Shalom v. Hunter College of the City University of New York

Filing 48

OPINION AND ORDER re: 36 MOTION for Summary Judgment filed by Hunter College of the City University of New York. For the foregoing reasons, the defendant's motion for summary judgment on both Title IX claims is GRANTED. The Clerk of the Court is directed to close this motion and this case. (Signed by Judge Shira A. Scheindlin on 8/13/2014) (lmb)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

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HOLLY SHALOM,
Plaintiff,

OPINION AND ORDER

- against -

13-cv-4667 (SAS)

HUNTER COLLEGE OF THE CITY
UNIVERSITY OF NEW YORK
Defendant.

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SHIRA A. SCHEINDLIN, U.S.D.J.:
I.

INTRODUCTION
Holly Shalom, a student at Hunter College's Speech-Language

Pathology Program ("SLP Program"), brings this action against Hunter College of
the City University of New York ("CUNY") alleging sexual harassment, hostile
educational environment, and retaliation by CUNY. 1 Defendant now moves for
summary judgment on all claims.
Plaintiff commenced this action in state court, pursuant to Section
CUNY is the proper defendant in this case. While Hunter College is
named as a defendant, it is a senior college within the CUNY system and has no
separate legal existence. See N.Y. Educ. L. §§ 6202(2), 6203, 6206.
-1-

1

1983 of Title 42 of the United States Code (“Section 1983”), against three CUNY
employees in their individual capacities for violation of her Fourteenth
Amendment rights concerning accommodation for her disabilities, and against
CUNY for discrimination and retaliation in violation of Title IX of the Education
Amendments of 1972, Section 1681 of Title 20 of the United States Code (“Title
IX”).2 Defendant removed the action to this Court.3 On April 23, 2014, plaintiff
withdrew her Section 1983 claim.4 Defendant now moves for summary judgment
on the Title IX claims. For the reasons stated below, defendant’s motion for
summary judgment is GRANTED.
II.

BACKGROUND5
A.

Speech-Language Pathology Program
In Fall 2009, Shalom enrolled in the SLP Program to become a speech

2

See CUNY’s Local Civil Rule 56.1 Statement in Support of Its
Motion for Summary Judgment (“Def. 56.1”) ¶ 82.
3

See id. ¶ 83. See also No. 13 Civ. 4667 [Dkt. No. 1].

4

See Def 56.1 ¶ 85. See also No. 13 Civ. 4667 [Dkt. No. 33].

5

The following facts are derived from the parties’ Rule 56.1 statements
and supporting documents. The facts are undisputed unless otherwise noted; where
disputed, they are construed in the light most favorable to the plaintiff. See, e.g.,
Federal Ins. Co. v. American Home Assurance Co., 639 F.3d 557, 566 (2d Cir.
2011).
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language pathologist.6 Approximately ninety percent of the students in the SLP
Program are women.7 Students in the SLP Program are required to complete a
variety of courses and clinics under the supervision of licensed and certified
speech-language pathologists.8 Students must comply with the professional
standards of a speech-language pathologist, preserve client confidentiality in
accordance with national standards, maintain a professional demeanor, and dress
professionally when in the Hunter College Center for Communication Disorders
(the “Center”) or any other clinical setting.9
Supervisors evaluate the students using a Knowledge and Skills
Assessment form (“KASA form”) on a scale from zero through four.10 To be
successful, students should receive grades above 3.0.11 At the end of each clinical
practicum, the Clinic Director gives each student a final score between zero and
100, based on the KASA forms, other evaluations from supervisors, and the Clinic
6

See Def. 56.1 ¶ 1.

7

See id. ¶ 2.

8

See id. ¶ 3.

9

See id. ¶¶ 4-7.

10

See id. ¶¶ 8-9.

11

See Declaration of Donald Vogel (“Vogel Decl.”) in Support of
Defendant CUNY’s Motion for Summary Judgment, Clinic Director of the Hunter
College Center for Communication Disorders, ¶ 12.
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Director’s own observation of the student’s adherence to privacy rules and clinical
responsibilities.12 A score above 82.5 will result in a passing grade for the course
(“Credit”).13 A score below 82.5 will result in “No Credit,” which requires the
student to retake the practicum before continuing with the SLP Program.14 If the
student receives No Credit twice, the student will be dismissed from the SLP
Program.15
B.

