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16-2078-cv 

Pierce v. Fordham Univ., Inc. 

UNITED STATES COURT OF APPEALS 

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A 

SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY 

FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. 

WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST 

CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION 

“SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON 

ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at 

the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New 

York, on the 15th day of June two thousand seventeen. 

PRESENT: RALPH K. WINTER, 

CHRISTOPHER F. DRONEY, 

Circuit Judges, 

 ANN M. DONNELLY, 

District Judge.

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EMILY PIERCE, 

Plaintiff-Appellant, 

v. No. 16-2078-cv 

 

FORDHAM UNIVERSITY, INC., GRADUATE SCHOOL OF 

SOCIAL SERVICES, PRESIDENT REV JOSEPH MCSHANE,

DEAN DEBRA M. MCFEE, PHD, DEAN SUSAN EGAN, DEAN 

KEITH ELDREDGE, UNITED STATES DEPARTMENT OF 

EDUCATION OFFICE OF CIVIL RIGHTS, ACTING DIRECTOR 

RACHEL POMERANTZ, ESQ., RONALD M. SCOTT, ESQ.,

NEW YORK ENFORCEMENT OFFICE,

 Defendants-Appellees. 

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 Judge Ann M. Donnelly, United States District Court for the Eastern District of New York, sitting by designation. 
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 FOR PLAINTIFF-APPELLANT: ANDREA RISOLI, Risoli Law Offices, 

New York, NY. 

FOR DEFENDANTS-APPELLEES 

FORDHAM UNIVERSITY, GRADUATE 

SCHOOL OF SOCIAL SERVICES, 

PRESIDENT REV JOSEPH McSHANE, 

DEAN DEBRA M. McPHEE, PHD, 

DEAN SUSAN EGAN, DEAN KEITH 

ELDREDGE: 

JOHN T.A. ROSENTHAL (Kevin J. 

Harrington, on the brief), Harrington, 

Ocko & Monk, LLP, White Plains, NY. 

FOR DEFENDANTS-APPELLEES 

UNITED STATES DEPARTMENT OF 

EDUCATION OFFICE OF CIVIL 

RIGHTS, RACHEL POMERANTZ, 

ESQ., RONALD M. SCOTT, ESQ., NEW 

YORK ENFORCEMENT OFFICE: 

CHRISTINE S. POSCABLO, Assistant 

United States Attorney (Benjamin H. 

Torrance, Assistant United States 

Attorney, on the brief), for Preet Bharara, 

United States Attorney for the Southern 

District of New York, New York, NY. 

Appeal from a June 2, 2016, judgment of the United States District Court for the 

Southern District of New York (Furman, J.). 

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, 

AND DECREED that the judgment of the district court is AFFIRMED. 

Plaintiff-Appellant Emily Pierce appeals from a judgment of the district court 

granting Defendants-Appellees’ motions to dismiss Pierce’s second amended complaint. 

In that complaint, Pierce claimed that Fordham University and several of its officers and 

employees discriminated against her on the basis of her mental health disability in violation 

of the Americans with Disabilities Act of 1990 (“the ADA”), as amended, 42 U.S.C. 

§§ 12101 et seq., the Rehabilitation Act of 1973, 29 U.S.C. §§ 701 et seq., and Title VI of 

the Civil Rights Act of 1964, 42 U.S.C. §§ 2000d et seq., by requesting certain medical 

information from her when she sought to reenter Fordham’s Masters of Social Work 

program after taking a medical leave of absence. Pierce also claimed that the United 

States Department of Education’s Office for Civil Rights (“the Office”) and several of its 

employees violated those laws and the Administrative Procedure Act, 5 U.S.C. §§ 701 et 

seq., by failing to investigate and render a decision on Pierce’s administrative complaint to 

the Office concerning Fordham’s behavior. Pierce sought injunctive relief ordering the 

Office to render a decision on that complaint. The district court denied Pierce’s requested 

relief against the Office as moot because the Office had rendered a determination, and 
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dismissed Pierce’s claims against the Fordham defendants pursuant to Federal Rule of 

Civil Procedure 12(b)(6). The court then denied Pierce’s request for leave to amend her 

complaint because amendment would be futile. Pierce now appeals. We assume the 

parties’ familiarity with the underlying facts, the procedural history of the case, and the 

issues on appeal. 

Our review of both a district court’s determination that a claim is moot and its 

decision to dismiss a claim pursuant to Rule 12(b)(6) is de novo. Lowinger v. Morgan 

Stanley & Co. LLC, 841 F.3d 122, 129 (2d Cir. 2016); N.Y. Civil Liberties Union v. 

Grandeau, 528 F.3d 122, 128 (2d Cir. 2008). 

