Shannon v. New York City Transit AuthorityShannon v. New York City Transit Authority
Louis Pechman, Berke-Weiss & Pechman LLP, New York, NY, for Defendants-Appellees.
JACOBS, Circuit Judge.
Plaintiff Curtis Shannon, who worked as a bus driver, was found to be color-blind and asked to resign his position in lieu of termination. Shannon contends that he was constructively fired on the basis of a “regarded as” disability in violation of the Americans with Disabilities Act (“ADA“),
On appeal, Shannon argues that the district court erred in ruling that he failed to establish that he was “otherwise qualified” to perform the essential functions of his job as a NYCTA bus driver, with or without reasonable accommodation. We affirm the district court‘s ruling in this regard, and in doing so reject Shannon‘s arguments that: (1) defendants failed to present sufficient evidence to establish that he could not distinguish the colors of traffic lights; (2) distinguishing these colors is not an essential function of the job of a NYCTA bus driver; and (3) his state-law claims survive even if his federal claims fail.
BACKGROUND
Defendants are public benefit corporations that provide mass transit, including bus service, to the people of New York City. Plaintiff Curtis Shannon was hired by NYCTA in March 1999 after a pre-employment exam in which a doctor certified that he was qualified to drive a NYCTA bus. The exam included an “Ishihara” color vision test, in which Shannon had to distinguish various colors by recognizing patterns on a series of colored plates.
Shannon worked as a NYCTA bus driver for approximately six weeks before his bus was in a minor traffic accident on May 15, 1999. According to Shannon, the opening door of a parked car hit the tire of his bus. After the accident, Shannon was subjected to a post-accident medical examination — as required under NYCTA rules — and this time he failed the Ishihara color differentiation test. In a second color vision test, a “Williams’ Lantern” test, he was asked to identify specifically the colors of traffic signals — red, green, and yellow (or amber) — from flashing lights, and wrongly identified a yellow light as “red.” Although he immediately changed his answer to “yellow,” and explained that he had blurted out “red” by mistake, the NYCTA staff physician who administered the test — Dr. Hae Sook Chung — considered the test results “inconclusive,” and restricted Shannon from driving for one week pending further testing.
Because the inconclusive result on the Williams’ Lantern test may have been affected by Shannon‘s yellow-tinted glasses, he was re-tested the next day without them, and passed. Dr. Chung tentatively recertified Shannon as qualified to drive a NYCTA bus, but referred him to an outside medical consultant for further testing.
In general, Mr. Shannon seems to have a definite deficit in color perception. To evaluate the extent of his color blindness and the axis that is most affected, I suggest that more elaborate color vision testing be performed.
Dr. Chung restricted Shannon from driving pending the more elaborate tests recommended by Dr. Nadel.
On June 4 and July 21, Shannon was examined by Dr. Sheila Margolis, another ophthalmologist, who administered another Ishihara test. This time, Shannon correctly identified two out of nine color plates. Dr. Margolis also administered a Electroretinogram (“ERG“) test, which checks cellular elements of the retina — called rods and cones — that can affect color vision. Dr. Margolis concluded that Shannon might have dysfunction in his rods and cones, and so reported to Dr. Nadel, who passed this diagnosis on to Dr. Chung on August 5, stating that “[i]n view of this finding with the associated color deficiency, it [was] advisable that Mr. Shannon be restricted from driving.” After some additional testing, Dr. Nadel wrote to Dr. Chung on August 30: “I cannot make any other recommendation regarding Mr. Shannon‘s case.”
On September 19, 1999, Dr. Chung reviewed with Shannon the opinions of Drs. Nadel and Margolis, and told Shannon that he could no longer drive a NYCTA bus. The next day, she recorded her final assessment: “color blindness with rod-cone disorder.”
Between the initial driving restriction in mid-June and the permanent one on September 19, Shannon had been working for NYCTA in the non-driving position of “cleaner.” However, no permanent position as a cleaner was available: 6,000 applicants were on the waiting list. After the September 19 meeting with Dr. Chung, Shannon met with his supervisor and a union representative, told them Dr. Chung‘s conclusion, and (though Shannon suggests that he “probably” discussed reassignment) Shannon‘s supervisor told him to resign or be terminated. Shannon resigned.
After resigning, Shannon filed a charge of disability discrimination with the Equal Employment Opportunity Commission (“EEOC“). The EEOC issued a Notice of Right to Sue, and Shannon filed this suit. Following discovery, the parties filed cross motions for summary judgment, and the district court denied Shannon‘s motion and granted defendants’ motion. See Shannon v. New York City Transit Auth., 189 F.Supp.2d 55, 64 (S.D.N.Y.2002). The court entered judgment for the defendants, and Shannon appealed.
