Aslin et al v. University of Rochester et al
ORDER granting in part and denying in part 13 Motion to Dismiss for Failure to State a Claim and denying 13 Motion to Strike under Federal Rule of Civil Procedure 12(f). The plaintiffs shall file an amended complaint regarding those claims that survive the defendants' motion and that complies with Federal Rules of Civil Procedure 8 and 10, consistent with this decision and order. SO ORDERED. Signed by Hon. Lawrence J. Vilardo on 8/28/2019. (AMD)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
RICHARD ASLIN, KETURAH BIXBY,
JESSICA CANTLON, BENJAMIN
HAYDEN, SARAH HEILBRONNER,
CELESTE KIDD, BRADFORD MAHON,
ELISSA NEWPORT and STEVEN
DECISION & ORDER
UNIVERSITY OF ROCHESTER, JOEL
SELIGMAN, and ROBERT CLARK,
On December 8, 2017, the plaintiffs filed this action, claiming that the defendants
violated 42 U.S.C. § 2000e et seq. (“Title VII”); violated N.Y. Exec. Law § 292 et seq.
(“NYSHRL”); violated 20 U.S.C. § 1681(a) et seq. (“Title IX”); breached a contract; and
defamed them. Docket Item 1. On February 5, 2018, the defendants moved to dismiss
the complaint under Federal Rule of Civil Procedure 12(b)(6). Docket Item 13. In the
alternative, the defendants asked this Court to strike all immaterial, impertinent, and
scandalous allegations and to require the plaintiffs to re-plead any counts that are not
dismissed in accordance with Federal Rules of Civil Procedure 8 and 10. Id. The
plaintiffs responded on March 16, 2018, Docket Item 20, and the defendants replied on
April 6, 2018, Docket Item 24. This Court heard oral argument on April 23, 2018, and
permitted the parties to file supplemental briefs. Docket Item 26. They both did so.
Docket Items 25, 28.
At its core, the parties’ dispute involves the conduct of Dr. Florian Jaeger—an
assistant professor, and later full professor, in the Brain and Cognitive Sciences
Department (“BCS”) at the University of Rochester (the “University” or “UR”)—and the
University’s response to complaints about his conduct. At 192 pages, the complaint is
exhaustive and includes a myriad of allegations about Jaeger’s conduct and the
inadequacy of the University’s response. The Court assumes the parties’ familiarity with
the factual allegations and will summarize the story told in the complaint only briefly.
This decision and order then will address each claim and refer to the allegations only as
necessary to the Court’s decision.
In sum and substance, the complaint tells the following story. 1
Jaeger joined BCS in 2007, Docket Item 1 at ¶ 73, and almost immediately
started behaving as a “serial sexual predator.” Id. at ¶¶ 41, 74. Among other things, he
pried into female students’ sex lives, id. at ¶ 107; used overtly sexual language, id. at ¶
108; and publicly discussed the sexual attractiveness of female colleagues, id. at ¶ 113.
These and many other things he did created a hostile environment for women. Id. at ¶¶
The plaintiffs are a group of students and employees at BCS, both current and
former, who tried to do something about Jaeger’s conduct. They first complained in
In deciding a motion to dismiss a complaint for failure to state a claim under
Federal Rule of Civil Procedure 12(b)(6), the court accepts as true all plausible factual
allegations, drawing reasonable inferences in the plaintiff’s favor. See Sharkey v.
Quarantillo, 541 F.3d 75, 83 (2d Cir. 2008); Chambers v. Time Warner, Inc., 282 F.3d
147, 152 (2d Cir. 2002).
November 2013, when Keturah Bixby, a BCS Ph.D. student, formally advised Greg
DeAngelis, Ph.D., the Chair of BCS since 2010, about female students’ “toxic
experiences with Jaeger” and “that his regular pattern of behavior was causing major
problems for female students.” Id. at ¶ 160.
A few years later, in March 2016, Richard Aslin, Ph.D., and Jessica Cantlon,
Ph.D., the two most senior faculty members at BCS, made allegations of sexual
harassment to the University’s counsel. Id. at ¶ 186-87. That complaint prompted an
investigation by Catherine Nearpass, Associate Counsel for Employment and Labor
relations at UR. Id. at ¶ 188-98. Attorney Nearpass then issued a report (the “Nearpass
Report”) which cleared Jaeger of any wrongdoing, but the plaintiffs contend that it was
inadequate in several ways. Id. at ¶¶ 211-51.
Indeed, soon after the Nearpass Report was issued, Celeste Kidd, Ph.D., one of
the plaintiffs, complained that it had “named and shamed her” in retaliation for speaking
out. Id. at ¶ 262. Therefore, in July 2016, the University hired outside counsel, Cynthia
Maxwell Curtin, to investigate Kidd’s claim that the Nearpass Report amounted to
retaliation against her. Id. Attorney Curtin then prepared another report (the “Curtin
Report”), finding that Nearpass did not “mitigate” the risk that her report could result in
retaliation or “follow up with Kidd to explore what kind of retaliation she expected.” Id.
at ¶ 267. But the University rejected that aspect of Curtin’s findings without explanation.
As the plaintiffs tell it, things then went from bad to worse. In July 2016, BCS
faculty received a memo aimed at silencing their continued pursuit of action against
Jaeger. Id. at ¶ 254. Provost Robert Clark circulated a memo calling the accusations
against Jaeger rumors and misinformation. Id. at ¶ 288. The University fostered a
narrative that the plaintiffs had violated confidentiality by speaking out about Jaeger’s
conduct. See, e.g., id. at ¶ 382(f). Many of the plaintiffs were shamed for their actions
at BCS faculty meetings. See id. at ¶¶ 303, 310. Plaintiffs Aslin and Ben Hayden,
Ph.D., both left their faculty positions at the University, and BCS did not hire plaintiff
Sarah Heilbronner, Ph.D., when she completed her graduate studies.
The plaintiffs argue that these actions and others breached their employment
contracts and amounted to retaliation by the University for their attempts to address
Jaeger’s conduct. For the plaintiffs who remained, the University limited their
professional and educational opportunities. See, e.g., id. at ¶¶ 335-36. They argue that
this, too, was retaliation, and they also argue that it created a hostile work and
The plaintiffs also allege that Joel Seligman, President of the University, and
other University officials including DeAngelis made defamatory statements that
impugned the plaintiffs’ reputation for honesty as academics. For example, Seligman
compared the plaintiffs’ allegations to allegations about the University of Virginia that
had been reported in a later-discredited Rolling Stone article. Id. at ¶ 523. As a result,
the plaintiffs were portrayed as dishonest—both to their faculty colleagues, id. at ¶ 518,
and in the wider academic community, id. at ¶ 521.
Between August 2017 and November 2017, the plaintiffs filed charges of
retaliation and employment discrimination with the Equal Employment Opportunity
Commission (“EEOC”). Id. at ¶¶ 17-32. On September 1, 2017, the University
appointed a special committee and hired outside counsel to investigate all matters
involving the EEOC complaints. Id. at ¶ 48. Still dissatisfied, the plaintiffs filed this
action on December 8, 2017.
To survive a motion to dismiss, a complaint must include sufficient factual matter,
accepted as true, to “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 547 (2007). “A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for
more than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting
Twombly, 550 U.S. at 557).
Because it involves employment discrimination, this retaliation case invokes the
long-established pleading requirements of Title VII.2 McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973), and its progeny establish what plaintiffs alleging
employment discrimination must demonstrate as their case progresses. First, the
plaintiffs must establish a prima facie case of discrimination or retaliation. See Hicks v.
Baines, 593 F.3d 159, 164 (2d Cir. 2010). If the plaintiffs sustain this initial burden, a
presumption arises, see id.; Jute v. Hamilton Sundstrand Corp., 420 F.3d 166, 173 (2d
Cir. 2005), and the defendants must then articulate a legitimate, non-discriminatory
reason for the adverse employment action. See Hicks, 593 F.3d at 164. If the
“Retaliation claims under Title VII are evaluated under [the same] three-step
burden-shifting analysis.” Hicks, 593 F.3d at 164 (quoting Jute v. Hamilton Sundstrand
Corp., 420 F.3d 166, 173 (2d Cir. 2005)).
defendants do so, the plaintiffs have the ultimate burden to show that the legitimate
reason was a pretext and that unlawful discrimination or retaliation was a substantial
reason for the adverse employment action. See id. at 164-65.
In Swierkiewicz v. Sorema, 534 U.S. 506 (2002), the Supreme Court found that
the McDonnell Douglas line of cases establish an evidentiary standard, not a pleading
requirement, and that a plaintiff alleging discrimination needed only “give the defendant
fair notice of what the plaintiff’s claim is and the grounds upon which it rests.”
Swierkiewicz, 534 U.S. at 512. “Reading Swierkiewicz on its face, it appears to have
meant that a Title VII plaintiff is not required to plead facts supporting even a minimal
inference of discriminatory intent.” Littlejohn v. City of New York, 795 F.3d 297, 309 (2d
Cir. 2015). While it is unclear how the plausibility standard of Twombly and Iqbal apply
to complaints in the McDonnell Douglas framework, the Second Circuit has concluded
“that Iqbal's requirement applies to Title VII complaints of employment discrimination,
but does not affect the benefit to plaintiffs pronounced in the McDonnell Douglas
quartet.” Id. at 310. Therefore, “at the initial stage of the litigation—prior to the
employer's coming forward with the claimed reason for its action—the plaintiff does not
need substantial evidence of discriminatory intent” but only enough to sustain “a
minimal burden of showing facts suggesting an inference of discriminatory motivation.”
Id. at 311 (emphasis in original).
Almost all the plaintiffs—Richard Aslin, Jessica Cantlon, Benjamin Hayden,
Sarah Heilbronner, Celeste Kidd, Bradford Mahon,3 Elissa Newport, and Steven
Piantadosi (together, the “Retaliation Plaintiffs”)—bring claims against UR for retaliation.
They assert that the University retaliated against them because they engaged in
protected activities and that the University thus violated Title VII, Title IX, and the New
York State Human Rights Law (“NYSHRL”).4 But the allegedly retaliatory actions differ
from plaintiff to plaintiff.
Title VII includes an explicit anti-retaliation provision. 42 U.S.C. § 2000e-3
provides that “[i]t shall be an unlawful employment practice for an employer to
discriminate against any of his employees or applicants for employment . . . because he
has opposed any practice made an unlawful employment practice by this subchapter
. . . or because he has made a charge . . . under this subchapter.” To establish
retaliation, a plaintiff must allege “(1) participation in a protected activity; (2) that the
defendant knew of the protected activity; (3) an adverse employment action; and (4) a
Mahon is the only retaliation plaintiff who does not bring a claim under the
NYSHRL. See Docket Item 1 at 166, Count VII. The Court assumes that this omission
from the heading of Count VII is an oversight because Mahon is among the plaintiffs
who bring claims for aiding and abetting retaliation under the NYSHRL in Counts XV
and XVI. Id. at 189-90.
Courts apply the same framework for retaliation claims under Title VII, Title IX,
and the NYSHRL. See, e.g., Murray v. New York Univ. Coll. of Dentistry, 57 F.3d 243,
248 (2d Cir. 1995); Forrest v. Jewish Guild for the Blind, 3 N.Y.3d 295, 313 (2004).
Therefore, this Court will address the plaintiffs’ retaliation claims under all three statutes
causal connection between the protected activity and the adverse employment action.”
Hicks, 593 F.3d at 164 (internal quotations omitted). Retaliation claims under Title VII
are analyzed under the three-step McDonnell Douglas burden-shifting evidentiary
framework. See id.
