263 F. Supp. 3d 478
S.D.N.Y.2017Background
- Plaintiff Barbara Luka, a 48-year-old lesbian and tenured-track professor at Bard College, applied for tenure in 2010 and again in 2013; both efforts did not result in tenure and she alleges discriminatory conduct by faculty and administrators.
- Frank Scalzo (Psychology Chair), Michele Dominy (Dean/VP), and Leon Botstein (President) are named individually; plaintiff alleges Scalzo became hostile after learning of her sexual orientation and made derogatory comments about her and her partner.
- In 2009–10 Scalzo allegedly told colleagues Luka was "mentally unstable" and later gave negative recommendations about collegiality; Dominy adopted Scalzo’s recommendation in 2010 and later permitted him to participate in the 2013 review.
- 2013 review: FERC voted 3–2 against tenure, described Luka as “mid‑career” and criticized her publication record; Botstein declined to grant tenure and the Board affirmed the denial; Luka alleges the process was tainted by discrimination and retaliation tied to Scalzo’s conduct and to complaints by another faculty member (Gershuny).
- Luka sued under the ADEA, ADA, Title VII, and NYSHRL for age, disability (perceived), sexual orientation discrimination, and retaliation; defendants moved to dismiss age, disability, and gender claims; court resolves those motions on the pleadings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Age discrimination (ADEA & NYSHRL) | FERC called her “mid‑career” and administrators referenced hiring someone “young in her career,” showing age animus and younger hires favored. | The comments concern career stage/experience, not age; no plausible but‑for causal link to age. | Dismissed with prejudice — allegations do not plausibly show age was the but‑for cause. |
| Disability discrimination (ADA & NYSHRL) | Scalzo told others she was “mentally unstable”/“crazy” and sought a clinical diagnosis, showing perceived mental disability motivated adverse action. | Remarks were stray, not causally connected to 2013 decision; even if he perceived mental illness, it was alleged to stem from her sexual orientation (not a disability). | Dismissed with prejudice — stray remarks and perception tied to sexual orientation, not a disability. |
| Gender discrimination (NYSHRL) | Scalzo’s repeated gendered insults (e.g., “bitch,” comments about “hormonal surge”), history of biased treatment of other women, and male hires support gender‑bias inference. | Remarks are stray and insufficient; plaintiff really alleges sexual‑orientation discrimination. | Claim survives — allegations collectively permit a minimal plausible inference of gender discrimination. |
| Leave to amend | Plaintiff previously amended multiple times and had discovery; could cure defects. | Further amendment would be futile after multiple opportunities and the court’s prior warning. | Denied — age and disability claims dismissed with prejudice; gender claim allowed to proceed. |
Key Cases Cited
- Ashcroft v. Iqbal, 556 U.S. 662 (pleading standard: plausibility required)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (pleading standard and plausibility framework)
- Littlejohn v. City of New York, 795 F.3d 297 (minimal support for inference of discriminatory intent under NYSHRL)
- Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72 (age discrimination requires but‑for causation)
- Staub v. Proctor Hosp., 562 U.S. 411 (employer liability for subordinate’s discriminatory animus under cat’s‑paw theory)
- Criley v. Delta Air Lines, Inc., 119 F.3d 102 (employment decisions tied to traits intertwined with age may be lawful if motivated by non‑age features)
- Hazen Paper Co. v. Biggins, 507 U.S. 604 (age‑intertwined factors and causation analysis)
- Abdu‑Brisson v. Delta Air Lines, Inc., 239 F.3d 456 (single decisionmaker’s remark insufficient without more)
- Christiansen v. Omnicom Grp., Inc., 852 F.3d 195 (distinguishing sexual orientation claims from gender stereotyping analysis)