The opinion of the court was delivered by: ROBERT SWEET, Senior District Judge
The defendants New York City Department of Education ("DOE"),
the City of New York (the "City") (collectively the "City
Defendants") have moved under Rule 12, Fed.R.Civ.P., to
dismiss the complaint of plaintiff Marsha Falchenberg
("Falchenberg" or the "Plaintiff") for failure to state a claim.
For the reasons set forth below, the motion is granted.
Falchenberg filed her complaint on September 24, 2004 alleging
that the defendants, including the DOE and the City,
discriminated against her in violation of the Americans with
Disabilities Act, 42 U.S.C. 12111 et seq. ("ADA"), the
Rehabilitation Act, 29 U.S.C. § 794a ("Rehab Act"), N.Y.S. Human
Rights Law § 296(1) ("SHRL"), and N.Y. Admin. Code § 8-107
The City Defendants' motion to dismiss was heard and marked
fully submitted on February 16, 2005.
The Plaintiff has alleged that she was hired by DOE as a public
school science teacher in September 2001, and satisfactorily
performed her duties. See Complaint at ¶ 9. During the course
of her employment with DOE, she was informed by DOE that she was
required to become certified as a teacher by passing a test
established by the New York State Department of Education
("NYSDE") and administered by National Evaluation Systems, Inc.
("NES"). See Complaint at ¶ 10. She was further informed that
if she failed to become certified, the DOE would be required by
State regulation to terminate her employment. Id. Plaintiff did
not take the certification test administered by NES, id. at ¶
17, did not obtain her certification, and was terminated by DOE
on September 2, 2003. Id. at ¶ 18.
The Plaintiff has alleged that "[t]he graveman [sic] of the
action is that the defendants refused to provide plaintiff with a
reasonable accommodation for plaintiff's disability,
dyslexia . . ." Id. at ¶ 1. Prior to the examination,
Falchenberg had requested specific accommodations, including a
reader and transcriber, which were granted by NES on October 1,
2003, but only under the condition that she also provide
spelling, punctuation, capitalization and paragraphing, id. ¶
19, which she found unsatisfactory. Id. at ¶¶ 12-14. Her
allegations of discrimination pertain to the failure to
accommodate her alleged disability so that she could successfully
take the certification test. Id. at ¶¶ 16-17. She had
not alleged in her complaint that she was wrongfully terminated,
but that she was terminated on September 2, 2003. Id. at
¶¶ 19-20. The complaint has alleged that NES administers the
certification exam, id. at ¶¶ 1, 10, and not DOE, id. at ¶¶
9-20. The complaint has acknowledged that NYSDE requires that any
person employed by DOE as a teacher, in the same position as
plaintiff, be certified, id. at ¶¶ 1, 10, and that NES is the
entity that arranged the Plaintiff's accommodation. Id. at ¶
19. The complaint has not alleged that DOE had any role in
determining what, if any, accommodation would be made for the
Plaintiff to take the exam. Id. at ¶¶ 9-20.
No allegations are contained concerning the City.
Although the Plaintiff has alleged that DOE's conduct
constituted disability discrimination in violation of the ADA, no
details are set forth as to the alleged conduct. Id. at ¶¶ 24,
29. Plaintiff has alleged without more that "defendants"
discriminated against Plaintiff in violation of the Rehab Act,
N.Y.S. Hum. Rights Law § 296(1) and N.Y.C. Admin. Code § 8-107.
Id. at ¶¶ 33, 35, 36.
Rule 12(b), Fed.R.Civ.P., provides that a defendant may move to
dismiss a complaint for "(1) lack of jurisdiction over the
subject matter, (2) lack of jurisdiction over the person, (3)
improper venue, (4) insufficiency of process, (5) insufficiency
of service of process, (6) failure to state a claim upon which
relief can be granted, [and] (7) failure to join a party under Rule 19."
Fed.R.Civ.P. 12(b). Although the government has not specified
which subsection of Rule 12 is being invoked in connection with
its motion to dismiss the complaint, the grounds raised in the
motion suggest that subsection (6) is the relevant provision.
In considering a motion to dismiss pursuant to Rule 12(b)(6),
the Court construes the complaint liberally, "accepting all
factual allegations in the complaint as true, and drawing all
reasonable inferences in the plaintiff's favor, Chambers v. Time
Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002) (citing Gregory
v. Daly, 243 F.3d 687, 691 (2d Cir. 2001)), although "mere
conclusions of law or unwarranted deductions" need not be
accepted. First Nationwide Bank v. Gelt Funding Corp.,
27 F.3d 763, 771 (2d Cir. 1994) (quotation marks and citation omitted).
"`[T]he issue is not whether a plaintiff will ultimately
prevail but whether the claimant is entitled to offer evidence to
support the claims."' York v. Ass'n of Bar of City of New York,
286 F.3d 122, 125 (2d Cir.) (quoting Scheuer v. Rhodes,
416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974)), cert.
denied, 537 U.S. 1089 (2002). In other words, "`the office of a
motion to dismiss is merely to assess the legal feasibility of
the complaint, not to assay the weight of the evidence which
might be offered in support thereof."' Eternity Global Master
Fund Ltd. v. Morgan Guar. Trust Co. of New York, 375 F.3d 168,
176 (2d Cir. 2004) (quoting Geisler v. Petrocelli, 616 F.2d 636, 639 (2d Cir.
1980)). "[T]he court should not dismiss the complaint for failure
to state a claim `unless it appears beyond doubt that the
plaintiff can prove no set of facts in support of his claim which
would entitle ...