At the motion to dismiss stage, the complaint benefits from the “temporary
presumption” of retaliation and “must be viewed in light of the plaintiff’s minimal burden
to show discriminatory intent.” Littlejohn, 795 F.3d at 311. “The facts alleged must give
plausible support to the reduced requirements that arise under McDonnell Douglas in
the initial phase of a Title VII litigation.” Id. That is, they must give “plausible support” to
“a minimal inference of discriminatory motivation,” not to the “ultimate question of
whether the adverse employment action was attributable to discrimination.” Id.
The University argues that the Retaliation Plaintiffs have not plausibly pleaded
facts that support the third element of a retaliation claim: that the Retaliation Plaintiffs
suffered a materially adverse employment action.5 Docket Item 13-1 at 2. According to
the University, criticism, violating confidentiality, viewing the plaintiffs’ emails, calling for
an independent investigation, permitting Jaeger to participate in performance
evaluations, failing to retain or hire a plaintiff, hindering the plaintiffs’ efforts to move to
other institutions, and excluding the plaintiffs from meetings are not adverse
employment actions. Id.
The University also implicitly contests the fourth element of a retaliation claim,
causal connection between the protected activity and the adverse employment action,
when it argues that the plaintiffs suffered no adverse employment action. But neither
the briefs nor oral argument focused on causation. In any event, the question of
causation is most often one for a jury. See, e.g., Hendricks v. Office of Clermont Cty.
Sheriff, 326 F. App’x. 347, 351 (6th Cir. 2009) (“Difficult causation questions . . . are
eminently appropriate for finders of fact to resolve”).
Title VII’s “antiretaliation provision protects an individual not from all retaliation,
but from retaliation that produces an injury or harm.” Burlington N. & Santa Fe Ry. Co.
v. White, 548 U.S. 53, 67 (2006). “[T]rivial harms” or “petty slights or minor
annoyances” do not constitute actionable adverse acts. Tepperwien v. Entergy Nuclear
Operations, Inc., 663 F.3d 556, 568 (2d Cir. 2011) (internal quotation marks omitted).
The harm must be “more than de minimis,” Zelnik v. Fashion Inst. of Tech., 464 F.3d
217, 226 (2d Cir. 2006), and often includes “termination, demotion, or the material loss
of wages, benefits, or job responsibilities,” McCullough v. Xerox Corp., 942 F. Supp. 2d
380, 387 (W.D.N.Y. 2013). Still, “[a]lleged acts of retaliation must be evaluated both
separately and in the aggregate, as even trivial acts may take on greater significance
when they are viewed as part of a large course of conduct.” Tepperwien, 663 F.3d at
568; see also Massaro v. Dep’t of Educ., 2019 WL 2183483, at *3 (2d Cir. May 21,
2019) (“Although some of the conditions [the plaintiff] complains of, considered
individually, might reasonably be tolerated by many teachers, the allegation of their
combination, alleged to have been imposed only on her, suffices to survive a motion to
dismiss.”) (summary order).
To establish adverse employment action, “a plaintiff must show that a reasonable
employee would have found the challenged action materially adverse,” which in the
retaliation context “means it well might have dissuaded a reasonable worker from
making or supporting a charge of discrimination.” White, 548 U.S. at 68 (internal
quotations omitted). The White Court construed “materially adverse action broadly to
include changes in employment life outside of the terms and conditions of employment.”
Millea v. Metro-North R. Co., 658 F.3d 154, 164 (2d Cir. 2011) (internal quotations
omitted). The Court did so to fulfill the purpose of Title VII’s anti-retaliation provision:
“preventing employers from deterring their employees from exercising their legitimate
legal rights.” Id. (quoting White, 548 U.S. at 68).
“[T]he significance of any given act of retaliation will often depend upon the
particular circumstances. Context matters.” White, 548 U.S. at 69. “The materiality of
an adverse employment action ‘depends upon the circumstances of the particular case,
and should be judged from the perspective of a reasonable person in the plaintiff's
position, considering all the circumstances.’” Dansler-Hill v. Rochester Inst. of Tech.,
764 F. Supp. 2d 577, 582 (W.D.N.Y. 2011) (quoting Kessler v. Westchester Cty. Dep't
of Soc. Servs., 461 F.3d 199, 209 (2d Cir. 2006)). For example,
[a] supervisor's refusal to invite an employee to lunch is normally trivial, a
nonactionable petty slight. But to retaliate by excluding an employee from a weekly
training lunch that contributes significantly to the employee's professional
advancement might well deter a reasonable employee from complaining about
White, 548 U.S. at 69. Thus, the standard is an objective one that accounts for the
plaintiff’s position and circumstances.
The Retaliation Plaintiffs have pleaded many retaliatory actions. According to the
University, none of them amount to adverse employment action. For certain allegations,
the University may be correct because they are trivial. Docket Item 1 at 150. But others
The Retaliation Plaintiffs allege that criticism of them and their complaints often
amounted to retaliatory adverse employment action. For example, they cite a memo
dated July 26, 2016, in which Dr. Peter Lennie, Dean of Faculty and former Provost,
and Gloria Culver, the Dean of Arts and Sciences, characterize complaints against
Jaeger as “rumors” and “gossip.” See, e.g., Docket Item 1 at ¶ 382(a). Along the same
lines, all the Retaliation Plaintiffs except Heilbronner claim that President Seligman told
department heads that the plaintiffs’ complaints were hearsay. See, e.g., id. at ¶ 382(j).
The same group says it was clear that DeAngelis was referring to the plaintiffs when he
made statements at faculty meetings that some faculty had spread rumors. See, e.g.,
id. at ¶ 382(c). All the Retaliation Plaintiffs except Hayden and Heilbronner also claim
that the University “creat[ed] . . . the narrative that Aslin and other Plaintiffs have
violated confidentiality by engaging in protected activity,” such as reporting and
opposing sexual harassment. See, e.g., id at ¶ 382(f).
The University argues that mere criticism like this cannot amount to materially
adverse employment action. According to UR, “[n]egative or otherwise insulting
statements are hardly even actions, let alone ‘adverse actions.’” Docket Item 13-1 at 10
(quoting Bickerstaff v. Vassar Coll., 354 F. Supp. 2d 276, 280 (S.D.N.Y. 2004)).
The core question is whether, in the context of the plaintiffs’ circumstances, the
challenged actions “might well have ‘dissuaded a reasonable worker from making or
supporting a charge of discrimination.’” White, 548 U.S. at 68 (quoting Rochon v.
Gonzales, 438 F.3d 1211, 1219 (D.C. Cir. 2006)). “The social environment in a
workplace can prove to be a powerful motivator; fear of employer-sponsored isolation
might well influence an employee’s decision whether to make or support a charge of
discrimination.” Flowers v. Northern Middlesex YMCA, 2016 WL 1048751, at *8 (D.
Conn. Mar. 11, 2016) (internal quotations and alterations omitted). Furthermore,
unwarranted criticism may diminish future employment prospects by damaging a
plaintiff’s reputation. See Wanamaker v. Columbian Rope Co., 108 F.3d 462, 466 (2d
Cir. 1997) (“The terminated employee, however, may have tangible future employment
objectives, for which he must maintain a wholesome reputation.”) (emphasis in original);
Frontline Commc’ns Int’l, Inc. v. Sprint Commc’ns Co., 374 F. Supp. 2d 368, 371
(S.D.N.Y. 2005). And if criticism damages the plaintiffs’ reputations and employment
prospects—as it plausibly could for academics in a focused niche of scientific
research—that criticism indeed might well deter a reasonable employee from engaging
in protected activity and thus constitute adverse employment action.6 See White, 548
U.S. at 68. The criticism here meets that standard, at least at the pleading stage.
The University argues that several of the plaintiffs have not plausibly pleaded
that they suffered any adverse employment action because they have secured other
employment. See, e.g., Docket Item 13-1 at 18. This argument fails at the pleading
stage because the plaintiffs have alleged reputational damage, Docket Item 1 at ¶¶ 53032, which might have adversely affected their new positions or which might well still
affect their ability to seek employment down the road.
The allegations amount to adverse employment action for another reason: the
alleged incidents are not isolated or one-off insults. On the contrary, the plaintiffs allege
a pattern of them at the University. And even if some of the actions alone might not be
sufficient, in combination they plausibly amount to material adverse employment action.
See Massaro, 2019 WL 2183483, at *3; Tepperwien, 663 F.3d at 568; Timothy v. Our
Lady of Mercy Med. Ctr., 2004 WL 503760, at *6 (S.D.N.Y. Mar. 12, 2004) (“Even if
none of the actions that a plaintiff alleges could individually be characterized as
adverse, a series of actions taken against a plaintiff may, in the aggregate, constitute
Furthermore, the Retaliation Plaintiffs assert that those who complained faced
disqualification from serving as ombudspersons, exclusion from department meetings
and discussions on hiring, increased workloads, exclusion from faculty dinners,
accusations about causing Jaeger to be disinvited from speaking at a conference, and
accusations about harming students’ careers. Docket Item 1 at ¶¶ 39, 315-18. That
context matters. In such an environment, calling the plaintiffs liars, bullies, deceivers,
etc., may well amount to material adverse employment action. Therefore, the
Retaliation Plaintiffs have plausibly pleaded a claim for relief.
2. Breach of Confidentiality
Aslin, Cantlon, and Kidd allege that the University retaliated against them by
breaching their confidentiality during the course of investigating Jaeger’s conduct. Aslin
and Cantlon claim that UR did that by allowing Kidd to view the Nearpass Report.
Docket Item 1 at ¶¶ 382(g), 403(a). Kidd, in turn, claims that the University violated her
confidentiality “by not protecting disclosure of her name as one of the witnesses to
Jaeger’s misconduct in the Nearpass Report.” Id. at ¶ 410(a).
Again, the University responds that because these are not material adverse
employment actions, they cannot support a claim of retaliation. Docket Item 13-1 at 11.
And the question again is whether the alleged UR conduct “well might have dissuaded a
reasonable worker from making or supporting a charge of discrimination” in light of the
context of the particular circumstances. White, 548 U.S. at 68 (internal quotations
The University cites Bowles v. New York City Transit Auth., 2006 WL 1418602, at
*6 (S.D.N.Y. May 23, 2006), a case in which the disclosure of confidential information
about the plaintiff’s medical status was found not to have been material adverse
employment action. But even if this Court agreed with the conclusion in Bowles—
reached on a motion for summary judgment, not a motion to dismiss—the confidential
information here is different.
Here, the confidential information itself involved the fact that Aslin, Cantlon, and
Kidd participated in protected conduct: reporting and opposing alleged discrimination
and harassment. And in Kidd’s case, it was the fact that she witnessed Jaeger’s
conduct. The fact that an employee experienced harassment or engaged in protected
conduct opposing harassment may, in fact, be the very sort of sensitive information the
publication of which is most likely to discourage an employee from engaging in
protected conduct. See White, 548 U.S. at 68. “The threat of dissemination of
derogatory private information, even if true, would likely deter any reasonable employee
from pursuing a complaint against his employer.” See Ray v. Ropes & Gray LLP, 961 F.
Supp. 2d 344, 360 (D. Mass. 2013), aff’d 799 F.3d 99 (1st Cir. 2015) (holding that
publication of an EEOC determination could constitute a retaliatory adverse
employment action). Therefore, the alleged disclosure is plausibly an adverse
employment action—again, at least at the pleading stage. See White, 548 U.S. at 68.
3. Email Surveillance
All the Retaliation Plaintiffs except Heilbronner allege that the University
searched their emails and that this amounted to adverse employment action. Docket
Item 1 at ¶¶ 308, 382(c), 396(a), 403(d), 410(h), 418(d), 426(b), 433(b). The University
argues that this cannot be material adverse employment action because UR policy
permits such searches. Docket Item 13-1 at 12.
