UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER THIS SUMMARY ORDER WILL NOT BE PUBLISHED IN THE FEDERAL REPORTER AND MAY NOT BE CITED AS PRECEDENTIAL AUTHORITY TO THIS OR ANY OTHER COURT, BUT MAY BE CALLED TO THE ATTENTION OF THIS OR ANY OTHER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 United States Courthouse, Foley Square, in the City of New York, on the 17th day of October , two thousand.

Present: HONORABLE WILFRED FEINBERG, HONORABLE RALPH K. WINTER, HONORABLE PIERRE N. LEVAL, Circuit Judges.

WILLIE HOOKS, Plaintiff-Appellant, - v. - No. 00-7075

NEW YORK CITY TRANSIT AUTHORITY, Defendant-Appellee.

Appearing for Appellant: Ben M. Arai, New York, New York.

of 4

Appearing for Appellee: Kenneth Howard Schiffrin, Assistant General Counsel, New York City Transit Authority (Martin B. Schnabel, General Counsel, of counsel), Brooklyn, New York.

of 4

Appeal from the United States District Court for the Southern District of New York (Baer, Judge).

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

Willie Hooks appeals from Judge Baer's adverse grant of judgment as a matter of law pursuant to Fed. R. Civ. P. 50(a).

See Hooks v. New York City Transit Authority, 98 Civ. 6308

(S.D.N.Y. Dec. 29, 1999). Because appellant failed to make out a prima facie case with respect to the only claims argued on appeal, we affirm.

Appellant brought this action to assert claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., 28 U.S.C. § 1983, the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. ("ADA"), and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794. At the close of all evidence at trial, the district court granted appellee's motion for judgment as a matter of law with respect to all claims.

On appeal, appellant has abandoned his Title VII and Section 1983 claims by failing to raise them in his brief.

See Fed. R. App. P. 28(a)(9); LoSacco v. City of Middletown, 71 F.3d 88, 92-93 (2d Cir. 1995) (holding that issue is abandoned where not raised in appellate brief). The only remaining claims, of 4

therefore, are those asserted under the ADA and Rehabilitation Act.

"This Court reviews the district court's grant of judgment as a matter of law de novo, applying the same standards as the district court . . . . Judgment as a matter of law may not properly be granted under Rule 50 unless the evidence, viewed in the light most favorable to the opposing party, is insufficient to permit a reasonable juror to find in her favor." DiSanto v. McGraw-Hill, Inc., 220 F.3d 61, 64 (2d Cir. 2000) (internal citations omitted).

To succeed on a reasonable accommodation claim under the ADA or Rehabilitation Act, a plaintiff must make out a prima facie case of discrimination. To do so, a plaintiff must show: "(1) that he is an individual who has a disability within the meaning of the statute, (2) that an employer covered by the statute had notice of his disability, (3) that with reasonable accommodation, he could perform the essential functions of the position sought, and (4) that the employer has refused to make such accommodations." Stone v. City of Mount Vernon, 118 F.3d 92, 96-97 (2d Cir. 1997). Appellant failed to make such a showing here because the uncontested facts show, and appellant conceded at oral argument, that to of 4

accommodate appellant's sinusitis, the Transit Authority offered him another position, but appellant turned that position down for reasons unrelated to his sinusitis.

As for appellant's claim of constructive discharge, he failed to show that any adverse employment action was taken by reason of his disability.

We therefore affirm.

of 4