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2nd Circuit Holds That It Was Not “Clearly Established” That Sexual Orientation Discrimination in Public Employment is Actionable Under the Equal Protection Clause Prior to Obergefell and Windsor

Posted on: September 8th, 2019 by Art Leonard No Comments

In the course of deciding an appeal by some supervisory public employees of a district court’s refusal to accord them qualified immunity from a discharged employee’s claim of discrimination because of perceived sexual orientation (that took place in 2010), a panel of the U.S. Court of Appeals stated in Naumovski v. Norris, 2019 U.S. App. LEXIS 23891, 2019 WL 3770193 (Aug. 12, 2019), that it was not then “clearly established” by the Supreme Court or the 2nd Circuit prior to the rulings in U.S. v. Windsor and Obergefell v. Hodges that sexual orientation discrimination is actionable under in a 42 U.S.C. Sec. 1983 claim alleging a violation of the Equal Protection Clause.

The opinion for the panel by Circuit Judge Jose Cabranes suggests that it might be “possible today that sexual orientation discrimination in public employment may be actionable under Section 1983,” but at the time of the conduct challenged in this case “such a constitutional prohibition was not yet ‘clearly established’” so the defendants were entitled to qualified immunity from the claim.  In a footnote, Judge Cabranes acknowledged that as early as 1996, in Romer v. Evans, 517 U.S. 634, and again in 2003, in Lawrence v. Texas, 539 U.S. 558, the Supreme Court “had already begun to scrutinize laws that reflected ‘animosity’ toward gays,” but in this case the plaintiff had not alleged “such class-based animosity or desire to harm.”  He also noted that under Engquist v. Oregon Dept. of Agriculture, 553 U.S. 591 (2008), the plaintiff could not bring a “class of one” equal protection case “simply on the basis that her termination was individually arbitrary.”

On March 10, 2010, Binghamton University’s Athletic Director, James Norris, informed Elizabeth Naumovski, then assistant coach of the women’s basketball team, that she would be discharged if she did not resign.  She resigned and filed her discrimination charges with the NY State Division of Human Rights and the EEOC.  After exhausting administrative remedies against the school, she filed suit in federal court, adding discrimination claims under the Constitution against the Athletic Director and the Head Coach of the team as well as the university employer.  Norris and Scholl sought unsuccessfully to get U.S. District Judge David Hurd to dispose of the claims against them on grounds of qualified immunity, as part of his overall ruling on motions for summary judgment, and this appeal to the 2nd Circuit concerns Judge Hurd’s failure to grant their motions, which he implicitly did by denying them summary judgment.

Naumovski, a single woman in her thirties, became the subject of rumors concerning her possible relationship with a woman on the team, identified in the opinion as J.W.  Complaints from other students that Naumovski was showing favoritism to this woman came to the head coach and the then-assistant athletic director, James Norris, who, according to Judge Cabranes, “states that he understood the rumors to refer to a relationship of favoritism between a coach and a student-athlete, rather than to a sexual relationship between the two.”  Norris discussed these rumors with the Athletic Director, “who assured him that the allegations were the baseless fabrications of disgruntled former members of the Binghamton Athletics community.”  Norris was promoted to the athletic directorship on September 30, 2009.

In response to the persisting rumors during the fall term of 2009, Head Coach Nicole Scholl “imposed various restrictions on interactions between coaches and student-athletes to avoid any perception of impropriety.”  According to Naumovski’s allegations, “As a result of the increased scrutiny triggered by these restrictions, Naumovski began to suffer from depression and stress-induced weight loss.” She met with Norris to address the rumors, and claims he told her that “your problem is that you’re a single female in your mid-30s,” implying that the rumors were due to a perception that she was a lesbian.  Norris denies having made that comment, a potential material fact in the overall scheme of the litigation, in terms of the school’s potential liability.

