15-4117-cv
Lopez v. Hollisco Owners’ Corp.




                                   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 “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 Second Circuit, held
at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 25th day of October, two thousand sixteen.
PRESENT: JON O. NEWMAN,
                 GERARD E. LYNCH,
                 CHRISTOPHER F. DRONEY,
                                 Circuit Judges.
----------------------------------------------------------------------
JOHN LOPEZ,
                                 Plaintiff-Appellant,

                                  v.                                       No. 15-4117-cv

HOLLISCO          OWNERS’          CORPORATION,            MIDBORO
MANAGEMENT, INC., JENNIFER SANTANIELLO,
                                 Defendants-Appellees.
----------------------------------------------------------------------

 FOR PLAINTIFF-APPELLANT:                                 CASEY WOLNOWSKI, Phillips &
                                                          Associates, PLLC, New York, New
                                                          York.

 FOR DEFENDANT-APPELLEE                                   EMIL A. SAMMAN, Kagan Lubic Lepper
 HOLLISCO OWNERS’ CORP.:                                  Finkelstein & Gold, LLP, New York,
                                                          New York.

 FOR DEFENDANTS-APPELLEES                                 Andreas E. Theodosiou, Braverman &
 MIDBORO MANAGEMENT, INC.,                                Greenspun, P.C., New York, New York.
 AND JENNIFER SANTANIELLO:


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       Appeal from a December 3, 2015, judgment of the United States District Court for
the Eastern District of New York (Weinstein, J.).

    UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the district court is AFFIRMED.

       Plaintiff-Appellant John Lopez appeals from a judgment of the district court
granting Defendants-Appellees’ (“defendants”) motions for summary judgment and
denying his cross-motion for partial summary judgment. Lopez challenges the dismissal
of his discrimination claims under the Americans with Disabilities Act (“ADA”), 42
U.S.C. § 12101 et seq., and the New York City Human Rights Law (“NYCHRL”),
N.Y.C. Admin. Code § 8-107 et seq. We assume the parties’ familiarity with the
underlying facts, the record of the prior proceedings, and issues on appeal.

       Lopez worked as a porter at a co-op building complex for fifteen years, until his
employment ceased in late February or March 2014. Defendant Hollisco Owners’
Corporation owned the building, and defendant Midboro Management, Inc., managed it.
Defendant Santaniello was the property manager. Lopez alleges that he was
discriminated against on the basis of a perceived disability when, after informing his
supervisor that he might have hepatitis, he was instructed to leave the premises and
obtain medical clearance to return to work, in the form of a doctor’s note establishing that
he was “fit and able to return back to work full time.” App. 125. Lopez never
provided the requested clearance or returned to his employment. He further alleges that
he was terminated unlawfully.1

       The district court granted defendants’ motions for summary judgment and denied
Lopez’s corresponding cross-motion, concluding that the factual record did not support
Lopez’s disability discrimination claims. On appeal, Lopez challenges the district
court’s interpretation of the record, arguing that the evidence at a minimum raises
genuine disputes of material fact as to whether his employer acted unlawfully in requiring
a doctor’s note in order for Lopez to return to work.

       We review the district court’s ruling de novo, construing the evidence in the light
most favorable to the non-moving party and drawing all reasonable inferences in his
favor. McMillan v. City of New York, 711 F.3d 120, 125 (2d Cir. 2013). At summary
judgment, disability discrimination claims brought pursuant to the ADA2 are analyzed
under the familiar three-step burden-shifting framework articulated in McDonnell
1
   Lopez also asserted federal and state claims for unpaid overtime wages, but he is not pursuing those claims on
appeal. Appellant’s Br. 2.
2
   Although claims brought pursuant to the NYCHRL are to be analyzed “separately and independently” from any
federal-law claims, Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d 102, 109 (2d Cir. 2013), Lopez
raises no separate argument or analysis in his briefing regarding these claims and has therefore abandoned any such
challenge, see United States v. Joyner, 313 F.3d 40, 44 (2d Cir. 2002).


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       Douglas Corp. v. Green, 411 U.S. 792 (1973). See McBride v. BIC Consumer
Prods. Mfg. Co., 583 F.3d 92, 96 (2d Cir. 2009).

        Applying these principles, we agree with the district court that Lopez has not
raised a triable issue of fact regarding his discrimination claims. Even assuming Lopez
could carry his burden at step one of the McDonnell Douglas analysis by establishing a
prima facie case of discrimination—a proposition that is far from clear, given the
evidence that Lopez may not have been terminated, but rather abandoned his job when he
did not come back—defendants have provided a legitimate non-discriminatory reason at
step two for requiring Lopez to obtain medical clearance in order to return to work:
ensuring that he could perform his duties without any risk of his illness spreading to
others.

       At step three, Lopez has offered no evidence that the reason offered by defendants
was pretextual. He maintains that defendants’ concerns about disease transmission were
not based on objective medical evidence, but this argument fails. Lopez has not alleged
that he was fired because he had a disability, which is the type of theory at issue in the
case law he cites regarding the ADA’s “direct threat” provision. See, e.g., Bragdon v.
Abbott, 524 U.S. 624, 649 (1998). Instead, he contends that he was discriminated
against when defendants required him to obtain medical clearance in order to return to
work, but he has failed to provide any evidence that defendants had a discriminatory
motivation in requiring such information. The district court therefore properly granted
summary judgment in favor of defendants.

       Finally, Lopez argues on appeal that requiring him to be cleared by a physician to
return to work constituted an unlawful medical inquiry pursuant to 42 U.S.C. §
12112(d)(4)(A). However, such a claim is defeated because the requested medical
clearance would not “tend to reveal a disability,” as required for a medical inquiry to
come under § 12112(d)(4)(A)’s prohibition. See Conroy v. N.Y. Dep’t of Corr. Servs.,
333 F.3d 88, 95–96 (2d Cir. 2003).

      We have considered Lopez’s remaining arguments and conclude that they are
without merit. Accordingly, we AFFIRM the judgment of the district court.

                                  FOR THE COURT:
                                  Catherine O’Hagan Wolfe, Clerk of Court




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