Shalom’s Spring 2010 Semester
Shalom enrolled in COMSC 728, a clinical practicum, under the

supervision of Clara Blinder.16 During the Spring 2010 and Fall 2010 semesters,
Donald Vogel was the SLP Program’s Clinic Director.17 In April 2010, Vogel
offered Shalom an opportunity to work with a client but Shalom declined because
of upcoming final examinations.18 Shalom was the only student in COMSC 728 to

12

See Def. 56.1 ¶¶ 10-11.

13

See id. ¶ 12.

14

See id. ¶ 13.

15

See id. ¶ 14.

16

See id. ¶¶ 16-17.

17

See id. ¶ 18.

18

See id. ¶ 19.
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decline an offer to work individually with a client.19 In addition, Shalom was the
last student to be offered a client.20
Shalom claims that Vogel made comments concerning her hair, attire,
or appearance throughout the semester.21 According to defendant, part of Vogel’s
job is to enforce the Center’s dress code.22 Shalom claims that Vogel’s comments
and actions fell outside the guidelines and were unlike those he made to other
students.23 For example, Shalom asserts that Vogel demanded that Shalom come to
his office for daily individual physical appearance inspections.24 However, Shalom
admitted that she does not remember if Vogel asked for an inspection more than

19

See id. ¶ 20.

20

Shalom’s Local Civil Rule 56.1 Counter Statement in Opposition to
Defendant’s Motion for Summary Judgment (“Pl. 56.1”) ¶¶ 19-20.
21

See id. ¶ 21. Plaintiff testified that Vogel: (1) “Did not want
[Shalom] wearing [her] hair curly or in a ponytail.” Deposition of Holly Shalom,
Exhibit (“Ex.”) 1 to Declaration of Thomas Ricotta (“Ricotta Decl.”), Plaintiff’s
attorney (“Shalom Dep.”) at 75, 80-81; (2) Did not like Shalom’s clothes and told
her that her clothes were “sloppy.” Id. at 75, 83; (3) Requested that Shalom come
to his office on a daily basis for a hair and clothing inspection. See id. at 75, 8384.; (4) Complained that the “women were all wearing pants instead of dresses”
and that “Orthodox [Jewish] women in [the] program . . . were all wearing black
instead of colors.” Id. at 76, 95-96.
22

See Def. 56.1 ¶ 21.

23

See Pl. 56.1 ¶¶ 21-22.

24

See id. ¶ 22.
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once.25
Blinder assigned Shalom a 3.04, 3.27, and 3.41 for “Evaluations,”
“Writing Skills,” and “Professional-Personal” on her KASA form.26 According to
plaintiff, her clinical work grades were at a passing level.27 Nonetheless, Shalom
received 70 points and thus received No Credit for COMSC 728.28
C.

Shalom’s Spring 2010 Grade Appeal
Shalom appealed her COMSC 728 grade to Marilyn Auerbach, the

Acting Senior Associate Dean of the School of Health Sciences.29 Shalom also
informed CUNY of Vogel’s comments and her belief that she failed because she
did not respond to him.30 The School of Health Sciences grade appeals committee
reversed Shalom’s failing grade for COMSC 728.31
D.

Shalom’s Fall 2010 Semester
In Fall 2010, Shalom registered for COMSC 729 under the

25

See Shalom Dep. at 83.

26

See Def. 56.1 ¶ 24.

27

See Pl. 56.1 ¶ 23.

28

See Def. 56.1 ¶¶ 23, 25.

29

See id. ¶¶ 26-27.

30

See Pl. 56.1 ¶ 27.

31

See Def. 56.1 ¶ 28.
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supervision of Diana Bousel and Robin Westle.32 In mid-November 2010, Vogel
sent Shalom emails concerning incidents when Shalom misplaced items, including
client charts and papers containing sensitive information.33 Shalom claims that
Vogel’s emails were based on false reports.34 According to defendant, these emails
were similar to those Vogel sent to other students.35 Vogel also spoke to Westle
regarding such incidents.36 Bousel and Westle each gave Shalom below a 3.0 on
three of the four categories in the KASA form.37 Shalom received a final score of
59 points, thereby receiving a “No Credit” grade for COMSC 729.38
E.

