11‐4276‐cv

Aidan A. Smith v. Michael Hogan, et al.

In the

United States Court of Appeals

For the Second Circuit ________

August Term, 2014

No. 11‐4276‐cv

AIDAN A. SMITH,

Plaintiff‐Appellant,

v.

MICHAEL HOGAN, President of the University of Connecticut, PHILIP

AUSTIN, Interim President of the University of Connecticut, THE

BOARD OF TRUSTEES FOR THE UNIVERSITY OF CONNECTICUT, C. DENNIS

PIERCE, Director of Dining Hall Services for the University of

Connecticut, Hearing Officer, VALICIA D. HARMON, DANA R. MCGEE,

Director of the Office of Diversity and Equity, UNIVERSITY OF

CONNECTICUT, and STATE OF CONNECTICUT,

1

Defendants‐Appellees.

________

Appeal from the United States District Court

for the District of Connecticut.

No. 3:10‐cv‐1025 (JBA) ― Janet Bond Arterton, Judge.

________

Submitted: April 21, 2015

Decided: July 22, 2015

________

1 The Clerk of Court is directed to amend the caption as set forth above.
No. 11‐4276‐cv

Before: KEARSE, PARKER, AND WESLEY, Circuit Judges.

________

Plaintiff‐appellant Aidan A. Smith appeals from a judgment of

the United States District Court for the District of Connecticut

(Arterton, J.) granting defendants’ motion to dismiss his complaint

for lack of standing and for failure to state a claim upon which relief

could be granted, and denying leave to amend. AFFIRMED.

________

ARTHUR A. SMITH, Hartford, CT, for Plaintiff‐

Appellant Aidan A. Smith.

PHILIP MILLER, Assistant Attorney General, for

George Jepsen, Attorney General for the State of

Connecticut, Hartford, CT, for Defendants‐

Appellees.

_____  

BARRINGTON D. PARKER, Circuit Judge:

BACKGROUND

Plaintiff‐appellant Aidan A. Smith appeals from a judgment of

the United States District Court for the District of Connecticut

(Arterton, J.) dismissing his complaint pursuant to Rules 12(b)(1)

and 12(b)(6) of the Federal Rules of Civil Procedure.    Because we

conclude that an affidavit attached as an exhibit to a complaint is not

a “written instrument” that is deemed part of the complaint

pursuant to Rule 10(c), we affirm the district court’s dismissal of

Smith’s wrongful termination claims brought under the Americans

with Disabilities Act and the Rehabilitation Act.  We also affirm the

district court’s dismissal of Smith’s remaining claims for lack of

standing and for failure to state a claim upon which relief can be

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No. 11‐4276‐cv

granted.    Finally, we affirm the district court’s denial of Smith’s

motion for leave to amend his complaint, a motion which was first

made following the entry of the final judgment.

Because this appeal arises from the district court’s dismissal of

Smith’s complaint, the following facts are drawn from the Amended

Complaint and accepted as true.  Over a period of time, Smith has

suffered from a series of medical problems including bronchitis,

bipolar disorder, a learning disability, attention deficit disorder, and

post‐traumatic stress disorder.   While in high school, Smith began to

work for the University of Connecticut (the “University”) in its

Dining Hall Services as a student employee and continued to work

there after enrolling at a local community college in 2009.

On September 14, 2009, Smith began to “feel[] ill while

[working] on the food line.”  JA 323.  A supervisor told Smith to get

a face mask, but because Smith “feared his bronchitis was re‐

occurring,” he did not return to the food line.  Id.  Smith alleges that

his treating physician told him that it was “likely to have been

bronchitis” that made him feel ill on that day. JA 324.  Smith asserts

that under Connecticut Public Health Code section 19‐13‐B42(r), he

was prohibited from returning to the food serving line with

bronchitis.    See id.    Further, because of the ongoing H1N1 (“swine

flu”) epidemic at the time of this incident, the University had

“posted signs in dining halls that employees did not need doctor’s

excuses if feeling too ill to work.” Id.   Nevertheless, the University

terminated Smith’s employment because he left a food serving shift

without a supervisor’s permission, an immediately terminable

offense under applicable University regulations.

