In Irrera v. University of Rochester, No. 16-2004, 2017 WL 2587324 (2d Cir. June 15, 2017), the Second Circuit held that the plaintiff – a piano student at the Eastman School of Music at the University of Rochester – plausibly alleged a claim of retaliation for complaining of sexual harassment by his teacher (defendant Dr. Douglas Humpherys).In a related Summary Order dated June 15, 2017, the Second Circuit affirmed the dismissal of plaintiff’s hostile educational environment claims as time-barred.
In sum, plaintiff’s complaint (accepted as true at this stage of the litigation) alleged that Humpherys made several unwanted sexual advances towards plaintiff, plaintiff rejected those advances, and that as a result plaintiff suffered adverse consequences (failing grades and rejection of his application for several teaching positions). That is, plaintiff “grounded his claim of retaliation on the theory that the absence of any interviews resulted from negative references from Humpherys and that Humpherys gave a negative reference as a result of Irrera’s rejection of Humpherys’ sexual advances.”
The district court dismissed plaintiff’s retaliation claim, on the ground that “it was speculative because he failed to make factual allegations that Humpherys or any other professor at Eastman gave any of his potential employers a reference, let alone a negative reference.”
This, the Second Circuit held, was error.
The court gives us a summary/tutorial of the (relatively) recently-changed federal court pleading standard:
Ever since the Supreme Court replaced the lenient pleading standard of Conley v. Gibson, 355 U.S. 41 (1957), with a somewhat more restrictive standard, see Bell Atlantic Corp. v. Twombly, 550 U.S. 554 (2007), which it called a “plausibility standard,” id. at 560; see Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), courts have struggled to draw the line between speculative allegations and those of sufficient plausibility to survive a motion to dismiss. The Supreme Court provided scant guidance for drawing that elusive line. Judges were told to rely on their “experience and common sense,” id. at 679, and to consider the context in which a claim is made, id. The context of the discrimination claims in Iqbal was the detention of Muslim aliens held on immigration charges in the immediate aftermath of the attack of 9/11. Even in that context, four justices of the Supreme Court deemed the allegations sufficient to meet the plausibility standard, but five justices did not. Ultimately, Iqbal instructs, courts are to determine whether a complaint “contain[s] sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.
Applying the law, the court explained that plaintiff’s retaliation claim indeed met this standard:
The context of Irrera’s retaliation claim is the unsuccessful quest of a graduate conservatory piano student for a teaching position after he declined alleged sexual approaches from the man who was his teacher and the department chair. Irrera is a graduate of one of the Nation’s most highly regarded schools of music and the recipient of a prestigious honor. Although it is not impossible that all twenty-eight schools to which he applied for open teaching positions deemed his credentials insufficient to warrant an interview, it is plausible that these schools received negative references from the chairman of Eastman’s piano department, who had been Irrera’s teacher. It is also plausible that a teacher who warned his student that he would make his life a “living hell” if he made a written report of the teacher’s sexual advances would give that student a negative reference, even if the student later complained to a school dean only orally. And it is also plausible that, since such a teacher is the chair of a department, he would be contacted by schools to which Irrera applied even though he was understandably not listed as a reference. Although Irrera’s complaint makes no allegation that he is aware of a negative reference sent to any particular school, common experience indicates that schools and colleges rarely, if ever, disclose the content of the references they receive, in the absence of court-ordered discovery. Although some of these circumstances occurred outside the applicable limitations period, as we concluded in our summary order, they are nonetheless relevant to Irrera’s timely claim of retaliation, and they persuade us that that claim is plausible and that dismissal at the pleading stage was error.