The University’s argument misses the point. The plaintiffs pleaded not only that
their emails were searched but that they were searched—and the plaintiffs targeted—
solely as a result of protected conduct. See, e.g., Docket Item 1 at ¶¶ 307-10, 317,
382(c) (“emails proving that they had spread rumors, deceived and manipulated
people.”). Even permitted conduct may be adverse employment action if it is done
solely to harass and retaliate. Francis v. Am. Tel. & Tel. Co., Long Lines Dep't, 55
F.R.D. 202, 207 (D.D.C. 1972) (“Contemporaneously with those instructions the
defendant began and applied to plaintiff a pattern of oppressive supervision, constant
surveillance and special conditions of employment that was not applied to other
employees in the group who, except for the filing of the EEOC complaint, were similarly
situated.”); see also Yartzoff v. Thomas, 809 F.2d 1371, 1377 (9th Cir. 1987) (summary
judgment was inappropriate when “evidence in the record raises questions about
whether [the plaintiff’s] supervisors harassed and closely watched him during the period
in question. If proven at trial, such incidents would bear on the pretext issue.”). What is
more, the plaintiffs allege that these emails were used against them at a faculty
meeting. See, e.g., Docket Item 1 at ¶ 382(c). This Court is persuaded that email
searches targeting complainants so as to discredit them would dissuade a reasonable
employee from engaging in protected conduct. See White, 548 U.S. at 68. Therefore,
the plaintiffs have plausibly alleged that the email searches constituted materially
adverse employment action.
4. Independent Investigation
All the Retaliation Plaintiffs except Heilbronner allege that the University
retaliated against them by initiating an investigation. Docket Item 1 at ¶¶ 382(l)-(m),
396(e)-(f), 403(p)-(q), 410(r)-(s), 418(l)-(m), 426(l)-(m), 433(k)-(l). For example, Aslin
argues the University retaliated against him by beginning an investigation that required
his participation to “complete properly” despite “knowing that he could not participate
while his legal claims against the University [were] pending.” Id. at 382(l). He further
alleges that the University framed his “inability to participate . . . as a failure of
cooperation by him, with the result that his character in the UR community has been
impugned.” Id. at 382(m).
The University argues that the plaintiffs “may not claim retaliation simply because
the employer under[took] a factfinding investigation.” Cox v. Onondaga Cty. Sheriff's
Dep't, 760 F.3d 139, 147 (2d Cir. 2014) (affirming summary judgment dismissing
complaint); Docket Item 13-1 at 12. That may be especially so absent “additional
particularized facts evidencing a retaliatory intent and resulting in, or amounting to,
adverse job consequences for the complainant.” Cox, 760 F.3d at 146. Nevertheless,
“an employer's investigation may constitute a cognizable retaliatory action if carried out
so as to result in a hostile work environment, constructive discharge, or other
employment consequences of a negative nature, or if conducted in such an egregious
manner as to dissuade a reasonable worker from making or supporting a charge of
discrimination.” Id. at 147 (internal quotations omitted); see also King v. Holder, 77 F.
Supp. 3d 146, 151-52 (D.D.C. 2015) (finding that initiation of an investigation was
adverse employment action when it delayed the plaintiff’s career advancement).
Here, the plaintiffs have alleged enough to meet that standard. For example, the
plaintiffs allege that UR knew they could not participate in the investigation, see, e.g.,
Docket Item 1 at 382(l), and used the investigation precisely to “impugn” their
character, see, e.g., id. at 382(m). That may well be an adverse consequence that
would dissuade an employee from making a charge of discrimination. Therefore, the
plaintiffs have plausibly pleaded a claim of retaliation through this adverse employment
5. Jaeger’s Participation in Performance Evaluations
Kidd and Piantadosi both claim that the University retaliated against them by
allowing Jaeger to participate in their performance evaluations in February and March
2017. Docket Item 1 at ¶¶ 410(l), 418(c). The University responds that Jaeger’s
participation does not establish that Kidd or Piantadosi suffered any material adverse
consequences. Docket Item 13-1 at 12-13.
But the plaintiffs allege more than the University acknowledges. Specifically, the
plaintiffs allege that they told the administration about their fear that Jaeger would be
involved in their future performance reviews, but that despite promises to the contrary,
Jaeger was allowed to participate in reviewing their performance. Docket Item 1 at ¶¶
285-86. “Jaeger used the reviews as a further opportunity to retaliate.” Id. at ¶ 287.
“He spoke in support of a suggestion from another faculty member that Kidd’s
evaluation should contain a criticism that most of her publications so far were
collaborative.” Id. In doing so, he helped “introduce a nonsensical criticism of Kidd into
her official record”—“nonsensical” because Kidd and her superior saw her collaboration
as a strength. Id. According to the plaintiffs, Jaeger’s participation negatively affected
Kidd’s performance review. Id.
A negative performance review is precisely the sort of “injury or harm” that would
“dissuad[e] a reasonable worker from making or supporting a charge of discrimination.”
White, 548 U.S. at 67, 68; see also Ibok v. Sec. Indus. Automation Corp., 369 F. App'x.
210, 214 (2d Cir. 2010) (“[W]e conclude that a reasonable jury could find that the
warnings and negative performance review were, at least in part, retaliatory.”). In the
context of academia, a jury could reasonably find scholarly criticism that is harsher
because of the target’s complaints to be adverse employment action. See Kovacevich
v. Vanderbilt Univ., 2010 WL 1492581, at *17 (M.D. Tenn. Apr. 12, 2010) (“Plaintiff
produced evidence to raise genuine issues of material fact about whether Dr.
Demarest's public statements and actions . . . constituted scholarly criticism of her work
or amounted to an attempt to sabotage her career.”).
Because the plaintiffs alleged that Kidd suffered the adverse consequence of a
negative performance review as a result of Jaeger’s participation, they have alleged
material adverse employment action. Jaeger’s participation alone may not suffice, but
the negative review that followed surely does. And while the plaintiffs do not plead that
Piantadosi suffered any similar consequence from Jaeger’s participation in his review,
he may still have a retaliation claim for adverse employment action against Kidd, his
spouse. See Thompson v. N. Am. Stainless, LP, 562 U.S. 170, 175 (2011) (holding that
White’s broad standard can include third-party reprisals); Docket Item 1 at ¶ 334
(pleading that Kidd and Piantadosi are married). Therefore, both Kidd and Piantadosi
have alleged adverse employment action sufficient to support their retaliation claim.
6. Failure to Retain Hayden
Cantlon, Kidd, Piantadosi, Mahon, and Hayden claim that the University
retaliated against them by failing to retain Hayden in the BCS department. They allege
the University made Hayden a “derisory offer” in order to push him out. Docket Item 1
at ¶ 433(e). Moreover, they allege that the University refused to retain Hayden knowing
that his absence would hurt the others’ research, id. at ¶¶ 410(n), 418(f), and 426(d).
The University argues that its alleged failure to increase Hayden’s compensation to
retain him cannot be materially adverse employment action. Docket Item 13-1 at 13.
On its face, an offer of a raise—even a “derisory offer”—seems at worst a trivial
harm that does not amount to adverse employment action. But again, context matters.
The plaintiffs allege that “[n]ormally, when faculty members receive outside job offers,
UR will attempt to retain them by raising their compensation either in research funding
or salary.” Docket Item 1 at ¶ 331. When Hayden received an offer from the University
of Minnesota for over $1,000,000 of research funding and postdoctoral salary funding,
however, the University delayed for months before offering him only $150,000 in
research funding plus one-and-a-half years’ postdoctoral salary funding. Id. If, as the
plaintiffs allege, an employee in Hayden’s position would have received a substantially
higher offer absent his protected conduct, this offer was a material change in Hayden’s
job status that would dissuade a reasonable employee from engaging in that sort of
conduct. See, e.g., McIntyre v. Longwood Central Sch. Dist., 658 F. Supp. 2d 400, 413
(E.D.N.Y. 2009) (“If plaintiff can demonstrate that he has been denied the same
percentage of salary increases received by other administrators because of his race
and/or gender, such denial of salary increases could constitute an ‘adverse employment
action’ under Title VII.”) (collecting cases); Moore v. Consol. Edison Co. of N.Y., 2007
WL 831807, at *6 (S.D.N.Y. Mar. 20, 2007) (“Minimal salary increases to a complaining
employee, if an intentional reduction in the range of the salary earned by comparable
employees, might well dissuade similarly situated employees from complaining of
discrimination.”). Thus, the Retaliation Plaintiffs have alleged that the “derisory offer”
made to Hayden was adverse employment action.
The plaintiffs also allege that Kidd and Piantadosi collaborated with Hayden at
the University, Docket Item 1 at ¶ 334, and expressed their concern to the
administration that Hayden was being driven away, id. at ¶ 332. Hayden’s departure
plausibly altered the conditions of their employment by depriving them of a collaborator
at a research university, a setting where colleagues are hardly fungible. In fact, the
plaintiffs allege that Kidd and Piantadosi will likely leave the University because of
Hayden’s departure. Id. at ¶ 334. Therefore, Kidd and Piantadosi have plausibly
alleged adverse employment action arising from Hayden’s departure.
But the plaintiffs have not plausibly alleged that Cantlon and Mahon suffered
adverse employment action from Hayden’s departure. The plaintiffs allege no
connection between them and Hayden; rather, they allege only that “Piantadosi
collaborates with Cantlon, who is married to Mahon.” Id. That step removed makes the
connection simply too tenuous to state a viable claim. Although they mention the “easy
collaboration the group has established,” the plaintiffs do not link Cantlon or Mahon to
Hayden in a way that could make his departure a material alteration of their conditions
of employment.7 Id. Thus, Cantlon and Mahon have failed to plead a claim for
retaliation in connection with Hayden’s departure.
7. Planned Move to RIT
Cantlon, Kidd, Piantadosi, Mahon, and Hayden allege that the University
“[s]abotage[ed] . . . [their] opportunity to move to RIT in order to continue their
collaborative research.”8 Docket Item 1 at ¶¶ 403(k), 410(p), 418(g), 426(f), 433(f).
According to the plaintiffs, the University accomplished this by saying it would charge
them “at a rate 2.5 higher than UR researchers” to continue to use the scanner at the
UR MRI center. Id. at ¶ 335. The University argues that this is not adverse employment
action because it concerns “the terms of their employment with a different prospective
employer.” Docket Item 13-1 at 14.
Title VII prohibits discrimination against both current and former employees. See
Robinson v. Shell Oil Co., 519 U.S. 337 (1997). “[P]ost-employment retaliation
[includes] ‘actions that are designed to interfere with the individual’s prospects for
The complaint connects Cantlon and Mahon to Hayden only through Cantlon’s
work with Piantadosi, who in turn collaborates directly with Hayden. Docket Item 1 at ¶
334. Although Hayden’s departure could plausibly affect the employment of Piantadosi
and Kidd, both of whom work with him, the degree of separation between Cantlon and
Mahon from collaboration with Hayden prevents a plausible inference that Hayden’s
departure caused a material alteration in Cantlon or Mahon’s conditions of employment.
RIT is the Rochester Institute of Technology, a nearby university.
employment.’” Jute, 420 F.3d at 179 (quoting EEOC Compliance Manual § 8-II(D)(2)
(May 20, 1998)). Here, although the affected plaintiffs remained employed by the
University during the alleged “sabotage,” they allege that action affected their prospects
for future employment in a highly specialized field because they could not pursue their
research at another local institution that depended on the University’s equipment.
What is more, the plaintiffs allege that the University targeted them for
unfavorable treatment if and when their employment ended. They allege that “[t]radition
and common practice at UR about MRI access, use, and hourly fees paid by faculty
from outside UR has been to treat them like UR faculty . . . [and to have them] pay
hourly fees comparable to what UR faculty paid.” Docket Item 1 at ¶ 336. But the
University said it would charge the plaintiffs more than twice as much. Id. at ¶ 335.
