Ibrahim v. Pena et al

Filing 30

OPINION & ORDER: For the foregoing reasons, Defendants' motion to dismiss is GRANTED, and Ms. Ibrahims ADA claims are DISMISSED. If Ms. Ibrahim wishes to amend her complaint, she must seek leave to do so no later than September 21, 2017. The mo tion for leave to amend must include a redlined version of her proposed amendment, and she must allege facts that go substantially beyond the allegations in the First Amended Verified Complaint. Because the Court dismisses all of Ms. Ibrahims feder al law claims, the Court declines to exercise supplemental jurisdiction over the remaining state law claims. See 28 U.S.C. § 1367(c)(3) ("The district courts may decline to exercise supplemental jurisdiction over a claim... if the distric t court has dismissed all claims over which it has original jurisdiction."). The Clerk of Court is respectfully directed to terminate Docket Entry No. 20. Motions terminated: 20 MOTION to Dismiss the Amended Complaint, filed by Deirdre Fuchs, Lucas Pena, The Trustees of Columbia University in the City of New York. (Signed by Judge Valerie E. Caproni on 8/21/2017) (ap)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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NOELLE IBRAHIM,
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Plaintiff,
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:
:
-against:
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LUCAS PENA, DEIRDRE FUCHS, and THE
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TRUSTEES OF COLUMBIA UNIVERSITY IN :
THE CITY OF NEW YORK,
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Defendants. :
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USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #:
DATE FILED: 8/21/2017

16-CV-7774 (VEC)
OPINION & ORDER

VALERIE CAPRONI, United States District Judge:
Although many alumnae recall their universities fondly, Plaintiff Noelle Ibrahim has
different feelings for her alma mater. Ms. Ibrahim sued Columbia University (“Columbia”) and
Columbia employees (collectively, “Defendants”) after her request for assistance took a bad turn.
Defendants moved to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). For the
following reasons, Defendants’ motion is GRANTED.
BACKGROUND1
Ms. Ibrahim, a Columbia alumna, suffers from psychiatric illnesses. First Amended
Verified Complaint (“Compl.”) ¶¶ 2-3, Dkt. 16. In April 2015, Ms. Ibrahim called the Office of
the Dean at Columbia several times and left voice messages identifying herself and stating that
“she required assistance due to a psychiatric disability, including counseling that would help her

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All facts discussed herein are taken from the First Amended Verified Complaint, are accepted as true, and
are viewed in the light most favorable to Plaintiff. See N.J. Carpenters Health Fund v. Royal Bank of Scotland Grp.,
PLC, 709 F.3d 109, 119 (2d Cir. 2013).

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to cope with the difficult situation that she was dealing with” in Canada, where she resided.
Compl. ¶¶ 9-10, 13.
Columbia did not return her calls, Compl. ¶ 15, nor did it provide her with counseling,
Compl. ¶¶ 96-97. Instead, Columbia reported to Canadian authorities that Ms. Ibrahim had said
that she was “going to her work to shoot everybody,” which led to Ms. Ibrahim’s arrest in
Canada. Compl. ¶¶ 16-17. In addition, five days after the phone messages, Columbia sent Ms.
Ibrahim a “Persona Non Grata” letter. Compl. ¶¶ 22, 25. The letter stated that Ms. Ibrahim was
“considered ‘Persona Non Grata’ on all Columbia University property” because of “continued
harassing phone calls to Columbia University,” and Ms. Ibrahim was advised to “cease any
further calls to Columbia University” and that “no further services [would] be rendered to [her]
from the Alumni Career Center.” Compl. ¶ 25.
Ms. Ibrahim sued Defendants in New York Supreme Court, alleging discrimination in
violation of the Americans with Disabilities Act (“ADA”), as well as a slew of state-law claims
(malicious prosecution, libel, intentional infliction of emotional distress, false arrest, and
negligence). Defendants removed the action based on the federal ADA claim, Notice of
Removal, Dkt. 1, and moved to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6).
Notice of Defendants’ Motion to Dismiss the Amended Complaint, Dkt. 20.
For the following reasons, Defendants’ motion is GRANTED. Because the Court
dismisses all of Ms. Ibrahim’s federal claims, the Court declines to exercise supplemental
jurisdiction over Ms. Ibrahim’s remaining state claims. See 28 U.S.C. § 1367(c)(3).
DISCUSSION
“[A] complaint must allege sufficient facts, taken as true, to state a plausible claim for
relief.” Johnson v. Priceline.com, Inc., 711 F.3d 271, 275 (2d Cir. 2013) (citing Bell Atl. Corp. v.

