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Falchenberg v. New York State Dep't of Educ.

Falchenberg v. New York State Dep't of Educ.

United States District Court for the Southern District of New York

July 09, 2008, Decided; July 10, 2008, Filed

04 Civ. 7598

Opinion

 [*158]  AMENDED OPINION

I. INTRODUCTION

Defendant National Evaluation Systems, Inc., a business of NCS Pearson, Inc. ("NES"), the State of New York (the "State") and New York State Education Department ("SED") (s/h/a New York State Department of Education) (State of New York and SED, collectively,  [**2] "State Defendants") (NES and State Defendants, collectively, "Defendants") have moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure against plaintiff Marsha Falchenberg ("Falchenberg" or the "Plaintiff").

Falchenberg has cross-moved under the same rule to dismiss the fifth through twelfth affirmative defense of NES and the fifth, seventh and eighth defense of the State and SED. Falchenberg has also moved to amend her complaint to add a state official as an individual defendant. For the reasons set forth below, the Defendants' motion is granted and Falchenberg's motions are denied.

In this hard fought and well-litigated action, Falchenberg, disabled by dyslexia, has sought to establish that Defendants have denied her accommodations which might have permitted her to continue as a New York City public school teacher. Sad to say, her efforts, like those of many test takers, have been defeated by the requirement to spell and punctuate.

II. PRIOR PROCEEDINGS

Falchenberg filed a complaint (the "Original Complaint") against the New York City Department of Education ("DOE"), the City of New York (the "City"), and Defendants on September 24, 2004, alleging  [**3] that all the named entities discriminated against her in violation of the Americans with Disabilities Act, 42 U.S.C. 12101 et seq. ("ADA"), the Rehabilitation Act, 29 U.S.C. 794 ("Rehab Act"), the New York State Human Rights Law, New York Executive Law § 296 ("SHRL"), and the New York City Human Rights Law, New York Administrative Code § 8-107 ("CHRL"), or were liable for aiding and abetting a violation of the aforementioned statutes.

The DOE and the City (collectively, the "City Defendants") moved to dismiss the Original Complaint against them, and by opinion of July 1, 2005, Falchenberg v.  [*159]  New York City Dep't of Educ., 375 F. Supp. 2d 344 (S.D.N.Y. 2005) (the "July 1 Opinion"), the motion was granted and all claims against the City Defendants were dismissed.

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642 F. Supp. 2d 156 *; 2008 U.S. Dist. LEXIS 49979 **; 20 Am. Disabilities Cas. (BNA) 1814

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

Subsequent History:  [**1] As Corrected May 31, 2016.

As Amended July 15, 2008.

Affirmed by Falchenberg v. N.Y. State Dep't of Educ., 338 Fed. Appx. 11, 2009 U.S. App. LEXIS 12213 (2d Cir. N.Y., 2009)

Prior History: Falchenberg v. New York City Dep't of Educ., 457 F. Supp. 2d 490, 2006 U.S. Dist. LEXIS 75944 (S.D.N.Y., 2006)

CORE TERMS

spelling, skills, accommodation, disability, summary judgment, teacher, scoring, capitalization, certification, punctuation, immunity, examinee's, measurement, tests, amend, words, reasonable accommodation, public entity, candidate's, notice, aiding and abetting, matter of law, public school, administered, modification, checker, teach

Civil Procedure, Summary Judgment, Entitlement as Matter of Law, General Overview, Legal Entitlement, Need for Trial, Burdens of Proof, Movant Persuasion & Proof, Appropriateness, Genuine Disputes, Judgments, Evidentiary Considerations, Nonmovant Persuasion & Proof, Business & Corporate Compliance, Discrimination, Disability Discrimination, Rehabilitation Act, Civil Rights Law, Protection of Disabled Persons, Federal Employment & Services, Scope, Labor & Employment Law, Evidence, Employee Burdens of Proof, Americans With Disabilities Act, Accommodations, Reasonable Accommodations, Undue Hardship, Methods of Discovery, Depositions, Oral Depositions, Torts, Multiple Defendants, Concerted Action, Civil Aiding & Abetting, Scope & Definitions, Covered Entities, Constitutional Law, State Sovereign Immunity, Governments, State & Territorial Governments, Claims By & Against, Waiver, Actionable Discrimination, Pleadings, Amendment of Pleadings, Leave of Court, Opposing Materials