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


                                        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     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
                                           8 
 
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

                                        9 
 
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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