Opinion
03-CV-0765E(Sc).
December 21, 2004
MEMORANDUM AND ORDER
This decision may be cited in whole or in any part.
Plaintiff Johnson commenced this action on October 10, 2003 alleging that former employer, defendant Roadway Express, Inc., violated the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., and New York's Human Rights Law, Executive Law § 296, by refusing to allow him to return to work as a truck driver after he had failed a United States Department of Transportation ("DOT") physical due to the 20/200 vision in his right eye. Defendant moved for summary judgment on August 9, 2004 claiming that (1) plaintiff is not disabled within the meaning of the ADA, (2) even if plaintiff is so disabled, he cannot perform the essential functions of his job, inasmuch as there is no known accommodation for his vision problem and defendant does not have any vacant position for which plaintiff is qualified, (3) the federal regulations that preclude defendant from allowing plaintiff to drive its trucks are a complete bar to plaintiff's claims and (4) plaintiff has failed to mitigate his damages. For the reasons set forth below, plaintiff is not "disabled" as defined by the ADA and therefore defendant's motion will be granted and plaintiff's claims will be dismissed.
New York State disability discrimination claims are governed by the same legal standards as federal ADA claims. Rodal v. Anesthesia Group of Onondaga, 369 F.3d 113, 117 n. 1 (2d Cir. 2004). Thus, although this Court's discussion will focus on plaintiff's ADA claim, the decision pertains equally to his parallel state claim.
The facts, viewed in the light most favorable to plaintiff — the non-moving party —, are found as follows and are undisputed except where otherwise noted. Defendant is a less-than-truckload transporter of industrial, commercial and retail goods in the two-day to five-day regional and long-haul markets in North America. Defendant and its drivers are involved in interstate commerce and the large majority of freight handled by defendant crosses state lines during its transportation. All of defendant's drivers in Buffalo are required to meet DOT's physical requirements and pass DOT's medical examination as set out in the Federal Motor Carrier Safety Act Regulations, 49 C.F.R. § 301 et seq.
Plaintiff was employed by defendant as a line haul truck driver, which required him to cross state lines. Plaintiff was responsible for driving tractor-trailer rigs that had a maximum gross vehicle weight of up to 80,000 pounds. While employed by defendant, plaintiff had 20/20 vision. However, plaintiff suffered a stroke, after which his vision in his right eye was 20/200 due to an incurable macular scar on his retina. Plaintiff, because of this, cannot see long distances via his right eye and has difficulties with depth perception — neither of which can be remedied by corrective lenses. Plaintiff failed the vision portion of the physical examination required by DOT. Failure to pass DOT's physical examination prevented plaintiff from returning to his job as a line haul driver and plaintiff is aware that his vision impairment prevents him from driving defendant's trucks.
Plaintiff's loss of vision, while preventing him from returning to his prior job, has not affected his ability to drive an automobile or lesser trucks. Indeed, plaintiff continues to drive dump trucks and triaxial trucks and works full-time for Woodruff Construction. His loss of vision has only affected his ability to drive trucks for defendant — plaintiff has a valid class "K" New York State driver's license which allows him to drive commercial vehicles intrastate that have a gross vehicle weight of 26,000 pounds. Furthermore, plaintiff can operate equipment such as forklifts and tractors. Finally, plaintiff was denied benefits from the Social Security Administration due to a finding that he is capable of working.
Plaintiff's loss of vision has not affected his ability to read, watch television, play sports, walk, perform household chores, take care of himself, perform his duties for his current construction job, perform yard work or use a computer.
To drive defendant's 80,000 pound trucks, passage of the DOT's eye examination is required.
In commencing this action, plaintiff asserts that, although he cannot drive any of defendant's trucks, defendant also has dockworker and clerical jobs, for which defendant should have hired plaintiff as a reasonable accommodation. However, defendant's clerical positions are few in number and plaintiff has limited office skills — to wit, he has minimal typing skills and is not familiar with operating word processors, spreadsheets, databases or Power Point. Moreover, defendant's dockworkers are represented by International Brotherhood of Teamsters, Local 375 ("Local 375"), of which plaintiff is not a member. Local 375 has a seniority list of exclusively Local 375 members. Because plaintiff is not a member of Local 375, he has no seniority. Currently, defendant has laid-off 36 dockworkers who are on the list and who, according to their collective bargaining agreement, are entitled to return to work before defendant could hire plaintiff as a dockworker.
Summary judgment may be granted if the evidence offered 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. FRCvP 56(c). There is no genuine issue for trial unless the evidence offered favoring the non-moving party would be sufficient to sustain a jury's verdict for that party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Thus, when reasonable minds could not differ as to the outcome of an issue, summary judgment is appropriate on that issue. Id. at 251-252. The moving party initially bears the burden of showing that no genuine issue of material fact is present but the opposing party must then "set forth specific facts showing that there is a genuine issue for trial." Id. at 250. If the non-moving party fails to establish, after a reasonable opportunity for discovery, the existence of an element essential to that party's claim and on which it will bear the burden of proof at trial, summary judgment is appropriate because such failure to establish an essential element of the case renders all other facts immaterial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-323 (1986).
