IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MICHIGAN

UNITED STATES OF AMERICA, )

)

Plaintiff, )

)

v\. ) CASE NO. 94-CV-74997-DT

)

CITY OF PONTIAC, a ) HON. DENISE PAGE HOOD

Municipality of the )

State of Michigan, )

)

Defendant. )

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_)

ALLISON NICHOL THOMAS L. FLEURY (P24064)

EDWARD MILLER KELLER, THOMA, SCHWARZE,

BEBE NOVICH SCHWARZE, DuBAY & KATZ, P.C.

Attorneys for Plaintiff Attorneys for Defendant

Disability Rights Section 440 East Congress Street, 5th Floor

Civil Rights Division Detroit, Michigan 48226

U. S. Department of Justice (313) 965-7610

P. O. Box 66738

Washington, D.C. 20035-6738

\(202\) 514-3422

[PLAINTIFF UNITED STATES\' RESPONSE BRIEF IN OPPOSITION]{.underline}

[TO DEFENDANT\'S MOTION FOR SUMMARY JUDGMENT]{.underline}

[TABLE OF CONTENTS]{.underline}

[Page]{.underline}

Concise Statement of Issues ii

Table of Authorities iii

I. Argument 1

A. Dennis Henderson Is an Individual with a Disability under\
the ADA Because the Defendant Has Regarded Henderson as\
Having a Disability 1

B. Defendant Has Failed to Rebut Undisputed Evidence that\
Henderson Is Qualified Within the Meaning of the ADA 3

C Even Assuming Defendant Is Permitted to Assert a Direct\
Threat Defense, Defendant Has not Proven Henderson Would\
Pose a Direct Threat Under the ADA 5

D. The City of Pontiac Is Liable for the Discriminatory Hiring Decision
15

1\. The City of Pontiac Made the Decision to Deny\
Employment to Henderson 15

2\. Act 78 Does Not Support Defendant\'s Contention\
that the Commission Is a Separate Legal Entity 16

3\. Even if the Commission Is a Separate Legal Entity,\
the City Is Liable for the Discrimination 18

II\. Conclusion 20

[CONCISE STATEMENT OF ISSUES]{.underline}

In this action, Plaintiff United States alleges that Defendant City of
Pontiac discriminated against Dennis Henderson on the basis of his
disability, in violation of title I of the Americans with Disabilities
Act (\"ADA\"), by failing or refusing to hire him as a entry-level fire
fighter in Defendant\'s fire department because he has monocular vision.
Plaintiff has moved for summary judgment, establishing a
[prima]{.underline} [facie]{.underline} case of employment
discrimination under the ADA by demonstrating that: Defendant regarded
Henderson as having a disability; Henderson was qualified for the
entry-level fire fighter position; Henderson was denied the fire fighter
position because of his disability; and Defendant\'s affirmative
defenses must fail as a matter of law.

Defendant cross-moved for summary judgment, alleging that: Henderson
does not have a disability under title I; Henderson was not qualified
for the fire fighter position; and Defendant is not a proper party to
this action. Plaintiff demonstrates in this brief that Henderson has a
disability because Defendant regarded him as being substantially limited
in the major life activities of seeing and working; Henderson\'s
extensive qualifications, actual fire fighting work experience, and
performance on Defendant\'s entrance examinations demonstrates that he
was qualified for the position, and Henderson can not pose a direct
threat to the health or safety of himself or others; and the City is the
proper Defendant because it is not a separate legal entity from the Fire
Civil Service Commission and because the City is the employer of fire
fighters and made the discriminatory decision to reject Henderson\'s
application.

A complete Statement of Uncontested Facts and Argument is contained in
Plaintiff United States\' Brief in Support of Its Motion for Summary
Judgment (\"Plaintiff\'s Brief\"), which has been filed with the Court,
and the United States relies on those facts and arguments to support
this Response. Other factual assertions, or clarification of inaccurate
factual citations by Defendant in Defendant\'s Brief in Support of It\'s
Motion for Summary Judgment (\"Defendant\'s Brief\") are contained in
the Argument below.

[TABLE OF AUTHORITIES]{.underline}

[Page]{.underline}

[I.]{.underline} [Cases]{.underline}

[Anderson v. Little League Baseball, Inc.]{.underline}, 794 F. Supp. 342
(D. Az. 1992) 4-5

[Beer v. City of Fraser Civil Serv. Comm\'n]{.underline}, 338 N.W.2d 197
(Mich. Ct.\
App. 1983) 17-18

[Bombrys v. City of Toledo]{.underline}, 849 F. Supp. 1210 (N.D. Ohio
1993) 12

[Brown County]{.underline} v. [Labor & Industry Review
Comm\'n]{.underline},\
369 N.W.2d 735 (Wis. 1985) 3

[Cecil]{.underline} v. [Gibson]{.underline}, 820 S.W.2d 361 (Tenn. App.
1991) 2-3

[Chandler]{.underline} v. [City of Dallas]{.underline}, 2 F.3d 1385 (5th
Cir. 1993), [cert.]{.underline} [denied]{.underline},\
114 S. Ct. 1386 (1994) 3, 7 n.3

[City of Los Angeles Dept. of Water & Power]{.underline} v.
[Manhart]{.underline}\
435 U.S. 702 (1978) 20

[Cook]{.underline} v. [State of Rhode Island]{.underline}, 10 F.3d 17
(1st Cir. 1993) 2, 3

[Colorado Civil Rights Comm\'n]{.underline} v. [North Washington Fire
Protection Dist]{.underline}.,\
772 P.2d 70 (Colo. 1989) 3

[DeGrace]{.underline} v. [Shelby Township Police and Fire Civil Serv.
Comm\'n]{.underline},\
389 N.W.2d 137 (Mich. Ct. App. 1986) 17

[DiPompo v. West Point Military Academy]{.underline},\
770 F. Supp. 887 (S.D.N.Y. 1991) 5 n.2

[Doe v. District of Columbia]{.underline}, 796 F. Supp. 559 (D.D.C.
1992) 6

[E. E. Black, Ltd.]{.underline} v. [Marshall]{.underline}, 497 F. Supp.
1088 (D. Haw. 1980) 2

[E.E.O.C.]{.underline} v. [Wooster Brush Co. Employees Relief
Ass\'n]{.underline},\
727 F.2d 566 (6th Cir. 1984) 20

[Greenwood v. State Police Training Center]{.underline}, 606 A.2d 336
(N.J. 1991) 6, 11

[Konyha]{.underline} v. [Mount Clemens Civil Serv. Comm\'n]{.underline},
224 N.W.2d 833 (Mich. 1975) 17-18

[Righter]{.underline} v. [Civil Serv. Comm\'n of Adrian]{.underline},
136 N.W.2d 718 (Mich. Ct. App. 1965) 17-18

[Roe v. District of Columbia]{.underline}, 842 F. Supp. 563 (D.D.C.
1993) 6-7

[Sarsycki]{.underline} v. [United Parcel Serv.]{.underline}, 862 F.
Supp. 336 (W.D. Okla. 1994) 4, 7 n.3

[Sibley Memorial Hosp.]{.underline} v. [Wilson]{.underline}, 488 F.2d
1338 (D.C. Cir. 1973) 19

[Page]{.underline}

[Small]{.underline} v. [City Manager of Saginaw]{.underline}, 197 N.W.2d
850 (Mich. Ct. App. 1972) 17

[Terbovitz]{.underline} v. [Fiscal Court of Adair County]{.underline},
825 F.2d 111 (6th Cir. 1987) 20

[United States]{.underline} v. [State of Illinois]{.underline}, No.
93-C-7741, 1994 WL 562180\
(N.D. Ill. Sept. 12, 1994) 19-20