Shalom’s Fall 2010 Grade Appeal
Shalom appealed her COMSC 729 grade.39 She believed she received

this grade because Vogel intervened in the grading process when he spoke to

32

See id. ¶¶ 30-31.

33

See id. ¶¶ 32-33, 53. See also Ex. 2 to Vogel Decl. (emails from
Vogel to Shalom).
34

See Pl. 56.1 ¶¶ 32-33, 53.

35

See Def. 56.1 ¶ 33.

36

See id. ¶ 34.

37

See id. ¶¶ 37-39.

38

See id. ¶¶ 36, 40-41.

39

See id. ¶ 42.
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Shalom’s supervisors about Shalom – which Westle acknowledged had an impact
on her grading – and that Vogel was ultimately responsible for the final grade.40
According to defendant, Shalom’s failing grade was based on the KASA forms and
Shalom’s failure to adhere to the SLP Program’s professional standards and
confidentiality rules.41
The appeal was denied by both the School of Health Sciences grade
appeals committee and the Hunter College Senate grade appeals committee. As a
result, Shalom was required to retake and pass COMSC 729 in order to continue in
the SLP Program.42 Shalom requested and received a leave of absence for both the
Spring and Fall 2011 semesters.43
F.

Investigation By the Sexual Harassment Awareness Committee
In January 2011, Shalom met with John Rose, Hunter College’s Dean

for Diversity and Compliance and Coordinator of the Sexual Harassment
Awareness and Intake Committee, and complained that Vogel had “predetermined”
that Shalom would fail her clinical practicum, had sexually harassed her, made

40

See Pl. 56.1 ¶ 58.

41

See Def. 56.1 ¶ 40.

42

See id. ¶¶ 43-44.

43

See id. ¶ 45.
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false accusations about her, and inappropriately discussed her work and grade
appeals with her supervisors.44
Subsequently, Rose and Erica Peterson, a Counselor in the Office of
Student Affairs, conducted an investigation, and concluded that Vogel’s
communication with Shalom was appropriate and consistent with the relevant
professionalism standards and therefore did not constitute sexual harassment or
gender discrimination.45 Rose and Peterson also found that Shalom’s clinical
evaluations were not influenced by any comments or suggestions that Vogel might
have made to Shalom’s supervisors.46
G.

Shalom’s Article 78 Proceeding
On July 25, 2011, Shalom commenced an Article 78 proceeding in

New York Supreme Court to challenge the Hunter College Senate grade appeals
committee’s decision to uphold her COMSC 729 grade for the Fall 2010
semester.47 Before a decision was reached, CUNY and Shalom agreed that Shalom
could retake COMSC 729 in the Spring 2012 semester under the supervision of a

44

See id. ¶¶ 46-47.

45

See id. ¶¶ 48-50.

46

See id. ¶ 51.

47

See id. ¶ 55.
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speech-language pathologist of her choice and Shalom’s Clinic Director going
forward would be Paul Cascella or faculty members other than Vogel.48
H.

Shalom’s Spring 2012 Semester
Shalom selected Lea Borenstein to be her supervisor for the Spring

2012 semester.49 Cascella was informed in February 2012 that Shalom had missed
a client session, had left client and diagnostic materials in the room after the
evaluation session had ended, and had interrupted another student’s therapy
session.50 Shalom disputes the truth of these allegations.51 Subsequently, Cascella
investigated the complaints.52
Borenstein’s mid-term evaluation of Shalom noted deficiencies in her
clinical performance.53 According to defendant, these deficiencies would result in
a failing grade at the end of the semester.54 CUNY permitted Shalom to withdraw
from COMSC 729 without receiving any grade in Spring 2012, and granted her a

48

See id. ¶¶ 56-57, 67.

49

See id. ¶ 63.

50

See id. ¶ 68.

51

See Pl. 56.1 ¶ 68.

52

See Def. 56.1 ¶¶ 69-70.

53

See id. ¶¶ 64-66.

54

See id. ¶¶ 65-66.
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leave of absence until September 2012.55
I.

Shalom’s Subsequent Requests For Leaves of Absence
Shalom requested and received a leave of absence for the Fall 2012

semester,56 but was denied a leave of absence for the Spring 2013 semester.57
Although she has not been enrolled in an SLP course since Spring 2012, Shalom
has not been dismissed from the SLP Program.58
J.

