Bahl v. New York Institute of Technology

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

Ajay Bahl, No. 2:14-cv-04020-NRM-LGD

Plaintiff, Opinion and Order

v.

New York College of Osteopathic

Medicine of New York Institute of

Technology,

Defendant.

NINA R. MORRISON, United States District Judge:

This motion for summary judgment requires the Court to consider the

reasonableness of certain proposed accommodations for a graduate student’s

disability under section 504(a) of the Rehabilitation Act of 1973

(“Rehabilitation Act”) and New York State Human Rights Law (“NYSHRL”).

In this case, the Court must determine (1) whether there is evidence from

which a reasonable jury could find that a college of osteopathic medicine

violated the relevant provisions of these statutes when it denied a disabled

student’s request for six months of additional leave from school to receive

further psychopharmacologic, cognitive behavioral, and speech therapy

treatments and prepare for an examination that he was required to pass in

order to graduate, and (2) whether the defendant’s counter-proposal of a

shorter period of leave (with certain additional conditions) satisfied its legal

obligation to reasonably accommodate the student’s disabilities.

In the fall of 2013, Plaintiff Ajay Bahl, who had by that time been

diagnosed with certain mental health and learning disabilities, requested six

months of leave from the Doctor of Osteopathic Medicine (“D.O.”) program at

the New York Institute of Technology College of Osteopathic Medicine

(“NYITCOM” or “NYIT”). Although Bahl had requested and been granted

additional periods of leave during his tenure as an NYIT student, he

requested this additional six months of leave because, he contended, in light

of his disabilities, he required that additional time to obtain disability-related

medical treatment and prepare for the COMLEX 2, a test he needed to pass

as the final graduation requirement from NYIT.

NYIT rejected Bahl’s request. Shortly thereafter, it made a counter-

proposal, offering him just over three months of leave that would be

contingent upon securing certain testing accommodations from the National

Board of Osteopathic Medical Examiners (“NBOME”), the entity that

administers the COMLEX 2. Bahl declined NYIT’s proposal, and the parties

were unable to reach agreement on any other accommodation.

Bahl filed this lawsuit in 2014. A year later, Bahl filed an amended

complaint that contained seventeen claims for relief under federal, state, and

local laws. See Am. Compl. ¶¶ 99–265, ECF No. 77. Discovery eventually

concluded and on March 1, 2022, NYIT moved for summary judgment on all

claims. See Def.’s Mot. for Summ. J. 49, ECF No. 235-5.1

On December 30, 2022, through counsel, Bahl filed a brief in partial

opposition to Defendant’s motion. In that brief, Plaintiff conceded that

Defendant was entitled to summary judgment on all but two of the claims in

the Amended Complaint and asserted that Bahl would no longer pursue

those claims. The claims in which Bahl, through counsel, did oppose

summary judgment each concern a failure to accommodate Bahl’s disability

under section 504(a) of the Rehabilitation Act of 1973 (“Rehabilitation Act”)

and New York State Human Rights Law (“NYSHRL”) and arise from the

same factual dispute: whether NYIT improperly denied Bahl the six-month

period of leave from school he requested to prepare for the COMLEX-2 exam

in September 2013, or otherwise violated his right to a reasonable

accommodation for his disability in the parties’ communications following

Bahl’s September 2013 leave request. See Pl.’s Opp’n, ECF No. 236; see also

Am. Compl., ¶¶ 126–35, 243–54 (listing claims).

For the reasons stated below, NYIT’s motion for summary judgment on

Bahl’s Rehabilitation Act and NYSHRL failure to accommodate claims is

1 All page numbers refer to ECF page numbers except where noted.

DENIED. The Court reserves decision on any outstanding claims, pending

further briefing on the question of whether Bahl, who recently terminated his

counsel, has waived his right to oppose summary judgment on those claims.

I. BACKGROUND

The Court summarizes only the facts and procedural history relevant

to the motion for summary judgment as to Bahl’s September 2013 request for

leave, noting (where applicable) all material facts in dispute and construing

the factual record in the light most favorable to Bahl as the non-movant.2

A. Bahl begins at NYITCOM and is diagnosed with ADHD

and Generalized Anxiety Disorder

In 2008, Bahl began a four-year osteopathic medicine program at NYIT

College of Osteopathic Medicine. See Pl.’s 56.1 Statement ¶¶ 1–5, 27, ECF

No. 236-1. To graduate from the program at NYIT, Bahl needed to take two

exams: the COMLEX 1 exam and the COMLEX 2 exam, which consisted of

two parts: the performance evaluation (“PE”) and cognitive evaluation (“CE”).

NBOME administers the COMLEX 1 and COMLEX 2. See Pl.’s 56.1

Statement ¶¶ 10–14, 115.