[Vanguard Justice Soc\'y, Inc.]{.underline} v. [Hughes]{.underline}, 471
F. Supp. 670 (D. Md. 1979) 19

[II.]{.underline} [Statutes and Regulations]{.underline}

Americans with Disabilities Act of 1990, 42 U.S.C. § 12101
[et]{.underline} seq. [passim]{.underline}

Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e(a) 19-20, 19
n.24

Mich. Comp. Laws Ann. § 38.501 [et]{.underline} [seq.]{.underline} (West
1995) 15-18

Mich. Comp. Laws Ann. § 117.1 [et]{.underline} [seq.]{.underline} (West
1995) 16-17

29 C.F.R. Pt. 1630 1, 5

29 C.F.R. Pt. 1630, App. [passim]{.underline}

I.  ARGUMENT

    A.  [Dennis Henderson Is an Individual with a Disability under the
        ADA Because the Defendant Has Regarded Henderson as Having a
        Disability]{.underline}

In Part I of Defendant\'s Brief, Defendant asserts that Plaintiff\'s
complaint should be dismissed because Henderson is not \"disabled\"
within the meaning of the ADA. Defendant\'s Brief at 15-23. This
argument should be rejected because undisputed facts demonstrate that,
as a matter of law, Defendant has regarded Henderson as having a
disability.

To support its arguments on the question of disability, Defendant first
asserts that Henderson is not substantially limited in a major life
activity. Defendant admits that \"Mr. Henderson is able to function
exceptionally both at work and socially despite his monocularity.\"
[Id.]{.underline} at 19. After reviewing Henderson\'s work history,
including his work experience in the Wixom Fire Department, Defendant
concludes that \"no reasonable mind could find that Mr. Henderson is
substantially limited in his ability to work.\" [Id.]{.underline} at 21.
Finally, Defendant states: \"It is beyond reasonable dispute that Mr.
Henderson does not suffer from a physical defect which \'substantially
limits his ability to work.\'\" [Id.]{.underline} Defendant has also
admitted that Henderson\'s monocular vision does not substantially limit
him in being a fire fighter. [See]{.underline} Plaintiff\'s Brief,
Exhibit 5 Nos. 36-39. Plaintiff agrees with Defendant, and urges this
Court to consider them in ruling that Henderson cannot pose a direct
threat because he has no substantially limiting impairment and is not
limited in his ability to work safely as a fire fighter and granting
summary judgment in favor of Plaintiff.

However, Defendant is incorrect when it asserts that Henderson has not
been \"regarded as\" having a disability. Under the ADA, if the
Defendant treated Henderson as if he had an impairment that
substantially limits a major life activity, then Henderson has a
disability. 29 C.F.R. § 1630.2(l)(3). Undisputed facts demonstrate that
the City of Pontiac regarded Henderson as being substantially limited in
two major life activities: working and seeing.

First, admissions in the form of Rule 30(b)(6) deposition testimony
establish that the City of Pontiac assumed that Henderson would be
unable to perform job functions which do not require superior visual
abilities, such as cleaning equipment or sketching buildings.
Plaintiff\'s Brief at 15-16. By asserting that Henderson was unable to
perform these visual functions, Defendant has regarded Henderson as
substantially limited in seeing and therefore as having a disability.

Second, other admissions establish that Pontiac regarded Henderson as
unable to work in an entire class of jobs: the class of fire fighting
jobs. Plaintiff\'s Brief at 17-19. While this is sufficient to establish
that Defendant regarded Henderson as substantially limited in working,
it is also established that Defendant regarded Henderson as unable to
perform in a broad range of jobs in various classes: for example, public
safety jobs, jobs requiring driving, cleaning, inspecting or sketching,
and other jobs. Plaintiff\'s Brief at 19-20. Consequently, the City also
regarded Henderson as having a disability because it regarded him as
substantially limited in working.

Defendant does not challenge these undisputed facts, and instead relies
on inapposite caselaw. For example, Defendant\'s reliance on
[Cecil]{.underline} v. [Gibson]{.underline}, 820 S.W.2d 361 (Tenn. App.
1991), is misplaced. First, [Cecil]{.underline} did not even address the
issue of being regarded as substantially limited in seeing, and its
holding as to being regarded as substantially limited in \"working\" was
fact specific and inapplicable. In [Cecil]{.underline}, the Court
rejected plaintiff\'s arguments that he was regarded as having a
disability because, contrary to the instant case, the only evidence
relied upon by Cecil was his rejection from one trainee position.
[Id.]{.underline} at 366. In contrast, Defendant\'s standards apply to
every position in its Department, including fire fighter, engineer, fire
officer, paramedic or EMT. Further, in [Cecil]{.underline}, the
standards at issue applied only to police officer trainees in the City
of Nashville; in the present case, Defendant is relying on NFPA
standards which are issued nationally and which purport to apply every
person engaged in any fire fighting, rescue, or other emergency service
across the country. Plaintiff\'s Brief at 18. Consequently, Henderson
has been regarded as unable to work in every one of these positions.

Further, [Cecil]{.underline}, a state court decision based on state law,
is inapplicable because it has been directly contradicted by federal
courts interpreting federal law. [See]{.underline}, [e.g.]{.underline},
[E. E. Black, Ltd.]{.underline} v. [Marshall]{.underline}, 497 F. Supp.
1088, 1100 (D. Haw. 1980) (Where an employer refuses to hire an
individual because of a perceived impairment, a legal presumption arises
\"that all employers offering the same job or similar jobs would use the
same requirement or screening process.\"); [Cook]{.underline} v. [State
of Rhode Island]{.underline}, 10 F.3d 17, 25-26 (1st Cir. 1993) (same).
Indeed, other state courts, utilizing disability definitions that are
identical to the ADA, have rejected the approach taken by
[Cecil]{.underline}. [See]{.underline}, [e.g.]{.underline}, [Colorado
Civil Rights Comm\'n]{.underline} v. [North Washington Fire Protection
Dist]{.underline}., 772 P.2d 70, 79 (Colo. 1989) (fire fighter applicant
with 20/50 vision, who was denied employment because of his vision, was,
as a matter of law, \"regarded as\" having a handicap); [Brown
County]{.underline} v. [Labor & Industry Review Comm\'n]{.underline},
369 N.W.2d 735, 741 (Wis. 1985) (applicant for deputy sheriff positions
who was refused employment because his vision was 20/400, correctable to
20/20, was \"regarded as\" having a handicap).

Defendant\'s reliance on [Chandler]{.underline} v. [City of
Dallas]{.underline}, 2 F.3d 1385 (5th Cir. 1993), [cert.]{.underline}
[denied]{.underline}, 114 S. Ct. 1386 (1994) is also misplaced. In
[Chandler]{.underline}, the employer recognized the plaintiffs\'
\"ability to perform most of the duties associated with their respective
positions.\" 2 F.3d at 1393. It believed that the plaintiffs were
disqualified from performing one particular task of their jobs: driving
in jobs in which they would be \"primary drivers.\" [Id.]{.underline}
Here, however, the City of Pontiac\'s reasons for disqualifying
Henderson were not limited to one specific task or one specific job
site. Rather, the City acted on the basis of an unfounded presumption
that\
Henderson\'s vision disqualified him from the entire class of fire
fighting jobs, and numerous other jobs outside of fire fighting.
[See]{.underline} Plaintiff\'s Brief at 17-20. That categorical
disqualification demonstrates that the city \"regarded\" Henderson as
being substantially limited in his ability to work.

B.  [Defendant Has Failed to Rebut Undisputed Evidence that Henderson Is
    Qualified Within the Meaning of the ADA]{.underline}

Defendant fails to rebut Plaintiff\'s demonstration that Henderson was
qualified for Pontiac\'s entry-level fire fighter position because
Defendant confuses the question of \"qualified\" \-- part of
plaintiff\'s [prima]{.underline} [facie]{.underline} case, with \"direct
threat\" \-- an affirmative defense which Defendant must plead and
prove, and because the facts proving that Henderson is qualified are
uncontroverted.

