06-3446-cv

Patane v. Clark

*The Honorable Charles L . Brieant, United States District Court for the Southern District of New York, sitting by

designation. -1- UNIT ED S TAT ES COU RT OF A PP EALS 1 2 F OR THE S ECOND C IRCU IT 3 4 5 6 August Term, 2007 7 8 (Argued: October 4, 2007 Decide d: November 28, 2007) 9 10 Docket No. 06-3446-cv 11 12 13 E LEANORA M. P ATANE , 14 15 Plaintiff- Appellant , 16 17 –v.– 18 19 J OHN R ICHA RD C LARK , H ARRY B. E VANS , D AVID S TUHR , G EORGI NA A RENDACS AND F ORDHAM 20 U NIV ERS ITY , 21 22 Defendants-Appellees

. 23 24 25 26 Before: 27 28 C ALABRESI , W ESLEY , Circuit Judges , and B RIE ANT , District Judge

. * 29 30 31 32 Appeal from an order of the United States District Court for the Southern District of New 33 York (Conner, J. ), enter ed on June 2 2, 2006, di smissing P laintiff ’s Complai

nt pursua nt to 34 Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. 35 361 Plaintiff explicitly raised only six claims, but her gender-based discrimination claim can be divide d into a dis criminat ory action c laim and a

hostile work envir

onment cl aim. -2- A FFI RMED in part, R EVERS ED in part, and R EMANDED to th e dist rict c ourt f or pro ceedin gs 1 in accordance with this decision. 2 3 4 5 D RITA N ICAJ , Lovett & Gould, White Plains, N.Y., for Plaintiff-Appellant

. 6 7 G AIL S. C OLEMAN , U.S. Equal Employment Opportunity Commission, 8 Washington, D.C., for Amicus Curiae , in support of Plaintiff-Appellant

. 9 10 K EVIN J. H ARRI NGTON & J OHN T. A. R OSENTHAL , Harrington, Ocko & Monk, 11 LL P, White Plains, N.Y., for Defendants-Appellees

. 12 13 14 15 P ER C URIA M : 16 Plainti ff-Ap pellant Eleanor a M. Patane appea

ls from the

dismissal o f her Comp laint in its 17 entirety

pursuant to Fede ral Rule o f CivilProcedure (“FRCP”) 12(b)(6) by the United States District 18 Courtfor the Southern District of New York

(Conner, J. ). In her Complaint, Plaintiff pressed nine 19 claims 1 against each of the five Def

endants- Appellee s, John Richa rd Clark, Harry

B. Evan s, David 20 Stuhr, Georgina Arendacs and F ordham University (“F ordham”), for discriminatory action, creating 21

a hostile work environment, and retaliatory acts following Plaintiff’s initial complaints, in violation 22 of

Title VI I, 42U.S.C. § 2000e et

seq ., New York State Executive Law ( “NYSEL”) § 296 et seq. , 23 and

New York City Human Rig hts Law (“NYCHRL”) § 8-101 et seq . Plaintiff does not appeal the 24 districtcourt’s dismissal of her Title VII claims against the four individualdefendants on the grounds 25 that

“individuals are not subject to liability under Title VI I.” Wrighten v. Glowski , 232 F.3d 119, 120 26 ( 2d

Cir. 2000)(per cu

riam). H owever , Plaintiff

appeals the distri ct court ’s dismissa l of her r ema inin g 27 claims for failure to state a claim upon which relief c ould be granted. 28-3-

Taking Plaintiff’s allegations as true, as we must, we f

ind that he

r Complain

t asserts claims 1 for a hostile work environment and retaliation in violation of both the fe deral and state statutes 2 aga inst

Defendant Fordham University, and in violation of the state statutes against the fou r 3 individ

ual Defe ndants. We vacate the district court’s judgment with reg ard to these claims, and 4 remand for further proceeding s consistent with this opinion. 5 BACKGROUND 6 Plaintiff

began working in 1998 as an executive sec retary in Fordham University’ s Classics 7 Department. One of her supervisors was Defenda ntJohn Richard Clark, a professor in the Classics 8 Department

who was a

lso, at va rious time s during

Plain tiff’s tenure, the Department’s Chair. 9 Plaintiff

allege s that, from the b eginnin g, Clar k enga ged in inappropriate sexually-c

harged conduct 10 in their workplace. 11 For instance, Plaintiff allege s that, in

