23-466 Johnson v. Mount Sinai Hospital Group, 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 3rd day of July, two thousand twenty-four.

PRESENT: AMALYA L. KEARSE, GUIDO CALABRESI, ALISON J. NATHAN, Circuit Judges, _____________________________________

Jennifer Johnson,

Plaintiff-Appellant,

v. No. 23-466

Mount Sinai Hospital Group, Inc.,

Defendant-Appellee. _____________________________________ FOR PLAINTIFF-APPELLANT: Jennifer Johnson, pro se, East Elmhurst, NY.

FOR DEFENDANT-APPELLEE: Rory J. McEvoy, Akerman LLP, New York, NY.

Appeal from a judgment of the United States District Court for the Eastern

District of New York (Donnelly, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is

AFFIRMED.

Plaintiff-Appellant Jennifer Johnson, pro se, appeals from a judgment of the

district court granting Defendant-Appellee Mount Sinai Hospital Group, Inc.’s

motion to dismiss her complaint. Johnson alleged that her employment was

terminated based on a perceived disability for refusing to comply with Mount

Sinai’s COVID-19 testing and vaccination requirements, and that Mount Sinai

retaliated against her for filing a complaint based on that perceived disability, in

violation of the Americans with Disabilities Act of 1990 (ADA). The district court

concluded that Johnson failed to state a claim on either ground. We assume the

parties’ familiarity with the remaining facts, procedural history, and issues on

2 appeal, to which we refer only as necessary to explain our decision to affirm.

We review the dismissal of a complaint under Rule 12(b)(6) de novo,

“construing the complaint liberally, accepting all factual allegations in the

complaint as true, and drawing all reasonable inferences in the plaintiff’s favor.”

Chambers v. Time Warner, Inc.,

(2d Cir. 2002). To survive a motion

to dismiss under Rule 12(b)(6), the complaint must plead “enough facts to state a

claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly,

(2007). We review pro se submissions with “special solicitude,” construing

them “liberally” and “interpret[ing]” them “to raise the strongest arguments that

they suggest.” Triestman v. Fed. Bureau of Prisons,

, 474–75 (2d Cir.

2006) (cleaned up).

I. ADA Discrimination

To plausibly state a claim of disability discrimination under the ADA,

Johnson must allege, among other things, that she was disabled or perceived to be

disabled within the meaning of the ADA. See Capobianco v. City of New York,

(2d Cir. 2005). A person has a “disability” under the ADA if she has

an actual “physical or mental impairment that substantially limits one or more

major life activities,” or—alleged here—if she is “regarded as having such an

3 impairment” or there otherwise is a “record of such an impairment.”

(1)(A)–(C).

Johnson argues that Mount Sinai’s company-wide COVID-19 mitigation

efforts—masking, distancing, and eventual vaccination—both “regard[ed] [her]

as” and “record[ed]” her as either having a debilitating condition, or as at a

heightened risk for developing such a condition in the future. Joint App’x at 16.

We recently addressed comparable claims in Sharikov v. Philips Medical Systems

MR, Inc.,

(2d Cir. 2024), and held that terminating an employee for

“failing to comply with generally applicable safety policies does not, without

more, equate to impermissible discrimination under the ADA.”

.

Johnson has failed to plead more, and for that reason, she has failed to state a

discrimination claim under the ADA.

In Sharikov, the plaintiff alleged that the defendant company’s COVID-19

mitigation efforts, which “applied to all its employees,” regarded or recorded him

as disabled when he was discharged for refusing to comply with the company-

wide vaccine mandate.

. In rejecting his allegation, we looked to the

text of the ADA, and held that “to be perceived as having a disability, one must be

perceived as different from most people in the general population.”

; see

4 also

(j)(ii). Sharikov could not be regarded as having a disability

because the company required “all employees . . . to be vaccinated” and therefore

he “was not singled out because of any perception that he had an impairment that

substantially limited him as compared to others.” Sharikov,

.

And to the extent Sharikov alleged that unvaccinated employees were treated as

if they were more prone to contracting COVID-19 due to a weakened or

suppressed immune system, we also rejected that argument because “adopting

measures to prevent the spread of a communicable disease” does not imply any

impairment.

at 169–70. Finally, Sharikov was not recorded as having a

disability for the same reasons—“the company-wide policy applied to all

employees and was not based on any ‘record’ Sharikov might have had of any

disability or any classification that he was disabled.”

.

Here, Johnson argues that Mount Sinai’s company-wide COVID vaccine

policy, which required compliance from all employees, regarded her or recorded

her as disabled under the ADA, the same allegations that failed to state a claim in

Sharikov. And Johnson likewise fails to plead any additional facts that render her

allegations distinctive. For those reasons, we observe no error in the district

court’s dismissal of her ADA discrimination claim.

5 II. ADA Retaliation

The district court also properly dismissed Johnson’s ADA retaliation claim.

To state an ADA retaliation claim, an employee “must show that [s]he engaged in

a protected activity, that [s]he suffered an adverse employment action, and that a

causal connection exists between that protected activity and the adverse

employment action.” Fox v. Costco Wholesale Corp.,

, 72–73 (2d Cir.

2019). With respect to causation, a plaintiff must prove that “but for” the

protected activity, “the adverse action would not have been taken.” Tafolla v.

Heilig,

(2d Cir. 2023) (quotation marks omitted).

Here, Johnson failed to plausibly allege that but for her protected activity,

namely, her complaints about Mount Sinai’s COVID-19 policy, she would not have

been fired. The allegations in the complaint indicate that Mount Sinai began to

implement policies and procedures to mitigate the spread of COVID-19, such as

masking requirements, in July 2020. Then, in June 2021, Mount Sinai updated its

policies to mandate employee testing for COVID-19 in order to work. Johnson

first objected to the testing policy at that point. The next month, Mount Sinai

announced that beginning on September 1, 2021, employees who refused to get

vaccinated or submit to weekly testing would be terminated. Only at the end of

6 August 2021 did Johnson file a formal complaint that she was being perceived as

disabled for refusing to comply with the policy, after which she was terminated.

The record demonstrates that Johnson’s protected activity occurred only

after Mount Sinai implemented its COVID-19 employment policies. “Thus, rather

than show [Johnson] was terminated because of [her] protected activity, the

allegations in the [c]omplaint make clear that [s]he was fired because of h[er]

failure to comply with the company-wide vaccine policy.” Sharikov,

. And given that the policy applied to all employees regardless of whether

they had engaged in protected activity, Johnson also has not “plausibly pleaded a

connection between h[er] invocations of the ADA and h[er] termination,”

We

reject her ADA retaliation claim accordingly.

* * *

We have considered Johnson’s remaining arguments and find them to be

without merit. For the foregoing reasons, we AFFIRM the judgment of the

district court.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

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