The opinion of the court was delivered by: RAYMOND DEARIE, District Judge
Pro se plaintiff brings this action against defendant Long
Island Railroad ("LIRR") under the Americans with Disabilities
Act, 42 U.S.C. § 12101 et seq. Plaintiff moves for summary
judgment pursuant to Rule 56 of the Federal Rules of Civil
Procedure. Defendant cross-moves for summary judgment. For the
reasons that follow, both motions are denied.
Except as otherwise noted, the following facts are not in
dispute. In March 1994, plaintiff applied to work at the LIRR and
was interviewed for the position of assistant signalman. The
duties of an assistant signalman include excavating along the
rail tracks, trimming trees and brush, painting signals, and assisting mechanics in the
installation and testing of equipment, Employees in the position
work "along the right-of-way where trains pass at high speed and
third rail is partially exposed." Declaration of Frank Rinaldi
("Rinaldi Dec.") Ex. M. The LIRR job posting states that
assistant signalmen "must be able to give, as well as receive and
understand, written and oral instructions." Id. To ensure that
employees are capable of meeting the physical demands of the
work, the LIRR follows guidelines published by the Medical
Section of the Transportation Division of the Association of
American Railroads ("AAR"). The guidelines in effect in 1994
required that assistant signalmen "have better than 50% beating
in the speech range without the use of hearing aid." Rinaldi Dec.
The LIRR offered plaintiff the position, contingent on the
results of a medical examination. On April 21, 1994, the LIRR
Medical Department examined plaintiff and reported that his
hearing was "satisfactory" but noted that he had suffered from
hearing loss in his right ear since childhood. The results of the
Beltone Audiogram indicated that plaintiff's hearing in his left
ear was in the normal range but that he had what was
characterized as severe hearing loss in his right ear. These
results were confirmed by a test administered a week later by
Jodi Hirsch of Nassau Hearing Services.*fn1
Plaintiff claims that he received a call from LIRR personnel
representative Christopher Ogiste on April 29 notifying him that
he had been disqualified from the position because of the results of his medical examination. Pl's Motion for Summary
Judgment at 2.*fn2 Plaintiff maintains that he inquired
about whether the LIRR could accommodate his impairment, but was
told no. Id. Plaintiff also claims that on May 2, he visited
the LIRR Medical Office and spoke with a nurse who confirmed his
disqualification and again rejected his request for an
unspecified accommodation. Id. at 3. Defendant, who disputes
these events, maintains that plaintiff did not request an
accommodation prior to filing his EEOC charge.
By letter dated May 11, the LIRR formally withdrew the
employment offer because plaintiff had "not successfully passed
the pre-employment medical examination." Rinaldi Dec. Ex. K.
On February 17, 1995, plaintiff filed an ADA complaint with the
Equal Employment Opportunity Commission ("EEOC"). The EEOC
investigated and concluded that the LIRR had "violated the ADA by
denying [plaintiff] an Assistant Signalman position based upon
both its application of arbitrary medical standards and its
failure to inquire into reasonable accommodations." Rinaldi Dec.
Ex. F. The EEOC proposed voluntary conciliation, but the
defendant declined to participate. On September 21, 2000, the
EEOC issued plaintiff a right to sue letter.*fn3 Plaintiff timely commenced this action, alleging that the LIRR
violated the ADA by 1) failing to accommodate his hearing
impairment and 2) disqualifying him from the position based on
arbitrary medical standards.
Summary judgment is appropriate where "there is no genuine
issue as to any material fact." Fed.R.Civ.P. 56(c). The court
must resolve all ambiguities and draw all reasonable inferences
in favor of the non-moving party. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 249 (1986). The moving party bears the
burden of showing the absence of factual disputes. Gallo v.
Prudential Residential Servs., Ltd., 22 F.3d 1219, 1223 (2d Cir.
1994); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To
survive summary judgment, the non-moving party must then offer
evidence raising a material dispute. Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986). The
non-moving party must do so not simply by asserting "mere
allegations or denials of the adverse party's pleading" but by
setting forth "specific facts showing there is a genuine issue
for trial." Fed.R.Civ.P. 56(e); Matsushita, 475 U.S. at 587.
When both parties move for summary judgment, the court reviews
each motion to determine whether the moving party has met its
burden and is entitled to judgment as a matter of law.
II. Disability Discrimination
The ADA prohibits discrimination against any "qualified
individual with a disability." 42 U.S.C. § 12112(a). For claims
of disability discrimination, courts apply the three-step
burden-shifting analysis established in McDonnell Douglas Corp.
v. Green, 411 U.S. 792, 802-04 (1973). Heyman v. Queens Village Committee for Mental Health,
198 F.3d 68, 72 (2d Cir. 1999). First, the plaintiff must
establish a prima facie case. Id. The burden of production then
shifts to the defendant to articulate a legitimate,
non-discriminatory reason for its actions. Id. To prevail, the
plaintiff must then demonstrate that the proffered reason is
pretext for intentional discrimination. Id. The burden of
persuasion is at all times on the plaintiff.
For a prima facie case of disability discrimination, a
plaintiff must show that 1) his employer is subject to the ADA;
2) he suffers a disability within the meaning of the ADA; 3) he
is otherwise qualified to perform the essential functions of the
position, with or without reasonable accommodation; and 4) he
suffered an adverse employment action because of his disability.
See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133,
142-43 (2000); Giordano v. City of New York, 274 F.3d 740, 747
(2d Cir. 2001); Heyman, 198 F.3d at 72.
Defendant argues that plaintiff fails to establish a prima
facie case because 1) he is not disabled under the statute and 2)
he cannot perform an essential function of the job.
A. The Definition of Disability under the ADA
Congress did not intend to extend the protections of the ADA to
all people with physical or mental impairments. See Toyota
Motor v. Williams, 534 U.S. 184, 197 (2002) (citing legislative
findings which suggest Congress intended to "create a demanding
standard for qualifying as disabled" under the ADA). A person is
considered disabled under the ADA only if he has, or is regarded
as having, a physical or mental impairment that substantially
limits a major life activity. 42 U.S.C. § 12102(2). Although the
statute does not define substantial limitation, EEOC regulations
state that a limitation is substantial if a person is
"significantly restricted as to the condition, manner or duration
under which [he] can perform a particular major life activity as compared to the condition, manner or duration under which the
average person in the general population can perform that same
major life activity."*fn4 29 C.F.R. § 1630.2(j)(1)(i);
Reeves v. Johnson Controls World Serv's, Inc., 140 F.3d 144,
151 (2d Cir. 1998) (internal quotation omitted) (the ADA requires
"that the impairment . . . be significant and not merely
trivial"). "Whether a person has a disability under the ADA is an
individualized," fact-specific inquiry. Sutton v. United Air
Lines, 527 U.S. 471, 483 (1999). Courts consider the nature and
severity of the impairment, the impairment's duration, and the
permanent or long-term impact resulting from the impairment.
See 29 C.F.R. § 1630.2(j)(2).
Plaintiff's impairment is his hearing loss. The parties dispute
whether this impairment substantially limits a major life
activity. See 29 C.F.R. § 1630.2(i) (major life activities
include "walking, seeing, ...