‘Plausible’ that teacher provided negative job references after student rejected his sexual advances

By Joy Waltemath

By Kathleen Kapusta, J.D.

Noting that courts have struggled to draw the line between speculative allegations and those sufficiently plausible to survive dismissal, and that the Supreme Court has provided “scant guidance for drawing that elusive line,” the Second Circuit, applying the standard instructed by Iqbal, found plausible a graduate music student’s retaliation claim against his former piano teacher and the university, in which he alleged that the absence of any interviews for a teaching job resulted from negative references after he rejected his teacher’s sexual advances. Accordingly, the court vacated in part the decision of the court below dismissing the plaintiff’s retaliation claim (Irrera v. Humpherys, June 15, 2017, Newman, J.).

As a graduate piano student at a prestigious music school, the plaintiff was pursuing a doctor of musical arts (DMA) degree. According to his complaint, his teacher, who was also the chair of the music department, made an unwanted sexual advance toward him during a piano lesson and on other occasions winked and blew kisses at him and looked him up and down in a sexual manner. He was also purportedly told by another professor that his teacher was in love with him.

After rejecting his teacher’s sexual advances, the plaintiff was given a failing grade on two solo recitals by a panel of three professors that included his teacher. He had never previously failed a solo recital and a few months later, he won the American Protege International Competition and performed at Carnegie Hall. After he was assigned another teacher, he was successful on all his subsequent recitals, graduating with a DMA degree.

Living hell. In a recorded conversation, the complaint alleged, the teacher told the plaintiff he “would never get a university professor job” and threatened to “make his life a living hell” if he made any written report of sexual harassment. According to the plaintiff, a school dean told him she expected that future employers would call, email or otherwise contact his former teacher to get feedback regarding his ability to play piano, that “she received calls all the time even though not listed as someone’s reference,” and that “‘we cannot get [the teacher] out of your life — he has been your teacher for so long.’”

Extraordinarily rare. After receiving his degree, the plaintiff applied to 28 colleges and universities for open teaching positions in the piano department but did not receive a single interview, an outcome he alleged was “extraordinarily rare (unheard of)” for a graduate of that university. In suing the teacher and university for retaliation, among other things, he alleged that the absence of any interviews resulted from the teacher’s negative references, which he gave as a result of the plaintiff’s rejection of his sexual advances. Dismissing this claim, the district court found it was speculative because the plaintiff failed to make factual allegations that his teacher or any other professor gave any of his potential employers a reference, let alone a negative one.

Plausibility. On appeal, the Second Circuit observed that “Ultimately, Iqbal instructs, courts are to determine whether a complaint “contain[s] sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Endeavoring to apply that standard here, the court observed that the plaintiff was a graduate of a highly regarded music school and the recipient of a prestigious honor. Although it was not impossible that all 28 schools to which he applied deemed his credentials insufficient to warrant an interview, it was plausible, said the court, that these schools received negative references from the chairman of the university’s piano department, who had been the plaintiff’s teacher.

It was also plausible that a teacher who warned his student that he would make his life a “living hell” if he reported his sexual advances would give that student a negative reference, even if the student later complained to a school dean only orally. Further, it was plausible that the teacher, who was a department chair, would be contacted by schools to which the plaintiff applied even though he was not listed as a reference. Although he did not allege that he was aware of a negative reference sent to any particular school, “common experience indicates that schools and colleges rarely, if ever, disclose the content of the references they receive, in the absence of court-ordered discovery,” the court reasoned, finding the plaintiff’s claim was plausible and dismissing it was error.

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