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June 4, 2004.


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. Ex. L.

  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.


  I. Summary Judgment

  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, ...

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