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Plaintiff's Affidavit is not a Written Instrument, Not Part of the Complaint Pursuant to Rule 10

Plaintiff appeals from a dismissal (Rule 12(b)(1) and 12(b)(6)) - the Second Circuit holds 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)":

Smith suffered from a series of medical problems before he started to work for the University of Connecticut. Smith may have been suffering from one of his ailments when he left working the food line at the university. The University terminated his employment because Smith left the shift without a supervisor's permission. After the internal grievance process, Smith filed a complaint with the Commission on Human Rights and Opportunities and the Equal Employment Opportunity Commission. The Connecticut Commission found that Smith had stated a Valid Claim for Relief and the EEOC issued its Notice of a Right to Sue. This lawsuit was brought alleging violations of the Americans With Disabilities Act and Rehabilitation Act, amongst others. "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"

STD 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).] Pp. 6.

The Affidavit: ["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.]

"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 Second Circuit noted that Smith conceded that bronchitis is not a qualifying disability under either the ADA or Rehabilitation Act. The Second Circuit found that this appeal now proceeds on the theory that Smith was terminated because of his anxiety resulting from "being asked to work on the salad line," (Pp. 7), and that Smith's anxiety was triggered by being asked to make salads. This is largely based on the above affidavit submitted in connection with the University grievance proceedings. 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."

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.” While there is a rift between the Circuits, the Second Circuit chooses to follow the standard set forth by the Third Circuit: “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.” Rose v. Bartle, 871 F.2d 331, 339 n.3 (3d Cir. 1989). Noting that this self-created affidavit post dated Smith's termination, the Second Circuit noted that "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." Pp. 10.

The case is Aidan A. Smith v. Michael Hogan, et al., 11-4276-CV (July 22, 2015).

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