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BOSKET v. LONG ISLAND RAILROAD

United States District Court, E.D. New York


June 4, 2004.

KENNETH BOSKET Plaintiff,
v.
LONG ISLAND RAILROAD Defendant.

The opinion of the court was delivered by: RAYMOND DEARIE, District Judge

MEMORANDUM & ORDER

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.

  BACKGROUND

  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.

  DISCUSSION

  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, hearing, speaking, breathing, learning, and working").

  1. Hearing

  Plaintiff claims that his impairment substantially limits the major life activity of hearing. As noted above, medical tests performed by the LIRR Medical Department and Nassau Hearings Services found normal hearing in plaintiff's left ear but severe hearing loss in his right ear. Plaintiff claims that this impairment causes speech to have a "muffled quality" with a "lack of word clarity." Pl's Motion at 13. See also Rinaldi Dec. Ex. C at 16, 18, 21-22 (plaintiff's deposition testiomony discussing effect of hearing impairment).*fn5 Background noise makes it difficult for plaintiff to understand conversations, and he often must ask speakers to repeat their words. Plaintiff further claims he must avoid certain social situations because of his difficulty understanding conversations. Because of parental pressure to appear "normal," plaintiff has never used a hearing aid, though doctors have suggested it might alleviate these problems.

  Defendant argues that plaintiff's claim fails because he suffers, at most, only a moderate restriction. Defendant notes that plaintiff's employers have been unaware of his impairment and that plaintiff has not needed accommodations in his jobs. Rinaldi Dec. Ex. C at 14-15, 41-43. Defendant also notes that plaintiff did not need special consideration or assistance during his deposition. Finally, defendant cites plaintiff's educational attainment, driver's license, and lack of hearing aid as further proof of the modest nature of his impairment.

  In support of its argument, defendant cites a number of cases. Kelly v. Drexel Univ., 94 F.3d 102, 108 (3d Cir. 1996) (affirming grant of summary judgment against plaintiff whose degenerative hip condition placed only "comparatively moderate restrictions on the ability to walk"); Shannon v. New York City Transit Authority, 189 F. Supp.2d 55 (S.D.N.Y.) aff'd 332 F.3d 95 (2d Cir. 2003) (addressing whether the employer regarded the plaintiff as disabled because of his color blindness); Graver v. National Eng'g Co., No. 94-1228, 1995 U.S. Dist. LEXIS 10405 (N.D. Ill. July 25, 1995) (plaintiff not disabled because limp caused by ankle condition did not substantially interfere with the ability to walk); Stone v. Energy Servs., Inc., No. 94-2669, 1995 U.S. Dist. LEXIS 8834 (E.D. La. June 20, 1995) (plaintiff not disabled because various post-polio limitations only modestly interfered with his ability to walk); Richardson v. William Powell Co., No. 93-528, 1994 U.S. Dist. LEXIS 19818 (S.D. Ohio Nov. 10, 1994) (plaintiff not disabled because limp caused by degenerative hip arthritis did not substantially impair plaintiff's ability to walk).*fn6 The Court finds that these cases — most dealing with limitations on the ability to walk — are of little assistance, given the facts of this case.

