N, - Burton Blatt Institute at Syracuse Universitybbi.syr.edu/drba/docs/legal_bank/bishop_v_nys_bd_law_examiners.pdf · of business in Albany, New York, ... administration of the

Case 1:11-cv-00612-BMC Document 1 Filed 02/07/11 Page 1 of 17

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

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EBONE BISHOP, Plaintiff,

v.

NEW YORK STATE BOARD OF LAW EXAMINERS; JOHN 1. MCALARY, as Executive Director, New York State Board of Law Examiners; CARA 1. BROUSSEAU, as Deputy Director

."

and Counsel, New York State Board of Law Examiners; DIANE F. BOSSE, Individually and as Chair, New York State Board of Law Examiners; SUMMONS ISSUED DAVID M. GOULDIN, Individually and as Member, New York State Board of Law Examiners; ROBERT S. MCMILLEN, Individually and as Member, New York State Board of Law Examiners; E. LEO MILONAS, Individually and as Member, New York State Board of Law Examiners; BRYAN R. WILLIAMS, Individually and as Member, New York State Board of Law Examiners,

Defendants.

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COGJ\.N, J.

PlaintiffEbone Bishop (hereinafter "Plaintiff" or "Bishop") brings this complaint against

the Defendants, New York State Board of Law Examiners (hereinafter "the Board"), 10hn 1.

McAlary and Cara 1. Brousseau, in their official capacities, and Diane F. Bosse, David M.

Gouldin, Robert S. McMillen, E. Leo Milonas, and Bryan R. Williams, in their individual and

official capacities (referred to hereinafter collectively as "the Board" or "Defendants"), seeking

monetary, injunctive and declaratory relief, and alleges as follows:


Bar Examination. Other test modifications granted by the Board are insufficient to accommodate

Plaintiffs disabilities and thereby make the Bar Examination accessible to her. Plaintiff brings

this action to enforce her rights to reasonable accommodations and equal access under the ADA,

Section 504, the NYSHRL, and the NYCHRL.

4. The Board prepares and administers the bi-annual Bar Examination, the

professional licensing examination required for admission to practice law in the State of New

York. The Board has the legal, educational and professional responsibility to offer reasonable

testing accommodations to individuals with disabilities taking the Bar Examination. Such

accommodations, which are neither expensive nor difficult to provide, allow individuals with

cognitive and psychiatric disabilities, like Plaintiff, to demonstrate their real aptitude and skill.

JURISDICTION

5. These claims arise under the ADA, and this Court has subject matter jurisdiction

based on a federal question under 28 U.S.C. §§133l and 1343(a)(4). This Court also has

jurisdiction pursuant to: (1) 42 U.S. C. § 2000a, providing for civil actions in this Court by any

person subjected to discrimination on the basis of disability in violation of Title III ofthe ADA;

(2) 42 U.S.C. § 12133, which incorporates the provisions of29 U.S.C. § 794(a), for violations of

Title II of the ADA; (3) 29 U.S.C. § 794(a) for violations of § 504 of the Rehabilitation Act of

1973; and (4) 28 U.S.C. § 1343 for any civil rights action authorized by law.

6. This Court has jurisdiction to issue a declaratory judgment pursuant to 28 U.S.C.

§220l(a) and further relief pursuant to 28 U.S.C. §2202.

7. Venue is proper in the Eastern District of New York pursuant to 28 U.S.C. §139l,

in that acts of discrimination have taken place in this District and Plaintiff resides within this

District.

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PARTIES

8. Plaintiff, a resident of Brooklyn, New York, is a 28 year-old graduate of Fordham

University School of Law, which is located in the borough of Manhattan, New York. She

intends to take the Bar Examination, for the second time, on February 22 and 23,2011. Plaintiff,

suffering from a learning disability, (Cognitive Disorder-NOS, also referred to as an Executive

Function Disorder) Generalized Anxiety Disorder and Panic Disorder without Agoraphobia

(hereinafter collectively referred to as "disabilities"), is a person with a disability under the ADA

and is entitled to federal protection and reasonable accommodations from the Board.

9. The Board is an instrumentality of the State of New York, with its principal place

of business in Albany, New York, and administers the Bar Examination, which is a professional

licensing examination required for admission to practice law in the State of New York.