Surely, a reasonable employee would be dissuaded from complaining about
discrimination if he or she expected to be singled out for unfavorable treatment in the
event he or she contemplates leaving the institution. At the pleading stage, this
8. Exclusion from Meetings
Cantlon, Kidd, Piantadosi, and Mahon allege that they were excluded from BCS
meetings and discussions about whether to hire Heilbronner. Docket Item 1 at
¶¶ 403(h), 410(m), 418(h), 426(g). The University argues that such exclusion from
meetings is not materially adverse employment action. Docket Item 13-1 at 14.
But exclusion from meetings can indeed be adverse employment action,
especially in the context of other retaliatory actions. Vogel v. CA, Inc., 662 F. App'x. 72,
76 (2d Cir. 2016) (testimony that employer was “hostile toward him on team conference
calls, made jokes about him in front of his colleagues, and removed him from meetings
. . . was sufficient to support a prima facie case that [the plaintiff] was subjected to
adverse employment action”) (summary order). That may be especially so when the
meetings address issues that affect the conditions of the plaintiffs’ employment. Lee v.
City of Corpus Christi, 749 F. Supp. 2d 521, 541 (S.D. Tex. 2010) (“[e]xcluding plaintiff
from meetings she needed to attend in order to fulfill the obligations of her position is a
more severe act of retaliation . . . . It cannot be said as a matter of law that the
exclusion and isolation were not materially adverse.”).
Here, the plaintiffs allege that they were excluded from meetings at which their
coworkers discussed whether to hire Heilbronner. They also allege a personal and
professional interest in her hiring, both because the BCS department was a
collaborative work setting and because if Heilbronner were not hired and Hayden, her
spouse, therefore left the department, the productivity of the BCS department would be
negatively affected. Docket Item 1 at ¶ 334. Thus, the exclusion of Cantlon, Kidd,
Piantadosi, and Mahon from those department meetings may well have negatively
affected their collaboration opportunities and career advancement. Again, the plaintiffs
have alleged that an employee might reasonably be dissuaded from protected conduct
by what UR did and therefore have plausibly pleaded adverse employment action. See
Haire v. Bd. of Supervisors of Louisiana State Univ. Agric. & Mech. Coll., 719 F.3d 356,
367-68 (5th Cir. 2013) (“Haire has put forth modest evidence that her job has changed,
that she has been excluded from meetings, and that her pay may have been affected.
Collectively, these occurrences rise to the level of a Title VII ‘adverse employment
9. Refusal to Hire Heilbronner
Hayden and Heilbronner allege that the University’s failure to hire Heilbronner
after the conclusion of her post-doctorate fellowship was retaliatory adverse
employment action.9 Docket Item 1 at ¶¶ 433(d), 448(a)-(f). According to the
University, this was not adverse employment action because faculty members at UR
had found Heilbronner unqualified and because she was offered another position at the
University of Minnesota. Docket Item 13-1 at 15-16.
Of course, the refusal to hire can be adverse employment action. See LovejoyWilson v. NOCO Motor Fuel, Inc., 263 F.3d 208, 223 (2d Cir. 2001) (“We have defined
adverse employment action broadly to include discharge, refusal to hire, refusal to
promote, demotion, reduction in pay, and reprimand.”) (internal citations omitted and
emphasis added); Lo Re v. Chase Manhattan Corp., 431 F. Supp. 189, 195 (S.D.N.Y.
1977) (denying motion to dismiss in case where one of the plaintiffs “alleged defendants
refused to hire her in retaliation for her protests” against discriminatory hiring and
promotion practices). The University’s various arguments about the real reason
Heilbronner was not hired are more appropriate in a motion for summary judgment.
10. Newport’s Claim as a Former Employee
The University argues that Newport’s retaliation claims must fail because when
she “began engaging in protected activity, she had not been employed by UR for over
four years.” Docket Item 13-1 at 17. The plaintiffs respond that Title VII prohibits
discrimination against both current and former employees.
Hayden makes this argument because he and Heilbronner are married. See
Thompson, 562 U.S. at 175 (2011); Docket Item 1 at ¶ 330.
As mentioned above, the Supreme Court noted in Robinson, 519 U.S. at 346,
that the “primary purpose of [Title VII’s] antiretaliation provision” is “[m]aintaining
unfettered access to statutory remedial mechanisms.” While that certainly contemplates
the ability of former employees to sue when their protected conduct leads to a
retaliatory discharge, it does not follow that the antiretaliation provision must cover a
former employee who engages in protected conduct after the employment relationship
Title VII prohibits an employer from “discriminat[ing] against any of his employees
or applicants for employment . . . because he has opposed any practice made an
unlawful employment practice by this subchapter.” 42 U.S.C. § 2000e-3(a). Despite the
breadth of that language, the plaintiffs have cited no authority for the proposition that
such “oppos[ition]” by “employees or applicants for employment” can occur after the
employment relationship has ended. Id.; see Docket Item 20 at 17-18. In fact, the
weight of the case law assumes that the opposite is true. See Kouekassazo v.
Intellisource, 2017 WL 4513404, at *3 (6th Cir. Aug. 10, 2017) (“Kouekassazo has failed
to establish that he engaged in protected conduct prior to Intellisource's decision to
terminate his employment.”); Green v. Paragon Films, Inc., 814 F. Supp. 2d 1174, 1186
(N.D. Okla. 2011) (“Because plaintiff’s protected conduct occurred after the decision to
terminate his employment was final, it is not possible for plaintiff to show that his
protected activity had any causal connection to an adverse employment action.”); Ricks
v. Conde Nast Pubs., Inc., 92 F. Supp. 2d 338, 347 (S.D.N.Y. 2000) (“Ricks cannot
establish a causal connection between these activities and her termination, however,
because prior to her attorney’s letter Conde Nast had taken clear steps towards Ricks’
termination.”). Because Newport was no longer employed by UR after 2012 and began
engaging in protected activities in March 2016, Docket Item 1 at ¶¶ 393, 394, she has
not plausibly pleaded that these protected activities resulted in some adverse
employment action. Therefore, the defendant’s motion to dismiss Newport’s retaliation
claim is granted.
AIDING AND ABETTING RETALIATION
The Retaliation Plaintiffs10 also bring claims against Seligman and Clark
individually for aiding and abetting retaliation under the NYSHRL. Docket Item 1 at 18991. The defendants argue that none of the underlying conduct by any defendant
amounts to retaliation and that even if it did, the plaintiffs have not alleged the personal
involvement of Seligman or Clark. Docket Item 13-1 at 19.
The NYHRL provides that it is an unlawful discriminatory practice “for any person
to aid, abet, incite, compel[,] or coerce the doing of any of the acts forbidden” by that
law. N.Y. Exec. Law § 296(6). “[A]n individual defendant may be held liable under the
aiding and abetting provision of the NYSHRL if he ‘actually participates in the conduct
giving rise to a discrimination claim.’” Rojas v. Roman Catholic Diocese of Rochester,
660 F.3d 98, 107 n.10 (2d Cir. 2011) (quoting Tomka v. Seiler Corp., 66 F.3d 1295,
1313 (2d Cir. 1995), abrogated on other grounds by Burlington Ind. v. Ellerth, 524 U.S.
742 (1998)); see also Patrick v. Garlick, 66 F. Supp. 3d 325, 332 (W.D.N.Y. 2014)
(denying motion to dismiss NYSHRL claims against supervisor because plaintiff
As the defendants note, Heilbronner is not listed in the heading of either count
for aiding and abetting retaliation. See Docket Item 1 at 189. This apparent oversight is
irrelevant, however, because Heilbronner is listed in the paragraphs pleading
substantive acts of aiding and abetting retaliation. See id. at ¶¶ 535, 538.
adequately alleged that supervisor aided and abetted discrimination and retaliation)
Here, the plaintiffs allege various ways in which Seligman actually participated in
retaliation by the University.11 For example,12 the plaintiffs allege that Seligman
“[a]uthorized or permitt[ed] the searching of the Plaintiffs’ emails.” Docket Item 1 at
¶ 535(e). The complaint alleges facts that support the plausibility of Seligman’s actual
participation in this alleged retaliation, too. “UR administrators” allegedly provided
DeAngelis with a stack of the plaintiffs’ emails, id. at ¶ 307, and those familiar with the
University’s IT practices believe that Seligman’s approval would have been necessary
to search the plaintiffs’ emails, id. at ¶ 342. At the very least, that raises an issue of fact
at the pleading stage.
The plaintiffs also allege that both Seligman and Clark “[p]ermitt[ed] and/or
instruct[ed] UR administration to encourage Plaintiffs’ departure from UR and not to
retain them.” Id. at ¶¶ 535, 538. And they allege that the decision to “force out the
troublesome Plaintiffs came from the top – meaning Seligman and Clark.” Id. at ¶ 40.
Construing these allegations in the light most favorable to the plaintiffs, and drawing all
To the extent that the individual defendants argue that the plaintiffs have not
stated a claim against them as aiders and abettors because they have not stated a
claim against the principal, the University, that argument is rejected for the reasons
noted above, except as to Newport. Because Newport has not alleged a viable
retaliation claim against the University, her claims for aiding and abetting retaliation
must be dismissed as well. See DeWitt v. Lieberman, 48 F. Supp. 2d 280, 293
(S.D.N.Y. 1999) (“liability must first be established as to the employer/principal before
accessorial liability can be found as to an alleged aider and abettor.”).
The specific allegations discussed in this decision and order are examples of
how the plaintiffs have plausibly alleged claims, not an exhaustive list of the viable
reasonable inferences from them, this Court finds that they adequately state a claim
against Seligman and Clark as aiders and abettors under the NYSHRL.
HOSTILE WORK ENVIRONMENT
“[A] plaintiff may establish a violation of Title VII by proving that discrimination
based on sex has created a hostile or abusive work environment.” Meritor Sav. Bank,
FSB v. Vinson, 477 U.S. 57, 66 (1986). To create an actionable hostile work
environment claim, the sexual harassment “must be sufficiently severe or pervasive to
alter the conditions of [the victim’s] employment and create an abusive working
environment.” Id. at 67 (internal quotations omitted). The trier of fact will determine
whether such a hostile environment exists “in light of the record as a whole and the
totality of circumstances, such as the nature of the sexual advances and the context in
which the alleged incidents occurred.” Id. at 69 (internal quotations omitted). That
inquiry is both broad and case-specific. “[E]vidence of harassment directed at other coworkers can be relevant to an employee’s own claim of hostile work environment
discrimination.” Leibovitz v. New York City Transit Auth., 252 F.3d 179, 190 (2d Cir.
2001). “Facially sex-neutral incidents may be included among the totality of the
circumstances that courts consider in any hostile work environment claim, so long as a
reasonable fact-finder could conclude that they were, in fact, based on sex.” Moll v.
Telesector Res. Grp., Inc., 760 F.3d 198, 203 (2d Cir. 2014) (internal quotations
Title VII requires that any complaint be filed with the EEOC within 300 days of the
alleged discriminatory act; claims for discriminatory conduct that occurred more than
300 days before the complaint is filed are untimely. 42 U.S.C. § 2000e-5(e)(1). On the
other hand, the “very nature” of hostile work environment claims “involves repeated
conduct.” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 115 (2002). “The
‘unlawful employment practice’ therefore cannot be said to occur on any particular day.”
Id. And under the continuing violations doctrine, “consideration of the entire scope of a
hostile work environment claim, including behavior alleged outside the statutory time
period, is permissible for the purposes of assessing liability, so long as an act
contributing to that hostile environment takes place within the statutory time period.” Id.
Timely and untimely incidents all must be “part of the same hostile work
environment” for the continuing violations doctrine to apply. Sanderson v. N.Y. State
Elec. & Gas Corp., 560 Fed. App’x. 88, 91 (2d Cir. 2014) (summary order) (internal
quotations omitted). Indeed, “a sexually offensive incident within the limitations period
permits consideration of an incident preceding the limitations period only if the incidents
are sufficiently related.” McGullam v. Cedar Graphics, Inc., 609 F.3d 70, 77 (2d Cir.
