Wiley, Ed.D v. SUNY PlattsburghWiley, Ed.D v. SUNY Plattsburgh
MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiff J.W. Wiley brings this action against the following defendants: his former employer, SUNY Plattsburgh; its president, John Ettling; its Title IX coordinator, Butterfly Blaise; a student intern in its Title IX office, Vrinda Kumar; and the SUNY Plattsburgh Studеnt Association. (Compl., Dkt. No. 1.) Wiley alleges that he was discriminated against due to his race and gender, and eventually fired after complaining about discrimination involving the Title IX office. (See generally id.) Pending are three motions to dismiss filed by defendants. For the following reasons, Kumar’s motion, (Dkt. No. 14), is granted; the motion filed by Ettling, Blaise, and SUNY Plattsburgh, (Dkt. No. 15); is granted in part and denied in part; and the SUNY Plattsburgh Student Association’s motion, (Dkt. No. 19), is granted.
II. Background
A. Facts1
1. Background
Wiley, an African American male, began
In November 2004, SUNY Plattsburgh’s Title IX coordinator, Lynda Ames, informed Wiley that a student in the Gender and Women’s Studies (GWS) Department filed an informal sexual harassment complaint against him. (Id. ¶ 12.) Ultimately, the student did not move the complaint to the formal process and her claims were not substantiated. (Id. ¶¶ 13-14.) However, “rumors began to circulate around . . . campus, accusing . . . Wiley of being a sexual predator.”3 (Id. ¶ 15.)
Five years later, professor Erin Mitchell, who was “operating” the GWS Department at the time, posted a comment on Wilеy’s blog that referenced “his supposed ‘widespread reputation for disrespect towards, harassment of, and sexually predatory behaviors against women’” as well as his “‘insidious, and infamous, misogyny.’” (Id. ¶¶ 16-17.) “Soon thereafter, the previous rumors that [he] was a sexual predator resurfaced[.]” (Id. ¶ 19.)
On a later undisclosed date, two of Wiley’s students––both of whom were executive officers in the Student Association4 and minored in GWS––filed complaints after Wiley showed a film in class that allegedly “made them question whether [he] would ‘find any fault with pressuring his current female students to have sex with him’” and “created a hostile environment in the classroom.” (Id. ¶¶ 20, 22, 24.) Ames was assigned to investigate the complaints. (Id. ¶ 24.)
On February 18, 2010, Wiley asked Ettling5 to remove Ames from the investigation given her involvement with the 2004 complaint and affiliation with the GWS Department. (Id. ¶ 25.) Professors Mitchell and Simona Sharoni, the Chair of the GWS Department at the time, “provid[ed] harsh criticism” of Wiley and his use of the film clip, (id. ¶ 23), and Wiley believed that “Ames, Mitchell[,] and Sharoni were working in tandem to undermine his reputation by labeling him, based on his race and gender, with the . . . destructive, stereotype and behavior perpetrating the ‘Myth of the Black Rapist,’” (id. ¶ 27). Although Ames remained involved in the investigation, “the students’ complaint regarding the film clip was found to be baseless.” (Id. ¶¶ 28-29.)
Still, in March 2010, Wiley requested that Ettling “examine the relationship between . . . Ames, Mitchell[,] and Sharoni, the GWS Department, and the false accusations and rumors that continued.” (Id. ¶ 30.) Specifically, Wiley complained that the circumstances “created a hostile wоrk environment related to his race and gender.” (Id. ¶ 31.)
2. Kumar’s Involvement
In 2018, Kumar, former president of the Student Association, began interning in
On or about February 13, 2018, Kumar asked Wiley’s former office assistant “personally invasive questions, including whether [she] had ever been sexually harassed by . . . Wiley.” (Id. ¶¶ 37-38.) After learning of this interaction, Wiley met with Ettling and complained that Kumar was conducting a Title IX investigation into prior unsubstаntiated complaints. (Id. ¶¶ 42-43.)
3. The Public Forums
On or about February 14, 2018––the day after Kumar questioned Wiley’s former office assistant––an unrelated racially charged incident occurred on campus.7 (Id. ¶ 46.) In response, Black Onyx (a student group that advocated for racial justice) organized protests, called for the resignation of SUNY Plattsburgh administrators, and worked with the Student Association to propose a vote of “no confidence” for some administrators, including, “at the Student Association’s insistence,” Wiley. (Id. ¶¶ 48-49.)