  More useful guidance is found in cases that focus on moderately hearing-impaired plaintiffs similar to Mr. Bosket. As these cases underscore, determining whether a hearing impairment is substantial necessitates a comparison between the plaintiff and a non-impaired individual. Fact-intensive inquiries such as this often require resolution at trial. See Broderick v. City of New York, 942 F. Supp. 196 (S.D.N.Y. 1996) (denying defendants' motion to dismiss brought "on the ground that her hearing loss did not substantially limit a major life activity" because "the extent of plaintiff's hearing loss is a factual question that must be resolved at trial"). Indeed, courts have denied summary judgment where plaintiffs have presented evidence of hearing impairments comparable to Mr. Bosket's. See Wilson v. Aetna Life and Casualty Co., 195 F. Supp.2d 419, 429 (W.D.N.Y. 2002) (denying summary judgment where plaintiff offered evidence of 15% loss of hearing in right ear, 7.5% loss in left ear, and 68% conversational speech discrimination, which improved to 96% with a hearing aid); Connolly v. Bidermann Industries U.S.A., Inc., No. 95-1791, 1998 U.S. Dist. LEXIS 8550, *15 (S.D.N.Y. June 9, 1998) (denying summary judgment because "whether plaintiff's hearing disability `substantially limits' one or more of plaintiff's major life activities is an issue of fact to be decided at trial"); Connolly v. Bidermann Industries U.S.A., Inc., 56 F. Supp.2d 360 (S.D.N.Y. 1999) (noting jury found plaintiff disabled under the ADA based on evidence that she was nearly deaf in one ear and suffered ringing in her other ear); Finical v. Collections Unlimited, Inc., 65 F. Supp.2d 1032, 1040 (D. Az. 1999) (material dispute as to whether plaintiff was disabled under the ADA because of her "mild to moderate" hearing loss); but see Clemente v. Executive Airlines, Inc., 213 F.3d 25 (1st Cir. 2000) (granting summary judgment on ground that plaintiff not disabled under the ADA where plaintiff suffered only a temporary and moderate loss of hearing in one ear); Benette v. Cinemark U.S.A., Inc., 295 F. Supp.2d 243, 256 (W.D.N.Y. 2003) (granting summary judgment where plaintiff "[did] not allege that his impairment substantially limits his ability to hear and the evidence . . . is insufficient to support such a finding").

  For example, the Wilson court denied summary judgment even though the plaintiff's conversational speech discrimination rate had improved from 68 to 96 percent with his hearing aid. The court noted that while this "might indicate that [plaintiff's] impairment is not terribly severe, there is no denying that his hearing loss has and will continue to have a significant impact on his . . . life. Indeed, it is no small matter for [plaintiff] to be unable to carry on conversations in commonplace settings like a car, a conference hall, a noisy office, a classroom, or a crowded restaurant." Wilson, 195 F. Supp.2d at 429.

  In Finical, the plaintiff's doctor described her hearing loss as "mild to moderate," with test results indicating that plaintiff missed about 37 percent of conversational speech. 65 F. Supp.2d at 1040. Although plaintiff's doctor suggested that hearing aids would improve her condition, she did not wear them. As here, the defendant in Finical argued that the plaintiff's impairment did not substantially limit her hearing, as demonstrated by her ability to drive a car, watch television, work in an office and engage in other life activities. However, the Finical court rejected these arguments, noting that Supreme Court precedent "did not instruct lower courts to consider whether the plaintiff could perform life activities that, though indicative of high functional capacity, or, at minimum, of ability to perform `everyday activities' like an `everyday person,' are unrelated to the major life activity" at issue. Id. at 1039.

  The Court concludes that plaintiff has raised a genuine issue as to whether his impairment substantially limits his ability to hear, as compared to an average individual. As plaintiff notes, Congress established the ADA's threshold for disabling impairments with the term "substantial" rather than "severe." The Supreme Court has elaborated that the term "substantial" connotes a limitation that is "`considerable' or `to a large degree.'" Toyota Motors, 534 U.S. at 196. Clearly, plaintiff is highly functioning in most aspects of his life, but he has offered sufficient evidence from which a juror could conclude that his hearing is substantially limited as compared to the average person.

  The Court cannot, however, grant plaintiff's motion for summary judgment on this issue. Plaintiff has raised a material issue as to the extent of his disability. He has not offered evidence from which the Court could conclude that he is disabled under the ADA as a matter of law.

  2. Work

  Plaintiff also claims that his impairment substantially limits his ability to work. Although work is considered a major life activity, the EEOC suggests that courts address it only if no other major life activity is shown to be substantially limited. 29 C.F.R. § 1630.3(j) App. Because plaintiff moves for summary judgment, the Court finds it prudent to resolve whether he can rely on this ground to establish his prima facie case. The Court concludes he cannot.

