Newell v. S.U.N.Y. Westchester Cmty. College

ADA Discrimination, Retaliation Claims Are Dismissed for Failure to State a Claim

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OPINION AND ORDER Plaintiff Kerrie Newell (“Plaintiff”), proceeding pro se and in forma pauperis, brings this action against her employer, the State University of New York Westchester Community College (“Defendant”), pressing two claims under the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. §12101 et seq., for (i) discrimination and (ii) retaliation. (Doc. 2, “Compl.”). Defendant filed, pursuant to the briefing schedule set forth by the Court, its motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) on February 7, 2023. (Doc. 25; Doc. 26, “Def Br.”; Doc. 27). Plaintiff filed her opposition on March 7, 2023. (Doc. 31, “Pl. Br.”), and the motion was briefed fully with the filing of Defendant’s reply on March 21, 2023 (Doc. 32, “Reply”). For the reasons set forth below, Defendant’s motion to dismiss is GRANTED. BACKGROUND Plaintiff is a Technical Assistant of Media & Instructional Technology at Westchester Community College (“WCC”) and has worked there for over 18 years. (Compl. 28). She alleges that WCC “adopted measures collectively known as its Covid-19 Policy,” which includes “requirements or accommodations that employees wear surgical masks, take experimental vaccines, practice isolation and segregation, submit to medical examinations, and disclose vital statistics as conditions of employment.” (Id. 7). Plaintiff alleges that WCC’s Covid-19 Policy “is intended to prevent the spread of Covid-19″ and that “[t]he policy rests on the assumption that every employee, the plaintiff included, has or could have this disease.” (Id. 8). WCC’s Covid-19 Policy was applied to “all of its workers without considering the individualized medical assessment of each employee’s health” and Plaintiff alleges that “[D]efendant’s adoption of this policy is voluntary.” (Id.

9-10). Plaintiff, beginning in October 2020, began receiving emails informing her that WCC would begin requiring employees to take a “biological PCR test for Covid-19 in order to be able to come work in-person.” (Id.

Newell v. S.U.N.Y. Westchester Cmty. College

ADA Discrimination, Retaliation Claims Are Dismissed for Failure to State a Claim

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