Doe v. New York University
Filing
121
OPINION AND ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT re: 85 MOTION for Summary Judgment / NOTICE OF MOTION FOR SUMMARY JUDGMENT BY DEFENDANT. filed by New York University. For the reasons stated above, Defendant 039;s motion for summary judgment is GRANTED in its entirety. The Clerk of Court respectfully is requested to terminate the motion pending at ECF No. 85, enter judgment for NYU, and close the case. (And as further set forth herein.) SO ORDERED. (Signed by Judge Mary Kay Vyskocil on 8/17/2023) (jca) Transmission to Orders and Judgments Clerk for processing.
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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JOHN DOE,
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Plaintiff, :
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-v:
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NEW YORK UNIVERSITY,
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Defendant. :
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USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #:
DATE FILED: 8/17/2023
1:20-cv-1343-MKV
OPINION AND ORDER
GRANTING DEFENDANT’S
MOTION FOR SUMMARY
JUDGMENT
MARY KAY VYSKOCIL, United States District Judge:
Plaintiff John Doe brought this action against New York University (“NYU”), alleging that
NYU discriminated against him based on his gender when, after an investigation, hearing, and
appeal precipitated by a complaint by a female student, NYU expelled Plaintiff for sexual
misconduct and stalking. Plaintiff asserts discrimination claims for the alleged violation of both
federal and state law, and also sues for promissory estoppel based on the alleged promise by his
NYU-appointed advisor that he would not be expelled, which Plaintiff claims to have relied upon
in deciding how vigorously (or not) to defend himself against the charges. Presently before the
Court is NYU’s motion for summary judgment on all claims. 1 For the reasons discussed below,
that motion is granted.
In support of its Motion for Summary Judgment, NYU filed a Memorandum of Law [ECF No. 87] (“Def. Br.”), a
Declaration of Jeffrey P. Metzler [ECF No. 88] (“Metzler Decl.”), and a Rule 56.1 Statement [ECF No. 86] (“Def.
Facts”). In opposition, Plaintiff filed a Memorandum of Law [ECF No. 99] (“Opp.”), a Rule 56.1 Counterstatement
[ECF No. 96] (“Pl. Facts”), and a Declaration of Kimberly C. Lau [ECF No. 98] (“Lau Decl.”). In reply, NYU filed
a Memorandum of Law [ECF No. 112] (“Reply”), a Declaration of Jeffrey P. Metzler [ECF No. 113] (“Metzler Decl.
II”), and a Response to Plaintiff’s 56.1 Counterstatement [ECF No. 111] (“Def. Facts Reply”).
1
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BACKGROUND 2
Plaintiff John Doe was an NYU student who had a long and sordid relationship (if it could
be called that) with another NYU student, referred to as Jane Roe. 3 The details of this relationship
are discussed at length in the materials submitted by the parties in connection with the pending
motion, but they need not be fully recounted in this Opinion. It largely suffices to say that the
relationship was toxic and that, as a result, Jane filed a complaint against Plaintiff with NYU’s
Department of Public Safety on April 21, 2018. Def. Facts ¶ 114; Pl. Facts ¶ 114. The events that
followed Jane’s complaint are what is most relevant for purposes of the pending motion. However,
to give context to the school’s decision, a brief summary is helpful.
Plaintiff and Jane met when they were both in high school, and they stayed in close contact
during freshmen year at their respective colleges. Def. Facts ¶¶ 35–47; Pl. Facts ¶¶ 35–47. After
their freshmen year, Plaintiff transferred schools to join Jane at NYU and specifically requested
(without Jane’s knowledge) to be housed in her dormitory. Def. Facts ¶¶ 48–52; Pl. Facts ¶¶ 48–
52. When Jane decided that she needed some space, and told Plaintiff as much, Plaintiff threatened
to harm himself and sent Jane over 100 unanswered messages. Def. Facts ¶¶ 53–58; Pl. Facts
¶¶ 53–58. Plaintiff continued this tactic over time, refusing to leave Jane alone while making
threats of self-harm and threatening to give compromising information to Jane’s parents and
friends as well. Def. Facts ¶¶ 60–61, 77; Pl. Facts ¶¶ 60–61, 77. At some point during their
relationship, Plaintiff took photos of Jane without her consent while her shirt was off or partially
off, which Plaintiff supposedly used for his own sexual pleasure. Def. Facts ¶ 59; Pl. Facts ¶ 59.
