Patane v. Clark

Decision Date28 November 2007
Docket NumberDocket No. 06-3446-cv.
PartiesEleanora M. PATANE, Plaintiff-Appellant, v. John Richard CLARK, Harry B. Evans, David Stuhr, Georgina Arendacs and Fordham University, Defendants-Appellees.
CourtU.S. Court of Appeals — Second Circuit

Drita Nicaj, Lovett & Gould, White Plains, N.Y., for Plaintiff-Appellant.

Gail S. Coleman, U.S. Equal Employment Opportunity Commission, Washington, D.C., for Amicus Curiae, in support of Plaintiff-Appellant.

Kevin J. Harrington & John T.A. Rosenthal, Harrington, Ocko & Monk, LLP, White Plains, N.Y., for Defendants-Appellees.

Before: CALABRESI, WESLEY, Circuit Judges, and BRIEANT, District Judge.*

PER CURIAM:

Plaintiff-Appellant Eleanora M. Patane appeals from the dismissal of her Complaint in its entirety pursuant to Federal Rule of Civil Procedure ("FRCP") 12(b)(6) by the United States District Court for the Southern District of New York (Conner, J.). In her Complaint, Plaintiff presses nine claims1 against each of the five Defendants-Appellees, John Richard Clark, Harry B. Evans, David Stuhr, Georgina Arendacs and Fordham University ("Fordham") for discriminatory action, creating a hostile work environment, and retaliatory acts following Plaintiff's initial complaints, in violation of Title VII, 42 U.S.C. § 2000e et seq., New York State Executive Law ("NYSEL") § 296 et seq., and New York City Human Rights Law ("NYCHRL") § 8-101 et seq. Plaintiff does not appeal the district court's dismissal of her Title VII claims against the four individual defendants on the grounds that "individuals are not subject to liability under Title VII." Wrighten v. Glowski, 232 F.3d 119, 120 (2d Cir.2000) (per curiam). However, Plaintiff appeals the district court's dismissal of her remaining claims for failure to state a claim upon which relief could be granted.

Taking Plaintiff's allegations as true, as we must, we find that her Complaint asserts claims for a hostile work environment and retaliation in violation of both the federal and state statutes against Defendant Fordham University, and in violation of the state statutes against the four individual Defendants. We vacate the district court's judgment with regard to these claims, and remand for further proceedings consistent with this opinion.

BACKGROUND

Plaintiff began working in 1998 as an executive secretary in Fordham's University's Classics Department. One of her supervisors was Defendant John Richard Clark, a professor in the Classics Department who was also, at various times during Plaintiff's tenure, the Department's Chair. Plaintiff alleges that, from the beginning, Clark engaged in inappropriate sexually-charged conduct in their workplace.

For instance, Plaintiff alleges that, in 1998, Clark engaged in the gender-based harassment of a female classics professor, Dr. Sarah Peirce. Then, starting in 1999-2000, Clark spent one to two hours every day viewing "hard core pornographic" videotapes on a TV-VCR in his office. Plaintiff claims she was aware of Clark's habit because the flickering from his TV screen was visible through the glass partition of his office and because she once saw numerous pornographic videotapes scattered on the floor of his office when she knocked on his door to announce a visitor.

Plaintiff also alleges that some of Clark's behavior was specifically directed at her. Once, she discovered "hard core pornographic websites" on her computer. She alleges that Clark used her computer to view these sites during his weekend trips to the office. After discovering the sites, she obtained a password to protect her computer and had all of the offensive material deleted. Moreover, Plaintiff alleges that Clark regularly had videotapes "concerning masochism and sadism" shipped to the office, which, as his secretary, she was responsible for opening and delivering to his mailbox.

Sometime before 2001, Plaintiff showed one of the videotapes delivered to Clark's office to Defendant Georgina Arendacs, the Director of the Equity and Equal Opportunity ("EEO") Department at Fordham's Bronx campus, who was charged with handling discrimination claims. Arendacs took no remedial action beyond reporting Plaintiff's complaint to Defendant David Stuhr, the Associate Vice-President of Academic Affairs at Fordham's Bronx campus. Plaintiff continued to report Clark's behavior to Arendacs and Stuhr throughout 2004 — including showing them the collection of thirty-six pornographic videotapes that Clark kept in his office.

Plaintiff alleges that, by 2001, Clark was "clearly aware" that she had reported his behavior and began to retaliate against her. He "removed virtually all of her secretarial functions, kept her entirely out of the departmental information `loop,' refused to speak to her, and communicated with her only by e-mail." Indeed, Plaintiff alleges that Defendant Harry B. Evans, another professor in the Classics Department and Clark's friend, advised Clark not to "give [Plaintiff] any more work" in order to "make her leave."

