Menaker v. Hofstra Univ. , 935 F.3d 20 ( 2019 )

18‐3089‐cv
Menaker v. Hofstra Univ.
In the
United States Court of Appeals
for the Second Circuit
AUGUST TERM 2018
No. 18‐3089‐cv
JEFFREY MENAKER,
Plaintiff‐Appellant,
v.
HOFSTRA UNIVERSITY,
Defendant‐Appellee.
On Appeal from the United States District Court
for the Eastern District of New York
ARGUED: MAY 14, 2019
DECIDED: AUGUST 15, 2019
Before: CABRANES, HALL, Circuit Judges, and STANCEU, Judge. 
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”) pursuant to Title VII of the
Civil Rights Act of 1964 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), 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.
STEPHEN D. HOUCK (Theodor D. Bruening, on
the brief), Offit Kurman, P.A., New York, NY,
for Plaintiff‐Appellant.

Chief Judge Timothy C. Stanceu, of the United States Court of International
Trade, sitting by designation.
2
JILL GOLDBERG, Orrick, Herrington &
Sutcliffe LLP, New York, NY, for Defendant‐
Appellee.
JOSÉ A. CABRANES, Circuit 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.
3
Accordingly, we VACATE the judgment and REMAND the cause to
the District Court for further proceedings consistent with this opinion.
I. BACKGROUND
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
A. The Atmosphere at Hofstra
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
1 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 572 (2007) (citation omitted). To be
clear, we evince no views concerning whether the “facts” we detail below are
actually true. Our task is limited to determining whether, if Menaker’s allegations
were true, they would state a Title VII sex‐discrimination claim.
2 See Office of the Assistant Sec’y for Civil Rights, “Dear Colleague” Letter,
U.S. DEP’T OF EDUC. (Apr. 4, 2011),
https://www2.ed.gov/print/about/offices/list/ocr/letters/colleague‐201104.html.
4
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
B. A Dispute Over an Athletic Scholarship
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.
3 Doe v. Purdue Univ., 928 F.3d 652, 668 (7th Cir. 2019).
4 App. 111 (Am. Compl. ¶ 51).
5Although Kaplan’s name was omitted from the pleadings in this case, she
has since agreed to proceed under her own name in a related suit, thereby
rendering moot the continued use of a pseudonym in this case. See Menaker v.
Kaplan, No. 2:17 Civ. 5840 (DRH) (AYS) (E.D.N.Y. filed Oct. 5, 2017), Dkt. Nos. 40‐
41.
5
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
C. Kaplan Files a Title IX Complaint Against Menaker
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
6 App. 100 (Am. Compl. ¶ 11) (brackets omitted).
7 App. 117–120. We consider the full contents of the Kaplan Letter, including
those portions not specifically quoted in the Amended Complaint, because a
“complaint is deemed to include any written instrument attached to it as an exhibit
or any statements or documents incorporated in it by reference.” Chambers v. Time
Warner, 282 F.3d 147, 152 (2d Cir. 2002) (citation omitted). We do not, however,
consider extrinsic materials referenced in the Kaplan Letter (e.g., screenshots of
Facebook postings and Youtube videos), despite their inclusion in the Appendix.
6
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
As we have explained, “a plaintiff’s reliance on the terms and effect of a document
in drafting the complaint is a necessary prerequisite to the court’s consideration of
the document on a dismissal motion; mere notice or possession is not enough.” Id.
at 153 (emphasis in original). Menaker’s Amended Complaint does not rely on
these extrinsic materials.
8 App. 117, 119.
9 Id. at 117–19 (internal quotation marks omitted).
10 The Kaplan Letter also describes (and characterizes as sexual harassment)
three interactions on the social media website Facebook. These alleged interactions
are: (1) that Menaker “friended” Kaplan on Facebook in January 2016; (2) that at
12:30 a.m. on Valentine’s Day, Menaker “commented” on a photograph of Kaplan
wearing a hunting jacket and standing in front of a “large red LOVE statue in New
York City” with the following: “Looks like you found what you were hunting for
in that jacket,” followed by a “winking emoji face”; and (3) that Menaker
“messaged” Kaplan on April 6, 2016 with a link to a satirical YouTube video
entitled “Casually Explained: Is She Into You?” Id. at 117–18. The video depicts
cartoons in different scenarios as a narrator explains how you can tell if the girl is
“into you.” Id. Although Menaker does not specifically discuss these allegations in
7
D. The July 2016 Meeting with Hofstra Officials
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
his Amended Complaint, he has “denied all the accusations contained in the Letter
. . . as false, taken out of context, and misleading.” Id. at 104 (Am. Compl. ¶ 27).
