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WILSON v. AETNA LIFE AND CASUALTY COMPANY

March 25, 2002

STEPHEN E. WILSON AND GLORIA WILSON, HIS WIFE, PLAINTIFFS,
V.
AETNA LIFE AND CASUALTY COMPANY, AETNA CASUALTY INSURANCE COMPANY, THE AETNA CASUALTY AND SURETY COMPANY, TRAVELERS/AETNA PROPERTY CASUALTY CORP., TRAVELERS INSURANCE GROUP INCORPORATED, AND TRAVELERS PROPERTY CASUALTY INSURANCE COMPANY, DEFENDANTS.



The opinion of the court was delivered by: John T. Curtin, United States District Judge.

INTRODUCTION

Plaintiff Stephen Wilson alleges that defendant Aetna Life and Casualty Company ("Aetna")*fn1 terminated his employment in late July 1994 because of his age and disability, in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq. ("ADEA"); the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq. ("ADA"); and the New York State Human Rights Law, N.Y. Exec. Law § 290, et seq. (McKinney 1993) ("NYS HRL"). In the present motion, Aetna moves for partial summary judgment on Wilson's claims under the NYS HRL — arguing that they are time-barred — and on the claim asserted under the ADA — arguing that Wilson is not disabled under that Act. Item 67. The court heard oral argument on September 28, 2001. Following oral argument, the court issued an order directing the parties to file a brief statement concerning the law that applies on the New York State Human Rights claim. Item 78. Plaintiff submitted a letter-memorandum. Item 80.

PROCEDURAL BACKGROUND

Wilson commenced employment with defendants on December 21, 1970. Item 1, ¶ 19. In July 1994, Wilson was working as a claim representative in the field operations unit of Aetna's Buffalo office. On July 28, 1994, Aetna notified Wilson of its intent to terminate his employment — or "deselect" him — as part of a reduction-in-force. On March 6, 1995, Wilson filed a charge of discrimination with the New York State Division of Human Rights ("DHR"), in which he alleged that Aetna had discriminated against him on July 28, 1994 on the basis of his age and disability in violation of the NYS HRL. The complaint was simultaneously cross-filed with the Equal Employment Opportunity Commission ("EEOC"). Item 71, Ex. B. On October 27, 1997, the DHR issued a letter indicating that there was probable cause to believe that Aetna had discriminated against Wilson based on both age and disability. Item 68, Ex. D. Plaintiff received a right-to-sue letter from the EEOC on April 3, 1998. Item 1, Ex. A. On June 29, 1998, Wilson commenced the present action. The DHR issued a dismissal for administrative convenience on Wilson's charges on April 10, 2000. Item 67, Ex. E.

FACTS

For the purposes of Aetna's motion for partial summary judgment, the material facts are as follows.*fn2 Wilson began noticing a partial loss in his hearing some time in the late 1970s. As a result of his hearing loss, Wilson found that he constantly needed to ask people to repeat themselves in the course of normal conversation. Item 71, Ex. G, pp. 127-28. Wilson felt compelled to "do something" about his hearing loss after he realized how trying it was for his family to deal with his brother-in-law, who, in Wilson's words, was "half deaf." Item 67, Ex. A, p. 128.

Wilson's doctor, Dr. Fredric Hirsh, referred him to Dr. Stephen Sobie, a local otolaryngologist. Item 71, Ex. H, p. 6. On December 12, 1991, Wilson consulted with Dr. Sobie regarding his hearing loss. Id. at 6-7. Wilson told Dr. Sobie that he was having difficulty hearing, but that there was no ringing in his ears and that he was not experiencing dizziness. Id. at 7. Dr. Sobie performed a hearing test and found that Wilson had "mild hearing loss." Id. He recommended that Wilson consider hearing aids. Id. In a letter to Dr. Hirsh, dated December 16, 1991, Dr. Sobie diagnosed Wilson with "mild high frequency sensorineural hearing loss bilaterally." Id. at 12. Dr. Sobie told Dr. Hirsh that he felt Wilson would be an excellent candidate for a hearing aid. Id. at 13. He testified that Wilson had "some nerve loss in the mid frequencies. It's not purely [in the] high frequencies. . . ." Id. at 12. Asked at deposition whether the use of a hearing aid would correct Wilson's hearing loss, Dr. Sobie demurred, explaining that it would depend on his lifestyle. If, for example, he watched the television all day, he would not need a hearing aid. But "If he was in situations where he required very acute hearing or the best hearing that was possible, going to meetings, going to lectures et cetera, then he might consider a hearing aid." Id. at 13. The decision on whether a patient should be fitted with hearing aids inevitably "depends on how much trouble [the patient is] having in what situations, et cetera." Id. at 15. He deferred to the clinical experience and technical competence of audiologists as the ones with expertise to make that decision. Id.

