United States District Court, S.D. New York
July 1, 2005.
MARSHA FALCHENBERG, Plaintiff,
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
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.
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 him to relief.'" Ricciuti v. New York City Transit
Auth., 941 F.2d 119, 123 (2d Cir. 1991) (quoting Conley v.
Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957));
accord Eternity Global Master Fund, 375 F.3d at 176-77.
The Complaint Against The City Is Dismissed
The City has cited the basis for its assertion that the City
and DOE are separate and distinct entities. See N.Y.S. Edu. Law
§ 2251; Kelly v. Bd. of Ed., 141 N.Y.S.2d 34 (N.Y. Sup. Ct.
1955) (See Mun. Def. Mem., at 3-4).
While factual allegations must be construed in a light most
favorable to the Plaintiff, the issue of whether or not DOE is a
department of the City is a legal issue. In the absence of any
allegations demonstrating participation by the City, the
complaint fails to state a cause of action against it. The Complaint Against The DOE Is Dismissed
DOE has relied upon N.Y. Education Law § 3009 and N.Y. Edu. Law
§ 3001 (Mun. Def. Mem., at 4), as well as 8 NYCRR § 7.3, which
states in relevant part:
A teacher shall possess or be entitled to a
certificate of qualification, or shall possess or be
entitled to a provisional certificate, or shall
possess a regional credential before the teacher
enters into a contract to teach; and before beginning
service the teacher shall present the certificate or
credential for recording to the city, village or
district superintendent in whose jurisdiction he or
she is to teach.
The Plaintiff's interpretation of the regulation would require
that a person who claims that she needs an accommodation can
remain employed until that person takes the test, but the
regulation does not so provide.
The regulation is promulgated by the State Education
Department, and the Plaintiff has offered no support for her
implicit contention that the City Defendants are accountable for
the contents of the regulation. See N.Y. Edu. Law § 3004(1);
see also 8 NYCRR § 7.3 ("No trustee or board of education
shall contract with a teacher not legally qualified."). As stated
by the City Defendants, there was no alternative but to enforce
the regulation. (Mun. Def. Mem., at 4-5). Plaintiff Is Not A Qualified Individual Within The Meaning Of
The Disability Laws
While the Plaintiff is correct that "[t]he federal, state and
local laws impose an obligation on employers to provide qualified
individuals with reasonable accommodations," (Pl. Mem. at 6), the
Plaintiff under these circumstances is not a qualified
individual. See 42 U.S.C. § 12111(8) (ADA protects only
qualified individuals, and requires that consideration be given
to the employer's standard of essential requirements of the job);
Shannon v. New York City Transit Authority, 332 F.3d 95, 103
(2d Cir. 2003) (noting that similar requirements are imposed
under federal, state, and city law). Plaintiff is not a qualified
individual because she did not take the examination, which the
State has set as a necessary prerequisite to qualification for a
teaching certification. Notably, the examination itself, when
challenged in a separate case, was held to be a valid job-related
requirement. See Gulino v. Board of Education, "Findings of
Fact and Conclusions of Law," No. 96 CV 8414, at ¶¶ 163-64 (CBM)
(Sept. 4, 2003 S.D.N.Y.).
Falchenberg's challenge is restricted to whether she can be
considered qualified if she refuses to take a state-mandated
certification examination, the legitimacy of which has already
been upheld. The Second Circuit, in affirming a grant of summary
judgment by this Court, recently rejected a similar challenge by
another plaintiff. See Shannon, 332 F.3d at 102-04. In
Shannon, the Second Circuit affirmed the summary judgment
decision and noted that state and federal regulations defining qualifications barred
plaintiff's federal, state and local disability law claims
against a city agency. Id.
Even more significantly, the complaint against the City
Defendants must be dismissed because Plaintiff does not allege
that she requested a reasonable accommodation from the City
Defendants which was refused. The grant of accommodation, when
given, comes from NES and NYSDE, two entities over which DOE has
no control. It is settled that an "employee cannot hold an
employer liable for failing to provide an accommodation that the
employee has not requested in the first place." Thorner-Green v.
New York City Dept. of Correction, 207 F. Supp. 2d 11, 14-15
(E.D.N.Y. 2002) (citation omitted).
Plaintiff has relied on the pretrial decision in Gulino v. Bd.
of Educ., 236 F. Supp. 2d 314 (S.D.N.Y. 2002), correctly
contending that the certification examination was held to be
subject to Title VII in Gulino.*fn1 However, the
certification examination is not at issue in this case. There is
no allegation that the certification test itself is
discriminatory, and there is no indication that the City Defendants had anything to do with
any of Plaintiff's accommodation requests.
The Plaintiff cannot show that she is a qualified individual
under the disability acts, and does not state a claim against the
Failure To File A Notice Of Claim Bars The Action
Plaintiff failed to demonstrate that a notice of claim was
filed with the DOE, as required by N.Y. Educ. Law §
3813.*fn2 Furthermore, Plaintiff's attempts to avoid the
notice of claim requirements are unavailing.
In her opposition papers, Plaintiff has referred to a letter
that her attorney wrote to Lawrence Becker, an attorney in the
Human Resources Department at DOE, and has cited Mennella v.
Uniondale Union Free Sch. Dist., 287 A.D. 2d 636,
732 N.Y.S.2d 40 (2d Dept. 2001), where the court held that plaintiff's
petition to the Commissioner of Education, six days after
termination, satisfied the notice of claim requirement. Id. at
638. However, a letter to an attorney in the Human Resources
Department is not the equivalent of a petition to the Chancellor,
who is comparable to the commissioner in Mennella.
