# Hauff v. State University of New York

> District Court, E.D. New York · December 3, 2019

URL: https://www.frixlaw.com/law-library/cases/10303460

## Case

- **Court:** District Court, E.D. New York
- **Decided:** December 3, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10303460

## How later opinions describe it (automated extraction)

- holding that evidence that defendant “made numerous (approximately six) sexual comments and on multiple occasions grabbed [plaintiff] and other around the waist, tickled and stared as if he was mentally undressing them” sufficient to defeat summary judgment motion
- holding that Title IX private cause of action "extends to employment discrimination on the basis of gender by educational institutions receiving federal funds."
- holding that "a private right of action for employment discrimination exists under Title IX separate and apart from Title VII and without regard to the availability of the Title VII remedy"

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-------------------------------------------------------X
KERI HAUFF,
MEMORANDUM & ORDER
Plaintiff, 18-CV-7256 (DRH)(ARL)
-against-

STATE UNIVERSITY OF NEW YORK,
FARMINGDALE STATE COLLEGE, and
MARVIN FISCHER, in his individual and
official capacity,

Defendants.
-------------------------------------------------------X

APPEARANCES:

For Plaintiff:
Fenley LLP
260 Montauk Highway Suite #1
Bay Shore, New York 11706
By: Jason P. Fenley, Esq.

For Defendant State University of New York, Farmingdale State College:
Letitia James
Attorney General of the State of New York
300 Motor Parkway, Suite 230
Hauppauge, New York 11788
By: Lori L. Pack, Esq.

For Defendant Marvin Fischer:
Sokoloff Stern LLP
179 Westbury Avenue
Carle Place, New York, 11514
By: Mark A Radi, Esq.

HURLEY, Senior District Judge:

Plaintiff Keri Hauff (“Plaintiff” or “Hauff”) commenced this action against defendants
State University of New York (“SUNY”), Farmingdale State College (the “College”) (together
“State Defendants”) and Marvin Fischer (“Fischer”) (Fischer and State Defendants are
collectively referred to as “Defendants”) pursuant to Title IX of the Education Amendments of
1982, 20 U.S.C.§§1681 et seq. (“Title IX”) and the New York State Human Rights Law, N.Y.
Exec. Law § 290 et seq (“NYSHRL”). Presently before the Court are Defendants’ motions to
dismiss pursuant to Rule 12(b)(1) and (6) of the Federal Rules of Civil Procedure. For the
reasons set forth below, the motions are granted in part and denied in part.

BACKGROUND
The following allegations are taken from the Complaint (“Comp.”) and assumed true for
purposes of this motion.
SUNY is a system of public institutions, responsible for the enrollment of over 400,000
students and the employment for 80,000 persons. The College is a college within the SUNY
system. Both SUNY and the College are recipients of local, state and federal funding. SUNY
oversees the New York State University Police, which operates the College’s University Police
Department (“UPD”). During the relevant period, Fischer was the Chief of the UPD. (Comp. ¶¶
10-13.)

Plaintiff began her employment with the UPD as a police officer in about September
2005 at the age of 24. She was the only female police officer on the UPD, and from the start, she
faced inappropriate conduct and sexual harassment at the hands of Fischer. In July of 2005 at the
UPD police academy, Defendant Fischer pulled Ms. Hauff aside from the rest of the police
cadets and asked her if she wanted to sit in his car with the air conditioning on. Chief Fischer
ogled Plaintiff, made inappropriate comments, and engaged in unwanted advances and touching
throughout Plaintiffs career. Fischer would say to Plaintiff in a manner suggesting sexual
attraction, "I like you" and "I have my eye on you." When the UPD provided security at the 2009
U.S. Open Golf Tournament at Bethpage State Park, Fischer told Ms. Hauff that she did not have
to "work a post" but could drive around with him instead. (Comp. ¶¶ 14-23.)
In May of 2010, Plaintiff confronted Fischer and told him that he was harassing
her. Plaintiff enrolled in a cardiac sonography program with the intent of eventually leaving the

UPD. Plaintiff later abandoned plans to leave her position with the UPD and instead took a
"plain-clothes" assignment with the UPD as an Accreditation Co-Manager. Even after this new
assignment, Fischer would stand uncomfortably close to Plaintiff, make crude sexual remarks,
ogle and leer at Plaintiff, and touch Plaintiff’s back and hands. This behavior occurred two to
three times a week. Daniel Daugherty ("Daugherty"), at the time the Accreditation Co-Manager
and later the Deputy Chief of the UPD, witnessed these incidents. (Id. at ¶¶ 25-35.)
On September 2, 2015 Fischer slapped Plaintiffs buttocks as she bent over to place a
folder in a filing cabinet. Fischer then remarked, "I bet your husband doesn't even do that."
Plaintiff was horrified and humiliated and confronted Fischer and told him that could never

happen again to which he responded "duly noted." This slapping incident convinced her that a
formal complaint was necessary. (Id. at ¶¶ 41-45.)
Plaintiff went to see Dr. Veronica Henry, the College's Title IX Coordinator. Despite
Plaintiff being upset, Dr. Henry required Plaintiff to complete the Title IX complaint packet right
then and there. Although Plaintiff checked the box for a formal complaint, Dr. Henry steered
Plaintiff away from the formal process, misled Plaintiff about the length of the formal complaint
process, and pressured Plaintiff to pursue the informal resolution process. (Id. at ¶¶ 49-53.)
As part of the informal process, Fischer admitted to slapping Plaintiffs buttocks and
described the act as "an attempt to have some levity in an extremely busy day and break up what
I perceived to be stress". Daugherty admitted to witnessing the slapping incident and the
subsequent comment. On September 16, 2015, a Memorandum Resolution was reached,
effectively banning further communication between Plaintiff and Fischer. Because the
communication ban proved impractical given Plaintiffs duties, Plaintiff and the College agreed to
lift the ban on the condition that all communications be "conducted [] in a professional/business

related manner only; no personal information shall be asked or inclinations perceived at any
time." (Id. at ¶¶ 54-61.)
In April of 2016, Plaintiff was promoted to Investigator. Her new role required even more
contact with Fischer, and “as the contact between Plaintiff and Fischer increased so did the
harassment.” However,, no specific instances of harassment for 2016 are described in the
complaint. In 2017 Plaintiff began to keep a journal of “the most egregious incidents.” Fischer
would preface his sexually harassing comments to Plaintiff with qualifiers like "can I say this
without getting in trouble" or "I am probably going to get in trouble for saying this, but . . . . "
The incidents after her promotion included Fischer referring to a female witness' breast size and

