Irrera v. Humpherys, No. 16-2004 (2d Cir. 2017)

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Justia Opinion Summary

Plaintiff filed suit against defendant and the University, alleging a claim of retaliation based on his complaint of sexual harassment. The district court granted defendants' motion to dismiss. The Second Circuit applied the plausibility standard to plaintiff's retaliation claim and held that it was plausible that he was denied a teaching position after he declined sexual approaches from the man who was his teacher and the department chair. Accordingly, the court vacated in part and remanded for further consideration of the retaliation claims.

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16-2004-cv Irrera v. Humpherys, et al. UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term 2016 Argued: May 31, 2017 Decided: June 15, 2017 Docket No. 16-2004 - - - - - - - - - - - - - - - - - - - - - DR. JOSEPH IRRERA, Plaintiff-Appellant, v. DR. DOUGLAS HUMPHERYS, Individually, UNIVERSITY OF ROCHESTER1 Defendants-Appellees. - - - - - - - - - - - - - - - - - - - - - - Before: NEWMAN, CABRANES, and LYNCH, Circuit Judges. Appeal from the May 24, 2016, Order of the District Court for the Western District of New York (David G. Larimer, District Judge) dismissing for failure to state a 1 The Clerk is requested to change the official caption as above. 1 claim on graduate which relief music student retaliation by his can be granted alleging teacher, who a complaint sexual is by harassment chair of the a and piano department of the Eastman School of Music of the University of Rochester, and by the school. Affirmed in part, in a summary order filed this day, as to the claims of sexual harassment and reversed in part and remanded, in this opinion, as to the claim of retaliation. Stewart Lee Karlin, New York, NY (Stewart Lee Karlin Law Group, PC, New York, NY, for PlaintiffAppellant. Marion Blankopf, Rochester, NY (Nixon Peabody LLP, Christopher D. Thomas, Rochester, NY, on the brief), for DefendantsAppellees. JON O. NEWMAN, Circuit Judge: The issue retaliation for on this appeal complaining of is whether sexual a claim harassment of was sufficiently plausible to withstand a motion to dismiss at 2 the pleading stage. Dr. Joseph Irrera appeals from the May 24, 2016, Order of the District Court for the Western District of New York (David G. Larimer, District Judge), granting Humpherys the and motion the of defendants-appellants University of Rochester to Douglas dismiss Irrera’s complaint for failure to state a claim on which relief can be granted. See Fed. R. Civ. P. 12(b)(6). Other issues raised by Irrera’s appeal have been adjudicated in a summary order filed this day.2 Background Irrera was a graduate piano student at the Eastman School of Music (“Eastman”) of the University of Rochester from 2009 to 2014, pursuing a doctor of musical arts 2 We have considered this appeal on an expedited basis, pursuant to our Expedited Appeal Calendar, see Second Circuit Local Rule 31.2(b). We adopted that rule in the aftermath of Bell Atlantic Corp. v. Twombly, 550 U.S. 554 (2007), and Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), to give expedited consideration to appeals from judgments and orders dismissing complaints at the pleading stage. See Jon O. Newman, “The Second Circuit’s Expedited Appeals Calendar for Threshold Dismissals,” 80 Brook. L. Rev. 429 (2015). 3 degree.3 (“DMA”) Humpherys, the chair of the piano department, was initially Irrera’s teacher. The complaint, accepted as true for purposes of this appeal, made several allegations against Humpherys. He made an unwanted Irrera’s sexual shoulder advance and toward rubbing his Irrera by caressing hands up and down Irrera’s arms for approximately four minutes during a piano lesson. Humpherys also leaned his crotch into Irrera’s back during the same lesson. On other occasions Humpherys winked at him, blew kisses at him, raised his eyebrows at him, and looked up and down at him in a sexual manner when they encountered each other in Eastman’s common areas. Another professor at Eastman, who was a close confidant of Humpherys’, told Irrera that Humpherys was “in love” with him. A-41. Irrera rejected Humpherys’ sexual advances. Students seeking a DMA degree are required, among other things, to perform two solo recitals on their primary instrument. Humpherys repeatedly assured Irrera that he was ready for his first required solo piano recital and that he 3 Irrera had previously received his bachelor degree in piano performance at Eastman and received his master’s degree at the Peabody Conservatory in Baltimore, Maryland. 4 would do well in that recital, a prediction that almost always proved correct with other students. The recital was judged by a panel of three professors, including Humpherys. Graded on a pass/fail basis, Irrera was given a failing grade in retaliation for rejecting Humpherys’ sexual advances. Another professor at Eastman informed Irrera that Humpherys, walking into the recital, had told her that “it will not go well[,]” A-43, and, after the recital, told Irrera that he had played well enough to pass. Humpherys gave Irrera unusually short notice of his second solo recital, which was judged by the same panel that judged the first recital. The second panel also gave Irrera a failing grade. In the 27 years that Irrera had been playing the piano, he had never previously failed a solo recital. A few months after being judged to have failed the second solo recital, Irrera won the American Protégé International Competition and performed at Carnegie Hall for the second time. After Eastman assigned another member of the piano faculty as Irrera’s teacher, he was successful on all his subsequent recitals and graduated with a DMA degree in 2014. 