1998, Clark engaged in the g ender-based harassment 12 of

a female classics professor, Dr. Sarah Peirce. The n, starting in 1999-2000, Clark spent one to two 13 hours every da

y viewing “hard core pornogra

phic” videotapes on a TV-VCR in his office. Plaintiff 14 claims she was a

ware of Clark’s habit

because the flick ering f rom his TV scre en was v isib le thr ough 15 the glass p a rtition of his office and because she once saw numerous pornographic videotapes 16 scattered on the floor of his office when she knoc ked on his door to announce a visitor. 17 Plaintiff

also alleges that some of Clark’s behavior was spe cifically dire cted at her. Once, she 18 discovered

“hard core pornogra

phic websites” on her computer. She allege s that Clark used her 19 computer

to view these sites during his weekend trips to the office. Afte r discovering the sites, she 20 obtained

a password to protect her computer and had a ll of the offensive material deleted. Moreover, 21 Plaintiff alleges that Clark regularly

had videotapes “concerning masoc hism and sadism” shipped 22-4-

to the office, which, a s his secr etary, she was

responsi ble for o pening and delivering t

o his ma ilbox. 1 Sometime

before 2001, Plaintiff

showed one of the videotapes delivered to Clark’ s office

to 2 Defendant

Georg ina Aren

dacs, the Director of the E quity and Equa

l Opportun ity (“EEO”) 3 Department

at Fordham’ s Bro nx campus, w ho was charged

with hand

ling disc riminatio n claims. 4 Arendacs took no remedial action beyond repor

ting Plaintiff’s complaint to Defendant David Stuhr, 5 the Associate Vice-President of Academic Af fairs at Fordham’s Bronx

campus. Plaintiff

continued 6 to report Cl a rk’s beha vior to Arendacs and Stuhr throughout 2004 – including showing them the 7 collection of thirty-six pornogra phic videotapes that Clark kept in his office. 8 Plaintiff

alleges that, by

2001, Clark was “clearly aware” that she had reported his behavior 9 and

began to retal iate a gainst her. He “removed virtually all of her secretarial functions, kept her 10 entirely

outof the de

partmen tal infor mation ‘lo op,’ ref

used to spe ak to her , and comm unicate d with 11 her

only by e-mail.” Indeed, Plaintiff alleg es that Defendant Harry B. Evans, another professor in the 12 Clas sics Department and Clark’s friend, advised Clark not to “give [Plaintiff] any more work” i n 13 order to “make her leave.” 14 Inthe fall of 20 04, Evans became the Chair of the Cla ssics Dep artment a nd, Plainti ff alleg es, 15 he continued Clark’s campaign of retaliation. Plaintiff contends that E vans sought to take 16 disciplinary

actionagains tPlaintiff

on the pre

text that she

had inac curate ly prepare d a time she et; 17 he constantly monitored her whe reabouts and picked up her telephone; and he issued a negative 18 performance evaluation, which Plaintiff alleg es was materially false. 19 OnNovembe r 10, 2004 , Plaintiff

file d a Cha rge of Discrimination with the United States 20 Equal Emplo yment Opportunity Commission (“EEOC”). The EEOC issued Plaintiff a Notice of 21 Right

to Sue, which she received on September 9, 2005. On Dece mber 6, 2005, Pla intiff filed the 222 Plaintiff also appeals the district court’s consideration of material “extraneous” to her Complaint – namely, the employ ee appraisal form that she refer enced in her Complaint – without converting Defendants’ motion to dismiss into a motion for summary judgment as required by FRCP 12(b). This Court has held that a complaint includes “documents that the plaintiffs either possessed or knew about and upon which they relied in bringing the suit.” Rothman v. Gregor , 220 F.3d 81, 88 (2d Cir. 2000) (citation omitted). Thus, the district court was correct to trea t the appraisal form as part of Plaintiff’s Complaint, because she re ferenced it in the Complaint and relied upon it in stating her claims for retaliation. -5- Complaint which is the subject of t he instan