The rumors persisted into 2010, as Norris continued to receive complaints about “favoritism” by Naumovski towards J.W. Friction developed between Naumovski and Head Coach Scholl, who felt that “Naumovski was trying to undermine her leadership of the team.”  Wrote Cabranes, “Naumovski does not deny tension between herself and Scholl; rather, she claims that any such tension ceased after a February 9, 2010 meeting with Scholl.  Naumovski further claims that Scholl and Norris never expressed any additional concerns about her coaching performance after that time.”  However, during a phone call on February 21, Scholl and Norris agreed that Naumovski’s employment should be terminated at the end of the basketball season in March. “The decision was purportedly based on Naumovski’s demonstrated favoritism toward certain student-athletes and the disruptive impact of her workplace conflicts with Scholl,” writes Cabrances, relating the defendants’ claims.  Meanwhile, Norris continued to receive student complaints and things came to a head when J.W.’s family received “an anonymous, vulgar letter accusing her of ‘screwing’ Naumovski,” which J.W. told Naumovksi about, and which led J.W.’s mother to call Norris; it is disputed whether the letter was mentioned in that phone call.  However, a week after that call, Norris informed Naumovski that she was being fired for performance reasons, but she could resign to forestall being fired, which she did.

Naumovski’s suit alleges discrimination based on her sex, perceived sexual orientation, and national origin (Canadian), in violation of Title VII of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, the Equal Protection Clause and the First Amendment (42 USC 1983), as well as the NY Constitution and NY Human Rights Law.  Defendants moved for summary judgment after discovery.  “The motion remained pending for several years,” write Cabranes, not being decided until April 17, 2018, when District Judge Hurd granted summary judgment to Binghamton University and the State University of New York on all constitutional claims but allowed statutory claims to proceed to trial. (Perhaps Judge Hurd was waiting to rule on the motions for a final resolution by the Circuit of whether sexual orientation claims are actionable under Title VII, which emerged with the Zarda v. Altitude Express en banc ruling in February 2018.) As to the individual defendants, Scholl and Norris, Hurd dismissed all claims except for Naumovski’s sex-based disparate treatment and hostile work environment claims under 42 USC 1983 (Equal Protection), failing to address the issue of their qualified immunity from constitutional claims even though they sought to invoke immunity in their summary judgment motion.  Judge Hurd subsequently denied a motion by Norris and Scholl for reconsideration on the immunity argument as untimely under local rules, asserting that it did not raise any new issues, and they appealed to the 2nd Circuit.

Judge Cabranes devoted considerable space in his opinion to explaining the different proof requirements on the statutory claims and the constitutional claims.  In particular, he noted, under Title VII, the plaintiff can win by showing that her sex or perceived sexual orientation was a “motivating factor” for discrimination, but on the constitutional equal protection claim, her burden would be to show that it was a “but-for” factor.  He also devoted a portion of the opinion to itemizing the various other ways in which the statutory and constitutional claims receive different treatment, finding that the district court seems to have conflated the two separate modes of analysis in its decision.  Furthermore, he pointed out that the statutory claims under employment discrimination law run only against the institutional employer, not against individuals, while the constitutional claims could be asserted against individuals who are “state actors,” but who enjoy qualified immunity from personal liability unless it is “clearly established” by appellate precedent that the discrimination with which they are charged is, if proven, unconstitutional.

Turning to the subject of the appeal, Judge Hurd’s implicit denial (or failure to recognize) qualified immunity from the constitutional claims for Norris and Scholl, Cabranes noted that the 2nd Circuit’s review of the district court’s “implicit” rejection of the qualified immunity claims “is complicated by several factors.  First, the District Court never addressed the claims of qualified immunity in its Memorandum-Decision and Order; it is therefore impossible to review its specific reasoning in denying relief on this ground.  Second, while both the Complaint and the District Court’s Memorandum-Decision and Order conclude that Defendants’ alleged conduct constitutes sex discrimination (either through disparate treatment or subjection to a hostile environment), neither explains precisely how Defendants’ conduct can be so construed.  Third, the District Court opinion conflates its analysis of Naumovski’s Title VII and Sec. 1983 claims, rendering our task of reviewing only the Sec. 1983 claims more difficult.”  Attempting to “reconstruct the logic” of the District Court’s denial of immunity to Scholl and Norris on the constitutional claims, the court concluded that “no theory can sustain the District Court’s implicit denial of Defendant’s qualified immunity.”