The ADA and the title I regulation makes clear that safety and direct
threat factors are not part of the determination of whether an
individual is qualified, and that direct threat must be pleaded and
proved as an affirmative defense. \"Direct threat\" appears under
\"Defenses\" in the statute and regulation. 42 U.S.C. § 12113(b); 29
C.F.R. 1630.2(r). Interpretive Guidance to the regulation further
supports the principle that safety issues must be presented as an
affirmative defense rather than a part of a plaintiff\'s
[prima]{.underline} [facie]{.underline} case.

> Many individuals with disabilities objected to the inclusion of the
> direct threat reference in \[section 102\] and asked the Commission to
> clarify that [the direct threat standard must be raised by the covered
> entity as a defense]{.underline}. In that regard, they specifically
> asked the Commission to move the direct threat provision from §
> 1630.10 (qualification standards) to § 1630.15 (defenses). The
> Commission has deleted the direct threat provisions from § 1630.10 and
> has moved it to § 1630.15.

29 C.F.R. pt. 1630 App. 1630.10 (emphasis added).

Under title I, a plaintiff must prove, as part of its
[prima]{.underline} [facie]{.underline} case, that an individual with a
disability was qualified for the position at issue. \"Qualified\" means
being able to perform the essential functions of the job, with or
without reasonable accommodation. 42 U.S.C. § 12111(8). \"Qualified\"
does not include safety considerations, since those considerations arise
under the affirmative defense of \"direct threat.\"
[Sarsycki]{.underline} v. [United Parcel Serv.]{.underline}, 862 F.
Supp. 336, 340 (W.D. Okla. 1994).

Thus, Defendant\'s case and statutory citations and arguments under
\"qualified\" are actually irrelevant to that determination, because
they are based on direct threat considerations. Cases brought under the
Rehabilitation Act of 1973, including those cited by Defendant, are also
irrelevant to this point; while Rehabilitation Act cases are persuasive
authority in other ADA title I issues, they are not controlling when
conducting a \"direct threat\" analysis, since title I, unlike the
Rehabilitation Act, explicitly established \"direct threat\" as an
affirmative defense.

Defendant cannot credibly contest that Henderson was qualified within
the meaning of title I, in light of Henderson\'s extensive prior
experience as a fire fighter and outstanding scores on Defendant\'s
entrance exams.[^1] Plaintiff\'s Brief at 21-22. Defendant has also
offered no evidence that Henderson\'s experience in Wixom should not be
relevant to his qualifications to be a fire fighter in Pontiac.
[See]{.underline} [Anderson v. Little League Baseball,
Inc.]{.underline}, 794 F. Supp. 342, 345 (D. Az. 1992) (court accorded
\"great weight\" to individual\'s previous experience coaching and found
that defendant\'s exclusion of coaches who use wheelchairs violated the
ADA).[^2]

C.  [Even Assuming Defendant Is Permitted to Assert a Direct Threat
    Defense, Defendant Has not Proven Henderson Would Pose a Direct
    Threat Under the ADA]{.underline}

Defendant asserts that Plaintiff\'s complaint should be dismissed
because of direct threat considerations. However, Defendant cannot, as a
matter of law, be shielded by the direct threat defense, because (1)
Defendant has admitted that its exclusionary standard is not job-related
or consistent with business necessity, (Plaintiff\'s Brief at 34-35);
(2) Defendant admitted that it failed to consider any reasonable
accommodation to reduce any perceived risk, as required under the ADA,
([Id.]{.underline} at 33-34); (3) Defendant admitted it did not conduct
an individualized assessment of Henderson, as required to assert the
defense, ([Id.]{.underline} at 30-33); and (4) Henderson cannot pose a
direct threat because he has no actual disability, ([Id.]{.underline} at
35-36).

Even assuming [arguendo]{.underline} that Defendant may assert a direct
threat defense, Defendant has not proved such a defense as a matter of
law. To be entitled to summary judgment on a direct threat affirmative
defense, Defendant must prove as a matter of law that there is no
genuine issue of material fact that Dennis Henderson poses a significant
risk of substantial harm to himself or others. 29 C.F.R. 1630.2(r).
Defendant\'s direct threat defense must fail because the evidence on
which Defendant relies is based on mere speculation and ignores
concrete, uncontested factual evidence showing that Henderson and other
monocular fire fighters do not pose a direct threat.

According to the interpretive guidance to the ADA, the determination
that an individual poses a direct threat must be based on valid, factual
evidence, not \"common sense\" or speculation.

The guidance states:

> Such consideration must rely on objective, factual evidence \-- not on
> subjective perceptions, irrational fears, patronizing attitudes, or
> stereotypes \-- about the nature or effect of a particular disability.
>
> \* \* \*
>
> The assessment that there exists a high probability of substantial
> harm to others, must be strictly based on valid medical analyses
> and/or other objective evidence.

29 C.F.R. pt. 1630, App. 1630.2(r) (direct threat).

The title I regulation specifies that an employer must prove that the
risk is significant, not merely slight or theoretical. \"An employer,
however, is not permitted to deny an employment opportunity to an
individual with a disability merely because of a slightly increased
risk. The risk can only be considered when it poses a
[significant]{.underline} risk; i.e., [high]{.underline}
[probability]{.underline} of substantial harm; a speculative or remote
risk is insufficient.\" 29 C.F.R. pt. 1630, App. 1630.2(r) (direct
threat) (emphasis added).

For instance, in a case under an analogous statute, the Court in
[Greenwood v. State Police Training Ctr.]{.underline}, 606 A.2d 336, 342
(N.J. 1991) struck down a police academy\'s exclusion of a trainee with
monocular vision. The court stated that exclusion was improper \"unless
there is substantial evidence that that limitation either prevents an
employee from adequately performing the job or creates a [substantial
risk of serious injury]{.underline} to the employee or others.\"
[Id]{.underline}. at 342 (emphasis added). The Court emphasized that the
visual limitation must \"significantly\" increase the risk that is posed
to individuals without such a disability. [Id.]{.underline} The Court
also dismissed the opinions of defendant\'s expert, because although he
speculated that the plaintiff might be at greater risk, he offered no
\"objective medical evidence\" in support of this opinion.
[Id.]{.underline} Similarly, in [Doe v. District of
Columbia]{.underline}, 796 F. Supp. 559 (D.D.C. 1992), the court struck
down defendant\'s exclusion of HIV-positive persons from fire fighter
positions, finding that defendant had failed to demonstrate that the
risk of HIV transmission during emergency duties was significant.
[Id.]{.underline} at 569; [see]{.underline} [also]{.underline} [Roe v.
District of Columbia]{.underline}, 842 F. Supp. 563 (D.D.C. 1993) (fire
fighter with hepatitis B does not pose a direct threat in performing
CPR, because the risk of transmission is purely theoretical).[^3]