using his hands to emphasize large breasts, Fischer asking Plaintiff if he could put up a photo of
Plaintiff with two other female police officers on his desk, and Fischer, in the presence of
Plaintiff, instructing female officers and staff to use "what they have to get what they want." On
July 20, 2017 Fischer entered Daugherty's office where Plaintiff was standing and working with
Daugherty. Fischer sat close enough to Plaintiff that he was “almost touching her with his upper
legs and thighs.” Plaintiff turned away, and when her radio, which was fastened to her belt, made
noise, Fischer reached over and grabbed it. “At one point during her tenure, Daugherty said to
Plaintiff, "all you ever wanted to do was come to work and do your job, but instead you have to
deal with him [Fischer]." On July 21, 2017, Fischer in a common area of the UPD offices, told
his secretary to "go back to my office so you can hear [a female officer] orgasm" after that
officer received her new taser holster. On September 12, 2017, Fischer again violated the terms
of the Memorandum and the 2016 amendment when he “inquired about the Plaintiff’s daughter.”
(Id. at ¶¶ 62 -76.)
On September 15, 2017 “Plaintiff visited Dr. Henry and requested that her journal entries

be made part of the complaint file against Fischer. Dr. Henry’s secretary . . . stamped the
documents received and placed then in the complaint file.” Plaintiff “assumed there would be a
follow-up investigation from the Title IX office” but there was none. (Id. at ¶¶ 78-79.)
On March 28, 2018 Fischer badgered Plaintiff over an issue regarding evidence bags and
waived his fist at her. When the officers received an invitation to attend Title IX training,
Fischer told Plaintiff that there was "a piece of paper in Dr. Henry's desk preventing us from
going together." On August 3, 2018, when a conversation between Fischer and Plaintiff ended,
Fischer told Plaintiff "Ok, go on and get your cute little ass outta here." Four days later, Fischer
blocked Plaintiffs path to her office and told her "you look really really good today, but that's

beside the point" and then began swaying back and forth on his feet while closing his eyes. (Id.
at ¶¶ 81-84.)
On August 14, 2018, Plaintiff filed another complaint with the College's Title IX
Coordinator, Frank Rampello, who had replaced Dr. Henry. When Mr. Rampello retrieved the
file on Fischer, the journal entries that Plaintiff had submitted to Dr. Henry on September 15,
2017, were missing. (Id. at ¶¶85-87.)
Mr. Rampello convened a panel to investigate Plaintiff’s complaint. After a hearing, the
panel substantiated the complaint. It also found that Fischer failed to abide by the stipulations of
the 2015 agreement. It recommended that Fischer not be allowed to return to the campus in any
capacity. On September 24, 2018, the College’s president adopted the panel’s findings and
required that Fischer separate from service accepting his irrevocable letter of resignation.
Notwithstanding that Fischer was forced to resign the College’s president sent out a campus wide
email wishing him good luck on his retirement. “Fischer has be[en] allowed to return to campus

on more than one occasion since his separation from service.” (Id. at ¶¶ 88-96.)
Based on the foregoing allegations, Plaintiff asserts four causes of action. The first and
third causes of action are against the State Defendants for sexual harassment/ hostile workplace
in violation of Title IX and the NYSHRL, respectively. The second and fourth causes of action
assert that Fischer is liable for aiding and abetting a violation of Title IX and of the NYSHRL,
respectively.
DISCUSSION
I. Applicable Standards
A. Federal Rule of Civil Procedure 12(b)(1)

A case may properly be dismissed for lack of subject matter jurisdiction pursuant to Rule
12(b)(1) “when the district court lacks the statutory or constitutional power to adjudicate it.”
Makarova v. United States, 201 F.3d 110, 113 (2d Cir.2000). It is also the proper vehicle for
arguments that a defendant is protected by sovereign immunity. Wake v. United States, 89 F.3d
53, 57 (2d Cir.1996).
“In contrast to the standard for a motion to dismiss for failure to state a claim under Rule
12(b)(6), a ‘plaintiff asserting subject matter jurisdiction has the burden of proving by a
preponderance of the evidence that it exists.’” MacPherson v. State St. Bank & Trust Co., 452 F.
Supp. 2d 133, 136 (E.D.N.Y. 2006) (quoting Reserve Solutions Inc. v. Vernaglia, 438 F. Supp.
2d 280, 286 (S.D.N.Y. 2006)), aff’d, 273 F. App’x 61 (2d Cir. 2008); accord Tomaino v. United
States, 2010 WL 1005896, at *1 (E.D.N.Y. Mar. 16, 2010). “In resolving a motion to dismiss for
lack of subject matter jurisdiction, the Court may consider affidavits and other materials beyond
the pleadings to resolve jurisdictional questions.” Cunningham v. Bank of New York Mellon,
N.A., 2015 WL 4101839, * 1 (E.D.N.Y. July 8, 2015) (citing Morrison v. Nat’l Australia Bank,

Ltd., 547 F.3d 167, 170 (2d Cir. 2008)).
B. Federal Rule of Civil Procedure 12(b)(6)
In deciding a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure
to state a cause of action, a court should “draw all reasonable inferences in Plaintiff[‘s] favor,
assume all well-pleaded factual allegations to be true, and determine whether they plausibly give
rise to an entitlement to relief.” Faber v. Metro. Life Ins. Co., 648 F.3d 98, 104 (2d Cir. 2011)
(internal quotation marks omitted). The plausibility standard is guided by two principles.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544
(2007)); accord Harris v. Mills, 572 F.3d 66, 71–72 (2d Cir. 2009).

