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Alexander v. State Univ. of New York At Buffalo

United States District Court, W.D. New York

February 27, 2013


For Plaintiff: Arthur H. Ackerhalt, Esq., Bruce A. Goldstein, Esq., Goldstein, Ackerhalt & Pletcher, LLP, Buffalo, NY; Jonathan Feldman, Esq., Rochester, NY.

For Defendant: J. Richard Benitez, A.A.G., New York State Attorney General's Office, Rochester, NY.

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CHARLES J. SIRAGUSA, United States District Judge.


Plaintiff is a former student at the State University of New York at Buffalo (" Defendant" ) who asserts she has a hearing impairment and who withdrew from the university. She alleges that Defendant failed to provide her with reasonable accommodations, and that such failure constituted a violation of the Americans with Disabilities Act (" ADA" ). The matter is now before the Court on Defendant's motion for summary judgment. For the reasons stated below, Defendant's application, ECF No. 18, is denied.


Unless otherwise noted, the following are the undisputed facts of this case taken

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from the parties' statements[1] pursuant to W.D.N.Y. Loc. R. Civ. P. 56, viewed in the light most-favorable to Plaintiff. Plaintiff contends[2] that she has a severe hearing impairment and has worn bilateral hearing aids since she was four years old. She relies on oral communication instead of sign language and is an excellent lip reader.

In December 2008, Plaintiff was accepted into Defendant's School of Nursing. In June 2009, Plaintiff's mother sent an email to the Office of Disability Services (" ODS" ) informing that office that Plaintiff's " primary concerns are a note taker, preferential seating and an FM system for lectures and assistance with exams." Expert Witness Report for Richard Benitez regarding complaint entitled Sara K. Alexander vs. State University of New York, Findings and Impressions ¶ 1, Sept. 19, 2012. ECF No. 18-2. While in high school, Plaintiff was given the accommodations she requested of Defendant and had so informed Defendant through her admissions essay.

On July 10, 2009, Plaintiff and her mother met with Randall Borst (" Borst" ), Defendant's Director of Disability Services, and they discussed accommodations for Plaintiff. ODS provided Plaintiff with two memoranda to present to faculty. ODS also approved the following accommodations for Plaintiff: (1) extended time on tests and use of alternate test location; (2) preferential seating; (3) FM Loop; and (4) Note-takers.

At the meeting with Borst, Plaintiff was informed that Defendant had an FM system, but, as later discovered, that the system did not function. Subsequently, Borst offered to provide Plaintiff with an accommodation called " C-Print." Borst described C-Print as a system that required an operator to type every word spoken in class, and he assured Plaintiff the C-Print system would be provided to her regardless of the cost. Later, Plaintiff learned that what Borst described as C-Print was, in actuality, a service called " CART." [3] CART involves a reporter creating a verbatim transcript of what is being said in class in real time. She also learned that C-Print was a similar process, but involved a reporter paraphrasing everything being said in class in real time.

In any event, Plaintiff's mother sent an email summarizing what Borst had offered (verbatim, real time transcript) and she suggested that ODS contact the New York State Department of Education, Office of Vocational and Educational Services for Individuals with Disabilities (" VESID" ) to inquire whether the cost could be shared. In the email, Plaintiff's mother also specified the type of FM system Plaintiff needed--one that would work well with her hearing aids. As to CART, there is a dispute as to whether Plaintiff declined the service.

On July 21, 2009, Plaintiff's mother sent ODS a letter from Plaintiff's high school audiologist regarding her need for an FM system. On August 6, 2009, Plaintiff's mother inquired of ODS whether the FM system had been ordered and the status of note taking services. On August 7, 2009, Borst sent an email to Plaintiff's mother stating that Defendant was working with Deaf Adult Services to find a C-Print specialist.[4]

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Plaintiff's mother followed up with another email to ODS. On August 24, 2009, Borst sent an email to Amy Daniels (" Daniels" ) of ODS stating that there were no C-Print typists in the area, but that they were used a lot in Rochester.[5] Plaintiff points out that the email from Borst to Daniels did not indicate that Borst had decided not to pursue locating a C-Print stenographer, and did not disclose that C-Print could be provided remotely with the stenographer not in the classroom.

