2nd Circuit: Student/Coach May Continue Retaliation, But Not Harassment, Claims Against Hofstra University

Summa v. Hofstra (11-1743, Feb. 21, 2013):  The Second Circuit found that plaintiff student/football team manager Lauren E. Summa presented sufficient evidence to support her retaliation (but not her harassment) claims against the defendants.  Plaintiff claimed that she was harassed by several football players and then subjected to retaliation for complaining about it.  Among other things, plaintiff alleged that during a bus ride home from an away game while a movie was playing (and during a scene in which a white woman began masturbating in the presence of a black man), a player turned to plaintiff and said:  “This is what you white women want, our black dicks. That shit will make you crazy.”  After reporting this (and other) conduct, plaintiff was replaced as team manager.

Plaintiff sued under Title VII, the New York State Human Rights Law, and Title IX of the Education Amendments of 1972.  The district court granted summary judgment for defendant on all claims.

1.  Hostile Work Environment

The court held that the district court properly dismissed plaintiff’s sexual harassment (hostile work environment) claims.  There were “no grounds upon which the objectionable conduct can be imputed to the University” since “all of the alleged harassers were players on the football team.”  The court found that, in this case, it was appropriate to adopt the EEOC rules governing harassment by non-employees codified in 29 C.F.R. § 1604.11(e):

[W]e now adopt the well-reasoned rules of the [EEOC] in imputing employer liability for harassment by non-employees according to the same standards for non-supervisory co-workers, with the qualification that we “will consider the extent of the employer’s control and any other legal responsibility which the employer may have with respect to the conduct of such non-employees.” 29 C.F.R. § 1604.11(e).  By analogy to the rules for non-supervisory co-workers, “the employer will be held liable only for its own negligence,” and the plaintiff must demonstrate that the employer “failed to provide a reasonable avenue for complaint or that it knew, or in the exercise of reasonable care should have known, about the harassment yet failed to take appropriate remedial action.” … In determining the appropriateness of an employer’s response, we look to whether the response was “immediate or timely and appropriate in light of the circumstances, particularly the level of control and legal responsibility [the employer] has with respect to [the employee’s] behavior.

Since “the University and the head football coach had a high degree of control over the behavior of its student football players”, the court applied the test for imputing harassment by co-workers.  The University met its obligation to “address and end the harassment”, given that “[e]ach complaint that was brought directly to [the head football coach’s] attention was dealt with quickly and in proportion to the level of seriousness of the event.”

2.  Retaliation

The court reached a different conclusion, however, with respect to plaintiff’s retaliation claims.  It was undisputed that defendant was aware of plaintiff’s complaints, and that plaintiff suffered an adverse employment action.  The court thus turned to the issues of whether plaintiff engaged in protected activity and whether the requisite causal connection existed.  Plaintiff satisfied both elements.

Protected Activity

As to protected activity, the court found:

The district court erred in concluding that Summa could not have reasonably believed that her complaints to public safety and the school’s Equality Officer were complaints about violations of Title VII. That the school considered these complaints to be “student-on-student” issues is of no moment, as the first element of the prima facie case explicitly contemplates the belief of the plaintiff, not of the employer. At the same time, Equality Officer Murphy also concluded that the comment by Taylor constituted sexual harassment and that the showing of the movie raised concerns that needed to be investigated. Upon investigation, Murphy concluded that the Athletics Department staff would benefit from a sexual harassment training, which was carried out the following August. … It is clear from Summa’s formal EEO complaint that she believed that the event was employment related. Furthermore, this was an entirely reasonable belief because Summa was not on the football team bus in her capacity as a graduate student, but rather was there solely in her capacity as an employee of the Athletics Department.

The court also disagreed with the argument that “no reasonable person could believe a single incident amounted to a Title VII violation”, citing Howley v. Town of Stratford, 217 F.3d 141, 154 (2d Cir. 2000).  Rather, “[t]he incident on the team bus was close enough in severity to that in Howley that a reasonable person certainly could have believed that it alone was enough to satisfy the standard.”

