Menaker v. Hofstra Univ.
| Citation | 935 F.3d 20 |
| Decision Date | 15 August 2019 |
| Docket Number | No. 18-3089-cv,August Term 2018,18-3089-cv |
| Parties | Jeffrey MENAKER, Plaintiff-Appellant, v. HOFSTRA UNIVERSITY, Defendant-Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
Stephen D. Houck (Theodor D. Bruening, on the brief), Offit Kurman, P.A., New York, NY, for Plaintiff-Appellant.
Jill Goldberg, Orrick, Herrington & Sutcliffe LLP, New York, NY, for Defendant-Appellee.
Before: Cabranes, Hall, Circuit Judges, and Stanceu, Judge.*
When universities design and implement polices to ensure the security of their students, they facilitate their sacred mission of educating the next generation. But when they distort and deviate from those policies, fearfully deferring to invidious stereotypes and crediting malicious accusations, they may violate the law.
Plaintiff-Appellant Jeffrey Menaker ("Menaker") appeals from a September 27, 2018 judgment of the United States District Court for the Eastern District of New York (Denis R. Hurley, Judge ) dismissing his complaint for failure to state a claim. Menaker sued Defendant-Appellee Hofstra University ("Hofstra" or "the University") pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII") and the New York State Human Rights Law, alleging that Hofstra discriminated against him because of his sex when it fired him in response to allegedly malicious allegations of sexual harassment. The District Court dismissed Menaker’s claim pursuant to Federal Rule of Civil Procedure 12(b)(6). We conclude that the District Court’s decision conflicts with our precedent in Doe v. Columbia University , 831 F.3d 46 (2d Cir. 2016) (" Doe v. Columbia "), and relies on improper factual findings. We also conclude that, on remand, the District Court should consider Hofstra’s potential liability under a "cat’s paw" theory. Accordingly, we VACATE the judgment and REMAND the cause to the District Court for further proceedings consistent with this opinion.
The following facts are drawn from Menaker’s Amended Complaint and documents incorporated by reference therein. In recounting the facts, we are, of course, required to "accept as true all of the factual allegations contained in the complaint."1
The events at issue occurred against a general background of debate and criticism concerning the handling of allegations of sexual harassment and misconduct by American universities, including Hofstra. In 2011, the U.S. Department of Education issued a now-famous "Dear Colleague" letter to colleges and universities.2 The "Dear Colleague" letter "ushered 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 claims of sexual misconduct.3
By May 2015, the national press had identified Hofstra as one of several universities under investigation by the Department of Education for possible mishandling of sexual misconduct claims. At the same time, Hofstra also faced internal criticism for its assertedly inadequate response to male sexual misconduct on campus.4
On January 15, 2016, Menaker joined Hofstra as its Director of Tennis and Head Coach of both its men’s and women’s varsity tennis teams. In late April 2016, Michal Kaplan,5 then a first-year student at Hofstra and a member of the women’s varsity tennis team, approached Menaker to discuss her athletic scholarship. Kaplan claimed that Menaker’s predecessor had promised to increase her then-45 percent athletic scholarship to a full scholarship in the fall of 2016. Kaplan sought confirmation from Menaker about her scholarship increase, but Menaker explained that he knew nothing about the arrangement and would need to look into the matter.
After reviewing Kaplan’s financial aid records and speaking with his supervisor, Menaker confirmed there was no record of any such promise. He informed Kaplan of this, but Kaplan insisted that she had received an oral promise from Menaker’s predecessor. Menaker responded that he was unable to increase Kaplan’s scholarship for the coming year (Kaplan’s sophomore year) but could do so for her junior and senior years. Kaplan stated that she would inform her parents, and Menaker replied that they should feel free to call him with any questions.
In early May 2016, Menaker received an irate phone call from Kaplan’s father, who accused him of reneging on a commitment made by his predecessor. Kaplan’s father threatened Menaker that if he did not increase his daughter’s scholarship, trouble would "come back to him."6
In late July 2016, Hofstra received a letter addressed to the university’s President and its Title IX Coordinator, titled "Michal Kaplan’s Title IX Complaint" (the "Kaplan Letter").7 The Kaplan Letter, sent by Kaplan’s lawyer, alleges that Menaker subjected her to "unwanted and unwarranted sexual harassment" and "quid pro quo threats [that] were severe, pervasive, hostile, and disgusting."8 In particular, the letter alleges that Menaker was "obsess[ed] with" and would comment on Kaplan’s menstrual cycle, that he would tell players to "dress nice" and "shave their legs," that he once "scream[ed] obscenities and verbal abuse at a female tennis player on the opposing team," and that after Kaplan "did not respond to [Menaker’s] advances, [he] soon began to threaten [her]" scholarship and position on the team.9 Menaker maintains that each of these allegations is false.10
Shortly after receiving the July 2016 Kaplan Letter, Hofstra’s Deputy General Counsel, Jennifer Mone ("Mone"), and its Vice President and Director of Athletics, Jeffrey Hathaway ("Hathaway"), summoned Menaker to a meeting. Menaker was not informed of the reason for the meeting in advance. Mone, who appeared to be referring to a document in front of her, began by asking Menaker how he communicated with members of the tennis program. Menaker responded that he used several forms of electronic communication as, he claims, is standard in athletic programs.