On August 19, 2009, Plaintiff's mother sent an email to Daniels to determine whether the FM system had been ordered, and on August 20, Daniels confirmed that it had. On August 30, 2009, though, Defendant informed Daniels that the FM system was back ordered. Plaintiff was told she should sit closer to her professors. Classes began the next day, August 31. It should be noted that Plaintiff claims that Borst has provided FM systems to other hearing impaired students.

After classes began, Plaintiff and her mother complained two or three times a week to Defendant that the agreed upon accommodations were not being provided. In fact, the promised FM system did not arrive until three weeks after classes started. Plaintiff argues that as a result, she received a bad grade in her first test in Anatomy. Plaintiff also contends that she needed the FM system in her psychology class as well, where there was no note taker and the professor had a heavy accent.

Plaintiff states that she passed out the memoranda ODS gave her and the professors in her classes solicited volunteer peer note takers for her. However, Plaintiff contends that peer note takers, unlike professionally trained note takers, often take notes to trigger their own memories of what was being said in class and that this did not help Plaintiff, since " she never heard what was being said to begin with." Pl.'s Rule 56 Statement of Facts ¶ 76. Unlike her other classes, the peer note taker in her nursing class were helpful because the note taker knew that she needed to take down what was being said. Plaintiff states she received a grade of A in her nursing class, which was the smallest of her classes having approximately 125 students. Plaintiff's other classes were larger, with her largest class consisting of approximately 400 students.

Plaintiff also states that her needed accommodation of sitting in the front of the class was not honored. Professors sometime arrived to class late and would begin instruction without asking students to leave a seat open in front for Plaintiff. Plaintiff's professor in World Civilization told her that if she wanted a seat closer to the front, she needed to arrive earlier, but Plaintiff claims this was not always feasible. Because of poor grades, Plaintiff's Anatomy professor encouraged her to withdraw from the class, which she did. She eventually withdrew from all but her nursing class (in which as indicated she received a grade of A), and withdrew altogether from the university in December 2009 because of Defendant's lack of accommodations.

Plaintiff enrolled in Monroe Community College (" MCC" ) in January 2010 and graduated with a Liberal Arts in Science degree in December 2011. MCC provided Plaintiff with an FM system, a separate location for testing, preferential seating, a note taker and extended time to take tests. As a result, she asserts she received good grades. In January 2012, Plaintiff enrolled

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in St. John Fisher's School of Nursing (" Fisher" ) and states that Fisher is also providing needed accommodations to her.

Plaintiff's complaint sets out two claims for relief: (1) Defendant's conduct in failing to provide Plaintiff with reasonable accommodations constitutes discrimination on the basis of disability in violation of Title II of the ADA and its implementing regulations; and (2) Defendant's failure to provide Plaintiff with reasonable accommodations due to her hearing impairment constitutes discrimination on the basis of disability in violation of 29 U.S.C. § 794 (section 504) and its implementing regulations.


Rule 56

Summary judgment may not be granted unless " the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). A party seeking summary judgment bears the burden of establishing that no genuine issue of material fact exists. See, Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). " [T]he movant must make a prima facie showing that the standard for obtaining summary judgment has been satisfied." 11 Moore's Federal Practice, § 56.11[1][a] (Matthew Bender 3d ed.). " In moving for summary judgment against a party who will bear the ultimate burden of proof at trial, the movant may satisfy this burden by pointing to an absence of evidence to support an essential element of the nonmoving party's claim." Gummo v. Village of Depew, 75 F.3d 98, 107 (2d Cir. 1996)( citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)), cert denied, 517 U.S. 1190, 116 S.Ct. 1678, 134 L.Ed.2d 780 (1996). Once that burden has been established, the burden shifts to the non-moving party to demonstrate " specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). To carry this burden, the non-moving party must present evidence sufficient to support a jury verdict in its favor. Anderson, ...

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