First, the principle that a court must accept all allegations as true is inapplicable to legal
conclusions. Thus, “threadbare recitals of the elements of a cause of action supported by mere
conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. Although “legal conclusions can
provide the framework of a complaint, they must be supported by factual allegations.” Id. at 679.
A plaintiff must provide facts sufficient to allow each named defendant to have a fair
understanding of what the plaintiff is complaining about and to know whether there is a legal
basis for recovery. See Twombly, 550 U.S. at 555.
Second, only complaints that state a “plausible claim for relief” can survive a motion to
dismiss. Iqbal, 556 U.S. at 679. “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. The plausibility standard is not akin to a ‘probability requirement,’ but asks
for more than a sheer possibility that defendant acted unlawfully. Where a complaint pleads facts
that are ‘merely consistent with’ a defendant's liability, it ‘stops short of the line’ between
possibility and plausibility of 'entitlement to relief.' ” Id. at 678 (quoting Twombly, 550 U.S. at

556-57) (internal citations omitted); see In re Elevator Antitrust Litig., 502 F.3d 47, 50 (2d Cir.
2007). Determining whether a complaint plausibly states a claim for relief is “a context specific
task that requires the reviewing court to draw on its judicial experience and common sense.”
Iqbal, 556 U.S. at 679; accord Harris, 572 F.3d at 72.
“In adjudicating a Rule 12(b)(6) motion, a district court must confine its consideration ‘to
facts stated on the face of the complaint, in documents appended to the complaint or incorporated
in the complaint by reference, and to matters of which judicial notice may be taken.’” Leonard F.
v. Israel Disc. Bank of New York, 199 F.3d 99, 107 (2d Cir. 1999) (quoting Allen v. WestPoint–
Pepperell, Inc., 945 F.2d 40, 44 (2d Cir. 1991)); see Weiss v. Village of Sag Harbor, 762 F.

Supp. 560, 567 (E.D.N.Y. 2011) (in deciding a motion to dismiss a court is entitled to consider,
inter alia, “documents ‘integral’ to the complaint and relied upon in it, even if not attached or
incorporated by reference” and “documents or information contained in defendant’s motion
papers if plaintiff has knowledge or possession of the material and relied on it in framing the
complaint”). A document may be considered on a motion to dismiss where the plaintiff has
“reli[ed] on the terms and effect of [the] document in drafting the complaint.” Chambers v. Time
Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002) (emphasis omitted). Such reliance “is a necessary
prerequisite to the court's consideration of the document on a dismissal motion; mere notice or
possession is not enough.” Id.; see Faulkner v. Beer, 463 F.3d 130, 134 (2d Cir. 2006) (integral
documents may include documents partially quoted in complaint or on which plaintiff relied in
drafting complaint).
II. Position of the Parties
State Defendants raise a number of arguments in support of their motion. First, they

assert that Plaintiff’s NYSHRL claims against them are barred by the Eleventh Amendment.1
Second, they maintain that the Title IX claim must be dismissed as employment discrimination
claims are not actionable under that statute. To the extent that there is a Title IX hostile work
environment claim, they argue that (1) the statute of limitation bars all incidents which occurred
prior to December 20, 2015; (2) the September 2015 Memorandum bars all alleged incidents
occurring prior to its execution; (3) the College did not have notice of any alleged harassment
occurring after the September 2015 Memorandum until August 14, 2018; (4) the behavior
complained of does not rise to the level of a hostile environment; (5) they are entitled to the
defense enunciated in Faragher v. City of Boca Raton, 524 U.S. 775, (1998) and Burlington Ind.,

Inc. v. Ellerth, 742, 765 (1998); and (6) punitive damages are not available in a Title IX case.
Fischer’s motion to dismiss asserts the following arguments: (1) there is no individual
liability under Title IX; (2) this action is partially time barred; (3) no plausible hostile work
environment claim has been stated; (4) no claim for aiding and abetting under the NYSHRL has
been stated; and (5) punitive damages are not available against Fischer.
In response, noting that the Second Circuit has not ruled on the issue and there is a split
of authority within the Circuit, Plaintiff maintains that her Title IX claim is separate and apart
from any Title VII claim. With respect to the statue of limitations arguments, Plaintiff asserts the

1 State Defendants also claim Eleventh Amendment immunity as to any claim pursuant to 42 U.S.C. § 1983 but
there is no such claim asserted in the Complaint.
continuing violation and equitable tolling doctrines apply and that, at the very least, pre-
limitation period conduct can be used a background evidence. She further disputes the claims
that (1) she has not stated a hostile work environment claim under Title IX against the State
Defendants and under the NYSHRL against Fischer; and (2) that the State Defendants are
entitled to the Faragher/Ellerth defense. Lastly, she argues that the State Defendants are not

entitled to Eleventh Amendment immunity from Title IX claims and that punitive damages under
Title IX are available as against them.
III. Format of Decision
By way of format, the Court will first address the issue of Eleventh Amendment
Immunity. The next issue to be addressed is whether Title IX provides a private cuase of action
for Plaintiff’s discrimination claim. The Court will then turn to the issues of timeliness and
whether a plausible claim for hostile work environment has been stated. Last to be addressed will
be the Faragher-Ellerth defense, the NYSHRL claim against Fischer, and the availability of
punitive damages.

IV. Eleventh Amendment Immunity
The Eleventh Amendment provides: “The Judicial power of the United States shall not be
construed to extend to any suit in law or equity, commenced or prosecuted against one of the
United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.”
It has long been settled that the reference to actions against one of the United
States encompasses not only actions in which a State is actually named as the
defendant, but also certain actions against state agents and state instrumentalities.
Thus, when the action is in essence one for the recovery of money from the state,
the state is the real, substantial party in interest and is entitled to invoke its
sovereign immunity from suit even though individual officials are nominal
defendants.
Ford v. Reynolds, 316 F.3d 351, 354 (2d Cir. 2003) (quoting Regents of the Univ. of Cal. v. Doe,
519 U.S. 425, 429 (1997). Moreover, in addition to barring suits brought against a state by
citizens of another state the Supreme Court has long held that the Eleventh Amendment bars
suits against a state by one of its own citizens. See, e.g., Coll. Sav. Bank v. Fl. Prepaid
Postsecondary Educ. Expense Bd., 527 U.S. 666, 670 (1999); Edelman v. Jordan, 415 U.S. 651