5 Humpherys told Irrera in a recorded conversation that he “would never get a university professor job,” A-45, and threatened to “make his life a living hell” if he made any written report of sexual harassment, A-51. An Eastman Dean, Marie Rolf, told Irrera that she expected that “future employers would call, email or otherwise contact Humpherys to get feedback regarding [his] abilities to perform in his primary instrument[,]” A-49, that “she received calls all the time even though not listed as someone’s reference,” id., and that “‘we cannot get [Humpherys] out of your life -- he has been your teacher for so long[,]’” id. After receiving his DMA degree from Eastman, Irrera applied to twenty-eight colleges and universities for open teaching positions in their piano departments, but did not receive a single invitation for an interview. Such an outcome, he alleges, is “extraordinarily rare (unheard of)” for an Eastman graduate, and “[p]ractically all of the DMA students at Eastman in the same year have found a job shortly after they graduated and some even while they were still completing the DMA degree.” A-57. 6 Irrera 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 Irrera’s retaliation claim, concluding 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. Discussion 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 7 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 sufficient the to Supreme meet the Court deemed plausibility the allegations 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.’” Id. at 678 (quoting Bell Atlantic, 550 U.S. at 570). Endeavoring Irrera’s to apply retaliation the claim, plausibility we standard conclude that it to is plausible. 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 department chair. Nation’s most recipient of impossible the Irrera highly a that man who is all his teacher graduate schools honor. twenty-eight 8 a regarded prestigious was of of music to it the of the and one Although schools and the is not which he applied for open teaching positions deemed his credentials insufficient to warrant an interview, it is plausible that these schools chairman of received Eastman’s negative piano references department, from who had the 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 9 us that that claim is plausible and that dismissal at the pleading stage was error.4 Conclusion The Order of the District Court is vacated in part, and the case is remanded for further consideration of Irrera’s retaliation claims. 5 4 We also conclude that the District Court erred in dismissing Irrera’s retaliation claim as to his student internship at Eastman Community Music School (“ECMS”). Irrera had interned at ECMS since 2007, but was told in 2014 that he could not continue because he has graduated from Eastman. Irrera contends that the denial of the ECMS internship was in retaliation for his sexual harassment complaint. The amended complaint names other DMA graduates who were allowed to serve as interns at ECMS following their graduation, and alleges that the ECMS faculty handbook allows interns to increase their teaching load to 17.5 hours per week after they have graduated from the DMA program, calling into question Eastman’s asserted rationale for terminating the internship. Taking these allegations together with the other allegations detailed in this opinion, we conclude that Irrera has plausibly pled a retaliation claim as to the ECMS internship. 5 The District Court declined to exercise supplemental jurisdiction over Irrera’s remaining state and common law claims, including his breach of contract claim, because it had dismissed all of Irrera’s federal claims. See Valencia ex rel. Franco v. Lee, 316 F.3d 299, 305 (2d Cir. 2003). On remand, the District Court should reconsider its decision regarding its exercise of supplemental jurisdiction as to state and local law claims related to the retaliation claim. 10

Primary Holding

Plaintiff alleged a plausible claim of retaliation claim in violation of federal, state and city laws prohibiting sexual harassment and retaliatory actions.

Facts

Factual allegations supporting a plausible claim sufficient to satisfy Rule 8 of the Federal Rules of Civil Procedure included the following. Plaintiff did not receive a teaching position after he declined alleged sexual approaches from the man who was his teacher and the department chair. The school was one of the U.S.’s most highly regarded schools of music. Plaintiff was the recipient of a prestigious honor and applied to twenty-eight schools but did not receive an interview from one of them. The teacher had warned Plaintiff, his student, that he would make his life a “living hell” if he made a written report of the teacher’s sexual advances and would give that student a negative reference, even if the student later complained to a school dean only orally. It is also plausible, in the Court’s opinion, that the chiar would be contacted by schools to which Plaintiff applied even though he was understandably not listed as a reference. The court relied on “common experience [which] indicates that schools and colleges rarely, if ever, disclose the content of the references they receive, in the absence of court-ordered discovery.”

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