DISCUSSION
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 a judgment as a matter of law.”
Under the ADA, Shannon undertakes the initial burden of establishing a prima facie case of disability discrimination. Heyman v. Queens Village Comm. for Mental Health, 198 F.3d 68, 72 (2d Cir. 1999). To make out a prima facie case, Shannon must show that (1) NYCTA is subject to the ADA; (2) he was a person with a disability within the meaning of the ADA; (3) he was otherwise qualified to perform the essential functions of his job, with or without reasonable accommodation; and (4) he suffered adverse employment action because of his disability. Ryan v. Grae & Rybicki, P.C., 135 F.3d 867, 869-70 (2d Cir. 1998). In this appeal, NYCTA does not contest the first and fourth elements of Shannon‘s prima facie case.
As to the second element, Shannon does not contend that he was actually disabled, i.e., that he had a physical or mental impairment that substantially limited one or more of his major life activities, see
Shannon alleges that NYCTA regarded him as being substantially limited in the major life activity of seeing.1 This is a stretch, but we accept this assertion (arguendo) and decide this appeal on the alternative ground that Shannon has failed to establish another element of his prima facie case, that he was “otherwise qualified.”
II
“Although the phrase ‘otherwise qualified’ is hardly unambiguous on its face, its meaning in the context of an employment discrimination claim is fairly clear: an individual is otherwise qualified for a job if she is able to perform the essential functions of that job, either with or without a reasonable accommodation.” Borkowski v. Valley Central Sch. Dist., 63 F.3d 131, 135 (2d Cir. 1995) (citing Arline, 480 U.S. at 287 n. 17). “Essential functions” are defined under EEOC regulations to mean the “‘fundamental’ duties to be performed in the position in question, but not functions that are merely ‘marginal.‘” Stone v. City of Mount Vernon, 118 F.3d 92, 97 (2d Cir. 1997) (citing
A
In ruling that Shannon‘s color-blindness rendered him unable to differentiate traffic light colors, the district court relied upon deposition testimony in which Drs. Chung, Nadel, and Margolis opined that Shannon was color-blind and that he should therefore not drive a bus. Shannon challenges the district court‘s specific ruling that he was unable to distinguish between the colors used in traffic lights, arguing that none of the doctors had expressly reported to NYCTA in writing — prior to the filing of this lawsuit — that he was unable to distinguish red, green, or yellow, and that it was error to rely on after-the-fact deposition testimony to support this crucial finding.
We disagree. In determining whether a plaintiff has shown that he was “otherwise qualified” under the ADA, a district court must consider the whole record, including testimony from depositions taken after the events that gave rise to suit. Because the doctors’ testimony here was based on their analysis of data obtained (from their examinations of Shannon) prior to Shannon‘s resignation, the testimony is relevant to his ability to distinguish colors at the time he was constructively fired. If he was unable to distinguish colors at that point, it cannot matter that he passed a color vision test sometime earlier, before he was restricted from driving: the “otherwise qualified” inquiry asks whether the plaintiff will be able to do the job. See Teahan v. Metro-N. Commuter R.R., 951 F.2d 511, 521 (2d Cir. 1991) (“[W]hether the employee is ‘otherwise qualified’ as of the date of termination is forward-looking and enables the employer to consider how the employee will perform as compared to non-handicapped individuals.“).
The depositions provided sufficient evidence. Dr. Chung testified at deposition that she de-certified Shannon from driving because Dr. Nadel‘s initial letter and report “indicated [that Shannon] had a definite color deficiency,” because Shannon might “not identify [a] traffic light correctly,” and because she concluded it was therefore unsafe for him to be driving a bus. Dr. Nadel testified that his recommendation was “based on the fact that [Shannon] had a very distinct color vision abnormality on the Ishihara test and that he has roughly 50 percent normal retinal function of his retinal receptor elements.” Most crucially, Dr. Margolis testified that she diagnosed Shannon as having “a red/green deficiency,” and that her written report and analysis (which were forwarded to Drs. Nadel and Chung) would have made this fact clear to “[a]ny physician in ophthalmology.”
Shannon offered no evidence to the contrary, either by testimony of a medical expert or otherwise; and while Shannon himself asserts that he perceives color truly, he is not really in a position to say. Since there is no evidence that Shannon has or might regain the ability to distinguish the colors of traffic lights, or that NYCTA had reason to think so when Shannon was constructively fired, it is undisputed on this record that he was unable to distinguish the colors of traffic signals at all times relevant to this case.
