    14-1470-cv
    Klaper v. Cypress Hills Cemetery


                          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 ASUMMARY ORDER@). A PARTY CITING TO 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 10th day of February, two thousand fifteen.

    PRESENT:
                BARRINGTON D. PARKER,
                PETER W. HALL,
                RAYMOND J. LOHIER, JR.,
                      Circuit Judges.
    _____________________________________

    Jozef Klaper,
                              Plaintiff-Appellant-Cross-Appellee,

                     v.                                         14-1470-cv

    Cypress Hills Cemetery,

                              Defendant-Appellee-Cross-Appellant.

    _____________________________________

    FOR PLAINTIFF-APPELLANT:                                    Tomasz J. Piotrowski, T.J. Piotrowski
                                                                Law Firm, Brooklyn, NY.

    FOR DEFENDANT-APPELLEE:                                     Richard J. Cea, Wingate, Kearney &
                                                                Cullen, LLP, Brooklyn, NY.

            Appeal from an order of the United States District Court for the Eastern District of New

    York (Garaufis, J.).
       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

       Appellant Jozef Klaper (“Klaper”) appeals the district court‟s order in which it granted

summary judgment in favor of his employer, Cypress Hills Cemetery (“CHC”), with respect to

his employment discrimination claims under the Americans with Disabilities Act of 1990

(“ADA”), New York State Human Rights Law (“NYSHRL”) and New York City Human Rights

Law (“NYCHRL”). We assume the parties‟ familiarity with the underlying facts, the procedural

history of the case, and the issues on appeal.

       We review a grant of summary judgment de novo, viewing the facts “in the light most

favorable to the non-moving party and draw[ing] all reasonable inferences in that party‟s favor.”

Cox v. Warwick Valley Cent. Sch. Dist., 654 F.3d 267, 271 (2d Cir. 2011). Summary judgment is

appropriate where “there is no genuine dispute as to any material fact and the movant is entitled

to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “Where the record taken as a whole

could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue

for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal

quotation marks omitted).

       Upon such review, we conclude that the district court properly granted summary

judgment to CHC for substantially the same reasons set forth in its thorough memorandum and

order. Klaper v. Cypress Hills Cemetery, No. 10-CV-1811 NGG LB, 2014 WL 1343449

(E.D.N.Y. Mar. 31, 2014). In particular, we agree with the district court‟s application of the

McDonnell-Douglas burden-shifting framework to Klaper‟s claims and its determination that

even if Klaper could establish a prima facie case of employment discrimination under the ADA,


                                                  2
his violation of the last chance stipulation constituted a legitimate, nondiscriminatory

justification for CHC to terminate his employment. By Klaper‟s own admission, he did not return

to work on the date stipulated. Klaper fails to demonstrate that the resulting adverse employment

action was related to his alcoholism rather than a consequence of his failure to return to work

pursuant to the stipulation. Klaper‟s argument that CHC was obligated to make further

accommodation after his breach of the stipulation is also unavailing. As the district court

properly reflected, “[i]f [Klaper‟s] reasoning were correct, the Stipulation—and indeed all „last

chance‟ or „return to work‟ agreements for alcoholic employees—would be rendered nugatory

because they would leave the employer with no recourse if the employee continued the

alcoholism-related misconduct that required the execution of a „last chance‟ agreement in the

first place.” Id. at *8.

        As to Klaper‟s claim that the district court erred in declining to exercise supplemental

jurisdiction over his NYSHRL and NYCHRL claims, the district court was under no obligation

to do so. See 28 U.S.C. § 1367(c)(3) (A district court “may decline to exercise supplemental

jurisdiction over [pendent state law claims] if . . . the district court has dismissed all claims over

which it has original jurisdiction.”).

        We have considered all of Klaper‟s remaining arguments, and find them to be without

merit. Accordingly, we AFFIRM the district court‟s grant of summary judgment.

                                               FOR THE COURT:
                                               Catherine O=Hagan Wolfe, Clerk




                                                  3
