# Antidormi v. National Railroad Passenger Corp.

> District Court, N.D. New York · September 3, 2019

URL: https://www.frixlaw.com/law-library/cases/10312059

## Case

- **Court:** District Court, N.D. New York
- **Decided:** September 3, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
JEFFREY ANTIDORMI,
1:18-cv-1344
Plaintiff, (GLS/CFH)
v.
NATIONAL RAILROAD
PASSENGER CORP.,
Defendant.
________________________________
APPEARANCES: OF COUNSEL:
FOR THE PLAINTIFF:
Shapero Roloff Co., LPA ANDREW JOHN THOMSPON,
U.S. Bank Centre ESQ.
1350 Euclid Ave., Suite 1550
Cleveland, OH 44115
Flynn & Wietzke, P.C. MARC T. WIETZKE, ESQ.
1205 Franklin Ave, Suite 370
Garden City, NY 11530
FOR THE DEFENDANT:
Littler, Mendelson Law Firm JACQUELINE P. POLITO, ESQ.
375 Woodcliff Drive, 2nd Floor PAMELA S.C. REYNOLDS, ESQ.
Fairport, NY 14450
Gary L. Sharpe
Senior District Judge
MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiff Jeffrey Antidormi brings this action under Title I of the

Americans with Disabilities Act1 (ADA) and Section 504 of the
Rehabilitation Act2 against his employer, defendant National Railroad
Passenger Corp. (hereinafter “Amtrak”). (Compl., Dkt. No. 1.) Antidormi

alleges that Amtrak discriminated against him when it demoted him due to
a vision deficiency and later retaliated against him. (Id. at ¶¶ 39-60.)
Pending is Amtrak’s motion to dismiss, (Dkt. No. 9), which is granted in
part and denied in part for the following reasons.

II. Background
A. Facts3
Antidormi is deuteranomalous; that is, his vision suffers from a mild

form of color deficiency. (Compl. ¶ 10.) When this condition stopped him
from passing the Ishihira Vision Test as part of Amtrak’s pre-employment

1 See 42 U.S.C. §§ 12101-17.
2 See 29 U.S.C. § 794.
3 Unless otherwise noted, the facts are drawn from the complaint
and presented in the light most favorable to Antidormi.
2
physical exam, Amtrak allowed him to take a secondary color vision acuity
test. (Id. ¶ 11.) He passed and began working for Amtrak as an assistant

conductor4 in October 2013. (Id. ¶¶ 9, 11.) Four years later, Amtrak
promoted him to conductor.5 (Id. ¶ 9.) Despite his condition, he “can
safely and effectively perform all of the essential functions of his job as a

[c]onductor or [a]ssistant [c]onductor” and has worked both positions
without incident. (Id. ¶¶ 19, 35.) Moreover, throughout his career, routine
physical exams––including evaluation of his color vision acuity––found him
medically qualified to work without limitation. (Id. ¶ 12.) He also passed

annual “Block Testing,” which included signal examinations. (Id. ¶ 13.)
“On or about October 16, 2013, Amtrak required [Antidormi] to take a
color vision test as a part of the newly[-]implemented conductor

certification requirements[.]” (Id. ¶ 15); see 49 C.F.R. § 242.117 (requiring
railroads, as of January 1, 2012, to ensure that its employees meet certain
visual acuity thresholds before recertification). Specifically, Antidormi “was

4 “[T]he position of [a]ssistant [c]onductor does not require the ability
to differentiate signals.” (Compl. ¶ 19.)
5 “The conductor is in charge of the movement of the train and his
[or her] duties include the interpretation of railroad signals.” (Compl.
¶ 20.)
3
asked to take an Ishihira Plate Test, as opposed to the secondary color
vision acuity test he had passed throughout his employment.” (Compl.

¶ 15.) He failed the test. (Id.) “On or about December 9, 2013, [Antidormi]
was given a field vision test to determine his ability to differentiate colors in
railroad signals.” (Id. ¶ 16.) The field test used specially-constructed

signals instead of signals used in the zone where he worked. (Id. ¶¶ 14,
16-17.) He failed that test as well. (Id. ¶ 17.)
On December 23, 2013, Antidormi sought reconsideration from
Amtrak of his field test failure. (Id. ¶ 19); see 49 C.F.R. § 242.401(a) (“A

railroad shall notify a candidate for certification or recertification of
information known to the railroad that forms the basis for denying the
person certification and provide the person a reasonable opportunity to

explain or rebut that adverse information in writing prior to denying
certification.”). He also requested that Amtrak make an accommodation
and allow him to work as an assistant conductor. (Id. ¶ 19.) “On January

21, 2014, Amtrak reiterated its denial of conductor certification,” because,
in its opinion, Antidormi’s reconsideration request “did not provide any
basis to overturn the original determination that [he] failed to meet the
vision acuity standards outlined in 49 C[.]F[.]R[.] [§] 242.117.” (Id. ¶ 21

4
(internal quotation marks omitted).) Amtrak also denied Antidormi’s
request to work as an assistant conductor. (Id. ¶ 22.)