Of course, nothing in this opinion should be interpreted as limiting an
employer’s ability to terminate an at‐will employee for general, non‐discriminatory
reasons—including disapproved use of social media. As alleged, however, the
circumstances of Menaker’s termination do not simply consist of an employer’s
generic disapproval of Menaker’s social media use. Rather, Menaker was expressly
terminated because of allegations made in a formal sexual harassment complaint
and despite Hofstra’s adoption of formal procedures for such complaints.
8
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
E. July and August 2016: Menaker Waits for Hofstra to Take Action
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
11 Id. (Am. Compl. ¶ 28).
12 Id. at 122.
13 Id. at 127–29.
14 Id. at 104 (Am. Compl. ¶ 30).
9
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.
F. The September 2016 Meeting: Menaker is Fired
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
15 Id. at 107 (Am. Compl. ¶ 42).
10
“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
G. The Proceedings Below
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.
16 Id. (Am. Compl. ¶ 43) (internal quotation marks omitted).
17 Id.18 See 42 U.S.C. § 2000e et seq., N.Y. Exec. Law § 296, and N.Y.C. Code § 8‐
101, respectively.
11
II. DISCUSSION
A. Standard of Review
We review de novo a district court’s order granting a motion to
dismiss.19 We accept all factual allegations in the Amended Complaint
as true and draw all inferences in Menaker’s favor.20 “To survive a
motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on its face.”21
B. Title VII Claims Generally
Title VII prohibits an employer from “taking an adverse
employment action” against an individual “because of such
individual’s race, color, religion, sex, or national origin.”22 Because it
is often difficult to obtain direct evidence of discriminatory intent, we
employ a “burden‐shifting framework” (commonly identified by
reference to the Supreme Court case from which it derives, McDonnell
19 Littlejohn v. City of New York, 795 F.3d 297, 306 (2d Cir. 2015).
20 See id.21 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks and
citation omitted). See note 1, ante, and accompanying text.
22Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 85 (2d Cir. 2015)
(quoting 42 U.S.C. § 2000e–2(a)(1)).
12
Douglas Corp. v. Green)23 to “progressively sharpen[ ] the inquiry into
the elusive factual question of intentional discrimination.”24
To survive a motion to dismiss, a plaintiff need only establish
“a prima facie case of sex discrimination by demonstrating that (1) [he]
was within the protected class; (2) [he] was qualified for the position;
(3) [he] was subject to an adverse employment action; and (4) the
adverse action occurred under circumstances giving rise to an
inference of discrimination.”25 If a plaintiff successfully establishes
a prima facie case, the burden shifts to the employer at the summary
judgment stage “to articulate some legitimate, nondiscriminatory
reason for the adverse employment action.”26 Finally, if the employer
carries that burden, a plaintiff must submit admissible evidence from
which a finder of fact could “infer that the defendant’s employment
decision was more likely than not based in whole or in part
23 411 U.S. 792 (1973); see also Walsh v. N.Y.C. Hous. Auth., 828 F.3d 70, 74–75
(2d Cir. 2016) (“Claims of sex‐based discrimination under Title VII and the NYHRL
are analyzed using the familiar burden‐shifting framework established in
McDonnell Douglas Corp. v. Green . . . .”).
24 St. Maryʹs Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993) (citation and ellipses
omitted).
25 Walsh, 828 F.3d at 75 (citation omitted); see also Littlejohn, 795 F.3d at 311
(explaining that because the submission of a complaint “by definition . . . occurs in
the first stage of the litigation,” a “plaintiff cannot reasonably be required to allege
more facts in the complaint than [he] would need to defeat a motion for summary
judgment made prior to the defendant’s furnishing of a non‐discriminatory
justification”).