2010). “In deciding whether incidents of harassment and discrimination are sufficiently
related, courts have considered factors such as (1) whether the timely and untimely
harassment is of a similar nature, (2) whether the same individuals perpetuated the
harassment, (3) the frequency and temporal proximity of the acts, and (5) [sic] whether
the employer took any intervening remedial action.” Annunziata v. Int'l Bhd. of Elec.
Workers Local Union # 363, 2018 WL 2416568, at *13 (S.D.N.Y. May 29, 2018); see,
e.g., McGullam, 609 F.3d at 81 n.2, 82 n.3 (Calabresi, J., concurring). Although these
considerations may be a guide, they are not particularly rigid. In fact, “flexibility is useful
in a context as fact-specific and sensitive as employment discrimination and as
amorphous as hostile work environment.” McGullam, 609 F.3d at 77.
Two of the plaintiffs, Cantlon and Kidd, allege that the University subjected them
to a hostile work environment in violation of Title VII and the NYSHRL. Docket Item 1 at
175-79. They allege that a pattern of Jaeger’s conduct created the hostile work
environment. For example, they allege that Jaeger used “overtly sexual language so
often that it made [female students] uncomfortable to be around him,” Docket Item 1 at
¶ 108, and “sexually objectified” female coworkers around other faculty, id. at ¶ 114.
The plaintiffs allege that some of that conduct occurred between 2007 and 2013; for
other conduct they do not plead any date. See generally, Docket Item 1. So the
plaintiffs do not specifically allege that any of Jaeger’s actions at issue occurred after
the key date—November 2016.13
In fact, the University correctly observes that despite all the detail in the 192page complaint, the plaintiffs allege only three matters within the limitations period.
Docket Item 13-1 at 22-23. The protagonist in each of these was DeAngelis, not
Jaeger. And the University argues that the hostile work environment claims should be
dismissed because (1) most of the alleged conduct is time barred and (2) what is not
time barred is not severe or pervasive enough to state a claim for a hostile work
environment. Docket Item 13-1 at 21-26.
Cantlon filed a charge of employment discrimination and retaliation with the
EEOC on September 1, 2017. Docket Item 1 at ¶ 19. Kidd filed a charge of retaliation
with the EEOC on August 31, 2017. Id. at ¶ 25. Therefore, any incidents before
November 2016 are outside the 300-day limitations period discussed above.
The plaintiffs make a few specific allegations about the hostile work environment.
For example, the plaintiffs allege that several of them, including Cantlon and Kidd, were
excluded from meetings at which BCS faculty discussed hiring Heilbronner.14 Id. at ¶
315. They also allege that in a meeting on December 13, 2016, “shortly after a senior
BCS faculty member had slammed his fist on the table, shouted at Cantlon, exited
the room and slammed the door,” DeAngelis “chastised Cantlon for her tone.” Id. at ¶
313 (emphasis in original). Finally, they allege that DeAngelis stood over Cantlon at a
meeting on April 24, 2017, and demanded that she apologize to the department. Id. at
Only two of those specifically-pleaded incidents suffice to plead a viable hostile
work environment claim. As explained below, every other incident is either too old and
outside the limitations period or does not plead a hostile work environment based on
But the plaintiffs also plead very general allegations about the hostile work
environment. Regarding Cantlon, for example, the plaintiffs allege that “Jaeger’s
behavior created a working environment that was severe, pervasive, intimidating,
hostile, and offensive to Cantlon and other female employees in the department.” Id. at
¶ 457. And the plaintiffs allege that “Kidd has continued to have to work in proximity to
Jaeger and hear about his continued harassment of women.” Id. at ¶ 466 (emphasis
added). Read liberally and in light of the fact that the plaintiffs pleaded much of
Heilbronner applied for a “tenure-track faculty position with BCS” in November
2016, Docket Item 1 at ¶ 445, so any meetings discussing her candidacy would have
been within the limitations period.
Jaeger’s harassing conduct without a specific date, these allegations suffice to plead a
The plaintiffs should understand, however, that they may well face considerable
proof issues with respect to their discrete claims. For example, one of the claims—the
allegation that several plaintiffs, including Cantlon and Kidd, were excluded from
meetings, Docket Item 1 at ¶ 315—involved men as well as women. In other words,
both men and women were excluded from meetings. So while that allegation may give
rise to a retaliation claim, it does not even suggest that Cantlon was treated differently
from similarly situated men. See Jamison v. Chapman, 2009 WL 3762348, at *5
(N.D.N.Y. Nov. 9, 2009) (“[A] workplace will not be considered hostile if the environment
is equally intimidating or offensive for both members and non-members of plaintiff’s
protected class.”). For that reason, it is not facially sex-neutral evidence of a hostile
work environment that is nonetheless “based on sex.” Moll, 760 F.3d at 203.
Another allegation—that DeAngelis “chastised Cantlon for her tone . . . shortly
after a senior BCS faculty member had slammed his fist on the table, shouted at
Cantlon, exited the room and slammed the door” without reprimand, Docket Item 1
at ¶ 313 (emphasis in original)—may not be sex-neutral. Similarly, the last allegation—
that DeAngelis stood over Cantlon at a meeting and demanded that she apologize to
the department, id. at ¶ 314—while “facially sex-neutral[,] . . . may be included among
the totality of the circumstances that courts consider in any hostile work environment
claim [because] a reasonable fact-finder could conclude that they were, in fact, based
on sex.” Moll, 760 F.3d at 203 (internal quotations and alterations omitted). But either
of these incidents, if pleaded alone, would probably be only an isolated incident that is
not so severe as to create a hostile work environment in and of itself. See Howley v.
Town of Stratford, 217 F.3d 141, 153 (2d Cir. 2000) (“[T]he plaintiff must demonstrate
either that a single incident was extraordinarily severe, or that a series of incidents were
sufficiently continuous and concerted to have altered the conditions of her working
environment.”) (internal quotations omitted).
What is more, even though the plaintiffs assert that the DeAngelis incidents are
part of the same hostile environment as that created by Jaeger’s actions outside the
limitations period, there is reason to doubt whether the two sets of conduct are
sufficiently related to be part of the same hostile work environment. In fact, the timely
and untimely claims seem different. The timely harassment claims are based on nonsexual conduct that might be retaliation; the untimely harassment claims, on the other
hand, are based on conduct that was overtly sexual. The incidents underlying the
timely harassment claims occurred after the University had attempted to take remedial
action—including the Nearpass Report, the Curtin Report, and DeAngelis’s initial talk
with Jaeger. Docket Item 1at ¶ 168. The untimely incidents occurred before—and, in
fact, triggered—the attempts at remedial action. Jaeger perpetrated the alleged
harassment that is the basis of the untimely claims, while DeAngelis—and possibly
other administrators—perpetrated the alleged harassment that was within the limitations
period.15 Finally, while the harassment by Jaeger is alleged to have been frequent,
The plaintiffs allege that the University contributed to a hostile work
environment by condoning Jaeger’s conduct and failing to appropriately investigate or
remedy it. If that is true, then the University’s and its administrators’ alleged obstinance
regarding Jaeger, which occurred both before and during the limitations period, might
be considered to have created a continued hostile work environment. Indeed, that
seems to be what the plaintiffs allege. This argument fails, however, because federal
“courts (including district courts in this circuit) appear to have uniformly rejected the
there is a long gap between those acts—which end in 2013 for those with dates
pleaded—and the acts that are the basis of the more recent claims, which began in
December 2016.16 Therefore, guided by the Second Circuit’s decision in McGullam, the
claims in paragraphs 313-15 in the complaint may not be a continuing violation of
Jaeger’s sexual harassment in 2007 through 2013.
Nevertheless, on a motion to dismiss the Court accepts as true all factual
allegations in the complaint and draws all inferences in the plaintiffs’ favor. See Stella v.
Potter, 297 Fed. App’x. 43, 45 (2d Cir. 2008). And as noted above, although the
plaintiffs’ specific allegations do not support a claim that Jaeger created a continuing
hostile work environment that might trigger the continuing violations doctrine, their
general allegations may, as may their specific allegations regarding DeAngelis. See
Docket Item 1 at ¶¶ 176, 178. So to the extent that the plaintiffs allege that Jaeger,
DeAngelis, or others harassed women within the limitations period in a way that created
notion that a failure adequately to remediate sexual harassment itself constitutes an act
that may contribute to a hostile work environment claim.” Fincher v. Depository Trust
and Clear Corp., 604 F.3d 712, 724 (2d Cir. 2010).
The defendants argue that Kidd has not stated a claim because she was a
student, not an employee, for many of the years when Jaeger’s conduct allegedly
created a hostile work environment. Regardless, she became an employee of the
University in 2014, Docket Item 1 at ¶ 59, well before the 300-day limitations period
began in November 2016. To prove a hostile work environment claim, Kidd must have
been subject to at least one instance of severe or pervasive harassing conduct while
she was an employee. At this stage, she has alleged enough to survive dismissal.
a hostile work environment for female employees,17 the plaintiffs have pleaded a viable
claim of a hostile work environment that violated Title VII and the NYSHRL.18
HOSTILE EDUCATION ENVIRONMENT
Similar principles govern Bixby’s claim of a hostile education environment under
Title IX and the NYSHRL. See Papelino v. Albany Coll. of Pharmacy of Union Univ.,
633 F.3d 81, 89 (2d Cir. 2011) (“[A] Title IX hostile education environment claim is
governed by traditional Title VII hostile environment jurisprudence.”) (internal quotations
omitted). To succeed, Bixby must allege conduct “that [was] so severe, pervasive, and
objectively offensive that it effectively bar[red] . . . access to an educational opportunity
or benefit.” Id. at 89 (quoting Davis v. Monroe Cty. Bd. of Educ., 526 U.S. 629, 633
The defendants argue that Bixby herself was not subject to any sex-based
harassment by Jaeger. Docket Item 13-1 at 27. Bixby responds that Jaeger took her
picture after she refused permission and that she avoided Jaeger so that she did “not
have to deal with his constant predatory behavior.” Docket Item 1 at ¶ 159. And
regardless of whether Bixby herself was harassed, the plaintiffs allege that Jaeger
harassed many other women and thus created a hostile environment for women to
Cantlon and Kidd may allege that they suffered a hostile work environment
based on evidence that other women were harassed even if they did not experience any
harassment personally. As stated above, “evidence of harassment directed at other coworkers can be relevant to an employee’s own claim of hostile work environment
discrimination.” See Leibovitz, 252 F.3d at 190.
See Turley v. ISG Lackawanna, Inc., 774 F.3d 140, 151 n.6 (2d Cir. 2014)
(“Claims under the New York Human Rights Law are ‘generally governed by the same
standards as federal claims under Title VII.’”) (quoting Schiano v. Quality Payroll Sys.,
Inc., 445 F.3d 597, 609 (2d Cir. 2006)).
which Bixby was subjected. See Leibovitz, 252 F.3d at 190 (“[E]vidence of harassment
directed at other co-workers can be relevant to an employee’s own claim of hostile work
environment discrimination.”). For the reasons stated above with respect to a hostile
work environment claim, Bixby has plausibly alleged a hostile education environment, at
least at the pleading stage.
A three-year statute of limitations period applies to Title IX claims, and the
defendants argue that almost all the conduct alleged to constitute a hostile education
environment occurred more than three years before the plaintiffs filed their complaint.
