Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Menaker v. Hofstra University

United States Court of Appeals, Second Circuit

August 15, 2019

Jeffrey Menaker, Plaintiff-Appellant,
v.
Hofstra University, Defendant-Appellee.

          Argued: May 14, 2019

          On Appeal from the United States District Court for the Eastern District of New York

         Plaintiff-Appellant Jeffrey Menaker ("Menaker") appeals from a September 27, 2018 judgment of the United States District Court for the Eastern District of New York (Denis R. Hurley, Judge) dismissing his complaint for failure to state a claim. Menaker sued Defendant-Appellee Hofstra University ("Hofstra") pursuant to Title VII of the Civil Rights Act of 1964 and the New York State Human Rights Law, alleging that Hofstra discriminated against him because of his sex when it fired him in response to allegedly malicious allegations of sexual harassment. The District Court dismissed Menaker's claim pursuant to Federal Rule of Civil Procedure 12(b)(6). We conclude that the District Court's decision conflicts with our precedent in Doe v. Columbia University, 831 F.3d 46 (2d Cir. 2016), and relies on improper factual findings. We also conclude that, on remand, the District Court should consider Hofstra's potential liability under a "cat's paw" theory. Accordingly, we VACATE the judgment and REMAND the cause to the District Court for further proceedings consistent with this opinion.

          Stephen D. Houck (Theodor D. Bruening, on the brief), Offit Kurman, P.A., New York, NY, for Plaintiff-Appellant.

          Jill Goldberg, Orrick, Herrington & Sutcliffe LLP, New York, NY, for Defendant- Appellee.

          Before: Cabranes, Hall, Circuit Judges, and Stanceu, Judge. [*]

          José A. Cabranes, Circuit Judge.

         When universities design and implement polices to ensure the security of their students, they facilitate their sacred mission of educating the next generation. But when they distort and deviate from those policies, fearfully deferring to invidious stereotypes and crediting malicious accusations, they may violate the law.

         Plaintiff-Appellant Jeffrey Menaker ("Menaker") appeals from a September 27, 2018 judgment of the United States District Court for the Eastern District of New York (Denis R. Hurley, Judge) dismissing his complaint for failure to state a claim. Menaker sued Defendant- Appellee Hofstra University ("Hofstra" or "the University") pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII") and the New York State Human Rights Law, alleging that Hofstra discriminated against him because of his sex when it fired him in response to allegedly malicious allegations of sexual harassment. The District Court dismissed Menaker's claim pursuant to Federal Rule of Civil Procedure 12(b)(6). We conclude that the District Court's decision conflicts with our precedent in Doe v. Columbia University, 831 F.3d 46 (2d Cir. 2016) ("Doe v. Columbia"), and relies on improper factual findings. We also conclude that, on remand, the District Court should consider Hofstra's potential liability under a "cat's paw" theory. Accordingly, we VACATE the judgment and REMAND the cause to the District Court for further proceedings consistent with this opinion.

         I. BACKGROUND

         The following facts are drawn from Menaker's Amended Complaint and documents incorporated by reference therein. In recounting the facts, we are, of course, required to "accept as true all of the factual allegations contained in the complaint."[1]

         A. The Atmosphere at Hofstra

         The events at issue occurred against a general background of debate and criticism concerning the handling of allegations of sexual harassment and misconduct by American universities, including Hofstra. In 2011, the U.S. Department of Education issued a now- famous "Dear Colleague" letter to colleges and universities.[2] The "Dear Colleague" letter "ushered in a more rigorous approach to campus sexual misconduct allegations" by defining "'sexual harassment' more broadly than in comparable contexts" and requiring that "schools prioritize the investigation and resolution of harassment claims" and adopt a lower burden of proof when adjudicating claims of sexual misconduct.[3]

         By May 2015, the national press had identified Hofstra as one of several universities under investigation by the Department of Education for possible mishandling of sexual misconduct claims. At the same time, Hofstra also faced internal criticism for its assertedly inadequate response to male sexual misconduct on campus.[4]

         B. A Dispute Over an Athletic Scholarship

         On January 15, 2016, Menaker joined Hofstra as its Director of Tennis and Head Coach of both its men's and women's varsity tennis teams. In late April 2016, Michal Kaplan, [5] then a first-year student at Hofstra and a member of the women's varsity tennis team, approached Menaker to discuss her athletic scholarship. Kaplan claimed that Menaker's predecessor had promised to increase her then-45 percent athletic scholarship to a full scholarship in the fall of 2016. Kaplan sought confirmation from Menaker about her scholarship increase, but Menaker explained that he knew nothing about the arrangement and would need to look into the matter.