In July 2011, after Bahl withdrew from the D.O. program for medical

reasons, Bahl’s psychiatrist Dr. Lenard Adler diagnosed Bahl with ADHD

and generalized anxiety disorder (“GAD”). Pl.’s 56.1 Statement ¶¶ 73–74,

93–96. In a letter to the school, Dr. Adler advised that Bahl was undergoing

an ongoing adjustment to his medications and treating with another medical

provider for psychotherapy; Dr. Adler noted at the end of that month that

Bahl’s symptoms were improving. Pl.’s 56.1 Statement ¶¶ 95–96. The next

month, Dr. Paul Yellin, a learning specialist, issued a report in which he

opined that Bahl should receive “two times the standard time” when taking

examinations; however, Bahl did not provide this report to NYITCOM until

May 2013. Pl.’s 56.1 Statement ¶¶ 106–09. By October 2012, Bahl had

successfully completed his third- and fourth-year clinical clerkships and

2 Bahl’s statement under Local Civil Rule 56.1 disputed the materiality

of a number of facts, but not the underlying facts in those disputes.

passed the COMLEX 1; he only needed to pass the COMLEX 2 to graduate.

See Pl.’s 56.1 Statement ¶¶ 46, 112, 115. Although Bahl had previously

requested (and been granted) certain periods of leave from NYIT to enable

him to complete certain graduation requirements, by this time he had

achieved what NYIT would later summarize as an “impressive academic

history.” Pl.’s 56.1 Statement ¶ 228 (quoting email from Jordan Thompson

III, Assistant General Counsel at NYIT, to Bahl’s then-counsel).

B. Bahl attempts to pass the COMLEX 2

After scheduling and postponing the COMLEX 2 several times, Bahl

took and failed both parts of the COMLEX 2 exam in December 2012. See

Pl.’s 56.1 Statement ¶¶ 122, 132. Under school policy, a student who did not

pass the COMLEX 2 before the student’s graduation date was eligible for a

180-day leave of absence to study for and retake the COMLEX 2. Pl.’s 56.1

Statement ¶ 116; see also Pl.’s 56.1 Statement ¶ 136 (describing school

policy); Oral Argument Tr. (“Tr.”) 26:24–27:3 (same). In other words, this

six-month leave was equally available to both disabled and non-disabled

students at NYIT who needed to retake the COMLEX 2 exam. Bahl applied

for and received a standard, 180-day COMLEX 2 leave of absence under

school policy. See Pl.’s 56.1 Statement ¶¶ 135–37.

Bahl applied to NBOME for exam accommodations in May 2013. In

connection with this request, he forwarded Dr. Yellin’s report to NYITCOM

and asked Assistant Dean Felicia Bruno to submit an addendum supporting

his request for testing accommodations from NBOME. Bruno declined,

stating that she believed that it was not her position to opine to NBOME about

whether NBOME should give Bahl COMLEX 2 Exam accommodations. Pl.’s

56.1 Statement ¶ 161. Ultimately, NBOME denied Bahl’s request for testing

accommodations. See Pl.’s 56.1 Statement ¶¶ 149–52, 155, 161–62, 167–78,

170–73.

In June 2013, while his request to NBOME was pending, NYITCOM

told Bahl that NYITCOM had changed its policies to place students who did

not pass the COMLEX 2 by their graduation date into a “directed study

course” to prepare for the COMLEX 2 Exam, and Bahl and one other student

were placed in a ten-week directed study course for the COMLEX 2 that ran

from July 2 to September 9, 2013. Pl.’s 56.1 Statement ¶¶ 177–79, 180–82.

C. Bahl seeks an additional six months of leave to prepare

for the COMLEX 2 exam

By September 20, 2013, shortly after the directed study course ended,

Bahl sought an accommodation directly from NYIT: a six-month medical

leave.3 Pl.’s 56.1 Statement ¶¶ 116, 124–33, 177–82, 193–206. NYIT denied

Bahl’s request. Pl.’s 56.1 Statement ¶ 220. In doing so, Achtziger told Bahl

that he did not qualify for medical leave since he was not an active student.

Id.

On October 21, 2013, upon Bahl’s request that NYIT reconsider its

denial, NYIT Assistant General Counsel Jordan Thompson III wrote to Bahl’s

then-counsel and proposed the following:

Based upon the facts set forth above, and reviewing the

supporting documentation you have provided regarding Mr.

Bahl’s alleged learning disability, NYITCOM has concluded as

follows with respect to your client’s request for a review of the

determination denying him an accommodation in connection with

his retaking of the COMLEX Level 2 exam:

• Effective immediately NYITCOM is placing Mr. Bahl on a

“Withdrawal for Financial Aid Purposes Only” status[.]