In April 2014, Antidormi filed a “Petition for Review of Certification
Revocation” with the Federal Railroad Administration Operating Crew
Review Board (hereinafter the “Review Board”6), which “sought an

additional field test under conditions that allowed him to demonstrate that
he can safely perform the duties of [c]onductor, or in the alternative,
conditional certification that would allow him to work as an [a]ssistant
[c]onductor.” (Id. ¶ 24.) The Review Board found that Amtrak

misinterpreted 49 C.F.R. § 242.117 by basing its decision solely on
Antidormi’s failure to meet vision acuity standards without considering
whether a limited, conditional certification was appropriate. (Dkt. No. 18,

Attach. 5 at 7.7) By way of example, the Review Board noted that “a
6 The Review Board has the authority to hear petitions from “[a]ny
person who has been denied certification, denied recertification, or has
had his or her certification revoked and believes that a railroad incorrectly
determined that he or she failed to meet the certification requirements[.]”
49 C.F.R. § 242.501.
7 The court properly considers the Review Board’s decision at this
stage because the complaint “relies heavily upon its terms and effect,
which renders the document integral to [it].” Chambers v. Time Warner,
Inc., 282 F.3d 147, 153 (2d Cir. 2002) (internal quotation marks and
citation omitted).
5
conditional certification . . . might include a candidate with a minor color
vision deficiency being certified as a conductor who may operate solely . . .

in territories that contain only one or few color-based signals and where a
crewmember could assist the conductor in interpreting the few color-based
signals.” (Id.) The Review Board also found that “[b]ecause of the lack of

adequate records and transparency in the decision-making process, [it
could not] determine whether Amtrak meant to apply a more stringent
requirement in making its denial decision or . . . misread[] [the] regulations
as the more stringent requirement.” (Id. at 8.) The Review Board further

criticized Amtrak’s decision-making process:
If a railroad intends to implement a system-wide type test for an
examinee who has not previously worked system-wide, the
railroad should provide its rationale for doing so. It is not
acceptable for a railroad . . . to inform an examinee that the
railroad must ignore a demonstrated positive safety record with a
limited work arrangement because [federal] regulations apply a
stricter standard, as that is not a true statement.
Id. at 9-10 (internal quotation and citation omitted). Accordingly, the
Review Board remanded the matter and instructed Amtrak to issue a new
decision regarding Antidormi’s certification. (Id. at 10.)
In March 2015, Amtrak responded to the remand by stating “that it
complied with its own medical standards and federal regulations,” and
6
“[Antidormi] failed to prove that he can meet those color vision acuity
standards.” (Id. ¶ 31.) But, according to Antidormi, Amtrak “did not

address the reasons, if any, that [Antidormi] could not work as a
[c]onductor or [a]ssistant [c]onductor safely, with or without a conditional
certification.” (Id.)

Thereafter, Antidormi again requested that Amtrak certify him to work
as a conductor or grant him conditional certification that would allow him to
work as an assistant conductor. (Id. ¶ 32a.8) On September 22, 2016,
Amtrak refused his request. (Id. ¶ 33a.) Instead, Amtrak demoted him to

baggage handler, a position “at the bottom of the seniority roster at a
significant reduction in wages.” (Id. ¶¶ 23, 33a.)
Antidormi cross-filed a charge of discrimination with the Delaware

Department of Labor and the Equal Employment Opportunity Commission
(EEOC) on March 14, 2017, (Dkt. No. 9, Attach. 1 at 4),9 and received a

8 The complaint contains two paragraphs numbered “32” and two
paragraphs numbered “33.” (Compl. at 6.) The court refers to the first
sequential paragraph as “a” and the second as “b” in both instances.
9 Antidormi’s complaint alleges that he filed his EEOC complaint on
or about March 4, 2017. (Compl. ¶ 32b.) However, the EEOC complaint
itself is dated March 14, 2017. (Dkt. No. 9, Attach. 1 at 4.) The court
accepts the filing date in the EEOC complaint, which is properly
considered at this stage. See Morris v. David Lerner Assocs., 680 F.
7
“right to sue” letter on August 18, 2018, (Compl., Attach.1).
B. Procedural History

Antidormi commenced this action on November 15, 2018. (Compl.)
He asserts an ADA discrimination claim, (id. ¶¶ 39-45), ADA retaliation
claim, (id. ¶¶ 46-51), and a Section 504 discrimination claim, (id. ¶¶ 52-60).

