Michael DALEY, Plaintiff-Appellant, v. CABLEVISION SYSTEMS CORPORATION, Defendant-Appellee, Terry McCue, Thomas Davis, Ed Addon, Chris Fulton, Defendants, 675 F. App'x 97

SUMMARY ORDER 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.Á. 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 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.