(1974). The Eleventh Amendment generally prohibits suits against state governments in federal
court. Richardson v. New York State Dep't Correctional Serv., 180 F.3d 426, 447–48 (2d
Cir.1999) (citing Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 106, 104 S.Ct.
900, 79 L.Ed.2d 67 (1984)). This jurisdictional bar extends to a state entity that is an “arm of the
State.” See Northern Ins. Co. of N.Y. v. Chatham County, Ga., 547 U.S. 189 (2006). It also bars
an award of damages against state officials in their official capacity. See Ford v. Reynolds, 316
F.3d 351, 354 (2d Cir. 2003)
In this case, the State Defendants assert that dismissal of Plaintiff’s NYSHRL and 1983

claims against them is required on the grounds of Eleventh Amendment immunity. There is,
however, no § 1983 claim asserted in the complaint. Plaintiff does not address such immunity vis
a vis her NYSHRL claim. Rather she argues that Congress abrogated the states’ Eleventh
Amendment immunity under Title IX. While Plaintiff is correct in that assertion, see Franklin v.
Gwinnett County Public Schools, 503 U.S. 60, 72-73 (1992), it is not an issue raised on the
instant motion.
New York State has not waived its Eleventh Amendment immunity and consented to suit
in federal court under the NYSHRL. See Quadir v. N.Y. State Dep't of Labor, 39 F. Supp. 3d
528, 537–38 (S.D.N.Y. 2014). The College is an agency of New York State. See Mamot v. Bd.
of Regents, 367 F. App’x 191, 192-93 (2d Cir. 2010) (State University of New York entitled to
immunity under the Eleventh Amendment as an agency of the State of New York); Dube v. State
Univ. of N.Y., 900 F.2d 587, 594-95 (2d Cir. 1990) (Eleventh Amendment extends immunity not
only to a state, but also to entities considered arms of the State, such as the University).
Accordingly, Plaintiff’s claims under the NYSHRL against SUNY and the College are barred by
sovereign immunity and must be dismissed. See Wilkinson v. New York State. 2019 WL

5423573, *7 (E.D.N.Y. Oct. 22, 2019) (dismissed claims against New York and the State
University of New York at Stony Brook on Eleventh Amendment grounds). The claims against
Fischer in his official capacity are similarly barred. See id. Additionally, by failing to address
whether Eleventh Amendment immunity applies to her NYSHRL claim against the State
Defendants and Fischer in his official capacity, Plaintiff has abandoned those claims, providing
another basis for their dismissal. See, e.g., Wilkov v. Ameriprise Fin. Servs. Inc., 753 F. App’x
44, 47 n.1 (affirming district court’s dismissal of claims on the grounds they were abandoned
when plaintiff failed to oppose them in her opposition to motion to dismiss).
The motions to dismiss on the basis of Eleventh Amendment immunity are granted as to

the NYSHRL claims asserted against the State Defendants and as against Fischer in his official
capacity.
V. Availability of Title IX for Plaintiff’s Hostile Work Environment Claim
A. As against the State Defendants
Title IX’s relevant portion provides, “No person in the United States shall, on the basis of
sex, be excluded from participation in, be denied the benefits of, or be subjected to
discrimination under any education program or activity receiving Federal financial assistance.”
20 U.S.C. § 1681(a). This provision was enacted to supplement the Civil Rights Act of 1964’s
bans on racial discrimination in the workplace and in universities. Yusuf v. Vassar Coll., 35 F.3d
709, 714 (2d Cir. 1994).
As the parties acknowledge, the Second Circuit has not ruled on whether there is a private
right of action for employment discrimination under Title IX, see Summa v. Hofstra Univ., 708
F.3d 115, 131 (2d Cir. 2013). The district courts in this Circuit are divided on this issue.

Compare AB v. Rhinebeck Cent. Sch. Dist., 224 F.R.D. 144, 153 (S.D.N.Y.2004) (holding that an
employee alleging gender discrimination was "eligible to bring an action under Title IX");
Henschke v. N. Y Hospital-Cornell Med. Ctr., 821 F. Supp. 166, 171-72 (S.D.N.Y. 1993)
(holding that "a private right of action for employment discrimination exists under Title IX
separate and apart from Title VII and without regard to the availability of the Title VII remedy");
Campisi v. The City University of New York, 2016 WL 4203549 at *4 (S.D.N.Y. 2016) ("courts
within this Circuit have suggested that such a cause of action may proceed”); Kohlhausen v.
SUNY Rockland Cnty. Coll., 2011 WL 1404934 at *9 (S.D.N.Y. Feb. 9, 2011) ("Title IX
provides a private right of action against gender discrimination to employees of federally-funded

educational institutions, and . . . this Title IX right of action is not preempted although a remedy
under Title VII is also available") abrogated on other grounds by Leitner v. Westchester Cmty.
Coll., 779 F.3d 130 (2d Cir. 2015), with Gayle v. Children’s Aid Coll. Prep Charter Sch., 2019
WL 3759097, *5-6 (S.D.N.Y. July 19, 2019) (“Plaintiff is an employee of a federally-funded
educational institution attempting to bring quintessential Title VII claims of employment
discrimination and workplace sexual harassment under Title IX. Title VII provides the exclusive
remedy for such claims, therefore the School’s and the Society’s motions to dismiss Plaintiff’s
Title IX claims are GRANTED.”); Towers v. State Univ. of New York at Stony Brook, 2007 WL
1470152 at *4 (E.D.N.Y. 2007) (“The Court agrees with those courts that have held that Title IX
cannot be used to circumvent the remedial scheme of Title VII.”); Vega v. State Univ. of N.Y.,
2000 WL 381430, *3 (S.D.N.Y. Apr. 13, 2000) (“This Court agrees with the Fifth Circuit and
numerous district courts that have held Title VII provides the exclusive remedy for individuals
alleging employment discrimination on the basis of sex, and limiting money damages under Title
IX to student plaintiffs.”); Burrell v. City Univ. of New York, 995 F. Supp. 398, 410 (1998) (“The

concern that Title VII requirements remain intact for employment discrimination claims is
persuasive. To hold otherwise would be to create an avenue of relief for employees of federally
funded educational institutions which differs significantly from the path afforded to other
employees.)2 It is into this fray the Court now wades.
The Court begins with relevant Supreme Court precedents.
In Johnson v. Railway Express Agency Inc., 421 U.S. 454 (1975), the Court held that the
“remedies available under Title VII and under § 1981, although related, and although directed to
most of the same ends, are separate, distinct and independent.” Id. at 461. The Court reasoned
that Title VII “manifests a congressional intent to allow an individual to pursue independently

his rights under both Title VII and other applicable federal statutes,” rejecting the argument that
allowing the § 1981 claim to proceed might permit the plaintiff to circumvent Title VII’s
administrative requirements, going against Congress’ intent. Id. at 459, 461.

