UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

THIS SUMMARY ORDER WILL NOT BE PUBLISHED IN THE FEDERAL REPORTER

AND MAY NOT BE CITED AS PRECEDENTIAL AUTHORITY TO THIS OR ANY

OTHER COURT, BUT MAY BE CALLED TO THE ATTENTION OF THIS OR ANY

OTHER COURT IN A SUBSEQUENT STAGE OF THIS CASE, IN A RELATED

CASE, OR IN ANY CASE FOR PURPOSES OF COLLATERAL ESTOPPEL OR RES

JUDICATA.

At a stated term of the United States Court of Appeals for

the Second Circuit, held at the Thurgood Marshall United States

Courthouse, at Foley Square, in the City of New York, on the 7th

day of November, two thousand and five.

PRESENT:

Hon. John M. Walker, Jr.,

Chief Judge,

Hon. Wilfred Feinberg,

Hon. Richard J. Cardamone,

Circuit Judges.

X

SHELLEY MOODY,

Plaintiff-Appellant,

- v. - No. 05-0695-cv

NEW YORK CITY DEPARTMENT OF CORRECTIONS

and ROBERT KELLEY,

Defendants-Appellees.

X

APPEARING FOR APPELLANT: THOMAS P. HARTNETT, New York, NY.

APPEARING FOR APPELLEES: FAY NG (MICHAEL A CARDOZO,

Corporation Counsel of the City of

New York, PAMELA SEIDER DOLGOW, of

counsel, on the brief), New York, NY.

Appeal from the United States District Court for the Eastern District of New York (Sandra L. Townes, Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the judgment of the district court be and it hereby is AFFIRMED.

Plaintiff-appellant Shelley Moody appeals from a November 8, 2004, judgment of the United States District Court for the Eastern District of New York (Sandra L. Townes, Judge) granting summary judgment for defendants-appellees New York City Department of Corrections and Robert Kelley ("defendants").

We review de novo the grant or denial of summary judgment.

Tasini v. N.Y. Times Co., 206 F.3d 161, 165 (2d Cir. 2000). We assume the parties' familiarity with the facts and the procedural history.

On appeal, Moody argues that the district court erred in holding that she did not present genuine issues of material fact for trial on her discrimination and retaliation claims under the Americans With Disabilities Act of 1990 ("ADA"), codified at 42 U.S.C. § 12101 et seq. Our independent review of the record, however, reveals no error. Moody has not presented sufficient evidence to establish that she suffered an adverse employment action as a result of her disability ­ a common element of both her discrimination and retaliation claims. Shannon v. N.Y. City Transit Auth., 332 F.3d 95, 99 (2d Cir. 2003) (setting forth the elements of a disability discrimination claim); Treglia v. Town of Manlius, 313 F.3d 713, 719 (2d Cir. 2002) (setting forth the elements to establish a prima facie case of retaliation). Her termination is not part of the complaint; therefore, we will not consider it on this appeal. To the extent that she relies on general allegations of harassment to satisfy her burden of showing an adverse employment action, even if we assume that these allegations are of the requisite specificity to present a genuine issue of material fact on summary judgment, see Fed. R.

Civ. P. 56(e), we hold that they are insufficient to demonstrate that she endured a "materially adverse change" in the terms and conditions of her employment. Treglia, 313 F.3d at 720 (defining adverse employment action in ADA claims). And nowhere does Moody contend that her harassment amounted to a hostile work environment.

Moody also has failed to present evidence sufficient to establish that the Department did not take reasonable steps to accommodate her disability. She was assigned to an acceptable facility, was given access to a refrigerator to which inmates would not have access, could eat at her post, and was routinely granted paid sick leave when she was unable to work. To the extent that Moody's declaration could be read to present facts that the defendants did not take reasonable steps to accommodate her disability, she offers no evidence that "an accommodation exists that [would] permit[] her to perform [her] job's essential functions." Jackan v. N.Y. State Dep't of Labor, 205 F.3d 562, 566 (2d Cir. 2000) (quoting Borkowski v. Valley Cent. Sch. Dist., 63 F.3d 131, 137-38 (2d Cir. 1995)).

We have considered Moody's remaining arguments and find them to be without merit.

Accordingly, and for the foregoing reasons, the judgment of the district court is hereby AFFIRMED.

FOR THE COURT: Roseann B. MacKechnie, Clerk By: Lucille Carr, Deputy Clerk