Plaintiff, proceeding pro se, sued his former employer, the
New York City Department of Education [Department], for alleged violations of the Americans with
Disabilities Act [
Plaintiff had filed a charge with the Equal Employment Opportunity Commission [EEOC] claiming that the Department’s policies did not recognize his right to refuse treatment for his perceived disability and that the Department threatened to fire him in response to his assertion of his rights.* After receiving a "right to sue" letter, Plaintiff initiated a lawsuit in federal district court.
The federal district court granted the Department’s motion to dismiss Plaintiff's complaint, "reasoning that [Plaintiff's] complaint was moot to the extent that he raised a direct challenge to the since-withdrawn COVID19 policy; the complaint was time-barred because it was filed 98 days after the right-to-sue letter was dated and was therefore late by eight days; and, on the merits as Plaintiff "otherwise failed to plead sufficient facts to state ADA discrimination and retaliation claims". Plaintiff appealed the district court's decision.
Considering the issue of "Mootness", the Circuit Court of Appeals agreed with the Department's argument "to the extent that [Plaintiff] challenges the Department’s COVID-19 policies and vaccine mandate, his claims are moot, since the policies have since been rescinded."
Citing Janakievski v. Exec. Dir.,
The Circuit Court of Appeals explained that as a plaintiff must demonstrate a reasonable expectation of repetition that is “more than a mere physical or theoretical possibility” an order to escape a mootness dismissal, a plaintiff must allege facts to establish “a reasonable expectation of repetition” and "the district court was therefore correct in finding that [Plaintiff's] claim challenging the validity of the Department’s COVID policy is moot" as he had failed to allege any such facts.
In addition, the Circuit Court of Appeals noted the federal district court properly concluded that Plaintiff's complaint was time barred, although it's calculations differ somewhat from that of the district court’s and Plaintiff's complaint would fail on the merits.
Citing Sharikov v. Philips Med. Sys. MR, Inc., 103 F.4th 159, the Circuit Court said it had rejected arguments substantially the same arguments as those advanced here by Plaintiff and a plaintiff is not “regarded as being disabled” or subject to a “record of” a disability by the application of a company-wide COVID-19 mitigation policy because the neutral application of a company-wide policy does not single out any employee for discriminatory treatment.
Addressing Plaintiff's claim that
the Department retaliated against him for opposing and protesting the policy,
the court held that "This claim fails because [Plaintiff] did not plead
but-for causation and as in Sharikov, the allegations in the [c]omplaint make
clear that he was fired because of his failure to comply with the vaccine policy, not because he invoked the
The Circuit Court of Appeals then affirmed the judgment of the federal district court.
* EEOC dismissed Plaintiff's charges and issued Plaintiff a right-to-sue letter, informing Plaintiff of his right to file a federal lawsuit within 90 days of his receiving such notice.
Click HERE to access the Second Circuit Court of Appeals decision posted on the Internet.