Most importantly, Defendant, rather than independently assessing any
risks it believed would be posed by hiring Henderson, summarily relied
on the NFPA 1582 standard. Reliance on that standard cannot support a
direct threat defense, because the standard was based on unscientific
conjecture rather than valid factual research.[^4] The committee had no
members with vision expertise. No ophthalmologist or optometrist served
on the committee or was consulted by the committee. Vance Dep. (Exhibit
48) at 64; Rebuttal Expert Witness Report of James Melius, M.D. (Exhibit
54). The committee relied for its vision standards on Dr. Fedoruk, a
specialist in toxicology and emergency medicine, not vision. Gerkin Dep.
(Exhibit 47) at 40, 46-48. The committee based its decision to
categorically exclude all individuals with monocular vision on what it
claimed was \"common sense.\" Exhibit 48 at 85-86. It did not obtain any
data regarding individuals with monocular vision; nor did it obtain
testimony or other evidence from such individuals or their supervisors.
[Id.]{.underline} at 76-78, 82. The committee never performed any
validation study to support its vision standards. Fedoruk Dep. (Exhibit
49) at 67-69. The committee did not rely on scientific information or
studies and had no information on monocular fire fighters. Exhibit 48 at
90-91, 102-03; Exhibit 47 at 60. The committee engaged in little
discussion of its binocular vision requirement,[^5] and the single item
of research or data distributed to the committee regarding vision was a
study having no application to monocular vision.[^6] Prior to this
litigation, Dr. Fedoruk himself expressed concern about applying the
results of this study of a single fire department to other fire
departments. [See]{.underline} Letter from Dr. M. Fedoruk to Tom Healy,
dated January 10, 1989 (Exhibit 50).[^7]

Similarly, the opinions of Defendant\'s witnesses in this action are
based on speculation rather than factual evidence. Plaintiff disputes
the opinion of Defendant\'s witness, cited in Defendant\'s Brief,
regarding stereopsis and depth perception in monocular fire fighters.
[See]{.underline} Defendant\'s Brief at 13-14.[^8] Frank Landy, Ph.D.,
an expert in fire fighting job tasks and perceptual skills,[^9] explains
that a monocular fire fighter\'s depth perception is more than adequate
to perform safely the functions of fire fighting, because depth
perception is far more dependent upon experience and \"monocular cues\"
\-- environmental indicators that are perceived equally well by
individuals with monocular vision and those with binocular vision \--
than it is on having two eyes. A fire fighter\'s ability to perform
tasks such as spotting ladders, estimating distances, driving and
parking emergency vehicles and other tasks that require depth perception
is determined principally by the amount of that fire fighter\'s prior
experience in performing those tasks and by monocular cues rather than
stereopsis. Binocular vision and stereopsis are largely irrelevant to
fire fighting. Landy Dep. (Exhibit 56) at 103.

This purported concern about depth perception in fire fighting is so
incredible that even another of Defendant\'s witnesses, Mr. Carmean,
dismissed it. Exhibit 53 at 143-44. Defendant has no research to support
any concern regarding the ability of individuals with monocular vision
to measure depth, nor has it any evidence to support such a fear with
regard to Dennis Henderson. Quite the contrary, Henderson\'s 17-year
history of safely performing all of those tasks, including driving and
parking large emergency vehicles, shows that his monocular vision has
not adversely affected his own ability to perceive depth. Plaintiff\'s
Brief at 1-2, Facts ¶¶ 1-4. Dr. William Monaco, an optometrist and
vision expert who is the only expert to have medically examined
Henderson, measured Henderson\'s depth perception and found it
comparable to that of an individual with binocular vision.
[See]{.underline} [Id.]{.underline} Exhibit 4 at 3. Defendant never
measured Henderson\'s depth perception prior to rejecting him; its
ophthalmologist merely assumed that Henderson\'s depth perception was
diminished due to his monocular vision. Holloway Dep. (Exhibit 42) at
38/22-24. Defendant and its witnesses ignore the fact that Henderson and
other individuals with monocular vision have been working safely as fire
fighters in fire departments across the country. [See]{.underline}
Declarations of James J. Hunter, III, Michael Toohey, and Vincent A.
Tomicich (Exhibits 59, 60, 61, respectively).

Another of the baseless concerns asserted by one of Defendant\'s
witnesses is that an individual with monocular vision lacks sufficient
peripheral visual fields. On this point too, Defendant\'s experts
contradict each other.[^10] Expert testimony shows that the practical\
significance of having monocular vision on peripheral vision is
negligible because individuals with monocular vision compensate for the
small difference in their peripheral fields through eye, head, and body
movements.[^11] Exhibit 55 ¶ 7; Plaintiff\'s Brief, Exhibit 3 at 13 and
Exhibit 4 at 3. This is especially true for individuals who have been
monocular over a long period of time, and for whom such compensatory
movements are reflexive. Dr. William Monaco measured Henderson\'s
peripheral awareness and found that Henderson, who has had monocular
vision for nearly 20 years, has peripheral awareness within normal
ranges for [binocular]{.underline} individuals. Plaintiff\'s Brief,
Exhibit 4 at 3. Defendant never measured Henderson\'s peripheral vision
or awareness.

Moreover, Henderson has performed all fire fighting tasks for 17 years,
including driving emergency vehicles, search and rescue, and other tasks
that Defendant claims would be compromised by his monocular vision, and
has never been adversely affected. [Id.]{.underline} at 1-2, Facts ¶¶
1-4. Further, Defendant\'s \"concerns\" about driving are pretextual
because Defendant has admitted that in Pontiac fire fighters are not
routinely assigned emergency vehicle driving responsibilities, and
further admitted that driving responsibilities are primarily assigned to
engineers, not fire fighters. Plaintiff\'s Brief, Exhibit 5 Nos. 53, 54.
Anthony Collier, the person hired into a fire fighter position instead
of Henderson, testified that during the entire time he has worked at
Pontiac he has never driven the engine, rescue, ladder or Haz-Mat trucks
on a fire call. Collier Dep. (Exhibit 58) at 23-27.[^12]

The third of Defendant\'s purported concerns about monocular vision is
the risk of \"sudden incapacitation\" during fire fighting. Defendant\'s
witnesses claim that a fire fighter with monocular vision poses a
significant risk that s/he will have their one functioning eye totally
incapacitated during fire fighting. Defendant\'s witnesses\' arguments
are factually unfounded. First, fire fighters with monocular vision are
at no greater risk of sudden incapacitation than are fire fighters with
binocular vision. Exhibit 55 ¶ 5. Fire fighters are required to wear
SCBAs during active fire suppression and many other activities. Even
Defendant\'s experts agree that SCBAs adequately protect against the
risk of debris flying into eyes. Exhibit 49 at 140. At other times, fire
fighters wear face shields or goggles for eye protection, and Henderson
wears safety glasses whenever he is not wearing his SCBA. Exhibit 41 at
75, 313.[^13] The possibility that a totally incapacitating bit of
debris will be permitted to fly into a monocular fire fighter\'s one
functioning eye (rather than flying into the non-functioning eye) just
at the time a fire fighter is forced to remove his or her eye
protection, and that the fire fighter or another accompanying fire
fighter will be unable to remedy the situation, is a concatenated series
of probabilities too remote to occur, and certainly too remote to be
significant. Exhibit 55 ¶ 5.[^14] Defendant is incorrect when it implies
that the risk of incapacitation would be more catastrophic for a
monocular fire fighter then a binocular fire fighter. [Id.]{.underline}
Thus, the risk of sudden incapacitation is merely speculative and highly
remote, and cannot satisfy the ADA\'s requirement for valid, medical
evidence that shows a [significant]{.underline} (high probability) risk
of substantial harm. [See]{.underline} [Greenwood]{.underline}, 606 A.2d
at 342 (risk of injury to a monocular police trainee\'s functioning eye
was too remote to warrant exclusion).

It is highly relevant that Henderson, in 17 years of fire fighting in
Wixom, has never been adversely affected by his monocular vision\--that
he has never experienced the alleged depth perception, peripheral
vision, or eye incapacitation problems that Defendant\'s witnesses claim
to pose so significant a risk.[^15] Plaintiff has also named several
other active fire fighters with monocular vision and their fire chiefs
to testify in this action. [See]{.underline} [generally]{.underline}
Exhibits 59, 60, 61. Those fire fighters have been fighting fires for a
combined total of nearly 50 years in large metropolitan areas. Their
fire chiefs all attest that these fire fighters have performed
effectively and safely. [Id.]{.underline} In addition, Plaintiff has
named as witnesses numerous other fire fighters with monocular vision,
working across the country, who have similarly safe work records.
Evidence of other individuals with the same disability in the same job
is relevant to whether such individuals pose a direct threat.
[See]{.underline}, [e.g.]{.underline}, [Bombrys v. City of
Toledo]{.underline}, 849 F. Supp. 1210, 1219 (N.D. Ohio 1993) (evidence
of two other police officers with insulin-dependent diabetes).