The following facts are taken from the parties’ Local Civil Rule 56.1 Statements, the affidavits and declarations
submitted in connection with the instant motion, and the exhibits attached thereto. The facts are undisputed unless
otherwise indicated.
2
Judge Woods previously granted Plaintiff’s motion to proceed pseudonymously because of the strong privacy
interests that he and Jane had in the subject matter of this case. [ECF No. 19].
3
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Things got so tense that in a heated argument in a stairwell, Jane punched Plaintiff when he leaned
in towards her, which she claimed to have done in self-defense. Def. Facts ¶¶ 99–101; Pl. Facts
¶¶ 99–101.
The list of inappropriate and unusual behavior by no means stopped there. However, for
the sake of brevity, there is one final act (or series of acts) worth noting. The day that Jane initially
reported Plaintiff’s misconduct, NYU issued a no-contact directive to both Plaintiff and Jane. Def.
Facts ¶ 117; Pl. Facts ¶ 117. Plaintiff violated that directive within minutes of it being
implemented, and violated it repeatedly throughout the course of the investigation into his conduct.
Def. Facts ¶¶ 117–23; Pl. Facts ¶¶ 117–23. Jane described this behavior, along with the other
alleged misconduct, when she met with the Executive Director of NYU’s Office of Equal
Opportunity, Mary Signor, and confirmed her desire to file a formal complaint. Def. Facts ¶¶ 30,
126–27; Pl. Facts ¶¶ 30, 126–27.
The same day that Jane confirmed her intent to go forward with a formal complaint,
Plaintiff also met with Signor and another faculty member. Def. Facts ¶¶ 126–28; Pl. Facts ¶¶ 126–
28. At that time, Plaintiff described his relationship with Jane, including instances in which Jane
had allegedly abused him verbally and physically. Def. Facts ¶¶ 33, 126–30; Pl. Facts ¶¶ 33, 126–
30. Plaintiff testified that Signor informed him that he could file a cross-complaint against Jane,
which would be handled at the end of any proceedings against him, but Plaintiff declined to do so.
Def. Facts ¶ 131; Pl. Facts ¶ 131; Def. Reply ¶ 309. Signor also advised Plaintiff that the
misconduct alleged by Jane could result in his expulsion. Def. Facts ¶ 132; Pl. Facts ¶ 132.
Thereafter, NYU Investigator Sam Hodge and another investigator interviewed Jane. Def.
Facts ¶ 144; Pl. Facts ¶ 144. After speaking with Jane, Hodge emailed Plaintiff to schedule an
interview, attaching to that email NYU’s Sexual Misconduct, Relationship Violence, and Stalking
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Policy (the “Misconduct Policy”), which stated, among other things, that activities in violation of
the Misconduct Policy can include “disciplinary action, up to and including separation from
NYU.” Metzler Decl. Ex. 1, Part A at PDF 37; see also Def. Facts ¶¶ 1, 27, 148; Pl. Facts ¶¶ 1,
27, 148. Hodge then informed Plaintiff that he could select an “advisor of choice” to accompany
him to the interview, but also offered to have NYU connect Plaintiff with a “Respondent
Facilitator” who could serve as his advisor. 4 Def. Facts ¶¶ 149–150; Pl. Facts ¶¶ 149–150.
Plaintiff selected the latter option. Def. Facts ¶ 153; Pl. Facts ¶ 153.
Plaintiff’s Respondent Facilitator was Allen McFarlane. Def. Facts ¶ 154; Pl. Facts ¶ 154.
Plaintiff testified at his deposition that McFarlane assured him after first hearing the charges that
“under no circumstances would [Plaintiff] be expelled” for his alleged misconduct. Pl. Facts ¶ 319;
Def. Facts Reply ¶ 319. Shortly after this (supposed) promise was made, Plaintiff and McFarlane
met with Hodge and another Investigator for an interview. Def. Facts ¶¶ 31, 157; Pl. Facts
¶¶ 31, 157. During the interview, Plaintiff told the investigators, among other things, that Jane
had physically and verbally abused him. Pl. Facts ¶ 304; Def. Reply Facts ¶ 304. At the end of
the interview, Hodge informed Plaintiff of his right to file a cross-complaint, but Plaintiff (again)
elected not to do so. Pl. Facts ¶¶ 161–62; Def. Reply Facts ¶ 161.
