holding that, in Title VII context, the plaintiff had not engaged in protected activity because she “complained only that she felt picked on, not that she was discriminated against ‘because of’ sex or gender, which is what Title VII requires”
How later courts described this case
- holding that, in Title VII context, the plaintiff had not engaged in protected activity because she “complained only that she felt picked on, not that she was discriminated against ‘because of’ sex or gender, which is what Title VII requires”
- “In the context of personnel actions, the relevant factors for determining whether employees are similarly situated often include the employees’ supervisors, the standards that the employees had to meet, and the employees’ conduct.” (cleaned up)
- “Like our colleagues on the Sixth and Seventh Circuits, we . . . recognize that allegations about pressure from [the Department of Education] and the 2011 Dear Colleague Letter cannot alone support a plausible claim of Title IX sex discrimination.” (citations omitted)
Written by the judges who cited it.
The opinion
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
________________
No. 20-1724
________________
SERGIO VERDU,
Appellant
v.
THE TRUSTEES OF PRINCETON UNIVERSITY;
THE BOARD OF TRUSTEES OF PRINCETON UNIVERSITY;
CHRISTOPHER L. EISGRUBER; DEBORAH A. PRENTICE;
REGAN CROTTY; TONI MARLENE TURANO; LISA M. SCHREYER;
MICHELE MINTER; CLAIRE GMACHL; CHERI BURGESS;
LYNN WILLIAM ENQUIST; SUSAN TUFTS FISKE;
CAROLINA MANGONE; HARVEY S. ROSEN; IRENE V. SMALL
________________
Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil Action No. 3-19-cv-12484)
District Judge: Honorable Freda L. Wolfson
________________
Submitted under Third Circuit LAR 34.1(a)
On June 24, 2021
Before: CHAGARES, Chief Judge, PORTER and ROTH, Circuit Judges
(Opinion filed: September 27, 2022)
________________
OPINION*
________________
ROTH, Circuit Judge.
Sergio Verdu served as a tenured professor in the electrical-engineering
department at Princeton University before his termination in 2018. Verdu asserts that
Princeton and its agents (collectively, Princeton) violated his rights when it terminated
him, so he filed a complaint in the District Court asserting violations of Title IX and of
Title VII and state-law claims. Princeton moved to dismiss the complaint, and the
District Court granted the motion. In doing so, the District Court ruled that Verdu failed
to state a plausible claim for relief under either Title IX or Title VII. The District Court
then declined to exercise supplemental jurisdiction over Verdu’s state-law claims.
Finding no error, we will affirm the order of the District Court.
I.1
Verdu taught at Princeton for nearly thirty-five years. In April 2017, Yeohee Im, a
graduate student at Princeton, reported Verdu for sexual harassment. Princeton
investigated the charge and determined that Verdu had violated Princeton’s sexual-
misconduct policy. Princeton disciplined Verdu by putting him on probation for a year.
*
This disposition is not an opinion of the full Court and, under I.O.P. 5.7, does not
constitute binding precedent.
1
These facts are taken from the complaint and treated as true because, in reviewing a denial
of a motion under Federal Rule of Civil Procedure 12(b)(6), we accept as true all well-
pleaded allegations and construe the complaints in the light most favorable to the
plaintiff. See Lewis v. Atlas Van Lines, Inc., 542 F.3d 403, 405 (3d Cir. 2008).
2
According to Verdu, Im did not believe that Princeton punished Verdu
sufficiently. That feeling was enhanced by Im’s relationship with Paul Cuff, a former
assistant professor at Princeton who held a grudge against Verdu. When Princeton
denied Cuff tenure, Cuff blamed Verdu. Verdu believed that Cuff then influenced Im to
engage in a public-pressure campaign against Verdu.2 Im’s campaign led to calls for
Verdu’s termination.
