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United States District Court, E.D. New York

May 28, 2004.


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. Kandel's determination.

  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.


  A. Romain's ADA Claim

  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 company.

  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 a different position, such as a mechanic, that would have allowed him to continue his employment.

  The ADA does require employers to provide "reasonable accommodations to the known physical and mental limitations of qualified persons with disabilities." 42 U.S.C. § 1212(B)(5)(a). However, Romain's claim that Ferrara Brothers failed to accommodate him by not offering him a different position that wouldn't require commercial driving was not administratively exhausted before the EEOC, nor could it be reasonably expected to grow out of the initial EEOC charge, and it is therefore not properly before the Court. See Miller v. International Telephone & Telegraph, 755 F.2d 20, 26 (2d Cir. 1985) ("[t]he purpose of the notice provision . . . would be defeated if a complainant could litigate a claim not previously presented to and investigated by the EEOC"); Cooney v. Consolidated Edison, 220 F. Supp.2d 241, 253 (S.D.N.Y. 2002) ("Because exhaustion of administrative remedies is a prerequisite to suit under the ADA, the Court would lack jurisdiction to hear [newly raised] claims.").

  Further, it is uncontroverted that Romain did not seek such an accommodation at the time of his termination, nor has Romain established that an alternative position was actually available at that time. See Jackan v. New York State Dep't of Labor, 205 F.3d 562, 567 (2d Cir. 2000) ("an ADA plaintiff complaining of his employer's failure to provide a reasonable accommodation [] bears both the burden of production and the burden of persuasion on the question whether a suitable vacancy existed at the time he sought transfer."); Thorner-Green v. New York City Dept. of Corrections, 207 F. Supp.2d 11, 14-15 (E.D.N.Y. 2002) ("An employee cannot hold an employer liable for failing to provide an accommodation that the employee has not requested in the first place."). Romain, through counsel, raised this claim for the first time in a letter to the Court dated March 6, 2002 — almost five years after his termination. See Waldron Decl. Ex. 27. Furthermore, "reasonable accommodation does not mean elimination of any of the job's essential functions." Gilbert v. Frank, 949 F.2d 637, 642 (2d Cir. 1991). Because Romain can not establish a prima facie case of discrimination, his ADA claim must be dismissed.

  B. Romain's State Law Claims

  It is well-established that the NYSHRL and NYCHRL define disability more broadly than does the ADA: unlike the federal statute, they do not require Romain to identify a major life activity that is substantially limited by his impairment. See, e.g., Reeves v. Johnson Controls, Inc., 140 F.3d 144, 154 (2d Cir. 1998). Nevertheless, "[t]o succeed on his NYSHRL claim, [plaintiff] must have been able to `perform [] in a reasonable manner the activities involved in the job or occupation sought or held.'" Shannon v. New York City Transit Authority, 332 F.3d 95, 103 (2d Cir. 2003) (quoting N.Y. Exec. Law § 292 (21)).

  Shannon involved a bus driver who was terminated for being unable to meet the visual acuity requirements of federal and state law. The Court of Appeals noted that Shannon's "state law claims are defeated by his inability to comply with federal and state regulations." 332 F.3d at 104. "[Defendant] cannot have violated state or local discrimination laws by implementing the state or federal government's requirements for . . . driver certification." Id. The Court views the logic of Shannon's holding to be apt; therefore, dismissal of Romain's state law claims is also warranted.


  Ferrara Brothers's motion for summary judgment is granted and Romain's complaint is dismissed.



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