After interviewing both parties and several third-party witnesses, and after reviewing the
submitted evidence, Hodge sent a draft of the investigative report to Plaintiff and to Jane. Def.
Facts ¶¶ 172–75; Pl. Facts ¶¶ 172–75. Plaintiff testified in his deposition that McFarlane, after
reviewing the evidence in the draft report, repeated his statement that Plaintiff would not be
expelled for the alleged misconduct.
Lau Decl., Ex. 3 (“Pl. Dep.”) at 136:5–137:8.
The
investigative report was finalized a few weeks later, after Plaintiff submitted additional responses
Hodge’s email also included a list of attorney referrals, but Plaintiff opted to not hire a lawyer at that time. Def.
Facts ¶ 152; Pl. Facts ¶ 152.
4
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and evidence. Def. Facts ¶¶ 176, 183, 189; Pl. Facts ¶¶ 176, 183, 189. Thereafter, NYU held a
hearing on Jane’s complaint, which was adjudicated by the Director of the Office of Student
Conduct, Craig Jolley. Def. Facts ¶¶ 189, 191, 206–08; Pl. Facts ¶¶ 189, 191, 206–08.
The hearing did not go well for Plaintiff. Jolley ultimately found “overwhelming evidence
that the [Plaintiff] has engaged in an extended pattern of conduct that would cause a reasonable
person in the position of the Complainant to experience fear for their safety, substantial emotional
distress, significant mental suffering, and anguish. This behavior has included sexual harassment,
sexual exploitation and stalking as defined under the [Misconduct Policy].” 5 Metzler Decl., Ex. 2
(“Hearing Decision”) at 7; see also Def. Facts ¶ 235; Pl. Facts ¶ 235. Based on “the totality of
circumstances, the threatening and excessive nature of the Respondent’s conduct, the repeated and
blatant disregard of the University’s no-contact directive, and most notably, the unsettling and
egregious pattern of stalking behaviors,” Jolley sanctioned Plaintiff with expulsion and a transcript
notation. Hearing Decision at 7.
Plaintiff hired a lawyer and asked for several extensions of his time to file an appeal, which
NYU granted. Def. Facts ¶¶ 244–248; Pl. Facts ¶¶ 244–248. His appeal invoked all three grounds
on which such an appeal could be based under the Misconduct Policy. Def. Facts ¶¶ 28, 249–252;
Pl. Facts ¶¶ 28, 249–252. Specifically, Plaintiff argued that there were numerous procedural errors
(such as the fact that the hearing did not investigate Plaintiff’s allegations against Jane), that
previously unavailable relevant evidence could affect the outcome (such as even more text
messages between Plaintiff and Jane), and that the sanction was substantially disproportionate to
5
Jolley also found that there was not sufficient evidence to support a finding of sexual assault. Def. Facts ¶ 236; Pl.
Facts ¶ 236. Because there was no complaint against Jane, Jolley did not consider it to be his role to adjudicate
whether Jane, as opposed to Plaintiff, engaged in any violation of university policy, and so made no findings about
whether Jane had done so. Def. Facts ¶ 240; Pl. Facts ¶ 240.
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the violation. Def. Facts ¶¶ 249–252; Pl. Facts ¶¶ 249–252. 6 Plaintiff’s appeal was considered by
a three-person panel, which reviewed all of the evidence submitted by the parties, including
Plaintiff’s “new evidence.” Def. Facts ¶¶ 254–255; Pl. Facts ¶¶ 254–255. The panel denied
Plaintiff’s appeal on February 26, 2019. Def. Facts ¶¶ 256; Pl. Facts ¶¶ 256; see Metzler Decl. Ex.
76 (appeal decision).
Months after his expulsion went into effect, Plaintiff filed a formal complaint against Jane.