First addressing the sex discrimination claim, the court found that there was a lack of evidentiary allegations to support the claim, apart from Naumovski’s allegation about Norris’s remark concerning her status as a single woman in her 30s, which the court concluded did not “constitute sufficient evidence to make out a case of employment discrimination,” characterizing it as “the sort of ‘stray remark’ that is insufficient to support an inference of discriminatory intent.”  While Judge Hurd referred to “other indicia” of discrimination intent, the appeals court was not convinced:  “The only ‘other indicia,’ however, is evidence suggesting that Scholl and Norris interpreted the rumors as alleging a sexual relationship between Naumovski and J.W., rather than mere favoritism from one to the other.  The invocation of such evidence is unavailing.  Even if we assume Scholl and Norris interpreted the allegations against Naumovski as sexual in nature, that fact provides no additional support for a conclusion that Scholl’s and Norris’s own actions were based on discriminatory animus toward women in general or any subcategory of female employees in particular,” wrote Cabranes.  Thus, the conclusion that summary judgment should have been granted on the sex discrimination claim.

The court also discussed the possibility that Naumovski could succeed on a sex-stereotyping claim; i.e., “Norris and Scholl stereotyped Naumovski based on her sex (possibly in combination with other characteristics) as more likely to have engaged in a romantic or sexual relationship with J.W.  Defendants then fired Naumovski (at least in part) because of their wrongful and discriminatory belief that she engaged in sexual impropriety with a student and, subsequently, attempted to conceal that stereotyping played any role in their termination decision.”  While the court agreed that such a theory might work in some cases, “Naumovski cannot succeed on such a theory” because of the “but-for” proof requirement for a constitutional violation.  In order to prevail, “Naumovski must establish that a reasonable jury could find that Defendants would not have terminated her based on their stated reasons alone.  To be sure, there may well be cases in which misconduct findings based on sex stereotyping meet the ‘but-for’ discrimination standard,” Cabranes continued.  “Here, however, we do not think that the evidence, even construed in the light most favorable to Naumovski, satisfies that standard.”  Cabranes gives an extended explanation for this conclusion, noting in particular that “Naumovski does not materially dispute that Scholl’s personality and coaching style clashed with her own,” which on its own would be a legitimate reason to let go an assistant coach who was an at-will employee.

Turning to the perceived sexual orientation discrimination claim, Cabranes came to the issue of most direct relevance to Law Notes: whether public officials enjoy qualified immunity from constitutional liability for discriminating against their employees because of actual or perceived sexual orientation.  He pointed out that if the district court was relying on the 2nd Circuit’s 2018 Zarda decision for this proposition, “it erred for at least two reasons.”  First, Zarda was a statutory interpretation case under Title VII, not a constitutional case, thus the Circuit’s decision that discrimination “because of sex” under Title VII includes discrimination because of sexual orientation was not a ruling the sexual orientation claims should be treated the same as sex discrimination claims under the 14th Amendment.  Second, the conduct at issue in this case (2009-2010) predated Zarda by many years.  Given the 2nd Circuit’s pre-Zarda caselaw, Cabranes pointed out, at the time Naumovski was fired, “the ‘clearly established law’ … was that sexual orientation discrimination was not a subset of sex discrimination.”

“Nor could the District Court rely on freestanding constitutional principles separate from Zarda,” continued Cabranes.  “To date, neither this court nor the Supreme Court has recognized Sec. 1983 claims for sexual orientation discrimination in public employment.  Moreoever, when the conduct in this case occurred, neither of the Supreme Court’s landmark same-sex marriage cases – United States v. Windsor and Obergefell v. Hodges – had been decided.  It was, therefore, not yet clear that all state distinctions based on sexual orientation were constitutionally suspect.”  At this point, Cabranes wrote a footnote acknowledging the existence of Romer and Lawrence, but distinguishing them based on Naumovski’s factual allegations. Cabranes’ opinion does not explicitly state that a public official would not enjoy qualified immunity today from an adverse personnel decision based on sexual orientation, but he implies that after Windsor and Obergefell, “state distinctions based on sexual orientation” are “constitutionally suspect,” a point that some scholars have argued, attempting to give more teeth to Justice Kennedy’s opinions in those cases than some might see in them.  To be clear, neither of those cases explicitly states that government distinctions based on sexual orientation are to be treated the same as sex discrimination cases and enjoy heightened scrutiny under the 14th Amendment.  Justice Kennedy did not employ that vocabulary, and arguably placed more weight on the liberty interest in marriage in those cases.

