Evelyn GRAHAM, Plaintiff-Appellant, v. MACY'S INC., aka Macy's Retail Holdings, Inc., Defendant-Appellee, Paul A. Engelmayer, District Judge, Defendant, 675 F. App'x 81

SUMMARY ORDER Plaintiff-appellant Evelyn Graham, proceeding pro se, appeals from a judgment in favor of Macy’s Inc. (“Macy’

s) in her suit under the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101, et seq. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal. We review de novo the dismissal of a complaint pursuant to Federal Rule of Civil Procedure 12(b)(6), accepting all factual allegations as true and drawing all reasonable inferences in plaintiffs favor. Biro v. Condé Nast, 807 F.3d 541, 544 (2d Cir. 2015). The complaint must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007); see also Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). Although a court must accept as true all the factual allegations in the complaint, that requirement is “inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. Upon review, we conclude that the district court properly dismissed Graham’s Amended Complaint. Except as discussed below, we affirm the judgment for substantially the reasons stated by the district court in its thorough January 28, 2016 decision.

The district court did not explicitly address several of Graham’s allegations. However, we conclude that Graham’s unaddressed allegations were also insufficient to state a claim. Graham’s allegation that Macy’s retaliated against her by opposing her application for unemployment benefits was insufficient to identify “a materially adverse change in the terms and conditions of employment.” Galabya v. N.Y.C. Bd. of Educ., 202 F.3d 636, 640 (2d Cir. 2000) (internal quotation marks omitted).

The opposition was withdrawn after a week, and the application for unemployment benefits, by definition, postdated Graham’s employment. And with respect to Graham’s allegations that Macy’s failed to accommodate her disability by allowing breaks every thirty minutes, she failed to allege that she gave Macy’s notice that breaks were needed as a reasonable accommodation. See Graves v. Finch Pruyn & Co., 457 F.3d 181, 184 (2d Cir. 2006) (“[Generally, it is the responsibility of the individual with a disability to inform the employer that an accommodation is needed.” (internal quotation marks omitted)).

Additionally, Graham alleged in her amended complaint and opposition papers that she was denied a reasonable accommodation on her return from a leave of absence in 2013, primarily because Macy’s did not engage in an interactive process, as required by the ADA. On appeal, Graham has reframed this claim: she now argues that Macy’s violated the ADA by attempting to engage in an interactive process to determine how to accommodate Graham’s bipolar disorder, an accommodation Graham never requested.

However, we conclude that, even construing her allegations to support a disability-discrimination claim rather than a failure-to-accommodate claim, these allegations fail to state a claim because Graham did not plausibly allege that, at the time of her anticipated return from medical leave, she could perform the essential functions of her job despite her disability. See McMillan v. City of N.Y., 711 F.3d 120, 125 (2d Cir. 2013) (listing elements for ADA discrimination claim), We have considered Graham’s remaining arguments and find them to be without merit. Accordingly, we AFFIRM the district court’s judgment. .

Graham repeatedly refers to a 2011 medical leave request form, which she attached to her Amended Complaint, as a request for breaks as an accommodation. The document’s reference to a short period of time in which Graham would be unable to, inter alia, stand for more than thirty minutes was insufficient to give Macy’s notice that breaks would be required after she returned from medical leave.