Smith unsuccessfully challenged his discharge through the

University’s internal grievance procedures. Following these

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No. 11‐4276‐cv

proceedings, Smith’s father, an attorney who represents him on this

appeal, contacted the University and made requests pursuant to the

Connecticut Freedom of Information (“CTFOI”) Act seeking various

documents. Specifically, Smith’s father requested “information

related to [the] University of Connecticut Dining Hall Services[‘]

policy or pro‐active H1N1 procedures,” and a CTFOI Commission

hearing “to challenge the University’s failure to comply with the

CTFOI Act.”   JA 329.    Prior to the hearing, Smith’s father served

subpoenas on several University officials and employees, including

the University’s president, its dining services director, and its

attorney.    According to Smith, the University’s attorney made ex

parte contact with the CTFOI hearing officer, and requested a

motion to quash the subpoenas and a protective order to preclude

additional subpoenas, both of which were granted.

In March 2010, Smith filed a complaint with the Connecticut

Commission on Human Rights and Opportunities (“CHRO”) and

the United States Equal Employment Opportunity Commission

(“EEOC”).   In August 2010, the CHRO issued a Merit Assessment

Review, concluding that Smith had stated a valid claim for relief.

The CHRO also issued a Release of Jurisdiction and the EEOC issued

its Notice of Right to Sue.

Smith subsequently filed this lawsuit, bringing claims against

(1) the University and its officers for discriminatory discharge under

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

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

seq., (2) CTFOI hearing officer Valicia D. Harmon for violating his

father’s First Amendment rights by granting the University’s motion

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No. 11‐4276‐cv

to quash and motion for a protective order, and (3) all defendants for

depriving him of his substantive due process rights.2

  

The defendants moved to dismiss the complaint pursuant to

Rules 12(b)(1) and 12(b)(6).    In September 2011, the district court

granted defendants’ motion to dismiss.  As relevant to this appeal,

the court held that (1) Smith’s ADA and Rehabilitation Act claims

failed because bronchitis is not a qualifying disability under either

statute, and Smith’s alternate theory of discrimination based on an

alleged anxiety disorder was not pled in the Amended Complaint,

(2) Smith lacked standing to raise a First Amendment claim on

behalf of his father, and (3) Smith’s substantive due process claim

failed because the “right” to comply with state health codes does not

warrant protection under the substantive due process clauses of

either the Fifth or the Fourteenth Amendments.  After dismissing the

federal claims, the district court declined to exercise supplemental

jurisdiction over Smith’s remaining state law claims, and entered

judgment in defendants’ favor.  See Smith v. Hogan, No. 3:10‐cv‐1025,

2011 WL 4433879 (D. Conn. Sept. 22, 2011).  

In October 2011, Smith filed his notice of appeal in this Court

and two motions in the district court – one for reconsideration and

one to alter or amend the judgment.   The district court treated the

two motions as a single motion for reconsideration.   In November

2011, Smith moved to amend the complaint.    This Court stayed

Smith’s appeal pending the district court’s ruling on the various

motions.

1 Smith also raised Fourth and Fifth Amendment claims against the University’s

Office of Diversity and Equity and its director, Dana R. McGee, in connection with its

independent investigation of Smith’s allegations.   Because Smith does not discuss the

district court’s dismissal of these claims in his brief, he has waived them on appeal.   See

Lore v. City of Syracuse, 670 F.3d 127, 149 (2d Cir. 2012).

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No. 11‐4276‐cv

Ultimately, the district court denied Smith’s motion for

reconsideration for largely the same reasons set forth in its original

decision.  See Smith v. Hogan, No. 3:10‐cv‐1025, 2014 WL 5460716 (D.

Conn. Oct. 27, 2014).    Shortly thereafter, the district court denied

Smith’s motion for leave to amend, “[c]onstruing [it] as a second

motion for reconsideration (in light of the procedural posture of the

case).”  JA 316.3

  This Court subsequently lifted the stay on Smith’s

appeal.

