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The 2nd U.S. Circuit Court of Appeals has reinstated an anti-discrimination suit against New York City by a former sanitation worker who claims he was fired because he suffers from night blindness. Anthony Capobianco sued the city and the Department of Sanitation in 2001 under the Americans with Disabilities Act (ADA), which bars discrimination against the disabled. Eastern District of New York Judge Allyne Ross dismissed the claim last year on the grounds that no reasonable jury could find Capobianco’s condition, which prevents him from driving or performing outdoor activities at night, is a disability within the meaning of the statute. The 2nd Circuit panel, which included Southern District Judge Denny Chin, sitting by designation, and Judges Rosemary Pooler and Sonia Sotomayor, reversed, finding there is adequate evidence from which a jury could determine Capobianco’s condition “substantially limits” his ability to perform a “major life activity,” as required by the ADA. “Seeing is a fundamental life activity of central performance, and the average person can see and function at night and in dim light,” Chin wrote for the panel in Capobianco v. City of New York, 04 Civ. 3230. “A reasonable jury could find that driving, walking, running, biking and engaging in other outdoor activities and excursions are important activities in the lives of most people and that the inability to engage in these activities at night or in dim light (which can encompass fourteen hours of the day in our part of the world) is not just a difference in sight but a severe restriction, i.e., a substantial limitation on the ability to see.” The court acknowledged its ruling departed from the scant prior case law. Two federal district courts have rejected night blindness claims under the ADA and state anti-discrimination laws. “Other plaintiffs asserting visual impairment claims under the ADA have not fared well,” Chin wrote, noting other courts’ dismissals of ADA claims by color-blind plaintiffs or those who had lost vision in one eye. But the panel said the facts and the record of Capobianco’s case set it apart from those cases, requiring an individualized assessment of its merits. Capobianco became a sanitation worker in December 1998 after having first taken the qualifying test in 1983. Though he passed that test and a later one, he was not called up by the department until 1995. He reported that he was nearsighted on a pre-employment medical questionnaire and was given an eye exam. He was rejected after the department determined he had a “visual deficit” disqualifying him from the job. He appealed the decision to the City Civil Service Commission but also had cataract surgery to improve his sight in 1997. He was given another exam and found qualified. But in January 1999, he reported difficulties while driving a truck at night. He was subsequently placed on light duty and in March was restricted to driving during the day. In April 1999, he was diagnosed with “congenital stationary night blindness,” a rare, permanent condition that could not be corrected. Capobianco was temporarily assigned to the safety and training department, where he earned glowing reviews for his job performance. However, he was terminated without explanation in November 1999. Following his dismissal, he received a commendation and a certificate of achievement for his work in the safety and training department. Chin cited this performance in noting that “the record suggests that [Capobianco] was fully capable of performing the job, with the seemingly reasonable accommodation that he not be required to drive at night.” Under the ADA, an employee can also be considered disabled if regarded as such by his or her employer. The appeals court said there was considerable evidence the department regarded Capobianco as disabled, adding that it was also clear his medical condition was a factor in the department’s decision to terminate him. In two memos from the summer of 1999, the department’s personnel management division strongly urged that Capobianco be fired for being “unable to perform in his title duties of sanitation worker due to myopic macular degeneration.” “If the disease is continuing to degenerate, why are [we] waiting to terminate him?” the division head wrote in a July 1999 memo. “Instead of considering whether Capobianco’s condition could be accommodated, DOS fired him,” Chin wrote, “explicitly because of his medical condition, apparently based on the mistaken belief that Capobianco’s condition was degenerating and that the condition prevented him from performing the duties of a sanitation worker.” The appeals court also said Capobianco had been prejudiced in the district court proceeding by Ross’ decision to exclude as inadmissible hearsay two letters by the doctor who diagnosed Capobianco’s night blindness, Scott Brodie of Mount Sinai Medical Center. The panel noted the defendants rather than the plaintiff had initially submitted the letters, thus waiving any objection. The court said it was thus reasonable for the plaintiff, who could otherwise easily have obtained a sworn affidavit from Brodie, to believe he could rely on the letters as evidence. Moreover, the court said one of the letters, dated April 1999 and addressed to the Sanitation Department’s medical division, was not hearsay at all since it was part of Capobianco’s personnel file while he was still employed by the department. Daniel F. De Vita of Garden City, N.Y., who represents Capobianco, said he and his client were pleased by the decision. They are seeking unspecified damages, as well as back pay, lost benefits and reinstatement. Georgia Pestana, chief of the labor and employment division of the city’s Law Department, said in a statement yesterday that Capobianco still faces the burden at trial of showing he is capable of performing the essential job functions of a sanitation worker. “This burden may prove too difficult for him to satisfy, given his apparent inability to drive at dawn, dusk, night-time and, perhaps, in bad weather,” she said. The city was represented by Avitai Gold of Proskauer Rose through Cardozo’s pro bono program.

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