26 Id. (citation omitted).
13
on discrimination.”27 The burden‐shifting framework thus “reduces
the facts needed to be pleaded under Iqbal” at the 12(b)(6) stage of a
Title VII suit.28 A plaintiff need only allege facts that give “plausible
support to a minimal inference of discriminatory motivation.”29
Here, there is no dispute that Menaker’s Amended Complaint
satisfies the first three elements of a prima facie case.30 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. As explained below,
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.
Finally, on remand, the District Court should also consider whether
Kaplan’s discriminatory intent could be imputed to Hofstra through a
“cat’s paw” theory of vicarious liability.
27 Id. (citation omitted).
28 Littlejohn, 795 F.3d at 310 (2d Cir. 2015).
29 Id. at 311.
30 Menaker v. Hofstra Univ., No. 2:17 Civ. 5562 (DRH) (AYS), 2018 WL
4636818, at *3 (E.D.N.Y. Sept. 26, 2018) (“[T]here is no dispute . . . that Plaintiff
belongs to a protected class, that he was qualified for the position he held, and that
he suffered an adverse employment action.”).
14
C. The Proper Scope of Doe v. Columbia
In Doe v. Columbia, a male student alleged that his suspension
for sexual assault was motivated, in part, by improper consideration
of his sex in violation of Title IX of the Education Amendment of 1972
(“Title IX”).31 Similar to Title VII, Title IX prohibits discrimination “on
the basis of sex.”32 But unlike Title VII, which prohibits employment
discrimination, Title IX applies to “any education program or activity
receiving Federal financial assistance.”33 We have, however, long
interpreted Title IX “by looking to the . . . the caselaw interpreting
Title VII,” and we have therefore held that “Title IX bars the imposition
of university discipline where gender is a motivating factor in the
decision to discipline.”34
The plaintiff in Doe v. Columbia advanced precisely such a claim.
His complaint alleged an atmosphere of public pressure demanding
that the university react more swiftly and severely to female
complaints of sexual assault against males. The complaint also alleged
substantial procedural irregularities in the investigation and
adjudication of the accusations against the student. These
irregularities included: the university’s failure “to seek out potential
witnesses [he] had identified as sources of information favorable to
31 Doe v. Columbia, 831 F.3d at 48.
32 20 U.S.C. § 1681.
33 Id.34 Yusuf v. Vassar Coll., 35 F.3d 709, 714–15 (2d Cir. 1994).
15
him,” its failure “to act in accordance with University procedures
designed to protect accused students,” and its arrival at conclusions
that were “incorrect and contrary to the weight of the evidence.”35
We concluded that the complaint successfully stated a claim for
sex discrimination under Title IX. In so holding, we highlighted two
factual allegations that plausibly supported “at least the needed
minimal inference of sex bias.”36 First, we recognized that the
procedural deficiencies in the university’s investigation and
adjudication of the sexual assault complaint raised an inference that
the university was motivated, at least in part, by bias.37 Next, we
confirmed that this bias was likely a sex‐based bias by noting that the
university had been criticized for “not taking seriously complaints of
female students alleging sexual assault by male students.”38 We
reasoned that it was plausible that the university was motivated to
“favor the accusing female over the accused male” in order to
35 Doe v. Columbia, 831 F.3d at 56–57.
36 Id. at 59.
37 Id. at 57.
38 Id. (emphasis added). We emphasized that a plaintiff seeking to survive a
motion to dismiss need not establish a necessary inference of sex‐based
discrimination, or even that such discrimination be “the most plausible explanation
of the defendant’s conduct.” Id. (emphasis in original). Rather, it is sufficient if the
inference of sex‐based discriminatory intent is one of several possible inferences.
16
demonstrate its commitment to protecting female students from male
sexual assailants.39
In this case, the District Court placed several unwarranted
limitations on the application of Doe v. Columbia. First, the District
Court interpreted Doe v. Columbia as applying only to plaintiffs
accused of sexual assault, rather than those accused of sexual
harassment.40 Second, the District Court limited Doe v. Columbia to
student plaintiffs, to the exclusion of employee plaintiffs.41 And third,
the District Court assumed that the logic of Doe v. Columbia was
confined to circumstances where criticism of a university had reached
a “crescendo.”42 We disagree with these overly narrow interpretations
of our precedent.