t appeal . Shortly

thereafter, the

Defend ants move d to 1 dismiss pursuant to FRCP 12(b)(1) and 12(b)(6) and, in the alternative, to strike certain allega tions 2 fromthe Compla

int pursua nt to FRCP 12(f). On June 21, 2006, the district court (Conner, J. ) granted 3 Defend

ants’ motion to dismiss the Complaint in its entirety for failure to state a claim upon which 4 relief

could be gra nted, dec lined to re ach Def endants’ 12(b)(1 ) motion, a nd found their

12(f) motion 5 to be moot. Patane v . Clark , 435 F. Supp. 2d 306, 309& 319 (S. D.N.Y. 20 06). This appeal followed. 6 DISCUSSION 7 Plaintiff

now appe als the dis trict cou rt’s dismis sal of he

r feder al and s tate cla

ims aga inst 8 Fordha

m, and of he

r state c laims ag ainst the f our indivi dual Def

endants. 2 She argues that her 9 Complaint states clai ms for : (1 ) ge nde r-b ase d di scr im in ato ry act io n i n vi ol ati on o f Ti tl e VII, 10 NYS EL, and NYCHRL; (2) the cre ation of a hos tile work e nvi ron men t i n vi ol ati on o f Ti tl e VII, 11 NYS EL, a nd N YCH RL; and (3) ret ali ati on i n vi ol ati on o f Ti tl e VII, NYS EL, a nd N YCH RL. 12 We review de novo a district court’s decision to dismiss a complaint for failure to state a 13 claim

pursuant to FRCP 12(b)(6). Rothman v. Gregor , 220 F.3d 81, 88 (2d Cir. 2000) . We must 14 accept

all w ell-pleade d facts as true and consider those facts in the lig ht most favorable to the 15 plaintiff. Global Network Commc’ns, Inc. v. City of Ne w York , 458 F.3d 150, 154 (2d Cir. 2006). 16 Ona motion to dismiss, the issue is “whethe r the cl aimant is e ntitled to o ffer e

vidence to 173 This reason given by the district court for dismissing Plaintiff’s claim is, by itself, legally sufficient. See Fed. R. Ci v. P. 8(a) (2) (re quiring

“a short and plain statemen t of the c laim showing that the p leader

is entitle d to relie f”). Thi s is notwith standing the fac t that ther

e is some -6- support the claims.” Scheuer v. Rhodes , 416 U.S. 232, 236 (1974), overruled on other grounds by 1 Davisv. Scherer , 468 U.S. 1 83 (1984) . In order towithstand a motion to d

ismiss, a c omplaint mu st 2 plead

“enough facts to state a c laim for relief that is plausible on its face.” Bell Atlantic Corp. v. 3 Twombley , 127 S. Ct. 1955, 1974 (2007). In assessing the leg al sufficiency of a claim, the court

may 4 consider

those facts alleged in the complaint, as wel l as “documents that the plaintiffs either 5 possessed

or knew a

bout and u

pon which

they relied in bringing the suit.” Rothman , 220 F.3d at 88. 6 I 7 The sine qua non of a gender-based discriminatory action cla im under Title VII

is that “the 8 discrimination must be because of sex . ” Leibovitz

v. N. Y. City Transit Auth. , 252 F.3d 179, 189 (2d 9 Cir. 2001). “It is axiomatic that mistreatment at work . . . is actio nable und er Title V II only when it 10 occurs b ecause

of an employee ’s sex, or other protected characteristic.” Brown v. Henderson , 257 11 F.3d

