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.
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
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
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
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] ...