10(e)(2). As we have previously stated, ʺRule 10(e) is not a device for
presenting evidence to this Court that was not before the trial judge.ʺ Eng v. New
York Hosp., 199 F.3d 1322 (2d Cir. 1999). Natofsky admits that he did not omit the
deposition testimony he now seeks to include because of error or mistake. Thus,
his motion to supplement the record must be denied. Defendants’ cross‐motion
to strike Natofsky’s supplementary materials and the portions of his brief that
refer to those materials is granted.
II. MERITS
A. Legal Standard
Natofsky contests the district courtʹs award of summary judgment to
Defendants. We review de novo a grant of summary judgment, ʺconstruing the
evidence in the light most favorable to the nonmoving party and drawing all
reasonable inferences in his favor.ʺ McElwee v. Cty. of Orange, 700 F.3d 635, 640
(2d Cir. 2012). A moving party is entitled to summary judgment where the
record reveals ʺno genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.ʺ Fed. R. Civ. P. 56(a). A factual dispute
‐ 12 ‐
is genuine ʺif the evidence is such that a reasonable jury could return a verdict
for the nonmoving party.ʺ Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
B. Employment Discrimination Claims
1. The Rehabilitation Actʹs Causation Standard for Employment
Discrimination Claims
The district court dismissed Natofsky’s employment discrimination
claims, in part, because Natofsky could not demonstrate that impermissible bias
was ʺthe sole reasonʺ for any of the adverse employment actions he experienced.
Natofsky v. City of New York, No. 14 CIV. 5498 (NRB), 2017 WL 3670037, at *12
(S.D.N.Y. Aug. 8, 2017). On appeal, Natofsky argues that the district court erred
in relying on a sole‐cause standard because the Rehabilitation Act makes a
distinction between employment discrimination claims, which require courts to
adopt the more lenient causation standard used in the Americans with
Disabilities Act (ʺthe ADAʺ), and other types of discrimination claims.
The Rehabilitation Act provides that no individual shall be subject to
discrimination in any program or activity receiving federal financial assistance
ʺsolely by reason of her or his disability.ʺ 29 U.S.C. § 794(a) (emphasis added).
This language differs from the ADA, which makes it unlawful for an employer to
discriminate against an individual ʺon the basis of disability.ʺ 42 U.S.C. § 12112(a)
‐ 13 ‐
(emphasis added). Although the two acts appear to have different causation
standards, Congress amended the Rehabilitation Act in 1992 to add a provision
which states that ʺ[t]he standards used to determine whether this section has
been violated in a complaint alleging employment discrimination . . . shall be the
standards applied under title I of the Americans with Disabilities Act of 1990.ʺ
29 U.S.C. § 794(d).
Whether § 794(d) requires courts to use the ADAʹs causation
standard for claims alleging employment discrimination under the Rehabilitation
Act is an issue of first impression in this Circuit. The two principal cases cited by
Defendants are not dispositive. In Sedor v. Frank, we affirmed the dismissal of a
plaintiffʹs Rehabilitation Act employment discrimination claim because the
plaintiff failed to show that his disability was ʺthe only cause of the discharge‐
triggering conduct.ʺ 42 F.3d 741, 746 (2d Cir. 1994). In Borkowski v. Valley Central
School District, we also accepted the premise that to avoid summary judgment a
plaintiff must ʺintroduce evidence sufficient to permit a factfinder to conclude
that she was denied tenure solely because of her disabilities.ʺ 63 F.3d 131, 143
(2d Cir. 1995). In both Sedor and Borkowski, however, the parties accepted that a
plaintiff had to demonstrate that any adverse employment action was taken
ʺsolelyʺ because of the plaintiffʹs disability. Neither party raised, and this Circuit
‐ 14 ‐
never addressed, the issue of whether § 794(d) altered the causation standard for
employment discrimination claims brought under the Rehabilitation Act.
We now hold that when a plaintiff alleges an employment
discrimination claim under the Rehabilitation Act, the causation standard that
applies is the same one that would govern a complaint alleging employment
discrimination under the ADA. The text of the statute, § 794(d), requires
applying the ADA causation standard to employment discrimination claims
asserted under the Rehabilitation Act. It is an established canon of construction
that a specific provision ʺcontrols over one of more general application.ʺ Gozlon‐
Peretz v. United States, 498 U.S. 395, 407 (1991). Subsection 794(d) is, in our
opinion, more specific than § 794(a) and, therefore, displaces the causation
standard expressed in § 794(a) in the employment discrimination context. In
other words, § 794(a) establishes a general causation standard that applies to
most discrimination claims brought under the Rehabilitation Act, see e.g., Regʹl
Econ. Cmty. Action Program v. City of Middletown, 294 F.3d 35 (2d Cir. 2002)
(applying the ʺsolely by reason ofʺ causation language to a housing
discrimination case), superseded by statute on other grounds, ADA Amendments of
2008, Pub. L. No. 110–325, 122 Stat. 3553, but § 749(d) removes employment
‐ 15 ‐
discrimination claims from the application of § 794(a)ʹs general causation
standard and mandates the application of the ADAʹs causation standard. 1
The other cases cited by Defendants in defense of their position do
not persuade us that our reading of the statute should be otherwise. Parker v.
Columbia Pictures Industries was an employment discrimination case brought
under the ADA, and any discussion of the Rehabilitation Act was dicta. 204 F.3d
326, 337 (2d Cir. 2000). Henrietta D. v. Bloomberg was a case based on the
defendantsʹ failure to provide plaintiffs with public benefits, not an employment
discrimination case. 331 F.3d 261, 272 (2d Cir. 2003). Thus, any discussion of
differences between the ADA and Rehabilitation Act in that case is irrelevant
1 We recognize that our reading of these two provisions conflicts with the Fifth
Circuitʹs holding that § 794(d) does not modify § 794(a)ʹs causation standard in the
employment discrimination context. See Soledad v. U.S. Depʹt of Treasury, 304 F.3d 500,
505 (5th Cir. 2002). In Soledad, the Fifth Circuit found the text of § 794(a) to be more
specific than the text of § 794(d). Id. As stated above, we disagree with this conclusion
because § 794(d) states the causation standard that applies to the general universe of
Rehabilitation Act discrimination cases, and § 794(d), which came later in time, speaks
specifically to the causation standard that applies in employment discrimination cases
brought under the Rehabilitation Act. The Fifth Circuit also found dispositive the fact
that Congress ʺchose not to repeal the ʹsolely by reason ofʹ language of §794(a) when it
amended the statute,ʺ thereby indicating that ʺCongress did not intend to adopt the
ADA standard of causation with the § 794(d) amendment.ʺ Id. This reasoning is
unpersuasive. Establishing § 794(d) as a carve‐out for employment discrimination
claims would not require Congress to amend the language of § 794(a)ʹs general
causation standard because that standard continues to govern all discrimination claims
brought under the Rehabilitation Act except employment discrimination claims.