Def. Facts ¶ 265; Pl. Facts ¶ 264. While the Misconduct Policy does not expressly prohibit NYU
from accepting complaints from former students, NYU declined to accept Plaintiff’s complaint
because, according to Signor, NYU has “never accepted a complaint from an expelled student
against a current student.” Metzler Decl. Ex. 5, (“Signor Dep.”) at 188:20-189:9; see also Def.
Facts ¶ 266; Pl. ¶ 266.
PROCEDURAL HISTORY
Plaintiff initiated this suit by filing a complaint against NYU, alleging four causes of action:
(1) violation of Title IX of the Education Amendments of 1972 (“Title IX”), 20 U.S.C. §§ 1681 et
seq., through selective enforcement of NYU’s disciplinary process against Plaintiff; (2) violation
of Title IX based on the erroneous outcome of NYU’s disciplinary proceedings; (3) violation of
the New York City Human Rights Law (the “NYCHRL”), N.Y. Admin Code § 8-107 et seq.; and
(4) a common law promissory estoppel claim based on (i) McFarlane’s statement that Plaintiff
would not be expelled and (ii) Signor’s alleged statement that Plaintiff could file a Title IX
complaint against Jane once her complaint against him was resolved. [ECF No. 1] (“Compl.”)
¶¶ 243–318. Each cause of action other than the one for promissory estoppel was rooted in a claim
of gender discrimination. Compl. ¶¶ 243–318. Plaintiff later filed an amended complaint, the
Although appeal statements are not supposed to be longer than three pages, NYU accepted the submission by Plaintiff
which greatly exceeded the limit. Def. Facts ¶¶ 28, 255; Pl. Facts ¶¶ 28, 255.
6
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operative complaint in this case, which contained the same causes of action. [ECF No. 27] (“AC”).
Judge Woods dismissed at the pleadings stage the promissory estoppel claim that Plaintiff had
raised based on comments by Signor, but otherwise allowed Plaintiff’s claims (including the
promissory estoppel claim based on McFarlane’s statement) to proceed. [ECF No. 40].
Pending before the Court is a motion by NYU for summary judgment on all remaining
claims. [ECF No. 85]. NYU argues that no reasonable jury could find that NYU’s actions were
motivated by gender, as necessary to support Plaintiff’s Title IX and NYCHRL claims. See Def.
Br. at 12–25. NYU further argues that Plaintiff’s promissory estoppel claim fails because
McFarlane’s statement was not a promise, Plaintiff’s reliance on the statement was unreasonable,
and Plaintiff had not been injured by the statement. Plaintiff opposed the motion [ECF No. 99]
and NYU replied [ECF No. 112].
After the summary judgment motion was fully briefed, this case was reassigned from Judge
Woods to this Court.
LEGAL STANDARD
Under Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment should be
granted only “if the movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The moving party bears
the initial burden of demonstrating the absence of a dispute. See Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986). The court “may not make credibility determinations or weigh the evidence.”
Jaegly v. Couch, 439 F.3d 149, 151 (2d Cir. 2006). The court “must resolve all ambiguities and
draw all permissible inferences in favor of the non-moving party.” Id. If there is evidence in the
record that supports a reasonable inference in favor of the opposing party, summary judgment is
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improper. See Brooklyn Ctr. For Indep. of the Disabled v. Metro. Transportation Auth., 11 F.4th
55, 64 (2d Cir. 2021).
DISCUSSION
I.
TITLE IX CLAIMS
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).
In the context of university discipline, the Second Circuit has recognized two categories of Title
IX claims: (1) claims of an erroneous outcome from a flawed proceeding, and (2) claims of
selective enforcement. See Yusuf v. Vassar Coll., 35 F.3d 709, 714–16 (2d Cir. 1994); see also
Scott v. WorldstarHipHop, Inc., No. 10-cv-9538, 2011 WL 5082410, at *4 (S.D.N.Y. Oc. 25,
2011). “In the former case, a party asserts that he or she was innocent and wrongly found to have
committed the offense; in the latter case, a party asserts that, regardless of guilt, the severity of the
penalty was affected by the student’s gender.” Scott, No. 10-cv-9538, 2011 WL 5082410, at *4.
Plaintiff brings claims of both selective enforcement and an erroneous outcome.
