United States District Court, Western District of New York
August 7, 2000
WILLIAM SHERMAN, PLAINTIFF,
S. WHITTEN PETERS, ACTING SECRETARY OF THE AIR FORCE, DEFENDANT.
The opinion of the court was delivered by: Curtin, United States District Judge.
DECISION AND ORDER
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,
In April 1997, the USAF conducted a reorganization and reduction in
force ("RIF"). As a result, the Base appointed Sherman to be one of six
Sherman's duties as a Desk Sergeant were substantially similar to
the modified duties he had as a Security Guard, and Sherman
continued to work security while performing only office-based tasks.
However, Sherman claims that his job as an office-bound Desk Sergeant is
unsatisfactory because his disability prevents him from advancing in his
career in the same way that non-disabled Desk Sergeants have been able to
advance their careers. See Item 25, ¶ 19.
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 (2d Cir.
A. Legal Definition of Disability
In relevant part, the Code of Federal Regulations defines a person with
a handicap as one who: "(i) [h]as a physical or mental impairment which
substantially limits one or more of such person's major life
activities. . . ." 29 C.F.R. § 1614.203(a)(1) (1999) (emphasis
added). "Major life activities" are defined as "functions, such as caring
for one's self, performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning, and working." Id. § 1614.203(a)(3). The concept
of "substantially limits" is defined in the following way:
(i) Unable to perform a major life activity that the
average person in the general population can perform; or
(ii) Significantly restricted as to the condition,
manner or duration under which an individual can
perform a particular major life activity as compared
to the condition, manner, or duration under
which the average person in the general population
can perform that same major life activity.
29 C.F.R. § 1630.2 (j) (1999).
In the present case, the Government concedes that Sherman has a
"physical impairment" due to the loss of his right eye and that he is a
"30% compensably disabled veteran"as a result.*fn4 Item 20, pp. 4-5.
However, the Government argues that Sherman has failed to establish
that his physical impairment "substantially limits" one of his major life
activities. See id. at 5. In support of the proposition that Sherman's
monocular vision is not a "handicap" under the Rehabilitation Act, the
Government relies on the Supreme Court's recent decision in Albertsons,
Inc. v. Kirkingburg, ___ U.S. ___ 119 S.Ct. 2162 (1999). In Albertsons,
the Court held that monocular vision is not a perse handicap under the
ADA and that plaintiffs suffering from monocular vision must establish
their disabilities on a case-by-case basis. Id. at 2169. The Court,
however, cautioned lower courts not to impose too heavy a burden on
plaintiffs with monocular vision: "[O]ur brief examination of some of the
medical literature [indicates] that people with monocular vision
`ordinarily' will meet the Act's definition of disability . . ., and we
suppose that defendant companies will often not contest the issue." Id.
In the end, however, the Court held that monocular plaintiffs must "prove
a disability by offering evidence that the extent of the limitation in
terms of their own experience, as in loss of depth perception and visual
field, is substantial." Id.
B. Sherman's Description of Physical Impairment
Sherman testified at a deposition in December of 1998 regarding the
effects that monocular vision has on his life. Almost a year later,
Sherman submitted an affidavit in which he again addressed the impact of
monocular vision on his life. By his deposition and affidavit, Sherman
has offered two different versions of how monocular vision affects his
At his deposition, Sherman stated that he is physically capable of
working as a Desk Sergeant despite his physical impairment. Item 26,
Exh. 4, p. 32. Sherman also testified that his impairment would not have
prevented him from performing the duties of a Recreation Assistant. Id. at
31. Sherman stated that he has never had his driver's license revoked as
a result of his monocular vision and that he still drives without
restrictions on his license. Id at 38, 99. Furthermore, Sherman testified
that he can read and watch television, as well as walk without
difficulty. Id. at 99. Similarly, Sherman asserted that he does not
experience difficulty in caring for himself as a result of his
impairment. Id. at 99-100. Finally, Sherman testified that his vision in
his left eye is "excellent. . . . [I]t's 15/15, . . . better
than[20/20]." Id. at 100.
Sherman further testified that, despite his monocular vision, he has
always maintained his military qualifications for using firearms. See
Item 26, Exh. 4, pp. 38-41. In addition, Sherman stated that his vision
does not keep him from competing in a local darts league, and that he is
good enough to play competitively. See id. at 97-98, 100.
