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.

----------------------------------------------------------------------


*
    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                         JOHN T.A. ROSENTHAL (Kevin J.
 FORDHAM UNIVERSITY, GRADUATE                     Harrington, on the brief), Harrington,
 SCHOOL OF SOCIAL SERVICES,                       Ocko & Monk, LLP, White Plains, NY.
 PRESIDENT REV JOSEPH McSHANE,
 DEAN DEBRA M. McPHEE, PHD,
 DEAN SUSAN EGAN, DEAN KEITH
 ELDREDGE:

 FOR DEFENDANTS-APPELLEES                         CHRISTINE S. POSCABLO, Assistant
 UNITED STATES DEPARTMENT OF                      United States Attorney (Benjamin H.
 EDUCATION OFFICE OF CIVIL                        Torrance, Assistant United States
 RIGHTS, RACHEL POMERANTZ,                        Attorney, on the brief), for Preet Bharara,
 ESQ., RONALD M. SCOTT, ESQ., NEW                 United States Attorney for the Southern
 YORK ENFORCEMENT OFFICE:                         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.




1
    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,

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).


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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




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