On February 15, 2018, SUNY Plattsburgh held a public forum that was attended by approximately 700 people, including Ettling, Blaise, and Kumar. (Id. ¶ 50.) After members of the Student Association announced the “no confidence” results, those in attendance were offered a chance to speak. (Id. ¶ 51.) One student stated that “‘I would like to have a Chief Diversity Officer that I haven’t heard disrespects women.’” (Id. ¶ 52.) This comment “diverted the debate . . . to salacious and unfounded rumors about . . . Wiley.” (Id. ¶ 53.) Thereafter, “Blaise stood up and made several provоcative statements before encouraging attendees to come forward with allegations against . . . Wiley.” (Id. ¶ 55.) Blaise said she was trying to do the right thing and that she “‘wo[uld not] sit quietly while survivors [we]re being silenced.’” (Id. ¶ 56.)
A few days later, a flyer was posted in campus bathrooms that stated, “‘We need a [C]hief [D]iversity [O]fficer who can protect us. But how can you do that when you sexually harass us?’” (Id. ¶ 58.)
4. Complaints to Ettling
On February 20, 2018, Wiley again complained to Ettling that Blaise and Kumar were abusing their Title IX positions. (Id. ¶ 59.) Ettling told Wiley that he would not allow Blaise to conduct an investigation “because of her ‘inability to be objective.’”8 (Id. ¶ 61.) Ettling also told Wiley that he was not currently under investigation. (Id.)
The next day, Wiley yet again complained to Ettling about Blaise and Kumar, as well as the rumors about him. (Id. ¶ 64.) Specifically, he “complained that the Title IX Office had become inappropriately associated with members of the GWS Department and the Student Association.”
5. The Facebook Post
On February 22, 2018, Wiley published а public Facebook post9 that “rebutt[ed] the salacious allegations against him” and “suggested taking legal action against SUNY Plattsburgh and . . . Ettling.” (Id. ¶¶ 66, 107.) Ettling saw the post and told Wiley to “‘[t]one it down.’” (Id. ¶ 67.) Wiley defended the post as “his attempt to rebut the public accusations against his personal character and not simply his role as SUNY Plattsburgh’s [Chief Diversity Officer],” and again complained about SUNY Plattsburgh’s investigatory practices. (Id.)
6. Investigation and Termination
On March 8, 2018, Ettling notified Wiley that he was under investigation. (Id. ¶ 68.) As a result, he was “placed on alternatе assignment, barred from being on campus, stripped of all supervisory authority, prohibited from teaching[,] and banned from communicating with individuals on campus.” (Id.) Wiley alleges that this prevented him from “doing his job, further tarnished [his] reputation[,] and contributed to rumors of false allegations of sexually predatory behavior.” (Id. ¶ 72.) Wiley also alleges, upon information and belief, that “Caucasian faculty [members] previously charged with . . . sexual misconduct were allowed to continue teaching, pending the outcоme of [an] investigation.” (Id. ¶ 74.)
Furthermore, Wiley alleges, upon information and belief, that, during the investigation, Blaise, Kumar, and the Student Association were soliciting women to make allegations against him. (Id. ¶ 73.) On or around April 19, 2018, Wiley filed a charge of discrimination and retaliation with the Equal Employment Opportunity Commission (EEOC).10 (Id. ¶ 75.) On June 22, 2018, Ettling fired Wiley without explanation. (Id. ¶ 76.)
B. Procedural History
Wiley commenced this action on November 30, 2018. (Id.) He brings gender discrimination claims under Title IX of the Education Amendments of 1972 (Title IX)11 against all defendants, (id. ¶¶ 77-103); a Section 198312 claim based on a violation of the First Amendmеnt against SUNY Plattsburgh and Ettling, (id. ¶¶ 104-110); a claim under Title VII of the Civil Rights Act (Title VII)13 based on race and gender discrimination, a Title VII retaliation claim, and various state law claims against SUNY Plattsburgh, (id. ¶¶ 111-149); as well as aiding and abetting claims under the New York State Human Rights Law (NYSHRL)14 against Ettling, Blaise, Kumar, and the Student Association, (id. ¶¶ 150-168).
