disability at issue must be a disability as defined by the ADA.
When determining whether a plaintiff suffers from an ADA
disability, courts focus first on whether plaintiff suffers from
an impairment. Second, the court determines whether the life
activity identified by the plaintiff constitutes a "major life
activity" under the ADA. Finally, the court considers whether
plaintiff is "substantially limited" in the identified major
life activity. Colwell v. Suffolk County Police Department,
158 F.3d 635, 641 (2d Cir. 1998); see Bragdon v. Abbott,
524 U.S. 624, 631, 118 S.Ct. 2196, 141 L.Ed.2d 540 (1998); Epstein
v. Kalvin-Miller Internat'l, Inc., 100 F. Supp.2d 222, 225-27
(S.D.N.Y. 2000); Rivera, 148 F. Supp.2d at 212.
Physical impairments that might amount to a disability include
physiological disorders or anatomical losses affecting one or
more of the body's systems, including, inter alia, the special
sense organs. See 29 C.F.R. § 1630.2(h)(1). The requirement
that a plaintiff identify a "major" life activity affected by
his impairment ensures that only significant impairments are
protected under the ADA. Colwell, 158 F.3d at 642, quoting,
Reeves v. Johnson Controls World Services, Inc., 140 F.3d 144,
152 (2d Cir. 1998). Major life activities include functions such
as caring for oneself, performing manual tasks, seeing, hearing,
speaking and breathing, 29 C.F.R. § 1630.2(j); see Ryan, 135
F.3d at 870. On the other hand, activities such as playing golf,
shopping and performing housework are not considered to be
"major life activities." Colwell, 158 F.3d at 643.
The "substantial limitation" inquiry is fact specific.
Colwell, 158 F.3d at 642. Those who are substantially limited
in major life activities are either unable to perform such
activities or "significantly restricted as to the condition,
manner or duration" under which the activity may be performed,
when compared with the condition, manner or duration under which
the average person in the general population can perform that
same major life activity. See 29 C.F.R. § 1630.2(j)(1). When
determining whether there is a substantial limitation, the court
considers: (1) the nature and severity of the impairment; (2)
the duration or expected duration of the impairment and (3) the
permanent or long term impact resulting from the impairment.
Id. § 1630.2(j)(2).
The case-specific inquiry central to the substantial
limitation question also requires the court to consider the
impact of corrective measures on a plaintiffs condition.
Schaefer v. State Ins., Fund, 207 F.3d 139, 142 (2d Cir.
2000). This includes the use of devices such as eyeglasses,
contact lenses and medications. See Murphy v. United Parcel
Service, Inc., 527 U.S. 516, 521, 119 S.Ct. 2133, 144 L.Ed.2d
484 (1999); Sutton v. United Air Lines, 527 U.S. 471, 475, 119
S.Ct. 2139, 144 L.Ed.2d 450 (1999). Even the body's own coping
systems must be taken into account when determining the extent
of any limitation. Albertson's, Inc. v. Kirkingburg,
527 U.S. 555, 566, 119 S.Ct. 2162, 144 L.Ed.2d 518 (1999). The degree of
correction afforded by use of such devices may result in a
finding that the impairment does not act as a substantial
limitation on the major life activity claimed. Sutton, 527
U.S. at 483, 119 S.Ct. 2139; e.g., Epstein v. Kalvin-Miller
Internat'l., Inc., 100 F. Supp.2d 222, 226 (S.D.N.Y. 2000) (when
plaintiffs diabetes was treated he suffered no substantial
limitation in any major life activity).
ii. Record of a Disability
Even if a Plaintiff is not actually disabled within the
meaning of the ADA, he may nonetheless have a claim if he can
show a record of an ADA disability. A record sufficient to
establish an ADA
claim, however, must document a disability within the meaning of
the ADA. Thus, even if a plaintiff is not actually substantially
limited in a major life activity, a record reflecting such a
limitation is sufficient to establish a disability under the
ADA. A "record reflecting a plaintiffs classification as
disabled for other purposes or under other standards is not
enough." Colwell, 158 F.3d at 645. Where the record relied
upon reveals no greater limitation than that experienced by an
individual who is not substantially limited in a major life
activity, the ADA "record of a disability" claim must fail.
iii. Regarded as Having a Disability
Finally, an ADA plaintiff properly alleges disability where it
can be shown that an employer regarded the plaintiff as having a
disability. Determination of whether a plaintiff is "regarded"
as having a disability turns not upon whether plaintiff actually
suffers from a disability, but upon the employer's intent.
Colwell 158 F.3d at 646. Like a record of a disability,
however, a perception of a disability must, in fact, be a
perception of a disability within the meaning of the ADA. Id.
That is, the plaintiff must be perceived as being substantially
limited in a major life activity.
iv. Stating A Hostile Work Environment Claim
A hostile work environment exists in a workplace that is
"permeated with discriminatory intimidation, ridicule and
insult, that is sufficiently severe or pervasive to alter the
conditions of the victim's employment." Torres v. Pisano,
116 F.3d 625, 630-31 (2d Cir. 1997), quoting, Harris v. Forklift
Systems, Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295
(1993); Georgy v. O'Neill, 2002 WL 449723 *10 (E.D.N.Y. March
25, 2002). Factors to consider when determining whether conduct
alleged rises to the level of a hostile environment include the
frequency and severity of the conduct, whether the conduct is
physically threatening or humiliating, and whether it
unreasonably interferes with the plaintiff's work. See Quinn v.
Green Tree Credit Corp., 159 F.3d 759, 767-69 (2d Cir. 1998).
Conduct that is "merely offensive," but does not constitute an
environment that a reasonable person would find abusive, is not
conduct that constitutes a hostile work environment. See
Torres, 116 F.3d at 631.
II. The Extent of Plaintiffs Impairment: Plaintiff's
Testimony and That of Her Treating Physician
A. Plaintiff's Description of Her Disability
Plaintiff's allegations of disability stem from her hearing
impairment. It is undisputed that Plaintiff has suffered from a
hearing impairment since approximately two years of age. At her
deposition, Plaintiff requested no need for a sign language
interpreter or a special amplification device. Instead,
Plaintiff asserted that she would be able to understand
counsel's questions so long as she could see his lips. Plaintiff
testified that while she has been prescribed hearing aids for
both of her ears, at the present time, she uses only one aid
because the use of two gives her headaches.
B. Physicians' Opinions Describing the Extent of
In addition to Plaintiffs testimony there are, before the
court, the opinions of two physicians — Dr. Dominick Sampogna,
Plaintiffs treating physician, and Dr. Peter Berman, a physician
who conducted an independent medical examination of Plaintiff on
behalf of Defendant.