    19-1293
    Ripa v. Stony Brook Univ.


                           UNITED STATES COURT OF APPEALS
                               FOR THE SECOND CIRCUIT

                                       SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND 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 MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

                  At a stated term of the United States Court 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 9th day of June, two thousand twenty.

    PRESENT:
                ROSEMARY S. POOLER,
                REENA RAGGI,
                WILLIAM J. NARDINI,
                      Circuit Judges.
    _____________________________________

    Anthony John Ripa,

                                Plaintiff-Appellant,

                      v.                                                     19-1293


    Stony Brook University,

                      Defendant-Appellee.
    _____________________________________


    FOR PLAINTIFF-APPELLANT:                           Anthony John Ripa, pro se, New York, NY.

    FOR DEFENDANT-APPELLEE:                            Amit R. Vora, Assistant Solicitor General,
                                                       Steven C. Wu, Deputy Solicitor General,
                                                       Barbara D. Underwood, Solicitor General,
                                                       for Letitia James, Attorney General of the
                                                       State of New York, New York, NY.
      Appeal from a judgment of the United States District Court for the Eastern District of New
York (Mauskopf, J.).

    UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.

        Plaintiff-Appellant Anthony John Ripa, proceeding pro se, appeals from the April 4, 2019
judgment of the United States District Court for the Eastern District of New York (Mauskopf, J.)
dismissing his claims against Defendant-Appellee Stony Brook University (“SBU”) under 42
U.S.C. § 1983, Title IX of the Education Amendments of 1972, and Title VII of the Civil Rights
Act of 1964, and denying his motions for recusal of Judges Azrack and Locke and disqualification
of opposing counsel. We assume the parties’ familiarity with the underlying facts, the procedural
history of the case, and the issues on appeal.

         Whether a defendant is entitled to Eleventh Amendment immunity is a legal question that
we review de novo. See National Ass’n for Advancement of Colored People v. Merrill, 939 F.3d
470, 475 (2d Cir. 2019). 1 “We review de novo a district court’s dismissal of a complaint for lack
of subject matter jurisdiction.” Amidax Trading Grp. v. S.W.I.F.T. SCRL, 671 F.3d 140, 145 (2d
Cir. 2011). Finally, “[w]e review de novo a district court’s dismissal of a complaint pursuant to
Rule 12(b)(6), construing the complaint liberally, accepting all factual allegations in the complaint
as true, and drawing all reasonable inferences in the plaintiff’s favor.” Chambers v. Time Warner,
Inc., 282 F.3d 147, 152 (2d Cir. 2002). The complaint must plead “enough facts to state a claim to
relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); see also
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

        The district court properly dismissed Ripa’s Section 1983 claims under the Eleventh
Amendment, which precludes suits against states unless the state expressly waives its immunity or
Congress abrogates that immunity, neither of which occurred here. CSX Transp., Inc. v. N.Y. State
Office of Real Prop. Servs., 306 F.3d 87, 94-95 (2d Cir. 2002). State universities such as SBU are
arms of the state for purposes of the Eleventh Amendment and are therefore entitled to Eleventh
Amendment immunity. See Dube v. State Univ. of N.Y., 900 F.2d 587, 594 (2d Cir. 1990). Though
Ripa argues that the Eleventh Amendment cannot bar the prospective relief he seeks—the
termination of SBU’s federal funding—the Ex Parte Young 2 exception to Eleventh Amendment
immunity for prospective relief applies only when a state official is sued, which Ripa has not done.
See id. at 594-95.


1 Whether Eleventh Amendment immunity “constitutes a true issue of subject matter jurisdiction
or is more appropriately viewed as an affirmative defense” has not yet been decided by the
Supreme Court or this Court. See Carver v. Nassau Cty. Interim Fin. Auth., 730 F.3d 150, 156 (2d
Cir. 2013) (citing Wisconsin Dep’t of Corr. v. Schacht, 524 U.S. 381, 391 (1998) (leaving question
open)). We need not pursue the matter here because the answer does not affect our decision to
affirm.
2 209 U.S. 123 (1908).
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        The district court also properly dismissed Ripa’s Title IX claims. First, Ripa lacked standing
to bring a Title IX claim based on the existence of a Women’s Studies Department and the lack of
a Men’s Studies Department. This does not amount to a concrete injury, such as the denial of an
educational opportunity, sufficient to meet the injury-in-fact requirement of Article III standing.
See Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1548 (2016). To the extent Ripa alleges that the
existence of a Women’s Studies program discriminated against men, he has not shown any ensuing
concrete harm to him. To the extent he alleges injury from the lack of a Men’s Studies program, the
alleged injury is only “conjectural or hypothetical.” Gully v. Nat’l Credit Union Admin. Bd., 341
F.3d 155, 160 (2d Cir. 2003).