When assessing the record in making a summary judgment determination, a court must view all ambiguities and factual inferences in the light most favorable to the non-moving party. Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970). However, the non-moving party "cannot defeat the motion by relying on the allegations in his pleading, or on conclusory statements, or on mere assertions that affidavits supporting the motion are not credible." Gottlieb v. County of Orange, 84 F.3d 511, 518 (2d Cir. 1996).
Claims made pursuant to the ADA are analyzed under the framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Reg'l Econ. Cmty. Action Prog., Inc. v. City of Middletown, 294 F.3d 35, 48-49 (2d Cir. 2002). The McDonnell Douglas test has three steps: (1) the plaintiff must establish a prima facie case of discrimination, (2) if the plaintiff establishes a prima facie case, the burden of production shifts to the defendant to proffer a legitimate, non-discriminatory reason for the employment action and (3) the plaintiff then bears the ultimate burden of persuasion to prove that the defendant intentionally discriminated against him. Adams v. Master Carvers of Jamestown, Ltd., 2004 U.S. App. LEXIS 3381, at *3-4 (2d Cir. Feb. 23, 2004). To make out a prima facie case of disability discrimination, plaintiff must show that (1) defendant is subject to the ADA, (2) plaintiff is a person with a disability within the meaning of the ADA, (3) plaintiff is otherwise qualified to perform the essential functions of his job, with or without a reasonable accommodation, and (4) plaintiff suffers from an adverse employment action because of his disability. Ryan v. Grae Rybicki, P.C., 135 F.3d. 867, 869-70 (2d Cir. 1998).
In its Motion for Summary Judgment, defendant does not contest the first and fourth elements of plaintiff's prima facie case, but does allege that plaintiff is not a person with a disability within the meaning of the ADA and that the ADA does not require an employer to provide an accommodation where such accommodation would violate federal law. Plaintiff, in opposing defendant's Motion for Summary Judgment, claims that the accommodation he was requesting was a position as either a dockworker or as a clerical worker for defendant, which would not violate federal law. The Court, however, need not address the accommodation issue because, based on the facts regarding plaintiff's vision impairment — which are undisputed —, plaintiff is not a person with a disability within the meaning of the ADA and thus has not met an element of his prima facie disability discrimination case. Defendant's Motion, therefore, will be granted and plaintiff's claims will be dismissed.
The ADA protects people with disabilities, defined as individuals with "a physical or mental impairment that substantially limits one or more of the major life activities of such individual." 42 U.S.C. § 12102(2)(A). For plaintiff to qualify for ADA protections, his "impairment" must "substantially limit" a "major life activity." Ibid. Major life activities may include "caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning" and, pertinent to this case, "working." 29 C.F.R. § 1630.2(i). An activity is "substantially limited" when an individual cannot perform the activity that an average person in the general population could perform or faces significant restrictions in the "condition, manner, or duration under which the individual can perform [the] activity." 29 C.F.R. § 1630.2(j)(i)-(ii). The activity of "working" is further defined by the regulations as follows:
"With respect to the major life activity of working —
(i) The term substantially limits means significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities. 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).
Thus, unless plaintiff is limited from a class of jobs or a broad range of jobs, his claims must fail.
Driving tractor-trailer rigs that have a maximum gross vehicle weight of up to 80,000 pounds across state lines is neither a "class of jobs" nor a "broad range of jobs," but rather a specific job with specific requirements. See, e.g., Equal Employment Opportunity Comm'n v. J.B. Hunt Transp., Inc., 321 F.3d 69, 75 (2d Cir. 2003) (so holding); Baulos v. Roadway Express, Inc., 139 F.3d 1147, 1153-1154 (7th Cir. 1998) (finding that driving sleeper trucks is a specific job within the broader class of truck driving jobs). In Equal Employment Opportunity Comm'n, the court found that the job requirements of the specified truckdrivers are quite demanding and the fact that one may not be able to perform the specific job of one of the defendant's drivers does not mean that one could not successfully engage in other types of truck driving. 321 F.3d at 75. Similarly here, plaintiff's truck driving job with defendant is a specific job within a broader class of truck driving jobs. It is undisputed that plaintiff cannot fulfill the specific requirements, as set out by the DOT, of driving 80,000 pound trucks interstate, but he can fulfill the requirements of driving 26,000 pound trucks intrastate. Therefore, plaintiff failed to set forth evidence sufficient to establish that he is — or was perceived to be — substantially limited in his ability to perform a major life activity. In not establishing that he was a person with a disability within the meaning of the ADA, plaintiff has failed to meet his burden and defendant's Motion will be granted and plaintiff's claims will be dismissed.
Accordingly, it is hereby ORDERED that defendant's Motion for Summary Judgment is granted, that plaintiff's claims are dismissed and that the Clerk of this Court shall close this case.