‐ 16 ‐
here. In Doe v. Board of Education of Fallsburgh Central School District, we stated
that the Rehabilitation Act does not permit mixed‐motive suits. 63 F. Appʹx 46,
48 (2d Cir. 2003). This is not the same as stating that the causation standard of
the Rehabilitation Act for employment discrimination claims is a ʺsolely by
reason ofʺ standard. Finally, Defendants rely on Lewis v. Humboldt Acquisition
Corp., but the argument addressed there was whether the ADA imported the
ʺsolelyʺ causation standard from § 794(a). 681 F.3d 312, 315 (6th Cir. 2012) (en
banc). The Sixth Circuit declined to hold that ʺbecause ofʺ under the ADA meant
a plaintiff must show that his disability was the ʺsoleʺ cause of the adverse
employment action. Id. This is an entirely different question than whether the
Rehabilitation Act contains a carve‐out for employment discrimination claims
pursuant to § 794(d) and renders Lewis irrelevant to the instant issue.
2. The ADAʹs Causation Standard for Employment Discrimination Claims
Having concluded that the Rehabilitation Act incorporates the
ADAʹs causation standard for employment discrimination claims, we must now
clarify the ADA’s causation standard. Title I of the ADA prohibits employers
from ʺdiscriminat[ing] against a qualified individual on the basis of disability in
regard to . . . the hiring, advancement, or discharge of employees.ʺ 42 U.S.C. §
12112(a) (emphasis added). Historically, this Circuit has applied a ʺmixed‐
‐ 17 ‐
motiveʺ test to ADA claims, ʺunder which disability [need only be] one
motivating factor in [the employerʹs] adverse employment action but [need not
be] its sole but‐for cause.ʺ Parker, 204 F.3d at 336. When we decided Parker, the
ADA proscribed discriminatory acts that were engaged in ʺbecause ofʺ a
disability, instead of ʺon the basis of.ʺ See 42 U.S.C. § 12112(a) (1991).
Natofsky argues that, because the Rehabilitation Act incorporates
the ADAʹs causation standard for employment discrimination claims, the district
court erred by not applying a mixed‐motive standard to his discrimination
claims in accordance with Parker. Natofsky argues that he presented sufficient
evidence for a factfinder to conclude that his disability was a ʺmotivating factorʺ
in the adverse employment actions taken against him. Accordingly, he argues,
the district courtʹs decision must be reversed.
Defendants argue that if the Rehabilitation Act does indeed
incorporate by reference the ADAʹs causation standard, then the standard to be
applied to Natofskyʹs employment discrimination claims must be that ʺbut forʺ
the disability, the adverse action would not have been taken. According to
Defendants, the Supreme Court decisions Gross v. FBL Financial Services, Inc., 557
U.S. 167 (2009), and University of Texas Southwestern Medical Center v. Nassar, 570
U.S. 338 (2013), effectively overrule this Circuitʹs decision in Parker. Defendants
‐ 18 ‐
argue that Natofsky has failed to demonstrate that his disability was a but‐for
cause of any adverse employment action taken against him, and that the district
courtʹs decision must be affirmed. For the following reasons, we agree with
Defendants.
The ʺmixed‐motiveʺ test originates from Title VII, which prohibits
employment discrimination ʺbecause ofʺ an individualʹs race, color, religion, sex,
or national origin. 42 U.S.C. § 2000e‐2(a)(1). In 1989, the Supreme Court in Price
Waterhouse v. Hopkins read the prohibition against acting ʺbecause ofʺ a
discriminatory motive to mean that an employer cannot take any illegal criterion
into account. 490 U.S. 229, 240 (1989). Thus, a defendant would be liable under
Title VII if a plaintiff could demonstrate that discrimination was a motivating
factor in the defendantʹs adverse employment action. Id. at 244. A defendant,
however, could avoid all liability if it could prove it would have taken the same
action regardless of any impermissible consideration. Id.
In 1991, Congress amended Title VII and determined that ʺan
unlawful employment practice is established when the complaining party
demonstrates that race, color, religion, sex, or national origin was a motivating
factor for any employment practice, even though other factors also motivated the
practice.ʺ 42 U.S.C. § 2000e‐2(m) (emphasis added). Congress disagreed that an
‐ 19 ‐
employer could avoid all liability by proving it would still have taken the same
adverse action in the absence of discriminatory motivation. Instead, where an
employer could demonstrate that it would have taken the adverse action even in
the absence of discriminatory motivation, Congress denied the plaintiff damages
and limited the plaintiffʹs remedies to ʺdeclaratory relief, injunctive relief . . . ,
and attorneyʹs fees and costs.ʺ 42 U.S.C. § 2000e‐5(g)(2)(B). Even though Price
Waterhouse and the subsequent 1991 Congressional amendments dealt only with
Title VII, the majority of circuit courts, including this one, held that the mixed‐
motive burden‐shifting framework applied equally to other anti‐discrimination
statutes that employed the ʺbecause ofʺ causation language, including, prior to
2008, the ADA. See Parker, 204 F.3d at 336–37.
