Lipton v. New York University College of Dentistry et al

Filing 9

OPINION re: 3 MOTION to Dismiss filed by New York University College of Dentistry, Andrew I. Spielman. For the foregoing reasons, defendants' motion to dismiss is granted. (Signed by Judge Thomas P. Griesa on 3/16/2012) (lmb)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
HERRICK LIPTON,
:
:
Plaintiff,
:
:
– against –
:
:
NEW YORK UNIVERSITY COLLEGE OF
:
DENTISTRY and DR. ANDREW
:
SPIELMAN,
:
:
Defendants.
:
:
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11 Civ. 2535 (TPG)
OPINION

Plaintiff Herrick Lipton brings this action against defendants New York
University College of Dentistry (“NYUCD”) and Dr. Andrew Spielman, its
associate dean for academic affairs, for alleged violations of federal, state, and
local laws banning discrimination against disabled individuals.
Defendants move under Fed. R. Civ. P. 12(b)(6) to dismiss the federal
counts for failure to state a claim. Should the court grant this motion,
defendants further move to dismiss the remaining state law claims for lack of
subject matter jurisdiction. Both motions are granted.
The Complaint
The following facts are drawn from the complaint and assumed to be true
for purposes of this motion.
Plaintiff entered NYUCD’s predoctoral dentistry program (“DDS program”)
in August of 2000. Had plaintiff completed the program on schedule, he would
have graduated in 2004. However, plaintiff was unable to successfully complete

his first academic year, which plaintiff alleges was the result of his father’s
terminal illness. Plaintiff was then dismissed from the DDS program, but he
successfully appealed this decision and completed the first-year curriculum on
his second attempt in June 2002. Thereafter, he completed the second year of
the curriculum on his first attempt in June 2003.
In July 2003, plaintiff took Part I of the National Board Dental
Examination (“NBDEP1”) to fulfill a degree requirement for NYUCD.
Unfortunately, he failed some sections of the test and was required to retake
them. In the meantime, he began his third academic year at NYUCD in August
2003.
During that year, plaintiff prepared to retake the NBDEP1. He also
participated in clinical work, for which he earned praise and high marks from
his supervising professors. However, plaintiff failed the NBDEP1 on his second
attempt.
Plaintiff began his fourth academic year at NYUCD in August 2004. In
May 2005, plaintiff underwent a neuropsychiatric evaluation, as a result of
which, according to complaint ¶ 27:
Plaintiff was diagnosed with a learning disability, specifically a
reading disorder which hindered his ability to accurately read
and comprehend information under time constraints. The
evaluation noted that Plaintiff suffered from anxiety and
apprehension such that he would be unable to pass the exam
under the normal time constraints. The disability (which was
exacerbated by time constraints) placed Plaintiff at a
disadvantage in successfully completing the test. The evaluation
recommended for Plaintiff to receive additional time to alleviate
the stress and anxiety of the exam, which would serve to
equalize him with the other candidates sitting for the exam.

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The complaint (¶ 28) goes on to allege that, after requesting an
accommodation from test administrators:
Plaintiff, with the accommodation, immediately passed all parts
of NBDEP1 with a time-and-a-half accommodation following the
conclusion of his fourth academic year.
It also appears that plaintiff was afforded this same time-and-a-half
accommodation when he took all the tests which are relevant to the present
case. 1
During plaintiff’s fourth academic year, he was also required to take the
North East Regional Board of Dental Examiners exam (“NERB”), which he
passed. Having completed the academic coursework of the DDS program,
plaintiff participated in its graduation ceremony on May 12, 2005.
Plaintiff, however, had not yet completed all of the requirements for his
degree. There remained Part II of the National Board Dental Examination
(“NBDEP2”). Pursuant to NYUCD policy, all dental students (beginning with the
class of 2004) are required to pass this test to graduate. That same policy
specifies that candidates taking the NBDEP2 after finishing their academic
coursework must re-matriculate for the academic year when the exam will be
taken. For plaintiff, this meant mainly the payment of $3500 in fees. Lastly, the
policy requires such students to pass the NBDEP2 within fourteen months of
finishing their coursework. In contrast, until recently the American Dental
Association, which administers the NBDEP2 through a sub-agency, permitted
The complaint does not explicitly state that the plaintiff received time-and-a-half on each test
occasion discussed infra, but ¶ 56 of the complaint alleges that NYUCD’s actions “rendered the
time-and-a-half accommodation meaningless,” implying that plaintiff in fact received such an
accommodation.
1

