Ross MARGHERITA, Plaintiff-Appellant, v. FEDEX EXPRESS, Fedex Corporation, Federal Express Corporation, Joseph Randall, Defendants-Appellees, 511 F. App'x 71

SUMMARY ORDER Ross Margherita appeals from the district court’s judgment entered on October 25, 2011, following its grant of

summary judgment in favor of defendants FedEx Express, FedEx Corporation, Federal Express Corporation, and Joseph Randall (collectively, “FedEx”). We assume the parties’ familiarity with the underlying facts, procedural history, and specification of issues for review. “We review a district court’s grant of

summary judgment de novo, construing the evidence in the light most favorable to the nonmoving party and drawing all reasonable inferences in that party’s favor.” Kuebel v. Black & Decker Inc., 643 F.3d 352, 358 (2d Cir.2011). “Summary judgment is appropriate only if the moving party shows that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law.” Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir.2003).

The Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., expressly prohibits “medical examinations and inquiries” in certain circumstances as a form of discrimination. Id. § 12112(d)(1). Regardless whether a formal medical examination or an inquiry pursued by an employer itself, the ADA prohibits inquiries into “the nature or severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity.” Id. § 12112(d)(4)(A).

While the field test administered by FedEx in this case could be considered a permissible inquiry “into the ability of an employee to perform job-related functions,” id. § 12112(d)(4)(B), there can be no dispute that it was also an inquiry into the “nature or severity” of Margherita’s hearing impairment. Thus, to warrant

summary judgment, FedEx must demonstrate as a matter of law that this inquiry was “job-related and consistent with business necessity.” In order to satisfy the ADA’s business necessity exception, FedEx “must first show that the asserted ‘business necessity’ is vital to the business” and “that the examination or inquiry genuinely serves the asserted business necessity and that the request is no broader or more intrusive than necessary.” Conroy v. N.Y. State Dep’t of Corr. Servs., 333 F.3d 88, 97-98 (2d Cir.2003).

Here, the record contains evidence from which a jury could find that the field test to which FedEx subjected Margherita was audiologically and methodologically unsound, and that Mar-gherita’s alleged safety infractions were unrelated to his hearing. Based on this evidence, a reasonable jury could find that the field test was not vital to FedEx’s business and was more intrusive than necessary. Accordingly, the district court erred in granting FedEx’s motion for

summary judgment on Margherita’s claims of discrimination under the ADA and Rehabilitation Act. Moreover, we review claims under the New York City Human Rights Law (“NYCHRL”), N.Y.C. Admin. Code § 8-101 et seq., “independently from and ‘more liberally’ than” federal or state discrimination claims. Loeffler v. Staten Island Univ. Hosp., 582 F.3d 268, 278 (2d Cir. 2009). Indeed, the NYCHRL must be construed “broadly in favor of discrimination plaintiffs, to the extent that such a construction is reasonably possible.” Al- bunio v. City of New York, 16 N.Y.3d 472, 477-78, 922 N.Y.S.2d 244, 947 N.E.2d 135 (2011).

Accordingly, insofar as there remain material disputed issues regarding whether the field test was job-related and consistent with business necessity,

summary judgment was also inappropriate on Margherita’s NYCHRL claim. Assuming that the ADA provides a basis for a hostile work environment claim, an issue not yet decided by this Court, Mar-gherita has failed to present sufficient evidence to support this claim. Margherita concedes that he had a good working relationship with his supervisors, that Randall did not touch him or abuse him, and that Randall even praised him for doing good work. We conclude that no reasonable juror could find that Margherita was subjected to harassment on the basis of his disability.

We reach this conclusion even under the broad and liberal construction of the NYCHRL. See Loeffler, 582 F.3d at 278. Accordingly, the district court properly granted

summary judgment on Mar-gherita’s hostile work environment claim. We have considered Margherita’s remaining arguments and conclude that they are without merit. Accordingly, the judgment of the district court hereby is VACATED and REMANDED with respect to Margherita’s discrimination claims under the ADA, the Rehabilitation Act, the NYSHRL, and the NYCHRL. The judgment of the district court hereby is AFFIRMED on all other claims.