The Court analyzes these Title IX claims using the same McDonnell Douglas burdenshifting framework that generally guides its analysis of discrimination claims brought under Title
VII. See Radwan v. Manuel, 55 F.4th 101, 130 (2d Cir. 2022). The Plaintiff must first establish a
prima facie case by showing that he “is a member of a protected class, [he] was qualified for [his]
position, [he] suffered an adverse action, and the facts imply a discriminatory intent.” Id. If
Plaintiff makes out his prima facie case, the burden shifts to the defendant “to proffer a legitimate
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non-discriminatory reason for the adverse action, and then finally, the plaintiff may rebut this
reason by demonstrating pretext.” Id.
Here, it is not disputed that Plaintiff has established the first three elements, and as such
Plaintiff can make out a prima facie case of discrimination if he can show that the facts imply a
discriminatory intent. The Second Circuit has explained that “discriminatory intent can be shown
by either direct evidence of discriminatory animus or circumstantial evidence of such animus,
including by showing disparate treatment among similarly situated” individuals. 7 Radwan, 55
F.4th at 132. To establish circumstantial evidence of gender-based discrimination through an
analysis of similarly situated persons, Plaintiff must show that NYU treated more favorably a
female student who was “similarly situated to the plaintiff in all material respects.” 8 Id. (quoting
Ruiz v. County of Rockland, 609 F.3d 486, 494 (2d Cir. 2010)).
Plaintiff begins by comparing himself to Jane. Plaintiff contends that he and Jane are
similarly situated because they were both NYU students who reported being in an abusive
relationship. Plaintiff claims that, despite these similarities, NYU treated Jane more favorably
than it treated him by investigating her claims while his claims were ignored. Plaintiff is mistaken.
He and Jane were not similarly situated while they were students at NYU because, although they
In Radwan, the Second Circuit noted that it has not yet decided whether, for liability to attach, gender bias under
Title IX must be a mere “motivating factor in the decision to discipline,” or whether the statute instead dictates that
liability exists only if an improper disciplinary decision would not have been made “but-for” the gender bias. 55 F.4th
at 131–32 (quoting Yusuf v. Vassar Coll., 35 F.3d 709, 715 (2d Cir. 1994)). The Court need not decide that issue,
however, because Plaintiff has not proffered any evidence tending to show that gender bias was either a motivating
factor or a but-for factor of Defendant’s decision to discipline Plaintiff.
7
The parties seem to assume that a selective enforcement claim cannot succeed unless Plaintiff can demonstrate that
NYU treated a similarly situated female student more favorably. See Def. Br. at 12; Opp. at 4. This is understandable,
given that “courts in this circuit have consistently dismissed selective enforcement claims absent allegations that a
school treated similarly situated members of the opposite sex—that is, members of the opposite sex facing comparable
disciplinary charges—differently.” Doe v. New York Univ., 438 F. Supp. 3d 172, 182 (S.D.N.Y. 2020) (internal
quotation marks omitted). However, the Second Circuit’s recent decision in Radwan (which was decided after briefing
in this case had completed) makes clear that disparate treatment of similarly situated members of the opposite sex is
one way, but not the only way, to demonstrate discriminatory intent. See 55 F.4th at 132.
8
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both complained (in the colloquial sense) of abuse by the other, Jane was the only one to file a
formal complaint. Plaintiff was repeatedly told he could file a complaint (see Def. Reply ¶¶ 131,
161–62), but he opted not to do so throughout the investigation, hearing, determination and appeal
of Jane’s complaint. It is true, of course, that Plaintiff did eventually file a formal complaint as
well. But Plaintiff did not file a complaint until seven months after he had been expelled. Plaintiff
and Jane were not similarly situated at that time either because he already had been expelled and
thus was no longer a student at the university when he decided to file a formal complaint. So while
NYU did treat Plaintiff and Jane differently, the two individuals were, at all relevant times,
different in material ways.