         After reviewing Kaplan's financial aid records and speaking with his supervisor, Menaker confirmed there was no record of any such promise. He informed Kaplan of this, but Kaplan insisted that she had received an oral promise from Menaker's predecessor. Menaker responded that he was unable to increase Kaplan's scholarship for the coming year (Kaplan's sophomore year) but could do so for her junior and senior years. Kaplan stated that she would inform her parents, and Menaker replied that they should feel free to call him with any questions.

         In early May 2016, Menaker received an irate phone call from Kaplan's father, who accused him of reneging on a commitment made by his predecessor. Kaplan's father threatened Menaker that if he did not increase his daughter's scholarship, trouble would "come back to him."[6]

         C. Kaplan Files a Title IX Complaint Against Menaker

         In late July 2016, Hofstra received a letter addressed to the university's President and its Title IX Coordinator, titled "Michal Kaplan's Title IX Complaint" (the "Kaplan Letter").[7] The Kaplan Letter, sent by Kaplan's lawyer, alleges that Menaker subjected her to "unwanted and unwarranted sexual harassment" and "quid pro quo threats [that] were severe, pervasive, hostile, and disgusting."[8] In particular, the letter alleges that Menaker was "obsess[ed] with" and would comment on Kaplan's menstrual cycle, that he would tell players to "dress nice" and "shave their legs," that he once "scream[ed] obscenities and verbal abuse at a female tennis player on the opposing team," and that after Kaplan "did not respond to [Menaker's] advances, [he] soon began to threaten [her]" scholarship and position on the team.[9] Menaker maintains that each of these allegations is false.[10]

         D. The July 2016 Meeting with Hofstra Officials

         Shortly after receiving the July 2016 Kaplan Letter, Hofstra's Deputy General Counsel, Jennifer Mone ("Mone"), and its Vice President and Director of Athletics, Jeffrey Hathaway ("Hathaway"), summoned Menaker to a meeting. Menaker was not informed of the reason for the meeting in advance. Mone, who appeared to be referring to a document in front of her, began by asking Menaker how he communicated with members of the tennis program. Menaker responded that he used several forms of electronic communication as, he claims, is standard in athletic programs.

         As Mone's questioning continued, Menaker asked to see the document. Mone handed him the Kaplan Letter. After reading the letter, Menaker verbally denied all of the accusations contained therein. Hathaway, who was also present, joined Menaker in vigorously disputing a particular accusation that Hathaway knew to be false. Mone instructed Menaker to collect copies of all communications with Kaplan and informed him that Hofstra would be conducting an investigation into the matter and that a report would soon be "shared" with him.[11]

         At the time, Hofstra maintained a written "Harassment Policy," which "covers the conduct of all University employees and students" and outlines proper procedures for investigating and resolving harassment claims.[12] The Harassment Policy provides for both an "informal" process for pursuing a "mutually agreeable" resolution and "formal" procedures. The latter procedures include requirements that Hofstra's investigator interview potential witnesses, that accused parties have the right to submit a written response, and that Hofstra's investigator produce a written determination of reasonable cause.[13]

         E. July and August 2016: Menaker Waits for Hofstra to Take Action

         Over the following two months, Menaker provided Hofstra copies of his communications with Kaplan. He pointed out that "the time frames described in [the Kaplan Letter] were provably false, "[14]and he suggested names of particular student-athletes who could provide information that might be useful to the investigation. Hofstra made no further requests from Menaker and did not interview the students he identified.

         During this same period, Hathaway told Menaker that he assumed the complaint to be a ploy by Kaplan's parents, and that complaints such as Kaplan's were not uncommon.

         Meanwhile, Menaker retained counsel, who contacted Mone. Mone advised Menaker's counsel to refrain from taking legal action against Kaplan and promised to keep him informed of the investigation's status.

         F. The September 2016 Meeting: Menaker is Fired

         On September 7, 2016, Menaker was summoned to a meeting with Hofstra's Director of Human Resources, Evelyn Miller-Suber ("Miller-Suber"), Mone, and Hathaway. As with the July meeting, Menaker was not given advance notice of the purpose of the meeting and did not have an opportunity to prepare for it.