• NYITCOM agrees to approve Mr. Bahl’s application for a retest

of the COMLEX Level 2 exams with the National Board of

Osteopathic Medical Examiners (“NBOME”), provided that (i)

NBOME grants Mr. Bahl a testing accommodation for his alleged

learning disability (the “Testing Accommodation”), and (ii) the

test date will allow the results to be available by January 31,

3 Bahl and NYIT dispute whether this request was made in August

2013, when Bahl had contacted NYIT’s Office of Disability Services, or in

September 2013, when Bahl had met with Mary Ann Achtziger (“Achtziger”),

who was NYITCOM’s then-Associate Dean of Student Affairs. Either way,

the exact date of Bahl’s request is immaterial for the purposes of deciding

this motion. Pl.’s 56.1 Statement ¶¶ 116, 124–33, 177–82, 193–206.

2014.

• NYITCOM will not approve Mr. Bahl’s application if the

NBOME does not grant a Testing Accommodation.

• If Mr. Bahl fails to take and pass the COMLEX Level 2 exam

with the Testing Accommodation on or before January 31, 2014,

NYITCOM will dismiss Mr. Bahl on that date.

Pl.’s 56.1 Statement ¶ 228 (quoting Catalano Decl. Ex. 40, ECF No. 235-6).

Thompson continued, “NYITCOM does not in fact believe that any

accommodation is warranted as there is nothing to suggest in Mr. Bahl’s

impressive academic history, including his tenure at NYITCOM, that he

requires an accommodation to succeed based on a purported disability.” Pl.’s

56.1 Statement ¶ 229 (quoting same).

Bahl, who was placed on “withdrawn” status following Thompson’s

email, sought behavior therapy and speech therapy. He did not seek

reconsideration of NBOME’s denials of his requests for testing

accommodations. See Pl.’s 56.1 Statement ¶ 230–33.

D. Procedural history

In 2014, Bahl sued NYIT, NBOME, and North Shore Long Island

Jewish Plainview Hospital out of events arising from (i) his clerkship at the

hospital that led to his medical leave, and (ii) his requested leave concerning

the COMLEX 2. See Compl., ECF No. 1. In 2015, Bahl filed an amended

complaint. See Am. Compl., ¶¶ 88–265, ECF No. 77.

NYIT, the sole defendant now remaining in this suit, served its motion

for summary judgment on March 1, 2022. See Def.’s Mot. 49. This suit was

reassigned to this Court in October 2022 as a matter of routine court

administration. On December 30, 2022, counsel for Bahl served opposition

papers, which stated: “Plaintiff now withdraws his claims for disparate

treatment discrimination, retaliation, hostile learning environment, aiding

and abetting discrimination, equal protection, breach of an implied

agreement, negligent infliction of emotional distress, negligent

misrepresentation, deceptive practices, and his New York City Human Rights

Law claims.” See Pl.’s Opp’n 1. Bahl’s opposition brief then argued that

summary judgment should be denied on the remaining failure to

accommodate claims under the Rehabilitation Act and NYSHRL.4 Id. at 5.

NYIT served its reply on these claims and filed the bundled, fully-briefed

motion on February 21, 2023. See Def.’s Reply, ECF No. 237. This Court

held oral argument on the afternoon of June 30, 2023.

On the morning of oral argument, Bahl emailed the Court and counsel

to request an “emergency adjournment.” See Pl. Letter, ECF No. 241 (June

30, 2023).5 Bahl stated that he did not wish to be represented by his counsel.

Id. He wrote, “Several of my claims have apparently been withdrawn

without my authorization, and in some cases against my explicit instruction.”

Id. The Court allowed him to appear at oral argument for the limited

purpose of assessing whether Bahl wished to proceed pro se or through his

counsel. Tr. 2:1–7. But, the Court explained, the opposition brief in question

had been filed months earlier, oral argument had been set to discuss the

remaining failure to accommodate claims, and in light of the parties’ and the

Court’s preparation for argument, that portion of the Defendant’s motion

would be heard that day. Tr. 12:4–8. After some discussion and an

opportunity to confer off the record with his then-counsel, Bahl informed the

Court that he wanted his counsel to argue the failure to accommodate claims

on his behalf. Tr. 16:16–19. The Court heard argument from counsel,

reserved decision, and instructed Bahl to inform the Court within one week

whether he wished to continue to be represented by his then-counsel or not.

4 Bahl’s opposition also discussed failure to accommodate claims under

the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., that

NYIT argued were not in the Amended Complaint (which was filed by

another prior counsel for Bahl). See Pl.’s Opp’n 1, 6; Def.’s Reply 4. Oral

argument proceeded on the Rehabilitation Act and NYSHRL claims. See Tr.