Docket Item 13-1 at 28. But the defendants admit that Bixby alleges at least some
conduct within the limitations period. Docket Item 13-1 at 28. For example, Bixby
alleges that in November 2015, Jaeger told Bixby at a faculty dinner that he “thought the
mandatory sexual harassment training” was “stupid” and that “anyone could just say
anything about anybody, meaning that people who complained about sexual
harassment were likely to be making things up.” Docket Item 1 at ¶ 180. According to
the plaintiffs, this incident—within the limitations period—is “further indication that
[Jaeger] was an unrepentant sexual harasser.” Id.
Moreover, as it has with respect to Title VII, the Second Circuit has applied the
continuing violations doctrine to Title IX claims. See Papelino, 633 F.3d at 93. Under
the continuing violations doctrine, “a plaintiff may bring claims for discriminatory acts
that would have been barred by the statute of limitations as long as ‘an act contributing
to that hostile environment [took] place within the statutory time period.” Papelino, 633
F.3d at 91 (quoting McGullam, 609 F.3d at 75)). Jaeger’s comments at the November
2015 dinner party are plausibly part of the same hostile education environment as his
earlier alleged sexual harassment outside the limitations period. Although the temporal
proximity of this instance to others is not clear from the pleadings, and although
DeAngelis allegedly attempted to intervene by having a “man to man” talk with Jaeger,
Jaeger’s more recent alleged comments are sufficiently similar to his earlier alleged
conduct to raise a plausible claim of a continuing course of conduct. See Annunziata,
2018 WL 2416568, at *13; see, e.g., McGullam, 609 F.3d at 81 n.2, 82 n.3 (Calabresi,
To state a claim against the University under Title IX, Bixby also must allege that
“a school official with ‘authority to address the alleged discrimination and to institute
corrective measures’ had ‘actual knowledge’ of the discrimination and failed to
adequately respond.” Papelino, 633 F.3d at 89 (quoting Gebser v. Lago Vista Indep.
Sch. Dist., 524 U.S. 274, 290 (1998)). “A school fails to adequately respond if it
provides no response or if it provides a response that ‘amounts to deliberate
indifference to discrimination.’” Id. “Responses that are not reasonably calculated to
end harassment are inadequate.” Zeno v. Pine Plains Cent. Sch. Dist., 702 F.3d 655,
669 (2d Cir. 2012).
Bixby plausibly alleges this aspect of her claim as well. In 2013, Bixby “formally
advised” DeAngelis, the Chair of the Brain and Cognitive Sciences Department, that “a
number of students  had had toxic experiences with Jaeger,” thereby putting “the
University on notice [of] his regular pattern of behavior.” Docket Item 1 at ¶ 160. But
DeAngelis’s response, as the plaintiffs allege it, was not “reasonably calculated to end
[the] harassment.” Zeno, 702 F.3d at 669. He delayed three months before even
responding to Bixby, Docket Item 1 at ¶ 161, and he spoke with only two students even
though he was told about more than 20 students whom Jaeger allegedly had harassed,
id. at ¶ 161, 166. Although Bixby “specifically asked for his intervention,” DeAngelis
“took no action to protect Bixby or other women.” Id. at ¶ 169. In fact, as noted above,
Bixby was subject to an alleged hostile education environment after she complained as
a result of the November 2015 incident. Id. at ¶ 180. Those allegations are sufficient at
this stage of the litigation. See, e.g., Kracunas v. Iona Coll., 119 F.3d 80, 90 (2d
Cir.1997) (in Title IX case, four-to-six-month delay could be viewed as deliberately
indifferent), overruled on other grounds as stated in Hayut v. State Univ. of New York,
352 F.3d 733, 750, n.11 (2d Cir. 2003); Campisi v. City University of New York, 2016
WL 4203549, at *7 (S.D.N.Y. Aug. 9, 2016) (“A plaintiff may show that a school was
deliberately indifferent . . . if its inaction caused students to undergo harassment or
made them liable or vulnerable to it.”) (internal quotations omitted).
The plaintiffs also allege that DeAngelis incorrectly found that Jaeger had not
violated the University’s policies, Docket Item 1 at ¶ 163, and may have failed to report
Bixby’s allegations to Human Resources and the administration, id. at ¶ 170. When a
school “drag[s] its feet before implementing any non-disciplinary remedial action” or
takes remedial actions that are “little more than half-hearted measures,” those actions
can plausibly amount to deliberately indifferent responses that effectively cause
continued harassment. Zeno, 702 F.3d at 669-70. Construing the facts in the light most
favorable to her, Bixby has plausibly alleged that this is the case here, see, e.g., Docket
Item 1 at ¶¶ 486-87, and she is therefore entitled to discovery on her hostile education
BREACH OF CONTRACT
Plaintiffs Aslin and Hayden allege that the University “constructively discharged
[them] in breach of its employment contract” by “intentionally engaging in actions that
created an intolerable work environment.” Docket Item 1 at ¶¶ 389, 439. To state a
breach of contract claim under New York law, a party must plead (i) the formation of a
contract, (ii) the plaintiff’s performance of his or her obligations thereunder, (iii) the
defendant’s failure to perform its obligations, and (iv) resulting damages to the plaintiff.
See, e.g., Nakano v. Jamie Sadock, Inc., 2000 WL 680365, at *5 (S.D.N.Y. May 25,
Aslin and Hayden plead that the University employed them under a contract
“granting [them] permanent tenure with an expectation of continued employment,”
Docket Item 1 at ¶¶ 386, 436, but that they were forced to resign “[a]s a result of the
intolerable work environment intentionally created by” the University. Id. at ¶¶ 388, 438.
They plead that the University breached their employment contract by “intentionally
engag[ing] in a series of ongoing actions that made [their] employment environment so
intolerable that any reasonable person would resign.” Id. at ¶¶ 387, 437. And they
claim loss of income and other pecuniary damages as a result. Id. at 390, 440.
Because “identical standards apply to employment discrimination claims
brought under . . . Title IX [and the NYSHRL],” Bixby has also stated a claim for a
hostile education environment under the NYSHRL. Weinstock, 224 F.3d at 42 n.1.
The defendants argue that the plaintiffs have failed to state a viable claim for
breach of contract because they have not stated the terms of the contract upon which
liability is predicated, nor have they specified the acts or omissions constituting the
breach. Docket Item 13-1 at 29-30. Although the pleadings could provide more details
about the employment contract that the University allegedly breached, the plaintiffs do
allege that their employment contracts provided an expectation of continued
employment. Docket Item 1 at ¶¶ 386, 436. And tenure is a familiar provision in
academic employment contracts, promising a continued expectation of employment. So
the allegation that Aslin’s and Hayden’s contracts with the University included a
continued expectation of employment is plausible and sufficient.
Constructive discharge is not itself a cause of action; rather, it is proof that a
resignation really was a discharge, satisfying that element in a claim for breach of an
employment contract. DANIEL OBERDORFER, MARK A. ROTHSTEIN, 24A W EST'S LEGAL
FORMS, EMPLOYMENT § 9.7, Constructive Discharge (Supplemented by Daniel
Oberdorfer, Amy B. Conway, and Mark A. Rothstein, November 2018). Stated another
way, in the context of employment contracts, a constructive discharge means that an
employer breached a contract guaranteeing future employment or benefits related to
that employment by forcing the employee out. See Scott v. Harris Interactive, Inc., 512
F. App’x. 25, 27-28 (2d Cir. 2013) (considering constructive discharge in contractual
claim for severance benefits); Keady v. Nike, Inc., 116 F. Supp. 2d 428, 438-39
(S.D.N.Y. 2000) (dismissing claim for breach of employment contract due to
constructive discharge because the “plaintiff failed to allege, in nonconclusory language,
the provision(s) of the contract upon which liability is predicated.”), vacated in part on
jurisdictional grounds, 23 F. App’x. 29 (2d Cir. 2001).
Much of the case law regarding the constructive discharge doctrine deals with
Title VII, but the theory can apply equally to breach of contract. See OBERDORFER,
supra; see also Morris v. Schroder Capital Mgmt. Int’l, 7 N.Y.3d 616, 622 (2006)
(answering in affirmative certified question whether “the well-established [federal]
constructive discharge test is appropriate” in the context of the “employee choice”
doctrine governing noncompete clauses in New York contract law “where an employer
intentionally makes the employee’s work environment so intolerable that it compels him
to leave.”). Whether a constructive discharge results from a hostile environment under
Title VII is an objective inquiry: “[a] plaintiff . . . must show working conditions so
intolerable that a reasonable person would have felt compelled to resign.” Pa. State
Police v. Suders, 542 U.S. 129, 147 (2004); cf. Gaffney v. City of New York, 101 A.D.3d
410 (1st Dep’t 2012) (applying heightened standard for constructive discharge to
NYSHRL claim). In other words, to allege a constructive discharge in a claim for breach
of an employment contract, plaintiffs must allege “something more” than a hostile work
environment, Pa. State Police, 542 U.S. at 147; plaintiffs must allege that “the actions of
the employer in creating the intolerable workplace condition [were] deliberate and
intentional and the atmosphere in the workplace [was] so intolerable as to compel a
reasonable person to leave.” See Morris, 7 N.Y.3d at 622 (internal quotations omitted).
So to state a breach of contract claim based on constructive discharge, the plaintiffs
must plead that work conditions were not simply “abusive” but were “intolerable,”
Petrosino v. Bell Atlantic, 385 F.3d 210, 229 (2d Cir. 2004), “so intolerable that a
reasonable person would have felt compelled to resign.” Pa. State Police, 542 U.S. at
Here, the plaintiffs have plausibly pleaded that the University failed to perform its
contractual obligation to continue their employment by constructively discharging them.
Both Aslin and Hayden allege that the University “intentionally engaged in a series of
ongoing actions that made their employment environment so intolerable that any
reasonable person would resign.” Docket Item 1 at ¶¶ 387, 437 (emphasis added).
They support their claims with many of the same facts supporting their retaliation claims
but add that “UR intentionally engaged in [that] series of ongoing actions” to make their
work environment “intolerable.” Id. Even though most of those factual allegations show
that Aslin and Hayden were “treated in the same way as other employees who chose
not to resign,”20 Chavez v. Iberia Foods Corp., 2007 WL 1959028, at *9 (E.D.N.Y. June
29, 2007), the plaintiffs plead that these other employees also were “in the process of
leaving” the University. Docket Item 1 at 39. Therefore, Aslin and Hayden have
plausibly pleaded that by intentionally creating an intolerable work environment, the
University constructively discharged them. See Morris, 7 N.Y.3d at 622; Pa. State
Police, 542 U.S. at 147. At the pleading stage, at least, this suffices to allege that the
University breached its obligations under Aslin’s and Hayden’s employment contracts.
See, e.g., Nakano, 2000 WL 680365, at *5.
See Docket Item 1 ¶¶ 5, 8, 9, 11 (pleading that Cantlon, Kidd, Mahon, and
Piantadosi are “employed by UR”).
DEFAMATION PER SE
Aslin, Newport, Cantlon, Kidd, Piantadosi, Mahon, Hayden, and Heilbronner
(together, the “Defamation Plaintiffs”) claim that Seligman and the University made and
endorsed statements that defamed them. In their briefing on the pending motion to
dismiss, the parties have focused on six statements. The Court will deal with each in
A. Legal Standards
To state a plausible claim for defamation, the Defamation Plaintiffs must allege
that the defendant: (1) made a defamatory statement; (2) that was false; (3) published
to a third party; (4) concerning the plaintiff; (5) made with the requisite level of fault on
the part of the speaker; (6) causing special harm or constituting defamation per se; and
(7) not protected by privilege. See, e.g., Whipple v. Reed Eye Assocs., 213 F. Supp. 3d
492, 497 (W.D.N.Y. 2016).