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Twombly, 550 U.S. 544, 555-56 (2007)). In reviewing a Rule 12(b)(6) motion to dismiss, courts
“accept[ ] all factual allegations as true and draw[ ] all reasonable inferences in favor of the
plaintiff.” N.J. Carpenters, 709 F.3d at 119 (quoting Litwin v. Blackstone Grp., LP, 634 F.3d
706, 715 (2d Cir. 2011)). Nonetheless, “a complaint must contain sufficient factual matter . . .
to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Twombly, 550 U.S. at 570). “Plausibility” is not certainty. Iqbal does not
require the complaint to allege “facts which can have no conceivable other explanation, no
matter how improbable that explanation may be.” Cohen v. S.A.C. Trading Corp., 711 F.3d 353,
360 (2d Cir. 2013). But “[f]actual allegations must be enough to raise a right to relief above the
speculative level,” Twombly, 550 U.S. at 555, and courts “are not bound to accept as true a legal
conclusion couched as a factual allegation,” Brown v. Daikin Am. Inc., 756 F.3d 219, 225 (2d
Cir. 2014) (quoting Twombly, 550 U.S. at 555).
Ms. Ibrahim’s only federal-law claims are that Columbia failed to provide her with an
accommodation and retaliated against her in violation of the ADA. Compl. ¶¶ 92-97 (citing
42 U.S.C. §§ 12181, 12203). Defendants moved to dismiss arguing that Ms. Ibrahim has failed
to state a plausible claim to relief. For the following reasons, the Court agrees and GRANTS
Defendants’ motion to dismiss.
I.

Ms. Ibrahim Fails to Allege a Plausible ADA Failure-to-Accommodate Claim.
Ms. Ibrahim argues that Columbia refused her request for accommodation by failing to

provide her with requested mental health counseling; instead, Columbia barred her from its
campus and from access to its alumni services. Compl. ¶¶ 94-97; see also Plaintiff’s
Memorandum of Law in Opposition to Defendant’s Motion to Dismiss (“Opp.”) 16-17.

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Defendants argue that Ms. Ibrahim has not plausibly alleged that Columbia discriminated against
her based on her disability. The Court agrees.
Title III of the ADA prohibits discrimination on the basis of disability by those who
provide public accommodations. 42 U.S.C. § 12182(a). To state a failure-to-accommodate
claim, the plaintiff must allege facts showing “(1) that she is disabled within the meaning of the
ADA; (2) that defendants own, lease, or operate a place of public accommodation; and (3) that
defendants discriminated against her by denying her a full and equal opportunity to enjoy the
services defendants provide.” Camarillo v. Carrols Corp., 518 F.3d 153, 156 (2d Cir. 2008).
“Discrimination” is defined in Title III to include:
(ii) a failure to make reasonable modifications in policies,
practices, or procedures, when such modifications are necessary to
afford such . . . services, facilities, . . . or accommodations to
individual with disabilities, unless the entity can demonstrate that
making such modifications would fundamentally alter the nature of
such . . . services, facilities, . . . or accommodations.
42 U.S.C. § 12182(b)(2)(A)(ii).2 A defendant is not required to offer an accommodation “that
imposes an undue hardship on its program’s operation; it is only required to make a reasonable
accommodation.” Powell v. Nat’l Bd. of Med. Exam’rs, 364 F.3d 79, 88 (2d Cir. 2004) (citing 28
C.F.R. § 41.53).3 “In order to constitute a ‘reasonable accommodation,’ the requested

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In general, 42 U.S.C. § 12182(b)(2)(A) provides that “discrimination” includes: (i) “the imposition or
application of eligibility criteria that screen out or tend to screen out an individual with a disability…”; (ii) “ a
failure to make reasonable modifications in policies, practices, or procedures, when such modifications are
necessary to afford [] goods, services, facilities . . .”; (iii) a failure to take necessary steps to ensure that no disabled
individual is “excluded, denied services, segregated or otherwise treated differently . . . because of the absence of
auxiliary aids and services”; (iv) “a failure to remove architectural barriers, and communication barriers that are
structural in nature . . .”; and (v) where the removal of a barrier is not readily achievable, “a failure to make such
goods, services, facilities, privileges, advantages, or accommodations available” through other, readily achievable
methods.
Although Ms. Ibrahim does not specify which definition of “discrimination” supports her Title III claim,
42 U.S.C. § 12182(b)(2)(A)(ii) is the only definition potentially applicable to the facts alleged in this case.