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eligible examinees to retake the NBDEP2 an unlimited number of times so long
as the examinee waited the requisite interval between attempts. 2
Plaintiff paid $3,500 to re-matriculate in September 2005, and he took
the NBDEP2 that very month. Unfortunately, plaintiff failed the exam and was
required by American Dental Association protocol to wait at least ninety days
before retaking it. The complaint (¶ 38) offers the following explanation for this
outcome:
Anxiety and stress due to the short preparation period, financial
concerns, and the constant threat of dismissal, from the rematriculation exacerbated his disability and hindered his ability
to concentrate during the examination.
In September 2006, plaintiff again paid $3,500 to re-matriculate and
take the NBDEP2, and in December 2006, he again took and failed the test.
The complaint (¶ 41) alleges:
Anxiety about the financial constraints re-matriculation was
placing on his family, the constant threat of dismissal, and
concerns about how this financial burden could limit his
continued eligibility to sit for the exam, exacerbated his
disability and prevented him from successfully completing
NBDEP2 in April 2007.
Plaintiff re-matriculated a third time in September and took the NBDEP2
a third time in April 2007. Again he failed. He alleges (¶ 44):
Again, concerns about the constant threat of dismissal, his
financial situation and his inability to afford the costs of rematriculation prevented Plaintiff from passing NBDEP2.
Plaintiff was then dismissed from the DDS program on May 14, 2007, for
2

It now requires that examinees pass the test within five years of their first test attempt or five
attempts, whichever comes first. But only test attempts on or after January 12, 2012 trigger
this rule.