The court also found that Norris and Scholl would clearly enjoyed qualified immunity from a claim that their decision relied on biased student claims against Naumovski, and also that a constitutionally-based hostile environment claim based on sex or perceived sexual orientation in a public employment context was not clearly actionable under 42 USC 1983, as the precedential basis for such claims has been developed thus far only under Title VII.

Summarizing the Court of Appeals holding, Cabranes wrote that Section 1983 claims for discrimination in employment require plaintiffs to establish that the defendants’ discriminatory intent was a “but-for” cause of the adverse employment action, that because of the intent requirements under the Equal Protection clause, a Section 1983 claim for employment discrimination “cannot be based on a respondeat superior or ‘cat’s paw’ theory to establish a defendant’s liability (thus ruling out liability for Scholl and Norris based on complaints by discriminatory students), and defendants were entitled to qualified immunity because, “even when interpreted in the light most favorable to Naumovski, the record cannot support the conclusion that they violated her ‘clearly established’ constitutional rights.”

Naumovski is represented by A. J. Bosman of Rome, N.Y.  Judge Cabranes was appointed by President Bill Clinton.  The other two judges on the 2nd Circuit panel were Ralph Winter (Reagan) and Renee Raggi (George W. Bush).

Federal Judge Says Straight but Not Gay Students Are Protected from Homophobic Harassment Under Title IX

Posted on: March 15th, 2016 by Art Leonard No Comments

Ruling on pretrial motions in a case brought by the estate of a student who committed suicide after allegedly suffering severe harassment from fellow students at a public school, Chief U.S. District Judge Glenn T. Suddaby (N.D.N.Y.) allowed the plaintiff to amend the complaint to add a Title IX cause of action for sex discrimination by an educational institution, based on the homophobic nature of slurs aimed at the decedent in Estate of D.B. v. Thousand Islands Central School District, 2016 U.S. Dist. LEXIS 32054, 2016 WL 945350 (March 14, 2016), but only because the proposed amendment does not allege that the student was gay.

Judge Suddaby’s opinion lacks any coherent narration of the facts, only mentioning individual factual allegations in passing while analyzing the various motions before the court. From what one discerns, however, the case concerns a male public school student who was subjected to bullying and harassment by fellow-students, that school officials failed to protect him, and that he committed suicide at home.

The original complaint alleged violations of Section 504 of the Rehabilitation Act and Title II of the Americans with Disabilities Act, the 14th Amendment, the Individuals with Disabilities Education Act, the New York State Education Law and the N.Y. Dignity for All Students Act.  The opinion does not identify the nature of D.B.’s alleged disability. The First Amended complaint sought to add sex discrimination claims under federal and state law, most significantly Title IX of the Education Amendments Act, which the U.S. Department of Education has construed to protect gay students from bullying and harassment.  There are also state law tort claims alleging infliction of emotional distress and negligent supervision.  The defendants raised a variety of jurisdictional and procedural arguments in support of their motion to dismiss, and opposed the cross-motion to add new counts, including the Title IX count.  The opinion is mainly interesting for the way in which Judge Suddaby analyzed the motion to add a Title IX sex discrimination claim.

Judge Suddaby found that because of 2nd Circuit precedent rejecting the idea that sexual orientation discrimination is actionable as sex discrimination under federal statutes, a student who is harassed with homophobic slurs would have an action under Title IX if the student alleged that the harassment was due to his incorrectly perceived sexual orientation but not his actual homosexual orientation!

