Richard Natofsky v. The City of New York

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

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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‐toaccommodate

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.

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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.

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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

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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

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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

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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

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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.

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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‐toaccommodate

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

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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

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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)

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(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 dischargetriggering

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

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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

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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.

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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‐

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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

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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

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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 mixedmotive

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

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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

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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

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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

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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

‐ 25 ‐

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

‐ 26 ‐

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.

‐ 27 ‐

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 decisionmaker

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.

‐ 28 ‐

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

‐ 29 ‐

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).

‐ 30 ‐

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.

‐ 31 ‐

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.

‐ 32 ‐

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

‐ 33 ‐

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

‐ 34 ‐

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

‐ 35 ‐

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.

‐ 36 ‐

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

‐ 37 ‐

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.

‐ 38 ‐

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.

CHIN, Circuit Judge, dissenting:

The district court granted summary judgment dismissing plaintiffappellant

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.

2

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.

3

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.,

4

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

5

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

6

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)).

7

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).

8

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 mixedmotive

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

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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, highlyevaluated

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.

Affirmed