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failing to pass the NBDEP2 within the time allotted by NYUCD policy. Plaintiff
appealed that decision internally, submitting a letter informing the internal
appeals committee of his reading disorder and other issues impeding his
performance. Plaintiff was then granted an additional year, until June 2008, to
pass the NBDEP2 or “face permanent dismissal from the program” (Compl. ¶
49).
Since plaintiff had failed the NBDEP2 three times, American Dental
Association rules required him to wait a full twelve months, until April 2008,
before retaking the exam for a fourth time. According to the complaint (¶ 54):
Plaintiff sat for the exam in May 2008 under severe emotional
stress and anxiety over his potential dismissal due to the
arbitrary time constraints placed on him by NYUCD which again
served to exacerbate his disability. He failed NBDEP2 by three
(3) points.
Plaintiff was dismissed from the DDS program on June 27, 2008.
Plaintiff again appealed his dismissal, and on appeal, he requested “an
accommodation, in which he would be given additional opportunities to take
the exam due to his learning disability, specially his troubles with critically
reading and comprehending the exam within the time constraints” (Compl. ¶
56). The complaint (¶ 56) goes on to state the following rationale for the
requested accommodations:
Plaintiff’s disability and its effect on his ability to take the exam
was exacerbated by NYUCD’s repeated threats of dismissal, its
varying position in terms of the number of attempts he would be
provided to retake the exam, the significant costs of repeated rematriculation, and NYUCD’s wavering position with regard to the
number of times he could take the exam and whether he would
be dismissed, rendered the time-and-a-half accommodation
meaningless. NYUCD was well aware that Plaintiff’s disability
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was exacerbated by time pressure of any manner, which
increased his anxiety and apprehension, and ultimately
rendered him unable to focus and critically read during the
exam.
But NYUCD held firm in its decision to dismiss plaintiff from the DDS
program, leading to the present case.
Based on these allegations, plaintiff makes seven claims. First, plaintiff
alleges that NYUCD violated the Americans with Disabilities Act (“ADA”), 42
U.S.C. §§ 12182(a), 12112(b)(5)(A) by failing to provide the requested
accommodations. Second, plaintiff alleges that NYUCD, an entity that receives
federal assistance, violated the Rehabilitation Act, 29 U.S.C. § 794(a), by failing
to accommodate his disability. Plaintiff’s next four counts allege analogous
violations of New York State Human Rights Law, N.Y. Exec. Law § 296(6), and
New York City Human Rights Law, N.Y.C. Admin. Code § 8-102(16). Two of the
counts are against NYUCD, and two are against individual defendant Spielman.
Plaintiff’s final count alleges that NYUCD’s inconsistent statements concerning
the number of times plaintiff would be allowed to take the NBDEP2 constituted
deceptive acts or practices in the conduct of business in violation of N.Y. Gen.
Bus. Law § 349.
The Prayer for Relief
In addition to damages and attorneys’ fees, plaintiff seeks injunctive
relief as follows:
101. Reinstatement to NYUCD and an accommodation
permitting Plaintiff to retake NBDEP2, without re-matriculation,
an unlimited number of times over a reasonable period of time,
pursuant to applicable American Dental Association guidelines,
thereby providing him with a reduced-stress environment in
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which he can concentrate and focus effectively.
102. Waiver of graduation requirements, based on his disability,
which would enable him to retake NBDEP2 an unlimited
number of times, pursuant to applicable American Dental
Association guidelines.
The Present Motions
Defendants now move to dismiss the two federal counts on the ground
that the accommodations now requested by plaintiff are unreasonable as a
matter of law, since they would force NYUCD to fundamentally alter academic
requirements. Defendants further argue that since the two federal claims
should be dismissed, the court should decline to exercise supplemental
jurisdiction over the state law claims per 28 U.S.C. § 1367(c)(3).
Discussion
To survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6), a complaint
must plead sufficient facts to state a claim to relief that is plausible on its face.
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); Ashcroft v. Iqbal, 129
S.Ct. 1937, 1949-50 (2009). In deciding such a motion, a court must accept as
true the facts alleged in the complaint, but it should not assume the truth of
legal conclusions. Iqbal, 129 S.Ct. 1937 at 1950. A court must also draw all
reasonable inferences in the plaintiff's favor, and it may consider documents
attached to the complaint, incorporated by reference into the complaint, or
known to and relied on by the plaintiff in bringing the suit. ATSI Commc’ns,
Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007).
***
The ADA was passed to "provide a clear and comprehensive national

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mandate for the elimination of discrimination against individuals with
disabilities." 42 U.S.C. § 12101(b)(1). Titles II and III of the ADA, upon which
plaintiff relies, forbid the denial of public services and public accommodations,
respectively, to otherwise qualified individuals by reason of their disability. See
Henrietta D. v. Bloomberg, 331 F.3d 261, 272 (2d Cir. 2003). The
Rehabilitation Act similarly provides that "no otherwise qualified individual
with a disability in the United States . . . shall, solely by reason of her or his
disability, be excluded from the participation in, be denied the benefits of, or be
subjected to discrimination under any program or activity receiving Federal
financial assistance." 29 U.S.C. § 794(a).
The ADA was modeled upon the Rehabilitation Act and due to the
similarities between the two, claims under both can be analyzed identically
unless a difference between the statutes is germane to the case. See Weixel v.
Bd. of Educ., 287 F.3d 138, 146 n. 6 (2d Cir. 2002). Here, plaintiff’s claim
under the Rehabilitation Act differs from that under the ADA only insofar as
plaintiff seeks damages from NYUCD under the Rehabilitation Act—a remedy
not available under the ADA. That difference, however, does not implicate the
present motion, so the court will henceforth treat these claims in tandem.
To state a claim under the Acts, plaintiff must plausibly allege that (1) he
is a qualified individual with a disability; (2) the defendants are subject to one
of the Acts; and (3) he was denied the opportunity to participate in or benefit
from defendants' services, programs, or activities by reason of his disability.
See Powell v. Nat'l Bd. of Med. Exam'rs, 364 F.3d 79, 85 (2d Cir. 2004).

