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 ...