Sherman gave little testimony at his deposition to support a finding
that he is handicapped under the Rehabilitation Act or ADA. Sherman only
testified in very general terms that he experiences difficulty with his
peripheral vision and depth perception. Id. at 100. On one occasion, while
working as a Security Guard, Sherman
said that, "[I] walked into a tree and cut open the side of my
face and that was due to the fact that I didn't see the tree."
Id. at 35. Furthermore, Sherman stated that as a Desk Sergeant
he also experienced "[a] lot of stress and . . ., strain" in his
left eye because the job requires that he watch computer and
television monitors. Id. at 49.
Finally, Sherman summarily concluded that he could not continue to work
as a Desk Sergeant because the hazards of the job posed an ongoing threat
to his health and safety. Id. at 34, 44, 156-57.
Q: What are the elements of hazard connected with your
A: I'm the sole individual responsible for preserving
basically the heart of the entire base. We monitor
all the alarms, all the facilities, the armories,
everything is within that facility and I'm the only
one there to guard that facility. The building is
locked, I lock it and I have monitors, monitor
people that come in. Not only do our people come
in, but after 11 o'clock . . . [I am] also the
billing clerk, [I] sign all the pay slips for the
contractors. They all come through my office to get
their slips signed. Any questions anyone might have
they send them to me and I take care of the
Id. at 156-57. However, Sherman identified no other specific activities
that he had difficulty performing as a result of the loss of his right
eye. Id. at 99-100.
In his recently submitted affidavit, Sherman now denies that he can
safely perform the duties of Desk Sergeant. Item 25, ¶ 19. Sherman
also now denies that he was ever physically capable of working as a
Recreation Assistant. Item 28, ¶ 10.
In the affidavit, Sherman also states that the loss of his right eye
has left him without peripheral vision on his right-hand side. Item 25,
¶ 5. Sherman claims that this loss of peripheral vision prevents him
from safely performing certain day-to-day activities. As an example,
Sherman states that cooking is hazardous for him because he constantly
runs the risk of overturning a hot pan or pot that is outside of his
limited peripheral vision. Further, Sherman alleges that he has broken
toes on two occasions because his lack of peripheral vision has caused
him to walk into walls and fall down stairs. Id. ¶¶ 7-8.
By his affidavit, Sherman also claims that his lack of depth perception
has caused him to be involved in two automobile accidents, one in 1985
and the other in 1990. id. ¶ 10. Sherman further states that his lack of
depth perception has impaired his ability to shave without cutting
himself and walk without bumping into things or stumbling. Id. ¶ 11.
C. Reconciling Deposition Testimony and Affidavit
Sherman has contradicted himself on several crucial points through his
deposition testimony and affidavit. In Mack v. United States, 814 F.2d 120
(2d Cir. 1987), the court of appeals held: "It is well settled in this
circuit that a party's affidavit which contradicts his own prior
deposition testimony should be disregarded on a motion for summary
judgment." Id. at 124. More recently, the court of appeals reaffirmed
this rule and held that a plaintiff cannot create a triable issue of fact
by denying or contradicting a previously sworn statement. Heil v.
Santoro, 147 F.3d 103, 111 (2d Cir. 1998). In the present action, the
court disregards Sherman's affidavit to the extent that it contradicts
the testimony that Sherman gave in December of 1998.
D. Letters from Treating Physician
Sherman has also attempted to rehabilitate his deposition testimony by
submitting statements from his treating physician, Dr. Donald Schaefer.
See Item 25, Exh. 1 and 2. In the first statement, Dr. Schaefer signed
the following statement: "This is to certify in the case of William
Sherman, as a result of his monocular vision, his loss of visual field
and loss of depth perception is substantial." Item 25, Exh. 1. This
conclusory opinion does not help Sherman's cause very much and provides
the court with no particularized evidence regarding the ways in which
Sherman's monocular vision affects a major life activity.
In a further attempt to establish his handicap under the Act, Sherman
has submitted another letter from Dr. Schaefer.*fn5 Item 25, Exh. 2. In
this letter, Dr. Schaefer concludes:
Mr. William Sherman [had his right eye totally
removed] and therefore he can be easily blindsided
from objects approaching from his right side.
