Huffman v. Brooklyn College

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

CLAIRE HUFFMAN,

MEMORANDUM & ORDER

Plaintiff, 20-CV-06156 (NGG) (TAM)

-against-

BROOKLYN COLLEGE, THE CITY UNIVERSIT Y

OF NEW YORK, and ANNE LOPES,

Defendants.

NICHOLAS G. GARAUFIS, United States District Judge.

Plaintiff Claire Huffman brings this employment discrimination

action against Brooklyn College, the City University of New York,

and Provost Anne Lopes following that school’s decision to cancel

its Italian major. Defendants move to dismiss the amended com-

plaint. For the following reasons, Defendants’ motion to dismiss

is GRANTED in part and DENIED in part.

FACTUAL BACKGROUND

Claire Huffman, a 75-year-old Italian Professor, has taught at

Brooklyn College – part of the CUNY system – since 1972. She

brings this action to challenge a change in the terms of her em-

ployment that followed the school’s decision to cancel its Italian

major. (Am. Compl. (Dkt. 17) ¶¶ 21-23, 42, 55-60.) In doing so,

Huffman, an expert in Italian language and literature, was re-

quired to instead teach English literature and film, and had her

teaching schedule modified in such a way that was more oner-

ous, less convenient, and less prestigious. (Id. at ¶¶ 55-60.) She

alleges that the changes (1) constituted an adverse employment

action against her, and (2) were motivated by discrimination on

the basis of age and national origin. As evidence of this, Huffman

claims that the official making the decision, Anne Lopes, Brook-

lyn College’s Provost, told her that the Italian professors would

be teaching into their eighties if the major continued, and that

there was no reason to keep the major because “[t]he Italians all

moved out of Brooklyn, so you don’t have a basis for a major

anymore.” (Id. at ¶¶ 45, 47.) Huffman claims that the fact other

majors in the same department (Spanish and French) were not

canceled, even though they were in relatively less demand by

students, is further evidence of an anti-Italian bias. (Id. at ¶ 48.)

Moreover, languages without their own major, and some with

neither a major nor a minor, continued to be taught while Italian

was canceled. (Id. at ¶ 53.) And other professors, younger and

expert in other languages, were not subjected to similar changes

in their employment – whereas all the Italian professors were

older and of Italian descent. (Id. at ¶¶ 54, 62.) Finally, Huffman

notes that CUNY has a history of discrimination against Italian

Americans and her performance has not otherwise come into

question over the course of her career. (Id. at ¶¶ 34, 37, 39.)

After bringing this action, Huffman also says she was retaliated

against. (Id. at ¶¶ 66-73.)

PROCEDURAL BACKGROUND

Huffman first filed a complaint with the Equal Employment Op-

portunity Commission, and received a “right to sue letter” from

the Commission on September 23, 2020. (Id. at ¶ 5.) In her

amended complaint Huffman alleges violations of Title VII, the

Age Discrimination in Employment Act (“ADEA”), the New York

State Human Rights Law (“NYSHRL”), and the New York City

Human Rights Law (“NYCHRL”). She seeks compensatory and

punitive damages and attorneys’ fees from the College and Prov-

ost Lopes. Defendants move to dismiss on the basis of sovereign

immunity, arguing that only the Title VII count against CUNY is

not so barred,1 and further move to dismiss all counts pursuant

to Rule 12(b)(6) for failure to state a claim.

This case is substantially similar to Bonaffini, brought by another

of Huffman’s colleagues in the Italian department and making

many of the same allegations. See Bonaffini v. City Univ. of New

York, No. 20-CV-5118 (BMC), 2021 WL 2206736 (E.D.N.Y. June

1, 2021) (Bonaffini I); Bonaffini v. City Univ. of New York, No. 20-

CV-5118 (BMC), 2021 WL 2895688 (E.D.N.Y. July 9, 2021) (Bo-

naffini II). CUNY likewise moved to dismiss that case, making

many of the same arguments it makes here. For the reasons be-

low, the court substantially agrees with Judge Cogan’s

disposition of that case.