Finally, the court held that “the district court erroneously confined its consideration to [plaintiff’s] written complaints”, particularly given plaintiff’s complaints about the entire course of harassment over the semester:

In determining the reasonableness of Summa’s belief, the court should have considered these complaints as well because “[t]he law protects employees in the filing of formal charges of discrimination as well as in the making of informal protests of discrimination, including making complaints to management, writing critical letters to customers, protesting against discrimination by industry or society in general, and expressing support of co-workers who have filed formal charges.” … Furthermore, Summa’s belief that her May 2007 complaint to the New York State Division of Human Rights constituted protected activity is evident not only for all of the same reasons that apply to her internal complaint, but also based upon the conclusion of the NYSDHR itself, which determined that there was probable cause to proceed on Summa’s complaint. We conclude it was objectively reasonable for Summa to believe she had suffered from employment discrimination under Title VII and that her complaints to her employer were directed at just this harm.


Initially, the Second Circuit held that the district court was wrong to find against plaintiff simply because there was a lack of evidence that the actual decisionmaker responsible for hiring spring managers “either knew about [plaintiff’s] complaints or knew that [plaintiff] had wanted to return as a manager”:

To the extent that decisionmaker knowledge is relevant in establishing causation, that knowledge may be satisfied by demonstrating that “the agent who decides to impose the adverse action but is ignorant of the plaintiff’s protected activity acts pursuant to encouragement by a superior (who has knowledge) to disfavor the plaintiff.” … While there is no direct evidence that Cohen specifically told Battaglia not to hire Summa, crediting Summa … Cohen and Perry told her the position continued into the spring and the email regarding the position clearly identified both the fall and spring seasons. A reasonable jury could conclude that these facts, coupled with the fact that these coaches then either allowed Battaglia to replace her or told Battaglia that new managers were needed, constitute Battaglia’s superiors encouraging him to disfavor Summa.

In addition, plaintiff’s presentation of a temporal connection was alone sufficient to permit a reasonable jury to find causation.  Analogizing the facts of this case to those in Espinal v. Goord, 558 F.3d 119, 129 (2d Cir. 2009), the court reasoned:

Only four months passed between Summa’s November 2006 complaints and the denial of the spring season manager position. There is strong reason to find this four-month time span sufficient in this case to establish causation because Summa’s complaints were based on events that occurred on the very last day of the fall season. The start of the spring season was the first moment in time when the football coaching staff could have retaliated against Summa as she was not directly working for them over the intervening months. … Here, this close temporal relationship is made even closer by the fact that the adverse action occurred at the first actual opportunity to retaliate.

The seven-month gap between Summa’s filing of the instant lawsuit and the decision to terminate her employment privileges is not prohibitively remote. … In addition to the fact that seven months is within the temporal range that we have found sufficient to raise an inference of causation, the other surrounding circumstances—including Miller-Suber’s personal knowledge of the lawsuit when she decided to terminate the employment privileges and Miller-Suber’s comment about insuring that graduate employees like Summa are able to “be advocates for the University,” which Connolly took as including litigation-related conflicts—are sufficient to allow an inference of causation here. …

Summa’s May 2007 complaint to the NYSDHR and its June 2007 determination that she had established probable cause are plainly close enough in time to the July 2007 rescission of the offered graduate assistantship that causality may be inferred.

Legitimate, Non-Retaliatory Reasons

Next, the court found that the University proffered legitimate, non-retaliatory reasons for each of the three identified adverse actions:

Because Summa did not contact the football team regarding Spring Ball until immediately prior to the season, a legitimate reason for her replacement was the football staff’s conclusion that the position needed to be filled because they had not heard from her. With respect to the rescission of the graduate assistantship position, Connolly’s conclusion that Summa had overstated her qualifications, misrepresented her academic majors, and received “a lackluster reference” all amount to legitimate, non-retaliatory reasons. Finally, the legitimate, non-retaliatory reason for the termination of Summa’s employment privileges was her double entry of hours on her time sheets for two student employment positions.

The burden therefore shifted back to plaintiff “to establish, through either direct or circumstantial evidence, that the [University’s] action was, in fact, motivated by discriminatory retaliation.”

Pretext / Retaliatory Motivation

The court summarized the law regarding pretext:

While a Title VII plaintiff need not prove that retaliation was the only motivating factor for an adverse action … the plaintiff must show that retaliation was the determinative factor. … In assessing whether a plaintiff has established that an adverse employment action was motivated by discriminatory retaliation, “there are two distinct ways for a plaintiff to prevail—either by proving that a discriminatory motive, more likely than not, motivated the defendants or by proving both that the reasons given by the defendants are not true and that discrimination is the real reason for the actions.

