23-465-cv

Witcher v. New York City Department of Education

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 

28th day of June, two thousand twenty-four. 

PRESENT: 

GERARD E. LYNCH,

MYRNA PÉREZ,

MARIA ARAÚJO KAHN,

Circuit Judges. 

_____________________________________ 

SELENA C. WITCHER,

Plaintiff-Appellant, 

v. No. 23-465 

NEW YORK CITY DEPARTMENT OF 

EDUCATION, DR. COLLIN WOLFE, 

DR. LORENA MORENO, VICTORIA 

WALTERS, 

Defendants-Appellees.

*

_____________________________________ 

* The Clerk of Court is respectfully directed to amend the caption as displayed above.
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FOR PLAINTIFF-APPELLANT: SELENA C. WITCHER, pro se, Jamaica, 

NY. 

FOR DEFENDANTS-APPELLEES: CHASE H. MECHANICK (MacKenzie 

Fillow, on the brief), for Sylvia O. 

Hinds-Radix, Corporation Counsel of 

the City of New York, New York, 

NY.

Appeal from a judgment of the United States District Court for the Southern District of 

New York (Gardephe, Judge; Netburn, Magistrate Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 

DECREED that the judgment of the district court is AFFIRMED in part and VACATED in part, 

and the action is REMANDED for further proceedings consistent with this order. 

Plaintiff-Appellant Selena Witcher worked as a special education teacher for the New York 

City Department of Education. She alleged in a pro se complaint that she was subjected to 

discrimination and retaliation after she obtained a remote-work accommodation in September 2020 

for her obesity, which elevated her risk of developing severe illness from COVID-19. Among 

the defendants named in the operative complaint were the principal and assistant principal at her 

school, who allegedly made false accusations about her performance, issued disciplinary writeups, demoted her to a more demanding position, discontinued her probation, and denied her tenure. 

The defendants moved to dismiss the operative amended complaint under Federal Rule of

Civil Procedure 12(b)(6), contending that Witcher failed to allege plausible claims under the 

Americans with Disabilities Act of 1990 (“ADA”), the New York State Human Rights Law 
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(“NYSHRL”), and the New York City Human Rights Law (“NYCHRL”).

1

 Adopting the 

magistrate judge’s report and recommendation, Judge Gardephe dismissed Witcher’s ADA claims, 

declined to exercise supplemental jurisdiction over the NYSHRL and NYCHRL claims, and 

declined to permit further leave to amend. See generally Witcher v. N.Y.C. Dep’t of Educ., 

No. 21-CV-07750 (PGG) (SN), 2023 WL 2609342 (S.D.N.Y. Mar. 23, 2023). Witcher timely

appealed. As we write primarily for the parties, we assume familiarity with the facts and 

procedural history of this case and set forth only what is necessary to explain our disposition. 

STANDARD OF REVIEW

We review de novo the district court’s dismissal of a complaint pursuant to Rule 12(b)(6), 

construing the complaint liberally, accepting all factual allegations in the complaint as true, and 

drawing all reasonable inferences in Witcher’s favor. See Collins v. Putt, 979 F.3d 128, 132 (2d 

Cir. 2020). To survive a Rule 12(b)(6) motion to dismiss, the complaint must contain sufficient 

factual matter, accepted as true, to state a plausible claim to relief. Ashcroft v. Iqbal, 556 U.S. 

662, 678 (2009). The submissions of pro se litigants are construed to raise the strongest claims 

and arguments they suggest. McLeod v. Jewish Guild for the Blind, 864 F.3d 154, 156 (2d Cir. 

2017) (per curiam).

DISCUSSION

Upon careful review, we agree that Witcher failed to plead ADA discrimination and failure 

1 Witcher brought other claims below that she has now either expressly or implicitly abandoned. See LoSacco v. City 

of Middletown ̧ 71 F. 3d 88, 92–93 (2d Cir. 1995). She also withdrew certain claims below that she attempts to 

resurrect on appeal, which we decline to permit. Cf. Wal-Mart Stores, Inc. v. Visa U.S.A., Inc., 396 F.3d 96, 124 

n.29 (2d Cir. 2005) (“The law in this Circuit is clear that where a party has shifted his position on appeal and advances 

arguments available but not pressed below, waiver will bar raising the issue on appeal.” (alteration and internal 

quotation marks omitted)).
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to accommodate claims for substantially the same reasons articulated in the decisions below. As 

for her ADA discrimination claim, Witcher has not demonstrated that any of the defendants’ 

alleged adverse actions were because of Witcher’s disability. Natofsky v. City of New York, 921 

F.3d 337, 348–50 (2d Cir. 2019) (“[T]he ADA requires a plaintiff alleging a claim of employment 

discrimination to prove that discrimination was the but-for cause of any adverse employment 

action.”). As for her ADA failure to accommodate claim, Witcher received an accommodation 

for her obesity, and the operative amended complaint does not adequately allege that any mental 

health conditions were sufficiently disabling or that any of the defendants knew of these conditions. 

We therefore affirm the judgment in part. 

We conclude, however, that: (1) Witcher plausibly alleged an ADA retaliation claim; and 

(2) under a proper liberal construction, Witcher’s complaint raised an ADA interference claim that 

the district court should have assessed. 

I. Witcher Plausibly Alleged an ADA Retaliation Claim 

We conclude that Witcher stated a plausible claim of retaliation under the ADA’s antiretaliation provision, 42 U.S.C. § 12203(a). Section 12203(a) prohibits retaliation against a 

person who has “made a charge, testified, assisted, or participated in any manner” in an ADA 

“investigation, proceeding, or hearing.” 42 U.S.C. § 12203(a). A plaintiff raising a retaliation 

claim under the ADA must plausibly allege that she (1) “was engaged in protected activity,” 

(2) “the alleged retaliator knew that plaintiff was involved in protected activity,” (3) “an adverse 

decision or course of action was taken against plaintiff,” and (4) “a causal connection exists 

between the protected activity and the adverse action.” Tafolla v. Heilig, 80 F.4th 111, 125 (2d 

Cir. 2023) (quoting Natofsky, 921 F.3d at 353). The focus of the district court in granting the 
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defendants’ motion to dismiss centered on whether Witcher’s receipt of a reasonable 

accommodation constitutes protected activity under the ADA’s anti-retaliation provision. See 

Witcher, 2023 WL 2609342, at *14. That question need not be answered in this case, however, 

because the accommodation request and the accommodation approval merged for these particular 

defendants. According to the operative complaint and drawing all reasonable inferences in 

Witcher’s favor, the defendants became aware of the request when they were notified that the 

request was granted. Thus, the relevant starting point for the analysis of this ADA retaliation 

claim is September 2020, when the defendants allegedly learned of Witcher’s accommodation. 

See Tafolla, 80 F.4th at 125 (requiring that “the alleged retaliator kn[o]w that plaintiff was involved 

in protected activity”).

This case differs from Clark County School District v. Breeden, 532 U.S. 268 (2001) (per 

curiam), in which the Supreme Court described as “utterly implausible” that the Equal 

Employment Opportunity Commission’s (“EEOC”) “issuance of a right-to-sue letter—an action 

in which the employee takes no part—is a protected activity of the employee” for the purposes of 

the Title VII antiretaliation provision, 42 U.S.C. § 2000e-3(a). Id. at 273. There, the Supreme 

Court further stated that “there [wa]s no indication that [the assistant superintendent] even knew 

about the right-to-sue letter when she proposed transferring” the plaintiff. Id. And even if the 

assistant superintendent there was aware of the letter, her predecessor presumptively “knew almost 

two years earlier about the protected action (filing of the EEOC complaint) that the letter 

supposedly disclosed” because “both Title VII and its implementing regulations require that an 

employer be given notice within 10 days of filing.” Id. In that case, the plaintiff failed to 

establish the requisite causation between the purported protected activity and the adverse action 
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because the school district knew about the filing of the complaint twenty months before a transfer 

was ever proposed. See id. at 273–74. 

There is no similar concern here. Witcher clearly alleges that she requested a reasonable 

accommodation,1 and drawing all reasonable inferences in her favor, the operative complaint 

suggests that the principal and assistant principal became aware of the request only when they 

were notified that the request was granted in September 2020. Moreover, Witcher alleges that the 

principal and assistant principal engaged in retaliatory conduct by making false allegations of 

underperformance that led to an alleged demotion to a class with a more demanding teaching 

environment in November 2020, just two months after the defendants learned of her 

accommodation. See Littlejohn v. City of New York, 795 F.3d 297, 316 (2d Cir. 2015) (holding 

that a demotion can constitute an adverse employment action); Vega v. Hempstead Union Free 

Sch. Dist., 801 F.3d 72, 90 (2d Cir. 2015) (observing that the standard for an adverse employment 

action “covers a broader range of conduct” in the retaliation context). She further alleges that the 

adverse actions continued and escalated in the following months, culminating in a denial of tenure 

and ultimately in her firing, notwithstanding previous positive performance evaluations by other 

administrators at her school. Accordingly, Witcher plausibly alleges a retaliation claim under the 

ADA and we therefore vacate the district court’s dismissal of that claim. 