DEFENDANTS’ MOTIONS TO DISMISS ON THE BASIS

OF SOVEREIGN IMMUNITY

Defendants argue first that sovereign immunity bars Huffman’s

ADEA, NYSHRL, and NYCHRL claims against CUNY and Lopes in

her official capacity. The court agrees with Defendants that for

each claim, New York has neither consented to be sued nor

waived its immunity, and Congress has not abrogated it.2 See

McGinty v. New York, 251 F.3d 84, 95 (2d Cir. 2001) (ADEA);

Richardson v. N.Y. State Dep’t of Corr. Serv., 180 F.3d 426, 449

(2d Cir. 1999) (NYSHRL), abrogated on other grounds, Burlington

N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006); Feingold v.

New York, 366 F.3d 138, 149 (2d Cir. 2004) (NYCHRL).

1 Defendants argue, and the court agrees, that CUNY is the proper organi-

zational defendant and Brooklyn College may not be separately sued. See

Clissuras v. City Univ. of New York, 359 F.3d 79, 81 n.2 (2d Cir. 2004). The

Clerk is respectfully directed to remove Brooklyn College from the caption

of this case.

2 Congress has, by contrast, abrogated states’ sovereign immunity for Title

VII claims. Despite its name, CUNY is a state agency.

Plaintiff responds that the Ex parte Young exception applies

where a plaintiff alleges an ongoing violation of federal law and

seeks prospective relief. Trouble is, (1) neither the NYSHRL nor

NYCHRL are federal laws; and (2) Plaintiff does not actually seek

prospective relief, regardless of her attempt to claim otherwise.

(See Pl.’s Mem. in Opp. (“Opp.”) (Dkt. 22) at 10 (“Plaintiff seeks

relief ‘designed to compensate for’ prospective—as well as

‘past’—violations.”).)

Classically, Ex parte Young is premised upon a basic dichotomy

between “notions of an ongoing wrong, remedied prospectively,

[and] a past wrong for which compensation is sought, [reme-

died] retroactive[ly].” New York City Health & Hosps. Corp. v.

Perales, 50 F.3d 129, 130 (2d Cir. 1995).3 Accordingly, where

sovereign immunity applies, “a federal court’s remedial power,

consistent with the Eleventh Amendment, is necessarily limited

to prospective injunctive relief [pursuant to Ex parte Young], and

may not include a retroactive award which requires the payment

of funds from the state treasury.” Edelman v. Jordan, 415 U.S.

651, 677 (1974). Yet that is precisely what Plaintiff seeks: each

count of the amended complaint requests damages for retrospec-

tive harm, not an injunction for an ongoing wrong. (See Am.

Compl. at pp. 19-20.) Because the Ex parte Young doctrine there-

fore does not apply, Defendant’s motion is GRANTED as to CUNY

and Lopes in her official capacity on the ADEA, NYSHRL, and

NYCHRL counts.4

3 When quoting cases, unless otherwise noted, all citations and internal

quotation marks are omitted and all alterations are adopted.

4 When acting in their official capacities, state officials’ immunity is coex-

tensive with the state’s. See California v. Deep Sea Rsch., Inc., 523 U.S. 491,

502 (1998) (“a state official is immune from suit in federal court for actions

taken in an official capacity”).

DEFENDANTS’ MOTIONS TO DISMISS AGAINST LOPES

IN HER INDIVIDUAL CAPACITY

Defendants argue second that Provost Lopes cannot be held indi-

vidually liable under the ADEA, NYSHRL, or NYCHRL, because

(1) the ADEA does not provide for individual liability; (2) the

NYSHRL does not reach Lopes because she is not Huffman’s em-

ployer, and she cannot be an aider or abettor because CUNY is

immune; and (3) the NYCHRL cannot give rise to individual lia-

bility because “even if Plaintiff’s NYCHRL claims against Provost

Lopes are styled as individual capacity claims, they are still

barred by sovereign immunity because the actions of which

Plaintiff complains . . . could only have been taken by Provost

Lopes in her capacity as a State employee, not in her personal

capacity.” (Def.’s Mot. to Dismiss (Dkt. 21) at pp. 9-12.)