17:1–5. In any event, and as discussed below, these claims are evaluated

under the same standards as the ADA. See Part III.A, infra.

5 Bahl’s letter is dated June 29, 2023, but Bahl emailed the letter to

opposing counsel, his then-counsel, and the Court on June 30, 2023 at 8:16

a.m.

On July 7, 2023, Bahl filed a letter stating that he intended to seek

other counsel, and his counsel filed a motion to withdraw. See Letter dated

July 7, 2023, to Judge Morrison from Ajay Bahl, ECF No. 239 (July 7, 2023);

Letter Motion to Withdraw as Attorney Conditional on Attorney’s Lien, ECF

No. 240 (July 11, 2023). The Court has given the parties the opportunity to

brief the question of whether Bahl has waived his right to oppose summary

judgment as to the remaining claims. Order dated July 12, 2023. In the

meantime, it issues this decision on the claims whose merits were the subject

of oral argument.

II. LEGAL STANDARD

Summary judgment is appropriate only when the party moving for

summary judgment shows that there is “no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a). “The moving party bears the burden of establishing the

absence of any genuine issue of material fact.” Zalaski v. City of Bridgeport

Police Dep’t, 613 F.3d 336, 340 (2d Cir. 2010) (citing Celotex Corp. v. Catrett,

477 U.S. 317, 322 (1986)). To present a “genuine” issue of material fact

sufficient to defeat a motion for summary judgment, “the record must contain

contradictory evidence such that a reasonable jury could return a verdict for

the nonmoving party.” Horror Inc. v. Miller, 15 F.4th 232, 241 (2d Cir. 2021)

(internal quotation marks omitted). At the summary judgment stage, a court

must construe the record “in the light most favorable to the non-moving

party,” and “resolv[e] all ambiguities and dra[w] all reasonable inferences” in

that party’s favor.” Id. at 240.

III. DISCUSSION

The legal standards that govern the merits of NYIT’s motion are not

disputed by the parties. As discussed further below, to obtain summary

judgment on Bahl’s failure to accommodate claim under the Rehabilitation

Act and NYSHRL, NYIT must show that the accommodation it offered Bahl

was “plainly reasonable” as a matter of law. Alternatively, even if Bahl can

show that his own proposed accommodation was a reasonable one, summary

judgment may still be granted if NYIT demonstrates that Bahl’s request

would have created an undue hardship for NYIT or required a substantial

modification of its educational program.

A. Rehabilitation Act and NYSHRL

Under section 504 of the Rehabilitation Act—the nation’s first federal

statute enacted to protect the civil rights of persons with disabilities6— “[n]o

otherwise qualified individual with a disability . . . 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.”

Dean v. Univ. at Buffalo Sch. of Med. & Biomedical Sci., 804 F.3d 178, 186

(2d Cir. 2015) (quoting 29 U.S.C. § 794(a)). Courts interpret the NYSHRL

“coextensively” with the Rehabilitation Act, Williams v. MTA Bus Co., 44

F.4th 115, 124 (2d Cir. 2022), and treat claims under both statutes through

the same legal standards as claims under the Americans with Disabilities

Act. See Noll v. Int’l Bus. Machines Corp., 787 F.3d 89, 94, 95 n.2 (2d Cir.

2015) (citations omitted).

To establish a prima facie violation of the Rehabilitation Act, a

plaintiff must show (1) that the plaintiff is a “qualified individual” with a

disability; (2) that a defendant “receive[s] federal funding;” and (3) that the

plaintiff was “denied the opportunity to participate in or benefit from

defendants’ services, programs, or activities, or was otherwise discriminated

against by defendants, by reason of her disability.” See Henrietta D. v.

Bloomberg, 331 F.3d 261, 272 (2d Cir. 2003) (citations omitted). Under the

first two prongs, NYIT does not contest Bahl’s disability status and does not

6 In 1973, Congress passed the Rehabilitation Act, partially in

response to federal litigation concerning the educational rights of children

with disabilities. Spencer C. Malone, Charles J. Russo & Allan G. Osborne,

Jr., Reasonable Accommodations for Students in Higher Education Under

Section 504 of the Rehabilitation Act, 409 ED. LAW REP. 610, 610 (2023).

Section 504, one of the statutes at issue in this case, “attached an

antidiscrimination mandate to federal funds.” Karen M. Tani, Disability

Benefits as Poverty Law: Revisiting the “Disabled State,” 170 U. PA. L. REV.