In 2009, the Supreme Court in Gross addressed whether Title VIIʹs
ʺmotivating factorʺ standard applied outside of the Title VII context to claims
brought under the Age Discrimination in Employment Act (the “ADEA”), which
prohibits employers from ʺdiscriminat[ing] against any individual . . . because of
such individualʹs age.ʺ 27 U.S.C. § 623(a)(1); see also Gross, 557 U.S. at 174. The
Court held that it did not because ʺ[u]nlike Title VII, the ADEAʹs text does not
provide that a plaintiff may establish discrimination by showing that age was
simply a motivating factor.ʺ Gross, 557 U.S. at 174. Furthermore, the Court
‐ 20 ‐
found that Congress must have omitted the language intentionally because, at
the time it added §§ 2000e‐2(m) and 2000e‐5(g)(2)(B) to Title VII, ʺCongress . . .
contemporaneously amended the ADEA in several ways.ʺ Id. Examining the
text of the ADEA, the Court concluded that the words ʺbecause ofʺ mean ʺthat
age was the ʹreasonʹ that the employer decided to act.ʺ Id. at 176. Thus, the
Court held that a plaintiff must prove that age was the but‐for cause of the
employerʹs adverse decision ‐‐ not just a motivating factor. Id.
In Nassar, the Supreme Court revisited the principle defined in
Gross: that the text of an anti‐discrimination statute must expressly provide for a
ʺmotivating factorʺ test before that test can be applied. The Court held that even
though Title VII permits mixed‐motive causation for claims based on the
personal characteristics of race, color, religion, sex, or national origin (i.e.,
“status‐based” discrimination), it does not permit mixed‐motive causation for
retaliation‐based claims. Nassar, 570 U.S. at 360. The Court based its holding on
the text and structure of Title VII. Id. It noted that § 2000e‐2(m), which contains
the mixed‐motive causation provision, ʺmentions just the . . . status‐based
[factors]; and . . . omits the final two, which deal with retaliation.ʺ Id.; see also 42
U.S.C. § 2000e‐2(m). It also noted that ʺCongress inserted [the ʹmixed‐motiveʹ
test] within the section of the statute that deals only with [the status‐based
‐ 21 ‐
factors], not the section that deals with retaliation claims or one of the sections
that apply to all claims of unlawful employment practices.ʺ Id. Because,
according to the Court, Title VII has a ʺdetailed structure,ʺ the Court could
conclude that Congress knew how to word the mixed‐motive provision to
encompass the anti‐retaliation section and intentionally chose not to do so. Id.
As a result, Title VII retaliation ʺmust be proved according to traditional
principles of but‐for causation, not the lessened causation test stated in § 2000e‐
2(m).ʺ Id.
Gross and Nassar dictate our decision here. The ADA does not
include a set of provisions like Title VIIʹs § 2000e‐2(m) (permitting a plaintiff to
prove employment discrimination by showing that discrimination was a
ʺmotivating factorʺ in the adverse decision) and § 2000e‐5(g)(2)(B) (limiting the
remedies available to plaintiffs who can show that discrimination was a
ʺmotivating factorʺ but not a but‐for cause of the adverse decision). There is no
express instruction from Congress in the ADA that the ʺmotivating factorʺ test
applies. Moreover, when Congress added § 2000e‐2(m) to Title VII, it
ʺcontemporaneously amendedʺ the ADA but did not amend it to include a
ʺmotivating factorʺ test. See Pub. L. No. 102‐166, §§ 109, 315; see also Gross, 557
U.S. at 174. We, therefore, join the conclusion reached by the Fourth, Sixth, and
‐ 22 ‐
Seventh Circuits that the ADA requires a plaintiff alleging a claim of
employment discrimination to prove that discrimination was the but‐for cause of
any adverse employment action. See Gentry v. E. W. Partners Club Mgmt. Co. Inc.,
816 F.3d 228, 235–36 (4th Cir. 2016); Lewis, 681 F.3d at 321; Serwatka v. Rockwell
Automation, Inc., 591 F.3d 957, 963–64 (7th Cir. 2010).
Natofsky argues that Gross does not determine the outcome of this
case because, unlike the ADEA, the ADA indirectly incorporates Title VIIʹs
mixed‐motive standard by reference in its ʺEnforcementʺ provision, which states:
The powers, remedies, and procedures set forth in sections 2000e‐4, 2000e‐
5, 2000e‐6, 2000e‐8, and 2000e‐9 of [Title VII] shall be the powers, remedies,
and procedures this subchapter provides to the Commission, to the
Attorney General, or to any person alleging discrimination on the basis of
disability in violation of any provision of this chapter. . . .
42 U.S.C. § 12117(a). Notably absent from this provision, however, is § 2000e‐
2(m), which establishes Title VIIʹs mixed‐motive test. See Gentry, 816 F.3d at 234
(ʺHowever, while [42 U.S.C. § 12117(a)] incorporates Title VIIʹs ʹEnforcement
provisionsʹ in § 2000e–5, it does not incorporate the ʹUnlawful employment
practicesʹ in § 2000e–2, including § 2000e–2(m), which establishes mixed motive
employment practices as unlawful.ʺ).
Natofsky points out that the ADA incorporates § 2000e‐5(g)(2)(B),
which cross‐references § 2000e‐2(m). This cross‐cross‐reference, however, cannot
‐ 23 ‐
be used to create new substantive liability under the ADA as section 2000e‐
5(g)(2)(B) deals exclusively with the remedies available to plaintiffs who have
first proven a violation under § 2000e‐2(m), i.e., a violation based on individualʹs
ʺrace, color, religion, sex, or national origin.ʺ 42 U.S.C. § 2000e‐2(m). Section
2000e‐2(m) makes no mention of disability. An ADA plaintiff will never be able
to invoke § 2000e‐5(g)(2)(B) because, as the Fourth and Sixth Circuits have
explained, an ADA plaintiff can only invoke Title VIIʹs enforcement provisions
after first ʺalleg[ing] a violation of the ADA itself ‐‐ a violation of ʹthis chapter.ʹʺ
Gentry, 816 F.3d at 235 (quoting 42 § U.S.C. 12117(a)); Lewis, 681 F.3d at 319–20.
As stated above, the ADAʹs text does not mention that a violation occurs when
discrimination is the ʺmotivating factorʺ in an employerʹs decision.