In September 2017, Princeton launched a second investigation into Verdu. The
second investigation involved an alleged romantic relationship between Verdu and
another Princeton graduate student, E.S., a student whose graduate dissertation Verdu had
evaluated. According to Verdu, the second investigation was caused, at least in part, by
Im’s efforts to find evidence about the relationship between Verdu and E.S. At first,
Verdu and E.S. denied that they had had any romantic relationship, Princeton, however,
ultimately concluded that Verdu and E.S. engaged in an impermissible romantic
relationship while Verdu evaluated her dissertation. Verdu later admitted that he and E.S.
did engage in a romantic relationship during that period. As punishment, Princeton’s
president recommended that Verdu be fired. The president based his recommendation on
the fact that Verdu had lied during the investigation.
Verdu asserts that both investigations involved discrimination against him because
of his sex. He claims that Princeton’s investigations were defective because of alleged
2
Verdu alleges that Im violated numerous policies and rules at Princeton when she
executed her alleged public-pressure campaign.
3
procedural anomalies, Im’s public-pressure campaign, and other public pressures on
Princeton to more rigorously investigate and punish any on-campus sexual misconduct.
Verdu sued Princeton in the District Court. The court dismissed his suit because
Verdu failed to plausibly allege his federal-law claims. Verdu’s appeal is now before us.
II.
The District Court had subject-matter jurisdiction over Verdu’s federal claims
under 28 U.S.C. § 1331. Although the District Court dismissed Verdu’s complaint
without prejudice, Verdu stood on his complaint by filing his appeal and by making
certain representations in his appellate briefing. “Although generally a plaintiff who
decides to stand on the complaint does so in the district court[,] . . . we have made clear
that such a course, while preferable, is not always necessary.”3 When a plaintiff
“declare[s] [his] intention to stand on [his] complaint in this [C]ourt[,] . . . we thereafter
treat[ ] the district court’s order dismissing the complaint, albeit without prejudice, as a
final order dismissing with prejudice . . . .”4 Verdu unequivocally stated his intention to
stand on his complaint in his briefing before us.5 Thus, we have appellate jurisdiction
3
Remick v. Manfredy, 238 F.3d 248, 254 (3d Cir. 2001).
4
Id. (citing Semerenko v. Cendant Corp., 223 F.3d 165, 172–73 (3d Cir. 2000)); see also
Pascack Valley Hosp. v. Local 464A UFCW Welfare Reimbursement Plan, 388 F.3d 393,
398 (3d Cir. 2004) (“At oral argument [before us], counsel for the Hospital declared the
Hospital’s intention to . . . stand on its complaint. Counsel’s declaration is sufficient to
render the District Court’s order final and appealable.”).
5
See, e.g., Appellant’s Opening Br. at 21–22. Princeton does not contest whether Verdu
has clearly stood on his complaint; nor does it contest our appellate jurisdiction.
4
under 28 U.S.C. § 1291. We review de novo an order granting a motion to dismiss under
Federal Rule of Civil Procedure 12(b)(6).6
III.
Verdu’s first contention is that the District Court erred when it dismissed his
claims for relief under Title IX of the Education Amendments of 1972. Title IX provides
that “[n]o person . . . 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.”7 In Doe v. University of the Sciences,8
we adopted a “straightforward pleading standard” and held “that, to state a claim under
Title IX, the alleged facts, if true, must support a plausible inference that a federally-
funded college or university discriminated against a person on the basis of sex.”9
Plaintiffs, of course, remain “free to characterize their claims however they wish.”10
In his complaint, Verdu states three theories under which Princeton discriminated
against him: erroneous outcome, selective enforcement, and retaliation.
1. Erroneous Outcome. Verdu claims that Princeton discriminated against
him based on his sex by reaching the incorrect conclusion both times that it investigated
him.
6
See, e.g., Connelly v. Lane Constr. Corp., 809 F.3d 780, 786 n.2 (3d Cir. 2016).
7
20 U.S.C. § 1681(a).
8
961 F.3d 203 (3d Cir. 2020). We reaffirmed that pleading standard more recently in
Doe v. Princeton University, 30 F.4th 335, 343 (3d Cir. 2022).
9
Univ. of the Scis., 961 F.3d at 209.