39Id.; see also id. at 58 n.11 (“A defendant is not excused from liability for
discrimination because the discriminatory motivation does not result from a
discriminatory heart, but rather from a desire to avoid practical disadvantages that
might result from unbiased action. A covered university that adopts, even
temporarily, a policy of bias favoring one sex over the other in a disciplinary
dispute, doing so in order to avoid liability or bad publicity, has practiced sex
discrimination, notwithstanding that the motive for the discrimination did not
come from ingrained or permanent bias against that particular sex.”).
40 Menaker, 2018 WL 4636818, at *4 (“[T]he facts in this case are
distinguishable from those in Doe. First, Doe concerned accusations of . . . sexual
assault, not harassment and unprofessional conduct . . . .”).
41Id. (distinguishing between accusations of “student‐on‐student” sexual
misconduct and accusations of sexual misconduct “by an at‐will employee against
students on his team and other teams”).
42 Id. at *5.
17
First, we reject the District Court’s attempt to distinguish
between accusations of sexual assault on the one hand, and
accusations of sexual harassment on the other. The logic of Doe v.
Columbia applies equally to both sorts of accusations. The intuitive
principle that universities’ reactions to accusations of sexual
misconduct are often influenced by the sexes of the parties applies
with equal force to both sexual assault and sexual harassment. A
plaintiff may thus establish a prima facie case for sex discrimination
based on adverse actions for both allegations of sexual harassment and
allegations of sexual assault.
Second, we emphasize that the holding of Doe v. Columbia is not
limited to Title IX claims rather than Title VII claims. We apply similar
principles in both Title VII and Title IX when seeking to identify
discriminatory intent.43 Indeed, our holding in Doe v. Columbia was
expressly based on Title VII principles.44 Nor is the logic underlying
Doe v. Columbia limited to discipline meted out in response to
allegations of student‐on‐student misconduct. On the contrary, the
very same pressures that may drive a university to discriminate
against male students accused of sexual misconduct may drive a
university to discriminate against male employees accused of the same.
43 See, e.g., Yusuf, 35 F.3d at 714 (“[C]ourts have interpreted Title IX by
looking to the body of law developed under Title VI, as well as the caselaw
interpreting Title VII.”).
44Doe v. Columbia, 831 F.3d at 55 (“[R]ules the Supreme Court established
for Title VII litigation appear to apply also to such similar claims of sex
discrimination under Title IX.”).
18
To be sure, an at‐will employee may have different contractual
rights than a student or a tenured faculty member. And a university
may well have reasons other than sex for distinct treatment of claims
affecting these different sorts of members of a university community.
But once a university has promised procedural protections to
employees, the disregard or abuse of those procedures may raise an
inference of bias.45
Third, we reject the District Court’s attempt to limit Doe v.
Columbia to cases where the public pressure on a university is
45 Apart from an inference of bias, a university’s disregard of promised
procedural protections may also give rise to claims for breach of contract or for
violations of state law guarantees of procedural or substantive fairness. See, e.g.,
Gupta v. New Britain Gen. Hosp., 239 Conn. 574, 592–93 (1996) (“[C]ourts will
entertain a cause of action for institutional breach of a contract for educational
services . . . if the educational institution failed to fulfil a specific contractual
promise distinct from any overall obligation to offer a reasonable program.”);
Neiman v. Yale Univ., 270 Conn. 244, 251 (2004) (concluding that “the trial court
properly determined that a contract existed [based on a faculty handbook] as a
matter of law”); Powers v. St. Johnʹs Univ. Sch. of Law, 25 N.Y.3d 210, 216 (2015)
(permitting judicial review where a university “acts arbitrarily and not in the
exercise of its honest discretion [or] fails to abide by its own rules”); Tedeschi v.
Wagner Coll., 49 N.Y.2d 652, 660 (1980) (“[W]e hold that when a university has
adopted a rule or guideline establishing the procedure to be followed in relation to
suspension or expulsion that procedure must be substantially observed.”); Olsson
v. Bd. of Higher Ed., 49 N.Y.2d 408, 414 (1980) (“[A]n academic institution must act
in good faith in its dealings with its students.”). Because Menaker did not pursue
any such claims, we do not consider them here.