Natofsky argues that our interpretation renders the ADAʹs
incorporation of § 2000e‐5 superfluous. This is not so. The majority of the other
provisions in § 2000e‐5 clearly apply to the ADA. See Lewis, 681 F.3d at 230
(ʺ[2000e‐5] contains more than a dozen other provisions detailing procedures
that remain applicable under the ADA.ʺ) By incorporating § 2000e‐5, which
contains all of Title VIIʹs ʺEnforcement provisions,ʺ into the ADA, we can assume
that Congress was aware that some of those provisions would apply only to Title
VII cases. See id. (ʺIn incorporating a wide range of Title VII enforcement
‐ 24 ‐
procedures and remedies into the ADA, it is hardly surprising that some of those
provisions . . . apply by their terms only to Title VII cases.ʺ).
Having determined that the ADA does not incorporate Title VIIʹs
mixed‐motive standard, the remaining question is what precisely ʺon the basis of
disabilityʺ means. 42 U.S.C. § 12112(a). In Gross, the Court held that ʺbecause ofʺ
‐‐ the language used in the ADA prior to the 2008 amendments ‐‐ meant ʺby
reason of: on account ofʺ and required a showing of but‐for causation. Gross, 557
U.S. at 176 (quoting 1 Websterʹs Third New Intʹl Dictionary 194 (1966)). The
Court cited to a prior case, Safeco Insurance Co. of America v. Burr, which stated
that ʺ[i]n common talk, the phrase ʹbased onʹ indicates a but‐for causal
relationship.ʺ Gross, 557 U.S. at 176 (quoting Safeco Ins. Co. of Am. v. Burr, 551
U.S. 47, 63, 64 n.14 (2007)). We find no reason to hold that there is any
meaningful difference between ʺon the basis of,ʺ ʺbecause of,ʺ or ʺbased on,ʺ
which would require courts to use a causation standard other than ʺbut‐for.ʺ We
conclude that ʺon the basis ofʺ in the ADA requires a but‐for causation standard.
Further, nothing in the legislative history of the ADA indicates that
ʺon the basis ofʺ was supposed to lower the causation standard for employment
discrimination claims below the traditional but‐for standard. The ADA
originally prohibited discrimination ʺagainst a qualified individual with a
‐ 25 ‐
disability because of the disability of such individual.ʺ Pub. L. No. 101‐336, § 102
(1990). The ADA Amendments Act of 2008 changed this language, prohibiting
discrimination ʺagainst a qualified individual on the basis of disability.ʺ Pub. L.
No. 110‐325, § 5 (2008). Legislative history suggests that Congress intended this
change to return the ʺADAʹs focusʺ to ʺwhere it should be – the question of
whether the discrimination occurred, not whether the person with a disability is
eligible in the first place.ʺ 154 Cong. Rec. S9626 (Sept. 26, 2008) (statement of Sen.
Reid) (2008); see also 154 Cong. Rec. S8840‐01 (Sept. 16, 2008) (Senate Statement of
Managers) (ʺ[L]ower court cases have too often turned solely on the question of
whether the plaintiff is an individual with a disability rather than the merits of
discrimination claims . . . .ʺ). Thus, as stated by the Fourth Circuit, ʺ[t]he
legislative history suggests the language was changed to decrease the emphasis
on whether a person is disabled, not to lower the causation standard.ʺ Gentry,
816 F.3d at 236.
3. Application of ADAʹs But‐For Causation Standard to Natofskyʹs Claims
Natofsky bases his employment discrimination claims on Pogoda
and Petersʹs decision to demote him, and Ulonʹs conduct when she was his
immediate supervisor. Natofsky has failed to demonstrate that discrimination
based on his disability was the but‐for cause of any of these actions.
‐ 26 ‐
a. Demotion Claim
Natofsky claims that his demotion was caused by unlawful
discrimination based on his hearing disability. The core of his claim is that
Pogoda, not Peters, demoted him with discriminatory intent.
In his statement of material facts in opposition to Defendants’
motion for summary judgment, Natofsky admitted that Peters, not Pogoda,
executed his demotion.2 Natofsky argues, however, that the City may still be
held liable for Petersʹs act because Pogodaʹs discriminatory intent can be imputed
to Peters through a ʺCatʹs Pawʺ theory of liability.
i. Catʹs Paw
Under a Catʹs Paw theory of liability, a discriminatory motive may
be imputed to a final decision‐maker if the decision‐makerʹs adverse
employment action was proximately caused by a subordinate who had a
discriminatory motive ʺand intended to bring about the adverse employment
2 On appeal, Natofsky tries to argue that Pogoda was the ultimate decision‐
maker and points to deposition testimony that could possibly suggest as much.
Natofsky, however, never presented that testimony to the district court. Because we
have denied Natofsky’s motion to supplement the record, we may not rely on that
testimony now.
‐ 27 ‐
action.ʺ Vasquez v. Empress Ambulance Serv., Inc., 835 F.3d 267, 272 (2d Cir. 2016)
(quoting Cook v. IPC Intʹl Corp., 673 F.3d 625, 628 (7th Cir. 2012)). Natofsky
argues that Pogodaʹs animus towards Natofskyʹs disability was the proximate
cause of Petersʹs decision to demote Natofsky.
The Supreme Court and this Circuit have permitted plaintiffs to use
a Catʹs Paw theory of liability in anti‐discrimination statutes requiring the more
lenient mixed‐motive causation standard. See Staub v. Proctor Hosp., 562 U.S. 411,
422 (2011); Vasquez, 835 F.3d at 272–73. Neither the Supreme Court nor this
Circuit, however, has addressed whether the same theory would apply to
statutes requiring plaintiffs to demonstrate that discriminatory intent was the
but‐for cause of an adverse employment action. The district court held that Catʹs
Paw liability does not apply to Rehabilitation Act cases under the assumption
that the stricter ʺsolelyʺ causation standard applies. Natofsky, 2017 WL 3670037,
at *12.
While the question of whether Catʹs Paw liability applies outside of
the mixed‐motive context is an important one, we decline to decide it now.