On January 25, 2019, Kumar moved to dismiss the complaint under
A. Rule 12(b)(6)
The standard of review under
B. Rule 12(b)(1)
Under
IV. Discussion
A. Title IX Claims Against Individuals
Wiley’s claims against Ettling, Blaise, and Kumar, (Compl. ¶¶ 77-103), fail as a matter of law because there is no personal liability under Title IX.16 See, e.g., Fitzgerald v. Barnstable Sch. Comm., 555 U.S. 246, 257 (2009); Doe v. Rensselaer Polytеchnic Inst., No. 1:18-cv-1374, 2019 WL 181280, at *3 (N.D.N.Y. Jan. 11, 2019).
B. State Law Claims
1. Sovereign Immunity
Wiley concedes that sovereign immunity bars his state law claims against SUNY Plattsburgh. (Dkt. No. 16 at 1 n.1, 21.) As such, all of Wiley’s state law claims against SUNY Plattsburgh, (Compl. ¶¶ 111-18, 135-49), are dismissed for lack of subject matter jurisdiction. See Dube v. State Univ. of N.Y., 900 F.2d 587, 594 (2d Cir. 1990); Serrano v. New York State Dep’t of Envtl. Conservation, No. 12-CV-1592, 2013 WL 6816787, at *14 (N.D.N.Y. Dec. 20, 2013); Fry v. McCall, 945 F. Supp. 655, 661 (S.D.N.Y. 1996).
3. Aiding and Abetting Claims
Given that the only primary NYSHRL claims are dismissed based on sovereign immunity, the individual defendants cannot be liable for aiding and abetting those claims under
C. Section 1983: First Amendment Retaliation
1. SUNY Plattsburgh
Wiley cannot state a Section 1983 claim against SUNY Plattsburgh because “‘the State University is not a “person” within
2. Ettling
Wiley’s Section 1983 claim against Ettling in his individual capacity18 is premised on the theory that Wiley’s removal from campus and subsequent termination were in retaliation for exercising his First Amendment right to petition the government for redress of grievances. (Compl. ¶¶ 104-110.) Specifically, he references two such petitions: (1) “complaining to . . . Ettling about animus motivated by race and gender” and (2) “posting complaints to his public social media account.” (Id. ¶¶ 106-107.) Ettling argues that Wiley’s claim must be dismissed becausе such personal grievances are not matters of public concern protected by the First Amendment. (Dkt. No. 15, Attach. 1 at 22.)
“Speech involves matters of public concern when it can be fairly considered as relating to any matter of political, social, or other concern to the community, or when it is a subject of . . . general interest and of value and concern to the public.” Lane v. Franks, 573 U.S. 228, 241 (2014). “Whether an employee’s statement addresses a matter of public concern must be determined by the content, form[,] and context of a given statement.” Connick v. Myers, 461 U.S. 138, 159 (1983). Generally, “corruption in a public program and misuse of state funds . . . involves a matter of significant public concern.” Lane, 573 U.S. at 241.
At this stage, it can be reasonably inferred that some of Wiley’s complaints to Ettling addressed alleged corruption concerning SUNY Plattsburgh’s Title IX
D. Remaining Claims Sgainst SUNY Plattsburgh
1. Discrimination Claims
In order to state a cognizable Title VII19 discrimination claim, a plaintiff must demonstrate, among other things, that “[an] adverse action occurred under circumstances giving rise to an inference of discrimination.” Walsh v. N.Y.C. Housing Auth., 828 F.3d 70, 75 (2d Cir. 2016). “An inference of discrimination can arise from circumstances including, but not limited to, . . . the more favorable treatment of employees not in the protected group; or the sequence of events leading to the plaintiff’s discharge.” Littlejohn v. City of New York, 795 F.3d 297, 312 (2d Cir. 2015). “[A]t the initial stage of a litigation, the plaintiff’s burden is minimal—he need only plausibly allege facts that provide at least minimal support for the proposition that the employer was motivated by discriminatory intent.” Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 86-87 (2d Cir. 2015).