None of Defendant\'s witnesses could quantify the risks they posited, or
had any relevant research regarding individuals with monocular vision on
which to base their opinion. Exhibit 53 at 105-06, 110-12, 172. While
Defendant cited its vision expert, Dr. Sheedy, for support for its
\"sudden incapacitation\" argument, Defendant failed to explain that the
data Sheedy relied on to form this opinion provided no link between
\"particles in the eye\" and incapacitation. Exhibit 57 at 72/11-12.
Further, while Dr. Sheedy had reviewed the Montgomery County Study, he
nonetheless admitted that there was no data to enable him to
differentiate between the times a fire fighter is incapacitated and the
times that particles getting in the eye is just a minor irritant.
[Id.]{.underline} at 73-74. Most importantly, Dr. Sheedy admitted there
is no data \"that would indicate that monocular individuals would be
affected differently based on anything getting in their eye than
binocular people would be.\" [Id.]{.underline} at 72. Therefore, Dr.
Sheedy\'s \"concerns\" about incapacitation are based on supposition,
rather than facts; when asked if he was \"aware of any data which link
foreign particles in the eyes of fire fighters with injuries or death\"
Dr. Sheedy responded: \"I am not aware of the existence of such data.\"
[Id.]{.underline} at 84/16-20.

Defendant, instead of assessing Henderson\'s individual abilities to be
a fire fighter, relied on a blanket exclusionary standard. Defendant had
never independently assessed this standard\'s validity or its
appropriateness for Defendant\'s fire department. Plaintiff\'s Brief at
8-10, Facts ¶¶ 23-27. Indeed, it has admitted that the standard is not
job-related. [Id.]{.underline} at 9-10, Facts ¶ 26. Defendant\'s
purported faith in the validity of the NFPA standards also is suspect
because the Defendant has admitted that the City in fact does not comply
with other NFPA 1582 standards. For instance, the evidence shows that
Defendant chose not to adopt or enforce NFPA 1582\'s mandate to
periodically test incumbent fire fighters for their compliance with the
standard, as NFPA 1582 requires. [Id.]{.underline} Exhibit 43 at
56/9-57/1. Defendant has admitted that it does not test incumbent fire
fighters for their vision,[^16] showing that Defendant apparently
accepts the alleged risks of employing a current fire fighter with
monocular vision.[^17]

Moreover, all of Defendant\'s testimony regarding NFPA 1582 is
irrelevant to this action. Defendant falsely claims that it relied on
NFPA 1582 as the medical standard by which to reject Henderson, when all
evidence shows that Defendant actually applied the predecessor vision
standard, NFPA 1001. It may improve the City\'s position to assert that
City utilized NFPA 1582 prior to its August 3, 1992 rejection of
Henderson, since Defendant has retained (and is relying on) experts who
developed the NFPA 1582 standard. Defendant\'s Brief at 3-13. However,
the facts show that the when evaluating Henderson\'s application, the
City utilized NFPA 1001, an older NFPA standard that was no longer in
force, because it had been withdrawn by the NFPA, apparently because it
did not provide for an individualized assessment.[^18] The City\'s
ophthalmologist testified that she utilized NFPA 1001. Exhibit 42 at 41,
54-55. Robert Lamson, the Fire Chief at the time of Henderson\'s
application and rejection, also testified that he was not even aware of
NFPA 1582 until months after Henderson\'s August 3, 1992 rejection.
Exhibit 43 at 49. Further, the Defendant\'s rejection letter cited the
NFPA 1001 Standard as the reason Henderson was rejected. Plaintiff\'s
Brief, Exhibit 20. Defendant may have misrepresented this fact because
none of Defendant\'s experts were involved in any way with the
development of the NFPA 1001 standard.[^19]

The uncontested evidence in this action shows that NFPA 1001 was not
based on any job task analysis for fire fighters. Exhibit 45 at 181-83.
Further, all of the testimony Defendant cites in support for its
contention that Henderson would pose a direct threat comes in the form
of testimony from witnesses who did not serve on the NFPA in any
capacity regarding the NFPA 1001 standard. Their testimony should
therefore be excluded.[^20]

It is clear from the evidence offered in this action that Defendant\'s
claims of direct threat risk are based purely on speculation rather than
evidence of individuals with monocular vision who are fire fighters. It
is also clear that the factual evidence shows that individuals with
monocular vision can serve and have served as fire fighters effectively
and safely over many years. It is also clear, most importantly, that
Dennis Henderson has served effectively and safely as a fire fighter for
17 years. Therefore, the evidence convincingly demonstrates that
Defendant has not proved as a matter of law that Henderson posed a
direct threat.

> D. The City of Pontiac Is Liable for the Discriminatory Hiring
> Decision

The Defendant seeks to escape liability for the discriminatory hiring
decision by asserting that the Pontiac Fire Civil Service Commission
(\"Commission\") both made the hiring decision at issue and is, pursuant
to state law, a separate legal entity; therefore, Defendant argues, it
is the Commission, and not the City, that is liable for the
discrimination.[^21] To support this assertion, Defendant relies almost
exclusively on a statutory interpretation of the Michigan Fire and
Police Civil Service Act, M.C.L. § 38.501 (\"Act 78\"). However,
Defendant\'s arguments cannot succeed because Act 78 on its face does
not support Defendant\'s contentions. Further, Defendant\'s arguments
fail because undisputed evidence, which Defendant either ignores or
misrepresents, establishes that the City of Pontiac, and not its Fire
Civil Service Commission, made the discriminatory hiring decision at
issue; that the City is the employer of fire fighters; and that the City
bears ultimate responsibility for employment practices affecting Pontiac
fire fighters.

> 1\. [The City of Pontiac Made the Decision to Deny Employment to
> Henderson]{.underline}

The linchpin of Defendant\'s \"separate legal entity\" argument is that
the Commission, and not the City, made the decision to deny employment
to Henderson. However, Defendant has ignored a fact that it cannot
dispute: the Commission did, in fact, certify Dennis Henderson for hire
on May 5, 1992. Plaintiff\'s Brief, Exhibit 12. After this
certification, the City\'s Personnel Office overturned that
certification and rejected Henderson, by letter dated August 3, 1992,
without consulting the Commission.[^22] Plaintiff\'s Brief at 4-5, Facts
¶¶ 10-11 and Exhibit 20.

> 2\. [Act 78 Does Not Support Defendant\'s Contention that the
> Commission Is a Separate Legal Entity]{.underline}

While Defendant relies on a statutory interpretation of Act 78 to
support its argument, it misconstrues and in some cases blatantly
misstates the provisions of that Act. First, Act 78 neither expressly
nor implicitly supports Defendant\'s contention that once a City creates
a Commission, the \"commission become\[s\] a separate and distinct
entity\" and is \"[not]{.underline} a part of the entity within which
\[it\] was created.\" Defendant\'s Brief at 29. As support for its
interpretations of Act 78, Defendant cites to the entire Act, and not to
specific sections. Similarly, Defendant asserts, again citing to the
entire Act, that \"\[o\]nce a fire civil service commission is created,
Act 78 relegates to it complete and exclusive control and/or authority
over determinations and decisions concerning the need for and the
qualifying, hiring, promotion and discipline of firefighters within the
applicable fire department.\" This broad statement is not only
unsupported by the Act, but the Act in fact expressly states the
opposite. M.C.L. §§ 38.511, 38.513 & 38.514.