246, 252 (2d Cir. 20 01). More over, to b e actionable under Title VII , the action that is alleged 12 to be gen

der-ba sed must

rise to the level of an “adv erseemployment . . . action.” Dawson v. Bumble 13 & Bum ble , 398 F.3d 211, 216 (2d Cir. 2005). We have explained that an action must cause a 14 “materi ally

adverse change in the terms a nd conditions of e mploy ment,” and not just “mere 15 inconvenience,” inorder to qualify as “adverse.” Fairbrother v. Morrison , 412 F.3d 39, 56 (2d Cir. 16 2005)(internal quotation marks and citations omitted). In the instant ca se, t he district court was 17 correct

to conclu de that Pla

intiff fa iled to state a claim for

discriminatory

action in violation o f Title 18 VII, 42 U.S.C. § 2000e et seq ., beca use she f ailed “to plead an y f acts tha t would create an inference 19 that

an y [a dv er se ] a ct io n t ak en by .

. . [a ny] defendant was based upon her g ender.” 3 Patane , 435 F. 20question as to whether the district court applied the correct standa rd of review to Plaintiff’s Complaint, because it recounted the McDonnell Douglas Corp. v. Green , 411 U.S. 792, 802 (1973), standard for establishing a prima fa cie case at the beginning of its discussion of Plaintiff’s discriminatory action cla im. Patane , 435 F. Su

pp. 2d at 3 14; see Amron v. Morgan Stanley Inv. Advisors, Inc. , 464 F.3d 338, 343 (2d Cir. 2006) ( McDonne ll Douglas standard inappropriate in 1 2(b)(6)

context). Nonethe less, as the distric t court no ted, Plain tiff fai led to allege even the basic el ements of

a discrim inatory action c laim.

4 We conside

r Plaintif f’s clai m for a g ender-

based ho stile wor

k environ ment sepa

rately below.

5 Neither Plaintiff’s Complaint nor her brief sets forth a disparate impact-based claim for discriminatory

action. T here is no need to c onsider t he plausi bility of such a claim in th ese circumst ances. -7- Supp. 2d at 315. 1 Plaintiff’s Complaint d oes not al lege that she wa s subje ct to any specif ic gender-based 2 adverse

employ ment acti on by

Clark or a

ny o f the othe

r defen dants, nor does it set forth

any factual 3 circumstances from which a gender-base d motivation for such an action might be inferred. 4 It does 4 not, for instance, allege that Clark (or a ny of the other defenda nts) made any r

emarks that could be 5 viewed

as reflecting discriminatory animus. See, e.g. , Ostrowski v. Atl. Mut. I ns. Cos. , 968 F.2d

171, 6 182 (2d Cir. 1992). No r does it allege that any male employee s were given prefere ntial treatment 7 when

compared to Plaintiff. 5 See, e. g. , Tex. Dep’t of Cmty. Affairs v. Burdine , 450 U.S. 248, 252 8 (1981). Indeed , the only specific e mployment actions that might qualify as “materially

adverse”– 9 being stripped of

“virtually all of her

secretarial functions” – Plaintiff characterizes as retaliatory and 10 not gender-based. 11 Becau se “a complaint mus t include . . . a plai n stateme nt of the c laim . . . [that] give[s] the 12 defendant

fair notice of what the plaintiff’s claim is and the gr ounds upon which it rests” in order 13 t o avoid dismissal under FRCP 12(b)(6), and because Plaintiff’s Complaint fails to d o so wit h 146 Plaintiff argues that in the event that her Complaint failed to state a cla im, the district court still erred in failing to provide her with an opportunity to amend it pursuant to FRCP 15(a). We review a district court’s denial of a motion for leave to ame nd for abuse of discretion. Jones v. N.Y. State

Div. of Mi litary &

Naval Affai

rs , 166 F.3d 45, 49 (2d Cir. 1999) . A district court may proper

ly deny a motion to amend when it finds that amendment would be futile. Foman v. Davis , 371 U.S. 178, 182 (1962). In the instant case, the district cour t did not abuse its discretion in deter mining th at any

amendme

nt of Plain

tiff’s g ender-

based dis criminat

ory action c laim would be futile. -8- regards to her Title VII

discriminatory action cla

im, that claim was properly dismissed by the district 1 court. 6 Swierkiewicz v. Sorema N.A. , 534 U.S. 506, 512 (2002) (internal quotation marks and citation 2 omitted) (discussing FRCP 8(a)(2))