Shalom’s Complaints to the Office for Civil Rights
Shalom filed three complaints with the U.S. Department of

Education’s Office for Civil Rights (“OCR”) none of which resulted in a
determination against CUNY.59 The three complaints alleged that: (1) the COMSC
729 grade was in retaliation for her COMSC 728 grade appeal;60 (2) CUNY
retaliated against Shalom for filing her first complaint by delaying consideration of
her request for a leave of absence in May 2012;61 and (3) CUNY retaliated against

55

See id. ¶¶ 71-72.

56

See id. ¶ 73.

57

See id. ¶¶ 74-75.

58

See id. ¶ 76.

59

See id. ¶¶ 77, 81.

60

See id. ¶ 78.

61

See id. ¶ 79.
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Shalom for filing the second OCR complaint by denying her a leave of absence
through the Spring 2013 semester.62
III.

LEGAL STANDARD
Summary judgment is appropriate “only where, construing all the

evidence in the light most favorable to the non-movant and drawing all reasonable
inferences in that party’s favor, there is ‘no genuine issue as to any material fact
and . . . the movant is entitled to judgment as a matter of law.’”63 “A fact is
material if it might affect the outcome of the suit under the governing law, and an
issue of fact is genuine if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.”64
“[T]he moving party has the burden of showing that no genuine issue
of material fact exists and that the undisputed facts entitle him to judgment as a
matter of law.”65 “When the burden of proof at trial would fall on the non-moving
party, it ordinarily is sufficient for the movant to point to a lack of evidence to go

62

See id. ¶ 80.

63

Rivera v. Rochester Genesee Reg’l Transp. Auth., 702 F.3d 685, 692
(2d Cir. 2012) (quoting Fed. R. Civ. P. 56(c)) (other quotations omitted).
64

Windsor v. United States, 699 F.3d 169, 192 (2d Cir. 2012), aff’d, 133
S. Ct. 2675 (2013) (quotations and alterations omitted).
65

Coollick v. Hughes, 699 F.3d 211, 219 (2d Cir. 2012) (citations

omitted).
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to the trier of fact on an essential element of the non[-]movant’s claim.”66 The
burden then “shifts to the non[-]moving party to present specific evidence showing
a genuine dispute.”67 This requires “‘more than simply show[ing] that there is
some metaphysical doubt as to the material facts,’”68 and the non-moving party
cannot “rely on conclusory allegations or unsubstantiated speculation.”69
In deciding a motion for summary judgment, “[t]he role of the court is
not to resolve disputed issues of fact but to assess whether there are any factual
issues to be tried.”70 “‘Credibility determinations, the weighing of the evidence,
and the drawing of legitimate inferences from the facts are jury functions, not those
of a judge.’”71
IV.

APPLICABLE LAW
Title IX provides: “[n]o person in the United States shall, on the basis

66

Jaramillo v. Weyerhaeuser Co., 536 F.3d 140, 145 (2d Cir. 2008).

67

Id.

68

Brown v. Eli Lilly & Co., 654 F.3d 347, 358 (2d Cir. 2011) (quoting
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)).
69

Id.

70

Cuff ex rel. B.C. v. Valley Cent. Sch. Dist., 677 F.3d 109, 119 (2d Cir.

2012).
71

Redd v. New York Div. of Parole, 678 F.3d 166, 174 (2d Cir. 2012)
(quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000)).
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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.”72 Defendant admits that it is subject to Title IX.73
A.

Title IX Discrimination
1.

Title IX Sexual Harassment Claim

“[S]exual harassment is a form of discrimination for Title IX purposes
. . .”74 A “sexual harassment claim under Title IX requires proof of three elements:
(1) the rejection of sexual advances; (2) a tangible school-related consequence; and
(3) a causal connection between the two.”75 “In the education context, a tangible
consequence occurs when some benefit or adverse action, such as a change in a
grade, is made to depend upon providing sexual favors to someone in authority.”76
Finally, for an educational facility to be liable, an official of the school “who at a
minimum has authority to institute corrective measures on the [school’s] behalf has

72

20 U.S.C. § 1681(a).

73

See Memorandum of Law in Support of Defendant CUNY’s Motion
for Summary Judgment at 10.
74

Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 649-50 (1999).