2 The Circuit Courts that have addressed the issue are also split. The First, Third, Fourth, and Tenth Circuit have
held that Title VII does not prevent an employee from pursuing employment discrimination claims under Title IX
See Lipsett v. Univ. of Puerto Rico, 864 F.2d 881, 897 (1st Cir.1988) (finding employment discrimination against a
student-employee actionable under Title IX); Doe v. Mercy Catholic Medical Center, 850 F.3d 545, 563 (3d Cir.
2017) ("we decline to follow Lakoski and Waid, both of which went against the First and Fourth Circuits' decisions
recognizing employees' private Title IX claims."); Preston v. Com. of Va. Ex Rel. New River Com. Coll., 31 F. 3d
203,206 (4th Cir. 1994) (holding that Title IX private cause of action "extends to employment discrimination on the
basis of gender by educational institutions receiving federal funds."); Hiatt v. Colorado Seminary, 858 F.3d, 1307,
1315 (10th Cir. 2017); see also Ivan v. Kent State Univ., 1996 WL 422496, at *3 n.10 (6th Cir. 1996) (unpublished
opinion overruling the district court's conclusion that "Title VII preempts an individual's private remedy under Title
IX"). The Fifth and Seventh Circuits have held to the contrary. See Lakoski v. James, 66 F.3d 751, 755 (5th
Cir.1995); Waid v. Merrill Area Public Schools, 91 F.3d 857 (7th Cir 1996).
In Cannon v. University of Chicago, 441 U.S. 677 (1979), the Supreme Court implied a
private cause of action under Title IX for an applicant who sued a medical school alleging she
was denied admission based on her sex. The Court reasoned that Title IX “explicitly confers a
benefit on persons discriminated against” based on sex and the plaintiff was “a member of that
class for whose special benefit the statute was enacted. Id. at 694. Later, in Franklin v. Gwinnett

County Public Schools, the Court held that money damages were available for a student asserting
a claim for sexual harassment under Title IX. 503 U.S. 60, 72-76 (1992).
The Court, in North Haven Board of Education v. Bell, 456 U.S. 512 (1982), rejected a
challenge to agency promulgated regulations interpreting Title IX to extend to sex-based
employment discrimination. It held that Title IX’s prohibition of sex discrimination applies not
only to students, but also to “[e]mployees who directly participate in federal programs or who
directly benefit from federal grants, loans, or contract.” Id. at 520. In reaching that conclusion,
the Court reviewed Title IX’s legislative history and found employees of federally funded
education programs and employment discrimination in academia an important focal point of

Title IX. Id. at 523-30. It also discussed how subsequent proposals in Congress to limit Title
IX’s coverage of employment discrimination have failed. Id. at 534-35. Finally, the North Haven
Court recognized that Congress had provided “a variety of remedies, at time overlapping, to
eradicate” private sector employment discrimination. Id. at 535.
Lastly, in Jackson v. Birmingham Board of Education, 544 U.S. 167 (2005), a high
school employee relieved of his coaching position after he complained that the girls’ basketball
team received unequal treatment on the basis of sex sued alleging a Title IX retaliation claim.
The Court allowed the claim to proceed reasoning that if funding recipients were “permitted to
retaliate freely,” individuals who witness sex discrimination would be hesitant to report it and
“all manner of Title IX violations might go unremedied.” Id. at 180. Although not explicitly
addressed, the Court did not indicate that Title VII displaced relief under Title IX. Rather, it
recognized that the two statute are “vastly different;” Title IX contains a “broadly written general
prohibition on discrimination” whereas Title VII has “greater detail” as to “the conduct that
constitutes discrimination.” Id.at 175.

This Court’s analysis of the foregoing cases supports an implied cause of action under
Title IX for employees of educational institutions receiving federal funding and that such a cause
of action is not displaced by Title VII. First, as the North Haven Court found, the legislative
history supports that Title IX extends to employment discrimination in educational institutions.
456 U.S. at 523-30. Indeed, in the Senate, Title IX was introduced as “targeting “admission
procedures, scholarships, and faculty employment.” 118 Cong. Rec. 5803 (1972). Similarly, in
the House it was proposed to combat, in addition to disparities in student admission standards,
“at the faculty level, sex differences in rank and salary at colleges and universities.” H. R. Rep.
No. 92-554 (1972). Moreover, the Supreme Court’s analysis in Cannon was not explicitly

limited to students as it held that is was inferring a private remedy in favor of “individual
persons,” 441 U.S. at 691, which term the North Haven Court later defined to include both
students and employees, 456 U.S. at 520-21. Finally, the recognition in Johnson that Title VII
“manifests a congressional intent to allow an individual to pursue independently his rights under
both Title VII and other applicable federal statutes, coupled with the reasoning in Jackson that
Title IX and Title VII are vastly different statutes, further supports the availability of Title IX for
employment discrimination claims by employees of educational institutions.
State Defendants argue that, even if there is an implied cause of action for employees,
said employees must be involved in an educational program or activity, a condition Plaintiff
herein cannot meet. They maintain that in each of the cases cited by Hauff the plaintiff was
involved in an educational program or activity. They also rely on the Department of Justice Title
IX Legal Manual as support for their argument. The Court rejects the argument that such a
requirement should be grafted onto a Title IX claim by an employee of an educational institution.
Whether such a nexus is required was considered and rejected by the court in Fox v.

