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February 25, 2002


The opinion of the court was delivered by: Sweet, District Judge.


Defendants the New York City Transit Authority (the "NYCTA") and the Manhattan and Bronx Surface Transit Operating Authority ("MABSTOA") (collectively, the "Authorities"), have moved for summary judgment to dismiss the complaint of plaintiff Curtis Shannon ("Shannon") alleging disability discrimination under Rule 56, Fed.R.Civ.P. Shannon has cross-moved for summary judgment granting the relief sought in the complaint and to strike portions of the affidavit of Stephen A. Vidal, Chief Officer, Safety,

Training and Performance for the NYCTA's Department of Buses. For the reasons set forth below, the motion of the Authorities to dismiss the complaint is granted; the cross-motion of Shannon is denied.

Prior Proceedings

Shannon timely filed a charge of disability discrimination with the Equal Employment Opportunity Commission ("EEOC") and filed this action within ninety days of the receipt of a Notice of Right to Sue, issued by the EEOC, dated June 28, 2000 and received on June 30, 2000.

This action was commenced on July 11, 2000, by the filing of a complaint on behalf of Shannon alleging that the Authorities had discriminated against him as a result of their improper conclusion that he was color blind, barring him from employment as a bus operator in violation of the Americans with Disabilities Act, 42 U.S.C. § 1210Z(2) et seq. (2901) and New York State Human Rights Law, NYC Admin. Code § 8-107(15)(a).

Discovery proceeded, and was completed. The instant motions were heard and marked fully submitted on December 5, 2001.


The Authorities are public benefit corporations engaged in the business of providing public transportation to New York City, with their principal places of business in New York.

The Ishihara examination is a diagnostic test used to determine color vision abnormalities and capabilities. The examination is a series of plates, 24 in all, some of which have numbers on them, and some of which have patterns. They are in different colors. The patient is asked to identify either the number or the specific pattern. The William Lantern examination is like a traffic signal. It consists of red, green and yellow color lanterns. Individuals must identify the color of the light that is on.

In 1995, Shannon was employed by the NYCTA after taking a pre-employment examination in which he failed the Ishihara eye examination and passed the William Lantern eye examination.

During the pre-employment examination in March 1999, Shannon passed the Ishihara examination and was hired by the NYCTA, Department of Buses, on March 29, 1999 as a bus operator.

The bus operator job for NYCTA involves operating a bus carrying passengers in accordance with the New York City Transit Authority, New York State law, and New York City traffic rules and regulations. A bus operator is responsible for the safety of passengers and to protect the assigned vehicle. The buses driven by NYCTA bus operators weigh over 26,000 pounds, can seat over 40 passengers, and carry up to 70 passengers.

On or about May 15, 1999, in the regular course of Shannon's duties, he was involved in an accident when an individual in a parked car opened her car door and hit the tire of the bus Shannon was driving.

On May 17, 1999, Shannon reported to the NYCTA medical office where he submitted to a physical examination and an eye examination. During the eye examination, he failed the Ishihara examination. During the William Lantern examination, he stated that a light was "red" and immediately changed his answer to "yellow." During the eye examination, Shannon wore yellow tinted glassed which the examining doctor concluded might have caused a mistake during the examination.

Dr. Hae Sook Chung ("Dr. Chung"), a staff physician for NYCTA, concluded that the tests given to Shannon on May 17, 1999, were inconclusive. She restricted Shannon from duty for one week, with pay. He was not permitted to drive.

The next day, May 18, 1999, Shannon took the eye test again. He again failed the Ishihara examination and passed the "stop light" (William Lantern) examination. Dr. Chung made up a test to see if Shannon could recognize the colors red, green, yellow and blue. He passed the test.

Dr. Chung referred Shannon to Transit Authority ophthalmologist Dr. Alfred J. Nadel ("Dr. Nadel") who examined him on May 24, 1999.

On June 7, 1999, Dr. Chung concluded that Shannon was medically qualified to perform work on a permanent basis for two months. On June 13 or 14, Dr. Chung received a report from Dr. Nadel and recalled Shannon and put him on restricted work, restricted from driving.

Dr. Chung took this action because Dr. Nadel's report "indicated he had a definite color deficiency and I thought it was not safe for him driving at that time"; "I thought it's not safe for him driving for himself and for passengers, for the public." Dr. Chung believed that Shannon "may not identify the traffic light correctly."

Dr. Chung put Shannon on restricted work temporarily to have a more elaborate color vision test performed, an electroretinogram ("ERG"), which was administered on July 21, 1999 by Dr. Sheila Margolis ("Dr. Margolis"), an opthamologist. An ERG measures an electric potential which occurs between the front and back portion of the eye when the eye is stimulated by lights. Depending on the pattern of lights used, the amount of illumination used and the resultant electrical response, the physician can make opinions as to the function of the rods and cones in the retina. The rods and cones in the retina are photoreceptors which perceive light or images or color and through the nerve fiber layer of the retina and the optic nerve, transmit these images to the brain. Dr. Margolis examined Shannon and administered an Ishihara examination during which Shannon missed seven out of nine plates.

Dr. Margolis' diagnosis was that Shannon suffered from a cone/rod abnormality and she stated at her deposition that Shannon has a red/green deficiency. Dr. Margolis stated that "[w]hen you say, diagnosis, you don't specify a red/green. It's understood that the person has a cone, a widespread cone and rod degeneration. . . Any physician in ophthalmology would understand that." When pressed as to whether she "personally concluded" that Shannon has a "red/green/yellow color vision deficiency," Dr. Margolis replied:

To say that you have a cone/rod degeneration is already specifying that all the color vision cones are affected. So it could be red, it could be green, it could be blue, it could be yellow. All of them are affected. That's why this test is a diagnostic test. So by virtue of saying that, you are saying that all of the cones are deficient, whether it's a red, a green, a blue.

After Dr. Margolis administered the electroretinogram examination to Shannon, she concluded that:

The E.R.G. would — yes tells you that there is abnormality of his cone system which involves his red color vision, his green color vision, yes, because all of the cones are involved. [a]s compared to the normal population, Curtis Shannon has an abnormal color vision both on objective testing, E.R.G., and subjective testing on Ishihara.

Once all tests were completed, Dr. Margolis consulted with Dr. Nadel and reiterated the diagnosis that she made concerning Shannon and reviewed with Dr. Nadel the results of the testing. Dr. Margolis was concerned that Shannon would be at risk for losing more vision and more function.

In a written report dated July 12, 1999, Dr. Margolis indicated that "[i]t appears that there may be both a rod and cone dysfunction." She also stated that she "would be most interested in [Shannon's] ...

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