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A qualified individual with a disability is one who “with or without
reasonable modifications to rules, policies, or practices…meets the essential
eligibility requirements for the receipt of services or the participation in
programs or activities provided” by the covered entity. 42 U.S.C. 12131(2). Said
individual must also have a disability, which the ADA defines as "(A) a physical
or mental impairment that substantially limits one or more major life activities
of such individual; (B) a record of such an impairment; or (C) being regarded as
having such an impairment." Mastrolillo v. Connecticut, 352 Fed. Appx. 472,
474 (2d Cir. 2009).
According to the complaint, plaintiff was qualified to enroll in the DDS
program and to take the courses offered there. The complaint thus successfully
alleges that plaintiff was a qualified individual within the meaning of the law.
The complaint also alleges another element necessary to the cause of
action—a disability. This disability is defined in ¶ 27 of the complaint, which
has been quoted above, as being “a reading disorder which hindered his ability
to accurately read and comprehend information under time constraints.” Later
parts of the complaint, which have also been quoted in the opinion (¶¶ 41, 54,
56), state that various circumstances exacerbated the disability defined in ¶
27. For the purposes of the present motion, the court accepts the idea that
plaintiff suffered an impairment that substantially limited a major life
function—to wit, reading.
As for the second factor, NYUCD concedes that it is a public
accommodation offering a service under 42 U.S.C. § 12182 and that it is a

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program receiving federal financial assistance for purposes of the
Rehabilitation Act.
Thus the present motion hinges on whether plaintiff plausibly alleges
that he was unlawfully denied the opportunity to continue participating in
NYUCD’s DDS program by reason of his disability. Plaintiff can do so using one
of three theories: “(1) intentional discrimination (disparate treatment); (2)
disparate impact; and (3) failure to make a reasonable accommodation." Fulton
v. Goord, 591 F.3d 37, 43 (2d Cir. 2009). Plaintiff has chosen the third route.
Reasonable accommodations are “affirmative accommodations to ensure
that facially neutral rules do not in practice discriminate against individuals
with disabilities.” Henrietta D., 331 F.3d at 275. The “determination of whether
a particular modification is ‘reasonable’ involves a fact-specific, case-by-case
inquiry that considers, among other factors, the effectiveness of the
modification in light of the nature of the disability in question and the cost to
the organization that would implement it.” Staron v. McDonald's Corp., 51 F.3d
353, 356 (2d Cir. 1995).
A defendant, however, “need not make an accommodation at all if the
requested accommodation would fundamentally alter the nature of the service,
program, or activity.” Powell v. Nat'l Bd. of Med. Exam'rs, 364 F.3d 79, 88 (2d
Cir. 2004). Moreover, a court should defer to an academic institution’s decision
that a particular accommodation is not reasonable when it has “diligently
assessed the available options and then made an academic judgment…that to
accommodate the student would work a change in the substance of

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its…program, and impose an undue hardship on its academic program.” Id.
Indeed, institutions of higher learning “must have the widest range of
discretion in making judgments as to the academic performance of students
and their entitlement to promotion or graduation.” Board of Curators, Univ. of
Mo. v. Horowitz, 435 U.S. 78, 96 n. 6 (1978).
Here, defendants claim that plaintiff requested a waiver of a graduation
requirement, and that NYUCD determined that such a waiver would
substantially and unreasonably alter its program. Accordingly, they argue that
the court should defer to this academic decision and dismiss plaintiff’s
complaint. Plaintiff, on the other hand, claims that the accommodations he
requests are reasonable. He argues that he is asking nothing more than an
accommodation that is consistent with guidelines offered by the American
Dental Association.
It is important at this point to clarify that as an academic institution,
NYUCD is free to impose standards more stringent than those of the American
Dental Association. It is not the business of the court to adjudge the wisdom of
generally-applicable academic policies. Thus NYUCD acted within its rights
when it created policies requiring that: a) all students pass the NBDEP2; b) all
students taking the NBDEP2 after completing academic coursework rematriculate and pay tuition to sit for the exam; and c) all re-matriculating
students pass the NBDEP2 in a limited period of time.
The only question before the court is whether plaintiff’s complaint—
which alleges that defendants, despite knowing of plaintiff’s reading disorder