There is a sort of “Through the Looking Glass” quality to the judge’s discussion of the Title IX claim. For example, the judge rejects the allegation that calling a boy a “pussy” could be seen as a sexually-related slur.  The complaint alleges: “[Another student] called the Decedent a ‘pussy,’ and told him ‘You’re a pussy and you need the shit kicked out of you.’ These are the types of anti-gay and gender-related slurs Decedent was consistently subjected to.’”  Judge Suddaby begs to differ. “As shocking as this slur may be,” he wrote, “the Court is not persuaded that it is related to gender under the circumstances.  Rather, as Defendants point out, the slur ‘pussy’ is more likely to mean ‘coward’ than anything gender related.  Even if the other student did intend the slur to relate to gender, Plaintiff has not made a proper showing of that fact.  Rather, most of Plaintiff’s reference to ‘gender-related slurs’ are nothing more than conclusory statements.”

On the other hand, Judge Suddaby accepted the argument that explicitly homophobic slurs could support a “gender stereotyping” claim of sex discrimination under Title IX, provided that the plaintiff was not gay!  “The Second Circuit recognizes a fine line between gender stereotyping and bootstrapping protection for sexual orientation,” he wrote.  “Because a Title IX sex discrimination claim is treated in much the same way as a Title VII sex discrimination claim, Title VII jurisprudence therefore applies.  Under the ‘gender stereotyping’ theory of liability under Title VII, individuals who fail or refuse to comply with socially accepted gender roles are members of a protected class.  However, courts in the Second Circuit do not recognize sexual orientation as a protected classification under Title VII or Title IX.  The critical fact under the circumstances is the actual sexual orientation of the harassed person.  If the harassment consists of homophobic slurs directed at a homosexual, then a gender-stereotyping claim by that individual is improper bootstrapping.  If, on the other hand, the harassment consists of homophobic slurs directed at a heterosexual, then a gender-stereotyping claim by that individual is possible.”

In this case, the plaintiff is not alleging that D.B. was gay. To the contrary, wrote Suddaby, “D.B.’s own alleged statements refer to accusations that he was homosexual as ‘stupid gay rumours [sic].’  Moreover, the Amended Complaint alleges that the bullying was based on D.B.’s ‘actual or perceived sexual orientation’ and his ‘perceived and/or presumed sexual orientation.’  Under the circumstances, the Amended Complaint alleges facts plausibly suggesting a gender-stereotyping claim to survive a [dismissal] motion; and the amendment to include this claim is not futile.  As a result, Plaintiff’s cross-motion to amend is granted as to the inclusion of the Title IX claim.”

The judge rejected the rather bizarre argument that certain federal claims should be dismissed for failure to exhaust administrative remedies, in light of the difficulty of a deceased person pursuing administrative remedies. But he accepted the argument that the negligent supervision claim could not apply to the suicide, as such, because D.B. took his life at home, not at school.  On the other hand, this tort claim could extend to the alleged failures of school officials to respond to the ongoing bullying of D.B.  The court rejected plaintiff’s motion to add claims under the N.Y. Civil Rights Law, on the ground that statutory notice of claims had not been served on the school district as a jurisdictional prerequisite to filing suit.

The opinion reflects the retrograde state of the law within the federal 2nd Circuit as a result of a 2000 court of appeals decision, Simonton v. Runyon, which rejected a Title VII sex discrimination brought by a gay plaintiff subjected to sexually-oriented workplace harassment.  Attempts are under way to get the Circuit to reconsider this precedent in the context of ongoing litigation asserting sexual orientation discrimination claims under federal sex discrimination statutes, in line with a ruling by the Equal Employment Opportunity Commission in July 2015 that sexual orientation discrimination is “necessarily” sex discrimination in violation of Title VII.  EEOC rulings are not binding on the courts, however, and the persuasiveness of this particular EEOC ruling is somewhat compromised by the fact that it represents a reversal of almost half a century of agency precedent.

The Estate of D.B. is represented by Michael D. Meth of Chester, N.Y. Charles C. Spagnoli and Frank W. Miller of East Syracuse represent the school district.  Judge Suddaby was appointed to the district court by President George W. Bush during the last year of his second term in office.