Employment Law Daily Sex bias claim of university tennis coach fired after student’s sexual harassment allegation revived
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Friday, August 16, 2019

Sex bias claim of university tennis coach fired after student’s sexual harassment allegation revived

By Kathleen Kapusta, J.D.

The coach alleged he was fired based on a student’s malicious sexual harassment claim, the university was under some pressure to react more forcefully to allegations of male sexual misconduct, and it followed an irregular investigative process.

In dismissing the Title VII and NYSHRL claim of Hofstra University’s head tennis coach, in which he alleged that Hofstra discriminated against him because of his sex when it fired him in response to a student’s malicious sexual harassment complaint, the court below failed to appreciate the scope of its Doe v Columbia decision and to draw all reasonable inferences in the coach’s favor, the Second Circuit held, vacating the lower court’s decision. Directing the district court on remand to consider Hofstra’s liability under a “cat’s paw” theory, the court noted that insofar as the university negligently or recklessly implemented the student’s discriminatory design, her intent might be imputed to the school (Menaker v. Hofstra University, August 15, 2019, Cabranes, J.).

“Dear Colleague.” Five years after the U.S. Department of Education issued a “Dear Colleague” letter to colleges and universities that was intended to usher “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 sexual misconduct claims, the coach became the director of tennis and head coach for Hofstra’s men’s and women’s varsity teams. Not long thereafter, a first-year student told him that his predecessor had promised to increase her athletic scholarship. When he could not confirm this, he told the student he would be unable to increase her scholarship for the coming year but could do so for her junior and senior years.

Threat of trouble. He then purportedly received a phone call from her father, who accused him of reneging on his predecessor’s commitment and threatened that if he did not increase his daughter’s scholarship, trouble would “come back to him.” Two months later, the student’s lawyer sent a letter to Hofstra claiming that the coach had sexually harassed her and when she did not respond to his advances, he began threatening her scholarship and position on the team. In response, Hofstra’s deputy general counsel and the athletic director met with the coach, without first informing him of the letter, and began questioning him.

Fired. When he was eventually shown the letter, he denied all accusations and the athletic director also disputed one accusation he knew was false. Although the attorney told the coach an investigation would be ensue, and the coach provided names of witnesses, she did not interview the students he identified. About two months later, the coach was summoned to another meeting without notice and informed that he had been fired for “unprofessional conduct” based on the “totality” of the allegations.

Lower court proceedings. The coach then sued, asserting claims under Title VII and the NYSHRL but the district court dismissed his complaint, finding he failed to plead facts supporting a plausible inference that his sex played a role in his termination.

Doe v. Columbia. Finding on appeal that the complaint alleged circumstances providing at least minimal support for an inference of discriminatory intent, the Second Circuit found the lower court failed to properly apply Doe v. Columbia, in which it concluded that a male student who had alleged his suspension for sexual assault was motivated in part by improper consideration of his sex successfully stated a claim for sex discrimination under Title IX. In Doe, the appeals court observed, it recognized that procedural deficiencies in the university’s investigation and adjudication of the sexual assault complaint raised an inference that it was motivated, at least in part, by bias. Further, the appeals court found this bias was likely a sex-based bias as the university had been criticized for “not taking seriously complaints of female students alleging sexual assault by male students.”

Unwarranted limitations. While the district court found that Doe’s application here was limited, the appeals court disagreed. Contrary to what the district court held, the logic of Doe, applies to both students and employees, to accusations of sexual harassment as well as sexual assault, and does not rely on a particular quantum of criticism at a specific university. “Rather,” the Second Circuit declared, “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.”

Because the coach alleged he was fired in response to accusations of sexual harassment and plausibly alleged facts suggesting at least some pressure on Hofstra to react more forcefully to allegations of male sexual misconduct (the “Dear Colleague” Letter, a Department of Education investigation into the university’s mishandling of sexual misconduct claims, and student criticism), the only remaining question, said the court, was whether his firing followed a sufficiently irregular process to raise an inference of bias.

Procedural irregularities. And here, the coach alleged facts reflecting a clearly irregular investigative and adjudicative process. Not only did he allege Hofstra failed to interview relevant witnesses he had identified, he claimed he was fired even though the athletic director knew that at least one of the accusations against him was false and believed the student’s complaint to be a “ploy.” In addition, he alleged, his supervisor was aware of the student’s frustration regarding her scholarship and her attempts to manipulate the athletic department and despite the deputy counsel’s express promise that the coach would receive a report based on the investigation, he never did.

Harassment policy. Moreover, the coach claimed, Hofstra did not follow its own procedures in its written harassment policy, as it did not interview potential witnesses, provide him the opportunity to submit a written response, or produce a written determination of reasonable cause. Although the district court sought to minimize or explain away these procedural irregularities, in doing so, said the Second Circuit, it failed to draw all reasonable inferences in the coach’s favor and made improper findings of fact.

Unprofessional conduct. Among other things, the lower court found there was nothing irregular about Hofstra’s failure to comport with its written harassment policy because “in Plaintiff’s own words, he was fired for ‘unprofessional conduct’—not harassment.” Declaring this “doubly incorrect,” the appeals court noted that the coach directly disputed he was fired for unprofessional conduct, maintaining instead that he was fired due to Hofstra’s discriminatory adjudication of a harassment complaint against him and the post-hoc allegation of unprofessional conduct was pretextual. Further, he claimed that when he was told he was being fired for unprofessional conduct, he was also told he was being terminated based on the “’totality’ of the allegations.”

Even accepting Hofstra’s assertion that he was fired based solely on the determination he engaged in unprofessional conduct, the university’s abandonment of its harassment policy would still be irregular, said the court. “After all, Hofstra’s conclusion that [the coach] had engaged in ‘unprofessional conduct’ derives from—and simply recharacterizes—the sexual harassment accusations in the [student’s complaint].” And while Hofstra argued the coach had no right to the policy’s procedural protections because he was not found guilty of the accusations, “to state the argument is to demonstrate its absurdity,” the court observed.

Defies common sense. Further, said the court, because procedural protections safeguard the rights of the accused during the investigative and adjudicative process, it defies common sense to wait until after that process has concluded to determine (based on its result) whether these protections apply. Accordingly, the coach alleged sufficient facts to suggest procedural irregularity and, together with other facts, a prima facie case of sex discrimination.

Cat’s paw. Suggesting that the lower court on remand consider the coach’s allegations under a cat’s paw theory, the appeals court noted that he alleged facts from which it could plausibly be inferred that Hofstra served as a conduit for the student’s discriminatory intent, which could be imputed to Hofstra. Finding it plausible her accusations were motivated, at least in part, by the coach’s sex, the court pointed out that while her primary motivation may have been financial or vindictive, that she accused the coach of sexual misconduct was significant as it suggested that sex played a part in her allegations and a rational factfinder could infer that her accusation was based at least in part on his sex.

Drawing all inferences in his favor, the court found the student’s intent might be imputed to Hofstra. His allegations suggested that Hofstra exercised the requisite degree of control over the student as it controlled not only her academic enrollment and athletic scholarship, but also the complaint process by which she sought to effectuate her allegedly discriminatory intent. Indeed, said the court, Hofstra officials specifically referenced her accusations while terminating the coach, thereby acknowledging that she had “played a meaningful role in the decision.”

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