1687, 1719 n.33 (2022). It has since served as “essentially the disability

equivalent of Title VI of the 1964 Civil Rights Act and Title IX of the

Education Amendments of 1972.” Id.

dispute that the Rehabilitation Act applies to NYIT for purposes of this

motion. See Def.’s Mot. at 26 n.7, 28–29. Under the third prong, an

educational institution may be found liable if it fails to “offer reasonable

accommodations for a student’s known disability unless the accommodation

would impose an undue hardship on the operation of its program, or

fundamentally alter the nature of the service, program, or activity.” Dean,

804 F.3d at 187.

Thus, to determine whether NYIT is entitled to summary judgment,

this Court must decide whether the accommodation NYIT offered to Bahl (a

three-month leave of absence from NYIT, with certain contingencies related

to his earlier request for testing accommodations from NBOME) was “plainly

reasonable” as a matter of law. If it was not, the Court must then consider

whether, under the applicable burden-shifting framework, a jury could find

that Bahl’s original proposed accommodation—a six-month-leave of

absence—would have been reasonable. See id. at 189.

B. Was NYIT’s counter-proposal to Bahl a “plainly

reasonable” accommodation?

“Where a defendant’s educational institution has implemented or

offered an accommodation, the institution will be entitled to summary

judgment only if the undisputed record reveals that the plaintiff was

accorded a ‘plainly reasonable’ accommodation.” Id. at 188–89 (citations

omitted). While the reasonableness of an accommodation is a “fact-specific

question that often must be resolved by a factfinder,” the “plain

reasonableness” of an accommodation “ends the analysis” and obviates the

need to engage in a burden-shifting analysis. Noll, 787 F.3d at 94 (internal

quotation marks omitted).

Instructive here is the Second Circuit’s 2015 opinion in Dean v.

University at Buffalo School of Medicine and Biomedical Sciences. 804 F.3d

at 178. There, the court found that a jury question remained as to the

reasonableness of a school’s rejection of a medical student’s proposed three-

month leave to study for a licensing exam, which precluded summary

judgment on that issue. Id. at 190. After failing the exam twice, the student

became disabled within the meaning of the applicable statutes, experiencing

increased symptoms of depression right before he was slated for his third and

final permitted examination-retake. Id. at 183. The student requested an

accommodation in the form of a three-month leave of absence before retaking

the exam, since he was informed that his psychiatric medications would need

six to eight weeks to take full effect, and he contended that he needed

additional time, with his symptoms treated by medication, to study

thereafter. Id. at 188. The school denied the request but offered an

alternative: a total of ten weeks of leave. The court found that, “by any

measure,” the school’s proposed accommodation did not give the student post-

medication study time equivalent to the “six to eight weeks allegedly

afforded, as a matter of school policy, to medical students who had also failed

two prior attempts.” Id. at 189. The fact that the school had given earlier

periods of leave before the student requested a disability accommodation did

not establish that the school had offered a “plainly reasonable”

accommodation for the student’s later-developed disability. Id. at 182–83,

186–89. Considering the school’s policy affording six to eight weeks of leave

for students without disabilities, a juror “could reasonably infer that the

abbreviated study period encompassed within [the plaintiff student’s] leave

would not have been effective.” Id. at 189. In sum, the Dean court concluded

that the school’s proposed accommodation of ten weeks was not “plainly

reasonable.”

Here, Bahl requested a six-month medical leave of absence in

September 2013 that would have allowed him to take the COMLEX 2 in

February 2014. NYITCOM rejected this request, but countered with a

different proposed accommodation: what it deemed a “withdrawal for

financial aid purposes” and an offer to approve Bahl’s application for a retest

if he secured an accommodation from NBOME for the COMLEX 2 and if his

NBOME test results would be available by January 31, 2014 (meaning that

Bahl would have approximately three months to study for and take the

NBOME exam, rather than the six months he had requested). See Pl.’s 56.1

Statement ¶¶ 207, 227–29.

This Court concludes that summary judgment is inappropriate to

resolve the parties’ dispute over these proposed accommodations. After

drawing every reasonable inference in Bahl’s favor, a jury could find that

NYIT’s proposed accommodation was not “plainly reasonable” as a matter of

law when considering the two key terms of NYIT’s proposed accommodation:

(1) the length of time and (2) the condition that Bahl secure an

accommodation from NBOME and receive his COMLEX 2 test results by

January 31, 2014.