75

Papelino v. Albany College of Pharmacy of Union Univ., 633 F.3d 81,
89 (2d Cir. 2011) (quotations and alterations omitted).
76

Id.
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actual notice of, and is deliberately indifferent to, the [official]’s misconduct.”77
2.

Title IX Hostile Educational Environment

“[A] Title IX hostile education environment claim is governed by
traditional Title VII jurisprudence.”78 To hold defendant liable, plaintiff must
prove that (1) that plaintiff subjectively perceived that environment to be abusive;
and (2) “that [the environment] was permeated with discriminatory intimidation,
ridicule, and insult sufficiently severe or pervasive to alter the conditions of [her]
educational environment” (i.e., an objectively hostile or abusive environment).79
“There also must be evidence that the alleged discrimination was carried out
because of sex.”80 “While the effect on a victim’s psychological well-being is
relevant to the subjective component in the analysis, its presence, or absence, is not
dispositive on the issue of severity, as no single factor is required.”81
“Sex-based hostile [educational] environment claims may be
supported by facially sex-neutral incidents and sexually offensive acts may be
77

Gebser v. Lago Vista Independent Sch. Dist., 524 U.S. 274, 277

(1998).
78

Papelino, 633 F.3d at 89 (quotations and alterations omitted).

79

Id.

80

Hayut v. State Univ. of New York, 352 F.3d 733, 745 (2d Cir. 2003)
(quotations and alterations omitted).
81

Id.
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facially sex-neutral.”82 “[T]his requires some circumstantial or other basis for
inferring that incidents sex-neutral on their face were in fact discriminatory.”83 A
discriminatory motive can be proved by demonstrating that the alleged adverse
action was a pretext for discrimination.84
A hostile educational environment claim “entails examining the
totality of the circumstances, including: the frequency of the discriminatory
conduct; its severity; whether it is physically threatening or humiliating, or a mere
offensive utterance; and whether it unreasonably interferes with the victim’s
academic performance.”85
B.

Title IX Retaliation
“[W]hen a funding recipient retaliates against a person because [s]he

complains of sex discrimination, this constitutes intentional discrimination on the
basis of sex, in violation of Title IX.”86 Retaliation claims under Title IX are
analyzed under the same “burden-shifting” framework set forth by the Supreme

82

Moll v. Telesector Resources Group, Inc., Nos. 12 Civ. 4688 and 13
Civ. 0918, 2014 WL 3673357, at *1 (2d Cir. July 24, 2014).
83

Alfano v. Costello, 294 F.3d 365, 378 (2d Cir. 2002).

84

See Reeves, 530 U.S. at 147.

85

Id.

86

Jackson v. Birmingham Bd. of Ed., 544 U.S. 167, 174 (2005).
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Court in McDonnell Douglas Corp. v. Green.87 A plaintiff claiming retaliation
under Title IX must first establish a prima facie case by showing: “(i) conduct by
the plaintiff that is protected activity . . .; (ii) of which the [school official] is
aware; (iii) followed by an adverse [educational] action of a nature that would
deter a reasonable [student] from making or supporting a discrimination claim; (iv)
that was causally connected to the protected activity.”88
With regard to the final element, “causation can be shown either: (1)
indirectly, by showing that the protected activity was followed closely by
discriminatory treatment, or through other circumstantial evidence such as
disparate treatment of fellow employees who engaged in similar conduct; or (2)
directly, through evidence of retaliatory animus directed against the plaintiff by the
defendant.”89 “Close temporal proximity between the plaintiff’s protected action

87

See 411 U.S. 792 (1973). See also Platt v. Incorporated Vill. of
Southampton, 391 Fed. App’x 62, 64 n.1 (2d Cir. 2010) (stating that retaliation
claims under the ADA and Title VII are analyzed under the same burden-shifting
framework set forth in McDonnell Douglas); Bastian v. New York City Dep’t of
Educ., No. 04 Civ. 7450, 2008 WL 2930529, at *7 (S.D.N.Y. July 29, 2008)
(stating that Title IX retaliation claims are analyzed using the same McDonnell
Douglas burden-shifting framework applicable to Title VII cases).
88

Cox v. Onondaga Cnty. Sheriff’s Dept., No. 12 Civ. 1526, 2014 WL
3610747, at *5 (2d Cir. July 23, 2014).
89