         Mone opened the meeting by recalling the Kaplan Letter and repeating several of its allegations. Mone also added a new allegation, namely that Menaker had "made statements to students about his divorce."[15] After completing her statement, Mone left the room, and Miller-Suber informed Menaker that he was being fired for "unprofessional conduct."[16] She added that, while none of the stated allegations was independently sufficient for termination, he was nevertheless being fired for the "totality" of the allegations.[17]

         G. The Proceedings Below

         On March 6, 2017, Menaker filed a charge of sex-based discrimination with the United States Equal Opportunity Commission, and, on May 30, 2017, the Commission issued a Notice of Right to Sue letter. On September 22, 2017, Menaker filed suit, alleging violations of Title VII, the New York State Human Rights Law, and New York City Human Rights Law.[18] On January 12, 2018, Hofstra filed a motion to dismiss the case under Federal Rule of Civil Procedure 12(b)(6). On September 26, 2018, the District Court granted the motion, concluding that Menaker had failed to plead facts supporting a plausible inference that his sex played a role in his termination. This appeal followed.

         II. DISCUSSION

         A. Standard of Review

         We review de novo a district court's order granting a motion to dismiss.[19] We accept all factual allegations in the Amended Complaint as true and draw all inferences in Menaker's favor.[20] "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face."[21]

         B. Title VII Claims Generally

         Title VII prohibits an employer from "taking an adverse employment action" against an individual "because of such individual's race, color, religion, sex, or national origin."[22] Because it is often difficult to obtain direct evidence of discriminatory intent, we employ a "burden-shifting framework" (commonly identified by reference to the Supreme Court case from which it derives, McDonnell Douglas Corp. v. Green)[23] to "progressively sharpen[ ] the inquiry into the elusive factual question of intentional discrimination."[24]

         To survive a motion to dismiss, a plaintiff need only establish "a prima facie case of sex discrimination by demonstrating that (1) [he] was within the protected class; (2) [he] was qualified for the position; (3) [he] was subject to an adverse employment action; and (4) the adverse action occurred under circumstances giving rise to an inference of discrimination."[25] If a plaintiff successfully establishes a prima facie case, the burden shifts to the employer at the summary judgment stage "to articulate some legitimate, nondiscriminatory reason for the adverse employment action."[26] Finally, if the employer carries that burden, a plaintiff must submit admissible evidence from which a finder of fact could "infer that the defendant's employment decision was more likely than not based in whole or in part on discrimination."[27] The burden-shifting framework thus "reduces the facts needed to be pleaded under Iqbal" at the 12(b)(6) stage of a Title VII suit.[28] A plaintiff need only allege facts that give "plausible support to a minimal inference of discriminatory motivation."[29]

         Here, there is no dispute that Menaker's Amended Complaint satisfies the first three elements of a prima facie case.[30] Thus the only remaining question is whether the complaint alleges circumstances that provide at least minimal support for an inference of discriminatory intent. We conclude that it does. As explained below, the District Court's conclusion to the contrary stems in part from its failure to appreciate the scope of our precedent in Doe v. Columbia. The District Court also failed to draw all reasonable inferences in Menaker's favor, relying instead on impermissible factual findings. Finally, on remand, the District Court should also consider whether Kaplan's discriminatory intent could be imputed to Hofstra through a "cat's paw" theory of vicarious liability.

         C. The Proper Scope of Doe v. Columbia

         In Doe v. Columbia, a male student alleged that his suspension for sexual assault was motivated, in part, by improper consideration of his sex in violation of Title IX of the Education Amendment of 1972 ("Title IX").[31] Similar to Title VII, Title IX prohibits discrimination "on the basis of sex."[32] But unlike Title VII, which prohibits employment discrimination, Title IX applies to "any education program or activity receiving Federal financial assistance."[33] We have, however, long interpreted Title IX "by looking to the . . . the caselaw interpreting Title VII," and we have therefore held that "Title IX bars the imposition of university discipline where gender is a motivating factor in the decision to discipline."[34]

         The plaintiff in Doe v. Columbia advanced precisely such a claim. His complaint alleged an atmosphere of public pressure demanding that the university react more swiftly and severely to female complaints of sexual assault against males. The complaint also alleged substantial procedural irregularities in the investigation and adjudication of the accusations against the student. These irregularities included: the university's failure "to seek out potential witnesses [he] had identified as sources of information favorable to him," its failure "to act in accordance with University procedures designed to protect accused students," and its arrival at conclusions that were "incorrect and contrary to the weight of the evidence."[35]

