Salad anxiety claim fails in 2d Circuit.

The plaintiff is a young man who worked for a college in Connecticut. He worked for the food service but was fired. He alleges he was fired because of his disabilities, bronchitis and anxiety. He loses the case, and the Court of Appeals affirms.

The case is Smith v. Hogan, decided on July 22. The lawsuit alleges that plaintiff's bronchitis cost him his job. Working for the food service, he claimed that state law prohibited him from working with food because of his bronchitis. He left the food serving line without permission and was fired. After he brought the lawsuit, though, plaintiff changed his theory of the case, arguing that "he was terminated because of his anxiety resulting from being asked to work on the salad line." The Court of Appeals quotes from plaintiff's brief, describing plaintiff's "disabling condition" as being anxious about making wraps.

The problem is that the anxiety theory of plaintiff's case is not set forth in his complaint. To get around this omission, plaintiff notes that the anxiety theory is set forth in an affidavit that plaintiff attached to the complaint, part of 170 pages of exhibits attached to the complaint. Can the courts consider the affidavit in deciding whether plaintiff has a case? They cannot, the Second Circuit (Parker, Walker and Kearse) holds for the first time.

Rule 10(c) allows courts to consider "written instruments" that are attached to the complaint in resolving Rule 12 motions. Adopting the reasoning from a Third Circuit decision, the Second Circuit says "written instruments" has a technical definition. It does not mean any old document or paper that you attach to the complaint. Rather, "the types of exhibits incorporated within the pleadings by Rule 10(c) consist largely of documentary evidence, specifically, contracts, notes, and other writings on which a party's action is based." Since affidavits are not covered under that definition, the court cannot consider whether plaintiff's anxiety disorder led to this termination. The case is over.