Nowhere does the Act grant the Commission the power to \"sue and be
sued,\" be \"completely independent of the City,\" have \"supreme
authority over the Fire Department,\" \"control\[\] the method and
create\[\] the standards by which all determinations of eligibility for
hire are made,\" \"exclusively determine\[\] the need to hire\" and
numerous other powers that Defendant, again without any specific
statutory references, attributes to the Act. [See]{.underline}
Defendant\'s Brief at 30. The powers and duties of the Commission are
enumerated in M.C.L. § 38.509, and those powers are limited.
[See]{.underline} M.C.L. § 38.509. In addition, the Michigan Home Rule
City Act, under which the City was chartered, also does not grant the
Commission the power to sue or be sued. Mich. Comp. Laws Ann. § 117.1
[et seq.]{.underline} (West 1995).

Section 38.511 of Act 78 makes clear that the appointing officer (which
is defined as the Mayor) alone has the power to determine when fire
department vacancies exist, determine whether to fill vacancies and
request that the Commission certify an eligible. M.C.L. § 38.511(2);
[see]{.underline} [also]{.underline} [DeGrace]{.underline} v. [Shelby
Township Police and Fire Civil Serv. Comm\'n]{.underline}, 389 N.W.2d
137 (Mich. Ct. App. 1986) (mayor, and not commission, determines
necessity of filling vacancies in civil service positions);
[Small]{.underline} v. [City Manager of Saginaw]{.underline}, 197 N.W.2d
850 (Mich. Ct. App. 1972) (same). The Commission must then immediately,
and without discretion, certify the name of the person receiving the
highest scores. M.C.L. § 38.511(2). The Mayor then has the
responsibility to \"make the appointment from the names certified\....\"
[Id.]{.underline} The Mayor also bears responsibility under Act 78 for
making decisions involving reductions, layoffs, suspensions and
administering other discipline. [Id.]{.underline} §§ 38.513, 38.514.
Further, the Mayor retains the right, under the Act, to remove any
Commission member for cause. [Id.]{.underline} To state that the
Commission has hiring authority would directly conflict with the City\'s
Home Rule Charter, which explicitly states that \"all boards and
commissions are advisory.\" Defendant\'s Brief, Exhibit V at 9.

The Defendant has previously admitted that the City, and not the
Commission, is responsible for hiring and firing fire fighters. Rule
30(b)(6) deposition of the Defendant, dated November 29, 1995 (Exhibit
44) at 176/12-177/2.[^23] In addition, former Fire Chief Lamson also
stated that \"the mayor decides if someone is going to be hired or
not.\" Lamson Dep. (Exhibit 43) at 26/1-10; 97/19-98/3.

The cases cited by the Defendant for support for the argument that the
Commission has \"exclusive\" control over personnel decisions actually
support Plaintiff\'s contention that it is the City, and not the
Commission, that has such responsibility. For example, in
[Konyha]{.underline} v. [Mount Clemens Civil Serv. Comm\'n]{.underline},
224 N.W.2d 833 (Mich. 1975), the court reviewed a discharge approved by
the appointing authority, the fire chief. The court reversed the
discharge, finding [inter]{.underline} [alia]{.underline}, that the
[appointing authority]{.underline} considered improper evidence and
meted out too severe a punishment. [Id.]{.underline}; [see]{.underline}
[also]{.underline} [Righter]{.underline} v. [Civil Serv. Comm\'n of
Adrian]{.underline}, 136 N.W.2d 718 (Mich. Ct. App. 1965) (city
administrator, and not commission, is both statutorily and practically
the proper party to decide whether to discharge employees); [Beer v.
City of Fraser Civil Serv. Comm\'n]{.underline}, 338 N.W.2d 197, 243
(Mich. Ct. App. 1983) (city is not bound by the decisions of its civil
service commission). Neither [Konyha]{.underline}, [Righter]{.underline}
nor [Beer]{.underline} support the proposition that civil service
commissions have broad powers rendering them independent of their cities
or giving them ultimate authority over every indicia of employment.

Factually, it is not disputed that, regardless of the provisions of Act
78, the City of Pontiac retains ultimate authority over virtually all
personnel issues affecting fire fighters. [See]{.underline} Plaintiff\'s
Brief at 7-8, Facts ¶¶ 18-21. Although Defendant asserts that the
Commission establishes the \"criteria and material for each of \[the
entry-level employment\] examinations,\" Defendant\'s Brief at 2, the
deposition pages cited by Defendant do not support this proposition, and
undisputed facts actually show that the minimum qualifications for fire
fighter, as well as what written, physical and oral examinations will be
administered are determined by the City, the City\'s Fire Department and
the City\'s Fire Fighters Union, Local #376. Plaintiff\'s Brief, Exhibit
26 at 28/5-31/2.

Defendant has misconstrued caselaw, misrepresented the provisions of Act
78, and ignored dispositive, uncontested facts in its attempt to escape
liability. A proper interpretation of Act 78 and its judicial
interpretations reveals that the City, and not the Commission, bears
legal responsibility for the decision at issue.

> 3\. [Even if the Commission Is a Separate Legal Entity, the City Is
> Liable for the Discrimination]{.underline}

Even if the City shares some of its decision-making authority with its
Commission (e.g., the responsibility to certify eligibles from the
hiring list), the City cannot escape liability for its discriminatory
conduct. The City is the employer of fire fighters, having
responsibility for all customary personnel matters. [See]{.underline}
Plaintiff\'s Brief at 26-28. Consequently, Defendant cannot escape
liability by arguing that the City is not the proper covered entity or
employer.[^24]

However, even if the Court finds that the Commission shares some
employment responsibilities, the City cannot escape liability under the
ADA. As the Defendant correctly notes, liability under employment
discrimination statutes extends not merely to the strictly defined
\"employer,\" but also to any party who plays a significant role in the
employment process:

> \[T\]he term \'employer,\' as it is used in Title VII, is sufficiently
> broad to encompass any party who significantly affects access of any
> individual to employment opportunities, regardless of whether that
> party may technically be described as an \'employer\' of an aggrieved
> individual as that term has generally been defined at common law.

[Vanguard Justice Soc\'y, Inc.]{.underline} v. [Hughes]{.underline}, 471
F. Supp. 670, 696 (D. Md. 1979).[^25] Though Defendant cited
[Vanguard]{.underline}, it failed to point out that in
[Vanguard]{.underline}, the court found that one of the defendants was a
proper party defendant because that defendant exercised authority in two
areas: testing of entry-level applicants and budget control.
[Id.]{.underline} Defendant has admitted that the Pontiac Personnel
Department and Fire Department are responsible for testing entry-level
applicants, and further has admitted that the Mayor and City Council
establish fire department budgets. [See]{.underline} Plaintiff\'s Brief
at 7-8, Facts ¶¶ 18-20 and Exhibit 23 at 15/18-25, 16/1-3.

A careful reading of the cases cited by Defendant, as well as other
caselaw, warrants a finding that the City is a proper party defendant.
[See]{.underline} [Sibley Memorial Hosp.]{.underline} v.
[Wilson]{.underline}, 488 F.2d 1338, 1341 (D.C. Cir. 1973) (defining
\"employer\" broadly and stating: \"To permit a covered employer to
exploit circumstances peculiarly affording it the capability of
discriminatorily interfering with an individual\'s employment
opportunities . . . would be to condone continued use of the very
criteria for employment that Congress has prohibited.\"); [United
States]{.underline} v. [State of Illinois]{.underline}, No. 93-C-7741,
1994 WL 562180 (N.D. Ill. Sept. 12, 1994) (both the State and the Police
Pension Fund were proper party defendants, in part because both
\"significantly affected\" employment benefits). The Supreme Court has
emphasized that employers cannot avoid Title VII responsibilities by
\"delegating discriminatory programs to corporate shells.\" [City of Los
Angeles Dept. of Water & Power]{.underline} v. [Manhart]{.underline},
435 U.S. 702, 718 n.33 (1978). The Sixth Circuit has held explicitly
that \"\[a\]n employer, therefore, may not avoid Title VII liability by
delegating its discriminatory programs to third parties.\"
[Terbovitz]{.underline} v. [Fiscal Court of Adair County]{.underline},
825 F.2d 111, 116 (6th Cir. 1987) (citing [Manhart]{.underline});
[see]{.underline} [also]{.underline} [E.E.O.C.]{.underline} v. [Wooster
Brush Co. Employees Relief Ass\'n]{.underline}, 727 F.2d 566 (6th Cir.
1984).