        Second, Ripa failed to state a hostile educational environment claim under Title IX. Title
IX provides that “[n]o person in the United States shall, on the basis of sex, be excluded from
participation in, be denied the benefits of, or be subjected to discrimination under any education
program or activity receiving Federal financial assistance[.]” 20 U.S.C. § 1681(a). To state a hostile
educational environment claim under Title IX, a plaintiff must plausibly allege that sex-based
discriminatory conduct “created an educational environment sufficiently hostile as to deprive [him]
of ‘access to the educational opportunities or benefits’ provided by” his school and that the
individual defendants had actual knowledge of the discrimination and failed to respond adequately.
Hayut v. State Univ. of N.Y., 352 F.3d 733, 750 (2d Cir. 2003) (quoting Davis v. Monroe Cty. Bd.
of Educ., 526 U.S. 629, 650 (1999)).

         Ripa’s complaint alleges that Professor Robert Cserni created such a hostile environment
by engaging in “demographically based slander” when he called Ripa “privileged”; he gave one of
Ripa’s assignments a grade of zero and labelled it “Incomplete/missing or irrelevant”; and he used
a female student’s work as an example of a well-written assignment. These allegations do not
plausibly allege intentional discrimination actionable under Title IX. Although Ripa asserts that
Professor Cserni took these actions because he believed that Ripa was a white male, Ripa did not
support that conclusion with any facts indicating that Professor Cserni was motivated by Ripa’s sex
or gender. Nor do the additional allegations in Ripa’s amended complaint, including SBU’s
advertisement of and support for programs targeted toward women, offer of free feminine hygiene
products, or Ripa’s voluntary attendance at a Ph.D. student’s presentation that proposed a
purportedly anti-male research project plausibly allege discrimination on the basis of sex or amount
to a hostile environment. See Twombly, 550 U.S. at 555 (“Factual allegations must be enough to
raise a right to relief above the speculative level[.]”).

        We also conclude that the district court properly dismissed Ripa’s Title VII claims for
failure to state a claim. Even if Ripa’s student assistant position at SBU qualified him as an
employee for purposes of Title VII, Ripa did not allege any facts showing that he was subjected to
an adverse employment action. To make out a prima facie case of discrimination under Title VII, a
plaintiff must allege, inter alia, that he was subject to an adverse employment action under
circumstances giving rise to an inference of discrimination. See McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802 (1973); Shumway v. United Parcel Serv., Inc., 118 F.3d 60, 63 (2d Cir.

                                                 3
1997). The sole employment action Ripa alleges is that his boss stated that her superiors were
female and that she liked that fact. This does not constitute an adverse action. See Vega v.
Hempstead Union Free Sch. Dist., 801 F.3d 72, 85 (2d Cir. 2015) (“A plaintiff sustains an adverse
employment action if he or she endures a materially adverse change in the terms and conditions of
employment.” (internal quotation marks and citation omitted)).

       The district court also acted in its discretion in denying Ripa’s motion to recuse Judges
Azrack and Locke as these judges were no longer assigned to his case. See United States v. Lovaglia,
954 F.2d 811, 815 (2d Cir. 1992).

        Insofar as Ripa argues that Judge Mauskopf should have recused herself or been substituted,
he did not file an amended notice of appeal from the denial of the motion for her recusal, which
occurred after he had filed his appeal from the judgment. Accordingly, we lack jurisdiction over
the district court’s post-judgment decision. See Sorensen v. City of New York, 413 F.3d 292, 295-
96 (2d Cir. 2005); Fed. R. App. P. 4(a)(4)(B)(ii). In any event, Ripa’s claim that Judge Mauskopf
was biased against him lacks support in the record. The fact that she dismissed his complaint and
denied reconsideration does not demonstrate bias. See Liteky v. United States, 510 U.S. 540, 555
(1994) (“[J]udicial rulings alone almost never constitute a valid basis for a bias or partiality
motion.”).

        We also identify no abuse of discretion in the denial of Ripa’s motion to disqualify, see
Telectronics Proprietary, Ltd. v. Medtronic, Inc., 836 F.2d 1332, 1335 (2d Cir. 1988), as that motion
lacks a foundation in law or fact. Ripa sought disqualification based on counsel’s purportedly
making “false statements.” But the statements at issue were either SBU’s legal arguments in support
of its motion to dismiss and in opposition to Ripa’s various motions, or, at most, constituted minor
factual misstatements that had no bearing on the merits of the case.

       We have reviewed the remainder of Ripa’s arguments and conclude that they are without
merit. For the foregoing reasons, the judgment of the district court is AFFIRMED, and Ripa’s
motion to strike SBU’s oral argument statement is DENIED as moot.

                                              FOR THE COURT:
                                              Catherine O’Hagan Wolfe, Clerk of Court




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