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March 22, 2004.


The opinion of the court was delivered by: JOHN KOELTL, District Judge


The plaintiff, Harvey Siederbaum, brings this employment discrimination action against the New York City Transit Authority ("Transit Authority").*fn1 The plaintiff alleges that the defendant discriminated against him in violation of the Americans With Disabilities Act ("ADA"). 42 U.S.C. § 12101 et seq. The plaintiff suffers from bipolar disorder, which he treats with medication. The plaintiff applied for a position as a bus driver with the Transit Authority, but he was disqualified by the Transit Authority's Medical Standards because he has bipolar disorder. The plaintiff alleges that the Transit Authority's rejection of his application was unlawful discrimination under the ADA because the Transit Authority Page 2 mistakenly perceived him to be disabled as a result of his bipolar disorder.

The Transit Authority moves pursuant to Rule 56 of the Federal Rules of Civil Procedure for summary judgment dismissing the Complaint.


  The standard for granting summary judgment is well established. Summary judgment may not be granted unless "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show 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); see also Celotex Corp. v. Catrett, 477 U.S. 317 (1986); Gallo v. Prudential Residential Servs. Ltd. P'ship, 22 F.3d 1219, 1223 (2d Cir. 1994). "The trial court's task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined at this point to issue-finding; it does not extend to issue-resolution." Gallo, 22 F.3d at 1224. The moving party bears the initial burden of "informing the district court of the basis for its motion" and identifying the matter that "it believes demonstrate [s] the absence of a genuine issue Page 3 of material fact." Celotex, 477 U.S. at 323. The substantive law governing the case will identify those facts which are material and "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

  In determining whether summary judgment is appropriate, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)); see also Gallo, 22 F.3d at 1223. Summary judgment is improper if there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party. See Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994). If the moving party meets its burden, the burden shifts to the nonmoving party to come forward with "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). The nonmoving party must produce evidence in the record and "may not rely simply on conclusory statements or on contentions that the affidavits supporting the motion are not credible." Ying Jing Gan v. City of New York, Page 4 996 F.2d 522, 532 (2d Cir. 1993); see also Scotto v. Almenas, 143 F.3d 105, 114-15 (2d Cir. 1998) (collecting cases).


  Unless otherwise noted, the following facts are not in dispute. The plaintiff, Harvey Siederbaum, has bipolar disorder, for which he takes lithium. (Def.'s Rule 56.1 St. ¶ 1; Pl.'s Resp. Rule 56.1 St. ¶ 1.) The plaintiff applied for a position as a Bus Operator with the Transit Authority, and in the course of that application the plaintiff submitted to a medical examination by the Transit Authority's Medical Assessment Center. (Def.'s Rule 56.1 St. ¶ 33; Pl.'s Resp. Rule 56.1 St. ¶ 33.) The plaintiff indicated on his employment application that he has bipolar disorder, and that he takes Eskalith, a form of lithium, twice daily to treat the disorder. (Def.'s Rule 56.1 St. ¶ 36-37; Pl.'s Resp. Rule 56.1 St. ¶ 36-37.)

  On June 13, 2000, as part of his application for the Bus Operator position, the plaintiff was given a pre-employment medical examination by Dr. Alan Genser, a Transit Authority staff physician. (Def.'s Rule 56.1 St. ¶ 38; Pl.'s Resp. Rule 56.1 St. ¶ 38.) The plaintiff later gave Dr. Genser a note from his personal psychiatrist, Dr. Ira Bergman, that confirmed that the plaintiff had been diagnosed with bipolar disorder and that Page 5 he was being treated with medication. (Def.'s Rule 56.1 St. ¶ 41; Pl.'s Resp. Rule 56.1 St. ¶ 41.)

  Dr. Genser determined that the plaintiff's bipolar disorder disqualified the plaintiff for the position of Bus Operator, because the plaintiff did not meet the Transit Authority's Medical Standards and because he could not be certified as meeting the medical standards for bus drivers under Article 19-A of the New York Vehicle and Traffic Law ("N.Y.V.T.L."). (Def.'s Rule 56.1 St. ¶ 42; Pl.'s Resp. Rule 56.1 So. ¶ 42.)

  New York State motor vehicle regulations, promulgated under Article 19-A of the N.Y.V.T.L., provide that, to be physically qualified to drive a bus, a person must have no "mental, nervous, organic, or functional disease of psychiatric disorder likely to interfere with the ability to control and safely operate a bus." 15 N.Y. Comp. Codes R. & Regs. § 6.10(b)(8). The Transit Authority is required to certify periodically that its Bus Operators meet the specified requirements under the New York State regulations. (Def.'s Rule 56.1 St. ¶ 7; Pl.'s Resp. Rule 56.1 St. ¶ 7.)

  The Transit Authority's Medical Standards were developed by the Occupational and Industrial Orthopedic Center of the New York Hospital for Joint Diseases and by Transit Authority medical staff in its Occupational Health Services division. Page 6 (Def.'s Rule 56.1 St. ¶ 9; Affidavit of Cassandra Clarke-Belgrave, M.D., dated July 31, 2003 ("Clark-Belgrave Aff."), ¶ 5.) Chapter 14 of the Transit Authority Medical Standards addresses mental disorders, and it states that bipolar disorder, whether treated or untreated, is "unacceptable" for "the four public safety-related titles — bus operator, train operator, conductor, and tower operator. . . ." (Transit Authority Medical Standards attached as Ex. B to Clark-Belgrave Aff., at 227.) The Medical Standards further state that bipolar disorder, when "treated and in remission," is "acceptable" for other Transit Authority job titles. (Id.; Def.'s Rule 56.1 So. ¶ 14; Pl.'s Resp. Rule 56.1 St. ¶ 14.)

  Bipolar disorder, which is also known as manic-depressive disorder, is marked by extreme changes in mood, thought, energy, and behavior. (Def.'s Rule 56.1 St. ¶ 17; Pl.'s Resp. Rule 56.1 St. ¶ 17.) If left untreated, the disorder can severely impair those who suffer from it, causing both manic and depressive episodes. (Def.'s Rule 56.1 St. ¶¶ 18-20; Pl.'s Resp. Rule 56.1 St. ¶¶ 18-20.) During a depressive episode, a person suffering from bipolar disorder can experience fatigue as well as difficulty in thinking, concentrating, and decision making. (Def.'s Rule 56.1 St. ¶ 19; Pl.'s Resp. Rule 56.1 St. ¶ 19.) During a manic episode, a person can experience distractibility, Page 7 poor judgment, inflated self-esteem or grandiosity, and flight of ideas, and might engage in imprudent activities, including reckless driving. (Def.'s Rule 56.1 St. ¶¶ 20-21; Pl.'s Resp. Rule 56.1 St. ¶¶ 20-21.)

  Lithium is a mood stabilizing agent commonly used to treat bipolar disorder, and it can permit a person to function effectively in that person's life activities, including working. (Def.'s Rule 56.1 St. ¶ 23; Pl.'s Resp. Rule 56.1 St. ¶ 23.) Lithium can cause side effects and toxicity even in amounts at, or slightly above, therapeutic levels. (Def.'s Rule 56.1 St. ¶ 29; Pl.'s Resp. Rule 56.1 St. ¶ 29.) The effects from a toxic reaction to lithium can include, among other things, visual impairment, muscle weakness, muscle twitches, tremors, unsteady gait, confusion, and seizures. (Def.'s Rule 56.1 St. ¶ 31; Pl.'s Resp. Rule 56.1 St. ¶ 31.) In 1988, the plaintiff stopped taking his ...

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