Richard FRATERRIGO, Plaintiff-Appellant, v. AKAL SECURITY, INC., Defendant-Appellee, 376 F. App'x 40

SUMMARY ORDER Plaintiff-appellant Richard Fraterrigo (“plaintiff” or “Fraterrigo”) appeals from a

summary judgment of the District Court entered October 30, 2008, in favor of plaintiff’s former employer, Akal Security, Inc. (“defendant” or “Akal”). Defendant is a security company that contracts with the United States Marshals Service (“USMS”) to provide security at federal courthouses. Plaintiff was employed by Akal as a Court Security Officer (“CSO”) at federal courthouses in New York until June 2004, when his employment was terminated after he failed an annual hearing test mandated by the USMS.

Following his termination, the filing of a discrimination charge with the United States Equal Employment Opportunity Commission, and the receipt of a “right to sue” letter, plaintiff initiated the underlying lawsuit claiming violations of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., the New York Human Rights Law, N.Y. Exec. Law § 290 et seq., and the New York City Human Rights Law, N.Y. City Admin. Code § 8-107. The District Court granted

summary judgment to defendant upon concluding (1) that plaintiff was not “disabled,” or “regarded as” disabled by his employer, within the meaning of the ADA; and (2) that the USMS’s policy requiring CSOs to pass a hearing test without the assistance of a hearing aid was shown to be “job-related and consistent with business necessity” within the meaning of 42 U.S.C. § 12113(a). See Fraterrigo v. Akal Sec., Inc., No. 06 Civ. 9861, 2008 WL 4787548 (S.D.N.Y. Oct. 29, 2008).

On appeal plaintiff maintains that both of those conclusions were error and that the District Court improperly resolved questions of material fact in favor of defendant. We assume the parties’ familiarity with the remaining factual and procedural history of the case. The ADA generally prohibits employers from adopting qualification standards that have the effect of discriminating on the basis of disability. 42 U.S.C. § 12112(b)(3)(A).

However, the statute provides employers with an affirmative defense for “qualification standards, tests, or selection criteria” that have “been shown to be job-related and consistent with business necessity,” provided that adequate job performance “cannot be accomplished by reasonable accommodation.” Id. § 12113(a); Chevron U.S.A. Inc. v.

Echazabal, 536 U.S. 73, 78, 122 S.Ct. 2045, 153 L.Ed.2d 82 (2002) (“[T]he Act creates an affirmative defense for action under a qualification standard shown to be job-related for the provision in question and consistent with business necessity.” (internal quotation marks and ellipsis omitted)). We conclude that defendant was entitled to

summary judgment pursuant to the “business necessity” defense substantially for the reasons stated by the District Court in its thorough and well-reasoned opinion and order. See Fraterrigo, 2008 WL 4787548, at *9-13. Accordingly, we need not decide whether plaintiff was “disabled,” or “regarded as” disabled by Akal, within the meaning of the ADA. Cf. Shumway v. United Parcel Serv., 118 F.3d 60, 63 (2d Cir.1997) (“It is beyond cavil that an appellate court may affirm the judgment of the district court on any ground appearing in the record.”). Finally, we think it appropriate to note one recent development.

Plaintiff has brought to our attention that the USMS recently amended its medical standards to permit the use of hearing aids by CSOs during annual hearing tests. Plaintiff asks us to take judicial notice of that fact and argues that it conclusively disposes of defendant’s argument that the former policy prohibiting the use of hearing aids was a “business necessity.” Without knowing the reasons behind the USMS’s change of policy, however, we cannot draw any relevant conclusions from it.

Standing alone, the change of policy tells us nothing about whether the former policy was a business necessity at the time it was adopted and at the time plaintiff was terminated. We therefore decline to take judicial notice of the USMS’s new policy. See United States v. Bleznak, 153 F.3d 16, 21 n. 2 (2d Cir.1998) (denying as moot a motion to take judicial notice of facts “not relevant to our disposition of this appeal”). CONCLUSION We have considered all of plaintiffs arguments and find them to be without merit. For the foregoing reasons, the judgment of the District Court is AFFIRMED.

Plaintiffs motion to take judicial notice of the USMS’s new policy is DENIED. . Plaintiff also asserted claims of age discrimination but later stipulated to the dismissal of those claims with prejudice.