    16-991
    Daley v. Cablevision




                            UNITED STATES COURT OF APPEALS
                                FOR THE SECOND CIRCUIT

                                    SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

                  At a stated term of the United States Court of Appeals for the Second Circuit,
    held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of
    New York, on the 6th day of February, two thousand seventeen.

    PRESENT:
                PETER W. HALL,
                DEBRA ANN LIVINGSTON,
                CHRISTOPHER F. DRONEY,
                      Circuit Judges.
    _____________________________________

    Michael Daley,

                             Plaintiff-Appellant,

                       v.                                                       16-991

    Cablevision Systems Corporation,

                             Defendant-Appellee,

    Terry McCue, Thomas Davis, Ed Addon,
    Chris Fulton,

                      Defendants.
    _____________________________________

    FOR PLAINTIFF-APPELLANT:                        Michael Daley, pro se, Spring Valley, NY.
FOR DEFENDANT-APPELLEE:                       Michelle S. Silverman, Joseph A. Nuccio,
                                              Morgan, Lewis & Bockius LLP
                                              Princeton, NJ.

       Appeal from a judgment of the United States District Court for the Southern District of

New York (Román, J.).


       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

       Appellant Michael Daley, proceeding pro se, appeals from the district court’s grant of

summary judgment in favor of his former employer, Cablevision Systems Corporation

(“Cablevision”), on his claims of disability discrimination and retaliation in violation of the

Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., the Rehabilitation Act of

1973, 29 U.S.C. § 701 et seq., the New York State Human Rights Law, N.Y. Exec. Law § 290 et

seq., and the Family and Medical Leave Act of 1993 (“FMLA”), 29 U.S.C. § 2601 et seq. Daley

alleged that he was denied a reassignment and terminated from his position as an Advanced Field

Technician after he underwent shoulder surgery. We assume the parties’ familiarity with the

underlying facts, the procedural history of the case, and the issues on appeal.

       We review de novo a district court’s grant of summary judgment, with the view that

summary judgment is appropriate only “if the movant shows that there is no genuine dispute as to

any material fact and the movant is entitled to judgment as a matter of law.” Sousa v. Marquez,

702 F.3d 124, 127 (2d Cir. 2012) (quoting Fed. R. Civ. P. 56(a)). Upon review, we conclude that

the district court properly granted summary judgment in favor of Cablevision.

       Contrary to Daley’s contention on appeal, the district court did not grant summary

judgment on the sole ground that Daley failed to submit a statement of material facts pursuant to
Rule 56.1(b) of the Local Civil Rules of the United States District Courts for the Southern and

Eastern Districts of New York. Rather, the court exercised its discretion to “conduct an assiduous

review of the record” in order to determine whether a genuine dispute of material fact existed and

concluded that one did not. See Holtz v. Rockefeller & Co., 258 F.3d 62, 73 (2d Cir. 2001)

(quoting Monahan v. N.Y.C. Dep’t of Corr., 214 F.3d 275, 292 (2d Cir. 2000)).

       Upon a de novo review of the record, we conclude that the district court properly granted

summary judgment in favor of the defendant. The only potential error in the district court’s

thorough opinion was the court’s conclusion that Daley’s ADA retaliation claim could not be

“premised upon his request for an accommodation or participation in” Cablevision’s job search

accommodation process. S.A. 223. It is not entirely clear whether that conclusion is correct

under our case law. See Weixel v. Bd. of Educ. of N.Y., 287 F.3d 138, 149 (2d Cir. 2002) (citing

Muller v. Costello, 187 F.3d 298, 311 (2d Cir. 1999)) (concluding that seeking reasonable

accommodation constitutes protected activity under the ADA and noting in parenthetical citation

that an ADA “retaliation claim can be based on, inter alia, [a] request for reasonable

accommodation”). Even assuming without deciding, however, that the district court’s conclusion

was incorrect, and that Daley could make out a prima facie case of retaliation, the district court

noted that Cablevision proffered legitimate, non-discriminatory reasons for terminating Daley, and

that Daley did not respond by presenting evidence that could reasonably establish that those

reasons were pretextual. See Widomski v. State Univ. of N.Y. (SUNY) at Orange, 748 F.3d 471,

476 (2d Cir. 2014) (per curiam) (“Claims for retaliation [under the ADA] are analyzed under the

same burden-shifting framework established for Title VII cases.” (alteration in original) (quoting



                                                3
Treglia v. Town of Manlius, 313 F.3d 713, 719 (2d Cir. 2002))). The court’s ultimate conclusion

was therefore proper.

       We have considered all of Daley’s arguments on appeal and find them to be without merit.

Accordingly, we AFFIRM the judgment of the district court.

                                           FOR THE COURT:
                                           Catherine O=Hagan Wolfe, Clerk




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