Plaintiff demonstrated pretext with respect to the University’s decision to remove her from her position as manager for the spring:

Summa presented evidence that she had repeatedly discussed the spring season with the football coaching staff and, more tellingly, presented an e-mail that listed her stipend for the year as “Fall: $700 Spring: $300.” Defendants now argue that they did not know she was returning for the spring because she did not contact the football office until immediately before the start of Spring Ball, but this claim is undermined by the documentary evidence regarding her spring salary. Furthermore, drawing all inferences in Summa’s favor as we must at this stage, a jury could also conclude that the fact that she waited until just before the spring season and contacted the department only for the purpose of obtaining the schedule corroborates her account that she had been told she had the position already lined up, thus obviating any need to contact the department at an earlier time. The evidence in the record also demonstrates that Cohen did not know whether the position was actually filled when he denied Summa the spring manager position, and Battaglia’s e-mails concerning the hiring process for student managers suggest that indeed the position was not filled. This evidence would allow a reasonable jury to conclude that the position was, in fact, available and was denied to Summa in retaliation for her complaints regarding her treatment during the fall season.

Plaintiff also sufficiently demonstrated pretext with respect to the rescission of the graduate assistant position:

The district court concluded that Summa’s presentation of her area of interest in addition to her major without explicitly identifying it as such was a sufficient reason for the University not to hire her as a graduate assistant. However, the district court began its analysis too late in the sequence of events: it failed to consider the evidence that (a) Summa had already been offered the position; (b) Miller-Suber, who was well aware of Summa’s NYSDHR complaint, both suggested and encouraged Connolly to re-interview Summa when Connolly could simply have signed off on the form based on her staff’s evaluation of Summa; and (c) Miller-Suber encouraged and affirmed Connolly’s decision to rescind her offer. Moreover, the e-mail informing Summa of the Connolly interview falsely stated that the office had never hired a graduate assistant before and misrepresented the nature of her meeting with Connolly, stating simply that Summa should “meet” Connolly. The e-mail did not say that Summa’s offer, which a jury could find she had already accepted, was in danger of being rescinded if the interview did not go well. Moreover, a jury is not required to credit Connolly’s testimony that she was unaware of the NYSDHR complaint. Connolly admitted to speaking with Miller-Suber, who knew of the complaint, and Summa described Connolly’s attitude toward her as cold. The fact that Connolly took detailed notes and prepared a memo explaining her hiring decision, which by her own admission was not her regular practice, further supports an inference that she knew of Summa’s complaint and felt the need to carefully document her decision in case any questions should arise in the future.

In addition, pretext was evident from the school’s apparent decision to single out plaintiff for increased scrutiny, relative to others similarly situated:

[T]he undisputed evidence indicates that Summa was the only potential graduate assistant who had an in-person interview with Connolly, and she was the only one whose references were contacted. Further, … Miller-Suber involved herself in the hiring process with respect to Summa to a far more substantial degree than she did with the other graduate assistant, including encouraging Connolly to rescind the offer. The difference in treatment between Summa and the other graduate assistant is thus evidence from which a reasonable jury could conclude that the reason proffered by the University was a pretext for a retaliatory motivation.

The termination of plaintiff’s student employment privileges also appeared to be pretextual:

While it is undisputed that Summa double-booked hours on at least one time sheet, Miller-Suber [the director of human resources] admits that she had never even looked into the billing practices of any other student employee and had never previously terminated student employment privileges for the practice. Miller-Suber also admitted that she had once terminated a manager for allowing such doublebilling to occur. Thus, as Miller-Suber knew that a manager had permitted student employees to double-bill, she must, of course, also have known that one or more of the students working for that manager had double-billed. Yet in that situation, it was only the manager, and not the students, who was investigated and punished. This starkly different treatment of students who had committed the same wrong as Summa would allow a reasonable jury to conclude that Miller-Suber’s cited reason for the termination was indeed pretext for a retaliatory motive.

Finally, because plaintiff satisfied all of the administrative prerequisites of Title VII and was not seeking relief particular to Title IX (and all of the relief she was seeking is cognizable under Title VII), the court did not find it necessary to address whether there is a private right of action for employment discrimination under Title IX.

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