1 14-2816-cv McDonnell v. Schindler Elevator Corp. UNITED STATES COURT OF APPEALS FOR THE SECO ND CIRCUIT SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AF TER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PR OCEDURE 32.1 AND THIS CO URT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMEN T FILED WITH THIS CO URT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATA BASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING 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 Seco nd Circuit, held at the Thurgood Marshall United Stat es Courthouse, 40 Foley Sq uare, in the City of New York, on the 2 nd day of July, two thousand fifteen. PRESENT: RALPH K. WINTER, PIERRE N. LEVAL, REENA RAGGI, Circuit Judges

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-------------------------------------- -------------------------------- JOHN McDONNELL, Plaintiff-Appellant , v. No. 14-2816-cv SCHINDLER ELEVATOR CORPORATION, JERRY SPAMPANATO, Defendants-Appellees

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---------------------------- ---------------------------- -------------- APPEARING FOR APPELLANT: DAVID ZA TUCHNI, Zatuchni & Associates, LLC, New York, New York. APPEARING FOR APPELLEES: MICHAEL J. DIMATTIA (Philip A. Goldstein, on the brief ) , McGuireWoods LLP, New York, New York. Appeal from a judgment of the United States District Court for the Southern District of New York (Valerie E. Caproni, Judge ).2 UPON DUE CONSIDERATION, IT IS HEREBY ORDERE D, ADJUDGED, AND DECREED that the judgment entere d on July 16, 20 14, is AFFIRMED. Plaintiff John McDonnell, a former el evator maintenance and repairman for defendant Schindler Elevator Corp. (“Schindler”), appeal s from an award of summary judgment in favor of defendants on his claims of (1) disability discrimination by Schindler under the Americans with Disabilities Act (“ ADA”), 42 U.S.C. § 12101 et seq.; the New York State Human Rights Law (“NYSHRL”), N. Y. Exec. Law § 290 et seq.; and the New York City Human Rights La w (“NYCHRL”), N.Y.C. Admin. Code § 8-101 et seq., and (2) aiding and abetting such discrimination by defendant Jerry Spampanato under the NYCHRL. We review an award of summary judgment de novo, and we will affirm only if the record, viewed in the light most fa vorable to the non-moving party, reveals no genuine issue of material fact. See Fed. R. Civ. P. 56; Lynch v. City of New York, 737 F.3d 150, 156 (2d Cir. 2013). We assume the pa rties’ familiarity with the facts and record of prior proceedings, which we reference onl y as necessary to explain our decision to affirm. 1. ADA and NYSHRL Claims McDonnell argues that the district court erred in concluding, as a matter of law, that he failed to demonstrat e prima facie disability discriminati on in Schindler’s termination of his employment. We understand the district c ourt to have found McDonnell to have failed to carry his burden at the first of the three- step burden-shifting standard articulated in McDonnell Douglas Corp. v. Gr een, 411 U.S. 792 (1973), and applicable to ADA claims.3 See McBride v. BIC Consumer Prods. Mfg. Co., 583 F.3d 92 , 96 (2d Cir. 2009). At the first step, a plaintiff must adduc e evidence that (1) his employe r is subject to the ADA; (2) he was disabled within the meaning of the ADA; (3) he was otherwise qualified to perform the essential functions of his job, with or without reasonable accommodation; and (4) he suffered adverse employment acti on because of his disability. See McMillan v. City of New York, 711 F.3d 120, 125 (2d Cir. 2013). A similar st andard applies under the NYSHRL. See Spiegel v. Schulmann, 604 F.3d 72, 80 (2d Ci r. 2010). We have explained that this burden is not a heavy one. See Woodman v. WWOR-TV, Inc., 411 F.3d 69, 76 (2d Cir. 2005) (characterizin g prima facie burden as “minimal and de minimis”) (internal quotation marks omitted). Nevertheless, it does require evidence that allows for a reasonable inference of discrimina tion. See Ruiz v. Cn ty. of Rockland, 609 F.3d 486, 493 (2d Cir. 2010). The district court determined that McDonn ell failed to carry his initial prima facie burden as to the fourth element because th e record showed that “Schindler employed numerous mechanics who have been injured an d has gone out of its way to establish a program to get injured employees back on the job and the payr oll as quickly as possible,” and McDonnell failed to offer any evidence that Schindler “targeted him specifically for adverse employment action because he was in jured.” McDonnell v. Schindler Elevator Corp., No. 12-CV-4614 (V EC), 2014 WL 3512772, at *7–9 (S.D.N.Y. July 16, 2014). Nor did the district court think an inference of discriminatory intent could be drawn from (1) Schindler’s failure to retu rn McDonnell to his former positio n at Lord and Taylor’s (“L4 & T”) because it was undisputed that L & T refused to accept him back as its resident mechanic due to job performance concerns aris ing prior to his injury ; or (2) Schindler’s failure to assign McDonnell to two open positions because “McDonnell was not qualified to perform maintenance on the particular el evator systems in those buildings.” Id. McDonnell nevertheless argues that there are material factual disputes as to (1) his qualifications for the two open positions, and (2) Schindler’s discriminatory intent, given its maintaining and hiring of n on-disabled elevator mechanics at the same time McDonnell was laid off for “lack of work .” Upon independent review, we doubt that record evidence on these