Pittsburg State Univ., 257 F. Supp. 3d 1112 (D. Kan. 2017) wherein a custodian employed by an
educational institution asserted a claim for a hostile work environment under Title IX and Title
VII. In addressing the issue of nexus, that court began its analysis by noting that 1987
amendment to Title IX, enacted as part of the Civil Rights Restoration Act of 1987, was enacted
in response to prior holdings of the Supreme Court limiting Title IX’s reach to programs that
received federal funding. It then reasoned:
The amendment sought to clarify § 1681(a), which reads that “[n]o person
in the United States shall, on the basis of sex, be excluded from participation in,
be denied the benefits of, or be subjected to discrimination under any education
program or activity receiving Federal financial assistance.” The amendment to
Title IX specified that the term “program” as used in § 1681 means “all of the
operations of” the institution that received federal funding, regardless of whether
the specific program at issue benefitted from that funding. Indeed, the Senate
Report addressing the Civil Rights Restoration Act of 1987 clarified that
discrimination is “prohibited throughout entire agencies or institutions if any part
receives Federal financial assistance,” and that “all of the operations of” an
educational institution or system would include, but is not limited to: “traditional
educational operations, faculty and student housing, campus shuttle bus service,
campus restaurants, the bookstore, and other commercial activities.” Overall, the
amendment's purpose was to reaffirm pre-Grove City College judicial and
executive branch interpretations and enforcement practices which provided for
“broad coverage” of the anti-discrimination provisions of these civil rights
statutes.
The Court rejects Defendant's argument that the 1987 amendment to Title
IX only decided the issue of whether the institution as a whole is covered, and that
a plaintiff still needs to show that her work had a “nexus” to educational programs
or activities. Given Title IX's broad language, this position simply does not
comport with the plain language of the statute—“[n]o person in the United States
shall, on the basis of sex, be excluded from participation in, be denied the benefits
of, or be subjected to discrimination under any education program or activity
receiving federal financial assistance.” The Supreme Court has read “no person”
broadly; as North Haven puts it so aptly, “[b]ecause § [1681(a) ] neither expressly
nor impliedly excludes employees from its reach, we should interpret the
provision as covering and protecting these ‘persons’ unless other considerations
counsel to the contrary. After all, Congress easily could have substituted ‘student’
or ‘beneficiary’ for the word ‘person’ if it had wished to restrict the scope of §
[1681(a) ].”
Further, the requirement of a nexus to “education” is not consistent with
Title IX's broad purpose, which is “to avoid the use of federal resources to support
discriminatory practices” and “provide individual citizens effective protection
against those practices.”

Id. at 1124-25 (citations and footnotes omitted).

This Court finds the above reasoning persuasive. Indeed, the legislative history
for the 1987 Amendment supports that Congress intended for Title IX to cover all facets
of educational institutions including “campus shuttle bus service, campus restaurants, the
bookstore, and other commercial activities.” S. Rep. No. 100–64, at 17 (1987).
Nor does the Department of Justice Title IX Legal Manual, upon which State
Defendant’s rely, suggest a different result. Indeed, in its introduction, the manual states:
[T]his document is not intended to be a guide for Title IX enforcement with respect to
traditional educational institutions such as colleges, universities, and elementary and
secondary schools, which have been subject to the Department of Education’s Title IX
regulations and guidance for 25 years. Rather, this manual is intended to provide
guidance to federal agencies concerning the wide variety of other education programs and
activities operated by recipients of federal financial assistance.”
Finally, to paraphrase the Fox court:
The Court further rejects [the] suggestion that Congress intended for Title IX to
distinguish the [security] staff as any less a part of the university or deserving of
protection than faculty. [State] Defendant[s] asks this Court to draw an arbitrary
line that prohibits [police officers employed by an educational institution] from
asserting Title IX claims but allows professors or teachers. [They] ignores the fact
that there are hundreds of different types of employees at a university or on a
university campus, such as bus drivers, cafeteria workers, librarians, childcare
workers, bookstore employees, docents at the university art museum, athletic
directors, resident assistants at dorms, and student admissions recruiters. Nothing
[State] Defendants cite[] persuades this Court that Title IX is meant to allow
claims by some of these employees but not all. Title IX must be given “a sweep as
broad as its language.”

257 F. Supp. 3d at 1125.
State Defendants’ motion to dismiss the Title IX cause of action is denied.
B. As Against Fischer
Fischer seeks dismissal of the Title IX claim against him on the grounds that there is no
individual liability under Title IX.
The Supreme Court has held that Title IX creates liability only for institutions and
programs that receive federal funds, but “has consistently . . . interpreted [it] as not authorizing
suit against school officials, teachers, and other individuals.” Fitzgerald v. Barnstable Sch.
Comm., 555 U.S. 246, 257 (2009); 20 U.S.C. § 1681(a). Accordingly, “the overwhelming
majority of federal courts” in this Circuit have held that “only the institutional recipient of
federal funds can be held liable under Title IX; individuals, who are not recipients, cannot be
held liable.” Tesoriero v. Syosset Cent. Sch. Dist., 382 F. Supp. 2d 387, 396 (E.D.N.Y. 2005);
see also Welcome v. N.Y.C. Dep’t of Educ., 2018 WL 5817156, at *4 (E.D.N.Y. Nov. 6, 2018)
(citing cases); Chandrapaul v. City Univ. of N.Y., 2016 WL 1611468, at *14 (E.D.N.Y. Apr. 20,
2016) (“There is no individual liability under Title IX.”); KF ex rel. CF v. Monroe Woodbury
Cent. Sch. Dist., 2013 WL 177911, at *8 (S.D.N.Y. Jan. 16, 2013), aff’d, 531 F. App’x 132 (2d
Cir. 2013). As Title IX does not authorize individual liability and Plaintiff does
not allege that Fischer was a recipient of federal funds, the Title IX claims against him are
dismissed.
VI. Timeliness of Title IX Claims
Claim brought pursuant to Title IX are subject to a three-year statute of limitations.
Purcell v. New York Inst. of Tech. – Coll. Of Osteopathic Medicine, 931 F.3d 59, 65 (2d Cir.
2019). Based on the foregoing, Defendants maintain that incidents prior to December 20, 2015
(three years prior to the filing of the instant lawsuit) and not actionable. Plaintiff seeks to avoid

the statute of limitations bar relying upon the continuing violations doctrine and equitable tolling.
A. The Continuing Violations Doctrine
Under the continuing violation doctrine, if a plaintiff experiences a “‘continuous practice
and policy of discrimination, the commencement of the statute of limitations period may be
delayed until the last discriminatory act in furtherance of it.’” Hudson v. W. N.Y. Bics Div., 73 F.
App'x 525, 528 (2d Cir. 2003) (quoting Fitzgerald v. Henderson, 251 F.3d 345, 359 (2d Cir.
2001)). The continuing violation doctrine applies to “claims that by their very nature involve[ ]
repeated conduct.” Troeger v. Ellenville Cent. Sch. Dist., 523 F. App'x 848, 851 (2d Cir. 2013)
(citing Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 115 (2002)). The prototypical

