Monday, June 19, 2017

2d Circuit provides guidance on Iqbal in Title IX retaliation case

The Court of Appeals has reinstated a Title IX case against the University of Rochester, which allegedly retaliated against a music student who rebuffed his professor's sexual advances. The decision provides some much-needed guidance on how to apply the Supreme Court's Iqbal test, which governs motions to dismiss under Rule 12.

The case is Irrea v. Humphreys, decided on June 15. Irrea was the music student at the prestigious Eastman School of Music at the University of Rochester. Humphreys made various unwanted sexual advances toward Irrea. When Irrea rejected those advances, Humphreys gave him a failing grade for an important piano recital. This failing grade was unusual for plaintiff, who had never previously failed a solo recital in his 27 years playing piano. Humphreys told Irrea that he would never get a university professor job and threatened to "make his life a living hell" if he reported the sexual harassment. As it happened, Irrea was unable to find work or even get an interview at any of the 28 colleges and universities to which he applied, which is "extraordinarily rare [and unheard of] for an Eastman graduate." Plaintiff says this was because Humphreys gave him negative references in retaliation for rejecting his sexual advances.The district court dismissed the case under Rule 12. The Second Circuit (Newman, Lynch and Cabranes) brings it back.

In 2009, the Supreme Court discovered for the first time that the Federal Rules of Civil Procedure contain a plausibility requirement for resolving motions to dismiss under Rule 12. It was there the whole time (the rules were drafted in 1937), but no one had ever noticed it before. Under Iqbal, it is not enough to plead facts that give rise to a possible case. The facts must give rise to a plausible case, a higher burden. Determining what is plausible is still something of a roll of the dice. You know plausibility when you see it. But since each judge has his or her own background and personal experience, what may be plausible to Judge McCartney may not be plausible to Judge Lennon. Ultimately, it's all about the context of the case and "common sense," as the Supreme Court said in Iqbal. Writing for the majority in the Irrera case, Judge Newman notes that Iqbal arose in the context of a 9/11 case. But, Judge Newman notes, "even in that context, four justices of the Supreme Court deemed the allegations sufficient to meet the plausibility standard, but five justices did not." This a judicious way of saying that plausibility is in the eye of the beholder. Because, let's face it, if four Supreme Court Justices think a claim is plausible, then it probably is, even if their five colleagues don't think so.

In this case, the context of plaintiff's allegations give rise to a plausible case. The Second Circuit notes that we are talking about the plaintiff's quest for a teaching position after graduating from one of the most prestigious music schools in the country. "Although it is not impossible that all twenty-eight schools to which he 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," particularly since this teacher threatened to make plaintiff's life a "living hell" if he complained about the sexual harassment. It is also plausible that schools to which plaintiff had applied would have called Humphreys (the department chair) for a reference.

This is not to say that plaintiff has a slam-dunk. But the Court of Appeals relies on "common experience" in determining that the case can proceed to discovery. The Court states:

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 plausible and that dismissal at the pleading stage was error




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