The City of Pontiac simply cannot escape ADA liability by shifting some
decision-making authority to its Civil Service Commission. Not only is
this a tenet of Title VII caselaw, the ADA expressly codified this
mandate by prohibiting discrimination committed by \"utilizing . . .
methods of administration\" that \"have the effect of discrimination on
the basis of disability\" or \"that perpetuate the discrimination of
others who are subject to common administrative control.\" 42 U.S.C. §
12112(b)(3)(A) and (B). Defendant does not address this specific
statutory language and implicitly admits that it has established a
method of administration that it believes escapes ADA liability.
[See]{.underline} [supra]{.underline} at 15 n.21.[^26]

II. [CONCLUSION]{.underline}

For the foregoing reasons, Plaintiff urges this Court to deny
Defendant\'s motion for summary judgment and to grant Plaintiff\'s
motion for summary judgment.

> Respectfully submitted,
>
> DEVAL L. PATRICK
>
> Assistant Attorney General
>
> Civil Rights Division
>
> \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
>
> JOHN L. WODATCH
>
> L. IRENE BOWEN
>
> ALLISON NICHOL
>
> EDWARD MILLER
>
> BEBE NOVICH
>
> Attorneys
>
> Disability Rights Section
>
> Civil Rights Division
>
> U. S. Department of Justice
>
> P.O. Box 66738
>
> Washington, D.C. 20035-6738
>
> \(202\) 514-34227

[^1]: ^?^In direct contradiction to undisputed factual evidence,
    Defendant mistakenly describes Henderson as a \"volunteer\" fire
    fighter when, in fact, he works as a paid on-call fire fighter for
    the City of Wixom. Henderson Dep. (Exhibit 41) at 143.

[^2]: ^?^[DiPompo v. West Point Military Academy]{.underline}, 770 F.
    Supp. 887 (S.D.N.Y. 1991), cited by Defendant, does not hold that
    past experience is irrelevant. Quite the contrary, the
    [DiPompo]{.underline} Court carefully considered DiPompo\'s prior
    experience as a volunteer fire fighter in considering whether he was
    qualified for a career fire fighter position. The Court ruled
    against DiPompo (a fire fighter with dyslexia), because he, unlike
    Henderson, carried out far less difficult tasks as a volunteer that
    implicated his disability than he would have if employed by the
    defendant. [Id.]{.underline} at 893. The Court also found that
    DiPompo, unlike Henderson, had required accommodations for his
    disability as a volunteer and that such accommodations would pose an
    undue hardship on the defendant. [Id.]{.underline} at 893-94.

[^3]: ^?^[Chandler]{.underline}, cited by Defendant, is inapplicable to
    the instant case. The [Chandler]{.underline} court based its
    upholding of defendant\'s exclusion of plaintiff (a person with
    insulin-dependent diabetes) on prior case law concerning that
    specific exclusion. [Id.]{.underline} at 1395.
    [Chandler]{.underline} has been found unpersuasive because the
    regulations on which the exclusion was based have subsequently been
    amended to allow for a waiver rather than an absolute ban.
    [See]{.underline} [Sarsycki]{.underline}, 862 F. Supp. at 341.

[^4]: ^?^Although Defendant cites general NFPA procedures, it fails to
    prove that any of those procedures were followed in the adoption of
    the binocular vision requirement at issue. Defendant also fails to
    cite a single adoption of that vision requirement as legislation or
    regulation at any government level, or any reference to that
    requirement by any federal agency.

[^5]: ^?^Exhibit 47 at 47-48; Conners Dep. (Exhibit 51) at 42-43.

[^6]: ^?^Contrary to Defendant\'s assertions, Dr. Fedoruk distributed
    only a portion of one study, the Montgomery County study, to the
    committee, and that portion contained nothing relevant to the
    committee\'s discussion of monocular vision. [See]{.underline}
    portion of [Montgomery County Study]{.underline} (Exhibit 52). The
    purpose of this study was to assess visual acuity needs and contact
    lens use among fire fighters. Carmean Dep. (Exhibit 53) at 62-63 It
    contained no research at all from individuals with monocular vision.
    [Id.]{.underline} Even Defendant\'s expert Dr. Sheedy conceded the
    inappropriateness of basing conclusions about fire fighting with
    monocular vision on the Montgomery County study. [See]{.underline}
    [infra]{.underline} page 12.

[^7]: ^?^As Defendant states, Dr. James Melius, a member of the NFPA
    1582 Committee who voted in favor of the vision standards in NFPA
    1582, has, since that vote, revisited and researched the issue of
    monocularity and fire fighting. Dr. Melius now believes that
    monocular vision should not be grounds for automatically excluding
    fire fighters, and has agreed to serve as an expert for Plaintiff.
    [See]{.underline} [generally]{.underline} Exhibit 54. He testified
    that he believes the NFPA 1582 Committee was not careful enough and
    had insufficient data and expertise to render its opinion. Melius
    Dep. (Exhibit 45) at 130, 165. In addition, Plaintiff disputes
    Defendant\'s unsupported assertion that monocularity was the only
    condition unanimously agreed upon to be an automatic
    disqualification. There is no evidence to support this point.
    Defendant\'s Brief at 28.

[^8]: ^?^Stereopsis is simply \"binocular\" depth perception \-- that
    is, seeing depth with two eyes. Sheedy Dep. (Exhibit 57) at 218-19,
    226-28, 230-31. Defendant misrepresents the conclusions of its own
    vision expert with regards to stereopsis and depth perception. While
    Dr. Sheedy did testify that monocular individuals do not have
    \"stereopsis,\" Dr. Sheedy nonetheless admitted that \"monocular
    people have depth perception.\" [Id.]{.underline} at 131. Dr. Sheedy
    emphasized that stereopsis is [not]{.underline} depth perception,
    but rather it is merely one form of depth perception, and that there
    are other forms of depth perception based on monocular cues that
    both monocular and binocular people have. [Id.]{.underline} at 219,
    227.

[^9]: ^?^See Declaration of Frank J. Landy, Ph.D. (Exhibit 55);
    Plaintiff\'s Brief, Exhibit 3 for background on Dr. Landy\'s
    expertise.

[^10]: ^?^Although Mr. Carmean claimed that a person with monocular
    vision would be unable to spot a victim on the upper floor of a
    building, Defendant\'s Brief at 9-10, Dr. Fedoruk testified that
    monocular vision would not affect this task. Exhibit 49 at 126-27.

[^11]: ^?^In addition, wearing a Self Contained Breathing Apparatus
    (SCBA) obscures peripheral vision. Thus, all fire fighters, even
    those with binocular vision, have limited peripheral vision when
    performing some of the most dangerous fire fighting tasks. Exhibit
    55 ¶ 7.