He seeks compensatory and punitive damages, declaratory and injunctive
relief, and attorney’s fees and costs. (Id. at 9.) On January 30, 2019,
Amtrak filed the pending motion to dismiss pursuant to Fed. R. Civ. P.
12(b)(6). (Dkt. No. 9.)

III. Standard of Review
The standard of review under Fed. R. Civ. P. 12(b)(6) is well settled
and will not be repeated here. For a full discussion of the standard, the

court refers the parties to its prior decision in Mills-Sanchez v. Research
Found. for State Univ. of N.Y., 1:18-cv-723, 2019 WL 2549726, at *4-5
(N.D.N.Y. June 20, 2019), appeal filed, No. 19-2405 (2d Cir. Aug. 6, 2019).

IV. Discussion

Supp. 2d 430, 436 (E.D.N.Y. 2010) (recognizing “EEOC charges and
right-to-sue letters are public documents that may be considered in a
motion to dismiss without converting the action to a motion for summary
judgment.”) (internal quotation marks and citation omitted).
8
A. Exhaustion of Administrative Remedies
“Before commencing an action in federal court alleging violations

of . . . the ADA, a plaintiff must first file a timely charge with the EEOC.”
Hamzik v. Office for People with Developmental Disabilities, 859 F. Supp.
2d 265, 277 (N.D.N.Y. 2012) (internal citations omitted). That is, the

plaintiff “generally must file a charge of discrimination with the EEOC within
three hundred days after the alleged unlawful employment practice
occurred.” Duplan v. City of New York, 888 F.3d 612, 621 & n.7 (2d Cir.
2018) (internal quotation marks and citation omitted). Under the continuing

violation doctrine, “if a . . . plaintiff files an EEOC charge that is timely as to
any incident of discrimination in furtherance of an ongoing policy of
discrimination, [then] all claims of acts of discrimination under that policy

will be timely even if they would be untimely standing alone.” Chin v. Port
Auth. of N.Y. & N.J., 685 F.3d 135, 155-56 (2d Cir. 2012) (internal
quotation marks and citations omitted). However, the doctrine “is

disfavored and will be applied only upon a showing of compelling
circumstances.” Abboud v. County of Onondaga, 341 F. Supp. 3d 164,
177 (N.D.N.Y. 2018) (internal quotation marks and citations omitted).
Additionally, the doctrine does not apply “to discrete unlawful acts, even

9
where those discrete acts are part of a serial violation.” Gonzalez v. Hasty,
802 F.3d 212, 220 (2d Cir. 2015) (internal quotation marks and citation

omitted).
“In addition to timeliness, the exhaustion requirements also mandate
that the claims asserted in federal court be identical or ‘reasonably related’

to those filed with the EEOC.” Saaidi v. CFAS, LLC, 740 F. Supp. 2d 357,
363 (N.D.N.Y. 2010) (internal citation omitted). “[T]he reasonably related
doctrine does not excuse a plaintiff’s failure to include allegations in his
administrative complaint where those allegations pertained to conduct that

had occurred before the administrative complain[t] was filed.” Guerrero v.
FJC Sec. Servs. Inc., No. 10 Civ. 9027, 2012 WL 2053535, at *4 (S.D.N.Y.
June 5, 2012) (internal quotation marks and citation omitted). Similarly,

“‘reasonably related’ retaliation claims are excused from the exhaustion
requirement only if they arise during the pendency of an EEOC
investigation or a timely filed federal case.” Duplan, 888 F.3d at 624.