STANDARD OF REVIEW

This Court reviews de novo a district court’s dismissal for

failure to state a claim, see Town of Babylon v. Fed. Hous. Fin. Agency,

699 F.3d 221, 227 (2d Cir. 2012), or for lack of subject matter

jurisdiction, see Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474

(2d Cir. 2006).    While ordinarily, “[w]e review denial of leave to

amend under an  ʹabuse of discretionʹ  standard[,] [w]hen the denial

of leave to amend is based on a legal interpretation, such as a

determination that amendment would be futile, a reviewing court

conducts a de novo review.” Hutchison v. Deutsche Bank Sec. Inc., 647

F.3d 479, 490 (2d Cir. 2011) (citation omitted).    A district court’s

denial of a motion for reconsideration is reviewed for abuse of

discretion.  See RJE Corp. v. Northville Indus. Corp., 329 F.3d 310, 316

(2d Cir. 2003).

2 “A party seeking to file an amended complaint post[‐]judgment must first have the

judgment vacated or set aside pursuant to Fed. R. Civ. P. 59(e) or 60(b).” Ruotolo v. City of

New York, 514 F.3d 184, 191 (2d Cir. 2008).  Accordingly, the district court appropriately

construed the motion to amend the complaint as a second motion for reconsideration of its

ruling on the motion to dismiss.

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No. 11‐4276‐cv

DISCUSSION

I. ADA and Rehabilitation Act Claims

In order to establish a prima facie case of employment

discrimination under the ADA or the Rehabilitation Act, a plaintiff

must adequately plead that he was terminated because of a

qualifying disability.  See, e.g., McMillan v. City of New York, 711 F.3d

120, 125 (2d Cir. 2013) (ADA); Doe v. Pfrommer, 148 F.3d 73, 82 (2d

Cir. 1998) (Rehabilitation Act).    The only theory of wrongful

termination pled in Smith’s complaint is that he “was terminated . . .

because he left a food serving shift without prior supervisory

permission while ill.”    JA 323.    The only basis for feeling ill that

Smith references in his complaint is that he thought he had

bronchitis.  Further, he believed that he did not need a supervisor’s

permission to leave when he was feeling sick because he had a right

to do so pursuant to Connecticut’s Health Code.    See JA 323‐24.

However, Smith conceded at oral argument before the district court

that bronchitis is not a qualifying disability under either the ADA or

the Rehabilitation Act, and he has not attempted to re‐litigate the

issue on this appeal.

Instead, Smith argued in opposition to defendants’ motion to

dismiss and again on this appeal that he was terminated because of

his anxiety resulting from being asked to work on the salad line.  See,

e.g., Smith Br. 28 (describing Smithʹs “disabling condition[]” as being

“anxious about making wraps”).  However, the  complaint includes

no allegations that the University knew, or should have known, that

Smith’s purported anxiety disorder was triggered by being asked to

make salads.  More critically, the complaint includes no allegations

that Smith’s illness on September 14, 2009 was even caused by

anxiety.    Accordingly, the only legal theory articulated in Smith’s

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No. 11‐4276‐cv

complaint is that he was terminated because of his bronchitis, or the

University’s failure to accommodate his bronchitis.

Smith contends that his complaint adequately pleads an

anxiety‐based wrongful termination claim because it attaches an

October 9, 2009 affidavit that Smith submitted in connection with the

University grievance proceeding.  The affidavit, which  is part of 170

pages of exhibits attached to the complaint, is Smith’s four‐page

summary of his work history at the University and of the events that

occurred in the cafeteria on September 14.    Specifically, he alleges

that working on the salad line was “a high anxiety performance

task” because he “had little training at that task,”  that he asked to be

reassigned to another task, and that after the request was denied, he

began to feel sick to his stomach.  JA 8.

The district court declined to consider the allegations in the

affidavit for two separate reasons: (1) the affidavit was not a

“written instrument” as contemplated by Rule 10(c) and thus, not

properly considered as part of the complaint, and (2) the affidavit

contains a legal theory–discrimination on the basis of anxiety while

serving food–that does not appear on the face of the complaint.  See

Smith, 2011 WL 4433879, at *4‐5.    Accordingly, the district court

dismissed Smith’s ADA and Rehabilitation Act claims.  Because we

agree that the  affidavit is not a “written instrument” for purposes of

Rule 10(c), or otherwise properly considered to be part of the

complaint on a motion to dismiss, we affirm the district court’s

dismissal of these claims.

Rule 10(c) provides that “[a] copy of a written instrument that

is an exhibit to a pleading is a part of the pleading for all purposes.”

Defendants contend that a plaintiff’s affidavit is not a “written

instrument” because it is not a document evidencing legal rights or

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No. 11‐4276‐cv

duties or giving formal expression to a legal act or agreement, such

as a deed, will, bond, lease, insurance policy or security agreement.

See Def. Br. 22‐23.  We agree.

While this Court has not previously ruled on the extent to

which Rule 10(c) applies to a plaintiff’s affidavit attached to

pleadings, two of our sister courts have.  In Rose v. Bartle, 871 F.2d

331, 339 n.3 (3d Cir. 1989), the Third Circuit held that affidavits are

not written instruments, noting that “the types of exhibits

incorporated within the pleadings by Rule 10(c) consist largely of

documentary evidence, specifically, contracts, notes, and other

writing[s] on which [a party’s] action or defense is based.” (internal

quotation marks omitted).  The Seventh Circuit held to the contrary

in Northern Indiana Gun & Outdoor Shows, Inc. v. City of South Bend,

163 F.3d 449, 453 & n.4 (7th Cir. 1998), concluding without

explanation that affidavits and exhibits attached to a complaint are

“written instruments” under Rule 10(c). Accord Schnell v. City of

Chicago, 407 F.2d 1084, 1085 (7th Cir. 1969), overruled on other grounds

by City of Kenosha v. Bruno, 412 U.S. 507, 512‐13 (1973) (“[A]ffidavits

and exhibits attached to the complaint are a part thereof for all

purposes.”).

We find the Third Circuit’s holding to be more persuasive and

align ourselves with that holding because it is consistent with the

general understanding of what a legal or a written instrument is, i.e.,

a “legal document that defines rights, duties, entitlements, or

liabilities, such as a statute, contract, will, promissory note, or share

certificate[,]”  Black’s Law Dictionary (10th ed. 2014).  The affidavit

proffered by Smith, a personal, narrative summary of his

experiences working in the cafeteria and of the events that occurred

on the day he was discharged, bears no resemblance to instruments

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No. 11‐4276‐cv

such as contracts, registration statements, deeds or indentures.  It is

not a document that evidences legal rights or duties or sets forth the

legal basis for his claims and therefore does not satisfy the definition

of “written instrument.”   

To be sure, this Court has permitted the consideration of other

documents, apart from written instruments under Rule 10(c), at the

motion to dismiss stage, such as “documents    that the plaintiffs

either possessed or knew about and upon which they relied in

bringing the suit.” City of Pontiac Policemen’s & Firemen’s Ret. Sys. v.

UBS AG, 752 F.3d 173, 179 (2d Cir. 2014) (internal quotation marks

omitted), including filings with the Securities and Exchange

Commission or a prospectus, see Cortec Indus., Inc. v. Sum Holding

L.P., 949 F.2d 42, 47‐48 (2d Cir. 1991).   Further, we have explained

that a court may consider an “integral” document where the

complaint “relies heavily upon its terms and effect[.]”  Intʹl Audiotext

Network, Inc. v. Am. Tel. & Tel. Co., 62 F.3d 69, 72 (2d Cir. 1995).

Smith’s affidavit, a writing of his own creation that post‐dates his

termination, is not a part of his complaint even under these

standards. In contrast to a public filing or a prospectus, the

assertions in the affidavit have no independent legal significance to

Smith’s claim. The affidavit is not a document that he relied upon in

bringing his wrongful termination claim, nor is it a document that is

integral to the complaint as it is never even mentioned there.

Finally, treating the affidavit as part of the complaint would

do considerable damage to Rule 8(a)’s notice requirement.    The

affidavit, buried in 170 pages of exhibits, contains novel factual

allegations and purports to support a legal theory that appears

nowhere on the face of the Amended Complaint.  If such an affidavit

could be deemed part of a complaint, then Rule 8(a)’s requirement of

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No. 11‐4276‐cv

a short and plain statement of a claim for which relief could be

granted would be eviscerated.  The exercise of determining exactly

what combination of documents constitutes the complaint and what

the complaint plausibly alleges would become a needlessly

complicated adventure for both defendants and courts.  Even more

troubling, adopting Smith’s position would severely compromise the

ability of defendants and courts to test the legal viability of

complaints at the pleading stage, a right that is integral to federal

procedure.