1. Length of leave (“withdrawal” time)

NYIT offered Bahl approximately three months away from the

program (requiring that he complete his preparation and sit for the COMLEX

2 test in time for his scores to be available by January 31, 2014). At oral

argument, NYIT clarified that there was “no difference” between the medical

leave of absence Bahl requested and “withdrawal for financial aid purposes

only” on which NYIT offered to place Bahl. See Tr. 19:10–24. Yet, when

asked why NYIT had limited the length of leave time (rather than agree to

Bahl’s requested six months), counsel for NYIT was not certain as to NYIT’s

reason for this limitation. NYIT’s counsel observed that Bahl’s request came

in around the start of the new semester, September 19, and NYIT’s proposed

end date of January 31 coincided with the end of that semester. See Tr. 23:9–

24:2. It may well be that NYIT officials concluded it would be convenient or

otherwise preferable for them to have certainty about Bahl’s graduation

plans before the next academic semester. But NYIT cited no facts in its

motion papers or at oral argument to demonstrate why this three-month

period was itself a plainly reasonable accommodation of Bahl’s disability.

NYIT argues that because Bahl had already taken a “six-month leave

[that] expire[d] in June” plus “ten more weeks after June” of a directed-study

course (approximately eight months of time away from the core program

program) prior to September 2013, it was per se reasonable to deny his

request for an additional six months to study for the COMLEX 2. See Tr.

25:5–13; Tr. 25:16–17; Def.’s Mot. 31. The Court disagrees. Indeed, this

argument appears to be foreclosed by Dean, in which the Second Circuit

concluded that a school having already given a medical student leave to study

prior to becoming disabled did not make the school’s rejection of a subsequent

leave request per se reasonable. 804 F.3d at 188–89. Like the student in

Dean, Bahl had previously taken leave from NYIT’s program—through

policies NYIT offered to disabled and non-disabled students alike—which

totaled approximately eight months, before he requested an additional period

of six months. It was only when requesting his final six-month leave in

September 2013, however, that he cited his disabilities and need for related

medical treatment as the reason for his leave request. While school officials

may have become impatient with Bahl’s extended therapy, rescheduled

exams, and additional requests for leave, NYIT—in light of Bahl’s

disability—had a legal obligation to consider each accommodation and leave

request on its merits. Because NYIT has not shown that it actually did so

here—and, further, has not shown that its proposed shorter leave period was

a “plainly reasonable” accommodation of Bahl’s disability—summary

judgment is inappropriate.

2. NBOME-related conditions

Similarly, NYIT also fails to show that the second feature of its

proposed accommodation—that Bahl succeed in obtaining certain testing

accommodations from NBOME before retaking the COMLEX 2 exam, and

that he complete the exam within approximately three months—was per se

reasonable. Taking all facts and drawing all inferences in the light most

favorable to Bahl, a jury could find that NYIT’s insistence on making Bahl’s

leave from NYIT contingent on a third party’s grant of testing

accommodations was not reasonable, particularly since NBOME had already

denied his accommodation request.

NYIT argues that it was reasonable to condition Bahl’s leave on a

parallel testing accommodation by NBOME because neither Bahl nor his

treating physicians could “guarantee” that an additional six months of

medical treatment, standing alone, would have enabled Bahl to pass the

COMLEX 2 exam. Def.’s Mot. at 33. But a student with a disability is

entitled to reasonable accommodations regardless of his or her ultimate

success in the program. And with good reason. For while a student with a

disability may be more likely to pass an examination with certain testing

accommodations, it is hard to see how any student—regardless of ability—

could ever “guarantee” that result. Accommodations are never a guarantee of

success: they are instead designed only to give disabled students a reasonable

opportunity to pass an exam or meet other program requirements

notwithstanding their disabilities.

Ultimately, regardless of whether NBOME provided him with his

requested testing accommodations, Bahl had made a separate request to

NYIT to accommodate his disability with respect to its own program schedule

and enrollment status. He sought from NYIT only a 180-day period of

additional leave to obtain certain psychopharmacologic, cognitive behavioral,

and speech therapy treatments before retaking the COMLEX 2 exam. See

Catalano Decl., Ex. 35, at 2, ECF No. 235-41 (Aug. 28, 2013, letter from

Bahl’s then-counsel to NYIT). This proposal, Bahl contends, was both a

necessary and reasonable accommodation of his disability separate and apart

from whether NBOME agreed to accommodate him during the testing process

itself. And whether NYIT’s counter-proposal for a shorter period of leave,

with an additional precondition of NBOME-provided testing accommodations,

was a “plainly reasonable” accommodation of his disability is a question that

Dean and related authorities make clear is properly resolved by a jury, not by

this Court on summary judgment.

Thus, taking these facts in the light most favorable to the non-movant,

genuine issues of fact remain as to whether the terms of NYIT’s proposed

accommodation were plainly reasonable, precluding summary judgment on

this ground.

C. Would Bahl’s proposed accommodation, if reasonable,

have led to an “undue hardship” or “substantial

modification” for NYIT?