example is a hostile work environment claim, which “is composed of a series of separate acts
that collectively constitute one ‘unlawful employment practice.’ ” Morgan, 536 U.S. at 117.
Because the discriminatory practice cannot be said to occur on a particular day, and because each
individual act of harassment may not be actionable on its own, these claims are of a different
nature than discrete acts. Id. at 115 (citing Harris v. Forklift Systems, Inc., 510 U.S. 17, 21
(1993)). This is why such claims do not accrue until the last act in furtherance of the allegedly
discriminatory practice. See Hudson, 73 F. App'x at 528: accord Papelino v. Albany College of
Pharmacy of Union Univ., 633 F.3d 81, 91 (2d Cir. 2011) (Under the continuing violation
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.” ) As the Court in Villar v. City of New York, 135 F. Supp. 3d
105 (S.D.N.Y. 2015), noted:
“[C]onsideration 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.” Morgan, 536 U.S. at
105, 122 S.Ct. 2061. “[I]f ‘any act falls within the statutory time period,’ we need
‘to determine whether the acts about which an employee complains are part of the
same actionable hostile work environment practice.’ ” McGullam v. Cedar
Graphics, Inc., 609 F.3d 70, 76 (2d Cir.2010) (quoting Morgan, 536 U.S. at 120,
122 S.Ct. 2061). An “incident within the limitations period permits consideration
of an incident preceding the limitations period only if the incidents are sufficiently
related.” McGullam, 609 F.3d at 77.

135 F. Supp. 3d at 131.
Here, similar instances of harassment by Fischer both before and after December 20,
2015, are alleged. Thus, as a matter of pleading, there are sufficient allegations to support
application of the continuing violations doctrine.3
VII. Effect of the 2015 Memorandum
According to the State Defendants, because “Plaintiff has raised no allegations that she
entered into the 2015 Memorandum under duress, was unaware of the terms and conditions of
the Memorandum, or that the Memorandum was unfair in any way”, the “issues which were
‘resolved to her satisfaction’ cannot be resurrected because of subsequent events.” (State Defs.’
Mem. at 5; see also Fischer Mem. at 18.).) This argument is unavailing.
First, the argument ignores the allegations that although Plaintiff indicated on the
College’s form that it was a formal complaint. Dr. Henry steered her away from that process and
misled her about it. Second, it ignores the allegation regarding the College’s response, to wit:

3 Given the Court’s conclusion that there are sufficient allegations to support application of the continuing violations
doctrine, it is unnecessary at this juncture to address Plaintiff’s equitable tolling argument.
“effectively banning communication between Plaintiff and Fischer.” (Comp. at 53.) Given
Fischer’s position of Chief of Police and Plaintiff’s position as an officer in his department, such
a resolution seems largely unworkable. Indeed, as alleged in the Complaint, “the communication
ban posed problematic on a day-to day basis and proved inefficient” resulting in its modification
requiring that “the extent of their contact was to be ‘conducted in a professional/business related

manner only; no personal information shall be asked or inclinations perceived at any time.”
(Compl. at ¶ 61.) Finally, at this early stage of the litigation it would appear that occurrences
prior to the September Memorandum may be relevant as part the alleged continuing course of
conduct and whether Plaintiff’s work environment was objectively hostile and abusive.
VIII. Whether a Hostile Work Environment Claim Has Been Sufficiently Pleaded
A Title IX hostile education environment claim is governed by traditional Title VII
hostile environment jurisprudence. Papelino v. Albany College of Pharmacy of Union University,
633 F.3d 81, 89 (2d Cir. 2011) (internal quotation marks omitted). “In order to state a claim for
violation of Title IX, a plaintiff must demonstrate that: [i] she is a member of a protected group;

[ii] she was subjected to unwelcome sexual harassment in the form of sexual advances, requests
for sexual favors, or other verbal or physical conduct of a sexual nature; [iii] the harassment was
based on sex; [iv] the harassment was sufficiently severe or pervasive so as to alter the
conditions” of her employment “and create an abusive . . . environment; and [v] some basis for
institutional liability has been established.” Folkes v. N.Y. Coll. of Osteopathic Med. of N.Y. Inst.
of Tech., 214 F. Supp. 2d 273, 281-82 (E.D.N.Y. 2002) (citing Babcock v. Frank, 783 F. Supp.
800, 808 (S.D.N.Y. 1992)).
Significantly, to survive a Rule 12(b)(6) motion to dismiss, a Title VII complaint need
not establish every element of a prima facie hostile work environment claim. “At the motion to
dismiss stage, ... ‘a plaintiff need only plead facts sufficient to support the conclusion that she
was faced with harassment of such quality or quantity that a reasonable employee would find the
conditions of her employment altered for the worse.’” Cowan v. City of Mount Vernon, 2017
WL 1169667, at *4 (S.D.N.Y. Mar. 28, 2017) (internal quotation marks and alterations omitted)
(quoting Patane v. Clark, 508 F.3d 106, 113 (2d Cir. 2007). “In evaluating whether the

circumstances” set forth in a complaint “suffice to find a hostile work environment, the [Second
Circuit] has ‘repeatedly cautioned against setting the bar too high.’ ” Lewis v. Roosevelt Island
Operating Corp., 246 F. Supp. 3d 979, 990 (S.D.N.Y. 2017) (quoting Patane, 508 F.3d at 113).
The hostility of a work environment should be assessed based on the “totality of the
circumstances.” Patane, 508 F.3d at 113 (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 23
(1993). “Factors that a court might consider in assessing the totality of the circumstances
include: (1) the frequency of the discriminatory conduct; (2) its severity; (3) whether it is
threatening and humiliating, or a mere offensive utterance; and (4) whether it unreasonably
interferes with an employee’s work performance.” Id. “The Second Circuit ‘treats the first two of

these factors—the frequency and the severity of the misconduct—as the principal focus of the
analysis.’ ” Olivier v. Cty. of Rockland, 2018 WL 401187, at *5 (S.D.N.Y. Jan. 11, 2018) (citing
Aulicino v. N.Y.C. Dep’t of Homeless Servs., 580 F.3d 73, 82 (2d Cir. 2009)). “Generally, unless
an incident of harassment is sufficiently severe, ‘incidents must be more than episodic; they must
be sufficiently continuous and concerted in order to be deemed pervasive.’” Gorzynski v. JetBlue
Airways Corp., 596 F.3d 93, 102 (2d Cir. 2010) (quoting Alfano v. Costello, 294 F.3d 365, 374
(2d Cir. 2002)). But “‘a single act can create a hostile work environment if it in fact works a
transformation of the plaintiff’s workplace.’” Green v. Jacob & Co. Watches, Inc., 248 F. Supp.
3d 458, 470 (S.D.N.Y. 2017) (quoting Feingold v. New York, 366 F.3d 138, 150 (2d Cir. 2004)).
With regard to the final factor, to establish institutional liability for sexual harassment
under Title IX, the plaintiff must show that ‘an official who has authority to address the alleged
discrimination and to institute corrective measures on the institutional recipient’s behalf has
actual knowledge of discrimination and fails adequately to respond.” Campisi v. City University
of New York, 2016 WL 4203549, at *4 (S.D.N.Y., 2016) (internal quotation marks omitted)