10. Defendant John J. McAlary is the Executive Director of the Board, and is being

sued in his official capacity.

11. Defendant Cara J. Brousseau is Deputy Director and Counsel of the Board, and is

being sued in her official capacity.

12. Defendant Diane F. Bosse is Chair of the Board, and is being sued in her

individual and official capacities.

13. Defendant David M. Gouldin is a Member of the Board, and is being sued in his


14. Defendant Robert S. McMillen is a Member of the Board, and is being sued in his


15. Defendant E. Leo Milonas is a Member of the Board, and is being sued in his


16. Defendant Bryan R. Williams is a Member of the Board, and is being sued in his


-'f-


FACTUAL ALLEGATIONS

17. Plaintiff received her Juris Doctor degree from Fordham University in May of

2010. Prior to her graduation, in April 2010, Plaintiff registered to sit for the July 2010 Bar

Examination and timely submitted to the Board a request for reasonable testing accommodations

for the July examination. Plaintiffs request for reasonable accommodations on the July 2010

Bar Examination was denied in its entirety in a letter from the Board dated May 24, 2010.

18. Plaintiff sat for the July 2010 Bar Examination without accommodations and in

November 2010 was notified by the Board that she did not receive a passing score.

19. Thereafter, in November 2010, Plaintiff registered to sit for the February 2011

administration of the Bar Examination and through her attorney, Jo Anne Simon, Esquire,

requested the necessary testing accommodations that the Board previously denied.

20. With Attorney Simon's letter to the Board dated November 29, 2010, Plaintiff

requested reconsideration of the Board's earlier denial and summarized Plaintiff's history of

prior evaluations and her use of accommodations. Further documentation was submitted to the

Board, including an updated Personal Statement by Plaintiff and a November 2010

Neuropsychological Evaluation Report by Dana Zaret Luck, Ph. D., of Mattis & Luck Center for

Neuropsychological Services, LLP. Dr. Luck's Neuropsychological Report documented

Plaintiff s disabilities and recommended 50% extended testing time, off-the-clock breaks, and

testing in a distraction-free area to accommodate her constellation of disabilities.

21. Attorney Simon's letter also summarized the standards under the ADA, Section

504, NYSHRL and NYCHRL, and requested that the Board provide the accommodations

recommended in Dr. Luck's report.

22. By letter dated January 19,2011, the Board provided off-the-clock breaks up to

one hour per session and a reduced distraction setting, but derued Plaintiff's request for 50%

extended testing time.

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Bishop's History of Disability, Remediation and Accommodations

23. Plaintiff has a long history ofieaming disability (also referred to herein as a

cognitive disability) and anxiety. As a child, she lacked stability in a dysfunctional home

environment and has been on her own since the age of 16. Plaintiff no longer has any

communication with either of her parents, and unfortunately, does not have access to early

childhood records documenting such early history of leaming difficulties.

24. At the Holton-Arms School, where Plaintiff completed all four years of high

school, the school's Learning Specialist, Laura Scanlon, recommended that she be evaluated to

determine the cause of her academic weaknesses. After a comprehensive evaluation, the

evaluator found Plaintiff's symptoms to be consistent with learning and executive function

disorders. Thereafter, Plaintiff received 50% extended time on all timed examinations, testing in

a separate location, oral testing, and tests scheduled over an extended period to avoid the fatigue

oftoo much production in a short time. Unfortunately, a report of this evaluation is not

available, as was explained when Plaintiff submitted her initial application for accommodations

to the Board.

25. Plaintiff did not request reasonable accommodations on the SAT because, like

many disabled individuals, she feared being stigmatized, and as a young person virtually living

on her own without the guidance of competent caring parents or guardians, she did not receive

good advice.

26. Plaintiff was subsequently accepted into Brandeis University, where she

completed her undergraduate education. While at Brandeis, Plaintiff self-accommodated by

selecting courses where grades were based either exclusively or primarily on papers, and not

timed in-class or final examinations. While at Brandeis, Plaintiff also received studying and

writing assistance from the University through its Writing Center and Student Support Services

office.

