A federal judge from the Eastern District of New York has granted Hofstra University’s motion to dismiss a lawsuit brought by the former head coach of the men’s and women’s tennis teams at the university, who alleged that he had been discriminated against on the basis of his gender.
Plaintiff Jeffrey Menaker was hired by Hofstra University in January 2016. As part of the hire, he inherited the “annual allocation of athletic scholarship funds to members of the tennis teams” from his predecessor, according to the court.
In late April 2016, just before the season-ending conference tournament, a first-year student approached Menaker to confirm that her scholarship would be increased from 45 percent to a full athletic school year. The student claimed that this increase had been promised by Menaker’s predecessor. Menaker said he was not aware of the promise, but that he would investigate. He conversed with his supervisor, Alyssa Morales-Kelly, who confirmed that the department had no record of a promise to increase the scholarship. Menaker then informed the student that he could not increase her scholarship for her sophomore year, but he could give her a full scholarship for her junior and senior years. In May 2016, the student’s father called Menaker and yelled at him on the phone about the scholarship situation. Menaker reported the call to Kelly.
That same month, the student visited Menaker ‘s office to inform him that she could no longer afford to attend Hofstra, according to the complaint. The student later called Menaker to ask him to “release” her under the NCAA rules, so she could transfer to another university and tennis program. Menaker and the student texted back and forth regarding whether she would look for another school, under which circumstance Menaker informed the student that he would rescind the offer for a full scholarship for her junior and senior years. In June 2016, the student informed Menaker that she had decided to return to Hofstra for her sophomore year. Around this same time, the Hofstra athletic department administered anonymous reviews of the coaching staff. Thereafter, Menaker met with Kelly to discuss the reviews, which she said were all positive, according to the complaint.
In July 2016, Menaker was summoned to the office of the Deputy General Counsel, Jennifer Mone, along with the Vice President and Director of Athletics, Jeffrey Hathaway. Mone asked Menaker about his methods of communicating with students, and then presented him with a letter Hofstra had received from the student’s attorney. The letter laid out several accusations against Menaker, including but not limited to:
(1) that the student had been “subjected to unwanted and unwarranted sexual harassment” by Menaker;
(2) that Menaker “had a strange obsession with [the Student’s] menstrual cycle, and would repeatedly comment about when [the student] was getting her period[;]”
(3) that Menaker was inappropriately concerned with the physical appearance and presentation of women on the team; and
(4) that Menaker had screamed obscenities and verbal abuse at female players on opposing teams.
During that meeting, Menaker denied the claims, and provided all of his communications with the student to the university, according to the complaint. Menaker did not provide the court with these communications, according to the judge.
On Sept. 7, 2016, Menaker was fired for “unprofessional conduct.” The plaintiff sued for gender discrimination under Title VII of the Civil Rights Act of 1964, the New York State Human Rights Law (NYSHRL), and the New York City Human Rights Law (NYCHRL). Hofstra subsequently moved to dismiss for failure to state a claim, pursuant to Fed. R. Civ. P. 12(b)(6).
The court first considered Title VII, which prohibits gender discrimination.
To establish a prima facie case for employment discrimination, a plaintiff must show that “(1) he belonged to a protected class; (2) he was qualified for the position he held; (3) he suffered an adverse employment action; and (4) that the adverse employment action occurred under circumstances giving rise to an inference of discriminatory intent.” Joseph, 5 F. Supp. 3d at 308 (quoting Brown v. City of Syracuse, 673 F. 3d 141, 150 (2d Cir. 2012); see also Mills v. S. Connecticut State Univ., 519 Fed. Appx. 73, 75 (2d Cir. 2013).
In the instant case, the court found the plaintiff’s evidence of a Title VII violation wanting.
“(T)here is no dispute over the first three elements of a prima facie case for discrimination; namely, that the plaintiff belongs to a protected class, that he was qualified for the position he held, and that he suffered an adverse employment action. See Smith v. AVSC Intern., Inc., 148 F. Supp. 2d 302, 311-12 (S.D.N.Y. 2001). Therefore, the only question is whether the circumstances give rise to an inference of discrimination,” wrote the court.
On this point, it cited the Second Circuit which explained:
“It is well settled than an inference of discriminatory intent may be derived from a variety of circumstances, including, but not limited to: the employer’s criticism of the plaintiff’s performance in degrading terms [related to the protected characteristic]; or its invidious comments about others in the employee’s protected group; or the more favorable treatment of [similarly situated] employees not in the protected group; or the sequence of events leading to the plaintiff’s discharge. Bivens v. Inst. for Cmty. Living, Inc., 2015 U.S. Dist. LEXIS 51000, 2015 WL 1782290, at *8 (S.D.N.Y. Apr. 17, 2015) (citing Patane v. Clark, 508 F.3d 106, 112 (2d Cir. 2007)).”
Turning back to the instant case, the court noted claims that “he was wrongfully terminated because he is a man, after ‘false accusations’ of inappropriate conduct toward one of his female team members (as well as female members of opposing teams) were brought against him. Menaker insists that the defendant failed to conduct a thorough investigation into the claims, and that the defendant violated its own policies in the way the defendant’s employees handled his termination.
“Even assuming that Menaker’s recitation of all of the relevant facts is true, as the court must do on a motion to dismiss, there are no allegations in the amended complaint that give rise to a plausible inference that Menaker’s termination was related to his gender. Rather, it is apparent that Menaker was terminated based on the allegations of ‘unprofessional conduct’ brought against him. There is nothing in the record that would suggest that the circumstances would have been different if Menaker had been a woman who had been accused of the same misconduct toward a young student.
“The primary argument Menaker proffers in support of his claim of gender discrimination is that the people who made the decision to terminate his employment were all women.
“First, and foremost, the mere fact that a decision maker does not share a protected characteristic with an aggrieved employee does not give rise to a claim of discrimination. See Morrison v. Dr. Pepper Snapple Group, 916 F. Supp. 2d 372, 374 (W.D.N.Y. 2013) (quoting Rivas Rosado v. Radio Shack, Inc., 312 F.3d 532, 534 (1st Cir. 2002)).
“Second, based on Menaker’s own telling, it is untrue that he was terminated by a group of women. The amended complaint states that Hathaway (a man) was Menaker’s direct supervisor, was present at the initial meeting and the termination meeting, and was involved in some capacity in Menaker’s termination.
“Menaker’s other attempt to draw a connection between his termination and discriminatory animus toward him as a male is similarly unavailing. Menaker pontificates that at the time of his termination there was an ‘atmosphere of harsh criticism of colleges and universities generally, and Hofstra in particular, for allegedly not taking complaints of sexual harassment and misconduct against women seriously.’ However, Menaker fails to show that this supposed general atmosphere had any bearing on the circumstances surrounding his own termination. Even if the defendant had a policy of treating sexual harassment accusations with greater weight than other types of harassment accusations, which Menaker does not allege, this does not lead to the inference that Menaker’s gender was the basis for his termination.”
For these and other reasons, the court granted Hofstra’s motion to dismiss.
Jeffrey Menaker v. Hofstra University; E.D.N.Y.; 2:17-cv-5562 (DRH)(AYS), 2018 U.S. Dist. LEXIS 165812; 9/26/18
Attorneys of Record: (for plaintiff) Cheryl L. Davis, Esq., Theodor D. Bruening, Esq., OFFIT KURMAN, P.A., New York, NY. (for defendant) Jill L. Rosenberg, Esq., ORRICK, HERRINGTON & SUTCLIFFE LLP, New York, NY.
