August 20, 1993, seeking remedies for disability-based employment discrimination under 29 U.S.C. § 794 et seq. (the Rehabilitation Act); 42 U.S.C. § 1983; 42 U.S.C. § 12101 et seq. (the Americans With Disabilities Act or the "ADA"); and the N.Y. Exec. Law §§ 291, 292, 296 (the New York State Human Rights Law). The defendants Suffolk County, Suffolk County Civil Service Department, Suffolk County Department of Health Services and Suffolk County Police Department (the "defendants") move the Court for an order granting summary judgment in their favor and dismissing the complaint. The plaintiff contends that there are triable issues of fact that preclude summary judgment.
This is a summary of the facts that are not in dispute.
The plaintiff passed the civil service exam on March 1, 1992, for the position of police officer with the Suffolk Co. Police Department. On January 22, 1993, the plaintiff was given a physical exam by the County Office of Employee Medical Review. It was determined that the plaintiff's visual acuity, without glasses was 20/200 in each eye and both eyes, and that corrective lenses resulted in a visual acuity of 20/20 in each eye and both eyes. The plaintiff was also found to have blood pressure higher than 140/90. The plaintiff states that he has never been limited in any activity by his eyesight or blood pressure, which can be controlled by medication and at times has measured at a lower rate without medication.
The Municipal Police Training Council minimum standards require that uncorrected visual acuity for police officer candidates be no worse than 20/40 in each eye, and that a candidate's blood pressure be between 90-140 (systolic) and 60-90 (diastolic).
In a letter dated February 1, 1993 from the Office of Employee Medical Review, the plaintiff was notified that he was not qualified to work for the police department because of his eyesight and blood pressure. Upon reconsideration and a second medical exam, the Office of Employee Medical Review adhered to its original determination.
The plaintiff did not file a complaint with the EEOC prior to bringing this lawsuit.
The defendants contend that they are entitled to summary judgment based on the following two arguments: (1) the plaintiff is not a disabled person or handicapped person within the meaning of the Rehabilitation Act, the ADA or the NY State Human Rights Law; (2) the plaintiff did not exhaust administrative remedies required by the ADA prior to commencing this lawsuit.
A. The summary judgment standard
A court may grant summary judgment "only if the evidence, viewed in the light most favorable to the party opposing the motion, presents no genuine issue of material fact," Cable Science Corp. v. Rochdale Village, Inc., 920 F.2d 147, 151 (2d Cir. 1990), and the movant is entitled to judgment as a matter of law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); see also Fed. R. Civ. P. 56(c) (summary judgment standard). The Court must, however, resolve all ambiguities and draw all reasonable inferences in the light most favorable to the party opposing the motion. See Twin Laboratories, Inc. v. Weider Health & Fitness, 900 F.2d 566, 568 (2d Cir. 1990); Liscio v. Warren, 901 F.2d 274, 276 (2d Cir. 1990); Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 11 (2d Cir. 1986), cert. denied, 480 U.S. 932, 94 L. Ed. 2d 762, 107 S. Ct. 1570 (1987).
According to the Second Circuit "summary judgment is a tool to winnow out from the trial calendar those cases whose facts predestine them to result in a directed verdict." United National Ins. Co. v. The Tunnel, Inc., 988 F.2d 351, 355 (2d Cir. 1993). Once a party moves for summary judgment, in order to avoid the granting of the motion, the non-movant must come forward with specific facts showing that a genuine issue for trial exists. See Western World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir. 1990) (quoting Fed. R. Civ. P. 56(e)); see also National Union Fire Ins. Co. v. Turtur, 892 F.2d 199, 203 (2d Cir. 1989). A genuine issue of material fact exists if "a reasonable jury could return a verdict for the nonmoving party." Liberty Lobby, 477 U.S. at 248; see Converse v. General Motors Corp., 893 F.2d 513, 514 (2d Cir. 1990).
However, mere conclusory allegations, speculation or conjecture will not avail a party resisting summary judgment. See Western World, 922 F.2d at 121. If there is evidence in the record as to any material fact from which an inference could be drawn in favor of the non-movant, summary judgment is unavailable. See United National, 988 F.2d at 354-55; Rattner v. Netburn, 930 F.2d 204, 209 (2d Cir. 1991).
It is within this framework that the Court addresses the grounds for the present motion for summary judgment.
B. The claims under the Rehabilitation Act and the ADA
The defendants contend that Joyce's complaint must be dismissed as a matter of law because he is unable to make out a prima facie case under the Rehabilitation Act and the ADA. To establish a prima facie case in this action, Joyce would have to demonstrate that: (1) he is a handicapped person within the meaning of the statutes; (2) he is otherwise qualified to perform the duties of a police officer; (3) he was not hired because of his handicap; and (4) that the employer is subject to the statutes. See e.g., Lyons v. Legal Aid Society, 68 F.3d 1512, 1515 (2d Cir. 1995) and Heilweil v. Mount Sinai Hospital, 32 F.3d 718, 722 (2d Cir. 1994), cert. denied, 130 L. Ed. 2d 1063, U.S. , 115 S. Ct. 1095 (1995). The defendants argue that Joyce cannot establish that he is a handicapped or disabled person with the meaning of the ADA and the Rehabilitation Act.
With regard to the first element, the ADA provides