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27. When Plaintiff began to study for the Law School Admission Test (hereinafter

"LSA T"), she found it very difficult to focus or complete the exam within standard time

constraints. She consulted her psychiatrist, who prescribed her Adderall. Plaintiff sat for the

LSAT twice. She canceled the first score, and spent the next year preparing for the December

2006 LSAT. She received a score of 155 during her second attempt at the LSAT.

28. Plaintiff commenced her legal education at Fordham University School of Law

("Fordham") in the Fall of 2007. After her first semester final examinations, she discovered that

unlike college, the nature of the coursework oflaw school and its emphasis on timed

examinations made it nearly impossible for her to circumvent the limitations of her disabilities in

ways that had worked in college.

29. In January 2008, Plaintiff received apro bono evaluation from Carol Weiner,

Ph.D. at Adelphi University'S Derner Institute of Advanced Psychological Studies Center for

Psychological Services. Plaintiff furnished Fordham with a copy of Dr. Weiner's report, and

thereafter received reasonable accommodations on in-class examinations. Plaintiff also further

self-accommodated by selecting elective courses that did not require timed in-class

examinations.

30. In Plaintiff s daily life, she experiences anxiety related to performance in all types

of settings. Before speaking or responding to questions orally, she needs to take extended pauses

to organize her thoughts. To the extent that she can, she avoids environments that increase her

level of anxiety. Plaintiff has also, out of necessity, been financially and otherwise independent

from both of her parents since she was approximately sixteen years old. Therefore, she has had

to ensure her own survival, which is believed to contribute to her anxiety. Every test and

examination affects her overall educational success and employment opportunities, and as a

result, increases Plaintiff's heightened anxiety during those times.

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The Bar Examination

31. The Bar Examination consists of two sections - the New York section which is

given on a Tuesday, and the Multistate Bar Examination which is given on the following day.

The first day, also referred to as the New York section, consists of 5 essay questions and 50

multiple choice questions prepared by the Board, and one Multistate Performance Test (MPT)

question, developed by the National Conference of Bar Examiners. The second day of the exam

is the MBE section which consists of 200 multiple choice questions. Each day of the examination

consists of a morning session and an afternoon session with a lunch break in between. The

examination is given at the same time and date at various testing locations across the state. I

32. In the morning session of the first day of the exam, applicants must complete

three essays and the 50 multiple choice questions in three hours and fifteen minutes. The Board

estimates an allocation of forty minutes per essay and 1.5 minutes per multiple choice question.

In the afternoon session of the first day, applicants must complete the remaining two essay

questions and the MPT in three hours. The National Conference of Bar Examiners developed the

MPT with the intention that it be used as a 90-minute test and the Board recommends that

applicants allocate 90 minutes to the MPT and 45 minutes to each essay.2

33. The second day of the examination is the Multistate Bar Examination, which is a

six-hour, two hundred question multiple-choice examination covering contracts, torts,

constitutional law, criminal law, criminal procedure, evidence, and real property. The

examination is divided into two periods ofthree hours each, with 100 questions in each period.3

34. According to the Board "[ e ]ach essay question is designed to test the applicant's

ability to analyze a given set of facts, to identify the issues involved and the applicable principles

of law, and to reason from there to a sound conclusion ... [t]he Multistate Performance Test is

designed to test an applicant's ability to use fundamental lawyering skills in a realistic situation

2

http://www.nybarexam.orgITheBarfTheBar.htm (last visited February 4, 2011).

[d.

Id.

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· .. [t]he [MBE] questions on the examination are designed to be answered by applying

fundamental legal principles rather than local case or statutory law.,,4

35. No section of the bar exam has been validated to test the ability to read within the

standard time frame. 5

36. The Bar Examination, offered twice per year, in February and July, costs $250.00

for graduates of ABA approved law schools. There is an additional fee of $100.00 for applicants

who wish to, or must, take the Bar Examination on a laptop computer.

The Board's Denial of Bishop's Request for Reasonable Accommodations

37. The Board has provided online, a downloadable "ADA Application," which, inter

alia, lists the documentation and information that the Board requires from individuals with

disabilities requesting reasonable accommodations on the Bar Examination. The Board States

that each applicant's request is evaluated on a case-by-case basis.6

38. On or about April 29, 2010, Plaintiff submitted documentation in compliance with

the "Application for Test Accommodations," requesting reasonable accommodations for the July

2010 administration of the Bar Examination. The documentation submitted included the

following:

4

5

(1993).