Hicks v. Baines, 593 F.3d 159, 170 (2d Cir. 2010) (quoting Gordon v.
New York City Bd. of Educ., 232 F.3d 111, 117 (2d Cir. 2000)).
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and the . . . [adverse] action may in itself be sufficient to establish the requisite
causal connection between a protected activity and retaliatory action.”90 “In
general, periods greater than two months defeat an inference of causation.”91 If a
plaintiff establishes a prima facie case of retaliation, a presumption of retaliation
arises and the case proceeds to the second step of the McDonnell Douglas
framework.92
At the second step, “the onus falls on the employer to articulate a
legitimate, non-retaliatory reason for the adverse [educational] action.”93 If the
court reaches the third step, “the presumption of retaliation dissipates and the
[student] must show that retaliation was a substantial reason for the adverse
[educational] action. In this regard, a retaliation claim follows the familiar
burden-shifting framework developed to evaluate allegations of disparate

90

Kaytor v. Electric Boat Corp., 609 F.3d 537, 552 (2d Cir. 2010).

91

Doner–Hedrick v. New York Inst. of Tech., 874 F. Supp. 2d 227, 246
(S.D.N.Y. 2012).
92

See Holcomb v. Iona Coll., 521 F.3d 130, 138 (2d Cir. 2008) (“If the
plaintiff establishes a prima facie case of retaliation, the burden shifts to the
defendant to articulate ‘some legitimate, non-discriminatory reason’ for its
action.”) (quoting McDonnell Douglas, 411 U.S. at 802).
93

Jute v. Hamilton Sundstrand Corp., 420 F.3d 166, 173 (2d Cir. 2005)
(citations omitted).
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treatment.”94
V.

DISCUSSION
A.

Title IX Discrimination95
Shalom’s Title IX discrimination claim rests on two theories – sexual

harassment and hostile educational environment. Because one of the elements of a
Title IX sexual harassment claim is rejection of sexual advances, and Shalom
concedes that Vogel never made any explicit or implicit sexual advances to her,96
her discrimination claim based on that theory fails as a matter of law.
A hostile educational environment claim is evaluated based on a
totality of the circumstances.97 “As a general rule, incidents must be more than
episodic; they must be sufficiently continuous and concerted in order to be deemed
pervasive. Isolated acts, unless very serious, do not meet the threshold of severity

94

Id.

95

In addition to the sexual harassment and hostile educational
environment theories discussed below, plaintiff appears to plead a disparate
treatment theory by alleging that Vogel engaged in a pattern and practice of
discrimination against Shalom due to her gender. Defendant moves for summary
judgment on this theory, arguing that Shalom has failed to come forward with any
evidence to support it. Shalom does not respond to this portion of defendant’s
motion. Accordingly, any Title IX discrimination claim based on a disparate
treatment theory is dismissed.
96

See Shalom Dep. 99-100.

97

See Hayut, 352 F.3d at 745.
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or pervasiveness.”98
Plaintiff testified at her deposition that Vogel: (1) “did not want
[Shalom] wearing [her] hair curly or in a ponytail;”99 (2) did not like Shalom’s
clothes and told her that her clothes were “sloppy;”100 (3) once requested that
Shalom come to his office on a daily basis for a hair and clothing inspection;101 (4)
complained that the “women were all wearing pants instead of dresses” and that
“Orthodox [Jewish] women in [the] program . . . were all wearing black instead of
colors;”102 (5) became angry when Shalom did not greet him in the hallway;103 (6)
told Shalom that she did not have the personality to be a speech language
pathologist;104 and (7) told Shalom that she would “see what would happen to
[her]” if she complained about what Shalom considered to be sexual harassment.105

98

Alfano, 294 F.3d at 374 (citation omitted).

99

Shalom Dep. at 75, 80-81.

100

Id. at 75, 83.

101

See id. at 75, 83-84.

102

Id. at 76, 95-96.

103

See id. at 76.

104

See id. at 75, 79.

