1 16-2004-cv Irrera v. Humpherys, et al.

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT



## SUMMARY ORDER

Rulings by summary order do not have precedential effect. Cita tion to a summary order filed on or after January 1, 2007, is permitted a nd is governed by Federal Rule of Appellate Procedure 32.1 and this Court’s Local Rule 32.1.1. When citing a summary order in a document filed with this Court, a party mu st cite either the Federal Appendix or an electronic database (with the notation “summa ry order”). A party citing a summary order must serve a copy of it on any party not represented by counsel.

At a stated term of the United States Cour t of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse , 40 Foley Square, in the City of New York, on the 15 th day of June, two thousand seventeen.

PRESENT: J ON O. N EWMAN
, J OSÉ A. C ABRANES
, G ERARD E. L YNCH
,

Circuit Judges.

D R

. J OSEPH I RRERA
,
Plaintiff-Appellant, 16-2004-cv

v.

D R

. D OUGLAS H UMPHERYS
, Individually, U NIVERSITY OF R OCHESTER *

Defendants-Appellees.

FOR PLAINTIFF-APPELLANT: S TEWART L EE K ARLIN
, Stewart Lee Karlin, Law Group PC, New York, NY.

FOR DEFENDANTS-APPELLEES: M ARION B LANKOPF and Christopher D. Thomas, Nixon Peabody LLP, Rochester, NY.

* The Clerk is requested to change the official caption as above.2 Appeal from an Order of the United States District Court for the Western District of New 1 York (David G. Larimer, Judge ). 2

UPON DUE CONSIDERATION WHEREO F, IT IS HEREBY ORDERED, 3 ADJUDGED, AND DECREED that the May 24, 2016, Order is AFFIRMED in part with 4 respect to Irrera’s Title IX, New York Human Ri ghts Law (“NYHRL”), and New York Civil Rights 5 Law (“NYCRL”) discrimination claims. In a separate opinion, filed this day, the Order is 6 REVERSED in part with respect to Irrera’s Title IX, NYHRL, and NYCRL retaliation claims, and 7
REMANDED for further proceedings consistent with this Order. 8

Plaintiff-appellant Dr. Joseph Irrera, a doctora l graduate of the University of Rochester’s 9 Eastman School of Music (“Eastman”), brough t an action in the District Court against the 10 University of Rochester and Dr. Douglas Humpherys, Chairperson of Eastman’s Piano 11 Department, for violations of Title IX of the Ed ucation Amendments of 1972, the NYHRL, and the 12 NYCRL, among other claims. Irrera alleged that Humpherys sexually harassed him, that Eastman 13 was aware of the harassment but failed to act, and that Irrera was subject to retaliation for 14 complaining about the harassment. 15

Defendants moved to dismiss Irrera’s complaint pursuant to Federal Rule of Civil Procedure 16 12(b)(6), and the District Court granted their motion . Specifically, the District Court held that some 17 of Irrera’s sexual harassment claims were barred by the applicable three-year statute of limitations, 18 that his allegations concerning Humpherys’ condu ct falling within the statute of limitations period 19 did not constitute a “continuing violation” or give rise to stand-alone discrimination or hostile 20 educational environment claims, and that events oc curring after he graduated did not amount to a 21 plausible claim of retaliation. We consider the reta liation claim in an opinion filed this day. Having 22 dismissed Irrera’s Title IX, NYHRL, and NYCRL cl aims, the District Court declined to exercise 23 supplemental jurisdiction over his remaining state law claims. On appeal, Irrera challenges the 24
District Court’s dismissal of his hostile educ ational environmental and retaliation claims. 1 We 25 assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the 26 issues on appeal. 2 27

1 Irrera challenges the District Court’s dismissal of his quid pro quo sexual harassment claim only in his reply brief, and we therefore consider the claim abandoned. See JP Morgan Chase Bank v. Altos Hornos de Mexico, S.A. de C.V. , 412 F.3d 418, 428 (2d Cir. 2005).

2 We review de novo “a district court’s dismissal of a compla int pursuant to [Federal Rule of Civil Procedure] 12(b)(6) . . . [,] accept[ing] all well-pleaded allegations in the complaint as true, [and] drawing all reasonable inferences in the plaintiff’s favor.” Operating Local 649 Annuity Trust Fund v. Smith Barney Fund Mgmt. LLC , 595 F.3d 86, 91 (2d Cir. 2010).3 Title IX affords “a remedy to a student who is subjected to sexual harassment by a teacher 1 or professor at an educational in stitution receiving federal funds.” Papelino v. Albany Coll. of Pharmacy 2 of Union Univ. , 633 F.3d 81, 88–89 (2d Cir. 2011). A pl aintiff can establish a hostile educational 3
environment claim under Title IX if he dem onstrates “that he subjectively perceived the 4 environment to be hostile or abusive and that the environment objectively was hostile or abusive, 5 that is, that it was permeated with discriminatory intimidation, ridicule, and insult sufficiently severe 6 or pervasive to alter the conditions of his educational environment.” Id. In addition, an educational 7 institution will be liable under Title IX if the plai ntiff “establish[es] that a school official with 8 authority to address the alleged [harassment] an d to institute corrective measures had actual 9 knowledge of the discrimination and failed to adequately respond.” Id. (internal quotation marks 10 omitted). The statute of limitations for a Title IX claim based on conduct occurring in New York is 11 three years. Curto v. Edmundson , 392 F.3d 502, 504 (2d Cir. 2004). 12