  "The EEOC uses a specialized definition of the term `substantially limits' when referring to the major life activity of working." Sutton, 527 U.S. at 491. EEOC regulations set a high threshold, requiring a plaintiff to demonstrate that his impairment disqualifies him from either a particular class of jobs or a broad range of jobs in various classes, as compared to a non-impaired person of similar training, skill, and experience. 29 C.F.R. § 1630.2(j)(3)(i). Thus, "[i]f jobs utilizing an individual's skills . . . are available, one is not precluded from a substantial class of jobs. Similarly, if a host of different types of jobs are available, one is not precluded from a broad range of jobs." Sutton, 527 U.S. at 491. EEOC regulations specifically state that "the inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working." 29 C.F.R. § 1630.2(j)(3)(i). Only if a plaintiff is substantially limited in his ability to work generally will he be considered disabled under the ADA.

  Defendant argues that plaintiff fails to meet this threshold. Defendant notes that, despite his impairment, plaintiff has held a number of jobs in a variety of capacities. Rinaldi Dec. Ex. C at 11-13, 42-45 (plaintiff testified that he was employed by Technology Industries for two or three years; Frequency Electronics for six years; Unisys Corp. for two to three years; Pitney Bowes; and currently with Lockheed Martin). The LIRR also highlights the fact that none of plaintiff's employers has been aware of his impairment and that he has never required special accommodation in these positions.

  In his moving papers, plaintiff addresses only his disqualification from the assistant signalman position, not the impact of his impairment on his ability to work in general. In his opposition to defendant's motion, plaintiff includes a number of job postings with hearing requirements. Pls' Reply Ex. A at 10-23. These jobs include 911 telecommunicator and dispatcher in Rochester, New York; licensed chemical dependancy counselor in Texas; undergraduate research assistant in Minnesota; Drug Enforcement Administration Special Agent; ATF special agent; and food inspection agent. The Court concludes that this evidence is insufficient to defeat summary judgment on this issue.

  First, it is not clear that plaintiff's impairment would in fact disqualify him from each of these positions, since a number of the job announcements do not state specific hearing requirements. Second, most of these positions are not in plaintiff's geographic region and are not relevant to the analysis. 29 C.F.R. § 1630.2(j)(3)(i)(A) (geographic area to which plaintiff has access is relevant consideration). Finally, it is not clear that plaintiff would in fact be qualified for any of these positions, regardless of his hearing impairment. 29 C.F.R. § 1630.2(j)(3)(i) (relevant to analysis only if non-impaired person of plaintiff's skills and training would be eligible for those positions).

  Plaintiff has not offered evidence that his hearing impairment disqualifies him from a sufficiently broad range of jobs and thus cannot establish his prima facie case on this ground.

  B. Otherwise Qualified: Essential Job Functions and Reasonable Accommodation

  For his prima facie case, the plaintiff must also demonstrate that he is qualified to perform the essential functions of the job, with or without reasonable accommodation. Essential functions include "`fundamental' duties . . . but not functions that are merely `marginal.'" Stone v. City of Mount Vernon, 118 F.3d 92, 97 (2d Cir. 1997) (citing 29 C.F.R. § 1630.2(n)(1)). Courts "must give considerable deference to an employer's judgment regarding what functions are essential for service in a particular position." Shannon, 332 F.3d at 100 (internal quotation marks omitted); 42 U.S.C. § 12111(8) ("consideration shall be given to the employer's judgment as to what functions of a job are essential); 29 C.F.R. § 1630.2(n)(3)(i). However, as the Ninth Circuit has stressed, "an employer may not turn every condition of employment which it elects to adopt into a job function, let alone an essential job function, merely by including it in a job description." Cripe v. City of San Jose, 261 F.3d 877, 887 (9th Cir. 2001) (internal citations omitted).

  Defendant asserts, and plaintiff does not dispute, that a high level of hearing is an essential function of the assistant signalman position. Def. Memo at 3-4 ("due to the nature of the job functions, it is essential . . . to have adequate hearing, vision, color and depth perception. The ability to verbally communicate and to hear and be heard clearly while on the always-noisy right-of-way is critical to the safety of Assistant Signalmen and others."), 13 (position requires "high levels" of hearing).

  Defendant claims that plaintiff cannot show he was "otherwise qualified" because he failed to meet the AAR requirement of 50% unassisted hearing capacity. Plaintiff contends, however, that with the reasonable accommodation of a hearing aid, he would have met the hearing requirement. Thus, the critical issue at this stage is whether the ADA permits the defendant to disqualify hearing impaired applicants based on the AAR guideline. If so, the inquiry ends, since the AAR rule by definition foreclosed the accommodation that plaintiff claims he requested.

  The LIRR correctly notes that the ADA allows employers to use qualification standards to ensure that employees are capable of performing a job's essential functions. 42 U.S.C. § 12112(b)(6); 29 C.F.R. § 1630.2(q) (defining "qualification standards" to include the physical, medical, and safety requirements established by the employer). However, the ADA prohibits the use of standards which tend to disqualify disabled individuals, unless they are shown to be "job-related for the position in question and consistent with business necessity." 42 U.S.C. § 12112 (b)(6). The business necessity prong ensures that employment policies address risks that are real and not the product of stereotypical assumptions about the disabled. EEOC v. Exxon Corp., 203 F.3d 871, 875 (5th Cir. 2000); 29 C.F.R. § 1630.10 App. (it ensures "that there is a fit between job criteria and an applicant's . . . actual ability to do the job"). Section 12113(a) reiterates this as an affirmative defense, adding that such standards are permissible only if "performance cannot be accomplished by reasonable accommodation." 42 U.S.C. § 12113(a); Chevron v. Echazabal, 536 U.S. 73, 78 (2002) (qualification standard permissible only "if the individual cannot perform the job safely with reasonable accommodation"). Subsection (b) states that a qualification standard can include the requirement that an employee not pose a direct threat to the health and safety of co-workers. 42 U.S.C. § 12113(b).

  Navigating these issues is complicated, since the statute appears to place the burden of proof on both parties. Plaintiff's ability to demonstrate that he is "otherwise qualified" is inextricably linked to whether the LIRR can defend its use of the AAR standard to disqualify plaintiff.*fn7 On the facts of this case, it is most sensible to address first whether the LIRR meets its burden of proof on its affirmative defense. See, e.g., Ryan v. City of Highland Heights, 1995 U.S. Dist. LEXIS 21024, *9 (N.D. Ohio July 19, 1995) ("If employers wish to terminate disabled individuals because they have failed required tests, the employers should be made to justify their tests according to the standards of § 12113(a)."). 1. LIRR's Affirmative Defense

  It is not disputed that the AAR standard tended to disqualify hearing-impaired applicants and that the standard was job-related. Thus, analysis will focus on whether the LIRR offers sufficient evidence to demonstrate that the policy was consistent with business necessity and did not disqualify people who, with reasonable accommodation, could perform the position. 42 U.S.C. § 12113(a). Most critical is whether the LIRR offers evidence justifying the requirement that hearing impaired individuals meet the AAR standard without the assistance of a hearing aid.

  Affirmative defense cases follow a few standard fact patterns. For instance, employers generally prevail when the challenged qualification standard is required by, or derived from, government regulation. See e.g., Siederbaum v. City of New York, 2004 U.S. Dist. LEXIS 4607 (S.D.N.Y. March 23, 2004) (exclusion of bipolar employees from bus driving positions to comply with New York Vehicle and Traffic Law); Shields v. Robinson-Van Vuren Assocs., Inc., 2000 WL 565191, at *6 (S.D.N.Y. May 8, 2000) (FAA-imposed rule tending to disqualify diabetics from air traffic controller positions). The Supreme Court has noted that "it is crucial" in such a case that the employer is "not insisting upon a job qualification merely of its own devising, subject to possible questions about genuine appropriateness and justifiable application to an individual for whom some accommodation may be reasonable." Albertson's, Inc. v. Kirkingburg, 527 U.S. 555 (1999). Although defendant cites this type of case in its brief, it points to no federal or state regulations that mandate the AAR rule.

  Of more assistance are cases involving voluntarily adopted policies, such as the one at issue here. These cases illustrate the measure and type of proof an employer must offer to sustain an affirmative defense. For example, employers have prevailed in their affirmative defenses by offering testimony from the person or organization that developed the particular standard explaining how the test was devised, why particular standards were chosen, and how it should be used. Ryan, 1995 U.S. Dist. LEXIS 21024 at *6-7 (evidence from developer of fitness test which disqualified plaintiff). Other employers have offered medical evidence of the risks associated with both the impairment as well as the methods of treating or accommodating that impairment. Siederbaum, 2004 U.S. Dist. LEXIS 4607 at *32 (upholding exclusion of bipolar employees from bus driver positions based on evidence of risks associated with bipolar disorder itself and the primary drug used to treat the disorder). In Leverett, the court found that the city's requirement that firefighters have hearing capacity in both ears, with or without a hearing aid, was "based upon the well supported medical opinion that the ability to hear in both ears relates directly to one's ability to localize sound and thus to perform the essential functions of a firefighter." 51 F. Supp.2d at 958.

  When defendants offer little or no such evidence, courts typically deny summary judgment. For instance, in EEOC v. Houston Area Sheet Metal Joint Apprenticeship Cmt., No. 00-3390, 2002 U.S. Dist. LEXIS 10393 (S.D. Tex. June 3, 2002), an applicant to a sheet metal apprenticeship program was rejected because he was deaf and unable to speak. The Apprenticeship Committee implemented a qualification standard that apprentices be able to speak and hear because of the need to communicate on the job. The court rejected the business necessity defense, concluding that the Committee had not "demonstrated that the qualification standard . . . [was] justifiable as an `across-the-board' requirement." Id. at *24. The court noted that the plaintiff had offered evidence that he could communicate, through alternative methods, and thus had raised "triable issues of fact . . . regarding whether [he] could have been reasonably accommodated in fulfilling the essential function of communication." Id. at *22.

  Similarly, a district court denied summary judgment in a case involving a per se exclusion of insulin-dependent diabetics from jobs as a forklift operators. EEOC v. Murray, 175 F. Supp.2d 1053 (M.D. Tenn. 2001). There, the defendant argued that the need to operate the forklift safely required the ability to "stay alert and maintain total awareness of [the] surroundings at all times." Id. at 1063. As here, the plaintiff did not dispute this, but claimed that there was insufficient evidence to justify the blanket exclusion of insulin-dependent diabetics. The court noted that "the defendant has offered no evidence . . . of the actual potential for individuals with insulin-dependent diabetes to lose control of forklifts or otherwise suffer from lapses of attention or awareness." Id. at 1065. Although the defendant offered statistics on forklift accidents in general, the court concluded that "these statistics are wholly insufficient to allow the court to conclude that all insulin-dependent diabetics pose such a substantial risk of attention lapses that the defendant is justified under the ADA in barring them, as a class, from the operation of forklifts." Id. Absent conclusive evidence, the defendant was not entitled to summary judgment on its affirmative defense. Id.

  Also instructive is a class action challenge under the Rehabilitation Act*fn8 over a Pennsylvania Department of Transportation regulation that disqualified school bus drivers who did not meet a threshold hearing capacity without the use of a hearing aid. Strathie v. Department of Transportation, 716 F.2d 227 (3d Cir. 1983). The DOT attempted to justify its rule by citing the risk of hearing aid dislodgment, mechanical failure, incapacitation of the aid by the wearer, and the inability of the wearer to localize sound. Id. at 232-234. However, the plaintiff advanced numerous solutions to these risks, such as mandating particular hearing aid models or a pre-set volume on the device. The Court found that these potential accommodations precluded judgment as a matter of law for the DOT and thus vacated the district court's judgment and remanded for further proceedings.

  In this case, the defendant offers only the most general, conclusory arguments concerning safety to justify its reliance on the AAR standard. The LIRR argues that "clearly, the Assistant Signalmen [sic] position is a safety-sensitive position. It takes little imagination to envision the safety risks to the public, co-workers and Bosket himself posed by an Assistant Signalmen [sic] who is hearing impaired. The courts recognize the disastrous consequences that may ensue." Def. Memo at 15. Aside from this comment, defendant offers no evidence concerning the methodology behind the standard, the reason for choosing that particular rule, or the risks requiring the prohibition on hearing aids.

  Plaintiff, in turn, raises numerous issues with the AAR rule. He offers evidence that questions the methodology behind the AAR standard. See Pl's Ex. A at 32 (letter from Neil T. Shepard, Director of the Audiology, Speech Pathology and Balance Center at the Hospital of the University of Pennsylvania) (the AAR standard "was inappropriate as there is no actual manner based in science to figure out the percent of hearing loss or percent residual function that someone has with their hearing."). Similarly, the EEOC concluded that the AAR rule "ha[d] not been justified" and that "despite the EEOC's request for [information], the Respondent has failed to provide an explanation of how the 50% requirement was determined and also has failed to provide any documentation reflecting the analysis which led to the requirement." See Pl's Ex. A at 30. While defendant's understandable concerns for safety at the job site are laudable, the concerns themselves are not a substitute for admissible evidence supporting the all-or-nothing standard suggested.

  Plaintiff also claims that it was arbitrary to use the rule to disqualify him, since the LIRR did not test current employees to ensure ongoing compliance with the AAR rule. The EEOC's Determination Letter echoed this concern, noting that "[the LIRR] acknowledges that hearing tests are not routinely administered and that, unless it becomes aware that a current employee has suffered a significant hearing loss, no further testing is administered to employees in the positions." Id. at 30.

  Finally, plaintiff argues that the rule itself is ambiguous, since it does not specify whether the 50% requirement is for each ear or for overall hearing capacity. Again, the EEOC raised this concern stating "documentation submitted by Respondent indicates that under its regulations, [Bosket] may be qualified for the position despite his hearing impairment . . . [T]he hearing standard, which itself has not been justified, is ambiguous on whether the standard applies to one ear or both ears." Id. at 31. Notably, the EEOC cited the "application of arbitrary medical standards" as one of the two grounds for finding the LIRR violated the ADA. Id. at 31.

  The LIRR offers no argument — much less, evidence — that addresses these concerns or justifies preventing applicants from using a hearing aid to pass the medical examination. Furthermore, according to evidence presented by the plaintiff, the LIRR has since adopted a revised AAR guideline that requires that assistant signalmen "not have an average hearing loss in the better ear greater than 40dB HL at .5, 1.0 and 2.0 kHZ with or without a hearing aid." Pl's Ex. A at 34 (emphasis added). Notably, plaintiff submits a letter from a hearing specialist approving of the new test's methodology and asserting that plaintiff would probably not be disqualified under the new rule. Pl's Ex. A at 32 (Shepard Letter).

  The Court does not for a moment take issue with the sensible premise that when public safety is at issue, employers must enjoy broad discretion in setting qualification standards. Shannon, 332 F.3d at 103 (summary judgment warranted where no reasonable juror could conclude that the employer "exceeded the reasonable bounds necessarily afforded it under the ADA"). However, the LIRR has offered no argument or evidence to defend its requirement that applicants pass a hearing exam without the use of a hearing aid. Absent such evidence, the Court cannot conclude, as a matter of law, that the LIRR was permitted to disqualify plaintiff under the AAR rule.*fn9

  2. Reasonable Accommodation

  Even though the LIRR could not properly rely on the AAR rule, the plaintiff must still prove that a reasonable accommodation would have made him "otherwise qualified" to perform the job. The ADA defines discrimination to include the refusal of an employer to reasonably accommodate an impaired employee. However, the ADA does not obligate the employer to eliminate any essential aspect of a job or endure undue hardships. 42 U.S.C. § 12112(b)(5)(A); Wernick v. Federal Reserve Bank of New York, 91 F.3d 379, 384 (2d Cir. 1996).