Is the ability to distinguish the colors of traffic signals an essential function of being a bus driver in New York City? Under guidelines accompanying EEOC regulations enacted pursuant to the ADA, courts are instructed to first determine “whether the employer actually require[d] employees in the position to perform the functions that the employer asserts are essential.”
Courts must consider an employer‘s description of a job‘s essential functions, including pertinent medical standards. See
[c]olor blindness ... or impaired color discrimination must be evaluated in terms of limiting an individual‘s ability to perform essential functions of the job [because s]ome individuals with color blindness are able to perform certain jobs that require visual color discrimination by developing other cues.
(Emphasis added.) The NYCTA Standards further provide, however, that “[f]or bus operators, New York State Article 19A prevents certification for red, green, and amber color blindness.”
It is uncontested that NYCTA required that all bus-driver applicants pass one of two color differentiation tests and be certified by a medical doctor as qualified to drive a bus. As discussed more fully below, a color vision test was required by law, and Shannon himself was given (and passed) such a test before he was hired in early 1999. Moreover, NYCTA adduced evidence that its procedures mandated a further medical examination following accidents. It is undisputed that Shannon‘s bus was in an accident in May 1999, that he was then examined, and that his driving was restricted following the ensuing color vision differentiation test given by Dr. Chung and the consultants she designated. It is also undisputed that Dr. Chung thereafter refused to certify Shannon as medically qualified to drive.
In other words, it is clear that the NYCTA standards were applied and that the employer considered red-green differentiation and medical certification of this color vision standard to be essential functions of the NYCTA bus operator job.
Shannon suggests that the ability to distinguish traffic lights may not be technically required under NYCTA Standards, and that elimination of the requirement would not “fundamentally alter” the position of an NYCTA bus driver, see
We conclude that the potentially applicable regulations cited by Shannon are not consistent, binding, or useful. Regulations of the New York State Department of Motor Vehicles (“DMV“), which set vision standards for all bus drivers in the state, provide that a driver must be examined and certified by a physician as “medically qualified” to drive a bus,
ha[ve] distant visual acuity ..., distant binocular acuity ... and the ability to recognize the colors of traffic signals and devices showing standard red, green, and amber.
Even if a color-blind bus driver could find a doctor willing to give the requisite certification, it seems that a waiver might be unavailable from the federal government. USDOT regulations provide that “[a] person shall not drive a commercial motor vehicle unless he/she is physically qualified to do so,”
Even if the regulations governing bus drivers permitted a driver who was unable to distinguish between red and green to drive a bus, this alone would not disentitle NYCTA from enforcing a higher standard for its own drivers. See Albertson‘s, Inc. v. Kirkingburg, 527 U.S. 555, 571, 119 S.Ct. 2162, 144 L.Ed.2d 518 (1999). Employers formulate jobs to fit the needs of their enterprises, and cannot fill jobs without deciding what attributes are essential to those needs. The essential character of a particular job qualification is therefore a matter of judgment and opinion. No reasonable jury could find that NYCTA 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 NYCTA bus. NYCTA has a statutory responsibility to operate the transit system “for the safety of the public.” See New York City Transit Auth. v. Transp. Workers Union, Local 100, 243 A.D.2d 567, 663 N.Y.S.2d 114, 114 (2d Dep‘t 1997); see also
III
In addition to his federal law claims, Shannon alleges claims under the New York State Human Rights Law (“NYSHRL“),
To succeed on his NYSHRL claim, Shannon must have been able to “perform[] in a reasonable manner the activities involved in the job or occupation sought or held,”
Whatever the precise delineation of the NYCHRL, however, Shannon‘s state law claims are defeated by his inability to comply with federal and state regulations. As discussed above, medical certification is required by regulations governing bus drivers; NYCTA cannot have violated state or local discrimination laws by implementing the state or federal government‘s requirements for bus driver certification. See
Even if NYCTA had an affirmative duty to accommodate Shannon‘s “regarded as” disability, he has failed to identify any reasonable accommodation that NYCTA failed to provide.3 Shannon has suggested the possibility of reassignment from a bus driver position to a cleaner position. “[R]eassignment to a vacant position” can be a reasonable accommodation in certain circumstances. See
CONCLUSION
For the reasons stated above, the judgment of the district court is affirmed.
DENNIS JACOBS
CIRCUIT JUDGE
Notes
The ADA cannot reasonably have been intended to create a disparity in treatment among impaired but non-disabled employees, denying most the right to reasonable accommodations but granting to others, because of their employers’ misperceptions, a right to reasonable accommodations no more limited than those afforded actually disabled employees.