Dr. Joseph IRRERA, Plaintiff-Appellant, v. Dr. Douglas HUMPHERYS, Individually, University of Rochester, Defendants-Appellees.
16-2004-cv
United States Court of Appeals, Second Circuit.
June 15, 2017
694 F. App‘x 626 | 694 F.3d 167
Furthermore, we have previously explained that “it is speculative to conclude that a school with the capacity to implement a given student‘s IEP will simply fail to adhere to that plan‘s mandates...” M.O. v. N.Y.C. Dep‘t of Educ., 793 F.3d 236, 244 (2d Cir. 2015). Although the Parents frame their arguments as an attack on the School District‘s “capacity” to implement or update the 2011 BIP if needed, we conclude that their argument is best construed as a claim that the School District would not have followed through on its commitment to implement and update the BIP, not that it “lack[ed] the services required” to do so. Id. A School District official testified that the District was ready to update the BIP if needed, and that testimony is supported by documentary evidence. This is not a situation where a school district plainly lacks the ability to offer the services it says it will offer. Cf. id. (providing, as example of argument that is not speculative and therefore permissible, situation in which an IEP recommends “one-on-one occupational therapy, outside of the classroom,” but a school only offers “in-class occupational therapy in a group setting“).
Second, we are not persuaded by the Parents’ challenges to the process by which the 2011 BIP was created, or their argument that the district court failed to credit the testimony of their witnesses. “District courts are not to make subjective credibility assessments, and cannot choose between the views of conflicting experts on controversial issues of educational policy in direct contradiction of the opinions of state administrative officers who had heard the same evidence.” M.H. v. N.Y.C. Dep‘t of Educ., 685 F.3d 217, 240 (2d Cir. 2012) (alterations and internal quotation marks omitted). Considered individually and cumulatively, the procedural claims the Parents make do not succeed. See R.E. v. N.Y.C. Dep‘t of Educ., 694 F.3d 167, 190 (2d Cir. 2012) (explaining that procedural violations only entitle parents to reimbursement if they (1) impede a child‘s right to a free appropriate public education; (2) significantly impede “the parents’ opportunity to participate in the decisionmaking process;” or (3) cause “a deprivation of educational benefits“). The 2011 BIP was regarded as appropriate by one of the Parents’ expert witnesses, Dr. Tarnell, as long as the BIP was implemented properly. Moreover, the adequacy of the resulting BIP essentially came down to a credibility determination between the School District‘s witnesses and the Parents’ witnesses. The district court properly decided to not reverse the IHO‘s decision to credit the former over the latter. See M.H., 685 F.3d at 240. We likewise decline to reject the district court‘s conclusion affirming the IHO‘s credibility determination.
We have considered the Parents’ remaining arguments and conclude that they are without merit. Accordingly, we AFFIRM the judgment of the district court.
FOR PLAINTIFF-APPELLANT: STEWART LEE KARLIN, Stewart Lee Karlin, Law Group PC, New York, NY.
FOR DEFENDANTS-APPELLEES: MARION BLANKOPF and Christopher D.
Thomas, Nixon Peabody LLP, Rochester, NY.
PRESENT: Jon O. Newman, Jose A. Cabranes, Gerard E. Lynch, Circuit Judges.
* The Clerk is requested to change the official caption as above.
Plaintiff-appellant Dr. Joseph Irrera, a doctoral graduate of the University of Rochester‘s Eastman School of Music (“Eastman“), brought an action in the District Court against the University of Rochester and Dr. Douglas Humpherys, Chairperson of Eastman‘s Piano Department, for violations of Title IX of the Education Amendments of 1972, the NYHRL, and the NYCRL, among other claims. Irrera alleged that Humpherys sexually harassed him, that Eastman was aware of the harassment but failed to act, and that Irrera was subject to retaliation for complaining about the harassment.
Defendants moved to dismiss Irrera‘s complaint pursuant to
Title IX affords “a remedy to a student who is subjected to sexual harassment by a teacher or professor at an educational institution receiving federal funds.” Papelino v. Albany Coll. of Pharmacy of Union Univ., 633 F.3d 81, 88-89 (2d Cir. 2011). A plaintiff can establish a hostile educational environment claim under Title IX if he demonstrates “that he subjectively perceived the environment to be hostile or abusive and that the environment objectively was hostile or abusive, that is, that it was permeated with discriminatory intimidation, ridicule, and insult sufficiently severe or pervasive to alter the conditions of his educational environment.” Id. In addition, an educational institution will be liable under Title IX if the plaintiff “establish[es] that a school official with authority to address the alleged [harassment] and to institute corrective measures had actual knowledge of the discrimination and failed to adequately respond.” Id. (internal quotation marks omitted). The statute of limitations for a Title IX claim based on conduct occurring in New York is three years. Curto v. Edmundson, 392 F.3d 502, 504 (2d Cir. 2004).
Nevertheless, Irrera, by way of an amended complaint, alleged that Humpherys took additional actions against him between 2012 and 2014: Humpherys winked at him, blew kisses at him, raised his eyebrows at him, and looked up and down at him in a sexual manner when they encountered each other in Eastman‘s common areas. Irrera contended below, as he does again on appeal, that these additional actions established a “continuing violation” of Title IX sufficient to render all of Humpherys’ actions, including the 2010 and 2011 actions, timely. The District Court held that these new allegations failed to establish a “continuing violation” for purposes of the statute of limitations and, thus, Irrera‘s Title IX claims stemming from Humpherys’ 2010 and 2011 alleged conduct were untimely. The District Court also held that Irrera‘s allegations about Humpherys’ facial expressions did not plausibly establish stand-alone Title IX claims. We agree.
“[D]iscrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges.” National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 113, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002). With respect to hostile educational environment claims, however, which “depend upon proof of repeated conduct extending over a period of time,” Morgan, 536 U.S. at 120 n.12, “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).
The unwanted sexual touching and retaliation allegedly committed by Humpherys in 2010 and 2011 and the allegedly sexual facial expressions made by Humpherys between 2012 and 2014 were discrete acts of harassment separated by multiple years of inactivity. See Lambert v. Genesee Hosp., 10 F.3d 46, 53 (2d Cir. 1993) (affirming the dismissal of Title VII claims as time barred where “plaintiffs failed to produce evidence of any [discriminatory] policy or mechanism“). Therefore we conclude that the “continuing violation exception” does not apply and the District Court correctly held that Irrera‘s claims concerning Humpherys’ 2010 and 2011 acts are barred by the three-year statute of limitations.
Irrera‘s allegations regarding Humpherys’ facial expressions also do not plausibly establish a stand-alone hostile educational environment claim. Irrera does not plausibly allege that Humpherys’ sporadic winks, leers, and blown kisses were “sufficiently severe or pervasive to alter the conditions of his educational environment.” Papelino, 633 F.3d at 89; see Alfano v. Costello, 294 F.3d 365, 374 (2d Cir. 2002) (explaining that “isolated acts, unless very serious, do not meet the threshold of severity or pervasiveness“). Accordingly, the District Court correctly dismissed Irrera‘s Title IX hostile educational environ
CONCLUSION
For the foregoing reasons, the May 24, 2016, Order is AFFIRMED in part with respect to Irrera‘s Title IX, NYHRL, and NYCRL discrimination and hostile work environment claims, and for the reasons set forth in an opinion filed this day, is REVERSED in part with respect to Irrera‘s Title IX, NYHRL, and NYCRL retaliation claims, and REMANDED for further proceedings consistent with that opinion.3