II. First Amendment Claim

Smith brought a First Amendment claim against hearing

officer Harmon on behalf of his father for improperly quashing the

subpoenas that his father served on various University officers and

employees.

Typically, a plaintiff who asserts the claims of a third party

can obtain standing by establishing “(1) a close relationship to the

injured party and (2) a barrier to the injured party’s ability to assert

its own interests.”    W.R. Huff Asset Mgmt. Co., LLC v. Deloitte &

Touche LLP, 549 F.3d 100, 109 (2d Cir. 2008).    The district court

dismissed this claim, holding that because Smith “is unable to

demonstrate a barrier to his father’s ability to assert his own First

Amendment rights[,]” he does not have standing to bring a First

Amendment claim on his father’s behalf.  Smith, 2011 WL 4433879, at

*5.

On appeal, Smith argues that if his father were to bring a

claim on his own behalf, his interests “may come into conflict” with

his son’s litigation position.  Smith Br. 23.  This conclusory assertion

is not supported by any identification of the purported inconsistency

between the two litigation positions. Nor does Smith offer an

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No. 11‐4276‐cv

explanation as to why his father could not have continued to pursue

the FOI issues in his own capacity while representing him in this

lawsuit.  

In the alternative, Smith contends that he has standing to

bring a First Amendment claim as a facial challenge to an overbroad

“practice or enactment.”  Id. at 24.  But Smith does not challenge any

statute, regulation, or practice as facially overbroad.  Rather, his First

Amendment claim arises from the hearing officer’s specific ruling on

the University’s motions to quash the subpoenas.  Accordingly, we

affirm the district court’s dismissal of this claim.  

III. Substantive Due Process Claim

Smith contends that the University deprived him of his

“substantive due process liberty right to comply with state health

codes.”    Id. at 26.    This contention has no merit.    Substantive due

process protections extend only to those interests that are “implicit

in the concept of ordered liberty,” Palko v. Connecticut, 302 U.S. 319,

325 (1937), which are rights “so rooted in the traditions and

conscience of our people as to be ranked as fundamental,” Reno v.

Flores, 507 U.S. 292, 303 (1993) (internal quotation marks omitted).

Smith argues that “[c]ompliance with health laws for the student

employee, the lesson of learning to have regard for the well being of

others, as well as for the economic benefit for oneself, is such a

privilege that is essential to the orderly pursuit of happiness.”  Smith

Br. 27.    We agree with the district court that “[c]omplying with

health codes” is not an interest that is “fundamental and deeply

rooted . . . comparable to the right to marry, the right to have and

raise children, or the right to bodily integrity,”    Smith, 2011 WL

4433879, at *8.    Consequently, we affirm its dismissal of Smith’s

substantive due process claim.

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No. 11‐4276‐cv

IV. District Courtʹs Ruling on Smith’s Motion for Leave to

Amend

Finally, Smith argues that the district court erred in refusing

“to grant leave to replead after a motion to dismiss, without

justification for the futility of plaintiff’s” claims.  Smith Br. 15; see also

id. at 21‐22.   Because Smith’s motion for leave to amend was filed

after entry of final judgment, the district court construed Smith’s

motion for leave to amend as a second motion for reconsideration.

The district court denied Smith’s motion, noting that it “raises

substantially the same arguments raised in [his] first motion for

reconsideration, [which were] already considered and denied by this

Court.” JA 316.

As previously noted, Smith sought leave to replead only after

judgment had been entered.  Because he did not succeed in having

the judgment vacated, he was not entitled to replead at this stage of

the case.     See Natʹl Petrochemical Co. of Iran v. M/T Stolt Sheaf, 930

F.2d 240, 244‐45 (2d Cir. 1991) (explaining that Rule 15(a)’s liberal

amendment policy should not “be employed in a way that is

contrary to the philosophy favoring finality of judgments and the

expeditious termination of litigation” (internal quotation marks

omitted)).

CONCLUSION

For these reasons, we AFFIRM the judgment of the district

court.

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