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and his requested accommodations, dismissed plaintiff for failing to pass the
NBDEP2 within the requisite time period—states a plausible claim of disability
discrimination under the ADA and the Rehabilitation Act. The court holds that
it does not, because the accommodations that plaintiff requests are
unreasonable as a matter of law.
Plaintiff has already received an accommodation of his disability in the
form of time-and-a-half to complete the exams he has taken. He is now
requesting additional accommodations, as specified in the prayer for relief in
the complaint:
101. Reinstatement to NYUCD and an accommodation
permitting Plaintiff to retake NBDEP2, without re-matriculation,
an unlimited number of times over a reasonable period of time,
pursuant to applicable American Dental Association guidelines,
thereby providing him with a reduced-stress environment in
which he can concentrate and focus effectively.
102. Waiver of graduation requirements, based on his disability,
which would enable him to retake NBDEP2 an unlimited
number of times, pursuant to applicable American Dental
Association guidelines.
Thus, among other things, plaintiff’s requested accommodations change
the focus from the time allowed for an individual test to the time—in terms of
months or years, and number of opportunities—to take and pass the NBDEP2.
Of course, NYUCD has already afforded plaintiff almost three years
beyond his projected 2005 graduation date to take the test, and he has taken
the test four times. Whether or not NYUCD’s actions were accommodations to
plaintiff’s disability within the meaning of the ADA and the Rehabilitation Act,
these extensions of time and additional opportunities to take the test occurred.
In any event, plaintiff claims that the law requires more. The court
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believes that these claims should be ruled on as a matter of law on the present
motion.
The court holds that the requested accommodations are unreasonable in
several respects. First, they would alter important academic policies to a great
degree. Plaintiff’s requested accommodations would indefinitely extend his time
to complete NYUCD’s academic courses, in defiance of NYUCD policy. NYUCD
has a right to impose a time in which its graduation requirements must be
completed. Such time periods have the obvious and important purpose of
contributing to the discipline and rigor desirable in a professional education.
Plaintiff requests a “reasonable” period of time in which to take the NBDEP2,
but the complaint necessarily implies that the two-and-a-half year period
already afforded him was not reasonable. The court disagrees. The extension
sought by plaintiff amounts to, in plaintiff’s words, a “waiver of graduation
requirements,” which under the circumstances of the case, the law does not
impose on NYUCD.
Second, the requested accommodations bear a tenuous relationship to
plaintiff’s disability. The earlier time-and-a-half accommodation clearly
addressed a “reading disorder which hindered his ability to accurately read and
comprehend information under time constraints.” The accommodations now
requested do not appear to deal with the time constraints referred to in the
finding of disability.
Third, the requested accommodations concern generalized anxiety,
implicating not just plaintiff’s disability but various circumstances upsetting to

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plaintiff, including the cost of re-matriculation at NYUCD and his fear of failing
the NBDEP2 and being dismissed.
Fourth, certain aspects of plaintiff's requested accommodations are
clearly not contemplated by the ADA. Plaintiff seeks to retake the NBDEP2
"without re-matriculating," i.e. without paying the $3500 fee to re-matriculate.
The ADA cannot be read to mandate a waiver of fees in the present case, where
the fees have no bearing on the disability alleged. And, as already indicated,
the same is true, under the circumstances of the present case, with regard to
plaintiff's request for a "waiver of graduation requirements."
Thus, the complaint fails to state a valid claim for disability
discrimination under the ADA and Rehabilitation Act, and his federal claims
must be dismissed. Furthermore, the court declines to exercise supplemental
jurisdiction over plaintiffs state-law claims, as there are no longer any federal
claims to support original jurisdiction. See 28 U.S.C. § 1367(c)(3).

Conclusion
For the foregoing reasons, defendants' motion to dismiss is granted.

SO ORDERED.

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Dated: New York, New York
March 16,2012

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Thomas P. Griesa
U.S. District Judge