09-3470-cv
Baptista v. Hartford Bd. of Educ.


                                     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 Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New
York, on the 21st day of June, two thousand eleven.

PRESENT: ROGER J. MINER,
         GERARD E. LYNCH,
         RAYMOND J. LOHIER, JR.,
                   Circuit Judges.

–––––––––––––––––––––––––––––––––––––––––––––

JOSE BAPTISTA,
                                         Plaintiff-Appellant,

                                    v.                                    No. 09-3470-cv

HARTFORD BOARD OF EDUCATION,
                  Defendant-Appellee.

–––––––––––––––––––––––––––––––––––––––––––––

FOR APPELLANT:                           Jean Patterson and Rachel Seaton, law students appearing
                                         pursuant to Second Circuit Local Rule 46.1(e) (Jonathan H.
                                         Romberg, Supervising Attorney, on the brief), Seton Hall
                                         University School of Law, Center for Social Justice, Newark,
                                         NJ.

FOR APPELLEE:                            Melinda B. Kaufmann, Assistant Corporation Counsel, Hartford,
                                         CT.
       Appeal from the United States District Court for the District of Connecticut (Mark R.

Kravitz, Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

       Plaintiff-appellant Jose Baptista appeals from the district court’s August 10, 2009

judgment granting defendant-appellee Hartford Board of Education’s (“Board”) motion to

dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. We assume the

parties’ familiarity with the underlying facts, procedural history, and issues on appeal.

       We review a district court’s dismissal of a complaint for failure to state a claim de

novo. “In conducting this review, we assume all ‘well-pleaded factual allegations’ to be true,

and ‘determine whether they plausibly give rise to an entitlement to relief.’” Selevan v. N.Y.

Thruway Auth., 

, 88 (2d Cir. 2009), quoting Ashcroft v. Iqbal, 

,

1950 (2009). Although he is now represented by counsel, Baptista commenced the present

action pro se. The district court was therefore required to construe his complaint “broadly”

and as raising “the strongest argument that it suggests,” Weixel v. Bd. of Educ. of City of

N.Y., 

, 146 (2d Cir. 2002) (internal quotation marks and alterations omitted),

and to be “accommodating” in granting Baptista leave to amend, unless such “amendment

would be futile,” Fulton v. Goord, 

, 45 (2d Cir. 2009) (internal quotation marks

omitted).

       The district court satisfied these requirements. Baptista’s original complaint was

exceedingly skeletal and failed to state a claim upon which relief could be granted even on


                                              2
the most generous reading. Nevertheless, in response to the Board’s initial motion to dismiss

under Rule 12(b)(6), the district court gave Baptista the chance to amend his complaint to

address the defects that the Board had identified. Baptista then filed a “Motion to Amend

Complaint,” which the district court treated as an amendment to his original complaint; it

included a few new details, but failed to address the deficiencies highlighted in the Board’s

motion to dismiss. Ten days later, the court permitted Baptista to amend his complaint a

second time, but Baptista’s responsive filing largely repeated the content of his previous

amendment without adding significant new information. The Board ultimately filed another

motion to dismiss for failure to state a claim, describing the deficiencies that remained in

Baptista’s second amended complaint.

       The district court granted that motion, concluding, inter alia, that the second amended

complaint – even read in the most generous possible light – failed to allege that Baptista was

a qualified individual with a disability under the Rehabilitation Act, 29 U.S.C. §§ 791-941

(2006), and the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101-12300

(2006).1 On the final page of its order, however, the district court stated:

              If Mr. Baptista believes that the Court has not properly
              construed his Amended Complaint, or has information that
              would render his claims viable, he should file a motion to
              reconsider (along with a Third Amended Complaint) that
              addresses the defects in his Amended Complaint noted in this


       1
         The district court also concluded that Baptista had failed to allege a claim for
discrimination under the Uniformed Services Employment and Reemployment Rights Act
(“USERRA”), 38 U.S.C. §§ 4301-35 (2006), and had failed to plead facts sufficient for an
equal protection claim. Baptista fails to press his USERRA and equal protection claims on
appeal. Accordingly, we deem them waived and do not consider them further.

                                              3
              decision. Mr. Baptista must file any such motion to reconsider
              and Third Amended Complaint no later than August 7, 2009.
              The Court will not grant Mr. Baptista any further
              opportunities to amend his complaint to address the failures
              noted in this decision. If Mr. Baptista fails to file a motion
              to reconsider by August 7, 2009, the Clerk should close the
              file.

Baptista v. Hartford Bd. of Educ., No. 3:08CV1890 (MRK), 

, at *7 (D.

Conn. July 21, 2009) (emphasis in original). Baptista failed to file such a motion and instead

filed a notice of appeal.

       On appeal, Baptista argues that the district court erred in granting the Board’s motion

to dismiss, arguing (1) that the court improperly considered, adopted as true, and relied upon

for its legal conclusions the factual findings of the majority opinion of a labor arbitration

panel that had rejected a grievance filed by Baptista objecting to his firing, when Baptista had

attached to his complaint only the dissenting opinion from that arbitration; and (2) that

Baptista’s second amended complaint satisfied the pleading requirements of the

Rehabilitation Act and the ADA.