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An “undue hardship” is one that “requir[es] significant difficulties or expense when considered in light of a
number of factors, one factor being the type of service or product being offered.” Powell, 364 F.3d at 88.

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modification must actually ‘accommodate’ the alleged disability. Otherwise, it would constitute
no more than a personal preference, which is not protected under the ADA . . . .” Harnett v.
Fielding Graduate Inst., 400 F. Supp. 2d 570, 576 (S.D.N.Y. 2005), aff’d in part and rev’d in
part on other grounds, 198 F. App’x 89 (2d Cir. 2006).
Ms. Ibrahim alleges, and Defendants do not dispute, that her psychiatric condition
qualifies as a “disability” under the ADA. Compl. ¶¶ 3, 92; see also Reply Memorandum of
Law in Further Support of Defendants’ Motion to Dismiss the Amended Complaint (“Reply”) 6
n.3, DKt. 28. Ms. Ibrahim also alleges, and Defendants do not dispute, that Columbia
“operat[es] . . . as a private institution of higher learning,” Compl. ¶ 6, making it a place of
public accommodation. See McInerney v. Rensselaer Polytechnic Inst., 505 F.3d 135, 138 (2d
Cir. 2007) (“[Rennselaer Polytechnic Institute], as a ‘postgraduate private school,’ is doubtless a
place of public accommodation.” (citing 42 U.S.C. § 12181(7)(J))).
Ms. Ibrahim, however, has failed to allege plausibly that Defendants “discriminated
against her by denying her a full and equal opportunity to enjoy the services defendants provide,”
Camarillo, 518 F.3d at 156. Ms. Ibrahim has failed to allege facts tending to show how her
requested accommodation (mental health counseling) is “necessary to afford,” see
42 U.S.C. § 12182(b)(2)(A)(ii), her enjoyment of Columbia’s facilities and services, i.e.,
Columbia’s campus and Alumni Career Center. Relatedly, Ms. Ibrahim has failed to allege any
facts that plausibly support her claim that her disability hindered her access of Columbia’s
campus and alumni services. Finally, Ms. Ibrahim has alleged no facts tending to show that her
requested accommodation is reasonable; she alleges only that she requested an accommodation
(mental health counseling) and that Columbia refused. The ADA, however, requires that

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Defendants provide only a reasonable accommodation. Powell, 364 F.3d at 88; see also
42 U.S.C. § 12182(b)(2)(A)(ii) (discrimination is a “failure to make reasonable modifications”).4
Ms. Ibrahim’s factual allegations are far too general and conclusory to state a plausible
claim of disability discrimination. Because Ms. Ibrahim has failed to allege a plausible claim
that Defendants denied her a reasonable accommodation necessary for her use of Columbia’s
facilities and services, her ADA failure-to-accommodate claim fails as a matter of law.
II.

Ms. Ibrahim Fails to Allege a Plausible ADA Retaliation Claim.
Ms. Ibrahim also alleges that Defendants retaliated against her in violation of the ADA

by barring her from Columbia’s campus and alumni services and by refusing to provide her with
mental health counseling. Compl. ¶¶ 96-97. Defendants argue that Ms. Ibrahim has failed to
allege a plausible prima facie claim of ADA retaliation. The Court again agrees.
The ADA provides, in relevant part, “No person shall discriminate against any individual
because such individual has opposed any act or practice made unlawful by this chapter . . . .”
42 U.S.C. § 12203(a). To state a prima facie claim of ADA retaliation, a plaintiff must allege
that she “(i)[]was engaged in protected activity; (ii) the alleged retaliator knew that plaintiff was
involved in protected activity; (iii) an adverse decision or course of action was taken against
plaintiff; and (iv) a causal connection exists between the protected activity and the adverse
action.” Weixel v. Bd. of Educ. of City of N.Y., 287 F.3d 138, 148 (2d Cir. 2002) (citation and
quotation marks omitted). “A plaintiff’s burden at this prima facie stage is de minimis.” Treglia
v. Town of Manlius, 313 F.3d 713, 719 (2d Cir. 2002).

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The Court notes that providing mental health counseling to all alumnae upon request would likely be quite
expensive. See Powell, 364 F.3d at 88 (undue hardship includes a hardship that requires significant expense in light
of a number of factors). Although the Court’s heart goes out to those suffering from mental illness, universities are
not mental health facilities.

