Federal District Court dismissed an employee's [Petitioner] claim that his public employer [City] had unlawfully discriminated against him and took retaliatory actions against in violation of the Americans with Disabilities Act [ ] and the New York State Human Rights Law [NYSHRL]. ADA
Petitioner appealed the district court's ruling to the United States Circuit Court of Appeal, challenging three conclusions of the District Court that Petitioner:
 was not disabled after he returned to work;
 failed to show the existence of an accommodation that would allow him to
perform the essential functions of his employment; and
 did not produce evidence sufficient to show discrimination or retaliation.
Deciding that it need not consider Petitioner's first challenge, i.e., did the District Court erred in determining that Petitioner was disabled after he returned to work as, assuming, but not deciding that Petitioner was disabled after he returned to work,* the Circuit Court held that Petitioner's "claims fail as a matter of law" as he did not meet his burdens of "both production and persuasion as to the existence of some accommodation that would allow [him] to perform the essential functions of [his] employment.”
The Circuit Court explained that Petitioner failed to provide evidence of a reasonable accommodation, which “may include modification of job duties and schedules, alteration of the facilities in which a job is performed, acquisition of devices to assist the performance of job duties, and, under certain circumstances, reassignment to a vacant position.” Thus, said the court, Plaintiff's failure to accommodate claim fails as a matter of law, citing Borkowski v. Valley Cent. Sch. Dist., 63 F.3d 131.
Turning to Plaintiff's claim that he suffered discrimination and retaliation based on his three-day and subsequent termination from his position. Plaintiff argued that the City's discriminatory or retaliatory intent was demonstrated by "[a] the temporal proximity between his placement on light duty and his suspension the following business day and [b] the failure of the employer "to engage with him in an interactive process to identify a potential reasonable accommodation."
The City rebutted these allegations by explaining that Petitioner's suspension and later termination resulted from Petitioner's "numerous disciplinary infractions, several of which pre-date the time of his first injury."
Conceding that “A plaintiff can indirectly establish a causal connection to support a discrimination or retaliation claim by showing that the protected activity was closely followed in time by the adverse employment action” and that “an employer’s failure to engage in a good faith interactive process [to identify a reasonable accommodation] can be introduced as evidence tending to show disability discrimination,” the Circuit Court opined that "temporal proximity alone is 'insufficient to satisfy [plaintiff’s] burden' at the third stage of the McDonnell Douglas analysis." Considering his "prolific and longstanding disciplinary record," the court held that Plaintiff had not adduced sufficient evidence for a reasonable jury to conclude that the City had suspended or terminated Plaintiff for discriminatory or retaliatory reasons rather than as a result of his disciplinary problems.
Finally, said the court, "for the same reasons stated above, even assuming without deciding that an ADA mixed-motive discrimination claim under the framework set out in Price Waterhouse v. Hopkins, 490 U.S. 228 ... is still viable after Gross v. FBL Fin. Servs., Inc., 557 U.S. 167," Plaintiff failed to produced evidence warranting a shift in burden under Price Waterhouse.
The Circuit Court explained that “[T]o warrant a mixed motive burden shift, the plaintiff must be able to produce a smoking gun or at least a thick cloud of smoke to support his [or her] allegations of discriminatory treatment.”
Accordingly, the Circuit Court of Appeals affirmed the judgment of the District Court.
* The Circuit Court of Appeals noted that Petitioner did not argued that the District Court erred by dismissing his NYSHRL claims for the same reasons as his
The decision is posted on the Internet at: