The opinion of the court was delivered by: Sweet, D.J.
The defendant New York City Transit Authority (the "TA") has moved under Rule 56, Fed. R. Civ. P., to dismiss the complaint of plaintiff pro se Kenneth L. Stewart ("Stewart" or the "Plaintiff") alleging that the TA has violated the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101, et seq. ("ADA"). For the reasons set forth below, the motion is granted in part and denied in part.
Stewart commenced this litigation on January 14, 2004, by filing his complaint which alleged that he is legally blind and that his ADA rights have been violated because TA's bus operators ("BOs") do not always comply with ADA bus stop announcement requirements. (See Complaint ¶¶ 1, 3, 6). He seeks injunctive relief (Complaint ¶¶ 23-31), class relief (Complaint ¶¶ 34-35), and damages for himself (Complaint ¶ 32) and for an organization called the Metropolitan Council of Low Vision Individuals (Complaint ¶ 33).
Discovery has proceeded. The instant motion was marked submitted on September 21, 2005.
The facts are set forth in the TA's Statement of Uncontroverted Material Facts Pursuant to Local Rule 56.1, and have not been controverted by Stewart in any significant detail although he has submitted certain additional facts as noted below.
Stewart is legally blind and has been since birth. He resides in New York City, New York, and Warwick, Orange County, New York. He is actively involved in the Metropolitan Council of Low Vision Individuals and an advocate for those with vision disability.
The TA is a public transportation operator of fixed route systems (bus and subway transportation), New York Public Authorities Law § 1200, et seq., and is subject to the ADA fixed route service requirements.
The TA's Department of Buses (the "DOB") operates 207 local and 36 express routes city wide, with 101 routes operating twenty-four hours a day, seven days a week, from 18 depots situated in all five boroughs of New York City.
Currently, there are approximately 9,500 BOs. Attrition and service expansion rates have been such that the TA hires approximately 1,000 new BOs annually. Of these approximately 700 become permanent employees.
Stewart takes twenty to thirty trips per month on TA public transportation, of which about two such trips per month are taken on TA buses. He is also registered for Access-A-Ride ("AAR"), the TA's ADA-required "paratransit" transportation system.
Stewart's use of TA transportation from TA's Metrocard business records for the period January 1, 2003, through June 30, 2004, established sixteen one-way bus trips during the entire eighteen-month period. Fifteen of Stewart's bus trips occurred in Manhattan; one occurred in Queens. During the same eighteen-month period, Stewart used the subway for a total of 531 one-way trips.
When Stewart boards a TA bus, he does not ask the BO to announce when Stewart has reached his destination, nor does he tell the BO his destination stop. Stewart also does not request that the BO announce stops intermittently while Stewart is on the bus.
After the effective date of the regulations, the DOB, in consultation with its BO's union, developed the lists of stops to be announced on all routes (over 200 routes). Thereafter, the DOB published a policy bulletin to all bus transportation personnel stating the obligation of BOs to make bus stop announcements as required by the regulation. From time to time, DOB has published reiterations of this policy.
All BOs have been trained in the obligation to announce bus stops, in their initial training upon commencement of employment (for BOs hired after the effective date of the regulation), and/or during annual refresher training or recertification training, which all BOs receive biennially. Training of BOs involves both classroom training, bus driving training, and in-service passenger service training.
Beginning in 1995, and periodically thereafter, DOB publishes the "Bus Operator's Guide to Customer Service," a booklet that is distributed to all BOs upon each edition's publication. Each such guide has reminded BOs that bus stop announcements are required to be made as well as the reason for the requirement and the benefit to customers.
Division-specific guides have been published by the Manhattan and Queens Divisions of the DOB, and the DOB also has published a Dispatcher's Guide. Dispatchers are the first-line supervisors of BOs.
The TA has produced and uses training videos for BOs on the subject of ADA compliance, including bus stop announcement requirements. The TA has created and posted six posters in depots and three posters on buses to advertise bus stop announcement requirements.
The DOB has provided each BO with the list of specific stops to be announced on the route to which the BO is assigned. These lists also are posted at the respective depots for each route.
In 1997, the DOB initiated an incentive program to reward BOs whose depot performance reached specified levels. The incentive program provided that the TA would give a cash gift for BOs to purchase an amenity of their choice, such as a pool table, television, or other similar amenity for the break rooms at the depots whose BOs met the goal for a month. Posters were created and posted at the depots to advertise the program and the program also was announced in the employee newsletter, The Leader. The DOB employee newsletter periodically has included articles about the bus stop announcement policy.
The DOB arranged for Stewart to speak at the TA's 126th Street Depot and Hudson Depot in Manhattan to discuss directly with BOs, managers, and union officials at those depots why bus stop announcements are important in assisting people with vision impairments when riding buses.
BO's performance on the bus is monitored by periodic, random observation rides (a/k/a "ride-checks"), as well as targeted rides "for cause," conducted by DOB personnel in the Safety and Training Division. One of the monitored performance requirements is that of BO compliance with the bus stop announcement policy.
In 2004, DOB began an expanded program of monitoring BO compliance with the bus stop announcement policy by entering into contracts with a transportation services company and with individual independent contractors (DOB dispatcher retirees) for these contractor personnel to ride TA buses undercover and to report on all instances of failure by BOs to make bus stop announcements. These contract monitors also are available to be witnesses at disciplinary hearings of BOs whom they report for failing to comply with bus stop announcement policy. This initiative, called the "ADA Announcement Compliance Ride Program," has enabled the DOB to increase its monitoring substantially, which results in more frequent discipline of BOs for non-compliance and in improved compliance.
From April 15, 2005 through June 10, 2005, 3,058 ride checks have been performed under the ADA Announcement Compliance Program, resulting in disciplinary charges being brought against 984 BOs, of which 831 were sustained or settled, with discipline imposed ranging from reinstruction to dismissal.
Since 1983, the TA's Operations Planning Division, an entity separate from the DOB, has conducted what is called the Passenger Environment Survey, or "PES." This survey is conducted using employees of Operations Planning to do ride-checks on buses and subway trains to monitor and report on customer service indicators. After enactment of the ADA and the DOB's implementation of the bus stop announcement policy, stop announcement compliance was added as a customer service indicator for the PES.
BO performance is measured according to whether the operator on a monitored route makes none, some, or all required announcements. The TA ride-check programs monitor BO performance whether ...