Defendants never responded on appeal to Natofskyʹs application of Catʹs Paw
liability to the Rehabilitation Act, and, as a consequence, Defendants have
waived any objection to proceeding under this theory. We will therefore assume
‐ 28 ‐
that Natofsky can pursue a Catʹs Paw theory and, thus, any discriminatory intent
harbored by Pogoda can be imputed to Peters.
ii. Liability
Even assuming Pogodaʹs discriminatory intent can be imputed to
Peters, Natofsky failed to present the district court with evidence from which a
reasonable factfinder could conclude that, but for his hearing disability, Natofsky
would not have been demoted. There was ample evidence that Pogoda and
Peters had reason to (and did) think that Natofsky’s performance was deficient
and demoted him on that basis. First, Pogoda noted in March 2014 her view that
Natofsky was ʺclueless.ʺ Second, that same month, Natofsky failed to provide
Peters with information regarding staffing and budgeting at the DOI, two areas
under Natofskyʹs purview. Third, there was a new administration in office that
was restructuring the department in which Natofsky worked. Defendants
presented evidence that other employees had been asked to leave or were
transferred from their positions, including Natofskyʹs immediate supervisor,
Ulon. We conclude that ʺconstruing the evidence in the light most favorableʺ to
Natofsky and ʺdrawing all reasonable inferences in his favor,ʺ no reasonable
juror could conclude that Natofsky would have retained his position but for his
disability. McElwee, 700 F.3d at 640 (2d Cir. 2012).
‐ 29 ‐
We also note that, drawing all inferences in Natofskyʹs favor, no
reasonable factfinder could conclude that the explanation of poor performance
proffered by Pogoda and Peters was pretextual. Pogodaʹs March 2014 email
calling Natofsky ʺclueless,ʺ Ulonʹs negative performance review on or about
May 1, 2014, and Natofsky’s failure to answer Petersʹs staffing and budgetary
inquiries are contemporaneous evidence of Natofskyʹs poor performance. That a
prior administration had praised Natofskyʹs work is not enough to establish that
the new administration could not have concluded that he was underperforming.
See Viola v. Philips Med. Sys. of N. Am., 42 F.3d 712, 717–18 (2d Cir. 1994)
(concluding that a first‐time negative performance review, although given on the
eve of dismissal, was not suspect).
b. Claims Based on Ulonʹs Conduct
Natofsky also argues that Ulonʹs denial of his preferred work hours
and vacation time, as well as the negative performance review she gave him,
constitute adverse employment actions, and that those actions would not have
occurred but for Ulonʹs discriminatory intent. For the reasons set forth below,
we agree with the district courtʹs decision to grant summary judgment to
Defendants on these claims.
‐ 30 ‐
First, fatal to Natofskyʹs claims is his failure to provide evidence of
Ulonʹs discriminatory intent. Natofsky points to Ulonʹs complaints about his
timeliness in responding to emails as evidence of discriminatory intent. He
attributes any delay in responding to emails a result of his inability to reply to
emails during meetings, which he was unable to do because of his hearing
disability. Natofsky, however, points to no evidence that Ulonʹs critique of his
email responsiveness was based specifically on Natofsky’s failure to respond to
emails during meetings, as opposed to a more general critique of his timeliness
in responding to emails. Therefore, criticism of his email practices provides no
basis to conclude that Ulon had discriminatory intent.
Second, Ulonʹs initial demands that Natofsky change his work hours
and vacation time did not adversely affect him because she dropped her
demands after meeting with Hearn and Natofsky. Furthermore, it is unlikely
that these workplace changes, had they even occurred, would count as actionable
adverse actions. See Davis v. New York City Depʹt of Educ., 804 F.3d 231, 235
(2d Cir. 2015) (for an employerʹs action to be ʺmaterially adverse with respect to
the terms and conditions of employment,ʺ it must be ʺmore disruptive than a
mere inconvenience or an alteration of job responsibilitiesʺ (internal quotation
marks omitted)); see e.g., Kaur v. New York City Health & Hosps. Corp., 688 F. Supp.
‐ 31 ‐
2d 317, 332 (S.D.N.Y. 2010) (ʺ[D]enial of vacation time and alteration of Plaintiffʹs
lunch schedule, taken alone, do not rise to the level of an adverse employment
action.ʺ).
Finally, Natofsky’s argument regarding Ulonʹs negative
performance review cannot survive summary judgment because, as stated above,
there is no evidence of Ulonʹs discriminatory intent. In addition, there is no
evidence that either Pogoda or Peters relied upon Ulonʹs review in deciding to
demote Natofsky, and a negative performance review, without any showing of a
negative ramification, cannot constitute an adverse employment action.
Fairbrother v. Morrison, 412 F.3d 39, 56–57 (2d Cir. 2005) (surveying cases and
concluding that a negative performance evaluation cannot be considered an
adverse employment action without evidence that the evaluation ʺaltered . . .
compensation, benefits, or job titleʺ), abrogated on other grounds by Burlington N. &
Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006).
C. Failure‐to‐Accommodate Claim
Natofsky argues that Defendants are liable for violating the
Rehabilitation Act because they failed to accommodate his hearing disability.
Specifically, Natofsky argues that the DOI failed to accommodate his request to
‐ 32 ‐
have a secretary alert him to urgent emails during meetings. We affirm the
district courtʹs judgment against Natofsky on this claim.
To establish a prima facie case of discrimination based on an
employerʹs failure to accommodate a disability, under either the ADA or the
Rehabilitation Act, a plaintiff must demonstrate that ʺ(1) [the plaintiff] is a person
with a disability under the meaning of [the statute in question]; (2) an employer
covered by the statute had notice of his 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.ʺ McBride v. BIC
Consumer Prods. Mfg. Co., 583 F.3d 92, 97 (2d Cir. 2009) (internal quotation marks
omitted); see also Lyons v. Legal Aid Soc., 68 F.3d 1512, 1515 (2d Cir. 1995) (stating
that the elements needed to demonstrate a failure‐to‐accommodate claim under
either the ADA or the Rehabilitation Act are the same). In addition, a plaintiff
must show ʺthe connections between (1) the failure to accommodate a disability,
(2) the performance deficiencies, and (3) the adverse employment action.ʺ Parker
v. Sony Pictures Entmʹt, Inc., 260 F.3d 100, 108 (2d Cir. 2001) (emphasis in
original).
