## Facts

- Eleanora Patane worked as an executive secretary in Fordham University’s Classics Department beginning in 1998; John Richard Clark, a professor and sometimes department chair, supervised her.
- Patane alleged Clark engaged in ongoing sexually charged workplace conduct, including viewing hardcore pornographic videotapes in his office for one to two hours daily with the door open.
- Patane alleged Clark kept pornographic videotapes in a cabinet in her work area and ordered her to retrieve them; when she refused, he reacted with anger and intimidation.
- Patane alleged Clark engaged in unwanted physical displays of affection toward other female employees that she found offensive.
- Patane reported Clark’s conduct to Fordham officials, including the Director of the Office of Institutional Equity (Georgina Arendacs) and an Associate Vice President (David Stuhr), and alleged they failed to take remedial action despite repeated notice.
- Patane alleged that after her complaints, Clark and another professor (Harry B. Evans) retaliated by removing core duties, assigning menial tasks, excluding her from meetings and departmental communications, denying her access to the department office, and treating her in a hostile and demeaning manner.
- Patane filed an EEOC charge, received a right-to-sue notice, and brought claims under Title VII, NYSHRL, and NYCHRL; the district court dismissed all claims under Rule 12(b)(6).

## Issues

1. Whether the complaint plausibly alleged a hostile work environment based on sex under Title VII, NYSHRL, and NYCHRL.
2. Whether the complaint plausibly alleged retaliation for protected complaints of harassment under Title VII and parallel state and city provisions.
3. Whether the complaint plausibly alleged disparate-treatment sex discrimination based on an adverse employment action.
4. Whether dismissal at the pleading stage was improper given the Rule 12(b)(6) standard and the materials considered.

## Decision

- The Second Circuit affirmed in part and vacated in part the dismissal.
- It vacated dismissal of the hostile work environment and retaliation claims:
  - Against Fordham under Title VII and NYSHRL; and
  - Against the individual defendants under NYSHRL and NYCHRL (on aiding-and-abetting theories).
- It affirmed dismissal of disparate-treatment discrimination claims premised on a discrete adverse employment action, concluding the pleaded facts did not sufficiently allege a classic tangible employment action attributable to sex discrimination.
- It left undisturbed dismissal of Title VII claims against individual defendants, because individuals are not liable under Title VII.

## Legal Principles

- On a Rule 12(b)(6) motion, courts must accept well-pleaded factual allegations as true and draw reasonable inferences in the plaintiff’s favor.
- A hostile work environment exists when conduct is sufficiently severe or pervasive to alter the conditions of employment and create an abusive environment; the hostility must be both objectively and subjectively experienced and occur because of sex.
- Sex-based harassment may be actionable even if not directed exclusively at the plaintiff, so long as it contributes to a workplace permeated with discriminatory intimidation, ridicule, or insult.
- For Title VII retaliation, a plaintiff must plausibly allege protected activity, employer knowledge, a materially adverse action, and a causal connection; a materially adverse action is one that might dissuade a reasonable worker from complaining.
- Under NYSHRL and NYCHRL, individual defendants may be liable as aiders and abettors for discriminatory or retaliatory conduct, even though Title VII does not impose individual liability.

## Conclusion

The Second Circuit held that allegations of persistent workplace pornography tied to a supervisor’s conduct, combined with alleged institutional inaction after notice, plausibly stated a hostile work environment claim, and that alleged post-complaint stripping of duties and exclusion plausibly stated retaliation; it reinstated those claims while affirming dismissal of separate disparate-treatment adverse-action theories and Title VII claims against individuals.


Patane v. Clark, 508 F.3d 106 (2d Cir. 2007)