In an attempt to avoid this manifest disparity, Plaintiff argues that he would have filed a
formal complaint while a student (and thus would have been similarly situated to Jane) if he had
not been told that his complaint would be considered only after Jane’s complaint had been
resolved. Pl. Facts ¶ 131; Metzler Decl., Ex. 10 (“Pl. Dep.”) at 87:20–25. But this explanation,
even assuming it true, does not change the analysis. 9 Simply “showing that the university had an
unwritten, race-to-the-dean’s-office policy . . . is not enough to support an inference of
discrimination on the basis of sex.” Haidak v. Univ. of Mass.-Amherst, 933 F.3d 56, 74 (1st Cir.
2019). In fact, Plaintiff’s allegation on this score cuts against his bias argument, as it tends to show
NYU points out that Plaintiff had previously explained in an email that he chose not to file a cross-complaint because
he “did not want to distress Jane.” Def. Facts ¶ 131; see also Metzler Decl., Ex. 33. At this stage of the proceedings,
the Court draws every reasonable inference in Plaintiff’s favor and thus credits his testimony with respect to his
motivation for not filing a timely complaint. See M.A. ex rel. H.R. v. Rockland Cnty. Dep’t of Health, 53 F.4th 29, 35
(2d Cir. 2022).
9
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“that the university pursued [Jane’s] case instead of his because [she] made the allegation first—
not because [Plaintiff’s gender] influenced the university.” 10 Id.
In a search for other evidence of supposed gender-based animus, Plaintiff next pivots to
other students charged with misconduct. He points to a spreadsheet compiled by NYU that appears
to show that some females students at the university received more lenient sanctions than some
males for engaging in the same general categories of misconduct (e.g., Relationship Violence or
Sexual Harassment). Lau Decl., Ex. 4. But categories of misconduct can encompass a broad range
of conduct with varying degrees of seriousness. And it is easy to cherry-pick out of a single broad
category one female student and one male student who received different sanctions. The real
problem is that Plaintiff “makes no effort to account for nondiscriminatory explanations of the
disparity” in sanctions, such as the different facts of specific cases. Bickerstaff v. Vassar Coll.,
196 F.3d 435, 450 (2d Cir. 1999). Without even “attempting to control for such other causes,”
Plaintiff’s assumption that gender bias affected the sanctions is “untenable.” Id.; see also Doe v.
Univ. of Denver, 952 F.3d 1182, 1193–94 (10th Cir. 2020) (“When the statistical evidence does
nothing to eliminate these obvious, alternative explanations for the disparity, an inference that the
disparity arises from gender bias on the part of the school is not reasonable”). 11
Plaintiff suggests that bias is demonstrated by “NYU’s decision to sua sponte increase the number of charges against
Plaintiff while failing to pursue any action against Jane.” Opp. at 12. It appears that what Plaintiff refers to as sua
sponte adding claims means simply accounting for misconduct uncovered during the investigation. But in any event,
Plaintiff fails to present any evidence that the alleged sua sponte increase was motivated by Plaintiff’s gender rather
than by his conduct uncovered during NYU’s investigatory process. While Jane may not have filed a formal complaint
with respect to the added charges, a formal complaint had been filed and the additional charges followed from the
investigation into that complaint.
10
Plaintiff also highlights the “lenient sanction” NYU imposed on a high-profile female professor accused of sexual
harassment to suggest that NYU bowed to public pressure to treat a female more favorably than it would have treated
a similarly situated hypothetical male. Opp. at 17. This is purely speculation. Plaintiff does not identify a similarly
situated male professor who was subject to different or worse treatment. Nor does Plaintiff identify any evidence to
suggest that NYU considered public pressure in determining the relevant sanction in that case. And, of course, that
case is not the same as Jane’s complaint against Plaintiff, which was resolved based on its unique facts. Plaintiff has
thus failed to present facts that imply that NYU acted with gender bias in other cases—let alone facts that suggest it
did so in this case.
11
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Finally, Plaintiff points to a presentation titled “The Art of working with Sexual
Misconduct Respondents,” delivered by the Assistant Director of the Office of Student Conduct at
NYU, Colleen Maeder. Lau Decl., Ex. 17. In the notes section of this presentation there is a
header for “[t]hings I’ve heard from colleagues: Negative Stereotypes.” Lau Decl., Ex. 17 at PDF
31. Under this header, there are certain statements—such as “[k]ick him out” and “[i]f he has an
attorney, it’s a sign of guilt”—that Plaintiff suggests could be evidence of gender animus against
him. Lau Decl., Ex. 17 at PDF 31; see also Def. Reply Facts ¶¶ 341–43. But these statements do
not move the needle in Plaintiff’s favor. For one thing, the header of this slide referred to “Negative
Stereotypes,” which suggests that these are stereotypes that one should avoid. Moreover, Maeder
testified at her deposition that she did not hear these comments from colleagues at NYU, but rather
that these were general “stories” from “people across the country who work in the profession.”