       Having conducted a de novo and independent review of the record, and construing

Baptista’s complaint in the light most favorable to him, we conclude that he failed to state

a claim under the Rehabilitation Act or the ADA, and that the district court correctly granted

the Board’s motion to dismiss. It is unnecessary for us to consider Baptista’s argument that

the district court erred in considering the majority opinion of the arbitration panel, as we need

not and do not rely on that document for our decision.

       To the extent that Baptista alleges that he should not have been disciplined for



                                               4
drinking on the job because he claims that the evidence against him was insufficient, he fails

to state a discrimination claim. Disciplining, or even dismissing, an employee that the

employer believed to have been drunk on the job does not constitute disability

discrimination.2 Whether the evidence was sufficient to support the employer’s belief is an

issue for the arbitration panel, not for this Court.3

       On appeal, Baptista emphasizes those portions of his complaint that he contends could

be taken to state a claim that he was discriminatorily terminated because other employees

found to have been drunk at work had been subjected to lesser discipline. But while Baptista

conclusorily alleges that his firing constituted discrimination on the basis of his alcoholism

or HIV-positive status, in none of his complaints did he describe how either impairment

limited any major life activity – a requirement for a condition to constitute a disability for

purposes of the laws on which he relies. Nor did he clearly allege that the Board was aware

of his alleged disabilities or that the other employees who purportedly were subjected to

lesser discipline for drinking infractions were not alcoholics or HIV-positive.


       2
        See 42 U.S.C. § 12114(c)(4) (2006) (providing that an ADA-covered entity “may
hold an employee . . . who is an alcoholic to the same qualification standards for . . . job
performance and behavior that such entity holds other employees, even if any unsatisfactory
performance or behavior is related to the . . . alcoholism of such employee”); 29 U.S.C.
§ 705(20)(C)(v) (2006) (providing that under the Rehabilitation Act, “the term ‘individual
with a disability’ does not include any individual who is an alcoholic whose current use of
alcohol prevents such individual from performing the duties of the job in question or whose
employment, by reason of such current alcohol abuse, would constitute a direct threat to
property or the safety of others”).
       3
         Even the dissenting arbitrator, on whose opinion Baptista relies, did not contend that
the evidence of Baptista’s on-the-job drinking was so thin as to suggest that the Board did
not believe the charge in good faith or that the finding of drunkenness was a mere pretext for
some form of bias.

                                               5
       Whether any one of these defects, standing on its own, would have required dismissal

of the complaint, in combination they leave little basis for a claim of discrimination. Read

together, Baptista’s original complaint, his first “Motion to Amend Complaint,” and his

second “Motion to Amend Complaint” – the three documents that the district court

considered together as Baptista’s second amended complaint – fail to state a claim under the

ADA or the Rehabilitation Act. Nevertheless, a district court “should not dismiss [a pro se

complaint] without granting leave to amend at least once when a liberal reading of the

complaint gives any indication that a valid claim might be stated.” Branum v. Clark, 

, 705 (2d Cir. 1991). Here, however, the district court gave Baptista three

opportunities to amend. The court and the Board repeatedly identified for Baptista the

defects in his complaint, yet he never cured them by adding relevant factual allegations, such

as, for example, the effects of his alcoholism, whether he believed the other employees

caught drinking on the job but not fired were alcoholics, or whether the Board knew he was

an alcoholic.4

       Of course, as a pro se litigant, Baptista cannot be expected to act with the diligence

or skill of an attorney. He should be “afforded leniency in asserting his claims.” Lucas v.

Miles, 

, 538 (2d Cir. 1996). But “the indulgence afforded to” pro se litigants is

not limitless. 

court may treat a motion to dismiss as a motion for a more

definite statement. See, e.g., Hodgson v. Va. Baptist Hosp., Inc., 

, 824 (4th Cir.



       4
        Even on appeal, now represented by counsel, Baptista does not suggest what facts
he could allege in good faith that would cure these defects.

                                              6
1973) (“[R]equiring a limited expansion of a complaint . . . under Rule 12(e) . . . is a matter

generally left to the district court’s discretion.”); United States v. Lustig, 

,

809 (S.D.N.Y. 1953); 5C Charles Alan Wright & Arthur Miller, Federal Practice &

Procedure § 1376 (3d ed. 2004). A litigant’s repeated failure to provide that more definite

statement can itself warrant dismissal. See Fed. R. Civ. P. 12(e) (providing, inter alia, that

“[i]f the court orders a more definite statement and the order is not obeyed . . . within the time

the court sets, the court may strike the pleading or issue any other appropriate order”); see

also EEOC v. J.H. Routh Packing Co., 

, 854 (6th Cir. 2001) (“[F]ailure to allege

more specifically the major life activity” affected by the alleged impairment in response to

an order to provide a more definite statement “may fairly result in dismissal of the

complaint.”).

       Here, the district court gave Baptista numerous chances to amend his complaint, but

he repeatedly failed to address the problems to which he had been alerted. The district court

therefore correctly granted the Board’s motion to dismiss.

                                       CONCLUSION

       We have considered Baptista’s other arguments and find them to be without merit.

For the foregoing reasons, the judgment of the district court is AFFIRMED.

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




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