Dr. Sobie referred plaintiff to Ann Stadelmaier, an audiologist, for routine hearing screening.*fn3 Id. at 8-9. Wilson met with her on December 21, 1991. In Wilson's initial conversation with Ms. Stadelmaier, he discussed the hearing difficulties he was having. Her notes referred to his having to ask people to repeat themselves, his difficulties in hearing people with soft voices, and his difficulty in hearing people at parties, meetings, and classes. Id., Ex. I, p. 26-27, & Ex. J, Tab B. She discussed options with him, such as the pros and cons of amplification and the need to adjust to hearing aids. Id. She recommended that he be fit for two hearing aids, but he indicated he just wanted one. Id., Ex. I, pp. 27-28. In her notes, Ms. Stadelmaier noted that he opted for only one because he was "[n]ot in a position emotionally or financially at this point to consider binaural" hearing aids. Id. at 26 & Ex. J., Tab B. Wilson wanted the "smallest aid possible," and Stadelmaier recommended a particular model. Id., Ex. I, p. 31.

During this visit, Stadelmaier performed speech audiometry and pure tone audiogram hearing tests. Id. at 10-15 and Ex. J, Tab B. In light of the audiogram test results, Stadelmaier concluded that Wilson could hear most vowel sounds and low to mid-range sound frequencies, but that he had difficulty hearing high frequency consonant sounds in both ears — with the right ear being significantly worse than the left. See Item 71, Ex. I, pp. 11-15, and Ex. J, Tab B. Stadelmaier's audiometry test showed that Wilson had excellent "speech discrimination" — or clarity of hearing — in his left ear, while the speech discrimination in his right ear was well below normal. See Item 67, Ex. G, p. 18.*fn4

Overall, Stadelmaier found that Wilson had a 15 percent loss of hearing in his right ear and a 7.5 percent loss in his left ear. Item 71, Ex. I, p. 29. Taken together, plaintiff's overall hearing loss — or his "binaural" hearing loss — was measured at 8.75 percent.*fn5 Id. Put another way, Stadelmaier stated that Wilson had "approximately [a] 50 decibel hearing loss on the high frequency end, [and] normal hearing in the low frequency. . . ." Id. at 30.*fn6 Stadelmaier concluded that Wilson had "sensory neural hearing loss, that means that the structure of the ear appears to be normal but the nerves of hearing . . . are damaged. And very often with sensory neural hearing loss we see not only diminished loudness but also diminished clarity, diminished discrimination, so it really can indicate what the prognosis is for amplification." Id. at 17.

On February 11, 1992, Wilson met again with Stadelmaier. She performed further tests, id. at 33-36, to determine where to set the hearing aid, so it would be "tailored to his particular needs." Id. at 38. In light of these tests, Stadelmaier determined that Wilson's speech discrimination without his hearing aid was 68 percent, but that his speech discrimination improved to 96 percent when he wore the hearing aid in his right ear.*fn7 Id. at 39-40. Beyond this assessment, though, Stadelmaier could not indicate whether Wilson's hearing was normal with the hearing aid. She would only say that the test results showed that the "hearing aid was performing up to my expectations," id. at 40, and that it was amplifying high frequency sounds but not sounds with lower frequencies. Id. at 38. When asked whether Mr. Wilson would have an improved level of hearing with the hearing aid, so that he could hear conversation at a normal sound level, Stadelmaier's assessment was as follows:

Depending on the listening environment, that's a critical factor that you have to really look at. In quiet one-to-one listening situations, I think that's reasonable to expect that he would be able to do that[.] [I]n more difficult listening situations, noisy environments, crowds, parties, restaurants, noisy office, whatever.
He — especially considering he only had the hearing aid in one ear, he would still have difficulty in those situations, or I would expect that he would have difficulty in those situations. I don't know whether he did indeed have difficulty.

Id. at 47-48. Stadelmaier explained that she never actually had an opportunity to test Wilson's hearing with the hearing aid, since Wilson did not return for the recommended follow-up visits. See Item 71, Ex. I, pp. 40-41, 44-45. "[W]e verified that the hearing aid was performing, but we never validated whether he was getting adequate performance with the hearing aid. . . ." Id. at 43.

The record reveals that Wilson's hearing aid was repaired periodically. Id. at 44-45. On June 1, 1992, Mrs. Wilson dropped it off with the complaint of "no volume." Id., Ex. J, Tab B. It took two weeks to repair. On January 21, 1993, the hearing aid was again dropped off. The notation on his record was "aid very weak. Needs repair." It was back from repair on February 5, 1993. Once again, on August 20, 1993, the aid was dropped off with the notation, "Aid has no usable volume until almost full on where it then sounds distorted." It was returned on September 10, 1993. Id., Tab B, p. NP 23.

For his own part, Wilson described the effects of his mitigated hearing loss*fn8 in the following way:

Q: Okay. And your hearing with — with the hearing aids, how would you describe [your hearing]?

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