10
Id.
5
As for the first investigation, Verdu attempts to show that Princeton discriminated
against him based on his sex when it investigated and disciplined him based on (1)
generalized archaic stereotypes about the sexes, (2) the history of complaints to the
Department of Education’s Office for Civil Rights about Princeton’s purported failure to
respond adequately to allegations of sexual misconduct advanced by female students and
the resulting pressure on Princeton to remedy that perception, and (3) the fact that three
female graduate students studying in a different department at Princeton left abruptly and,
as a result, Princeton held a townhall meeting concerning systematic and long-term
sexual harassment within that department.
The District Court correctly found that, based on those allegations, Verdu had
failed to state a plausible claim that, because of his sex, Princeton investigated and
sanctioned him. Verdu’s allegations simply reflect the pressure on Princeton to enforce
its sexual-misconduct policy. These allegations alone are not enough to state a plausible
claim against Princeton under Title IX.11
As for Princeton’s second investigation of Verdu, the District Court found that
Verdu’s erroneous-outcome theory could not survive a motion to dismiss because he
failed to sufficiently plead his innocence. As we explained in University of the Sciences,
we have a standard based on the text of Title IX itself: “the alleged facts, if true, must
11
Id. at 210 (“Like our colleagues on the Sixth and Seventh Circuits, we . . . recognize
that allegations about pressure from [the Department of Education] and the 2011 Dear
Colleague Letter cannot alone support a plausible claim of Title IX sex discrimination.”
(citations omitted)).
6
support a plausible inference that a federally-funded college or university discriminated
against a person on the basis of sex.”12 Verdu failed to satisfy that standard.
On appeal, Verdu contends that his complaint alleges that the second investigation
suffered from sex bias because of a purported lack of evidence of sexual misconduct,
Princeton’s decision to press the investigation despite E.S. not wanting one to occur,
procedural irregularities in the investigation, and a variety of public pressures placed on
Princeton. However, the District Court found that, in his own complaint, Verdu
acknowledged that he violated Princeton’s policies: “Plaintiff alleges in the [c]omplaint
that he and E.S. commenced a relationship in Spring 2014, that the relationship was
ongoing during the period when Plaintiff evaluated E.S.’s dissertation, and that
[Princeton’s] rules at the time prohibited ‘sexual or romantic relation[s] involv[ing]
individuals in a teacher-student relationship.’”13 Verdu’s admission of guilt undercuts the
strength of his allegations that Princeton investigated him because of his sex. As a result,
Verdu’s allegations concerning the second investigation also fall short.
2. Selective Enforcement. Verdu claims that both the first and second
investigation suffered from sex bias because Princeton selectively enforced its policies
against him. He is wrong. As for the first investigation, Verdu claims that Princeton
discriminated against him based on his sex because (1) on information and belief, females
are purportedly investigated less frequently than males, (2) on information and belief,
females are punished less severely than males, and (3) Princeton treated his accuser, Im,
12
Id. at 209.
13
App. 15 (cleaned up); see also Compl. ¶¶ 229, 235, 298(h).
7
differently than it treated him during the first investigation. As for the allegations about
how females and males are generally treated differently, those allegations are too abstract
to support a claim of sex bias under Title IX.14 In addition, the purported differences in
how Princeton treated Verdu and Im are too conclusory to support a plausible claim for
relief.15
As for the second investigation, Verdu asserts essentially the same arguments to
support his selective-enforcement theory as he asserts to support his erroneous-outcome
theory. For substantially the same reasons that we reject those arguments in support of
his erroneous-outcome theory, we reject them in support of his selective-enforcement
theory.
3. Retaliation. Verdu challenges the District Court’s order dismissing his
Title IX retaliation claim. To state a claim for retaliation under Title IX, the plaintiff
must plausibly allege that he “engaged in activity protected by Title IX, that he “suffered
an adverse action,” and that “there was a causal connection between the two.”16
“Retaliation against a person because that person has complained of sex discrimination is
another form of intentional sex discrimination encompassed by Title IX’s private cause of
action.”17 A plaintiff alleging retaliation “need not prove the merits of the underlying
14
See Univ. of the Sciences, 961 F.3d at 209–11.
