Irrera v. Humpherys

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
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DR. JOSEPH IRRERA,
Plaintiff-Appellant,
v.
DR. DOUGLAS HUMPHERYS, Individually,
UNIVERSITY OF ROCHESTER1
Defendants-Appellees.
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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 which relief can be granted a complaint by a
graduate music student alleging sexual harassment and
retaliation by his teacher, who is chair of the 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 Plaintiff-
Appellant.
Marion Blankopf, Rochester, NY
(Nixon Peabody LLP, Christopher
D. Thomas, Rochester, NY, on the
brief), for Defendants-
Appellees.
JON O. NEWMAN, Circuit Judge:
The issue on this appeal is whether a claim of
retaliation for complaining of sexual harassment 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 the motion of defendants-appellants Douglas
Humpherys and the University of Rochester to 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
(“DMA”) degree.3 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 sexual advance toward Irrera by caressing
Irrera’s shoulder and rubbing his 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
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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.’” Id. at 678 (quoting
Bell Atlantic, 550 U.S. at 570).
Endeavoring to apply the plausibility standard to
Irrera’s retaliation claim, we conclude that it 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 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
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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
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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
5
retaliation claims.
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.
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