The opinion of the court was delivered by: FREDERIC BLOCK, District Judge
Plaintiff Anthony Romain ("Romain") filed suit against his
former employer, Ferrara Brothers Building Materials Corporation
("Ferrara Brothers"), alleging that his termination violated the
Americans With Disabilities Act ("ADA"), 42 U.S.C. § 12101 et
seq, the New York State Human Rights Law ("NYSHRL"), N.Y. Exec.
L. § 296 et seq, and the New York City Human Rights Law
("NYCHRL"), N.Y.C. Admin. Code § 8-101 et seq. Ferrara Brothers
has moved for summary judgment pursuant to Fed.R.Civ.P. 56.
For the reasons that follow, its motion is granted.
The following uncontroverted facts are taken from the parties'
motion papers and accompanying documents. Ferrara Brothers is in
the business of manufacturing and delivering ready-mixed concrete to construction sites in New York
City. Romain worked as a truck driver for the company, a position
that required him to hold a valid New York State Commercial
Driver's License and to comply with the relevant federal and
state regulations governing commercial drivers. During 1996 and
1997, Romain was involved in several accidents while on duty, the
last of which prompted an injured party to threaten suit against
Ferrara Brothers. Despite the company's written policy that any
on-duty accident had to be promptly reported, Romain did not do
so, and Ferrara Brothers only learned of this accident when
contacted by an attorney for the injured party.
Ferrara Brothers President Joseph Ferrara ("Ferrara")
subsequently sent Romain a letter dated March 14, 1997, informing
Romain that he was being suspended from driving due to his
failure to report accidents. See Declaration of Deena A.
Waldron, Esq. ("Waldron Decl."), Ex. 5. Ferrara's letter went on
to note that "I also learned that you recently underwent eye
surgery," and speculated that vision problems might be the source
of Romain's spate of accidents. Id. Accordingly, Ferrara
informed Romain that the company had made an appointment for him
to see an optometrist, Dr. George Kandel ("Dr. Kandel"). Id.
After examining Romain, Dr. Kandel concluded that he had "massive
peripheral loss [of vision] in both eyes" that caused him to fall
far below the field of vision requirements promulgated by the
Department of Transportation ("DOT"), 49 C.F.R. § 390.3, and by
New York State, N.Y. Veh. & Traf. Law § 509-s. See Dr. Kandel's
Deposition Transcript, at 14-16. Romain does not contest Dr.
After learning the results of Dr. Kandel's evaluation, Ferrara
Brothers terminated Romain, giving as its reasons his violating
company policy in failing to report accidents and his dishonesty in concealing the extent of his
vision impairment. Romain unsuccessfully sought reinstatement in
his position as a driver, both directly and though his union, but
did not request that Ferrara Brothers reinstate him in a
different position. See Romain Deposition Transcript, at 115.
Romain then filed a Charge of Discrimination with the Equal
Employment Opportunity Commission ("EEOC"), alleging that his
termination constituted discrimination in violation of the ADA.
See Waldron Decl. Ex. 24. Romain did not allege that he had
requested that Ferrara accommodate his disability by offering him
another position with the company. Id.
After his EEOC claim was rejected, Romain filed the present
action. His complaint focused exclusively on the allegation that
his termination was discriminatory. See Waldron Decl. Ex. 17.
Summary judgment is appropriate when there is no genuine issue
of material fact to be tried and the moving party is entitled to
judgment as a matter of law. See Fed.R.Civ.P. 56(c); see
also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Once
the moving party has carried its burden to demonstrate the
absence of a genuine issue of material fact, see Celotex Corp.,
477 U.S. at 323, the opposing party "must come forward with
`specific facts showing that there is a genuine issue for
trial.'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586-587 (1986) (quoting Fed.R.Civ.P. 56(e)) (other
citations omitted). Under the burden-shifting framework established by McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973), Romain has the
initial burden of establishing a prima facie case of disability
discrimination. See generally Heyman v. Queens Village Comm. for
Mental Health, 198 F.3d 68, 72 (2d Cir. 1999). To make out a
prima facie case, Romain must show that 1) Ferrara Brothers is
subject to the ADA; 2) he was a person with a disability within
the meaning of the ADA, or was regarded by Ferrara Brothers as
having such a disability; 3) he was otherwise qualified to
perform the essential functions of his job, with or without
reasonable accommodation; and 4) he suffered adverse employment
action because of his disability. See Giordano v. City of New
York, 274 F.3d 740, 747 (2d Cir. 2001). If Romain establishes a
prima facie case, the burden shifts to the defendant to
articulate a legitimate, non-discriminatory reason for its
actions. See Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d
Cir. 2000). If the defendant meets this burden, "the plaintiff
must then come forward with evidence that the defendant's
proffered, non-discriminatory reason is mere pretext for actual
discrimination." Id. Once the plaintiff has presented
sufficient evidence for the factfinder to reject the employer's
nondiscriminatory explanation, the question becomes whether there
is sufficient evidence to sustain a finding of discriminatory
intent. See Reeves v. Sanderson Plumbing Products, Inc.,
530 U.S. 133 (2000).
Ferrara Brothers argues that Romain can not establish a prima
facie case because 1) Romain was not disabled or regarded as
disabled within the meaning of the ADA, 2) he was not otherwise
qualified to work as a commercial driver due to his damaged
vision, and 3) he failed to request a reasonable accommodation in
the form of a different position either at the time of his
termination or in his EEOC charge. Romain argues that he can establish a prima facie case of
discrimination because Ferrara Brothers regarded him as having an
impairment that substantially limited the major life activity of
working, and that Ferrara Brothers was obligated to offer him a
reasonable accommodation in the form of a different position with
The crux of Romain's claim that he was regarded as disabled is
his allegation that Ferrara Brothers suspended and ultimately
terminated him because of his poor eyesight. Even assuming this
to be the primary or sole reason for his termination, "[i]t is
not enough . . . that the employer regarded [the plaintiff] as
somehow disabled; rather, the plaintiff must show that the
employer regarded the individual as disabled within the meaning
of the ADA." Colwell v. Suffolk Country Police Dep't.,
158 F.3d 636, 646 (2d Cir. 1998). Under this standard, Romain bears
the burden of proving that Ferrara Brothers "perceived [him] to
be incapable of working in a broad range of jobs." Ryan v. Grae
& Rybicki, P.C., 135 F.3d 867, 872 (2d Cir. 1998). Romain has
not met this burden; on the contrary, the evidence shows that
Ferrara Brothers was simply aware that Romain's failing eyesight
prevented him from meeting the federal and state requirements for
a commercial driver. See Albertson's v. Kirkinburg,
527 U.S. 555, 567-68 (1999) (employer was entitled to rely on the federal
regulations in defining the essential job functions of a
commercial truck driver; therefore, plaintiff's discharge based
on his failure to meet the regulatory visual requirements did not
give rise to a violation of the ADA). Romain has therefore failed
to satisfy the second prong of his prima facie case.
Romain also can not show that he was otherwise qualified to
perform the essential functions of his job. Romain does not claim
to possess sufficient field of vision to meet the regulatory criteria to drive a commercial vehicle.
Instead, Romain argues that Ferrara Brothers failed to provide
him with a reasonable accommodation by not offering him ...