         We concluded that the complaint successfully stated a claim for sex discrimination under Title IX. In so holding, we highlighted two factual allegations that plausibly supported "at least the needed minimal inference of sex bias."[36] First, we recognized that the procedural deficiencies in the university's investigation and adjudication of the sexual assault complaint raised an inference that the university was motivated, at least in part, by bias.[37] Next, we confirmed that this bias was likely a sex-based bias by noting that the university had been criticized for "not taking seriously complaints of female students alleging sexual assault by male students."[38] We reasoned that it was plausible that the university was motivated to "favor the accusing female over the accused male" in order to demonstrate its commitment to protecting female students from male sexual assailants.[39]

         In this case, the District Court placed several unwarranted limitations on the application of Doe v. Columbia. First, the District Court interpreted Doe v. Columbia as applying only to plaintiffs accused of sexual assault, rather than those accused of sexual harassment.[40] Second, the District Court limited Doe v. Columbia to student plaintiffs, to the exclusion of employee plaintiffs.[41] And third, the District Court assumed that the logic of Doe v. Columbia was confined to circumstances where criticism of a university had reached a "crescendo."[42] We disagree with these overly narrow interpretations of our precedent.

         First, we reject the District Court's attempt to distinguish between accusations of sexual assault on the one hand, and accusations of sexual harassment on the other. The logic of Doe v. Columbia applies equally to both sorts of accusations. The intuitive principle that universities' reactions to accusations of sexual misconduct are often influenced by the sexes of the parties applies with equal force to both sexual assault and sexual harassment. A plaintiff may thus establish a prima facie case for sex discrimination based on adverse actions for both allegations of sexual harassment and allegations of sexual assault.

         Second, we emphasize that the holding of Doe v. Columbia is not limited to Title IX claims rather than Title VII claims. We apply similar principles in both Title VII and Title IX when seeking to identify discriminatory intent.[43] Indeed, our holding in Doe v. Columbia was expressly based on Title VII principles.[44] Nor is the logic underlying Doe v. Columbia limited to discipline meted out in response to allegations of student-on-student misconduct. On the contrary, the very same pressures that may drive a university to discriminate against male students accused of sexual misconduct may drive a university to discriminate against male employees accused of the same.

         To be sure, an at-will employee may have different contractual rights than a student or a tenured faculty member. And a university may well have reasons other than sex for distinct treatment of claims affecting these different sorts of members of a university community. But once a university has promised procedural protections to employees, the disregard or abuse of those procedures may raise an inference of bias.[45]

         Third, we reject the District Court's attempt to limit Doe v. Columbia to cases where the public pressure on a university is particularly acute.[46] We agree that "[p]ress coverage of sexual assault at a university does not automatically give rise to an inference that a male who is terminated because of allegations of inappropriate or unprofessional conduct is the victim of [sex] discrimination."[47] But this does not mean that the press coverage or public pressure must reach a particular level of severity. On the contrary, when combined with clear procedural irregularities in a university's response to allegations of sexual misconduct, even minimal evidence of pressure on the university to act based on invidious stereotypes will permit a plausible inference of sex discrimination.[48]

         To summarize: we decline to adopt each of the District Court's proposed limitations on Doe v. Columbia. The logic of that precedent applies to both students and employees, to accusations of sexual harassment as well as sexual assault, and it does not rely on a particular quantum of criticism at a specific university. Rather, Doe v. Columbia stands for the general principle that where a university (1) takes an adverse action against a student or employee, (2) in response to allegations of sexual misconduct, (3) following a clearly irregular investigative or adjudicative process, (4) amid criticism for reacting inadequately to allegations of sexual misconduct by members of one sex, these circumstances provide the requisite support for a prima facie case of sex discrimination.

         Here, Menaker has clearly alleged that he suffered an adverse employment action, and that this action came in response to accusations (if not an actual finding) of sexual harassment. Similarly, Menaker has plausibly alleged facts that suggest at least some pressure on Hofstra to react more forcefully to allegations of male sexual misconduct (e.g., the "Dear Colleague" Letter, a Department of Education investigation, and student criticism).[49] The only remaining question, then, is whether his firing followed a sufficiently irregular process to raise an inference of bias.

         D. Procedural Irregularities

         To decide the instant case, we need not define precisely what sort of irregularities meet the standard of "clearly irregular investigative or adjudicative process."[50] But we note that Doe v. Columbia offers some guidance on this issue. For instance, "[w]hen the evidence substantially favors one party's version of a disputed matter, but an evaluator forms a conclusion in favor of the other side (without an apparent reason based in the evidence), it is plausible to infer (although by no means necessarily correct) that the evaluator has been influenced by bias."[51] Similarly, where decision-makers choose "to accept an unsupported accusatory version over [that of the accused], and declined even ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.