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Ms. Ibrahim fails to allege plausibly that she was engaged in protected activity or that
Columbia knew that she was involved in protected activity. “Protected activity” includes activity
that the plaintiff “has opposed any act or practice made unlawful” by the ADA.
42 U.S.C. § 12203(a); Alford v. Turbine Airfoil Coating & Repair, LLC, No. 12 CIV. 7539 DLC,
2014 WL 1516336, at *11 (S.D.N.Y. Apr. 17, 2014) (same). The plaintiff need not show that the
conduct she opposed was actually a violation of the ADA if she alleges that she “possessed a
good faith, reasonable belief that the underlying challenged actions of the [defendant] violated”
the ADA. Muller v. Costello, 187 F.3d 298, 311 (2d Cir. 1999) (quoting Sarno v. DouglasElliman Gibbons & Ives, Inc., 183 F.3d 155, 159 (2d Cir. 1999)).
Although requesting a reasonable accommodation of a disability is an ADA protected
activity, Weixel, 287 F.3d at 149, Ms. Ibrahim has failed to allege, for reasons similar to those
discussed supra, that she was requesting reasonable accommodation of her disability. She
alleges that she left voicemail messages identifying her disability, “requesting assistance” from
Columbia for her situation in Canada, and requesting mental health counseling, Compl. ¶¶ 9-10,
13, but she fails to allege any specific facts that would plausibly show that her request for
counseling (or anything else she said in her messages) was a request for reasonable
accommodation of her disability so that she could use Columbia’s services and facilities. Ms.
Ibrahim also has failed to allege any specific, non-conclusory facts showing that she had a “good
faith, reasonable belief” that any purportedly adverse actions taken by Columbia violated the
ADA. See Muller, 187 F.3d at 311. For those reasons, Ms. Ibrahim has failed to allege
plausibly that she was engaged in protected activity.
Relatedly, Ms. Ibrahim has failed to allege plausibly that Columbia knew that she was
engaged in protected activity. Ms. Ibrahim’s allegation that Columbia “knew that the plaintiff

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was engaged in protected activity,” Compl. ¶ 95, is a conclusion that the Court does not accept as
true in considering the Rule 12(b)(6) motion. See Brown, 756 F.3d at 225. Although Ms.
Ibrahim alleges that she informed Columbia that she had a disability and required mental health
counseling, see Compl. ¶¶ 9-10, 13, Ms. Ibrahim has failed to allege that Columbia understood
that Ms. Ibrahim was requesting an accommodation for a disability so that she could use
facilities and services provided by Columbia. See Weixel, 287 F.3d at 149 (second element of
the prima facie case satisfied where plaintiffs alleged facts showing that “the defendants were
aware of plaintiffs’ attempts to seek such accommodation”).
Indeed, Ms. Ibrahim does not seem to dispute that she has failed to allege that she
informed Columbia that she was requesting an accommodation. In response to Defendants’
argument that Plaintiff failed to notify Columbia of her need for accommodation, Ms. Ibrahim
argues that “it was the Defendants who ‘drew first blood’ by issuing their Persona Non Grata
letter” and that it was “the actions of the Defendants itself [that] created the need for the
accommodation.” Opp. 17. The Court does not understand why it would matter who “drew first
blood” or even what “accommodation” under the ADA was needed because of Defendants’
“actions . . . barring her from the Columbia Campus,” Opp. 17. Those opaque arguments
notwithstanding, Ms. Ibrahim has not plausibly alleged that she was engaged in protected
activity or that Columbia knew that she was engaged in protected activity before it took any
adverse action against her. Therefore, Ms. Ibrahim fails to state a plausible claim of ADA
retaliation.
CONCLUSION
For the foregoing reasons, Defendants’ motion to dismiss is GRANTED, and Ms.
Ibrahim’s ADA claims are DISMISSED. If Ms. Ibrahim wishes to amend her complaint, she

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must seek leave to do so no later than September 21, 2017. The motion for leave to amend must
include a redlined version of her proposed amendment, and she must allege facts that go
substantially beyond the allegations in the First Amended Verified Complaint.
Because the Court dismisses all of Ms. Ibrahim’s federal law claims, the Court declines
to exercise supplemental jurisdiction over the remaining state law claims. See
28 U.S.C. § 1367(c)(3) (“The district courts may decline to exercise supplemental jurisdiction
over a claim ... if the district court has dismissed all claims over which it has original
jurisdiction.”). The Clerk of Court is respectfully directed to terminate Docket Entry No. 20.

SO ORDERED.

____________________________
_
_________________________________
VALERIE CAPRONI
United States District Judge

Date: August 21, 2017
New York, New York

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