6

!d.

a. Application for Test Accommodations;

b. Personal Statement by Ebone Bishop;

c. Letter from Fordham University'S School of Law, dated February 1,2010,

verifying receipt of reasonable accommodations in law school;

d. Letter from the Holton-Arms School's Office of the Upper School Learning

Specialist, dated April 25, 2010, verifying receipt of reasonable accommodations

from ninth through 12th grades;

Millman, Mehrens & Sackett, AN EV ALUA nON OF THE NEW YORK STATE BAR EXAMINA nON

http://www.nybarexam.orgiADA/ADA.htm (last visited February 6, 2011).

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e. Psychological Report of Dr. Carol Weiner, dated January 2008;

f. Law school, undergraduate, and high school transcripts;

g. Letter from Brandeis University, dated March I, 2010, verifying dates of

attendance;

h. Law School Admission Test score reports.

39. The documentation listed in paragraph 38 above and provided to the Board in

April 2010 and subsequently in November 2010, substantially complies with the Board's written

policy regarding disability accommodations.

40. By letter dated May 24, 2010, the Board denied Plaintiffs initial request in its

entirety. It stated, "the documentation provided does not sufficiently establish the existence of a

qualified disability within the meaning of the Americans with Disabilities Act that would require

accommodation on the bar examination ... [t]he existence of a physical or mental condition does

not automatically entitle an applicant to test accommodations on the bar examination. An

applicant must also establish that the disability substantially limits the ability to perform a major

life activity that is relevant to the bar examination."

41. The Board enclosed with the May 24, 20 I 0 denial letter the synopses of reports

written by two of its consultants whose identities are unknown. One Board consultant alleged

that Dr. Weiner's evaluation was not comprehensive and stated that "anxiety in testing situations

is not a basis for granting test accommodations." The Board adopted the position of this

consultant despite the fact that in Bartlett v. New York State Board of Law Examiners, 970

F.Supp. 1094 (S.D.N.Y.l997) at 1117, the Court (Sotomayor, J.) held that test-taking was a

major life activity under the ADA.

.. .in the modem era, where test-taking begins in the first grade, and standardized tests are a regular and often life-altering occurrence thereafter, both in school and at work, I find test-taking is within the ambit of "major life activity."

42. Plaintiff took the July 2010 Bar Examination without accommodations and as a

result, did not receive a passing score. In November 20 I 0, in anticipation of another denial from

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the Board for reasonable accommodations on the February 2011 Bar Examination, Plaintiff

underwent a comprehensive neuropsychological evaluation by Dr. Luck, the report of which was

submitted to the Board with Attorney Simon's letter, dated November 29, 2010, requesting

reconsideration.

43. Dr. Luck diagnosed Plaintiff with Cognitive Disorder-NOS (Executive Function

Disorder), Generalized Anxiety Disorder, and Panic Disorder without Agoraphobia. Dr. Luck

observed that "Ms. Bishop is an individual with Superior range verbal abilities and a

combination of cognitive inefficiencies and symptoms of anxiety and panic attacks that have a

substantial impact on her ability to perform academic work under strict time limits. Moreover,

they compromise her functioning when she has to read and write for prolonged periods of time

without sufficient breaks ... [s ]he requires extended testing accommodations in order to be on a

level playing field for all academic and standardized tests, particularly when they place heavy

demands on reading and writing skills and they require multiple hours of sustained attention and

concentration. "

44. The specific reasonable accommodations that Dr. Luck recommended for the Bar

Examination were 50% extended testing time, access to an alternate quiet setting, and "five to

ten minute breaks following each hour of test administration to provide her with time to

implement anxiety reduction techniques." Dr. Luck's evaluation was submitted to the Board

along with Attorney Simon's letter on November 29, 2010.

45. By letter dated January 19,201 I, the Board acknowledged that Plaintiff was

disabled. The Board refused to grant the 50% extended time recommended by Dr. Luck to

accommodate Plaintiff's cognitive and anxiety disorders, and instead granted only "one (I)

additional hour for each session of the examination for off-the-clock breaks ... [t]he breaks are

non-cumulative and cannot be used for testing" and testing in a distraction-free setting.