19
particularly acute.46 We agree that “[p]ress coverage of sexual assault
at a university does not automatically give rise to an inference that a
male who is terminated because of allegations of inappropriate or
unprofessional conduct is the victim of [sex] discrimination.”47 But this
does not mean that the press coverage or public pressure must reach a
particular level of severity. On the contrary, when combined with clear
procedural irregularities in a university’s response to allegations of
sexual misconduct, even minimal evidence of pressure on the
university to act based on invidious stereotypes will permit a plausible
inference of sex discrimination.48
To summarize: we decline to adopt each of the District Court’s
proposed limitations on Doe v. Columbia. The logic of that precedent
applies to both students and employees, to accusations of sexual
harassment as well as sexual assault, and it does not rely on a
particular quantum of criticism at a specific university. Rather, 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
46Menaker, 2018 WL 4636818, at *5 (describing the criticism in Doe v.
Columbia as “a crescendo of articles about sexual assault and harassment at
Columbia University in particular”).
47 Id.48 It is precisely because procedural irregularity alone already suggests bias
that even minimal evidence of sex‐based pressure on the university is sufficient to
establish bias on account of sex. See notes 37–38 and accompanying text, ante.
20
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.
Here, Menaker has clearly alleged that he suffered an adverse
employment action, and that this action came in response to
accusations (if not an actual finding) of sexual harassment. Similarly,
Menaker has plausibly alleged facts that suggest at least some pressure
on Hofstra to react more forcefully to allegations of male sexual
misconduct (e.g., the “Dear Colleague” Letter, a Department of
Education investigation, and student criticism).49 The only remaining
question, then, is whether his firing followed a sufficiently irregular
process to raise an inference of bias.
D. Procedural Irregularities
To decide the instant case, we need not define precisely what
sort of irregularities meet the standard of “clearly irregular
investigative or adjudicative process.”50 But we note that Doe v.
49 See notes 2–4 and accompanying text, ante.
50 In recognizing that a clearly irregular investigative or adjudicative process
may (when combined with other factors) create a plausible inference of sex
discrimination, we do not, of course, incorporate the Due Process Clause of the
Fourteenth Amendment into the employment decisions of private universities. Cf.
Faghri v. Univ. of Conn., 621 F.3d 92, 99 (2d Cir. 2010) (analyzing the demotion of a
professor at a public university under the Due Process Clause). As with our Due
Process Clause jurisprudence, however, what constitutes “clearly irregular
process” depends on context. See, e.g., Morrissey v. Brewer, 408 U.S. 471, 481 (“[D]ue
process is flexible and calls for such procedural protections as the particular
situation demands.”). The standard will vary based on the size of the employer, the
21
Columbia offers some guidance on this issue. For instance, “[w]hen the
evidence substantially favors one party’s version of a disputed matter,
but an evaluator forms a conclusion in favor of the other side (without
an apparent reason based in the evidence), it is plausible to infer
(although by no means necessarily correct) that the evaluator has been
influenced by bias.”51 Similarly, where decision‐makers choose “to
accept an unsupported accusatory version over [that of the accused],
and declined even to explore the testimony of [the accused’s]
witnesses,” this too “gives plausible support to the proposition that
they were motivated by bias.”52
Here, Menaker has pleaded facts that, when taken as true, reflect
a clearly irregular investigative and adjudicative process. First,
Menaker alleges that Hofstra failed to interview relevant witnesses
whom he brought to the University’s attention.53 Second, Menaker
alleges that he was terminated despite the fact that Hofstra Vice
President Jefferey Hathaway knew that at least one of the accusations
nature of the accusation, and the expectations of the parties. Moreover, we
emphasize that our standard requires clear irregularities to raise an inference of
bias. Variations among employers, even among universities, are expected, and
minimal irregularities (absent other indicia of bias) do not suffice to suggest
discrimination.
51 Doe v. Columbia, 831 F.3d at 57.
52 Id.
53 App. 105, 106 (Am. Compl. ¶¶ 32, 39).
22
against him was false and believed the complaint to be a “ploy.”54
Similarly, Menaker alleges that his supervisor was aware of Kaplan’s
frustration regarding her scholarship and her attempts to manipulate
the athletic department in the spring of 2016.55 Third, despite Mone’s
express promise that Menaker would receive a report based on
Hofstra’s investigation, Menaker received no such report.56
Fourth, Menaker alleges that Hofstra completely disregarded
the process provided for in its written “Harassment Policy.” The
Policy provides for a “Formal Procedure,” which requires that Hofstra
interview potential witnesses, provide respondents the opportunity to
submit a written response, and produce a written determination of
reasonable cause.57 Menaker claims that he received none of these
procedural protections.58 Thus, as with the allegations in Doe v.