15
See, e.g., Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
16
See, e.g., Doe v. Mercy Catholic Med. Ctr., 850 F.3d 545, 564 (3d Cir. 2017) (cleaned
up); Moore v. City of Phila., 461 F.3d 331, 340–42 (3d Cir. 2006).
17
Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 173 (2005).
8
discrimination complaint, but only that ‘he was acting under a good faith, reasonable
belief that a violation existed.’”18
The District Court found that, at a minimum, Verdu failed to allege that he
engaged in activity protected by Title IX. As we explained earlier, Title IX protects
against discrimination because of sex. In his complaint, Verdu alleges merely that he
reported being subjected to a “hostile work environment” because of Im’s pressure
campaign.19 Verdu’s complaint never connects the purported “hostile work
environment” and Im’s public-pressure campaign to any purported sex-based
discrimination. For that reason, Verdu’s complaint does not include plausible allegations
that Verdu’s conduct of reporting the alleged “hostile work environment” is protected by
Title IX.20 Thus, the District Court correctly dismissed Verdu’s retaliation claim.
IV.
Next, Verdu challenges the District Court’s dismissal of his Title VII claims. Title
VII makes it unlawful “for an employer . . . to discharge any individual, or otherwise to
discriminate against any individual with respect to his compensation, terms, conditions,
18
Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1085 (3d Cir. 1996) (quoting
Griffiths v. CIGNA Corp., 988 F.2d 457, 468 (3d Cir.1993)).
19
To be sure, the alleged “hostile work environment” is related to publicity surrounding
Princeton’s first Title IX investigation into him. However, that is not a sufficient
connection by itself to show that the purported “hostile work environment” was caused
by sex discrimination directed at Verdu.
20
See, e.g., Twombly, 550 U.S. at 570; cf. Sitar v. Ind. DOT, 344 F.3d 720, 727 (7th Cir.
2003) (holding that, in Title VII context, the plaintiff had not engaged in protected
activity because she “complained only that she felt picked on, not that she was
discriminated against ‘because of’ sex or gender, which is what Title VII requires”).
9
or privileges of employment, because of such individual’s . . . sex.”21 Verdu alleges that
Princeton violated Title VII under two theories: one alleging disparate treatment and the
other alleging a hostile work environment.
1. Disparate Treatment. To allege plausibly a disparate-treatment claim under
Title VII, a plaintiff must allege that (1) he is a member of a protected class, (2) he is
qualified for the position he sought to retain or attain, (3) he suffered an adverse
employment action, and (4) the adverse action occurred under circumstances that may
give rise to an inference of intentional discrimination.22 The “central focus of the prima
facie [Title VII] case is always whether the employer is treating some people less
favorably than others because of their race, color, religion, sex, or national origin.”23
“The evidence most often used to establish . . . disparate treatment” involves “a plaintiff
show[ing] that [he] was treated less favorably than similarly situated employees who are
not in [his] protected class.”24
The District Court found that Verdu failed to allege that he received different
treatment by Princeton than a similarly situated female. He never identifies a female
professor at Princeton as a comparator; at most, his complaint alleges that Im—a graduate
student and his accuser—is a valid comparator. Although a plaintiff need not show an
21
42 U.S.C. § 2000e–2(a) (emphasis added).
22
See Makky v. Chertoff, 541 F.3d 205, 214 (3d Cir. 2008).
23
Sarullo v. U.S. Postal Serv., 352 F.3d 789, 798 (3d Cir. 2003) (emphasis added)
(cleaned up).
24
Doe v. C.A.R.S. Prot. Plus, Inc., 527 F.3d 358, 366 (3d Cir. 2008); see also Simpson v.
Kay Jewelers, Div. of Sterling, Inc., 142 F.3d 639, 645 (3d Cir. 1998).