46. The Board attached to its determination letter synopses of its consultants'

findings. One of the Board's consultants stated that Plaintiff "appears to be unimpaired as

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compared to the average person relative to reading comprehension under timed conditions as

measured by the Nelson Denny Reading Test." However, when Dr. Luck administered the

Nelson Denny Reading Test in November 2010 under standard time constraints, Plaintiffs

Reading Comprehension was measured to be in the 22nd percentile. When given 60 % extended

time, Plaintiff's Comprehension increased to the 53,d percentile. Dr. Luck noted in her report

that "[i]t is noteworthy that Ms. Bishop expressed feeling fatigued following the reading

comprehension subtest." 7 In Bartlett, the record upon which the Board was found to have

discriminated against Plaintiff Bartlett contained no reading scores below the average range and the

court found the imposition of a requirement that a candidate for the bar exam score below a particular

cut-off was "seriously infirm." 8

47. One of the Board's consultants also erroneously stated that neither Plaintiff, nor

Dr. Luck, "provide [ d] information about whether or not these panic attacks occur in other life

activities." Nevertheless, Plaintiff, in her personal statement to the Board said that in all settings

of her daily life, she experiences anxiety and panic related to performance. Dr. Luck fully

addressed this in her report of her comprehensive clinical evaluation of Plaintiff, which the

Board's consultants appear to have ignored.

7 Studies indicate that learning disabled children exert considerably greater effort in processing written infonnation than do their nondisabled peers. See Schwartz, Joel, "Dyslexic Children Use nearly Five Times the Brain Area," October, 1999, http://www.washington.edulnewsroom!news/1999archive/lO-99archivelkl00499a.html; and, Kuwana, Ellen, "Unraveling Dyslexic Brains," December, 1999, http://faculty.washington.edulchudler/dysl.html reporting on a studies by "Developmental neuropsychologist Virginia Beninger, Ph.D., and neuropsychologist Todd Richards, Ph.D., ... [which] have shown that the brains of children with dyslexia work about five times harder than other children's brains when perfonning the same language task."

Bartlett, 2001 WL 930792 (S.D.N.Y.) at 41:

In practical tenns, Dr. Flanagan is attempting to do the same thing that I found "seriously infirm" in the first trial-setting a cut-off for the existence of disability. Bartlett I, 970 F.Supp. at 1113. In fact, Dr. Flanagan's suggested cutoff-below the 16th percentile-is even more conservative than Dr. Vellutino's cutoff-below the 30th percentile. To the extent that I found a cut-off ofthe 30th percentile on tests like the Woodcock ... to be under-inclusive based on research showing that one-third of dyslexics score above the 30th percentile on those tests, I find a 16th percentile cut-off to be even more problematic.

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48. The Board's consultants further attempted to justify a denial of extended time by

comparing Plaintiff s taking the LSA T without accommodations to Plaintiff's need for extended

time on the New York Bar Examination.

49. That Plaintiff did not have the equal opportunity to which she was entitled to

demonstrate her abilities on the LSA T does not justify her not having an equal opportunity on the

Bar Exam. Plaintiff also alleges that as the 9th Circuit found in Enyart v. National Conference of

Bar Examiners Inc., 2011 WL 9735 (C.A.9 (Cal.)), it is improper to assume the test conditions of

the three hour long LSA T are the same as for the two day long Bar Examination.

50. One of the Board's consultants also stated that "Ms. Bishop did not submit any

objective evidence of Generalized Anxiety Disorder or Panic Disorder," when according to the

Diagnostic and Statistical Manual of Mental Disorders (4th Ed) (hereinafter DSM-IV), no such

evidence is needed.

51. Plaintiff requires 50 % extended testing time and the other requested

accommodations on the Bar Examination to attempt to level the playing field because Plaintiff's

cognitive disability and symptoms of anxiety and panic preclude her from demonstrating her

ability and knowledge within standard time constraints, hence her need for than 50 % extended

test time. Non-disabled test takers do not experience these functional limitations.

52. If Plaintiff does not receive the requested accommodations on the Bar

Examination, her exam results will not reflect her knowledge of the law - the purpose of the Bar

Examination. The meager modifications offered by Defendants are unreasonable because they

do not accommodate Plaintiff's disability. U.S. Airways v. Bamett, 535 U.S. 391, 400 (2002).