Therefore, [Mr. Sherman] must take extreme care with
fast moving machinery, any activities that involve
depth or height, [or] activities where wide peripheral
visual fields are required.
Id. Not only is this letter from Dr. Schaefer inadmissible as evidence,
but it does not factually demonstrate the ways in which Sherman's
physical impairment "substantially limits" a major life activity. By these
letters, Dr. Schaefer only describes the theoretical dangers that
patients with monocular vision generally encounter. Yet in Albertsons, the
Supreme Court has held that courts must engage in a case-by-case analysis
of whether a plaintiff with monocular vision is handicapped under the
Rehabilitation Act or the ADA. 119 S.Ct. at 2169. Moreover, Dr.
Schaefer's statements are totally unresponsive to Albertsons's
requirement that plaintiffs "prove a disability by offering evidence that
the extent of the limitation in terms of their own expenence . . . is
substantial." Id. (emphasis added). The court finds that Dr. Schaefer's
unsworn and conclusory opinions do not tend to prove that Sherman is
handicapped under the Act.
E. Substantial Limitation of Major Life Activity
The court's review of the record reveals that Sherman's physical
impairment does not prevent him from performing any major life activity
— including the major life activities of seeing and working.
Indeed, Sherman maintains that the vision in his remaining eye is
better than 20/20. In addition, Sherman sees well enough to drive a car,
qualify for military firearms use, and play in a competitive darts
league. In this way, the present action is substantially similar to Judge
McAvoy's decision in DiTullio v. Village of Massena, 81 F. Supp.2d 397
(N.D.N.Y. 2000). DiTullio involved a disability discrimination claim from
a plaintiff police officer who suffered from monocular vision. Id. at
405. Finding that the plaintiff was not disabled under the Act, the court
in DiTullio relied on the fact that the plaintiff still had normal vision
out of one eye and was able to see well enough to re-qualify for use of
his service revolver. Id.
Nor does the record support a reasonable inference that Sherman's
physical impairment substantially limits his ability to perform the major
life activity of work. As a threshold matter, Sherman has stated that he
is physically capable of performing the duties of his present job as a
Desk Sergeant. Moreover, a plaintiff is only substantially limited in the
major life activity of work is he is "significantly restricted in the
ability to perform either a class of jobs or a broad range of jobs in
various classes as compared to the average person having comparable
training, skills and abilities. The inability to perform a single,
particular job does not constitute a substantial limitation in the major
life activity of working." 29 C.F.R. § 1630.2 (j)(3)(i) (1999); see
also Heilweil v. Mount Sinai Hospital, 32 F.3d 718, 723 (2d Cir. 1994).
Thus, even if the court were to find that Sherman has raised an issue of
fact as to
whether he is physically capable of performing his job as a Desk
Sergeant, such testimony would not give rise to the inference that
his physical impairment substantially limits the major life activity of
work. Much like the plaintiff in DiTullio, Sherman is, in fact, presently
employed by the defendant employer*fn6 and points to no class or broad
range of jobs that his monocular vision precludes him from pursuing. 81
F. Supp.2d at 407.
In the end, the record as a whole shows that despite his physical
impairment, Sherman is physically able to perform his duties as Desk
Sergeant, drive a car, read, care for himself, walk without difficulty,
qualify for military firearms use, and play darts competitively.
Sherman's statements to the contrary in his affidavit do not raise a
triable issue of fact, nor do the recent submissions from Dr. Schaefer.
In light of the foregoing, Sherman has failed to establish that his
monocular vision prevents or significantly restricts his ability to
perform any major life activity. Thus, Sherman fails to establish that his
physical impairment constitutes a handicap under the Act, and his
complaint is subject to dismissal for this reason.
Sherman fails to establish that his physical impairment rises to the
level of a handicap as that term is defined by law. Sherman's failure to
establish a prima facie claim makes it unnecessary for the court to
address whether Sherman was offered a reasonable accommodation.
For all the reasons set forth herein, the court grants defendant's
motion for summary judgment. The complaint is dismissed, and judgment
shall enter for defendant.