Opinion
Case No. 03-CV-1321 (FB)
December 5, 2003
ANTHONY GURLEY, QUEENS, New York, for the Plaintiff
ROBERT K. DRINAN, ESQ., MARTIN B. SCHNABEL, ESQ., Brooklyn, NY, for the Defendant
MEMORANDUM AND ORDER
Pro se plaintiff Anthony Gurley ("Gurley") filed suit against defendant New York City Transit Authority ("Transit Authority"), alleging that its refusal to hire him as a bus operator violated the Americans With Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq. The Transit Authority has moved for dismissal of Gurley's claim pursuant to Fed.R.Civ.P. 12(b)(1) and (6), or, in the alternative, for summary judgment pursuant to Fed.R.Civ.P. 56. Gurley has not submitted a response to the Transit Authority's motion. In support of that branch of its motion seeking summary judgment, the Transit Authority provided Gurley with Local Rule 56.2 notice for pro se litigants. Because the Court determines that summary judgment is warranted, the complaint is dismissed.
I.
In 1997 Gurley took and passed the written civil service test for the position of bus operator. In December of 1998, Gurley underwent a pre-employment medical examination for that position. On January 26, 1999, Gurley was informed that he did not meet the medical requirements to be a bus operator due to a profound impairment in his left eye. According to a medical report, Gurley suffers from amblyopia, with best corrected vision of 20/400 in his left eye. See Affidavit of Robert K. Drinan in support of the Transit Authority's Motion to Dismiss or for Summary Judgment ("Drinan Aff."), Ex. G. Gurley then filed a complaint with the New York State Department of Human Rights ("SDHR") on September 21, 1999. See Drinan Aff., Ex. B. By a determination and order dated October 2, 2002, the SDHR dismissed Gurley's complaint on the grounds that Gurley was not physically qualified to drive a bus. See Drinan Aff., Ex. C. The Equal Employment Opportunity Commission ("EEOC") issued a right to sue letter adopting the SDHR's determination on December 10, 2002. The present action was commenced ninety-eight days later, on March 18, 2003. See Drinan Aff., Ex. D. In his complaint, Gurley states that he currently works for the Transit Authority in another capacity. Complaint, at 4.II.
Summary judgment is appropriate only where the record shows "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). As best the Court can glean from Gurley's pleadings, the crux of his claim is that the Transit Authority discriminated against him based on a perceived disability when they refused to hire him as a bus operator because of his vision impairment in one eye Gurley does not deny that he has a vision impairment, or disagree with the Transit Authority's determination of its severity Gurley has not alleged that the Transit Authority did anything other than follow the 20/40 visual acuity standard promulgated by the relevant state regulation See 15 N.Y.C.R.R § 610(b)(9)(i) Gurley's complaint alleges that this standard is discriminatory, rather than a legitimate requirement to perform an essential aspect of the job of bus operator See Complaint, at 4
Gurley's claim cannot survive summary judgment. As an initial matter, Gurley filed his complaint ninety-eight days after receiving his right to sue letter from the EEOC, thus exceeding the ninety day deadline for bringing suit See 42 U.S.C. § 2000e-5(f)(1)
Even if Gurley's complaint were timely, his claim is devoid of merit, because he can not show either that he was otherwise qualified to perform the essential functions of the job of bus operator, or that he actually was, or was regarded as, a person with a disability within the meaning of the ADA See Ryan v. Grae Rybicki, P.C., 135 F.3d 867, 869-70 (2d Cir 1998) (describing the four elements a plaintiff must show to establish a prima facie case under the ADA, including that he was otherwise qualified to perform the essential functions of the job, and that he was, or was regarded as, a person with a disability within the meaning or the ADA)
The Federal Department of Transportation's ("DOT") standards for drivers of commercial vehicles has long applied the same 20/40 visual requirement as the Transit Authority See 49 C.F.R. § 391 41(b)(10) (1998) Notably, in Albert son's v. Kirkinburg, 527 U.S. 555 (1999), the Supreme Court upheld a commercial truck driver's discharge based on this parallel federal regulation in the face of an ADA challenge. The employer argued that the discharge simply resulted from its obligation to comply with the DOT regulations mandating at least 20/40 corrected vision. Id. at 558-59. The Supreme Court held that the employer was entitled to rely on the DOT regulation in defining the essential job functions of a commercial truck driver; therefore, plaintiff's discharge did not give rise to a violation of the ADA. Id. at 567-68.
Although there was no facial challenge to the 20/40 regulatory standard itself in Albertson's, the Supreme Court's holding can not be squared with the proposition that a 20/40 visual acuity standard is inherently a violation of the ADA. Other courts have also upheld 20/40 visual acuity standards. See, e.g., Chandler v. City of Dallas, 2 F.3d 1385, 1395 (5th Cir. 1993) (holding that an applicant for a job involving a substantial amount of driving who could not meet a municipal 20/40 visual acuity standard "presents a genuine and substantial risk that he or she could be injured or could injure others," and therefore was not otherwise qualified for the position.).
Even if the Court were to conclude that requiring 20/40 visual acuity was too restrictive, it would not follow that Gurley was entitled to relief, given that his corrected left eye visual acuity of 20/400 renders his vision effectively monocular. See, e.g., Albertson's, 527 U.S. at 559 (uncorrectable 20/200 vision in left eye meant that plaintiff's vision was in effect monocular). When inquiring whether Gurley could perform the essential functions of the job of bus driver, the "court must give considerable deference to an employer's judgment regarding what functions are essential for service in a particular position." D'Amico v. City of New York, 132 F.3d 145, 151 (2d Cir. 1998). A determination by the Transit Authority that monocular vision in a bus operator would pose a safety risk is entirely warranted. Cf. Shannon v. New York City Transit Authority, 332 F.3d 95, 103 (2d Cir. 2003) ("[n]o reasonable jury could find that [the Transit Authority] exceeded the broad bounds necessarily afforded it under the ADA to decide as an employer whether color vision is an essential qualification for driving a [Transit Authority] bus."). The "[Transit Authority] has a statutory responsibility to operate the transit system for the safety of the public . . . Employment decisions may be made in light of that public interest." Id. (citations omitted). See also Sutton v. United Air Lines, Inc., 527 U.S. 471, 490 (1999) ("By its terms, the ADA allows employers to prefer some physical attributes over others and to establish physical criteria.").
Gurley has also failed to put forward a colorable claim that he either was disabled or was regarded as disabled by the Transit Authority; on the contrary, Gurley states in his complaint that he currently works for the Transit Authority in another capacity. See Complaint, at 4. Nor has Gurley alleged that his impaired vision substantially limits any of his major life activities. As a matter of law, the Transit Authority cannot be found to regard Gurley as disabled merely on the basis of deciding that his impairment kept him from one specific job. See Forrisi v. Bowen, 794 F.2d 931, 934 (4th Cir. 1986) ("An employer does not necessarily regard an employee as handicapped merely by finding the employee to be incapable of satisfying the singular demands of a particular job.").
CONCLUSION
The Transit Authority's motion for summary judgment is granted and Gurley's complaint is dismissed.