See also, PGA Tour v. Martin, 532 U.S. 661 (2001). Moreover, without the proper

accommodation she will again fail the examination, which would adversely impact her ability to

practice law and cause further mental distress.

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53. If Plaintiff does not take the February 2011 Bar Examination with test

modifications that reasonable accommodate her disabilities, she will be irreparably harmed

because she will lose the extensive time she has invested in preparation for the Bar Examination;

she will be prevented from competing on a level playing field with other candidates sitting for

the Bar Examination and applying for admission into the New York State Bar; and she will be

delayed or prevented from proceeding with her application to the New York State Bar. Further,

Plaintiff's professional opportunities will be severely curtailed.

54. The accommodations requested by Plaintiff, including 50% extended test time on

the Bar Examination, are the type of accommodations that have been granted to other test-takers

with disabilities in prior administrations of the Bar Examination and would not fundamentally

alter the test.

FIRST CLAIM

(Violation of the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq.)

55. Plaintiff hereby incorporates by reference paragraphs I through 54 ofthis

Complaint as set forth herein.

56. Plaintiff is a qualified individual with a disability within the meaning of the ADA,

as amended, 42 U.S.C. §12102, in that she meets all the eligibility criteria for taking the Bar

Examination.

57. Title III of the ADA states in part, "It is discriminatory to fail to make reasonable

modifications to policies, practices and procedures when necessary to provide goods and services

to a person with a disability." Title III regulations specifically provide that accommodating an

individual with a disability may require the testing entity to change the length of the time for an

exam and/or the manner in which the examination is given. 28 C.F.R. §36.309 (b) (iii) (2).

Additionally, Title II of the ADA states that "no qualified individual with a disability shall, by

reason of such disability, be excluded from participation in or be denied the benefits ofthe

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64. The Board's policies and practices violate Plaintiffs rights under the ADA and

the regulations promulgated thereunder. Defendant's discriminatory policies and practices

include but are not limited to:

a. Failure to grant adequate accommodations when Plaintiff submitted the requisite

documentation and provided documentation of a history of disability;

b. Failure to give considerable weight to Plaintiffs evaluators' recommendations

(see, D'Amico v. New York State Board of Law Examiners, 813 F.Supp. 217

(W.D.N.Y. 1993);

c. Failure to engage in good faith in the interactive process to consider and

implement effective reasonable accommodations for Plaintiffs disability.

65. Plaintiff will be irreparably harmed if the Board continues its illegal refusal to

provide her the reasonable test accommodations, specifically the recommendations made by her

evaluators, in that:

a. Given her constellation of disabilities, without the 50% extended testing time

accommodation to which she is entitled under the ADA, Plaintiff is justifiably

concerned that she will, once again, fail the Bar Examination;

b. Plaintiffs legal career, which has already been stifled for nearly 9 months due to

the Board's refusal to provide reasonable accommodations on the July 2010 Bar

Examination, will continue to be restrained, further preventing her from

proceeding with her application to the New York State Bar and commencing her

career as an attorney;

Requiring Plaintiff to take the Bar Examination without sufficient accommodation

puts her at distinct disadvantage given her disabilities; and her inability to pass the

Bar Examination as a result of not receiving the proper accommodation

significantly reduces Plaintiffs future professional career options.

66. As a result ofthe Board's violation of the ADA, Plaintiff has suffered or will

suffer great injury, including, but not limited to, lost employment opportunities, out-of-pocket

pecuniary losses, and severe emotional distress and anguish. Plaintiff has already been delayed

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Case 1:11-cv-00612-BMC Document 1 Filed 02/07/11 Page 15 of 17.,-,

73. Due to considerations of judicial economy, convenience and fairness to litigants,

this Court has pendent jurisdiction pursuant to 28 U.S.C. § 1367, in that all facts of this matter

derive from a common nucleus of operative facts and Plaintiff expects to try them all in one

judicial proceeding.

74. Plaintiff is an individual with a disability within the meaning ofNYSHRL, NY

Exec. Law § 292, which ensures "that every individual within the state is afforded an equal

opportunity to enjoy a full and productive life .... without discrimination because of age, race ... or

disability" where disability is defined as "(a) physical, mental or medical impairment resulting

from anatomical, physiological or neurological conditions ... [which 1 is demonstrated by clinical

or laboratory diagnostic techniques or (b) a record of such an impairment or (c) a condition

regarded by others as such an impairment."