. As a resu lt, Plainti ff’s discriminatory action cla ims under 3 NYSEL§ 296 et seq. and NYCHRL § 8-101 et seq . must also b e dismis sed against all of the 4 Defend

ants. New York courts examine claims under those statutes with the same analytica l lens as 5 corresponding

Title VI I-ba sed clai

ms. See Cruz v. Coach Stores, Inc. , 202 F.3d 560, 565 n.1 (2d Cir. 6 2000) (citi ng Leopold v. Baccarat, Inc ., 174 F.3d 261, 264 n.1 (2d Cir.19 99) (sta te law); Landwehr 7 v. Grey Adver. Inc ., 211 A.D.2d 583, 583 (N.Y. 1st Dep’t 1995) (city law)). 8 II 9 To state a claim for a hostile work environment in violation of Title V

II , a plaint

iff must 10 plead

facts that would tend to show that the complained of conduct: (1) “is objectively severe or 11 pervasive – that is, . . . creates an environment that a reasonable person would find hostile or 12 abusive”; (2) creates an environment “that the plaintiff subjectively perc eives as hostile or abusive”; 13 and

(3) “creates such an environment beca use of the plaintiff’s sex.” See Gre gory v. Daly , 243 F.3d 14 687, 691-92 (2d

Cir. 2001) (internal citations and punctuation omitted). Because Plaintiff has pled 15 facts sufficient

to satisfy each pr ong of th is test, the district court erred in dismissing her hostile work 16 environment-re lated cla ims. 17-9-

The district c ourt conc luded tha t Plainti ff’s Complaint did not assert that the work 1 environment

was objectiv

ely hostile. Patane , 435 F. Supp. 2 d at 316. T he Supre me Court ha s held 2 that

a work environment’s hostility should be assessed based on the “totality of the circumstances.” 3 See Harris v. Forklift Sys., Inc. , 510 U.S. 17, 23 (1993). Factors that a co urt might consider in 4 assessing the totality of the circumstanc es include: (1) the fre quency of the dis criminat

ory conduct; 5 (2) its sever

ity; (3) whether it isthreatening and humiliating, or a mere of fensive utterance; and (4) 6 “whether

it unrea sonably

interferes with an employ ee’s work performance.” Id. Ultimatel y, t o avoid 7 dismissal under F RCP 12(b)( 6), a pla intiff ne ed only

plead facts sufficient

to support the conclusion 8 that

she was faced

wi th “harassment . . . of such quality or quantity that a re asonable employe e 9 would

find the conditions of her employme nt altered for

the worse,”

and “we have re peatedl y 10 cautioned

against setting the bar too high” in this context. Terry v. A shcroft , 336 F.3d 128, 148 (2d 11 Cir. 2003) (emphasis omitted). 12 Sp ec if

ic al ly, the district cour

t conc luded that Plaintiff failed to allege that she faced a n 13 objectiv ely

hostile work envir

onment, “because [she] never saw thevideos, witnessed Clark watch 14 the videos, or witnessed Clark performing sexual acts.” Patane , 435 F. Supp. 2d at 316. However, 15 Plaintiff does allege that she regularly observed Clark watching pornogr aphic videos. This Court has 16 specific ally

recog nized that t

he mere presenc e of porn

ography i n a workp lace ca

n alter the “statu s” 17 of

women the

rein and is relevant to assessing the objective hos tility of the environment. Wolak v. 18 Spucci , 217 F.3d 157, 160-61 (2d Cir. 2000). Moreover, Plaintiff allege s thatshe was regu larly 19 required

to handle

pornog raphic v ideotape s in the course of performing her e mployment 20 responsibilities of opening and delivering Clark’s mail; and that she onc e disc overed hard core 21 pornog

raphic websites that Clark viewed on her workplace computer. Combined with Plaintiff’s 22-10-

other allega tions reg arding

Clark’s s exually

inapprop riatebehavior

inthe workplace, including her 1 allegation

regarding his earlier

harassment of Dr. Peirce, s ee Cruz , 202 F.3d at 571 (holding that 2 discriminatory

behavior not directed at plaintiff can still contri bute to the creatio

n of an ov erall 3 ho st ile work environment), and with Fordham’s failure to take any action notwithstanding Plaintiff’s 4

numerous complain ts, a jury could we ll conclu

de that Pl aintiff w as subjec t to frequ ent seve rely 5 offensive conduct t hat inter fered w ith her a bility to perform her secretarial functions. See Torres v. 6 Pisano , 116 F.3d

