A three-judge panel of the U.S. Court of Appeals for the 2nd Circuit, sitting in Manhattan, observed in an opinion issued on August 12 that its historic ruling last year in Zarda v. Altitude Express, holding that sexual orientation discrimination violates Title VII of the Civil Rights Act of 1964, does not create a judicial precedent in the 2nd Circuit for purposes of the Constitution’s Equal Protection Clause on the issue of sexual orientation discrimination.
This observation, in an opinion by Circuit Judge Jose A. Cabranes, came in a lawsuit by a woman who was fired early in 2010 from a position as assistant women’s basketball team coach at Binghamton State University in upstate New York after months of rumors that she had a romantic relationship with one of the women on the basketball team. Naumovski v. Norris, 2019 U.S. App. LEXIS 23891, 2019 WL 3770193 (2nd Cir., Aug. 12, 2019). The plaintiff, Elizabeth Naumovski, who denied that there was any romantic relationship, sued Nicole Scholl, the head coach, and James Norris, the associate athletic director, who made the decision to fire her, claiming a violation of her rights under Title VII and the Equal Protection Clause. Part of their defense to her constitutional claim was that they enjoyed “qualified immunity” from any personal liability for making the decision to fire her. District Court Judge David N. Hurd refused to dismiss the claim without discussing the qualified immunity claim, and they appealed.
Under the Supreme Court’s decisions on state actor liability for violating constitutional rights, a government agency or entity such as a public university can only be held liable for its policies, not for discretionary decisions by its management employees. That is, the doctrine of “respondeat superior,” under which private sector employers can be held liable for the actions of their employees, does not apply in this situation. Since the University does not have an anti-LGBT employment policy, it cannot be held liable under the Equal Protection Clause, even if a court were to conclude that Ms. Naumovski’s sexual orientation was the reason for her discharge.
However, management employees such as Scholl and Norris can be sued for their decisions violating a public employee’s constitutional rights, if at the time they acted it was “clearly established” in law that the basis for their action was unconstitutional. Consequently, in ruling on their motion to dismiss the Equal Protection claim against them, Judge Hurd had to determine whether at the time of the discharge in 2010, it was “clearly established,” either by U.S. Supreme Court decisions or 2nd Circuit Court of Appeals decisions, that employees of the state university enjoy constitutional protection from discrimination because of their sexual orientation. If it was not “clearly established” at that time, Scholl and Norris should be shielded from liability by “qualified immunity,” and their motion for summary judgment should have been granted.
The 2nd Circuit ruled that the motion should have been granted.
“Naumovski’s complaint does not explicitly allege sexual orientation discrimination in its enumeration of her [federal] claims,” wrote Judge Cabranes. “Nevertheless, the District Court appears to have so interpreted her claims. Indeed, the District Court concluded that ‘Plaintiff has established that she is a member of several protected classes including . . . being perceived as gay.’ We need not decide whether the District Court erred in so construing Naumovski’s complaint. Even if Naumovski had stated a sexual orientation discrimination claim, Defendants would have qualified immunity from such a claim.”
The court said that any reliance by the district judge on the 2nd Circuit’s decision last year in Zarda v. Altitude Express “in recognizing Naumovski’s arguable sexual orientation discrimination claims” would be erroneous for two reasons. First, Zarda was a Title VII (statutory) case, not a constitutional case. Because Altitude Express is a private business, not a government entity, it could not be sued on a constitutional theory. Furthermore, wrote Cabranes, the Zarda ruling “did not address whether the Constitution prohibits sexual orientation discrimination. Thus, Zarda is only ‘clearly established law’ for statutory sexual orientation discrimination claims under Title VII. It does not, however, ‘clearly establish’ constitutional sexual orientation discrimination claims.’”
This is quite disappointing, since the reasoning of Circuit Judge Robert Katzmann’s opinion in the Zarda case should apply equally as a matter of logical reasoning to the question whether sexual orientation discrimination is a subset of sex discrimination, and thus potentially a violation of the Equal Protection Clause. Elsewhere in his opinion in this case, Judge Cabranes devoted attention to explaining the difference between proof of sex discrimination under Title VII as distinguished from the Equal Protection Clause. Under Title VII, a defendant can be found to have violated the statute if an employee’s sex was a “motivating factor” in an employment decision, even though it was not the only factor supporting the decision. By contrast, under the Supreme Court’s approach to Equal Protection, the plaintiff must prove that her sex was the “but-for” cause of the action she is contesting, and the defendant would escape liability if other reasons for its action would provide a valid non-discriminatory reason for the action.
Furthermore, Judge Cabranes pointed out, Zarda was decided in 2018, and Naumovski was discharged in 2010. “Prior to Zarda,” he wrote, “our Court had expressly declined to recognize sexual orientation discrimination claims under Title VII, much less the Constitution. Thus, if anything, the ‘clearly established law’ at the time Defendants terminated Naumovski’s employment was that sexual orientation discrimination was not a subset of sex discrimination. Insofar as the District Court relied on Zarda, therefore, Defendants were surely entitled to qualified immunity.”
The court also pointed out that Naumovski was fired before the Supreme Court had decided U.S. v. Windsor (2013) and Obergefell v. Hodges (2015). “It was, therefore, not yet clear that all state distinctions based on sexual orientation were constitutionally suspect,” he asserted. In a footnote, he conceded that in 1996 the Supreme Court had “already begun to scrutinize laws that reflected ‘animosity’ toward gays” when it declared unconstitutional a Colorado constitutional amendment that excluded gay people in that state from protection under state law. “Here, however,” he wrote, “Naumovski has alleged no such class-based animosity or desire to harm.”
Judge Cabranes concluded that even if it is possible that today a public official would not enjoy qualified immunity from constitutional liability for dismissing a public employee because of their sexual orientation, depending how one interprets the current state of affairs in the 2nd Circuit in light of Zarda and nationally in light of Windsor and Obergefell, “at the time of the challenged conduct here such a constitutional prohibition was not yet ‘clearly established.’”
The bottom line in Naumovski’s case is that constitutional claims against Binghamton University and the State University of New York (SUNY) as a whole are dismissed, but several statutory claims against the employers that were not dismissed by Judge Hurd remain in play. Constitutional claims against Scholl and Norris are now dismissed on grounds of qualified immunity.
Naumovski is represented by A.J. Bosman of Rome, New York. Scholl and Norris are represented by Margaret Joanne Fowler of Vestal, New York. The other two judges on the 2nd Circuit panel are Senior Circuit Judges Ralph Winter and Renee Raggi.