According to Irrera’s original complaint, in the spring of 2010, Humpherys made an 13 unwanted sexual advance toward Irrera by caressing Irrera’s shoulder and rubbing his hands up and 14 down Irrera’s arms for approximately four minutes during a piano lesson. Humpherys also leaned 15 his crotch into Irrera’s back during the same lesson. Irrera also alleged that, over a year later, in April 16 and November 2011, Humpherys caused the panel of professors judging Irrera’s first two solo piano 17 recitals to fail Irrera in retaliation for having rejected Humpherys’ purported sexual advances. 18 Because Irrera filed his action on June 24, 2015, ov er three years after any of the alleged conduct 19 took place, his Title IX claims premised on Hu mpherys’ actions would be untimely. 20

Nevertheless, Irrera, by way of an amende d complaint, alleged that Humpherys took 21 additional actions against him b etween 2012 and 2014: Humpherys winked at him, blew kisses at 22 him, raised his eyebrows at him, and looked up and down at him in a sexual manner when they 23 encountered each other in Eastman’s common areas. Irrera contended below, as he does again on 24 appeal, that these additional actions established a “continuing violation” of Title IX sufficient to 25 render all of Humpherys’ actions, including the 2010 and 2011 actions, timely. The District Court 26 held that these new allegations failed to establish a “continuing violation” for purposes of the statute 27 of limitations and, thus, Irrera’s Title IX clai ms stemming from Humpherys’ 2010 and 2011 alleged 28 conduct were untimely. The District Court also held that Irrera’s allegations about Humpherys’ facial 29 expressions did not plausibly establish st and-alone Title IX claims. We agree. 30

“[D]iscrete discriminatory acts are not actionabl e if time barred, even when they are related 31 to acts alleged in timely filed charges.” National Railroad Passe nger Corp v. Morgan , 536 U.S. 101, 113 32 (2002). With respect to hostile educational environment claims, however, which “depend upon 33 proof of repeated conduct extendi ng over a period of time,” Morgan , 536 U.S. at 120 n.12, “a 34 sexually offensive incident within the limitations period permits consideration of an incident 35 preceding the limitations period only if the incidents are sufficiently related.” McGullam v. Cedar 36 Graphics, Inc. , 609 F.3d 70, 77 (2d Cir. 2010). 374 The unwanted sexual touching and retaliati on allegedly committed by Humpherys in 2010 1 and 2011 and the allegedly sexual facial expressions made by Humpherys between 2012 and 2014 2 were discrete acts of harassment separated by multiple years of inactivity. See Lambert , 10 F.3d at 53 3 (affirming the dismissal of Title VII claims as time barred where “plaintiffs failed to produce 4 evidence of any [discriminatory] policy or mechanis m”). Therefore we conclude that the “continuing 5 violation exception” does not apply and the Distri ct Court correctly held that Irrera’s claims 6 concerning Humpherys’ 2010 and 2011 acts are ba rred by the three-year statute of limitations. 7

Irrera’s allegations regarding Humpherys’ facial expressions also do not plausibly establish a 8
stand-alone hostile educational environment claim. I rrera does not plausibly allege that Humpherys’ 9 sporadic winks, leers, and blown kisses were “suffici ently severe or pervasive to alter the conditions 10
of his educational environment.” Papelino , 633 F.3d at 89 ; see Alfano v. Costello , 294 F.3d 365, 374 (2d 11 Cir. 2002) (explaining that “isolated acts, unless ve ry serious, do not meet the threshold of severity 12 or pervasiveness”). Accordingly, the District Cou rt correctly dismissed Irrera’s Title IX hostile 13 educational environmental claim arising out of Humpherys’ 2012 to 2014 behavior. 14

CONCLUSION 15

For the foregoing reasons, the May 24, 2016, Order is AFFIRMED in part with respect to 16 Irrera’s Title IX, NYHRL, and NYCRL discri mination and hostile work environment claims , and 17 for the reasons set forth in an opinion filed this day, is REVERSED in part with respect to Irrera’s 18 Title IX, NYHRL, and NYCRL retaliation claims , and REMANDED for further proceedings 19 consistent with that opinion. 3 20
FOR THE COURT: 21 Catherine O’Hagan Wolfe, Clerk 22

3 The District Court declined to exercise supplem ental 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 rega rding its exercise of supplemental jurisdiction.