Although it is a commonplace that employers do not violate Title VII simply by shortcutting their own internal disciplinary systems, that is not necessarily the case if the disciplinary proceeding itself is motivated in part by gender or racial stereotypes. Today, the Second Circuit holds that a coach stated a plausible claim that his employer relied on “invidious stereotypes and credit[ed] malicious accusations” while investigating a Title IX harassment complaint filed against him by a student.
Menaker v. Hofstra Univ., No. 18-3089 (2d Cir. Aug. 15, 2019): As summarized by the opinion, “[b]y May 2015, the national press had identified Hofstra as one of several universities under investigation by the [United States] 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.”
Menaker, a Hofstra tennis coach, was the subject of a female student’s Title IX complaint in 2016, charging that he directed sexually offensive comments at her, made sexual advances, and “‘began to threaten [her]’ scholarship and position on the team.” Menaker denied the allegations which, according to his complaint, were lodged only after he refused a request by the student to raise her scholarship eligibility.
While Hofstra’s formal harassment policy provided due process protections to employees investigated for alleged misconduct, Menaker alleged that the university did not follow these procedures in his case. In particular, he claimed that Hofstra neither (1) interviewed witnesses whom he identified as useful to the investigation, nor (2) provided fair notice of his termination hearing to give him a chance to prepare. In the end, Menaker was informed that he was being terminated for unspecified “unprofessional conduct,” which included the allegations in the Title IX complaint.
Menaker filed a Title VII action (with New York State and City supplemental claims) alleging that he was fired because of sex, specifically that the disciplinary policy was tipped against him because he was a man accused of misconduct by a woman. The district court held that “Menaker had failed to plead facts supporting a plausible inference that his sex played a role in his termination.”
The Second Circuit reverses. The panel homes in on the key dispute: whether Menaker alleged sufficient circumstances raising a plausible inference that sex was at least a motivating factor in the decision to fire him.
The opinion relies heavily on a recent Title IX decision, Doe v. Columbia Univ., 831 F.3d 46 (2d Cir. 2016) – concerning sex discrimination in education – holding that procedural shortcuts in a harassment investigation may constitute discrimination if they are driven by a policy of “favor[ing] the accusing female over the accused male.” The panel notes, especially, the context of an institution reacting to criticism that it had previously “not tak[en] seriously complaints of female students alleging sexual assault by male students.”
Because Titles IX and VII use similar principles to identify discriminatory intent, the panel concludes that Doe is on-point with Menaker’s claim. And “once a university has promised procedural protections to employees, the disregard or abuse of those procedures may raise an inference of bias,” under either statutory framework. HEre, the panel, holds, “Menaker has plausibly alleged facts that suggest at least some pressure on Hofstra to react more forcefully to allegations of male sexual misconduct.”
The panel then determines that Menaker’s allegations meet a standard of a “clearly irregular investigative or adjudicative process” that might imply bias.
“First, Menaker alleges that Hofstra failed to interview relevant witnesses whom he brought to the University’s attention. Second, Menaker alleges that he was terminated despite the fact that Hofstra Vice President [Hathaway] knew that at least one of the accusations against him was false and believed the complaint to be a ‘ploy.’ Similarly, Menaker alleges that his supervisor was aware of Kaplan’s frustration regarding her scholarship and her attempts to manipulate the athletic department in the spring of 2016. Third, despite [Hofstra’s Deputy General Counsel’s] express promise that Menaker would receive a report based on Hofstra’s investigation, Menaker received no such report. Fourth, Menaker alleges that Hofstra completely disregarded the process provided for in its written ‘Harassment Policy.'”
While the University sought to sidestep the allegations by emphasizing that Menaker was – on the face of the complaint – fired for “unprofessional conduct” rather than harassment, the panel finds that this “post‐hoc” rationale was itself alleged to be “merely pretextual.” Moreover, the allegation that Menaker was terminated based on the “‘totality’ of the allegations” at least implied that “there were other reasons as well,” including the alleged harassment.
In the end, the complaint stage is not the place to assess whether the employer mets its burden to provide minimally-satisfactory procedures:
“An employer cannot escape its promise of procedural protections by recharacterizing accusations of sexual misconduct in more generic terms. Nor can it deny an inference of procedural irregularity through post‐hoc rationalization. Menaker has therefore alleged sufficient facts to suggest procedural irregularity and, together with other facts, a prima facie case of sex discrimination.”
Finally, the panel holds that the university might be held liable under a “cat’s-paw” theory for acting – even unknowingly – on a student’s false or malicious accusations of harassment that are motivated, at least in part, by sex discrimination. Liability could fairly be imputed here because
“Hofstra controlled not only [the student]’s academic enrollment and athletic scholarship, but also the very complaint process by which she sought to effectuate her allegedly discriminatory intent. Indeed, Hofstra officials specifically referenced [the student]’s accusations in the course of terminating Menaker, thereby acknowledging that she had ‘played a meaningful role in the decision’ ….
“[Thus w]here (a) a student files a complaint against a university employee, (b) the student is motivated, at least in part, by invidious discrimination, (c) the student intends that the employee suffer an adverse employment action as a result, and (d) the university negligently or recklessly punishes the employee as a proximate result of that complaint, the university may be liable under Title VII.”