75. Defendant, the Board, has discriminated, and continues to discriminate, against

Plaintiff on the basis of her disability by denying her an equal opportunity to demonstrate her

aptitude and achievement level on the Bar Examination by failing to provide reasonable

accommodations in violation of NYSHRL. NY Exec. Law § 296.

76. As a result of the Board's violation ofNYSHRL, Plaintiff has suffered or will


pecuniary losses, and severe emotional distress and anguish.

77. The Board's conduct constitutes an ongoing and continuous violation of

NYSHRL. Unless enjoined from doing so, Defendant will continue to violate said law. Said

conduct, unless enjoined, will continue to inflict injuries for which Plaintiff has no adequate

remedy at law. Consequently, Plaintiff is entitled to injunctive relief and monetary relief under

the NYSHRL as under said law, in addition to injunctive relief, violations may be remedied by

compensatory damages.

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FOURTH CLAIM

<Violation of New York City Human Rights Law, N.Y.C. Admin. Code §8)

78. Plaintiff hereby incorporates by reference paragraphs I through 77 of the

complaint as set forth herein.

79. Defendant offers the Bar Examination in New York City.

80. Plaintiff is an individual with a disability within the meaning of the NYCHRL.

N.Y.C. Code § 8-102 (16)(a).

81. Defendant, the Board, has discriminated, and continues to discriminate, against

Plaintiff on the basis of her disability by denying her an equal opportunity to demonstrate her

aptitude and achievement level on the Bar Examination by failing to provide reasonable

accommodations in violation ofNYCHRL. N.Y.C. Code § 8-107.

82. As a result of the Board's violation of the NYCHRL, Plaintiff has suffered or will


pecuniary losses, and severe emotional distress and anguish.

83. The Board's conduct constitutes an ongoing and continuous violation of

NYCHRL. Unless enjoined from doing so, Defendant will continue to violate said law and will

continue to inflict injuries for which Plaintiff has no adequate remedy at law. Consequently,

Plaintiff is entitled to injunctive relief, damages (including punitive damages), reasonable

attorney's fees, and other monetary relief under the NYCHRL. N.Y.C. Code § 8-502.

RELIEF REOUESTED

WHEREFORE, Plaintiff prays for judgment as follows:

I. An order compelling the Board, or those acting as agents for or in concert with it,

to provide reasonable accommodations to Plaintiff Ebone Bishop, specifically 50% extended

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testing time in a distraction-free setting with off-the-clock breaks for each test session, on the

February 2011 Bar Examination and/or any later administration of the Bar Examination.

2. An order granting such other injunctive relief as may be appropriate;

3. An order granting declaratory relief;

4. Enter judgment against the Defendants awarding Plaintiff Ebone Bishop recovery

of her reasonable attorney's fees, costs and expenses incurred in pursuing her rights and in

bringing and prosecuting this litigation. The costs incurred thus far are in excess of $1 0,000,

including, but not limited to the payment offees as occasioned by the Defendants' denial of

Plaintiffs requests for reasonable accommodations, additional evaluations and reports by

qualified clinicians in order to confirm and claritY the nature of Plaintiff s disability to the

Board; and the need to engage counsel in pursuing her civil rights.

5. Enter judgment against the Defendants awarding Plaintiff such compensatory

damages as may be proven by Plaintiff and to which she is entitled; and,

6. Award for such other and further relief as the Court may deem just and proper.

Dated: Brooklyn, NY February ~, 2011

Respectfully submitted,

BY:~ n <? e~~~

~(; Simon, Esquire (Js-a"l13) Jo Anne Simon, P.C.

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356 Fulton Street, 3,d Floor Brooklyn, NY 11201 Telephone: 718-852-3528 Facsimile: 718-875-5728 Email: [email protected] Attorney for Plaintiff £bone Bishop

Documents

N, - Burton Blatt Institute at Syracuse Universitybbi.syr.edu/drba/docs/legal_bank/bishop_v_nys_bd_law_examiners.pdf · of business in Albany, New York, ... administration of the