Here, Antidormi instituted proceedings with a state agency and the
EEOC on March 14, 2017. (Dkt. No. 9, Attach. 1 at 4.) Accordingly, any
conduct occurring prior to May 18, 2016 was not properly within the EEOC
charge. See Duplan, 888 F.3d at 621 & n.7. Contrary to Antidormi’s

10
arguments, (Dkt. No. 18 at 8-10), the continuing violation doctrine does not
apply to any of Amtrak’s pre-May 18, 2016 conduct because it consisted of

discrete acts––even if they were part of a serial ADA violation. See
Gonzalez, 802 F.3d at 220. Moreover, Antidormi offers no compelling
reasons to apply this disfavored doctrine. See Abboud, 341 F. Supp. 3d at

177. Furthermore, the reasonably related doctrine cannot save any of the
conduct occurring prior to May 18, 2016. See Guerrero, 2012 WL
2053535, at *4. Accordingly, the only adverse employment actions that
may form the basis of Antidormi’s claims occurred on September 22, 2016,

when Amtrak denied his certification requests and demoted him to
baggage handler.10 (Compl. ¶¶ 23, 32a, 33a.)
Likewise, two of the protected activities Antidormi relies on to support

his retaliation claim––his December 2013 request for accommodation and
his April 2014 petition to the Review Board––were not mentioned in the
EEOC charge and cannot be saved by the reasonably related doctrine.

(Compare Compl. ¶¶ 19, 24, with Dkt. No. 9, Attach. 1 at 4); see Duplan,
888 F.3d at 624. That leaves only Antidormi’s filing of the EEOC charge
10 Amtrak’s pre-May 28, 2016 conduct may nonetheless serve as
background evidence to support a properly-exhausted claim. See Nat’l
R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002).
11
itself, which––despite Amtrak’s arguments to the contrary, (Dkt. No. 9,
Attach. 2 at 8)––is clearly a protected activity that may support a retaliation

claim. See Jaeger v. N. Babylon Union Free Sch. Dist., 191 F. Supp. 3d
215, 232 (E.D.N.Y. 2016).
B. Retaliation Claim

To establish a prima facie case of retaliation, a plaintiff must show
that: “(1) he engaged in an activity protected by the ADA; (2) the employer
was aware of this activity; (3) the employer took adverse employment
action against him; and (4) a causal connection exists between the alleged

adverse action and the protected activity.” Treglia v. Town of Manlius, 313
F.3d 713, 719 (2d Cir. 2002) (internal citation omitted). It is axiomatic that
a plaintiff’s protected activity must precede an adverse action in order to

state a cognizable retaliation claim. See Braxton v. TWU Local 100,
16-CV-9425, 2017 WL 6542500, at *3 (S.D.N.Y. Dec. 21, 2017); Nakis v.
Potter, 422 F. Supp. 2d 398, 423 (S.D.N.Y. 2006).

Given that Antidormi’s filing of the EEOC charge is the only protected
activity immune from exhaustion issues, and he alleges no adverse
employment action followed it, Antidormi fails to state a retaliation claim.
See Braxton, 2017 WL 6542500, at *3; Nakis, 422 F. Supp. 2d at 423.

12
Accordingly, this claim is dismissed.
C. Discrimination Claim

[T]o establish a prima facie case under the ADA, a plaintiff must
show by a preponderance of the evidence that: (1) his employer
is subject to the ADA; (2) he was disabled 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.
McMillan v. City of New York, 711 F.3d 120, 125 (2d Cir. 2013) (internal
quotation marks and citation omitted).
1. Disabled Within the Meaning of the ADA
First, Amtrak argues that Antidormi is not disabled under the ADA
because he fails to allege that Amtrak regarded him as having an
impairment that substantially limited a major life activity. (Dkt. No. 9,
Attach. 2 at 11-12.) In response, Antidormi concedes that his condition
does not substantially limit one or more major life activities, but he argues
that his complaint sufficiently alleges that Amtrak regarded him as

disabled. (Dkt. No. 18 at 11); see 42 U.S.C. § 12102(1)(A),(C) (defining
“disability” as “a physical or mental impairment that substantially limits one
or more major life activities of such individual” or “being regarded as having
such an impairment”).

13
An individual meets the requirement of “being regarded as having
such an impairment” if the individual establishes that he or she
has been subjected to an action prohibited under this chapter
because of an actual or perceived physical or mental impairment
whether or not the impairment limits or is perceived to limit a
major life activity.
42 U.S.C. § 12102(3)(A).
In 2008, Congress amended the portion of the ADA relied on by
Antidormi. ADA Amendments Act of 2008, Pub. L. 110–325,122 Stat.
3353 (2008). Although the current statutory language is not a model of
clarity, Congress was clear that it was meant to overrule Supreme Court
precedent that “narrowed the broad scope of protection intended to be
afforded by the ADA.” Id. at § 2(a)(4),(5); see Widomski v. State Univ. of