As to the first argument, the court agrees with Defendants that

the ADEA does not provide for individual liability. See Cherry v.

Toussaint, 50 F. App’x 476, 477 (2d Cir. 2002) (“the ADEA pre-

cludes individual liability”). Defendants’ motion to dismiss the

ADEA claim against Lopes in her individual capacity is therefore

GRANTED.

As to the second and third arguments, the court agrees with

Judge Cogan’s reasoning in Bonaffini. In short, Lopes may be held

liable as an aider and abettor even if not as an “employer”; and

CUNY’s sovereign immunity does not frustrate doing so because

the Eleventh Amendment merely bars recovery – it does not ex-

tinguish predicate liability on the merits. See Bonaffini II, 2021

WL 2895688 at *3-4. And Lopes may still be held individually

liable for actions she can only perform as a state official, because

the logic of sovereign immunity doctrine – which is meant to pro-

tect the state’s fisc – does not extend to judgments against its

employees. See id. at *1-2. The court therefore declines to dismiss

the NYSHRL or NYCHRL counts because they are brought against

Lopes in her individual capacity. Defendants still move, however,

to dismiss those counts for failure to state a claim.

DEFENDANTS’ MOTIONS TO DISMISS FOR FAILURE TO

STATE A CLAIM

A. National Origin Discrimination

1. Legal Standard

Defendants argue that Huffman’s claims of discrimination on the

basis of national origin – pursuant to Title VII, the NYSHRL, and

the NYCHRL – fail to state a claim because Plaintiff fails to make

out prima facie cases of discrimination. Under all three statutes,

the claim is analyzed under the burden-shifting framework es-

tablished by the Supreme Court in McDonnell Douglas Corp. v.

Green, 411 U.S. 792 (1973), which developed the applicable

framework in the Title VII context. See also Spiegel v. Schulmann,

604 F.3d 72, 80 (2d Cir. 2010) (applying the same framework to

NYSHRL and NYCHRL claims).

“Under the McDonnell Douglas scheme, establishment of the

prima facie case in effect creates a presumption that the employer

unlawfully discriminated against the employee.” St. Mary’s

Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993). To establish a

prima facie case, a plaintiff must show that “(1) she was within

the protected class; (2) she was qualified for the position; (3) she

was subject to an adverse employment action; and (4) the ad-

verse action occurred under circumstances giving rise to an

inference of discrimination.” Walsh v. New York City Hous. Auth.,

828 F.3d 70, 75 (2d Cir. 2016). The requirements are intended

to be “minimal” and “not onerous.” Bucalo v. Shelter Island Union

Free Sch. Dist., 691 F.3d 119, 128 (2d Cir. 2012).

At the motion to dismiss stage, the burden on the plaintiff is still

lower. See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002)

(where the prima facie case functions as “an evidentiary stand-

ard, not a pleading requirement”). The complaint must “contain

sufficient factual matter, accepted as true, to state a claim to re-

lief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662,

678 (2009); see also Mandala v. NTT Data, Inc., 975 F.3d 202,

208 (2d Cir. 2020) (“Over a series of opinions, we clarified that

Iqbal does not require a plaintiff to plead a prima facie case.”).

Just enough “nonconclusory factual matter” must be pleaded in

order to “[]cross the line from conceivable to plausible.” E.E.O.C.

v. Port Auth. of New York & New Jersey, 768 F.3d 247, 254 (2d

Cir. 2014).

In the employment discrimination context, on a motion to dis-

miss, the plaintiff must plausibly allege that (1) she suffered an

adverse employment action, and that (2) the action was taken

“at least in part for a discriminatory reason . . . alleging facts that

directly show discrimination or facts that indirectly show discrim-

ination by giving rise to a plausible inference of discrimination.”

Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 87 (2d Cir.

2015). The substantive and pleading standards are largely the

same as between Title VII, the NYSHRL, and the NYCHRL, except

that the NYCHRL mandates it should be “construed liberally.”

N.Y.C. Admin. Code § 8-130; see also Vega, 801 F.3d at 86 (noting

that the “motivating factor” standard applies to national origin

discrimination claims, not “but-for” causation).

2. Discussion

Defendants argue that Huffman has failed at each step: that she

has not plausibly alleged she was subject to an adverse employ-

ment action, and that she has not plausibly alleged the

circumstances give rise to an inference of discrimination.

The court has little difficulty concluding that Huffman has plau-

sibly alleged she was subject to an adverse employment action.

Huffman, an expert in the poetry of Eugenio Montale and a dec-

orated scholar of Italian language and literature, was reassigned

by CUNY to teach general English courses. See de la Cruz v. New

York City Hum. Res. Admin. Dep’t of Soc. Servs., 82 F.3d 16, 21

(2d Cir. 1996) (transfer “to a less prestigious unit with little op-

portunity for professional growth” constitutes an adverse

employment action). Although the scheduling changes Huffman

has had to endure may constitute “mere inconvenience,” Nicholls

v. Brookdale Univ. Hosp. & Med. Ctr., 205 F. App’x 858, 861 (2d

Cir. 2006), the transfer of her teaching responsibilities to an en-

tirely different field works a “radical change in the nature of

[Plaintiff’s] work” that “interferes with a condition or privilege of

employment,” Rodriguez v. Board of Educ., 620 F.2d 362, 366 (2d

Cir. 1980) (transfer of an art teacher from a middle school to an

elementary school “render[ed] utterly useless her twenty years

of experience and study in developing art programs for middle

school children”). Indeed there may be no better exemplar of

unique expertise than a university academic; in this case, Huff-

man’s job responsibilities were not merely altered – she was

forced into what was an entirely different job.

Whether the circumstances Huffman has alleged give rise to a

plausible inference of discrimination is a closer call. The Second

Circuit has directed lower courts to consider three factors in as-

sessing whether a plaintiff has “plausibly” alleged facts that give

rise to an inference of discrimination. See Vega, 801 F.3d at 86-

87. First, the plaintiff must plead “factual content” (which the

court assumes to be true) and not formulaically recite the legal

elements of an allegation. Id. at 86. Second, the court must “draw

on its judicial experience and common sense,” mindful that in

discrimination cases evidence is elusive and easily concealed, and

that at the motion to dismiss stage the plaintiff’s burden is mini-

mal. Id. at 86 (quoting Littlejohn v. City of New York, 795 F.3d

297, 310 (2d Cir. 2015) (requiring only “minimal support for the

proposition that the employer was motivated by discriminatory

intent”). Third, the court must be careful not to require that a

plaintiff convince it that it is “likely to prevail.” Id. at 87 (quoting

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 547 (2007) (requir-

ing that plaintiffs merely “nudge[] their claims across the line

from conceivable to plausible”)).

Mindful of these instructions, the court again agrees with Judge

Cogan’s reasoning in Bonaffini and concludes that Plaintiff has

met her burden. Huffman has pleaded facts that suggest demand

for Italian courses remained robust among students; that other

less in-demand languages were not canceled; and that the Italian

department was distinguishable from others because it consisted

entirely of people of Italian descent (all of whom were also over

the age of 62, see Part B, infra). Moreover, Huffman has alleged

statements made by Lopes that at least plausibly suggest that the

national origin (and age, see infra) of the instructors was on

Lopes’s mind, and may have been a motivating factor behind her

decision. Even as indirect, inferential evidence, such allegations

are indeed “weak.” Bonaffini II, 2021 WL 2895688 at *4. But they

sufficiently “nudge” Huffman’s claim “from conceivable to plau-

sible.” Vega, 801 F.3d at 87. The court therefore DENIES

Defendants’ 12(b)(6) motions to dismiss the national origin Title

VII count against CUNY and the national origin NYSHRL and NY-

CHRL counts against Lopes in her individual capacity.