625, 631 (2d Cir. 1997) (concluding that “general allega

tions of constant abuse” 7 create

a jury question as to severity and pe rvasiveness “even in the absence of specific details about 8 each

incid ent”). Though whether a partic ular wor k environ ment is obje ctively

hostile is necessa

rily 9

a fact-intensive inquiry , we conclude that Plaintiff has alleged sufficient facts to be “e ntitledto offer 10 evidence to support [her] claim[].” See Scheuer , 416 U.S. at 236. 11 Defend

ants also argue that Plaintiff has not alleged that the harassing conduct was aimed at 12 her

– let alone aimed at her because of h e r sex . However, some of the conduct that Plaintiff has 13 alleged

was undoubtedly aimed a t her – for in stance, the hard core pornog raphic websites on her 14 computer

and the pornography

-containing mail that Clark knew she was responsible for handl ing. 15 Moreover, a plaintiff need only allege that she suffered a hostile wor k environment because of her 16 gender, not that a ll of the of

fensive conduct was specifically aimed at her. In Petr osino v. B ell 17 Atlantic , we rec ognized t hat sexual ly c

harge d conduc t in the wor kplace ma y c reate a

hostile 18 environment

for wome

n notwithst

anding the fac t that it

is also experienced by men. 385 F.3d 210, 19 223 (2d Cir. 20 04). I n that ca se, we e

ndorsed t he Four th Circuit’ s reason

ing in Ocheltree v. Scollon 20 Products., Inc. : 21 The employer con tended t hat the offensive conduct could not be deemed 227 The distr ict cour t dismissed

Plaintiff ’s NYSEL

and NYCHRL cla

ims aga inst Defendants Stuhr and Arendacs on the g rounds that New York law requires employ er/principal li ab il it y ( i.e. , Fordham, Clark and/or Evans) to be established before an individual without the power to hire or fire a plaintiff can be he ld liable as an aider and abettor. Patane , 435 F. Supp. 2d at 317-18 ; see DeWitt v. Lieberman , 48 F. Supp . 2d 28 0, 293 (S.D. N.Y. 1 999) ( citi ng Murphy v. ERA Unite

d Reality , 251 A.D.2d 469, 471 (N.Y. 2d Dep’t 1998)). Beca use we vacate and remand the distri ct court ’s dismissa l of Plainti ff’s cla

ims aga inst Ford ham, Clar k, and Eva

ns, we al so vacate and rema nd the cou

rt’s dismis sal of he

r claims a gainst St uhr and A rendac s. -11- discriminatory

based on sex “beca

use it could have been

heard [or seen] by any

one 1 present

in the shop and was equally offe nsive t o some of the men.” The court 2 disagreed, concludi ng that a jury could find “[m]uch of the conduct . . . parti cularly 3 offensive to womenand . . . in tended to provoke [plaintiff’s] reaction as a woman.” 4 Id. at 222 (quot ing Oc heltre e v. Scollon Prods., Inc. , 335 F.3d 325, 332 (4th Cir. 2003) ( en banc ) 5 (alterations in original; internal citations omitted)). As in Ocheltree , Plaintiff pleads facts sufficient 6 to allow a ju

ry to find much of Clark’s complained of conduct particularly offensive to women and 7 intended to provoke Plaintiff’s reaction as a woman. 8 Becau se Plaintiff has pled facts sufficient to satisfy all three prongs of thetest for a hostile 9 work

environment in violation of Title VII , we vacate the distric t court’s dismissal o f her cl aim 10 agains tFo rdham, and r emand for proce edings c onsistent w ith this opin