(citing Folkes v. N.Y. Coll. of Osteopathic Med. of N.Y. Inst. of Tech., 214 F. Supp. 2d 273, 281-
82 (E.D.N.Y. 2002)). “A school fails to adequately respond if it provides no response or if it
provides a response that amounts to deliberate indifference to discrimination. The school's
response to sex discrimination must be clearly unreasonable in light of known circumstances.”
Papelino, 633 F.3d at 89 (internal quotation marks and citations omitted).
Applying these principles, Plaintiff has stated a hostile work environment claim. The
conduct complained includes sexual advances and innuendo, leering and unwanted physical
touching, including the slapping of Plaintiff’s buttocks and encroaching on her personal space.
Cf. Gorzynski, 596 F.3d at 102 (holding that evidence that defendant “made numerous

(approximately six) sexual comments and on multiple occasions grabbed [plaintiff] and other
around the waist, tickled and stared as if he was mentally undressing them” sufficient to defeat
summary judgment motion).
Plaintiff has also alleged sufficient notice to the State Defendants to support a Title IX
claim. The first notice was to Dr. Henry, the Title IX coordinator, in September 2015. The
second notice was in September 2017, again to Dr. Henry, when Plaintiff submitted to Dr. Henry
her journal entries detailing further alleged harassment. Finally, the third notice was to Mr.
Rampello, who succeeded Dr. Henry as Title IX coordinator, in 2018. Focusing on the second
notice, the allegation that no investigation or inquiry was commenced as a result, especially in
view of Plaintiff’s September 2015 complaint and Fischer admission that that he slapped
Plaintiff’s buttocks, is sufficient as a matter of pleading to support an inference of notice and an
inadequate response. With respect to the third notice, i.e. the complaint filed with Mr. Rampello,
given that an investigation and hearing was conducted, resulting in the termination of Fischer’s
employment, it would appear that the response was not clearly unreasonable. How that affects

the alleged inadequate response to the September 2017 complaint is not directly addressed by the
parties. Although Defendants argue that the response to the 2018 complaint should result in the
dismissal of her entire Title IX claim, the Court is unconvinced as the cases cited by Defendants
do not address a similar scenario.
The motions to dismiss the hostile work environment claim on the basis Plaintiff has
failed to plausibly allege a hostile work environment is denied.
IX. The Faragher-Ellerth Defense
Where, as here, the alleged harasser is in a supervisory position over the plaintiff, the
objectionable conduct is automatically imputed to the employer unless the employer can prove

by a preponderance of the evidence that it is protected by the Faragher/Ellerth defense. See
Gorzynski, 596 F.3d at 103. The Faragher/Ellerth defense consists of two elements: (1) that “the
employer exercised reasonable care to prevent and correct promptly any [discriminatory]
harassing behavior,” and (2) that “the plaintiff employee unreasonably failed to take advantage
of any preventive or corrective opportunities provided by the employer or to avoid harm
otherwise.” Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998); Burlington Indust., Inc.
v. Ellerth, 524 U.S. 742, 765 (1998). Assuming the defense is available in a Title IX action, as
discussed earlier, the Complaint contains allegations that support that the State defendants did
not exercise reasonable care to prevent and correct the hostile work environment created by
Fischer. Accordingly, dismissal on the basis on Faragher/Ellerth is not appropriate.
XI. The NYSHRL Claim against Fischer
Fischer seeks dismissal of the NYSHRL aiding and abetting claim asserted against him

on the grounds that dismissal of plaintiff’s underlying hostile work environment claim requires
dismissal of her aiding and abetting claim. As the Court has determined that a plausible hostile
work environment claim has been stated, this portion of Fischer’s motion is denied on the
argument presented.4
X. Availability of Punitive Damages
The last issue to be addressed is the availability of punitive damages.
While there is no controlling authority in this circuit on the issue of the availability of
punitive damages in a Title IX action, a number of courts have held they are not available. See,
e.g. Mercer v. Duke Univ., 50 F. App’x 643, 644 (4th Cir. 2002); Pejovic v. State Univ. of New

York at Albany, 2018 WL 3614169, at *7 (N.D.N.Y. July 26, 2018); Spring v. Alleghany-
Limestone Cent. Sch. Dist., 2017 6512858, at *10 (W.D.N.Y. Dec. 20, 2017). In each of the
foregoing cases, the courts reached that conclusion in view of the holding in Barnes v. Gorman,
536 U.S. 181, 189 (2002) that punitive damages are not available under Title VI and the fact that
Title IX is “[p]atterned after Title VI,” North Haven, 456 U.S. at 514. This Court agrees.
Accordingly, the claim for punitive damages against the State Defendants is dismissed.

4 The Court notes that the argument that a person “cannot be held liable for ‘aiding and abetting’ his own conduct
has been rejected by numerous courts in this Circuit.” Johnson v. J. Walter Thompson U.S.A., LLC, 224 F. Supp.3d
296, 311-12 (S.D.N.Y. 2016 (citing Geras v. Hempstead Union Free Sch. Dist., 149 F. Supp.3d 300, 338 (E.D.N.Y.
2015 (collecting cases)).
As the NYSHRL does not permit punitive damages, Farias v. Instructional Sys., Inc., 259
F.3d 91, 101 (2d Cir. 2001), the punitive damages claim against Fischer is also dismissed.
CONCLUSION
For the reasons set forth above, the motions to dismiss are granted as to (1) the NYSHRL
claim against the State Defendants and as against Fischer in his official capacity; (2) the Title IX

claim against Fischer; and (3) the claims for punitive damages against all Defendants; the
motions are otherwise denied.
SO ORDERED.
Dated: Central Islip, New York s/ Denis R. Hurley
December 3, 2019 Denis R. Hurley
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10303460. Public record. Not legal advice.