10
exact match between himself and the comparator, he must show a sufficient similarity.25
Verdu, a professor, and Im, a graduate student, hold unquestionably different roles and
levels of authority at Princeton. Verdu has not alleged enough commonalities to show
that they are sufficiently alike to be considered valid comparators. Although on appeal
Verdu contends that one can infer that Princeton discriminated against him because of his
sex, none of his allegations plausibly support that contention.26 His disparate-treatment
claim therefore must fail.
2. Hostile Work Environment. To allege a plausible hostile-work-
environment claim under Title VII, a plaintiff must allege that (1) he suffered intentional
discrimination based on his being a part of a protected class, (2) the discrimination was
severe or pervasive; (3) the discrimination had a detrimental influence on the plaintiff; (4)
the discrimination would have had a detrimental influence on a reasonable person in
similar circumstances; and (5) respondeat-superior liability exists.27
The District Court found that Verdu failed to allege sufficiently the first element:
whether any harassment that he suffered was motivated by sex discrimination. The
District Court’s analysis is correct. In his complaint, Verdu explains that Im’s public-
pressure campaign, along with other public pressures on Princeton concerning on-campus
sexual harassment, led to Verdu facing public scrutiny from his colleagues and students
25
See, e.g., Johnson v. Kroger Co., 319 F.3d 858, 867 (6th Cir. 2003) (“In the context of
personnel actions, the relevant factors for determining whether employees are similarly
situated often include the employees’ supervisors, the standards that the employees had to
meet, and the employees’ conduct.” (cleaned up)).
26
See supra § 2.
27
See, e.g., Mandel v. M & Q Packaging Corp., 706 F.3d 157, 167 (3d Cir. 2013).
11
at Princeton. All of that, according to Verdu’s complaint, caused him stress, anxiety,
elevated blood pressure; all of it also allegedly led to a “hostile work environment” for
Verdu.
However, Verdu never plausibly alleges that Im’s pressure campaign and the
“hostile work environment” that purportedly resulted from it were motivated by sex
discrimination. If anything, Verdu alleges that Im launched her pressure campaign
because she felt “[d]issatisfied with [the] sanction” of Verdu.28 Additionally, his
complaint makes much of Im’s purported relationship with Professor Cuff. According to
Verdu, Cuff “held a grudge against” him because Cuff blamed Verdu for his failure to
obtain tenure.29 Based on Im allegedly “[h]aving developed a close relationship with
Cuff,” she purportedly filed her grievances against Verdu based on Cuff’s alleged
encouragement.30 Those allegations do not relate to sex discrimination; instead, they
relate to a purported feud between Cuff and Im, on one hand, and Verdu, on the other.
That is not enough to allege a plausible hostile-work-environment claim based on sex
discrimination. “Many may suffer severe or pervasive harassment . . ., but if the reason
for that harassment is one that is not proscribed by Title VII, it follows that Title VII
provides no relief.”31 Thus, the District Court properly dismissed Verdu’s hostile-work-
environment claim under Title VII.
28
Compl. ¶ 12.
29
Compl. ¶ 4.
30
Compl. ¶¶ 6–7.
31
See, e.g., Jensen v. Potter, 435 F.3d 444, 449 (3d Cir. 2006), overruled in part on other
grounds by Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006).
12
V.
The District Court properly dismissed the federal-law claims asserted in Verdu’s
complaint for failure to state a claim. We will affirm the District Court’s order
dismissing Verdu’s complaint.32
32
Having dismissed all federal-law claims and failing to find any other basis for subject-
matter jurisdiction over Verdu’s state-law claims, the District Court declined to exercise
supplemental jurisdiction over the state-law claims. See, e.g., Borough of West Mifflin v.
Lancaster, 45 F.3d 780, 788 (3d Cir. 1995) (stating that, when “the claim[s] over which
the district court has original jurisdiction [are] dismissed before trial, the district court
must decline to decide the pendent state claims unless considerations of judicial
economy, convenience, and fairness to the parties provide an affirmative justification for
doing so.”). Verdu makes no contrary argument.
13