ion. As a r

esult, we also 11

va cat e and remand the district court’s dismissal of all of Plaintiff’s NYSEL a nd NYCHRL-based 12 hostile work envir onment cl aims. 7 See Cruz , 202 F.3d at 565 n.1. 13 III. 14 To state a c laim for r etaliati on in viola

tion of Titl e VI I, a

plaintiff must plead

facts tha t would 15 tend

to show th at: (1) she participated in a protected activity known to the defendant; (2) the 16 defendant

took an employment action disadvanta gingher; and

(3) ther e exists a causal connection 17 between

the protected activity

and the adverse action. Feingold v. New York

, 366 F.3d 138, 156 (2d 18 Cir. 2004). In the instant case, the d istrict c ourt erred in dismissing Plaintiff’s retaliation-related 19-12-

claims, because

she has sufficien

tly a lleged that: (1) Defendants were awa re that she compl ained to 1 Arenda

cs, and late

r Stuhr, a bout the ha

rassmen t she fac ed from Cl ark and E vans; (2) Clark stripped 2 he rof vir

tually all of her sec

retarial duties (among other retaliatory actions taken by Clark a nd 3 Evans); a

nd (3) the re was a causal c onnection betwee n the abov e two occ

urrenc es. 4 Defend

ants contend that Plaintiff has not pled facts in support of her claim that Clark knew 5 that

she reported his conduct to Arendacs and Stuhr, as required by the fir st pro ng. Defendants are 6 wrong. First, Pla

intif f does a llege f

acts f rom wh ich a re asona ble in ferenc e of Cl ark’s k nowle dge 7 could

be drawn: she compl ained ab out Clark’ s conduc t to a For dham empl oye e whose j ob it was to 8 investig ate and resolve such complaints. See also Phillips v. Girdich , 408 F.3 d 124, 130 (2d Cir. 9 2 005) (holding that the notice pleading rules “do not re quire a plaintiff to plead the . . . facts . .

. 10 underlying

his claim”). It is not inappropriate at this stag e in the li tigation to assume

that in 11 investigatingPlaintiff’s complaint, Arendacs made Clark aware of its existen ce. An d, second, 12 “[n]either

this nor any

other ci rcuit ha s ever he ld

that, to satisfy the knowledg e requirement, any thing 13

more is necessary than general corporate k nowledg e th at the plaintiff has engaged in a protected 14 activity.” Kessler v. Westchester Coun ty Dep’t of S oc. Serv s. , 461 F.3d 199, 210 (2d Cir. 2006) 15 (quot ing Gordon v. N. Y. City Bd. of Educ. , 232 F.3d 111, 116 (2d Cir. 2000)). In the instant ca se, 16 Plaintiff

has certainly

pled facts showing that Fordham was aware of her protecte d activity, since she 17 alleges that she complained directly to a university employ

ee. 18 The district court faulted Plaintiff for not specify ing the “severity

or degree” o f Clark’ s 19 allege d retalia

tory reducti on of her

job responsibilities , and

concluded that, as pled, that reduction 20 did

not rise to the level of adverse employ ment action required to satisfy the second

prong. Patane , 21 435 F. Supp. 2d at 317. The d

istrict c ourt’s c onclusion

is flawed for several reasons. F irst, Plaintiff’s 228 In the particular cir cumstances of this case, plaintiff’s other alleg ations regarding Clark’s retaliatory

conduct, including that he “kept her entirely out of the departmental information ‘loop,’” would not have been sufficient, on their own, to constitute reta liation. -13- allegation that Clark removed “virtually all of her secretaria

l function s” in res

ponse to her reporting 1 his conduct to Arendacs was both specific enoug h and severe enough to qual ify as an adve

rse 2 empl oyment

actio n at the time the district court issued its opinion. 8 Only a stateme

nt of facts so 3 conclusory

that it fails to give notice of the basic events and circumstanc es on which a plaintiff relies 4 should

be rejected as legally

insufficient

under 12(b) (6). See, e.g. , Martin v. N. Y. State Dep’t of 5 Mental

Hygiene , 588 F.2d 371, 372 (2d Cir. 1978) (per curiam). There is no question that