points is sufficient for a reasona ble juror to draw a causal link between McDonnell’s disability and the adverse empl oyment action. See Ruiz v. Cnty. of Rockland, 609 F. 3d at 493–95. But even if we were to conclude McDo nnell had carried his initial prima facie burden, that would not entitle him to relie f from judgment. Schindler has proffered numerous legitimate, non-discri minatory reasons for McDonne ll’s termination, including, inter alia, that (1) McDonnell had an antagonistic relationshi p with client L & T, whose management refused to take him back after he returned from disability leave; (2) he was near the bottom of the employ ee “rack and stack” performance evaluation rankings in his district and was difficult to manage; (3) Schi ndler was reducing its overall workforce and, other than at L & T, had no position servicing machiner y with which McDonnell was familiar; and (4) Schindler had an undisputed documented history of successfully returning injured employees back to the workforce. Thus, Schindler has clearly met its burden of5 producing non-discriminatory reasons for te rminating McDonnell, and McDonnell has not raised a triable issue that th ese reasons were pretextual. McDonnell’s qualification for the Marrio tt Marquis position was largely based on his self-serving declaration that he coul d have serviced its more advanced TXR-5 elevators, even though he chose not to a ttend Schindler’s traini ng sessions for those elevators. While co-worker Canton supported McDonnell’s assertion, he had not worked with McDonnell for almost 25 years, and, th us, lacked sufficient personal knowledge of McDonnell’s skills or qualifications to render an opinion that was more than speculative. See United States v. Grinage, 390 F.3d 746, 749 (2d Cir. 2 004) (stating that lay opinion testimony not “rationally base d on the perception of the w itness” is inadmissible under Fed. R. Evid. 701); see also Bickerstaff v. Vassar Coll., 196 F.3d 435, 448 (2d Cir. 1998) (cautioning courts “carefully [to] distinguish between evidence that allows for a reasonable inference of discrimination and evidence th at gives rise to mere speculation and conjecture” at prima facie stage). In any ev ent, the two employees who were assigned to work at the Marriott had, lik e McDonnell, suffered injuries themselves, undermining any claim that McDonnell was not se lected for that position because of his disability. As for the Worldwide Plaza position, it did not become available un til months after McDonnell had been terminated, at whic h point McDonnell was again medically incapacitated from a torn rotator cuff. As for Schindler’s hiring and promotion decisions five to six months after McDonnell’s termination at places other than the Marriott or Worldwide Plaza, McDonnell6 fails to show that he was then qualified or available to assume these positions in light of his torn rotator cuff. See Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 468 (2d Cir. 2001) (stating inference of discrimination fro m plaintiff’s termination could arise from subsequent hires in situation where employer terminated plai ntiff but sought applicants with plaintiff’s qualifications for open position). Thus, no reasonable jury could infer discriminatory intent from these hires. McDonnell’s attempts to s how disparate treatment of non-disabled maintenance mechanics also fails. While “a plaintiff can make a showing of disparate treatment [sufficient to establish a prima facie case] simply by pointing to the adverse employment action and the many employees who suffered no such fate,” id. at 467, that is not this case. Rather, it is undisputed that in the years le ading up to McDonnell’s termination, Schindler laid off numerous employees as part of compan y-wide downsizing. The district in which McDonnell worked reduced its mechanics headcount by five positions in 2011. The two mechanics, other than McDonnel l, laid off in 2011 from that district were not disabled, undermining any inference of discrimination fro m McDonnell’s layoff. See, e.g., Ruiz v. Cnty. of Rockland, 609 F.3d at 493 (holdi ng that disparate treatment claim requires “showing that an employer treated plainti ff less favorably than a similarly situated employee outside his protected group” (internal quotation marks omitted)). Accordingly, we conclude that McDonne ll failed to establis h a triable case of disability discrimination u nder the ADA and the NYSHRL.7 2. NYCHRL Claim McDonnell’s NYCHRL claims are properly analyzed “separately and independently” from McDonnell’s ADA and NYSH RL claims, Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715 F. 3d 102, 109 (2d Cir. 2013), bu t McDonnell offers no such independent analysis in his briefs , thus abandoning any distinct challenge to this part of the summary judgment award, see United States v. Joyner, 313 F.3d 40, 44 (2d Cir. 2002) (deeming argument not raised in appellate brie f abandoned). In any event, we identify no error because the record is devoid of eviden ce suggesting that McDonnell’s termination was at all motivated by disability discrimi nation. See Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d at 116 (stating summary judgment appropriate for NYCHRL claim where plaintiff cannot show proscribed motive “played any part in the employer’s decision”). 3. Conclusion We have considered McDonnell’s remaini ng arguments and conclude that they are without merit. We therefore AFFIRM the judgment of the district court. FOR THE COURT: CATHERINE O’HAGAN WOLF E, Clerk of Court