Metzler Decl., Ex. 85 (“Maeder Dep.”) at 96:8–20. Plaintiff has offered no evidence to rebut that
testimony. As such, this presentation does not suggest that anyone at NYU (let alone anyone
involved in Plaintiff’s proceedings) had discriminatory intent.
At bottom, Plaintiff has pointed to no evidence that plausibly would support his claim that
gender played a role, much less a discriminatory role, in the treatment of Jane’s complaint and
Plaintiff’s post-expulsion complaint.
As such, he fails to make out a prima facie gender
discrimination case of either selective enforcement or erroneous outcome, and NYU is entitled to
summary judgment on the Title IX claims.
II.
STATE AND CITY LAW CLAIMS
Although Plaintiff has no federal claim that survives summary judgment, his state and city
law claims arise from the same facts and rely on the same evidence as his federal claims, and as a
result, this Court retains discretion to exercise supplemental jurisdiction over those claims. See 28
U.S.C. § 1367(a); Briarpatch Ltd., L.P. v. Phoenix Pictures, Inc., 373 F.3d 296, 308 (2d Cir. 2004)
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(noting that supplemental jurisdiction exists where pendent claims share a “common nucleus of
operative fact” with federal claims) (internal quotation marks omitted)). Given the substantial
resources already expended by the parties in developing, and the Court in reviewing, the
voluminous factual record and the numerous legal arguments in this case, the Court’s exercise of
supplemental jurisdiction over Plaintiff’s pendent claims is warranted. See Motorola Credit Corp.
v. Uzan, 388 F.3d 39, 56 (2d Cir. 2004).
A. NYCHRL CLAIM
To plead a discrimination claim under the NYCHRL, a plaintiff must allege only that he
was “treated less well . . . because of a discriminatory intent.” 12 Syeed v. Bloomberg L.P., 568 F.
Supp. 3d 314, 321 (S.D.N.Y. 2021). While courts have considered the NYCHRL standard to be
more “liberal than the corresponding federal and state law standards,” id., “it still requires a
showing of some evidence from which discrimination can be inferred,” Ben-Levy v. Bloomberg,
L.P., 518 F. App’x 17, 20 (2d Cir. 2013) (emphasis added). Here, Plaintiff’s NYCHRL claim is
“indistinguishable from” his Title IX claims because, for the reasons stated above, he “fails to
point to any evidence from which a reasonable jury could conclude that [NYU] was motivated by
discrimination.” Id. (emphasis added). Accordingly, Plaintiff’s city law claim must fail too.
B. Promissory Estoppel Claim
Plaintiff brings a common law claim of promissory estoppel based on the alleged promise
by his Respondent Facilitator, Allen McFarlane, that Plaintiff would not be expelled based on the
misconduct alleged in Jane’s complaint. 13 Plaintiff claims that he relied on this promise in
While the NYCHRL has traditionally been applied in the employment context, the parties do not dispute that it
properly applies in the educational context as well. The Court need not resolve this question, however, given that
Plaintiff cannot prevail on his NYCHRL claim even assuming NYCHRL applies in the context of education discipline.
12
Plaintiff’s complaint also contains allegations, within his promissory estoppel claim, that NYU breached express
and implied promises to him. AC ¶¶ 509–11. But this argument is waived because Plaintiff entirely failed to respond
in its briefing to NYU’s argument that it did not break any express or implied promises. See Def. Br. at 24; Arista
13
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deciding not to hire counsel to defend him, and that his expulsion was a direct consequence of this
decision to not vigorously defend himself.