Columbia, Hofstra’s termination of Menaker under such circumstances
strongly suggests the presence of bias.
The District Court sought to minimize or explain away these
clear procedural irregularities. In doing so, however, it failed to draw
54 Id. at 104 (Am. Compl. ¶¶ 27, 29).
55 Id. at 99–101 (Am. Compl. ¶¶ 9, 12, 14–16).
56 Id. at 104, 109 (Am. Compl. ¶¶ 28, 48).
57 Id. at 106, 108 (Am. Compl. ¶¶ 36, 45–46), 128–129.
58 Id. at 109 (Am. Compl. ¶ 48).
23
all reasonable inferences in Menaker’s favor and made improper
findings of fact.
First, the District Court observed that Menaker “never allege[d]
that Mone, Hathaway or Miller[‐Suber] were hostile to him.”59 The
District Court therefore concluded that “Mone[], Hathaway, and
Miller[‐Suber] were nothing but professional and level‐headed in all
of their interactions with Plaintiff.”60 This was error for two reasons.
Not only did the District Court draw an affirmative conclusion—the
absence of hostility by Hofstra officials—from an apparent omission,
but Menaker’s Amended Complaint expressly alleges that Mone
“questioned [him] in a hostile manner.”61 Thus, the District Court’s
factual conclusion to the contrary was erroneous and impermissible.62
Further, the District Court concluded that Menaker’s allegations
“suggest that Defendant comported with the ‘Informal Procedure’”
included in the Hofstra Harassment Policy.63 This is clearly incorrect.
The Policy expressly states that the “Informal Procedure” reflects an
attempt to reach “a mutually agreeable solution” and a process to
59 Menaker, 2018 WL 4636818, at *4.
60 Id.61 App. 102 (Am. Compl. ¶ 22).
62 Littlejohn, 795 F.3d at 319.
63 Menaker, 2018 WL 4636818, at *4.
24
“resolve or ‘work out’ the issue in a non‐adversarial manner.”64 The
result of such a procedure must be “acceptable to both parties in
interest.”65 Here, Hofstra “resolved” the dispute by firing Menaker—a
result certainly not agreed to or accepted by Menaker. This process did
not, therefore, comport even with Hofstra’s “Informal Procedures.”
Next, the District Court concluded that there was nothing
irregular about Hofstra’s failure to comport with its written
“Harassment Policy” because “in Plaintiff’s own words, he was fired
for ‘unprofessional conduct’—not harassment.”66 This is doubly
incorrect. First, Menaker directly disputes that he was fired for
“unprofessional conduct.” To the contrary, he maintains that he was
fired due to Hofstra’s discriminatory adjudication of a harassment
complaint against him, and that this post‐hoc allegation of
“unprofessional conduct” was merely pretextual.67 Second, in the
same paragraph of the Amended Complaint where Menaker states
that Miller‐Suber informed him that he was being fired for
“unprofessional conduct,” he also alleges that he was told that his
64 App. 126, 128.
65 Id. at 128.
66 Menaker, 2018 WL 4636818, at *4.
67App. 107 (Am. Compl. ¶ 44) (“In view of the complete lack of merit in the
charges and the evident absence of a proper investigation in accordance with
Hofstra’s own written procedures and policies, it is clear that Plaintiff’s
employment was terminated as a result of raw bias against Plaintiff based on his
gender.”).
25
employment was being terminated based on the “’totality’ of the
allegations.”68 Thus, even if “unprofessional conduct” was one reason
he was fired, the Amended Complaint alleges that there were other
reasons as well.
