1 16-2078-cv Pierce v. Fordham Univ., Inc.

UNITED STATES COURT OF APPEALS FOR THE SECO ND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AF TER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PR OCEDURE 32.1 AND THIS CO URT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMEN T FILED WITH THIS CO URT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATA BASE (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 Seco nd Circuit, held at the Thurgood Marshall United Stat es Courthouse, 40 Foley Sq uare, in the City of New York, on the 15 th day of June two thousand seventeen.

PRESENT: R ALPH K. W INTER , C HRISTOPHER F. D RONEY , Circuit Judges

, A NN M. D ONNELLY , District Judge

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---------------------------- ---------------------------- -------------- E MILY P IERCE , Plaintiff-Appellant

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v. No. 16-2078-cv

F ORDHAM U NIVERSITY , I NC ., G RADUATE SCHOOL OF S OCIAL S ERVICES , P RESIDENT R EV J OSEPH M C S HANE , D EAN D EBRA M. M C F EE , P H D, D EAN S USAN E GAN , D EAN K EITH E LDREDGE , U NITED S TATES D EPARTMENT OF E DUCATION O FFICE OF C IVIL R IGHTS , A CTING D IRECTOR R ACHEL P OMERANTZ , E SQ ., R ONALD M. S COTT , E SQ ., N EW Y ORK E NFORCEMENT O FFICE , Defendants-Appellees

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* Judge Ann M. Donnelly, United States Di strict Court for the Eastern District of New York, sitting by designation.2 FOR PLAINTIFF-APPELLANT: A NDREA R ISOLI , 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: J OHN T.A. R OSENTHAL (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: C HRISTINE S. P OSCABLO , 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’ mo tions to dismiss Pierce’s se cond amended complaint. In that complaint, Pierce clai med that Fordham University a nd several of its officers and employees discriminated against he r 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 1 964, 42 U.S.C. §§ 2000d et seq. , by requesting certain medical information from her wh en she sought to reenter For dham’s Masters of Social Work program after taking a medical leave of abse nce. Pierce also cl aimed that the United States Department of Education’s Office for Civil Rights (“the Office”) and several of its employees violated those laws and the Admi nistrative Procedure Act, 5 U.S.C. §§ 701 et
seq. , by failing to investigate and render a decisi on on Pierce’s administrative complaint to the Office concerning Fordham’s behavior. Pi erce sought injunctive relief ordering the Office to render a decision on that complaint. The district c ourt denied Pierce’s requested relief against the Office as m oot because the Office had rendered a determination, and3 dismissed Pierce’s claims against the Fordha m defendants pursuant to Federal Rule of Civil Procedure 12(b)(6). The court then deni ed Pierce’s request for leave to amend her complaint because amendment wo uld 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 dete rmination that a clai m is moot and its decision to dismiss a claim pur suant to Rule 12(b)(6) is de novo

. Lowinger v. Morgan Stanley & Co. LLC , 841 F.3d 122, 12 9 (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 th e 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 discer n 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 Pi erce’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 comp laint 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 determ ination not to take enforcement action is unreviewable).

Turning to Pierce’s claims against Fordha m and its officers and employees, the district court properly dismisse d 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 Ac t 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 discriminate d 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.

1 The Director of the New York O ffice for Civil Rights has since denied the appeal of that decision.4 That leaves Pierce’s claims pur suant to Title III of the ADA. 2 First, the district court properly dismissed Pierce’s retaliation cl aim under that Title. According to the documents Pierce attached to he r complaint in this case, Pier ce’s complaint to the Office for Civil Rights was submitted after Pierce so ught 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 docum ents. As to Pierce’s other theory of retaliation, although Pierce alleges that she told Fordham’s financia l 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 f acts 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 He alth Insurance Portabi lity 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 an d those associated with it intentionally discriminated against her in viol ation of Title III of the ADA. The exact nature of Pierce’s claim of intentional discrimina tion is difficult to discern. The district court construed Pierce’s claim as alleging that she was unlaw fully discriminated against because she was treated differently than other Fordham students with mental health i ssues. We agree with the district court’s dismissal of this claim. Other than conclusory allegations, Pierce points to no comparable students treated di fferently, and she concedes that it was “understandable” that Fordham had such reen try procedures. Further, Pierce has not sufficiently alleged that Fordham (and its empl oyees) 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 a ny qualified individual with a disability because of the disability of such individual.” (emphasis adde d) (internal quotation marks omitted)).

Finally, we reject Pierce’s alternative argu ment that she should be allowed to amend her complaint. Pierce’s claims cannot be cu red 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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2 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).5 711 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 cl aims and conclude that they are without merit. The judgment of the district court is accordingly AFFIRMED

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FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court