A promissory estoppel claim brought under New York law has three elements: “[1] a clear
and unambiguous promise; [2] a reasonable and foreseeable reliance by the party to whom the
promise is made, and [3] an injury sustained by the party asserting the estoppel by reason of the
reliance.” Cacchillo v. Insmed, Inc., 551 F. App’x 592, 594 (2d Cir. 2014) (quoting Cyberchron
Corp. v. Calldata Sys. Dev., Inc., 47 F.3d 39, 44 (2d Cir. 1995)).
Plaintiff’s claim has no merit. Even assuming McFarlane made a clear and unambiguous
promise, and that Plaintiff was injured because of his reliance on that promise (both dubious
propositions), Plaintiff’s claim must fail because he cannot demonstrate that his reliance was
reasonable. The potential consequences were clear. On multiple occasions, NYU provided
Plaintiff with a copy of the Misconduct Policy, which clearly stated that violations of that policy
could result in “disciplinary action, up to and including separation from NYU.” Metzler Decl. Ex.
1, Part A at PDF 37. Plaintiff testified that he had reviewed the Misconduct Policy, and that he
was aware that expulsion was a possible sanction. Lau Decl. Ex. 3 (“Pl. Dep.”) at 110:15–11:14.
In addition, the Misconduct Policy stated that Mary Signor was “charged with monitoring
compliance with Title IX; providing education training and notifications; overseeing complaints;
and coordinating NYU’s investigation, response, and resolution of all reports under this policy.”
Metzler Decl. Ex. 1, Part A at PDF 37. It is undisputed that Plaintiff was told during his initial
meeting with Signor that he could be expelled based on the allegations in Jane’s complaint. Def.
Facts ¶ 132; Pl. Facts ¶ 132. Signor later expressed the same potential outcome in a phone call
Recs., LLC v. Tkach, 122 F. Supp. 3d 32, 39 (S.D.N.Y. 2015) (a plaintiff “waives” a claim where he fails to “oppose
specific arguments” about that issue “in a motion to dismiss” (internal quotation marks omitted)).
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Case 1:20-cv-01343-MKV Document 121 Filed 08/17/23 Page 15 of 16
with Plaintiff’s mother, when Signor explained that Plaintiff being expelled would be the worstcase scenario. Def. Facts ¶ 147; Pl. Facts ¶ 147.
It simply was not reasonable for Plaintiff to rely on statements made by McFarlane that
were in direct conflict with what Signor had told Plaintiff as early as their very first meeting.
McFarlane was Plaintiff’s appointed advisor, who had no role in adjudicating the facts of the case
or in determining a sanction. Plaintiff, according to his own deposition testimony, understood
McFarlane’s limited role from the beginning. Metzler Decl., Ex. 10 (“Pl. Dep.”) at 119:22–120:18
(“I did not think my advisor would make a determination on the sanctions . . . .”). McFarlane’s
only role was to give advice.
Plaintiff now claims that the advice given, or the prediction made, was bad or misleading.
But to the extent that any prediction made with respect to possible sanctions could be interpreted
as a promise, it was not a promise upon which it was reasonable to rely. Given the respective roles
of Signor and McFarlane (and Plaintiff’s knowledge of these roles), any supposed reliance on
statements by McFarlane was, as a matter of law, not reasonable. A person cannot reasonably rely
on a promise made by someone who has no authority to make the promise or any ability to keep
it. See Oppman v. IRMC Holdings, Inc., 14 Misc.3d 1219(A), 836 N.Y.S.2d 494 (N.Y. Sup. Ct.
2007) (“The First Department has found it neither reasonable, nor foreseeable, for plaintiff to rely
on a promise, where the individuals purportedly making the promise lacked sufficient control over
whether such promises would be honored.” (citation omitted)). In light of the undisputed fact that
McFarlane’s purported promise conflicted with the information provided by the written
Misconduct Policy and by Signor herself, Plaintiff should have known better than to rely on it.
Accordingly, Plaintiff’s remaining promissory estoppel claim fails, and NYU is entitled to
summary judgment.
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CONCLUSION
For the reasons stated above, Defendant’s motion for summary judgment is GRANTED in
its entirety. The Clerk of Court respectfully is requested to terminate the motion pending at ECF
No. 85, enter judgment for NYU, and close the case.
SO ORDERED.
Dated: August 17, 2023
New York, New York
_____________________________________
MARY KAY VYSKOCIL
United States District Judge
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