1. Defamatory Statement
“The New York Court of Appeals has defined a defamatory statement as one that
exposes an individual ‘to public hatred, shame, obloquy, contumely, odium, contempt,
ridicule, aversion, ostracism, degradation, or disgrace, or ... induce[s] an evil opinion of
one in the minds of right-thinking persons, and ... deprives one of ... confidence and
friendly intercourse in society.’” Celle v. Filipino Reporter Enters. Inc., 209 F.3d 163,
177 (2d Cir. 2000) (quoting Kimmerle v. N.Y. Evening Journal, 262 N.Y. 99, 102
(1933)). If the statement is susceptible of only one meaning, the court must determine
as a matter of law whether that meaning is defamatory. Id. at 178. But if the words are
reasonably susceptible of multiple meanings and some of them are not defamatory, “it is
then for the trier of fact . . . to determine in what sense the words were used and
understood.” Davis, 754 F.2d at 83. In determining whether particular words are
defamatory, federal courts in New York are guided by several standards developed by
the New York Court of Appeals. Celle, 209 F.3d at 177.
First, a statement must be viewed in context. “Challenged statements are not to
be read in isolation, but must be perused as the average reader would against the
‘whole apparent scope and intent’ of the writing.” Id. (quoting November v. Time Inc.,
13 N.Y.2d 175, 178 (1963)). Stated another way, the words must be “construed in the
context of the entire statement or publication as a whole” and “tested against the
understanding of the average reader.” Aronson v. Wiersma, 65 N.Y.2d 592, 594 (1985).
Second, courts should interpret statements as an ordinary person would. Courts
will not strain to interpret statements to have “their mildest and most inoffensive”
meaning. November, 13 N.Y.2d at 178 (quoting Mencher v. Chesley, 297 N.Y. 94, 99
1947)). On the other hand, if statements are not “reasonably susceptible of a
defamatory meaning, they are not actionable and cannot be made so by a strained or
artificial construction.” Ulrich v. Moody’s Corp., 2014 WL 12776746, at *10 (S.D.N.Y.
Mar. 31, 2014) (quoting Golub v. Enquirer/Star Group, Inc. 89 N.Y.2d 1074, 1076
Finally, “the words are to be construed not with the close precision expected from
lawyers and judges but as they would be read and understood by the public to which
they are addressed.” November, 13 N.Y.2d at 178-79. “It is the meaning reasonably
attributable to the intended reader that controls.” Celle, 209 F.3d at 177-78.
It is well established that “[f]alsity is an element of defamation under
contemporary New York law.” Tannerite Sports, LLC v. NBCUniversal News Grp., a
division of NBCUniversal Media, LLC, 864 F.3d 236, 244 (2d Cir. 2017); see also Cain
v. Atelier Esthetique Inst. of Esthetics Inc., 733 F. App'x. 8, 11 (2d Cir. 2018). In fact,
“[t]ruth provides a complete defense to defamation claims.” Dillon v. City of New York,
261 A.D.2d 34, 39 (1st Dep’t 1999). “[I]t is not necessary to demonstrate complete
accuracy to defeat a charge of libel. It is only necessary that the gist or substance of the
challenged statements be true.” Printers II, Inc. v. Prof’ls Pub., Inc., 784 F.2d 141, 146
(2d Cir. 1986).
The law of defamation protects a plaintiff’s relational interest in his or her
reputation; a defamation claim therefore requires that at least one third person—that is,
someone other than the plaintiff and the defendant—hear and understand the
defamatory statement. See generally Restatement (First) of Torts § 577 (1938) (2018
Update); see Ostrowe v. Lee, 256 N.Y. 36, 38 (1937); Teicher v. Bellan, 7 A.D.2d 247,
249-50 (4th Dep’t 1959).
4. “Of and Concerning” the Plaintiffs
To be actionable, a defamatory statement must be about the plaintiffs. While the
party alleging defamation “need not be named,” that party must plausibly plead that the
defamatory statement referred to him or her. Chicherchia v. Cleary, 207 A.D.2d 855,
856 (2d Dep’t 1994). The reference need not be direct and may be shown by extrinsic
facts, but the plaintiff “must show that it is reasonable to conclude that the publication
refers to him or her and the extrinsic facts upon which that conclusion is based were
known to those who read or heard the publication.” Id.
5. Special Harm or Defamation Per Se
Unless a statement is defamatory per se, the statement also must result in
special damages, or “the loss of something having economic or pecuniary value which
must flow directly from the injury to reputation caused by the defamation,” to state a
viable claim. Matherson v. Marchello, 100 A.D.2d 233, 235 (2d Dep’t 1984). But New
York recognizes certain categories of statements as defamatory per se—that is, as
actionable without pleading special damages. Four categories of statements may be
defamatory per se: those that “(i) charge the plaintiff with a serious crime; (ii) tend to
injure the plaintiff in his or her trade, business or profession; (iii) imply that the plaintiff
has a loathsome disease; or (iv) impute unchastity to a woman.” Albert v. Loksen, 239
F.3d 256, 271 (2d Cir. 2001). Here, for example, the plaintiffs proceed on a theory of
defamation per se, alleging that the defendants’ statements tended to injure them in
their profession as academics. Docket Item 1 at ¶¶ 530-32.
The Second Circuit has recognized that the line between statements that are
defamatory per se and those that require proof of special damages is “fuzzy.” Celle,
209 F.3d at 179. Two general principles guide the inquiry.
First, “‘a writing which tends to disparage a person in the way of his office,
profession or trade’ is defamatory per se and does not require proof of special
damages.” Id. (quoting Davis, 754 F.2d at 82) (emphasis in original). The effect of a
statement thus may depend on the plaintiff’s profession. See W. Page Keeton et al.,
Prosser and Keeton on the Law of Torts § 112, at 791 (5th ed. 1984) (“[I]t is actionable
without proof of damage to say of a physician that he is a butcher . . ., of an attorney
that he is a shyster, of a school teacher that he has been guilty of improper conduct as
to his pupils, of a clergyman that he is the subject of scandalous rumors, of a chauffeur
that he is habitually drinking, of a merchant that his credit is bad or that he sells
adulterated goods, of a public officer that he has accepted a bribe or has used his office
for corrupt purposes . . . since these things discredit [one] in his chosen calling.”).
Second, “where a statement impugns the basic integrity or creditworthiness of a
business, an action for defamation lies and injury is conclusively presumed.” Celle, 209
F.3d at 180 (quoting Ruder & Finn Inc. v. Seaboard Surety Co., 52 N.Y.2d 663 (1981)).
Thus, words are defamatory per se when “they affect a person in his profession, trade,
or business by imputing to him any kind of fraud, dishonesty, misconduct, incapacity,
unfitness or want of any necessary qualification in the exercise thereof.” Davis, 754
F.2d at 82 (quoting Four Star Stage Lighting, Inc. v. Merrick, 56 A.D.2d 297, 298 (1st
To state a viable defamation claim, a plaintiff also must allege the defendant’s
fault. In New York Times Co. v. Sullivan, 376 U.S. 254 (1964), and Gertz v. Robert
Welch, Inc., 418 U.S. 323 (1974), the Supreme Court set the constitutional floor for fault
in modern defamation cases. A plaintiff who is a public figure must establish that the
defendant spoke with actual malice. Sullivan, 376 U.S. at 254. A plaintiff who is not a
public figure must establish, as a constitutional minimum, that the speaker spoke
negligently. Gertz, 418 U.S. at 347.
The level of fault that a private person must show to allege defamation depends
on whether the statement at issue “is arguably within the sphere of legitimate public
concern.” Albert, 239 F.3d at 269 (quoting Chapadeau v. Utica Observer-Dispatch, Inc.,
38 N.Y.2d 196, 199 (1975)). If it is, then the plaintiff must allege that the defendant
“acted in a grossly irresponsible manner without due consideration for the standards of
information gathering and dissemination ordinarily followed by responsible parties.” Id.
If it is not, then the plaintiff must allege that the defendant was at least negligent,
although some courts in this circuit still have used gross negligence as the standard.
See Albert, 239 F.3d at 271 (“we decline to decide whether . . . negligence or some
other level of fault is applicable”); compare Menaker v. C.D., 2018 WL 5776533, at *4
(E.D.N.Y. Nov. 1, 2018) (“Here, Plaintiff is a private party, therefore the appropriate level
of fault to be proven is negligence.”) with Campos v. Lemay, 2007 WL 1344344, at *4
n.4 (S.D.N.Y. May 7, 2007) (“the Court will analyze the defamation counterclaim under
the lower threshold for private figures, which requires that the Defendant show gross
negligence.”). Whether a statement involves a “matter of public concern” has been
given an “extremely broad interpretation,” but “publications directed only to a limited,
private audience are matters of purely private concern.” Albert, 239 F.3d at 269-70
(internal quotations omitted).
There are several qualified privileges that might protect an allegedly defamatory
statement. One relevant to the present motion is the qualified privilege that “extends to
a ‘communication made by one person to another upon a subject in which both have an
interest,’” the so-called common interest privilege. Liberman v. Gelstein, 80 N.Y.2d 429,
437 (1992) (quoting Stillman v. Ford, 22 N.Y.2d 48, 53 (1968)). For example, this
privilege extends to communications between employees of an organization about the
common interest of their employer, members of a faculty tenure committee about
qualifications for tenure, and constituent physicians of a health insurance plan about
members’ qualifications as physicians. Id. (collecting cases).
A plaintiff may overcome a qualified privilege by showing that the defendant
spoke with “malice.” Id. The New York Court of Appeals recognizes two kinds of
malice: common law malice and constitutional malice. Id. at 437-38. Common law
malice consists of spite or ill will. Id. at 437. Constitutional malice—also called “actual
malice”—exists when the defendant speaks with “knowledge that the statement was
false or reckless disregard of whether it was false or not.” Id. at 437-38 (quoting New
York Times v. Sullivan, 376 U.S. 254, 279-80 (1964)). A plausible allegation of either
kind of malice will suffice to overcome a qualified privilege. See Loughry v. Lincoln First
Bank, 67 N.Y.2d 369, 376 (1986).
The Statements at Issue
1. “Hearsay” Statement to the Linguistics Chair, Complaint ¶¶ 294,
The first allegedly defamatory statement that the plaintiffs raise is Seligman’s
assurance to Dr. Jeffrey Runner, then Chair of Linguistics at the University, that “Jaeger
was fine and that the graduate students who had complained about him had witnessed
nothing.” Docket Item 1 at ¶ 294. In other words, the plaintiffs allege, Seligman told
Runner that the complaints about Jaeger were “hearsay.” Id. at ¶ 515(a). According to
the plaintiffs, that “describ[ed] [them] as untruthful [and] trafficking in baseless
assertions,” constituting defamation per se because it directly attacked their “honesty,
trustworthiness and integrity, core qualifications for academic life.” Docket Item 25 at 6.
As the plaintiffs have pleaded it, the context in which this statement was made
gives it a qualified privilege. Seligman allegedly spoke with Runner because “when
Aslin and Cantlon filed their complaint in 2016,” Runner was concerned about “their
allegations” and whether Jaeger’s behavior was limiting the University’s “ability to attract
the highest quality female graduate students.” Docket Item 1 at ¶ 294. Jaeger’s
behavior and its impact on the University’s ability to recruit graduate students was “a
subject in which both” Seligman and Runner, as leaders at the University, most certainly
had “an interest”; indeed, it affected the institution they led. Liberman, 80 N.Y.2d at
437. The statement therefore is entitled to a qualified privilege and is not actionable
unless it was made with malice. Id.
The plaintiffs argue that the context of these statements demonstrates malice.
Docket Item 20 at 32. They assert that these statements “were made intentionally to
call the Plaintiffs’ credibility into question,” Docket Item 1 at ¶ 517, and they support that
assertion with several general allegations, including “UR’s practice of victimizing
complainants” and “UR’s anger that the Plaintiffs refused to shut up and go away after
the deeply flawed Nearpass report was issued.” Docket Item 20 at 33. They also allege
that it is “commonplace for the University to search the UR emails of faculty, staff and
students who are perceived as potential threats to the University,” Docket Item 1 at ¶
43; that Jaeger was promoted to full professor while he was under investigation, id. at
¶¶ 207-10; and that “University administrators did not like that Plaintiffs were continuing
to act as if the Nearpass Report’s conclusions had not resolved the Jaeger matter for
good,” id. at ¶ 253. In light of all that, the plaintiffs argue, an inference of malice is
reasonable. Docket Item 20 at 32.