[^12]: ^?^Defendant misrepresents the conclusions of an American Medical
    Association report titled [Medical Conditions Affecting
    Drivers]{.underline}. Defendant\'s Brief at 9. Contrary to
    Defendant\'s contention, the report does not conclude that monocular
    vision was even a factor, let alone a significant factor, in
    increased car accidents. Defendant enclosed only two pages of the
    report, omitting reference notes citing to the underlying studies
    and data. As Defendant\'s own expert, Dr. Sheedy, has admitted, none
    of the data underlying the driving studies show a causal connection
    between monocular vision and unsafe driving, let alone car
    accidents. Exhibit 57 at 175-76.

[^13]: ^?^Defendant chooses to focus its risk analysis on the
    possibility that a fire fighter will remove its SCBA, and that
    totally incapacitating debris will during those times fly into a
    monocular fire fighter\'s one functioning eye. Dr. Landy, who has
    studied the experiences of fire fighters for 27 years, testified
    that the risk of this danger is so remote as to be implausible.
    Exhibit 55. Defendant\'s witnesses cited no evidence of
    incapacitation regarding persons with monocular vision, nor did they
    know whether persons with monocular vision might take more care to
    protect their eyes than persons with binocular vision. Exhibit 48 at
    85-87, 90-91, 102-03. Further, the only evidence of SCBA failure and
    incapacitation offered by Defendant did not involve eye injuries.
    Defendant\'s Brief, Exhibit 5, at 54-55.

[^14]: ^?^Defendant\'s, and the NFPA committee\'s, reliance on the
    Montgomery County study on this point is misplaced. The study
    considered no evidence regarding individuals with monocular vision,
    [see]{.underline} [supra]{.underline} at 8 n.7, and Defendant fails
    to mention that the study showed a far lower rate of debris problems
    for fire fighters who wore eye protection, including glasses.
    Defendant\'s Brief, Exhibit R at 51. Henderson routinely wears
    safety glasses. Henderson Dep. (Exhibit 41) at 75, 313.

[^15]: ^?^It is also of note that none of Defendant\'s witnesses have
    ever met, interviewed, examined or tested the performance of Dennis
    Henderson.

[^16]: ^?^[See]{.underline} Defendant\'s Supplemental Answers to
    Plaintiff\'s Second Request to Produce Documents and Second Set of
    Interrogatories (Exhibit 62) at 3, No. 17.

[^17]: ^?^Even Defendant\'s own expert witnesses believe that employing
    incumbents with NFPA 1582 Category A conditions (automatically
    excluded conditions) poses the same risk as hiring applicants with
    those conditions. Exhibit 51 at 75/22-25; Exhibit 49 at 74; Exhibit
    53 at 180-82.

[^18]: ^?^Defendant applied the NFPA 1001 standards despite the fact
    that, as it admits, NFPA 1001 was suspended in 1989, prior to
    Henderson\'s application. Defendant\'s Brief at 5 n.11. The NFPA had
    suspended the standard because it recognized that NFPA 1001 was
    outdated and perhaps violative of employment laws. [See]{.underline}
    Tentative Interim Amendment, NFPA 1001 (Exhibit 46) at 1. The
    Amendment suspending NFPA 1001 stated that the standard was
    withdrawn because the \"inherent variability in the severity of
    certain diseases or medical conditions [will require a case by case
    determination of the ability of the candidate to perform the
    functions of the job.]{.underline} An arbitrary determination of
    ineligibility based solely on certain medical conditions may not be
    justified.\" [Id.]{.underline} (emphasis added).

[^19]: ^?^While both NFPA 1001 and NFPA 1582 state that absence of an
    eye should be cause for rejection, the two standards contain
    significantly different visual guidelines, including different
    visual acuity and peripheral vision standards.

[^20]: ^?^Defendant also falsely claims or implies that some of it\'s
    witnesses testified before or were affiliated with the NFPA 1582
    committee. Neither James Sheedy, whom Defendant mischaracterizes as
    having presented information to the NFPA 1582 committee, nor Gene
    Carmean, whose testimony Defendant quotes from extensively, nor his
    company Med-Tox, testified before or had any affiliation with the
    NFPA or the NFPA committees that developed the NFPA 1001 or NFPA
    1582 standards. Exhibit 53 at 58-62, 68, 70; Defendant\'s Brief,
    Exhibit H at 2-3; Exhibit M.

[^21]: ^?^The Defendant actually argues that the ADA, and by extension
    other civil rights statutes, does not apply to the City of Pontiac
    or other public employers in Michigan who create civil service
    commissions. Defendant asserts that \"\[i\]n Michigan, the only
    entity which can be liable for ADA discrimination against a Pontiac
    firefighter applicant is the Pontiac Fire Civil Service
    Commission\....\" Defendant\'s Brief at 29. At the same time,
    Defendant asserts that the Commission cannot be held liable as a
    covered entity under the ADA. [Id.]{.underline} at 36 n.37. Thus, if
    the Court were to adopt Defendant\'s interpretation of Act 78, any
    Michigan public employer who creates a civil service commission
    would be shielded from liability for violations of the ADA, Title
    VII or any other federal civil rights statute, leaving individuals
    who have been discriminated against with no remedy. This argument
    would eviscerate enforcement of civil rights employment statutes,
    and should be rejected.

[^22]: ^?^Plaintiff challenges more of Defendant\'s incorrect factual
    assertions. Without citation to anything in the record, Defendant
    states that the Commission \"informed Henderson that he could not
    longer be considered for employment,\" Defendant\'s Brief at 3, when
    in fact the City\'s Personnel Director, on City letterhead, informed
    Henderson in writing that he was rejected for the position.
    [See]{.underline} Plaintiff\'s Brief, Exhibit 20. Defendant also
    inaccurately states that the \"Commission held several hearings
    spanning October - December, 1992,\" regarding this issue, when the
    facts show that Henderson was \"heard\" by the Commission only once
    and the matter was discussed at only two Commission meetings during
    this time. Defendant\'s Brief, Exhibit V. Plaintiff also disputes
    that the Commission accorded \"careful consideration\" to this
    matter, as Defendant claims. [See]{.underline} Plaintiff\'s Brief at
    5, Facts ¶¶ 13-14. Finally, Defendant previously admitted that
    Henderson\'s applied for the job prior to October 9, 1991, not in
    April of 1991, as Defendant misstates in its Brief.
    [See]{.underline} Plaintiff\'s Brief at 2, Facts ¶ 5.

[^23]: ^?^In addition, Defendant admitted that \"[the City of
    Pontiac]{.underline}\" hired Anthony Collier as an entry-level fire
    fighter instead of Henderson. Plaintiff\'s Brief, Exhibit 5 Nos. 57
    & 58 (emphasis added).

[^24]: ^?^It cannot reasonably be disputed that the City is a covered
    entity and employer as defined by the ADA. [See]{.underline} 42
    U.S.C. §§ 12111(2), 12111(5)(A), 2000e(a). It is also apparent that
    the City made the discriminatory employment discrimination.
    [See]{.underline} [supra]{.underline} at 15.

[^25]: ^?^Here of course, it is not disputed that Pontiac
    [is]{.underline} the actual employer of fire fighters; as such, it
    obviously \"significantly affects access\" of individuals to
    employment opportunities in the Pontiac Fire Department.
    [See]{.underline} Plaintiff\'s Brief at 26-28.

[^26]: ^?^Finally, even if the Court concludes that the Commission is a
    separate party that exercised complete responsibility for employment
    issues in the Pontiac Fire Department, the City is nonetheless
    liable because the Commission is an agent of the City. First,
    Defendant has admitted that the Commission is an agent. Plaintiff\'s
    Brief, Exhibit 31 at 9. Substantively, by delegating employment
    authority to the Commission through adoption of Act 78, the City has
    created an agency relationship, and the City is therefore liable for
    the discrimination of its agent. [Terbovitz]{.underline} v. [Fiscal
    Court of Adair County]{.underline}, 825 F.2d 111, 116-117 (6th Cir.
    1987).