In cases where (as here) a defendant’s accommodation was not “plainly

reasonable as a matter of law,” the Second Circuit has evaluated the

reasonableness of a plaintiff’s proposed accommodation under a burden-

shifting framework. See Wright v. New York State Dep’t of Corr., 831 F.3d 64,

75–76 (2d Cir. 2016). A plaintiff has a “light burden” to show the facial

reasonableness of his or her proposed accommodation. Dean, 804 F.3d at 190.

A defendant then has the burden to show that the plaintiff’s proposed

accommodation is unreasonable. A defendant may do so by showing that the

proposed accommodation would “(a) impose undue hardship on the operation

of the defendant's service, program, or activity, or (b) require a fundamental

or substantial modification to the nature of its academic program or

standards.” Id.

1. Reasonableness

First, the Court finds that Bahl has met his “light” burden to show the

facial reasonableness or plausibility of his requested accommodation. Bahl

sought a six-month leave for treatment designed to remedy certain deficits

related to Attention Deficit Hyperactivity Disorder (ADHD), Generalized

Anxiety Disorder (GAD), Deficits in Executive Function, and Speech

Cluttering. See Catalano Decl., Ex. 35, at 2. Because these conditions

“impair[ed Bahl’s] ability” to take examinations like the COMLEX 2 “in a

manner which [sic] reflects his true ability,” Bahl’s attorney at the time

requested:

. . . a six month leave of absence . . . so that my client could

ameliorate these deficits with an aggressive treatment plan of

ongoing psychopharmacologic management, cognitive behavioral

therapy and increasing the frequency and intensity of his speech

therapy. In addition, my client also intends to increase his work

with a learning specialist and he has also been enrolled in a

directed course syllabus for students who have had difficulty with

the COMLEX exams.

Id. at 3. Among other reasons, a jury could find that this was a reasonable

request given Dr. Yellin’s 2011 report, which noted that Bahl suffered from

“Attention Deficit Disorder, Executive Function Disorder, Expressive

Language Disorder, and a Reading Disorder” (even though Bahl did not

request accommodations from NYIT at that time). Bahl forwarded this 2011

report to NYIT in May 2013 as additional support for his request that the

school formally endorse his request for testing accommodations to NBOME.

NYIT argues that the requested accommodation would not have

allowed Bahl to meet the “essential requirements” of the D.O. program (i.e.,

passing the COMLEX 2 exam, which was required for NYIT graduation)

because “additional time alone would not have been sufficient to permit him

to pass the COMLEX 2 Exam.” See Def.’s Reply 10. But a plaintiff’s

requested accommodation does not have to be the only accommodation that

helps a plaintiff access a service or program: here, whether NBOME granted

a testing accommodation to Bahl does not affect whether it was reasonable

for Bahl to separately request a 180-day leave from NYIT for the purposes of

obtaining additional medical treatment prior to taking the examination, and

additional time in which to study and otherwise prepare for it.

2. Substantial modification

Finding Bahl’s initial burden satisfied, the Court now turns to whether

NYIT has shown that the proposed accommodation would have created an

undue hardship or entailed a substantial modification to the school’s

programs or standards. Courts “ordinarily” defer to the “professional,

academic judgments of educational institutions,” but decline to do so in cases

where the record “is devoid of evidence” showing that an institution

evaluated a potential accommodation’s effectiveness and potential for undue

hardship or a substantial modification. Dean, 804 F.3d at 191 (“To do

otherwise might allow academic decisions to disguise truly discriminatory

requirements.”) (citation and quotation marks omitted). Here, NYIT argued

that the requested six-month level would require a “substantial modification

to its standards that students need to pass the COMLEX 2 Exam within a

certain period of time” and was “per se unreasonable” due to the length of

time. Def.’s Reply 11.

The record is “devoid of evidence” to support NYIT’s contention,

including any evidence that NYIT in fact evaluated whether a six-month

leave would have entailed a substantial modification of its academic

standards or programs. See Dean, 804 F.3d at 191; see also Bied v. Cnty. of

Rensselaer, No. 115CV1011TJMDEP, 2018 WL 1628831, at *19 (N.D.N.Y.

Mar. 30, 2018) (denying summary judgment where record failed to show that

a community college “diligently assessed” whether a plaintiff’s proposed

scheduling alteration would allow her to complete a marketing course

without imposing undue burdens or a substantial modification). At oral

argument, as discussed above, NYIT’s counsel did not provide any reason for

the alternate proposal of approximately three months of leave rather than six

that relates to NYIT’s core academic programs or standards. Instead, counsel

noted that the proposed period of leave ending in January 2014 may only

have been offered to coincide with the end of NYIT’s semester, allowing some

resolution of Plaintiff’s status by the end of the fall 2013 term. See Tr. 23:1–

13 (“THE COURT: Why did the school decide it was not reasonable to give

him six months[?]” “[DEFENSE COUNSEL]: . . . January 31 would, of

course, be the commencement of the new semester . . . ”); see also Tr. 25:25–

26:5 (defense counsel characterizing NYIT’s reasoning as follows: “[B]ecause

you are essentially no longer a student at NYIT, we’ll allow you to withdraw

and you can have until the end of the semester to take the test and pass.”).