The court agrees with SUNY Plattsburgh that the crux of Wiley’s сomplaint contains only vague and conclusory allegations of discrimination. (Dkt. No. 15, Attach. 1 at 5-16.) That is, the majority of the complaint merely relays Wiley’s subjective beliefs that defendants were discriminating against him but lacks factual support.20 (Compl. ¶¶ 16, 27, 30-31, 82, 97.) Even accepting Wiley’s allegation made upon “information and belief,” that the the rumors about him started in the GWS Department, (id. ¶ 16), there are no facts from which it can be reasonably inferred that these rumors were spurred by his race or gender––as opposed to prior complaints of misconduct against him, (id. ¶¶ 13-15, 19, 22, 24, 52-53, 58). Even if the complaints levied against him were induced by discriminatory beliefs––which there are no allegations to support––the individuals making such complaints are not parties to this action. (Id. ¶¶ 12, 22.) Moreover, although Wiley suggests bias in prior investigations, none of the complaints were
Similarly, there is no indication that any of the comments made about Wiley at the public forum or posted on flyers thereafter were related to his race or gender. (Id. ¶¶ 48-49, 51, 53-56, 58.) In sum, Wiley’s discrimination claims boil down to a classic false syllogism that fails to support an inference of discrimination: “I am (fill in the protected class of which the plaintiff is a member); something bad happened to me . . . ; therefore the bad thing happened because I am (fill in the protected class).” Pertillar v. AAA W. and Cent. N.Y., 5:16-cv-238, 2018 WL 583115, at *6 (N.D.N.Y. Jan. 26, 2018); cf. Jones v. Target Corp., 15-CV-4672, 2016 WL 50779, at *3 (E.D.N.Y. Jan. 4, 2016) (“Plaintiff’s allegations fail to support a plausible inference of discrimination and []he has not plausibly alleged that h[is] gender was a motivating factor in h[is] termination.”); Khaleel v. Swissport USA, Inc., No. 15-CV-4880, 2015 WL 5307733, at *2 (E.D.N.Y. Sept. 10, 2015) (dismissing discrimination claim because “[e]ven under the most liberal interpretation of [plaintiff’s] complaint, he provides no facts that could possibly connect or link any adverse employment action to a protected status”); Moccio v. Cornell Univ., 889 F. Supp. 2d 539, 574 (S.D.N.Y. 2012) (“That [plaintiff] was a []man and was terminated is not nearly enough to support an inference of discrimination.”).
Furthermore, Wiley’s allegation that Caucasian employees сharged with sexual misconduct were allowed to continue teaching pending an investigation, (Compl. ¶ 74), is a “naked assertion[] devoid of further factual enhancement.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see Ruston v. Town Bd. of Skaneateles, 610 F.3d 55, 59 (2d Cir. 2010) (“Under Iqbal, factual allegations must be sufficient to support necessary legal conclusions . . . [and must] plausibly suggest an entitlement to relief.”). Critically missing are facts to support the notion that similarly situated employees were treated differently. See Winston v. City of New York, No. 12–CV–395, 2013 WL 4516097, at *2-*3 (E.D.N.Y. Aug. 23, 2013) (disregarding conclusory allegation that defendants “did not treat similarly situated male supervisors in [the same] manner”); Howard v. MTA Metro–N. Commuter R.R., 866 F. Supp. 2d 196, 208 (S.D.N.Y. 2011) (“[T]o show that similarly situated individuals were treated differently . . . it is insufficient to offer little more than conclusory statements or sweeping allegations.”); Dickerson v. State Farm Fire & Cas. Co., No. 95 Civ. 10733, 1996 WL 445076, at *4 (S.D.N.Y. Aug. 1, 1996) (“Plaintiff[’s] naked allegation of racial selectivity is not enough.”).
As such, Wiley’s discrimination claims under Title IX, Title VI, and the NYSHRL against SUNY Plattsburgh, (Compl. ¶¶ 77-103, 119-129, 135-144), are dismissed.
2. Retaliation Claims
Wiley’s retaliation claims against SUNY Plattsburgh are premised on the theory that “[his] termination was an adverse
To state a retaliation claim under Title VII,21 a plaintiff must plausibly allege “(1) participation in a protected activity; (2) that the defendant knew of the protected activity; (3) an adverse employment action; and (4) a causal connection between the protected activity and the adverse employment action.” Littlejohn, 795 F.3d at 315-316. “The causal connection needed for proof of a retaliation claim can be established indirectly by shоwing that the protected activity was closely followed in time by the adverse action.” Lovejoy–Wilson v. NOCO Motor Fuel, Inc., 263 F.3d 208, 224 (2d Cir. 2001); see Lambert v. Trump Int’l Hotel & Tower, 304 F. Supp. 3d 405, 423 (S.D.N.Y. 2018) (finding three months is, generally, the outer limit of time that can give rise to such an inference).