“Malice is a question of fact for the jury if the plaintiff provides evidentiary facts—
and not mere conclusory allegations—that the defendant was motivated by actual
malice.” Amadsau v. Bronx Lebanon Hosp. Ctr., 2005 WL 121746, at *13 (S.D.N.Y.
Jan. 1, 2005) (quoting McNally v. Yarnall, 764 F. Supp. 838, 851 (S.D.N.Y. 1991)
(emphasis added in original)). Here, the plaintiffs have pleaded malice as well as facts
that plausibly support an inference of malice. The statements therefore may or may not
be protected by the common interest privilege and state a viable claim for defamation at
the pleading stage.
2. “Hearsay” Statement to the Neuroscience Chair, Complaint ¶¶ 295,
The second statement that the Defamation Plaintiffs claim is defamatory is
Seligman’s statement to Dr. John Foxe, Chair of the Department of Neuroscience, that
“the case against Jaeger was all hearsay and that Aslin had overacted.” Docket Item 1
at ¶ 295. The plaintiffs argue that this statement was defamatory in the same way that
Seligman’s statement to Runner was. Docket Item 25 at 6. And for the same reasons,
the plaintiff’s allegations about this statement are sufficient to survive the defendants’
motion to dismiss.
3. Faculty Meeting Statements, Complaint ¶ 518
The third allegedly defamatory statement that the Defamation Plaintiffs raise
occurred during a BCS faculty meeting. The plaintiffs allege that at this meeting, BCS
Chair DeAngelis “falsely stated to the BCS faculty that he had proof in the emails in
front of him that showed ‘manipulation and deception of faculty members’ and the
‘smearing’ of Jaeger.” Docket Item 1 at ¶ 518. DeAngelis said that the emails were
“definitive proof” of “widespread lying, deceit, and manipulation in the complaints
against Jaeger.” Id. at ¶ 310. The plaintiffs assert that these statements were
demonstrably false—as DeAngelis later allegedly admitted, id. at ¶ 520—and damaged
their reputation for truth and honesty in presenting evidence, which in turn damaged
their reputation as academics. Docket Item 25 at 7.
This statement was made among faculty at a department meeting, and it
therefore enjoys the qualified common interest privilege. But again, the allegations
regarding this statement, read broadly at this stage of the litigation, plead malice
sufficient to overcome the privilege. The plaintiffs allege that DeAngelis “had in front of
him [the] stack of emails” to which he referred, Docket Item 1 at ¶ 310, and that he later
admitted that his characterization of them was false, id. at 520. By alleging that
DeAngelis made a disparaging statement that mischaracterized evidence that was right
in front of him, and that he later admitted exactly that, the plaintiffs have plausibly
alleged that DeAngelis acted with at least reckless disregard for whether what he said
was the truth.21
The plaintiffs also allege that DeAngelis made these defamatory statements
“while acting in the course and scope of his employment.” Docket Item 1 at ¶ 518.
Therefore, under traditional agency principles of tort law, the University may be liable for
his statements. See Garrison v. Toshiba Bus. Sols. (USA). Inc., 907 F. Supp. 2d 301,
309 (E.D.N.Y. 2012).
4. Jaeger’s Statements to the Scientific Community, Complaint ¶ 521
The fourth statement that the plaintiffs allege constitutes defamation came from
Jaeger himself. According to the plaintiffs, Jaeger “wrote to influential people in the
scientific community stating that he had been falsely accused and bullied, and that the
person who had complained against him had resigned.” Docket Item 1 at ¶ 521. The
plaintiffs contend that this statement is actionable due to its false implication that Aslin
resigned “because he was wrong to complain about Jaeger.” Id. at ¶ 522. The
defendants argue that this statement was not defamatory and did not concern the
In its simplest terms, the statement was defamatory because it tended to
disparage Aslin in his professional capacity. Cf. Chandok v. Klessig, 632 F.3d 803, 814
(2d Cir. 2011) (granting summary judgment because although statements about
replicability of experiment results could defame a scientist, the statements were
privileged). The suggestion that an academic accused a colleague falsely not only
impugns the academic’s “basic integrity or creditworthiness,” Celle, 209 F.3d at 180, but
disparages the academic in his or her profession, id. at 179 (quoting Davis, 754 F.2d at
82). Therefore, the plaintiffs plausibly allege that this statement included a defamatory
statement of fact.
The plaintiffs also plausibly allege that Jaeger made this statement in the course
of his employment. The UR Counsel’s Office allegedly supported him in making the
statement, and he offered contact details for that office to confirm his story. Docket Item
1 at ¶ 521. The University also depends to a great extent on its employees’ reputations,
and Jaeger’s effort to improve his at the expense of Aslin’s, who had resigned, plausibly
benefits his employer. So the University may be liable for its agent’s defamatory
statement. See Garrison v. Toshiba Bus. Sols. (USA). Inc., 907 F. Supp. 2d 301, 309
As the plaintiffs plead it, however, this statement plausibly concerns only one of
them: Aslin. The statement explicitly refers to only one complainant: “the person who
had complained” and, like Aslin, “had resigned.” Docket Item 1 at ¶¶ 521, 522.
Because Aslin is the only plaintiff who had recently resigned at that point, Aslin is the
only plaintiff to whom the statement could plausibly refer. Id. at ¶ 304. Therefore, Aslin
has plausibly stated a claim for defamation, but other plaintiffs have not. This claim is
therefore dismissed as to all the Defamation Plaintiffs except Aslin.
5. Comparing the Plaintiff’s Allegations to a Discredited Rolling Stone
Article, Complaint ¶ 523
The fifth statement that the plaintiffs claim was defamatory concerns Seligman’s
comparison of the plaintiff’s allegations to a widely-discredited Rolling Stone article
about campus rape. The plaintiffs argue that this comparison was defamatory because,
unlike the story in Rolling Stone, their complaints were not fabricated and the
comparison therefore falsely suggested that they were “the same sort of liars” as those
who provided false information to Rolling Stone. Docket Item 25 at 7. The defendants
argue that this does not amount to any defamatory statement of fact. Docket Item 13-1
This statement at issue plausibly has two meanings. On the one hand, it could
have the defamatory meaning that the plaintiffs suggest: that they fabricated evidence
and are liars. On the other, it could have a more benign meaning: pointing out that the
allegations are just that—allegations that can be proven or disproven. Because these
words are reasonably susceptible of multiple meanings, some of which are not
defamatory, it is “for the trier of fact . . . to determine in what sense the words were used
and understood.” Davis, 754 F.2d at 83. The plaintiffs’ claims regarding this statement
therefore survive the defendant’s motion to dismiss.
6. Statement from the Special Committee of UR Trustees, Complaint ¶
The sixth allegedly defamatory statement came from a special committee of UR
Trustees: “The Special Committee has requested and sincerely hopes that the
complainants will reconsider and cooperate with the investigation.” Docket Item 1 at ¶
527. The plaintiffs claim that this is defamatory per se because it mischaracterizes
them as fearing an independent investigation and acting only in their own self interest.
Docket Item 25 at 8. According to the plaintiffs, this statement “carried the unmistakable
message that Plaintiffs’ [sic] feared their claims would be shown to be as false as those
in the Rolling Stone article to which Seligman had compared them [which] [i]nevitably . .
. calls into question [their] fitness as academics, working in a collegial collaborative
academic research setting.” Id. at 9.
The plaintiffs ask the Court to strain the plain words of this statement to impute a
defamatory meaning. The statement mentions only cooperation with the investigation
and does not even suggest that the plaintiffs made any false accusations. It does not
accuse the plaintiffs of fabricating evidence, dishonest conduct that threatens the core
of their fitness as academics. Without that, the statement is not defamatory, let alone
defamatory per se, and the plaintiffs’ claims based on this statement therefore are
FEDERAL RULE OF CIVIL PROCEDURE 12
Federal Rule of Civil Procedure 12(f) provides that a district court may strike from
a pleading anything that is “immaterial, impertinent, or scandalous.” Motions under this
section are generally disfavored. See, e.g., Marshall v. N.Y. State Pub. High Sch.
Athletic Ass’n, Inc., 290 F. Supp. 3d 187, 204 (W.D.N.Y. 2017). To succeed on a motion
to strike, the defendant “must demonstrate that (1) no evidence in support of the
allegations would be admissible; (2) that the allegations have no bearing on the issues
in the case; and (3) that to permit the allegations to stand would result in prejudice to
the movant.” Britt v. Buffalo Mun. Hous. Auth., 2008 WL 4501929, at *1 (W.D.N.Y. Sep.
Although the detailed and lengthy complaint undoubtedly includes extraneous
information, each of the allegations to which the defendants point is at least tangentially
relevant to the plaintiffs’ arguments about the culture at the University. In fact, the
context and environment in which the alleged retaliation and hostile work environment
occurred is a large part of the plaintiffs’ claims. The defendants are therefore incorrect
that the allegations they wish to strike “have no bearing on the issues in the case,” id.,
and their motion to strike is denied.
FEDERAL RULES OF CIVIL PROCEDURE 8 AND 10
The defendants also argue that the plaintiffs’ 192-page complaint violates the
mandate of Federal Rule of Civil Procedure 8(a)(2) that a pleading be “a short and plain
statement.” Docket Item 13-1 at 40. And they argue that the complaint violates Federal
Rule of Civil Procedure 10(b), requiring a pleading to “state its claims and defenses in
numbered paragraphs, each limited as far as practicable to a single set of
circumstances.” Id. at 41. The plaintiffs respond that to satisfy the plausibility standard
of Twombly and Iqbal, they “err[ed] on the side of inclusion.” Docket Item 20 at 41.
The complaint is hardly “short and plain,” and many paragraphs include repetitive
allegations or deal with several sets of circumstances. Therefore, to aid in the progress
of this litigation through discovery, the plaintiffs shall file an amended complaint, limited
to those claims that survive this order and to the specific facts that the plaintiffs intend to
prove in support of those claims. See Ciralski v. C.I.A., 355 F.3d 661, 669 (D.C. Cir.
2004). The amended complaint shall plead a single set of circumstances in each
paragraph. Instead of repeating facts, it should plead facts in only one numbered
paragraph, and, as necessary, incorporate previous paragraphs by reference rather
than repeat facts in later paragraphs.
Finally, the defendants object to the plaintiffs’ use of pseudonyms in the
complaint. Docket Item 13-1 at 39. The defendants seek to strike these allegations.
Docket Item 13-1 at 40. That remedy is extreme; on the other hand, the principles of
notice pleading require the plaintiffs to put the defendants on notice of the claims
against them so that they can investigate those claims. Therefore, the plaintiffs must
provide the defendants with the names of those to whom they refer by pseudonyms in
the amended complaint. In other words, if the plaintiffs wish to use pseudonyms to
protect the privacy of individuals referred to in the amended complaint, they may do so if
they provide the defendants with the real names of those individuals.
For the reasons stated above, the defendants’ motion to dismiss is GRANTED in
part and DENIED in part. The defendants’ motion to strike under Federal Rule of Civil
Procedure 12 is DENIED. The plaintiffs shall file an amended complaint regarding
those claims that survive the defendants’ motion and that complies with Federal Rules
of Civil Procedure 8 and 10, consistent with this decision and order.
August 28, 2019
Buffalo, New York
s/ Lawrence J. Vilardo
LAWRENCE J. VILARDO
UNITED STATES DISTRICT JUDGE
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