UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER THIS SUMMARY ORDER WILL NOT BE PUBLISHED IN THE FEDERAL REPORTER AND MAY NOT BE CITED AS PRECEDENTIAL AUTHORITY TO THIS OR ANY OTHER COURT, BUT MAY BE CALLED TO THE ATTENTION OF THIS OR ANY OTHER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, Foley Square, in the City of New York, on the 9th day of October, two thousand and three.

PRESENT:

HON. ROGER J. MINER, HON. GUIDO CALABRESI, HON. CHESTER J. STRAUB, Circuit Judges.

FRANK P. FACONTI, Plaintiff-Appellant, v. Nos. 02-6318

02-6320

JOHN E. POTTER, Postmaster General, Defendant-Appellee.

FRANK P. FACONTI, pro se, Brooklyn, For Plaintiff-Appellant:

NY For Defendant-Appellee: F. FRANKLIN AMANAT, Assistant United States Attorney, for Roslynn R. Mauskopf, United States Attorney for the Eastern District of New York (Varuni Nelson, Assistant United States Attorney, on the brief), Brooklyn, NY Appeals from the United States District Court for the Eastern District of New York (Levy, M. J.).

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

This order addresses separate appeals from two actions brought by pro se plaintiff-

appellant Frank P. Faconti against defendant-appellee Postmaster General John E. Potter in the United States District Court for the Eastern District of New York (Levy, M.J.). In the first action, filed in 1998, plaintiff claimed that a March 1993 decision of the United States Postal Service ("USPS") not to select him for the position of Operations Support Specialist, EAS-20, constituted unlawful disability discrimination, in violation of the Rehabilitation Act of 1973, 29

U.S.C. §§ 701 et seq. (2000). In the second action, filed in 2001, plaintiff claimed that the USPS failed to take reasonable steps to accommodate his disability before supporting his application for disability retirement under the Civil Service Retirement System, also in violation of the Rehabilitation Act, id. In both actions, the district court awarded summary judgment to the defendant.

We review the district court's grant of summary judgment de novo. Burt Rigid Box, Inc.

v. Travelers Prop. Cas. Corp., 302 F.3d 83, 90 (2d Cir. 2002). Summary judgment is appropriate if the evidence is such that a reasonable factfinder would be "compelled to accept the view of the moving party." This is Me, Inc. v. Taylor, 157 F.3d 139, 142 (2d Cir. 1998) (internal quotation marks and citation omitted). That is the situation before us. Accordingly, we affirm.

To prevail on a Rehabilitation Act claim, plaintiff must prove, inter alia, that he is an "otherwise qualified individual" — that, "with reasonable accommodation, he could perform the essential functions of the position[s] sought." Stone v. City of Mount Vernon, 118 F.3d 92, 96

(2d Cir. 1997); see also 29 U.S.C. § 794(a). Based on the record before us, we hold that the evidence is insufficient for a reasonable trier of fact to conclude that plaintiff was capable, at the time of the challenged employment actions, of performing the essential functions of the post office positions in question. Because, with respect to both actions, plaintiff has not shown that he is an "otherwise qualified individual" within the meaning of the Rehabilitation Act, his claims must fail. As a consequence, we need not reach the more complicated questions of jurisdiction, judicial estoppel, and accommodation raised by the parties.

We have considered all of appellant's claims and find them meritless. We therefore AFFIRM the judgment of the district court.

For the Court, ROSEANN B. MACKECHNIE, Clerk of the Court by: