Newell v. State University of New York Westchester Community College

Background

Kerrie Newell, proceeding without a lawyer and without paying filing fees, sued State University of New York Westchester Community College under the Americans with Disabilities Act. Newell alleged that the college’s COVID-19 policy required employees to wear masks, take COVID-19 tests or vaccines, isolate or segregate, undergo medical examinations, and disclose health information as conditions of employment.

Newell asserted claims for disability discrimination and retaliation. For discrimination, she initially relied on the Act’s provisions covering people with a disability and people with a record of a disability, but her opposition brief stated that she was proceeding only under the provision covering a person who is regarded as having a disability. She alleged that the college regarded her as having a contagious disease and an impaired immune system because it applied the COVID-19 policy to her.

For retaliation, Newell alleged that she sent a notice of discrimination and harassment to the college’s Human Resources department and that, in response, the college moved her workspace from the Academic Arts Building to the Library lobby area.

Court’s Analysis

The college moved to dismiss under Federal Rule of Civil Procedure 12(b)(6), which allows dismissal when a complaint does not state a legally sufficient claim. The court accepted well-pleaded factual allegations as true for purposes of the motion and interpreted Newell’s self-represented complaint liberally, but it did not accept legal conclusions without supporting facts.

Discrimination. The court dismissed the claim based on a record of disability because Newell abandoned that theory in her opposition brief. As to the regarded-as theory, the court held that Newell did not plausibly allege that the college regarded her as having a disability. The complaint alleged that the college subjected all employees to the same COVID-19 protocols, but it did not allege that the college specifically regarded Newell as having COVID-19 or as being especially at risk of developing it. The court therefore held that Newell failed to state an ADA discrimination claim.

Retaliation. The court held that Newell failed to allege an adverse action, meaning an action that could support a retaliation claim. Newell did not allege that the Library lobby was inferior to her prior workspace. The court further stated that, even if she had alleged that it was inferior, relocating her to another workspace would at most be a minor annoyance and would not amount to actionable retaliation under the cited Second Circuit cases. The retaliation claim was therefore dismissed for failure to state a claim.

Disposition

Judge Philip M. Halpern granted the defendant’s motion to dismiss and dismissed Newell’s complaint with prejudice. The court stated that amendment would be futile, so it did not provide leave to amend. It also certified that an appeal would not be taken in good faith and denied Newell permission to proceed without paying fees for purposes of an appeal. The clerk was directed to terminate the pending motion, mail Newell a copy of the order, and close the case.