With regard to Pierce’s claims against the Office (and certain of its employees), the 

district court correctly found that the Office had issued a decision on her complaint, thus 

rendering those claims moot.1

 Although the exact nature of Pierce’s claims against the 

Office and its employees is difficult to discern from the operative complaint, Pierce made 

clear in a subsequent filing that she sought only to have the Office issue a decision in her 

case. Once the Office issued a decision, “the issues presented” by Pierce’s claim were “no 

longer ‘live.’” Tann v. Bennett, 807 F.3d 51, 52 (2d Cir. 2015). The district court also 

correctly rejected Pierce’s attempt to recast her claim as an allegation that the Office 

retaliated against her because its decision was unfavorable. That was not Pierce’s claim. 

Moreover, permitting Pierce to amend her complaint to include such a claim would have 

been futile. See Marlow v. U.S. Dep’t of Educ., 820 F.2d 581, 582–83 (2d Cir. 1987) 

(concluding that Office for Civil Rights determination not to take enforcement action is 

unreviewable). 

Turning to Pierce’s claims against Fordham and its officers and employees, the 

district court properly dismissed all of those claims because they did not state plausible 

claims for relief. As an initial matter, we agree with the court’s decision that Pierce’s 

claims under Title VI of the Civil Rights Act and Title II of the ADA fail. Title VI 

prohibits discrimination on the basis of race, color, or national origin, and Pierce never 

asserted that she was discriminated against on any of those grounds. See 42 U.S.C. § 

2000d. Title II applies only to state and local governments, their instrumentalities, and 

commuter authorities. See 42 U.S.C. §§ 12131, 12132; Mary Jo C. v. N.Y. State & Local 

Ret. Sys., 707 F.3d 144, 162–63 (2d Cir. 2013). Thus, Fordham and its 

defendant-employees are not appropriate defendants for these claims. 

 

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 The Director of the New York Office for Civil Rights has since denied the appeal of that decision. 
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That leaves Pierce’s claims pursuant to Title III of the ADA.2 First, the district 

court properly dismissed Pierce’s retaliation claim under that Title. According to the 

documents Pierce attached to her complaint in this case, Pierce’s complaint to the Office 

for Civil Rights was submitted after Pierce sought readmission to Fordham and refused to 

comply with Fordham’s reentry requirements. Pierce’s assertion on appeal that she 

submitted her complaint to the Office during the course of her attempt to rejoin Fordham is 

not supported by her complaint or those documents. As to Pierce’s other theory of 

retaliation, although Pierce alleges that she told Fordham’s financial aid office that she 

believed that office’s requests related to an earlier absence violated the ADA before she 

sought readmission, Pierce does not allege facts from which we could reasonably infer that 

the individuals involved with the reentry process knew about that statement. As the 

district court noted, the documents attached to the complaint showed only that Pierce may 

have told individuals (who were apparently not related to the reentry process) that the 

financial aid office’s request violated the Health Insurance Portability and Accountability 

Act of 1996, 29 U.S.C. §§ 1181 et seq., 42 U.S.C. §§ 1320d et seq., not the ADA. Pierce 

therefore cannot establish a prima facie case of retaliation on this ground either. Treglia 

v. Town of Manlius, 313 F.3d 713, 719 (2d Cir. 2002) (noting that decision maker must 

know about plaintiff’s protected activity). 

Second, Pierce also alleged that Fordham and those associated with it intentionally 

discriminated against her in violation of Title III of the ADA. The exact nature of Pierce’s 

claim of intentional discrimination is difficult to discern. The district court construed 

Pierce’s claim as alleging that she was unlawfully discriminated against because she was 

treated differently than other Fordham students with mental health issues. We agree with 

the district court’s dismissal of this claim. Other than conclusory allegations, Pierce 

points to no comparable students treated differently, and she concedes that it was 

“understandable” that Fordham had such reentry procedures. Further, Pierce has not 

sufficiently alleged that Fordham (and its employees) harbored any discriminatory animus 

against her. See Sista v. CDC Ixis N. Am., Inc., 445 F.3d 161, 169 (2d Cir. 2006) (“The 

ADA prohibits discrimination against any qualified individual with a disability because of 

the disability of such individual.” (emphasis added) (internal quotation marks omitted)). 

Finally, we reject Pierce’s alternative argument that she should be allowed to amend 

her complaint. Pierce’s claims cannot be cured by amendments, and she has not specified 

“what additional factual allegations” she would include to remedy the deficiencies in any 

claims even if they were potentially curable. WC Capital Mgmt., LLC v. UBS Sec., LLC, 

 

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 The same claims were brought under § 504 of the Rehabilitation Act. As the district court properly noted, those 

claims are treated the same as the Title III ADA claims and were dismissed by the district court on the same basis. 

See Rodriguez v. City of N.Y., 197 F.3d 611, 618 (2d Cir. 1999). 
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711 F.3d 322, 334 (2d Cir. 2013). Indeed, Pierce had an opportunity to amend her 

complaint and failed to address any of its deficiencies at that time. 

We have reviewed all of Pierce’s other claims and conclude that they are without 

merit. The judgment of the district court is accordingly AFFIRMED. 

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk of Court