By Wayne D. Garris Jr., J.D.
The district court incorrectly applied Title VII’s less stringent causation standard to the former assistant basketball coach’s Section 1983 claims. Besides, the individual defendants should have been granted qualified immunity.
Reversing a federal district court’s denial of summary judgment, the Second Circuit found that a former assistant college basketball coach failed to establish her Section 1983 sex discrimination and hostile work environment claims and that the college’s senior associate athletic director and head coach were entitled to qualified immunity. The district court erred when it applied Title VII’s causation and vicarious liability standards to the assistant coach’s Section 1983 claims to avoid summary judgment (Naumovski v. Norris, August 12, 2019, Cabranes, J.).
The defendants, athletics officials at Binghamton University, the State University of New York, appealed a partial denial of summary judgment, arguing they were erroneously denied qualified immunity in a lawsuit brought by a former assistant women’s basketball coach.
Workplace rumors. The assistant basketball coach had been accused of showing favoritism to certain student-athletes, which lead to rumors that she had an inappropriate relationship with one of her players. The athletic department leadership did not believe the rumors and dismissed them as falsehoods from disgruntled student athletes and individuals associated with the athletics department. The rumors continued to circulate, though, through several seasons, and in part contributed to conflicts with the head coach.
Termination. As a result, the coach and interim athletic director decided to terminate the assistant coach, but before notifying her, a student-athlete received an anonymous letter accusing her of having a sexual relationship with the assistant coach. Before the allegations in the letter were investigated, the head coach terminated the assistant coach citing performance reasons: her difficulty working with the head coach and the belief that she displayed favoritism towards certain players.
District court proceedings. The assistant coach filed suit against the head coach, senior associate athletic director, Binghamton, SUNY, and two anonymous individuals alleging discrimination based on sex, her perceived sexual orientation, and her national origin, in violation of Title VII, Title IX, the Equal Protection Clause and the First Amendment, the New York State Constitution, and the New York State Human Rights Law.
As to the head coach and athletic director, the lower court dismissed all claims except for the sex-based disparate treatment and hostile work environment claims under Section 1983; it declined to discuss the defendants’ qualified immunity claim, and they appealed.
Section 1983 v. Title VII. The appeals court began by explaining that while Section 1983 and Title VII discrimination claims have many similarities, there are two key differences relevant to the assistant coach’s claims: Section 1983 does not permit vicarious liability and it has a different standard of causation.
Causation. Under Section 1983, a plaintiff must establish that the defendant’s discriminatory intent was a “but-for” cause of the adverse employment action or the hostile environment, not merely a motivating factor, as Title VII requires. When a court applies the McDonnell-Douglas burden shifting analysis to Section 1983 claims, a plaintiff must establish that the employer’s stated reason would not, alone,” constitute a sufficient basis for pursuing an adverse action.”
Disparate treatment. The district court had denied summary judgment on the assistant coach’s disparate treatment claim, finding that the head coach’s statement that, “your problem is that you’re a single female in your mid-30s” as well as “other indicia of discrimination” warranted the denial. The Second Circuit rejected this reasoning, noting that there was no additional evidence of animus towards women; the head coach’s statement was simply a stray remark and insufficient to support a claim of discrimination under Section 1983.
Sex stereotyping. The appeals court rejected the assistant coach’s sex-stereotyping claim because she had failed to show that discrimination (a belief that “single, mid-30’s women are more prone to engage in sexual misconduct with a female student-athlete than are their male counterparts”) was the “but-for” cause of her termination. As the court previously articulated, the coach’s statement was an isolated remark. and the assistant coach failed to show the individual defendants’ stated reason for her termination—performance reasons—was false or inadequate. It was error for the district court to have applied the Title VII standard to find that a rational finder of fact could infer that her termination was more likely than not motivated in part by sex-based discrimination.
Qualified immunity. In addition, the Second Circuit held the defendants should have been granted qualified immunity on the assistant coach’s sexual orientation claim because, at the time that the claim arose, there was no “clearly established law” for sexual orientation claims under Section 1983. Zarda v. Altitude Express, Inc. specifically addressed the question of whether Title VII prohibits sexual orientation discrimination, reasoned the court; it did not address whether the Constitution prohibits sexual orientation discrimination. Zarda does not “clearly establish” constitutional (i.e. § 1983) sexual orientation discrimination claims. Plus, the conduct here predated the issuance of the Zarda decision, so the “clearly established law” at the time the assistant coach was terminated was that sexual orientation discrimination was not a subset of sex discrimination.
Vicarious liability. The assistant coach’s final theory of disparate treatment was that the defendants were liable for terminating her based on the discriminatory intent of the students who circulated the rumors. The appeals rejected this argument, again reasoning that even if the students who spread false rumors did so because of the assistant coach’s sex, she failed to prove that her sex was “but for” cause of her termination. Finally, the court noted, there is no vicarious liability under Section 1983 comparable to Title VII.
Hostile work environment. The Second Circuit also reversed the denial of summary judgment for the hostile work environment claim because the assistant coach failed to show that the defendants’ ownconduct (as opposed to that of the students) created a sufficiently hostile work environment or that their conduct was a “but-for” cause of the hostile work environment. The district court erred again by applying the Title VII principle that a negligent employer may be held liable for the conduct of a supervisee.
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