105

Id. at 156.
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The incidents alleged by Shalom were neither severe nor pervasive.
To the extent Vogel made any of the comments described above, Shalom’s
allegations appear to highlight singular incidents that do not rise to the level of
severity or pervasiveness required to proceed on a hostile environment claim.106
Further, Vogel’s emails to Shalom, which she claims contributed to the hostile
environment, are, to the contrary, professional and polite.107 While Shalom may
have subjectively felt hurt or offended by Vogel’s comments or emails, her
subjective feelings are insufficient to show that Vogel’s sex neutral statements had
106

See, e.g., Moll, 2014 WL 3673357, at *4 (reversing district court’s
grant of defendant’s motion to dismiss in a hostile work environment case where
plaintiff received multiple sexually suggestive notes, phone calls, and invitations to
come to her male supervisor’s hotel room, was told that there was a “promotion
freeze” even though two male colleagues were promoted, was denied vacation
requests even though male colleagues with less tenure were granted the same
requests, and was excluded from work-related social events including attending
professional hockey games).
107

See, e.g., 11/10/10 email from Vogel to Shalom, Ex. 2 to Vogel Decl.
(“[O]ne of the first year students called to my attention that you left your mail and
client’s SOAP notes open on the clinic’s computer today (the one by the copy
machine). Your Hunter mail account was immediately logged out to protect your
privacy and the SOAP noted was deleted as we don’t keep that Information on the
computers permanently. Please be careful in the future to help keep your personal
and client’s information secure and private.”); 11/7/10 email from Vogel to
Shalom, Ex. 2 to Vogel Decl. (“It seems that you lost track of one of your papers,
which Mrs. Blinder found. Why don’t we start to employ some strategies to help
you keep organized with your clinical work? I’m at ASHA tomorrow through
Saturday, but I’ll be back in the clinic on Monday. How about if you and I touch
base when I return and talk about these strategies and we can work together to help
you.”).
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a discriminatory motive. Drawing all inferences in Shalom’s favor, no reasonable
juror could conclude that CUNY, or its employees, created a hostile educational
environment.
B.

Title IX Retaliation Claim
It is undisputed that Shalom complained about Vogel’s alleged

harassment in June 2010, January 2011, and April 2011. It is further undisputed
that Shalom’s failing grade in COMSC 729 during the Fall 2010 semester and the
university’s denial of her request for a leave of absence for the Spring 2013
semester constitute adverse educational actions.
However, Shalom has failed to establish the necessary causal
connection between the complaints and the adverse actions. Shalom’s failing
grade in Fall 2010 occurred several months after her first complaint, and the denial
of her request for a leave of absence occurred nearly two years after her most
recent complaint. “A passage of years . . . is surely too temporally remote to
establish causation.”108 Further, the denial of Shalom’s request for a leave of
absence followed several instances where her request was, in fact, granted.
Even if Shalom were able to establish a causal nexus, CUNY has
sufficiently articulated a non-retaliatory reason for both actions and Shalom has
108

Apionishev v. Columbia Univ. in City of New York, No. 09 Civ. 6471,
2012 WL 208998, at *9 (S.D.N.Y. Jan. 23, 2012).
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failed to come forward with evidence to suggest that retaliation was a “substantial
reason” for the adverse actions. Based on several evaluations from numerous
supervisors, Shalom’s clinic performance was sub-par and insufficient to obtain a
passing grade.109 Vogel’s concerns regarding misplaced items and client privacy
were valid considerations and appropriately raised with Shalom’s supervisors.
CUNY repeatedly accommodated Shalom’s requests to work with different
supervisors and her performance continued to be inadequate. Finally, it was within
CUNY’s discretion to deny Shalom’s request for an additional leave of absence,
especially in light of the numerous previously granted requests, Shalom’s poor
performance during the Spring 2012 semester, and her failure to articulate a reason
for a continued leave.
VI.

CONCLUSION
For the foregoing reasons, the defendant’s motion for summary

judgment on both Title IX claims is GRANTED. The Clerk of the Court is
directed to close this motion and this case.

109

See Def. 56.1 ¶¶ 65-66.
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·~·-··~··--·

----------

SO ORDERED:

Dated:

New York, New York
August 13, 2014

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- Appearances For Plaintiff:

For Defendant:

Thomas A. Ricotta, Esq.
White, Ricotta & Marks, P.C.
86-12 37th Avenue
Jackson Heights, NY 11372
[phone]

Steven L. Banks
Michael R. Klekman
Assistant Attorneys General
120 Broadway
New York, NY 10271
[phone]

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