Additionally, the Mennella court held that plaintiff's petition constituted an effective
constructive notice of claim, where the agency's response
indicated its awareness of the nature of plaintiff's
discrimination claims. Id. The letter on which Plaintiff relies
does not put DOE on notice of a potential lawsuit against DOE and
states, "I believe that [SED official] Dr. Mackey's solution
could work, and litigation with the NYSDE and NES could be
avoided, if efforts are made to retain Ms. Falchenberg as an
employee of [DOE]."
In support of the contention that she is exempt from the notice
of claim requirement, the Plaintiff cites Simpson v. New York
City Transit Authority, 188 A.D.2d 522, 591 N.Y.S.2d 350 (2d
Dept. 1992) ("Simpson I"). However, the Second Department sua
sponte revised itself on this very issue. Simpson v. New York
City Transit Authority, 1993 N.Y. App. Div. LEXIS 7398 (1993)
("Simpson II"). In the Simpson I decision, the Second
Department stated that "the plaintiff was not required to serve a
notice of claim. Employment discrimination claims brought
pursuant to Executive Law § 296 are not subject to notice of
claim provisions." 591 N.Y.S.2d 52. In Simpson II, the Second
Department stated as follows:
ORDERED that on the court's own motion, the decision
and order of this court dated December 14, 1992
[Simpson I], in the above-entitled case, is amended
by deleting the last paragraph thereof and
"Furthermore, the court was authorized to grant the
plaintiff leave to file a late notice of claim (see,
General Municipal Law § 50-e; Mills v. County of
Monroe, 59 N.Y.2d 307, 312, 464 N.Y.S.2d 709)." Simpson II. Thus, the court removed the portion of its decision
that the Plaintiff has relied upon.
The Plaintiff also has cited Dworkin v. City of New York,
1996 U.S. Dist. LEXIS 17214 (S.D.N.Y. 1996), where the court
addressed the question of whether employment discrimination is a
tort, and therefore subject to the notice of claim requirement of
N.Y.Gen. Mun. Law § 50(a), and concluded that it was not.
However, the City was the defendant in Dworkin and not DOE.
Furthermore, New York General Municipal Law § 50(a)(1) does not
apply to the present action. The applicable statute in this
action is N.Y.Educ. Law § 3813, which reads:
No action or special proceeding, for any cause
whatever, except as hereinafter provided, relating to
district property or property of schools provided for
in article eighty-five of this chapter or chapter ten
hundred sixty of the laws of nineteen hundred
seventy-four or claim against the district or any
such school, or involving the rights or interests of
any district or any such school shall be prosecuted
or maintained . . . unless it shall appear by and as
an allegation in the complaint or necessary moving
papers that a written verified claim upon which such
action or special proceeding is founded was presented
to the governing body of said district or school
within three months after the accrual of such claim.
N.Y.Educ. Law § 3813(1).
There is no question as to whether employment discrimination is
included within the umbrella of § 3813. The axiom was set forth in Biggers v. Brookhaven-Comsewogue Union Free School
District, 127 F. Supp. 2d 452 (S.D.N.Y. 2001), which stated:
The New York Court of Appeals has interpreted the
statute as follows: "The Legislature has spoken
unequivocally that no action or proceeding may be
prosecuted or maintained against any school district
or board of education unless a notice of claim has
been `presented to the governing body,' and this
court may not disregard its pronouncement."
Id. at 454-55 (quoting Parochial Bus Sys., Inc. v. Board of
Educ., 60 N.Y.2d 539, 549 (1983)). This holding has been adopted
by the Southern District courts. See e.g., Bloom v. New York
City Bd. of Educ., 2003 U.S. Dist. LEXIS 5290 (S.D.N.Y. 2003)
(quoting Biggers); Marrero v. City of New York, 2004 U.S.
Dist. LEXIS 3529 (S.D.N.Y. 2004); ("Failure to file a notice of
claim against a governmental subdivision for acts arising out of
the state civil rights laws is `fatal' unless the plaintiff is
vindicating a public interest."); Francis v. Elmsford Sch.
Dist., 2004 U.S. Dist. LEXIS 15325 (S.D.N.Y. 2004). As such, the
notice provision quite clearly applies to Plaintiff's action.
However, an exception does exist for actions that seek
vindication of a public interest. See Biggers; Kushner,
285 F. Supp. 2d 314 (E.D.N.Y. 2003). In contrast, the Plaintiff in
this case seeks, among declaratory and injunctive relief, money
damages for "back pay, reinstatement or front pay, compensatory
damages, damages for lost pension benefits, plaintiff's emotional
pain and suffering, punitive damages, nominal damages, and incidental
monetary relief." Complaint at 8. These are private interests.
See Biggers at 455 ("[plaintiff's] allegations of
discriminatory conduct on the part of the School District refer
only to conduct as it relates to her. She seeks relief on the
basis that she alone was denied a certain position on the basis
of her gender. In addition, she seeks money damages for her own
alleged emotional and financial suffering"); see also
Kushner at 316 ("[plaintiff] seeks to vindicate his own private
interest and to recover money damages for his own alleged
emotional and financial loss"). The injunctive relief that
Plaintiff requests, i.e., granting her requested accommodations
is by definition a private interest inuring solely to the benefit
of the Plaintiff.
The claims against DOE under State and City human rights laws
are dismissed for Plaintiff's admitted failure to file timely
notice of claim.
For the reasons set forth above, the complaint against the City
Defendants is dismissed pursuant to Rule 12(b), Fed.R.Civ.P.,
for failure to state a cause of action. The Plaintiff is granted leave to replead within twenty (20) days of the entry of
this opinion and order.
It is so ordered.