Natofsky has failed to provide evidence from which a reasonable
juror could conclude that (1) the DOIʹs failure to accommodate his disability by
‐ 33 ‐
providing secretarial alerts while he was in meetings resulted in the negative
performance review he received from Ulon, or (2) Ulonʹs negative performance
review ultimately resulted in Natofskyʹs demotion. As previously stated, there is
no evidence that Ulon was referring to Natofskyʹs inability to respond to emails
during meetings in her performance review. Nor as noted earlier is there any
evidence that Pogoda or Peters considered Ulonʹs review when they decided to
demote Natofsky. Accordingly, we find that the district court correctly granted
summary judgment for Defendants on this claim.
D. Retaliation Claim
Natofsky asks us to vacate the district courtʹs dismissal of his
retaliation claims. He argues that (1) Ulon retaliated against him for his
complaints to Hearn, (2) he was demoted in retaliation for appealing Ulonʹs
negative performance review, and (3) the DOI subjected him to a slew of
retaliatory actions ‐‐ including moving him to a noisy cubicle and delaying his
salary adjustment ‐‐ after he contested his demotion. We agree with the district
court that Natofsky failed to provide sufficient support for any claim for
retaliation under the Rehabilitation Act.
ʺ[T]he elements of a retaliation claim under either [the Rehabilitation
Act] or the ADA are (i) a plaintiff was engaged in protected activity; (ii) the
‐ 34 ‐
alleged retaliator knew that plaintiff was involved in protected activity; (iii) an
adverse decision or course of action was taken against plaintiff; and (iv) a causal
connection exists between the protected activity and the adverse action.ʺ Weixel
v. Bd. of Educ. of City of New York, 287 F.3d 138, 148 (2d Cir. 2002) (internal
quotations omitted). ʺA causal connection in retaliation claims can be shown
either ʹ(1) indirectly, by showing that the protected activity was followed closely
by discriminatory treatment, or through other circumstantial evidence such as
disparate treatment of fellow employees who engaged in similar conduct; or (2)
directly, through evidence of retaliatory animus directed against the plaintiff by
the defendant.ʹʺ Littlejohn v. City of New York, 795 F.3d 297, 319 (2d Cir. 2015)
(quoting Gordon v. New York City Bd. of Educ., 232 F.3d 111, 117 (2d Cir. 2000)).
Natofsky’s first claim of retaliation is against Ulon. He argues that
Ulon wrote the March 10, 2014 counseling memo and May 1, 2014 negative
performance review in retaliation for Natofskyʹs decision to complain about Ulon
to Hearn. He argues that the protected activity ‐‐ the decision to speak to Hearn ‐
‐ was followed closely by Ulonʹs adverse employment actions. This argument,
however, must fail because Ulonʹs actions occurred in 2014, almost a year after
the meeting with Hearn ‐‐ too long a period of time for a jury to be able to infer a
causal connection. See Harrison v. U.S. Postal Serv., 450 F. Appʹx 38, 41 (2d Cir.
‐ 35 ‐
2011) (concluding a period of ʺseveral monthsʺ between when a plaintiff engaged
in a protected activity and when he suffered an adverse employment action was
too long to support the inference of a causal connection). Natofsky argues that
Ulon stalled in retaliating against him because she was waiting until Hearn left
the DOI. Natofsky, however, provides no evidence for this assertion, and,
therefore, summary judgment was appropriate for his claim of retaliation based
on Ulonʹs conduct.
Natofsky next argues that Pogoda and Peters retaliated against him
for his decision to appeal Ulonʹs negative performance review on May 8, 2014 by
demoting him. This claim fails for two reasons. First, appealing a negative
performance review is not a protected activity that can give rise to a retaliation
claim. ʺProtected activityʺ is ʺaction taken to protest or oppose statutorily
prohibited discrimination.ʺ Cruz v. Coach Stores, Inc., 202 F.3d 560, 566 (2d Cir.
2000), superseded on other grounds by N.Y.C. Local L. No. 85. The record shows
that Natofsky was not protesting discrimination in his appeal but offering a
defense of why he may have been slow in responding to emails. Second, the
record reveals that the decision to reorganize the department and demote
Natofsky was made in March or April 2014, in advance of Ulonʹs performance
review and Natofskyʹs decision to appeal that review. Thus, Natofsky’s
‐ 36 ‐
demotion could not have been in retaliation for his appeal of Ulonʹs performance
review. The district court properly awarded Defendants summary judgment on
this claim.
Natofskyʹs final retaliation claim relating to the challenges he made
to his demotion cannot survive summary judgment because those challenges also
do not constitute protected activity. Natofsky challenged his demotion first by
sending the May 28, 2014 email to Peters and Pogoda, and then by appealing to
DCAS on June 18, 2014. Neither gave any specific indication that Natofsky was
protesting discrimination. Natofskyʹs May 28, 2014 email and DCAS appeal
stated that his demotion was ʺillegitimate and contrary to law.ʺ This statement is
too general to indicate that Natofsky was protesting his demotion as
discriminatory and, therefore, cannot sustain a retaliation claim. Lucio v. New
York City Depʹt of Educ., 575 F. Appʹx 3, 6 (2d Cir. 2014) (ʺWhile it is unnecessary
for an individual to specifically invoke the word discrimination when
complaining in order to alert her employer to her protected activity, there must
be some basis to conclude that the employer was aware that the plaintiff engaged
in protected activity.ʺ). Thus, we affirm the district court’s grant of summary
judgment on Natofskyʹs retaliation claims.
‐ 37 ‐
CONCLUSION
Accordingly, for the reasons set forth above, the judgment of the
district court is AFFIRMED. The motion to supplement the record on appeal is
hereby DENIED, and the cross‐motion to strike supplementary materials and
any reference to those materials in Natofsky’s brief is GRANTED.
‐ 38 ‐
CHIN, Circuit Judge, dissenting:
The district court granted summary judgment dismissing plaintiff‐
appellant Richard Natofkyʹs claims on the basis that a reasonable jury could not
find that his disability was a but‐for cause of the employerʹs actions. The
majority affirms. While I agree that a but‐for causation standard applies to the
retaliation claim, I believe that the discrimination and failure‐to‐accommodate
claims brought under the Rehabilitation Act are governed by the same standard
that the courts have uniformly applied for more than two decades ‐‐ the
motivating‐factor standard. Accordingly, I concur in the dismissal of the
retaliation claim, but I dissent from the dismissal of the discrimination and
failure‐to‐accommodate claims.
