Second Circuit Revives Coach’s Gender Discrimination Claim Against Hofstra

Oct 11, 2019

The Second U.S. Circuit Court of Appeals has reversed a district court, finding that it was premature when it granted Hofstra University’s motion to dismiss a gender discrimination lawsuit brought by the former head coach of the men’s and women’s tennis teams at the university. Plaintiff Jeffrey Menaker alleged in the lawsuit that Hofstra fired him in response to public pressure to respond to sexual misconduct on campus.
The federal appeals court concluded Hofstra may have discriminated against him, violating Title VII of the Civil Rights Act of 1964.
“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,” wrote the appeals court.
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 scholarship for the following 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:
that the student had been “subjected to unwanted and unwarranted sexual harassment” by Menaker;
that Menaker “had a strange obsession with [the Student’s] menstrual cycle, and would repeatedly comment about when [the student] was getting her period[;]”
that Menaker was inappropriately concerned with the physical appearance and presentation of women on the team; and
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 successfully moved to dismiss for failure to state a claim, pursuant to Fed. R. Civ. P. 12(b)(6), leading to the appeal.
The appeals court noted that Menaker’s amended complaint “satisfies the first three elements of a prima facie case (for discrimination). 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. 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.”
Elaborating, it wrote that “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.”
Finally, “the district court (on remand) should also consider whether Kaplan’s discriminatory intent could be imputed to Hofstra through a ‘cat’s paw’ theory of vicarious liability.”
In summary, the appeals court held:
“Where a university (a) takes an adverse employment action against an employee, (b) in response to allegations of sexual misconduct, (c) following a clearly irregular investigative or adjudicative process, (d) amid criticism for reacting inadequately to allegations of sexual misconduct by members of one sex, these circumstances support a prima facie case of sex discrimination.
“When contesting an inference of bias based on procedural irregularity, an employer cannot justify its abandonment of promised procedural protections by recharacterizing specific accusations in more generic terms.
“Where (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.
“Menaker’s Amended Complaint states a claim for sex discrimination.”
Jill Rosenberg, Hofstra’s legal counsel, issued the following written statement:
“The Second Circuit has ruled that the complaint should not be dismissed at this early stage of the case, but we are confident that Hofstra’s actions and decisions will be upheld once the merits of this matter are considered in the lower court. We look forward to demonstrating there was no discrimination in the university’s actions.”
Jeffrey Menaker v. Hofstra University; 2d Cir.; No. 18-3089-cv; 8/15/19
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.


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