B. Age Discrimination

1. Legal Standard

Plaintiff’s age discrimination claims under the NYSHRL and NY-

CHRL substantially mirror the analysis under the ADEA, which

requires that the plaintiff plausibly allege that “an employer took

adverse action ‘because of’ age [and] that age was the ‘reason’

that the employer decided to act.” Lively v. WAFRA Inv. Advisory

Grp., Inc., 6 F.4th 293, 303 (2d Cir. 2021) (quoting Gross v. FBL

Fin. Servs., 557 U.S. 167, 174 (2009)). The Second Circuit has

assumed without deciding that a “but-for” causation standard ap-

plies to the NYSHRL, whereas a “motivating factor” standard may

still apply to the NYCHRL. See Gorzynski v. JetBlue Airways Corp.,

596 F.3d 93, 105 n.6 (2d Cir. 2010). Therefore, at least in the

NYSHRL context, a plaintiff must plead “facts which plausibly

suggest that (1) the employer took an adverse action and (2) age

was the ‘but for’ cause of that adverse action.” Boonmalert v. City

of New York, 721 F. App’x 29, 32 (2d Cir. 2018) (summary or-

der).

2. Discussion

The court’s conclusion that Huffman suffered an “adverse em-

ployment action” applies equally in the national origin and age

discrimination contexts. Because the court holds that the require-

ment was satisfied in the Title VII context, it is necessarily also

satisfied in the NYSHRL and NYCHRL contexts. See Cruz v. Coach

Stores, Inc., 202 F.3d 560, 565 n.1 (2d Cir. 2000); cf. Mihalik v.

Credit Agricole Cheuvreux, 715 F.3d 102, 109 (2d Cir. 2013) (re-

quiring a more liberal construction of NYCHRL claims).

Further, the court finds that Huffman plausibly alleges facts that

suggest age was a “but-for” cause of the adverse employment ac-

tion she experienced – and therefore both her NYSHRL and

NYCHRL claims survive, notwithstanding the uncertainty as to

their precise pleading standards after Gorzynski. Because this mo-

tion to dismiss must be decided on the basis of the facts as alleged

in Plaintiff’s complaint, there is much we do not yet know about

why CUNY canceled the Italian major at Brooklyn College. It ap-

parently remained popular with students despite Provost Lopes’s

alleged statement that “[t]he Italians all moved out of Brooklyn.”

But it is at least plausible that CUNY decided that, unlike a num-

ber of other languages assigned a full schedule (allegedly Arabic,

Japanese, Chinese, German, and Russian, see Am. Compl. ¶ 53),

Italian might not be so popular in the future, and it was the only

department with faculty all over the age of 60. Whether the alle-

gation can survive summary judgment or a jury trial remains to

be seen. It suffices, however, to plausibly allege that the employ-

ment action would not have been taken but for the professors’

age.

C. Retaliation

Though Plaintiff’s narrative of events includes discussion of pos-

sible retaliation, she neither alleged a retaliation claim in her

complaint, nor raised it in her motion papers. The court considers

it waived.

CONCLUSION

For the foregoing reasons, Defendants’ Motions to Dismiss are

GRANTED in part and DENIED in part. The following of Huff-

man’s claims survive: as against CUNY, national origin

discrimination in violation of Title VII; and as against Lopes in

her individual capacity, national origin discrimination in viola-

tion of the NYSHRL and the NYCHRL, and age discrimination in

violation of the NYSHRL and the NYCHRL. The parties are di-

rected to contact Magistrate Judge Taryn A. Merkl to proceed

with discovery in this case.

SO ORDERED.

Dated: Brooklyn, New York

January 5, 2022

_/s/ Nicholas G. Garaufis_

NICHOLAS G. GARAUFIS

United States District Judge