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FALCHENBERG v. NEW YORK CITY DEPARTMENT OF EDUCATION

July 1, 2005.

MARSHA FALCHENBERG, Plaintiff,
v.
NEW YORK CITY DEPARTMENT OF EDUCATION, CITY OF NEW YORK, NEW YORK STATE DEPARTMENT OF EDUCATION, STATE OF NEW YORK and NATIONAL EVALUATION SYSTEMS, INC., a/k/a NYSTE PROGRAM, Defendants.



The opinion of the court was delivered by: ROBERT SWEET, Senior District Judge

OPINION

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.

Prior Proceedings

  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 ("CHRL").

  The City Defendants' motion to dismiss was heard and marked fully submitted on February 16, 2005.

  The Complaint

  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.

  The Rule 12(b) Standard

  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 ...


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