I agree with the majority that the Rehabilitation Act incorporates the
causation standard of the Americans with Disabilities Act (the ʺADAʺ). The issue
is whether the ADA continues to use a motivating‐factor standard, even in light
of the 2008 Amendments to the ADA and the Supreme Courtʹs decisions in Gross
v. FBL Fin. Servs., Inc., 557 U.S. 167 (2009), and Univ. of Tex. Sw. Med. Ctr. v.
Nassar, 570 U.S. 338 (2013). I respectfully disagree with the majorityʹs conclusion
that a but‐for standard now governs ADA and Rehabilitation Act claims.
First, the reasoning in Gross does not apply to ADA claims. In Gross,
the Supreme Court analyzed which causation standard governs claims under the
Age Discrimination in Employment Act (the ʺADEAʺ) ‐‐ not claims under the
ADA. The Court cautioned that ʺwe ʹmust be careful not to apply rules
applicable under one statute to a different statute without careful and critical
examination.ʹʺ Gross, 557 U.S. at 174 (quoting Fed. Express Corp. v. Holowecki, 552
U.S. 389, 393 (2008)). The Court then noted that Title VII did not control its
construction of the ADEA because ʺTitle VII is materially different with respect
to the relevant burden of persuasion.ʺ Id. at 173. Importantly, the ADA
incorporates the powers, remedies, and procedures of Title VII, see 42 U.S.C.
§ 12117(a) (incorporating ʺ[t]he powers, remedies, and procedures set forth in
sections 2000e‐4, 2000e‐5, 2000e‐6, 2000e‐8, and 2000e‐9ʺ), whereas the ADEA
incorporates the powers, remedies, and procedures of the Fair Labor Standards
Act, see 29 U.S.C. § 626(b) (ʺThe provisions of this chapter shall be enforced in
accordance with the powers, remedies, and procedures provided in sections
211(b), 216 (except for subsection (a) thereof), and 217 of this title, and subsection
(c) of this section.ʺ). Hence, different rules apply to the ADA and Rehabilitation
Act than to the ADEA.
2
Moreover, in Gross, the Supreme Court held that ADEA claims are
governed by the but‐for standard ‐‐ not the motivating‐factor standard ‐‐ because
(1) the Court had ʺnever heldʺ that Title VIIʹs motivating‐factor standard applies
to ADEA claims, and (2) ʺCongress neglected to add such a [motivating‐factor]
provision to the ADEA when it amended Title VII to add §§ 2000e‐2(m) and
2000e‐5(g)(2)(B), even though it contemporaneously amended the ADEA in
several ways.ʺ Id. at 174‐75.
These rationales do not apply to the ADA. The motivating‐factor
standard has governed ADA claims for more than two decades. See, e.g., Parker
v. Columbia Pictures Indus., 204 F.3d 326, 337 (2d Cir. 2000); Pedigo v. P.A.M.
Transp., Inc., 60 F.3d 1300, 1301 (8th Cir. 1995). Furthermore, when Congress
amended Title VII in 1991 to include the motivating‐factor language, see Civil
Rights Act of 1991, Pub. L. No. 102‐166, §§ 107, 109, 105 Stat. 1071, 1076‐78 (1991),
it incorporated the motivating‐factor language into the ADA, as the ADA
explicitly refers to and adopts the enforcement provisions of Title VII, including
§ 2000e‐5, see 42 U.S.C. § 12117(a). We, therefore, cannot draw the same inference
from Congressʹs actions as the Supreme Court did in Gross for the ADEA. See
also Lewis v. Humboldt Acquisition Corp., 681 F.3d 312, 324 (6th Cir. 2012) (Clay, J.,
3
dissenting) (explaining why the rationale of Gross does not apply to the ADA); id.
at 326 (Stranch, J., dissenting) (providing context for the enactment of the ADA
and the Civil Rights Act of 1991 and arguing that the motivating‐factor standard
applies). But see Gentry v. E. W. Partners Club Mgmt. Co. Inc., 816 F.3d 228, 234‐35
(4th Cir. 2016) (applying the rationale from Gross to the ADA); Lewis, 681 F.3d at
318‐19 (en banc) (same); Serwatka v. Rockwell Automation, Inc., 591 F.3d 957, 962
(7th Cir. 2010) (same).
Second, the 2008 Amendments show that Congress wanted to retain,
not eliminate, the motivating‐factor standard. The primary purpose of the 2008
Amendments was to ʺreinstat[e] a broad scope of protection to be available
under the ADAʺ because several Supreme Court cases had narrowed that scope
of protection. ADA Amendments Act of 2008, Pub. L. No. 110‐325, § 2(b), 122
Stat. 3553, 3554 (2008). It is not clear, then, why, as the majority suggests, the
2008 Amendments would warrant deviating from the motivating‐factor standard
we, and our sister circuits, applied for years before the amendments. See, e.g.,
Head v. Glacier Nw. Inc., 413 F.3d 1053, 1065 (9th Cir. 2005); Parker, 204 F.3d at 337;
Baird ex rel. Baird v. Rose, 192 F.3d 462, 470 (4th Cir. 1999); Foster v. Arthur
Andersen, LLP, 168 F.3d 1029, 1033‐34 (7th Cir. 1999); McNely v. Ocala Star‐Banner
4
Corp., 99 F.3d 1068, 1076 (11th Cir. 1996); Katz v. City Metal Co., 87 F.3d 26, 33 (1st
Cir. 1996); Buchanan v. City of San Antonio, 85 F.3d 196, 200 (5th Cir. 1996); Pedigo,
60 F.3d at 1301.
Moreover, Congress knew that courts applied the motivating‐factor
standard in evaluating ADA claims. It could have changed the ADAʹs causation
standard with the 2008 Amendments, but it did not do so. ʺ[W]e have
recognized that Congressʹ failure to disturb a consistent judicial interpretation of
a statute may provide some indication that Congress at least acquiesces in, and
apparently affirms, that interpretation.ʺ Monessen Sw. Ry. Co. v. Morgan, 486 U.S.
