The opinion of the court was delivered by: Curtin, United States District Judge.
Plaintiff William Sherman ("Sherman") commenced this action under the
Rehabilitation Act, 29 U.S.C. § 791 et seq., and initially named as
defendants the Secretary of the Department of Defense, William S. Cohen;
and Acting Secretary of the Air Force, S. Whitten Peters. Item 1. By a
second amended complaint, Sherman withdrew his claims against Secretary
Cohen. Item 13. Sherman now alleges that his employer, the Niagara Falls
Air Force Reserve Base, has illegally discriminated against him on the
basis of his disability by refusing to provide a reasonable accommodation
for his disability.*fn1 Item 13, ¶¶ 24-25. In September 1999, the
Government moved alternatively for dismissal and summary judgment. Items
19-22. Sherman has submitted various opposing papers to this motion.
Items 25-28. The Government has had an opportunity to reply to Sherman's
opposition. Items 30-31. On January 25, 2000, the court heard oral
argument on the Government's motion.
Sherman served on active duty with the United States Air Force ("the
USAF") from 1980 to 1985.*fn2 Item 13, ¶ 9. Sherman is a "30%
compensably disabled veteran" of the USAF. Item 22, ¶ 3. Sherman
became disabled in 1981 when doctors removed his right eye due to a
cancerous melanoma. Id. ¶ 2 and Item 25, ¶ 2. In 1987, the USAF
hired Sherman as a civilian Security Guard at the Niagara Falls Air Force
Reserve Base ("the Base"). Item 22, ¶¶ 1, 5.
Sherman first requested an accommodation of his monocular vision in
February 1996. Item 26, Exh. 4, pp. 33-34. In response to this initial
request, the Civilian Personnel Office ("CPO") offered Sherman a job as a
Recreation Assistant in April 1996. Id. at 30-31. Sherman declined this
offer for several reasons. See infra. Also in April 1996, Sherman and his
supervisor rearranged Sherman's security duties so that he no longer had
to perform duties that took him outside of the office. Item 26, Exh. 4,
pp. 23-24, 27-30. Sherman and his supervisor reached this agreement as an
alternative to Sherman's taking the job as a Recreation Assistant. Id. at
In July 1996, there was an opening on the Base for a Realty
Specialist. Id. at 86-87 (describing duties). In September 1996, the CPO
informed Sherman that he had been "non-selected" for the position. Id. at
89. In October 1996, Sherman renewed his request for a disability
accommodation by a letter from his attorney, John J. Phelan. Item 21,
I. Summary Judgment Standard
Summary judgment is appropriate only where the record shows that "there
is no genuine issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); Chambers
v. TRM Copy Ctrs. Corp., 43 F.3d 29, 36 (2d Cir. 1994). In order for
there to be a genuine issue of material fact, the court must find that
the record, taken as a whole, could lead a reasonable trier of fact to
find in favor of the non-movant. See Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986). The moving party bears the
burden of demonstrating that there is no genuine issue of material fact.
See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Finally, in
resolving a summary judgment motion, the court must look at all
ambiguities in a light most favorable to the non-movant, see, Coach
Leatherware Co. v. AnnTaylor, Inc., 933 F.2d 162, 167 (2d Cir. 1997), and
must draw all reasonable inferences from the facts in favor of the
non-movant. See id.
II. Disability Discrimination Claim
The Rehabilitation Act ("the Act") provides that: "No otherwise
qualified individual with a disability . . ., shall, solely by reason of
her or his disability, be excluded from the participation in, be denied
the benefits of, or be subject to discrimination under any program or
activity . . ., conducted by any Executive agency. . . ." 29 U.S.C.A.
§ 794(a) (West 1999).*fn3 Essentially, Sherman claims that the Base
should have reasonably accommodated his disability by offering him a
transfer to the position of Realty Specialist. In order to prevail on
this theory, a plaintiff must establish:
(1) that he was an individual who had a disability
within the meaning of the statute; (2) that the
[Government employer] had notice of his disability;
(3) that with reasonable accommodation he could
perform the essential functions of the position
sought; and (4) that the [employer] refused to make
Mitchell v. Washingtonville Cent. School Dist., 190 F.3d 1, 5 ...