Date: 07-22-2015

Case Style: Aidan A. Smith v. Michael Hogan, President of the University of Connecticut

Case Number: 11‐4276‐cv

Judge: Barrington D. Parker

Court: United States Court of Appeals for the Second Circuit on appeal from the District of Connecticut (Hartford County)

Plaintiff's Attorney: ARTHUR A. SMITH, Hartford, CT, for Plaintiff‐
Appellant Aidan A. Smith.

Defendant's Attorney: PHILIP MILLER, Assistant Attorney General, for
George Jepsen, Attorney General for the State of
Connecticut, Hartford, CT, for Defendants‐
Appellees.

Description: 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 reoccurring,”
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)).

Outcome: For these reasons, we AFFIRM the judgment of the district
court.

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Defendant's Experts:

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