330, 338 (1988) (internal quotation marks and alteration omitted). The fact that
Congress amended the ADA to reject an interpretation of the ADA that was not
aligned with Congressʹs intent demonstrates that it likely would have done so for
the ADAʹs causation standard if the courts, in applying the motivating‐factor
standard, were applying the wrong standard. Its decision not to amend the ADA
indicates its at least implicit acceptance of the motivating‐factor standard.
Third, the language of the ADA confirms that the motivating‐factor
standard still applies. While the ADA does not explicitly incorporate § 2000e‐2,
it does incorporate § 2000e‐5, and § 2000e‐5(g)(2)(B) specifically refers to the
5
motivating factor standard. See 42 U.S.C. § 12117(a).1 If we interpret the ADA to
apply the but‐for standard of causation, that provision would be rendered
irrelevant and superfluous. See, e.g., Natʹl Assʹn of Mfrs. v. Depʹt of Def., 138 S. Ct.
617, 632 (2018) (ʺThe Court is obliged to give effect, if possible, to every word
Congress used.ʺ (internal quotation marks omitted)); Rubin v. Islamic Republic of
Iran, 138 S. Ct. 816, 824 (2018) (ʺ[A] statute should be construed so that effect is
given to all its provisions, so that no part will be inoperative or superfluous, void
or insignificant.ʺ (internal quotation marks omitted)). But see Lewis, 681 F.3d at
319‐20 (concluding that ʺthe ADAʹs incorporation of § 2000e‐5 [is not]
meaninglessʺ because it contains ʺdozens of other provisions . . . that remain
applicable under the ADAʺ). Moreover, there is nothing to indicate that
Congress chose not to incorporate § 2000e‐2 into the ADA with the intent that the
stricter causation standard would apply. Indeed, if that had been its intent, it
would have omitted § 2000e‐5(g)(2)(B), and it surely would have explained why
1 In relevant part, § 2000e‐5(g)(2)(B) provides that where an individual proves a violation of
§ 2000e‐2(m) (ʺan unlawful employment practice is established when the complaining party demonstrates
that race, color, religion, sex, or national origin was a motivating factor for any employment practice,
even though other factors also motivated the practiceʺ), the relief is limited if the ʺrespondent
demonstrates that the respondent would have taken the same action in the absence of the motivating
factor.ʺ But see Lewis, 681 F.3d at 320 (explaining that ʺ§ 2000e–5 does not direct judges to apply the
substantive motivating factor standard from § 2000e–2(m); it permits them only to provide a remedy for
plaintiffs who prove a violation under section 2000e–2(m),ʺ which ʺsays nothing about disability statusʺ
(internal quotation marks and alterations omitted)).
6
it was making such a significant change. See also id. at 325 (Clay, J., dissenting)
(explaining why a but‐for standard imposes a greater burden on individuals than
Congress intended).
Finally, the ADAʹs legislative history makes clear that Congress
intended claims under the ADA to continue to have the same causation standard
as claims under Title VII. When Congress enacted the ADA, it intended for the
ADAʹs remedies to ʺparallelʺ Title VIIʹs remedies because ʺ[t]he remedies should
remain the same, for minorities, for women, and for persons with disabilities.
No more. No less.ʺ 136 Cong. Rec. H2615 (daily ed. May 22, 1990) (statement of
Rep. Edwards). A House Report explained that ʺif the powers, remedies and
procedures change in [T]itle VII of the 1964 Act, they will change identically
under the ADA for persons with disabilities.ʺ H.R. Rep. No. 101‐485, pt. 3, at 48
(1990), as reprinted in 1990 U.S.C.C.A.N. 445, 471. Therefore, ʺ[b]y retaining the
cross‐reference to [T]itle VII, the Committeeʹs intent [wa]s that the remedies of
[T]itle VII, currently and as amended in the future, will be applicable to persons
with disabilities.ʺ Id. (emphasis added); see also Lewis, 681 F.3d at 322‐23 (Clay, J.,
dissenting) (explaining why the ADAʹs legislative history supports applying a
motivating‐factor standard).
7
For those reasons, I believe the ADAʹs causation standard continues
to be the motivating‐factor standard. Because the Rehabilitation Act incorporates
the ADAʹs causation standard, the motivating‐factor standard applies to
Natofskyʹs claims. Under the motivating‐factor standard, Natofsky ʺmust show
only that disability played a motivating roleʺ in defendantsʹ decision to take
adverse employment action; Natofsky ʺneed not demonstrate that disability was
the sole cause of the adverse employment action.ʺ Parker, 204 F.3d at 337.
Here, Natofsky has put forth evidence that Pogoda and Ulon were at
least motivated in part by Natofskyʹs disability. First, Natofsky presented
evidence that Pogoda ‐‐ whose discriminatory intent can be imputed to Peters,
see Vasquez v. Empress Ambulance Serv., Inc., 835 F.3d 267, 272‐73 (2d Cir. 2016)
(applying catʹs paw theory of liability to a claim evaluated under the mixed‐
motive causation standard) ‐‐ fixated on the physical markers of his hearing
disability, shook her head in disgust and rolled her eyes after Natofsky told her
about his hearing disability, demanded he speak faster, and otherwise ridiculed
him for his speech. Second, as evidence of Ulonʹs discriminatory animus,
Natofsky presented evidence of two conversations during which his disability
was discussed: his exchange with Ulon about email responsiveness and Hearnʹs
8
conversation with Ulon regarding Natofskyʹs hours and vacation request. There
was other evidence as well, including inexplicably harsh treatment: when new
management came in, Natofsky quickly fell from a highly compensated, highly‐
evaluated supervisor to a poorly‐evaluated generalist making just over half his
prior salary and confined to what had been his former assistantʹs cubicle.
ʺ[C]onstruing the evidence in the light most favorableʺ to Natofsky and ʺdrawing
all reasonable inferences in his favor,ʺ a reasonable juror could conclude that
Natofskyʹs disability was a motivating factor in the adverse employment actions
against him and that the reasons stated by Pogoda, Peters, and Ulon were
pretextual. McElwee v. Cty. of Orange, 700 F.3d 635, 640 (2d Cir. 2012).
Accordingly, I would vacate the district courtʹs award of summary
judgment dismissing Natofskyʹs discrimination and failure‐to‐accommodate
claims and remand for those claims to be considered under the correct legal
standard, and I respectfully dissent to that extent.
9