At this stage, it is enough that Wiley alleges that SUNY Plattsburgh removed him from campus less than a month after he complained to Ettling about perceived discrimination and suggested that he may take legal action, then fired him without explanation approximately two months after he filed an EEOC charge сomplaining of discrimination and retaliation. (Compl. ¶¶ 66-68, 75-76.) Accordingly, this portion of SUNY Plattsburgh’s motion is denied.
E. Title IX Claims Against the Student Association
The Student Association argues that Wiley fails to state a Title IX discrimination claim against it because there are insufficient allegations regarding its involvement in any investigation or Wiley’s subsequent termination. (Dkt. No. 19, Attach. 1 at 4.) In his response, Wiley asserts that “the Student Association participated in discriminatory conduct by promoting . . . sexist stereotypes about [him],” “encouraging SUNY Plattsburgh to take adverse actions against [him] based on his gender,” and “promot[ing] baseless and discriminatory rumors about [him], in addition to soliciting students, faculty and staff to bring complaints against [him].” (Dkt. No. 21 at 6 (citing Compl. ¶¶ 165-166)).
To be sure, at this stage, Wiley need only “plead[] specific facts that support a minimal plausible inference of . . . discrimination [on account of sex].” Doe v. Columbia Univ., 831 F.3d 46, 56 (2d Cir. 2016). However, the crux of the allegations cited in Wiley’s response concerning the Student Association’s “participat[ion] in discriminatory conduct” are vague and conclusory. (Dkt. No. 21 at 6 (citing Compl. ¶¶ 164-168)); see In re Facebook, Inc., 797 F.3d 148, 159 (2d Cir. 2015) (“[The court is] not . . . bound to accept
Furthermore, there is nothing in the complaint from which it can be reasonably inferred that the Student Association “harbored discriminatory animus toward [him],” (Dkt. No. 21 at 6), as opposed to personal animus based on рrevious complaints and the perceived mishandling of a racial incident on campus. Cf. Sanches v. Carrollton-Farmers Branch Indep. Sch. Dist., 647 F.3d 156, 165 (5th Cir. 2011) (dismissing Title IX claim where there was “nothing in the record to suggest” that defendant’s conduct “was motivated by anything other than personal animus”); Eskenazi–McGibney v. Connetquot Cent. Sch. Dist., 84 F. Supp. 3d 221, 233 (E.D.N.Y. 2015) (dismissing claims where plaintiffs failed to allege non-conclusory facts connecting harassment to a protected characteristic, and harassment may have been basеd on some other reason “such as personal animus”). And, for the reasons previously discussed, it cannot be reasonably inferred that the Student Association participated in any discriminatory conduct on the part of SUNY Plattsburgh. See supra Part IV.D.2. As such, Wiley’s Title IX claims against the Student Association, (Compl. ¶¶ 77-103), are dismissed.22
V. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that Kumar’s motion to dismiss (Dkt. No. 14) is GRANTED; and it is further
ORDERED that the motion to dismiss filed by SUNY Plattsburgh, Ettling, and Blaise (Dkt. No. 15) is GRANTED IN PART and DENIED IN PART as follows:
DENIED with respect to Wiley’s Section 1983 claim against Ettling, (Compl. ¶¶ 104-106, 108-110), and his Title VII retaliation claim against SUNY Plattsburgh, (id. ¶¶ 130-134); and
GRANTED in all other respects; and it is further
ORDERED that the Student Association’s motion to dismiss (Dkt. No. 19) is GRANTED; and it is further
ORDERED thаt the Clerk terminate Butterfly Blaise, Vrinda Kumar, and the SUNY Plattsburgh Student Association as parties to this action; and it is further
ORDERED that the remaining parties shall file a responsive pleading in accordance with the rules; and it is further
ORDERED that the remaining parties contact Magistrate Judge Daniel J. Stewart to schedule further proceedings in accordance with this Memorandum-Decision and Order; and it is further
ORDERED that the Clerk provide a copy of this Memorandum-Decision and Order to the parties.
IT IS SO ORDERED.
September 27, 2019
Albany, New York
Gary L. Sharpe
U.S. District Judge