N.Y. (SUNY) at Orange, 933 F. Supp. 2d 534, 542 (S.D.N.Y. 2013), aff’d,
748 F.3d 471 (2d Cir. 2014). Thus, in cases involving post-2008 conduct,
as here, a plaintiff need not allege facts to suggest that the impairment an

employer mistakenly regarded him as having was one that substantially
limited one or more major life activities. Instead, “plaintiffs need only
demonstrate that the employer regarded them as impaired, whether or not
that impairment is believed to limit a major life activity.” Palmieri v. City of

Hartford, 947 F. Supp. 2d 187, 200 (D. Conn. 2013) (citing Hilton v. Wright,

14
673 F.3d 120, 129 (2d Cir. 2012)).
Consequently, Amtrak’s argument fails because it relies upon cases

that applied the old standard. (Dkt. No. 9, Attach. 2 at 12 (citing Francis v.
City of Meriden, 129 F.3d 281, 284 (2d Cir. 1997); Amie v. Shinseki, 806 F.
Supp. 2d 641, 644 (W.D.N.Y. 2011); Keating v. Gaffney, 182 F. Supp. 2d

278, 286 (E.D.N.Y. 2001)).)
2. Otherwise Qualified
Next, Amtrak argues that Antidormi’s discrimination claim must fail
because his deuteranomalous condition kept him from “demonstrat[ing]

visual acuity,” which was an essential function of his job. (Dkt. No. 9,
Attach. 2 at 13.)
The ADA prohibits employers from “using qualification standards,

employment tests[,] or other selection criteria that screen out . . . an
individual with a disability . . . unless the standard, test[,] or other selection
criteria, as used by the [employer], is shown to be job-related for the

position in question and is consistent with business necessity.” 42 U.S.C.
§ 12112(b)(6). This “business necessity” standard is “quite high”: “the
employer must . . . show that the asserted ‘business necessity’ is vital to
the business,” that “the examination or inquiry genuinely serves the

15
asserted business necessity[,] and that the request is no broader or more
intrusive than necessary.” Conroy v. N.Y. State Dep’t of Corr. Servs., 333

F.3d 88, 97-98 (2d Cir. 2003).
At this stage, given the Review Board’s criticism of the stringent
examinations conducted by Amtrak, (Dkt. No. 18, Attach. 5 at 7-11), it is far

from clear that they were no broader or more intrusive than necessary.
See Conroy, 333 F.3d 88 at 98. Furthermore, even if the examination was
no broader than necessary, granting a reasonable accommodation may
have eliminated the business necessity of demoting Antidormi based on

his vision deficiency. (Dkt. No. 18, Attach. 5 at 7.) However, Amtrak never
addressed the prospect of such a conditional certification. (Compl. ¶ 31.)
Accordingly, this argument also fails.

3. Causal Connection Between Disability and Adverse
Employment Action
Lastly, Amtrak argues that Antidormi’s allegations do not give rise to
an inference of discrimination because the adverse employment action was
required when Antidormi could not demonstrate visual acuity in accordance
with 49 C.F.R. § 242.117. (Dkt. No. 9, Attach. 2 at 14-15 (citing 29 C.F.R.

§ 1630.15(e) (“It may be a defense to a charge of discrimination . . . that a

16
challenged action is required or necessitated by another [f]ederal law or
regulation, or that another [f]ederal law or regulation prohibits an

action[.]”)).) However, at this stage, this argument is belied by indications
that Amtrak failed to comply with these federal regulations.11 (Compl.
¶¶ 27-30; Dkt. No. 18, Attach. 5 at 4-11.)

V. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that Amtrak’s motion to dismiss (Dkt. No. 9) is GRANTED

IN PART and DENIED IN PART as follows:
GRANTED as it relates to Antidormi’s (1) retaliation claim and
(2) discrimination claim based on conduct occurring prior to
May 18, 2016 or not contained within the EEOC charge; and

DENIED in all other respects; and it is further
ORDERED that the parties contact Magistrate Judge Christian F.

11 Amtrak also asserts that there is no inference of causation
because Amtrak knew about Antidormi’s condition since the start of his
employment and employed him for a decade nonetheless. (Dkt. No. 9,
Attach. 2 at 15 (citing Compl. ¶¶ 11-12).) However, Amtrak fails to
develop this argument or cite a single case to support the notion that this
precludes Antidormi’s discrimination claim. Accordingly, this argument
fails.
17
Hummel to schedule further proceedings in accordance with this
Memorandum-Decision and Order; and it is further
ORDERED that the Clerk provide a copy of this Memorandum-
Decision and Order to the parties.
IT |S SO ORDERED.
September 3, 2019
Albany, New York

STisttict Judge

18

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10312059. Public record. Not legal advice.