In Shalom v. Hunter Coll. of City Univ. of New York, No. 14-3426-CV, 2016 WL 1358607 (2d Cir. Apr. 6, 2016), the Second Circuit affirmed the district court’s dismissal of plaintiff’s claims under Title IX of the Education Amendments of 1972 (20 U.S.C. § 1681) for (1) quid pro quo sexual harassment, (2) hostile educational environment, and (3) retaliation.
As set out in the district court’s opinion, plaintiff – a student at Hunter College’s Speech-Language Pathology Program – alleged (inter alia) that the director of her program, Dr. Vogel, commented on her appearance, made her come to his office for physical appearance inspections, and caused her to fail a class.
Quid Pro Quo Sexual Harassment
In affirming the dismissal of her quid pro quo sexual harassment claim, the court explained:
To prevail on a Title IX quid pro quo sexual harassment claim, a plaintiff must prove (1) rejection of sexual advances, (2) a tangible school-related consequence, and (3) a causal connection between the two. … [W]e conclude, as the district court did, that Shalom’s claim fails at the first issue because she testified at her deposition that Dr. Vogel never made a sexual advance toward her.
Hostile Educational Environment
As to plaintiff’s hostile educational environment claim, the court ruled:
We also conclude, as the district court did, that Shalom’s hostile environment claim fails because Dr. Vogel’s alleged comments about her dress and appearance were not sufficiently severe or pervasive to alter the conditions of [her] educational environment. Shalom’s receipt of a failing grade in her COMSC 728 class warrants no different conclusion. Although adverse treatment, even if not overtly sexual in nature, can contribute to a hostile environment, that treatment must nonetheless be “on account of sex. Here, Dr. Vogel’s comments, especially when considered in light of his responsibility as clinic director to enforce the dress code, do not raise an inference that he gave Shalom a failing grade on account of her sex. The district court, therefore, correctly granted summary judgment as to Shalom’s hostile environment claim.
It also observed that plaintiff’s “hostile environment claim fails because Dr. Vogel’s alleged comments about her dress and appearance were not sufficiently severe or pervasive to alter the conditions of [her] educational environment.”
As to plaintiff’s retaliation claim, the court explained that in order to establish retaliation under Title IX, plaintiff was required to demonstrate that:
(1) [s]he engaged in protected activity, (2) defendant had knowledge of such protected activity, (3) plaintiff suffered adverse school-related action, and (4) causal connection existed between protected activity and adverse action.
Here, too much time passed between plaintiff’s complaints and the alleged adverse actions: “While causality can be inferred where an adverse action follows closely after protected activity, Shalom received her failing grade at the end of the fall 2010 semester, at least five months after her first complaint, and her leave-of-absence request was denied over a year after her final complaint and the commencement of her Article 78 proceedings.”
Furthermore, noting that the burden-shifting framework set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), applies to Title IX retaliation claims. Plaintiff “fail[ed] to show that defendant’s legitimate, non-discriminatory reason for her grade—various supervisors’ notation of Shalom’s deficient performance—was pretextual.”