NYIT has not provided any other evidence, much less evidence

sufficient to take the issue away from the trier of fact, that permitting Bahl

to have an additional period of leave that carried over into the spring

semester would require NYIT to “fundamentally alter” or “substantially

modify” its programs or standards. Indeed, as Bahl points out, a six-month

leave was directly in line with the school’s 180-day leave policy for all

students—disabled and non-disabled—who did not pass the COMLEX 2 exam

on their first attempt. See Pl.’s 56.1 Statement ¶ 116 (undisputed that school

had policy allowing all students to apply for 180-day leave to retake the

COMLEX 2 exam). In light of the reasons given above by Bahl, and drawing

all reasonable inferences in Bahl’s favor, a reasonable factfinder could

conclude that granting Bahl’s requested six months would not have

constituted a “substantial modification” of NYIT’s programs or standards.

To be sure, a proposed accommodation can be deemed a substantial

modification when the accommodation changes program standards or

assessments themselves. See Dean, 804 F.3d at 190 (collecting cases). Some

courts have considered the possible effectiveness of a proposed

accommodation and the potential for such changes by looking at the

“particular circumstances” of a student—namely, in circumstances like a

history of disciplinary or other performance problems. See Zukle v. Regents of

Univ. of Cal., 166 F.3d 1041, 1049–51 (9th Cir. 1999) (finding that plaintiff’s

proposed accommodation was not reasonable where, “because Zukle was

doing so poorly in the clinical portion of the clerkship, [g]iving [her] time off

from the clinical portion to study for the test[ ] could not have helped, but

could only have further damaged, her already marginal clinical skills”);

Wynne v. Tufts Univ. Sch. of Med., 976 F.2d 791, 795 (1st Cir. 1992)

(upholding summary judgment after a medical school, having giving a

student multiple prior accommodations, concluded that changing a

biochemistry test from a multiple-choice format would constitute “substantial

program alterations”).

NYIT attempts to analogize Bahl to a plaintiff-student with such a

history from one out-of-circuit case. See Def. Mot. 32, 34 (citing Halpern v.

Wake Forest Univ. Health Scis., 669 F.3d 454 (4th Cir. 2012)). But that case

is readily distinguishable. In Halpern, the court found that a medical

student’s proposed accommodation of a “special remediation plan” that

included an undefined “strict probation” period was not reasonable. Id. at

465–66. At the time the student proposed the plan, he had already “engaged

in numerous unprofessional acts that warranted his dismissal, including

acting abusively towards staff, multiple unexcused absences, repeated failure

to meet deadlines, and tardiness.” Id. at 465. The student had already

delayed graduation by a year due to a medical leave, and neither he nor his

medical expert could “specify a time at which his treatment would be

complete.” Id. at 466. There, the Rehabilitation Act could not “obligate” the

school to allow the student to continue his program “with the hope that at

some unknown time in the future he will be able to satisfy the program's

essential requirements.” Id. Yet here, notwithstanding NYIT’s emphasis on

problems with Bahl’s prior performance in a clerkship (which, after some

initial challenges, he ultimately completed) or with his first, unsuccessful

attempt to pass the COMLEX 2, Bahl requested a leave for a specific, limited

time of six months. Bahl made this request at a time when he had already

demonstrated, in NYIT’s words, an “impressive academic history,” and he did

so for a single, specific purpose: to pass an exam that was his only remaining

graduation requirement.

In short, a reasonable factfinder could conclude that (1) the 180-day

leave requested by Bahl was a reasonable proposed accommodation of his

disability, and (2) granting that request would not have constituted a

substantial modification of NYIT’s academic standards or other fundamental

changes to its program.

IV. CONCLUSION

NYIT’s motion for summary judgment is denied as to Plaintiff’s failure

to accommodate claims under the Rehabilitation Act and NYSHRL.

Pursuant to the Court’s Order dated July 12, 2023, decision on NYIT’s motion

for summary judgment as to the remaining claims in the Amended Complaint

is reserved pending further briefing by the parties as to whether Bahl has

waived his right to oppose summary judgment on those claims.

SO ORDERED.

/s/ NRM

NINA R. MORRISON

United States District Judge

Dated: July 21, 2023

Brooklyn, New York