In the fall of 2004, Evans became the Chair of the Classics Department and, Plaintiff alleges, he continued Clark's campaign of retaliation. Plaintiff contends that Evans sought to take disciplinary action against her on the pretext that she inaccurately prepared a time sheet; he constantly monitored her whereabouts and picked up her telephone; and he issued a negative performance evaluation, which Plaintiff alleges was materially false.

On November 10, 2004, Plaintiff filed a Charge of Discrimination with the United States Equal Employment Opportunity Commission ("EEOC"). The EEOC issued Plaintiff a Notice of Right to Sue, which she received on September 9, 2005. On December 6, 2005, Plaintiff filed the Complaint which is the subject of the instant appeal. Shortly thereafter, the Defendants moved to dismiss pursuant to FRCP 12(b)(1) and 12(b)(6) and, in the alternative, to strike certain allegations from the Complaint pursuant to FRCP 12(f). On June 21, 2006, the district court (Conner, J.) granted Defendants' motion to dismiss the Complaint in its entirety for failure to state a claim upon which relief could be granted, declined to reach Defendants' 12(b)(1) motion, and found their 12(f) motion to be moot. Patane v. Clark, 435 F.Supp.2d 306, 309 & 310 (S.D.N.Y. 2006). This appeal followed.

DISCUSSION

Plaintiff now appeals the district court's dismissal of her federal and state claims against Fordham, and of her state claims against the four individual Defendants.2 She argues that her Complaint states claims for: (1) gender-based discriminatory action in violation of Title VII, NYSEL, and NYCHRL; (2) the creation of a hostile work environment in violation of Title VII, NYSEL, and NYCHRL; and (3) retaliation in violation of Title VII, NYSEL, and NYCHRL.

We review de novo a district court's decision to dismiss a complaint for failure to state a claim pursuant to FRCP 12(b)(6). Rothman v. Gregor, 220 F.3d 81, 88 (2d Cir.2000). We must accept all well-pleaded facts as true and consider those facts in the light most favorable to the plaintiff. Global Network Commc'ns, Inc. v. City of New York, 458 F.3d 150, 154 (2d Cir.2006).

On a motion to dismiss, the issue is "whether the claimant is entitled to offer evidence to support the claims." Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), overruled on other grounds by Davis v. Scherer, 468 U.S. 183, 104 S.Ct. 3012, 82 L.Ed.2d 139 (1984). In order to withstand a motion to dismiss, a complaint must plead "enough facts to state a claim for relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, ___ U.S. ___, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007). In assessing the legal sufficiency of a claim, the court may consider those facts alleged in the complaint, as well as "documents that the plaintiffs either possessed or knew about and upon which they relied in bringing the suit." Rothman, 220 F.3d at 88.

I

The sine qua non of a gender-based discriminatory action claim under Title VII is that "the discrimination must be because of sex." Leibovitz v. N.Y. City Transit Auth., 252 F.3d 179, 189 (2d Cir. 2001). "It is axiomatic that mistreatment at work . . . is actionable under Title VII only when it occurs because of an employee's sex, or other protected characteristic." Brown v. Henderson, 257 F.3d 246, 252 (2d Cir.2001). Moreover, to be actionable under Title VII, the action that is alleged to be gender-based must rise to the level of an "adverse employment ... action." Dawson v. Bumble & Bumble, 398 F.3d 211, 216 (2d Cir.2005). We have explained that an action must cause a "materially adverse change in the terms and conditions of employment," and not just "mere inconvenience," in order to qualify as "adverse." Fairbrother v. Morrison, 412 F.3d 39, 56 (2d Cir.2005)(internal quotation marks and citations omitted). In the instant case, the district court was correct to conclude that Plaintiff failed to state a claim for discriminatory action in violation of Title VII, 42 U.S.C. § 2000e et seq., because she failed "to plead any facts that would create an inference that any [adverse] action taken by . . . [any] defendant was based upon her gender."3 Patane, 435 F.Supp.2d at 315.

Plaintiff's Complaint does not allege that she was subject to any specific gender-based adverse employment action by Clark or any of the other defendants, nor does it set forth any factual circumstances from which a gender-based motivation for such an action might be inferred.4 It does not, for instance, allege that Clark (or any of the other defendants) made any remarks that could be viewed as reflecting discriminatory animus. See, e.g., Ostrowski v. Atl. Mut. Ins. Cos., 968 F.2d 171, 182 (2d Cir. 1992). Nor does it allege that any male employees were given preferential treatment when compared to Plaintiff.5 See, e.g., Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 252, 101...

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