As Mone’s questioning continued, Menaker asked to see the document. Mone handed him the Kaplan Letter. After reading the letter, Menaker verbally denied all of the accusations contained therein. Hathaway, who was also present, joined Menaker in vigorously disputing a particular accusation that Hathaway knew to be false. Mone instructed Menaker to collect copies of all communications with Kaplan and informed him that Hofstra would be conducting an investigation into the matter and that a report would soon be "shared" with him.11
At the time, Hofstra maintained a written "Harassment Policy," which "covers the conduct of all University employees and students" and outlines proper procedures for investigating and resolving harassment claims.12 The Harassment Policy provides for both an "informal" process for pursuing a "mutually agreeable" resolution and "formal" procedures. The latter procedures include requirements that Hofstra’s investigator interview potential witnesses, that accused parties have the right to submit a written response, and that Hofstra’s investigator produce a written determination of reasonable cause.13
Over the following two months, Menaker provided Hofstra copies of his communications with Kaplan. He pointed out that "the time frames described in [the Kaplan Letter] were provably false,"14 and he suggested names of particular student-athletes who could provide information that might be useful to the investigation. Hofstra made no further requests from Menaker and did not interview the students he identified.
During this same period, Hathaway told Menaker that he assumed the complaint to be a ploy by Kaplan’s parents, and that complaints such as Kaplan’s were not uncommon.
Meanwhile, Menaker retained counsel, who contacted Mone. Mone advised Menaker’s counsel to refrain from taking legal action against Kaplan and promised to keep him informed of the investigation’s status.
On September 7, 2016, Menaker was summoned to a meeting with Hofstra’s Director of Human Resources, Evelyn Miller-Suber ("Miller-Suber"), Mone, and Hathaway. As with the July meeting, Menaker was not given advance notice of the purpose of the meeting and did not have an opportunity to prepare for it.
Mone opened the meeting by recalling the Kaplan Letter and repeating several of its allegations. Mone also added a new allegation, namely that Menaker had "made statements to students about his divorce."15 After completing her statement, Mone left the room, and Miller-Suber informed Menaker that he was being fired for "unprofessional conduct."16 She added that, while none of the stated allegations was independently sufficient for termination, he was nevertheless being fired for the "totality" of the allegations.17
On March 6, 2017, Menaker filed a charge of sex-based discrimination with the United States Equal Opportunity Commission, and, on May 30, 2017, the Commission issued a Notice of Right to Sue letter. On September 22, 2017, Menaker filed suit, alleging violations of Title VII, the New York State Human Rights Law, and New York City Human Rights Law.18 On January 12, 2018, Hofstra filed a motion to dismiss the case under Federal Rule of Civil Procedure 12(b)(6). On September 26, 2018, the District Court granted the motion, concluding that Menaker had failed to plead facts supporting a plausible inference that his sex played a role in his termination. This appeal followed.
We review de novo a district court’s order granting a motion to dismiss. 19
We accept all factual...
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Testimonial Evidence
...defendant’s specific reference to the student’s accusation when terminating him, satisfied this standard. Menaker v. Hofstra University , 935 F.3d 20 (2nd Cir. 2019). Third Circuit Plaintiffs brought a Title VII retaliation case against the City of Philadelphia and others. The jury found fo......
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...228, 239–40 (1989). 3. Jespersen v. Harrah’s Operating Co., 444 F.3d 1104, 1108–09 (9th Cir. 2006); see also Menaker v. Hofstra Univ., 935 F.3d 20, 30 (2d Cir. 2019) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)). 4. Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1734 (2020). 5.......
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EMPLOYMENT LAW - CAT'S PAW VICARIOUS LIABILITY DOCTRINE IMPUTES DISCRIMINATORY INTENT OF NON-EMPLOYEE STUDENT TO EMPLOYER - MENAKER V. HOFSTRA UNIV., 935 F.3D 20 (2D CIR. 2019).
...Ass'n (June 2011), https://www.apa.org/monitor/2011/06/jn (discussing context of Staub's employment discrimination case). (4) See 935 F.3d 20, 26 (2d Cir. 2019) (explaining when an employer can be held vicariously liable in terminating an (5) See id. at 39-40 (discussing assignment of discr......