McElwee v. Cnty. of Orange
| Citation | 700 F.3d 635 |
| Decision Date | 15 November 2012 |
| Docket Number | Docket No. 11–4366–cv. |
| Parties | James C. McELWEE, Plaintiff–Appellant, v. COUNTY OF ORANGE, Defendant–Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
OPINION TEXT STARTS HERE
Stephen Bergstein, Bergstein & Ullrich, LLP, Chester, NY, for Plaintiff–Appellant.
Karen Folster Lesperance (David L. Posner, on the brief), McCabe & Mack LLP, Poughkeepsie, NY, for Defendant–Appellee.
Brian D. East, Disability Rights Texas, Austin, TX, for Amici Curiae National Disability Rights Network and Autism Speaks.
Before: RAGGI, CHIN, and CARNEY, Circuit Judges.
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.
On November 24, 2009, Darwin and Amy Fey, the Director of Activities, met with McElwee to inform him that someone had complained about his behavior and to discuss the allegations with him. When Darwin asked McElwee if he knew who the complainant might be, McElwee replied that it might be a social worker named Lindsay because he “look[s] at her and talk[s] to her.” When Darwin told McElwee that it was not Lindsay, he guessed that it might be a particular nurse's aide, admitting, “I talk to her too, and look at her.” McElwee then said that God was trying to punish him because of his “history,” and he explained that when he was in high school he “made a mean phone call to a girl, saying nasty/dirty things.” McElwee further stated, “there needs to be punishment and now,” and made a gesture simulating slitting his throat. When Darwin asked him what he meant, McElwee replied that he “deserve[d] to be punished when [he does] bad things.” McElwee then made an angry face and said, “just when I think someone is going to pat me on the back someone stabs me,” simultaneously making a gesture as if he were holding a knife and repeatedly stabbing himself in the back. When Darwin informed McElwee that it was Thompson who had complained about him, he said:
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 Darwin that McElwee once said to her, “[d]o you realize what I could do to you?” in what she felt was a threatening way. Eric Gould, a security guard at Valley View, told Darwin that Thompson and Murphy had complained to him that McElwee's behavior made them feel uncomfortable. Gould also said he had observed McElwee leering at and acting inappropriately around female nursing students and visitors.
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.1
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...
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