Plaintiff’s 6 factual statement is detailed enough to avoid dismissal under this standard. Moreo ver, we hav e 7 specific ally recognized “significant ly diminished material responsibilities” as the sort of e m ploymen

t 8 action“suffic iently di sad van tag eou s t o co nst it ut e an adv ers e em pl oyme nt act io n” i n a T it le V II case. 9 Williams v. R.H. Donnelley, Corp. , 368 F.3d 1 23, 12 8 (2d C ir. 20 04) (ci ting Galabya v . N. Y. City 10 Bd. of Educ ., 202 F.3d 636, 640 (2d Cir. 2000)) (discussing Title VII ’s discriminatory ac tion 11 provision). 12 Second, in adecision issued the day a fter the district c ourt’s in t he instan t case, t he Supre me 13 Court he ld that the scope of Title VII ’s anti-retaliation provision is broader than that of it s 14 discriminatory

action provision, and that any a ction that “could well dissuade a reasonable worker 15 frommaking or supporting a charg e of discrimination” could constitute retaliation. B urlin gton N. 16 & Sante

Fe Ry. Co . v. W

hite , 126 S. Ct. 2405, 2409 (2006). In addition to her allegations about her 17 reduction

in job responsibilities, Plaintiff alleges that Clark and Evans specifically conspired to “not 18 give [her] work” in order to “make her leave.” Theseallega tions sure ly me et Burlington Northern ’s 19 standard. Any rea sonable employee that believed that

h er employer

s would engage in a conce rted 20-14-

effort to drive h er from her job if she engaged in Title VI

I protected activity would think twice about 1 doing so. Defendants’ argument to the contra ry – that beca

use Plaintiff her self was notdissuaded 2 fromagain reporting Clark’s har assment, the complained of conduct could not have been retaliatory 3 under BurlingtonNorthern – is entire ly u nconvinc ing, sinc e it would r equire t hat no plaintiff who 4 makes a second complaint about ha rassment could ever

have been retaliated aga

inst for an earlier 5 complain

t. 6 Fi na ll y, Defendants argue that Plaintiff doe s not adeq uately alleg e the sort of causal 7

connec tion betwe en her pr otected activity and Def endants’ retaliation required by the thi rd pro ng, 8 because

“[w]hile a plaintiff may alleg e [such] a causal co nn ec ti on . . . t hr ou gh te mp or al pr ox im it y, 9

case law requires that such proximity in time must be ‘very close.’” Defend

ants arg ue th at, in th e 10 instantcase, Pla

intiff fa ils to alle ge such proximity because there was a y ear bet ween wh en she fi

rst 11 reported

Clark’s c onduct to A

rendac s in 2000 an

d Clark’s removal of her se cretar

ial func tions in 12 2001. Even setting aside the fact that a date in 2000 may be as proximate

to a date in 2001 as one 13 day , Plaintiff

’s claim o f causa

l connection is not ba sed only – or even

primaril y – on temp ora l 14 pr ox im it y. Instead, Plaintiff allege s that she s pecifica lly overhea rd Clark a

nd Evans c onspiring

to 15 drive her out of

her job a

nd that Eva

ns issu ed a neg ativ e performance review t hat spec ifically 16 complains about her attitude towards Clark. 17 Becau se Plaintiff has pled facts sufficient to satisfy all three prongs of the test for retaliation 18 inviolation o f Title VI I, we vacate the district court’s dismissal of her claim against Fordham, and 19 remand

for proc eeding s consiste

nt with this opinion. We also vacate and remand the district court’s 20 dismissal of

Plaintiff ’s NYSEL

and NYCHRL-ba sed reta liation cl aims ag ainst

all Defendants. See 21 Cruz , 202 F.3d at 565 n.1. 22-15- CONCLUSION 1 The judgmen t of the dis trict cou

rt is A FFI RMED in part, R EVERS ED in part, and R EMANDED 2 to the district court for proceedings in accor dance with this decision. 3