II. Witcher Alleged an ADA Interference Claim

We also conclude that Witcher’s complaint raises an interference claim under the ADA’s 

anti-interference provision, 42 U.S.C. § 12203(b). Section 12203(b) prohibits “coerc[ing], 

1 Requesting or “seeking [a] reasonable accommodation . . . constitutes protected activity under . . . [the] ADA.” 

Weixel v. Br. of Educ. of City of N.Y., 287 F.3d 138, 149 (2d Cir. 2002).
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intimidat[ing], threaten[ing], or interfer[ing with]” a person who has “exercised or enjoyed . . . any 

right granted or protected by” the ADA. 42 U.S.C. § 12203(b). 2 Obtaining a reasonable 

accommodation on account of a disability is a right granted or protected by the ADA. See 42 

U.S.C. § 12112(b)(5)(A); Noll v. Int’l Bus. Machs. Corp., 787 F.3d 89, 94 (2d Cir. 2015) (“The 

ADA . . . require[s] an employer to afford reasonable accommodation of an employee’s known 

disability . . . .” (emphasis added)).

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Giving Witcher’s complaint the proper liberal construction, her complaint raises an 

interference claim under § 12203(b) in addition to her retaliation claim under § 12203(a). See, 

e.g., Third Amended Complaint, Dist. Ct. ECF No. 44, at pg. 8 (“Almost immediately after 

receiving the accommodation, defendants . . . discriminated against me based on my disability by 

repeatedly making false allegations about my work performance, documenting these allegations 

in disciplinary write-ups, and calling me for meetings about the false allegations.”); id. at pg. 15 

(alleging that the defendants “used their power as administrators to harass [Witcher] after [she] 

received an accommodation”). During oral argument, counsel for the defendants acknowledged 

that Witcher’s complaint appeared to raise an interference claim and that the district court did not 

2 Although Witcher did not specifically mention § 12203(b) in her pleadings, the “failure in a complaint to cite a 

statute, or to cite the correct one, in no way affects the merits of a claim.” McLeod, 864 F.3d at 157–58 (internal 

quotation marks omitted). Additionally, we acknowledge that there appears to be at least some overlap between 

ADA retaliation and interference claims, with prior cases from this Court often analyzing these claims together. See, 

e.g., Reg’l Econ. Cmty. Action Program, Inc. v. City of Middletown, 294 F.3d 35, 53 (2d Cir. 2002); Lovejoy-Wilson 

v. NOCO Motor Fuel, Inc., 263 F.3d 208, 222 (2d Cir. 2001). 3 Neither the operative complaint itself, nor the copy of the accommodation letter attached to an earlier pleading, 

clarifies whether the accommodation was premised on disability, or instead arose from the unique circumstances 

presented by the first wave of the COVID-19 pandemic. Because we are required to draw all reasonable inferences 

in Witcher’s favor at the dismissal stage, see Collins, 979 F.3d at 132, we assume that the accommodation was 

sufficiently tethered to the ADA. See also 42 U.S.C. § 12102(1)(B)–(C); Woolf v. Strada, 949 F.3d 89, 94 (2d Cir. 

2020) (“Congress instructed courts that the ‘definition of disability shall be construed in favor of broad coverage of 

individuals’ . . . .” (ellipsis omitted) (quoting 42 U.S.C. § 12102(4)(A))).
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address such a claim. See Oral Argument Audio Recording at 10:30–11:45. Accordingly, we 

vacate the dismissal of Witcher’s complaint to the extent that the district court determined that 

Witcher only alleged an ADA retaliation claim under § 12203(a), and not an ADA interference 

claim under § 12203(b). See McLeod, 864 F.3d at 158 (vacating district court’s determination 

that the plaintiff asserted claims only under federal law because, under proper liberal construction, 

the complaint also asserted state law discrimination claims). 

III. Final Considerations

Because the district court dismissed Witcher’s federal claims, it declined to exercise 

supplemental jurisdiction over her state and city law claims under the NYSHRL and NYCHRL. 

See Witcher, 2023 WL 2609342, at *15. In light of our decision to vacate the judgment in part, 

we restore Witcher’s state and city law claims by vacating the portion of the judgment declining 

to exercise supplemental jurisdiction. See Rogoz v. City of Hartford, 796 F.3d 236, 251 (2d Cir. 

2015). We make no assessment of whether Witcher plausibly alleged her state or city law claims

or her ADA interference claim, which we will leave (along with the propriety of further 

amendment) to the district court in the first instance.

Finally, we observe that the attachments to Witcher’s initial and first amended complaints, 

ECF Nos. 2 and 15, contain sensitive material that should not have been filed on the public docket. 

See Fed. R. Civ. P. 5.2(a). The district court should seal those documents from public view. We 

also note that, since these were Witcher’s filings, she should take care (for the sake of her own 

privacy and security) to ensure that future filings comply with the redaction requirements set forth 

in the Federal Rules of Civil Procedure.
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CONCLUSION

For the reasons set forth above, we conclude that the complaint should have survived 

dismissal to the extent indicated. We AFFIRM the judgment in part and VACATE in part, and 

REMAND for further proceedings consistent with this order. 

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk of Court