  "The ADA envisions an `interactive process' by which employers and employees work together to assess whether an employee's disability can be reasonably accommodated." Jackan v. New York State DOL, 205 F.3d 562, 566 (2d Cir. 2000). The plaintiff bears the burden of persuading that an accommodation existed that would have rendered him "otherwise qualified" for the position. Borkowski v. Valley Central School Dist., 63 F.3d 131, 136-39 (2d Cir. 1995) (discussing the allocation of the burden of proof for reasonable accommodation). The burden of persuasion then shifts to the employer to show that the accommodation was not in fact reasonable or would impose undue risk or hardship. Id.

  Plaintiff asserts that with a Contralateral Routing of Signal ("CROS") hearing device, he would have had hearing adequate for the position. A CROS device transmits sound from the good ear to the impaired ear via radio frequency. Plaintiff submits a report from an evaluation at St. John's University's Speech and Hearing Center which concluded a "CROS type hearing aid would provide [him] binaural hearing." Pl's Ex. A at 24. The report notes that various "hearing aid options were discussed regarding limitations of right ear amplification for communication purposes" and that "function and localization benefits of a CROS aid were explained." Id. at 26.

  The LIRR does not respond to this medical evidence, nor does it address the reasonableness of the proposed accommodation. Instead, the LIRR argues that plaintiff did not raise this accommodation soon enough. In its response to the EEOC, the LIRR asserted that it was "not able to address any `reasonable accommodation' inquiry" because the LIRR had "no knowledge as to whether or not Mr. Bosket's hearing [could] be sufficiently corrected to meet the rigid safety requirements of the job at issue. Mr. Bosket has never requested any kind of accommodation. Thus, a reasonable inference can be made that no reasonable accommodation is possible." Pl. Ex. A at 21 (LIRR response to EEOC investigation). This position led the EEOC to conclude that the LIRR had violated the ADA in part because it "failed to consider as a regular part of its medical examination whether any reasonable accommodation exists that would enable [Bosket] to perform the essential functions of the job." See id. at 3.

  In general, it is the employee's obligation to trigger the interactive process by asserting the need for accommodation. See Sidor v. Reno, No. 95-9588, 1997 U.S. Dist. LEXIS 14260 (S.D.N.Y. Sept. 19, 1997) (granting summary judgment to employer where employee failed to request accommodation); 29 C.F.R. § 1630.9 App. ("In general . . . it is the responsibility of the individual with a disability to inform the employer that an accommodation is needed."). However, the Court finds that this general requirement does not apply when the employer's rule, by definition, forecloses the very accommodation the employee would need.

  The Court finds that plaintiff has offered sufficient evidence from which a jury could conclude that a reasonable accommodation existed that would have enabled plaintiff to perform the essential functions of the position.

  C. Legitimate Non-Discriminatory Explanation

  As noted above, if a plaintiff makes out a prima facie case, the burden of production shifts to the defendant to articulate a legitimate, non-discriminatory reason for its actions. The LIRR attempts to rely on its use of the AAR standard to rebut plaintiff's prima facie case. However, for the reasons discussed above, plaintiff has offered sufficient evidence of pretext to survive summary judgment. The LIRR offers no other non-discriminatory justifications for its decision to revoke plaintiff's job offer.

  CONCLUSION

  For the reasons stated above, the parties' motions for summary judgment are denied. The Court notes that plaintiff moved for a notation of default under Federal Rule of Civil Procedure 55(a). However, the LIRR has properly responded in this case. The Clerk has not noted any default by the defendant. Therefore, default judgment is not warranted.

  SO ORDERED.


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