Even were we to accept at face value Hofstra’s assertion that the
termination was based solely on a determination that Menaker
engaged in “unprofessional conduct” (which we may not69), Hofstra’s
abandonment of its written Harassment Policy here would still be
irregular. After all, Hofstra’s conclusion that Menaker had engaged in
“unprofessional conduct” derives from—and simply
recharacterizes—the sexual harassment accusations in the Kaplan
Letter. To wit: Mone began the September meeting by telling Menaker,
“[y]ou are aware that there is a complaint against you” and repeating
the very accusations contained in the Kaplan Letter.70 Similarly, Miller‐
Suber informed him he was being fired based on the “totality” of these
same allegations.71
Hofstra nevertheless insists that, regardless of the offense of
which Menaker was accused, the Harassment Policy did not apply
because he was ultimately found responsible for “unprofessional
68 Id. (Am. Compl. ¶ 43).
Littlejohn, 795 F.3d at 306 (requiring courts to evaluate the sufficiency of a
69
complaint by drawing all reasonable inferences in the plaintiff’s favor).
70 App. 107 (Am. Compl. ¶ 41).
71 Id. (Am. Compl. ¶ 43).
26
conduct” rather than “harassment.” In other words, Hofstra argues
that Menaker had no right to the Policy’s procedural protections
because he was not found guilty of the accusations. To state the
argument is to demonstrate its absurdity.
It is also contrary to the written terms of the Harassment Policy.
The Harassment Policy applies to “complaints alleging harassment.”72
Kaplan’s Title IX complaint, which triggered Hofstra’s inquiry and led
to Menaker’s termination, expressly alleges “sexual harassment
violations.”73 Therefore, the Policy applies—regardless of how the
University chooses to characterize its ultimate findings. 74
Finally, Hofstra’s interpretation defies common sense.
Procedural protections safeguard the rights of the accused during the
investigative and adjudicative process. One cannot, therefore, wait
until after that process has concluded to determine (based on its result)
whether these protections apply. Any argument to the contrary is
72 Id. at 125.
73 Id. at 117.
74 Insofar as Hofstra’s argument is that the Harassment Policy did not apply
because Hofstra knew Menaker was not guilty of harassment even before
conducting an investigation, this does not help Hofstra’s case. At the very least, this
would amount to an admission that Hofstra used harassment allegations it knew
to be false or exaggerated as the occasion for a general review of Menaker’s work
performance. Whether such an account of Hofstra’s conduct is persuasive—or
would overcome the discriminatory taint of being triggered by malicious sexual
harassment allegations—are questions for subsequent stages of this litigation, not
at the stage of a motion to dismiss.
27
reminiscent of the philosophy of Lewis Carroll’s Queen of Hearts:
“Sentence first—verdict afterwards.”75 This is the opposite of
procedural regularity.
An employer cannot escape its promise of procedural
protections by recharacterizing accusations of sexual misconduct in
more generic terms. Nor can it deny an inference of procedural
irregularity through post‐hoc rationalization. Menaker has therefore
alleged sufficient facts to suggest procedural irregularity and, together
with other facts, a prima facie case of sex discrimination.
E. Imputing an Agent’s Discriminatory Intent
Although Menaker relied principally on Doe v. Columbia in
arguing for the sufficiency of his complaint,76 he argues, additionally,
that the facts he has pleaded also lend themselves to analysis under
what is essentially a “cat’s paw” theory.77 On remand, the District
Lewis Carroll, Alice’s Adventures In Wonderland, 154 (Broadview Press, Ed.
75
Richard Kelly 2004) (1865).
76While arguments not presented to the district court “generally will not be
considered for the first time on appeal,” we have broad discretion to consider such
arguments “because our waiver and forfeiture doctrine is entirely prudential.”
United States v. Gomez, 877 F.3d 76, 94–95 (2d Cir. 2017) (brackets omitted).
77See Staub v. Proctor Hosp., 562 U.S. 411, 415 n.1 (2011) (“The term ‘cat’s
paw’ derives from a fable conceived by Aesop, put into verse by La Fontaine in
1679, and injected into United States employment discrimination law by Judge
Posner in 1990.”).
28
Court should consider Menaker’s allegations under such a theory as
well.
At its core, a “cat’s paw” case simply reflects a slight variation
on the standard principles of vicarious liability.78 In the Title VII
context, it is well‐settled that employers may be held vicariously liable
for the conduct of their agents.79 In such cases, the plaintiff generally
must establish (1) that the employer’s agent (a) was motivated by the
requisite discriminatory intent, and (b) effected the relevant adverse
employment action;80 and (2) that the agent’s conduct is imputable to
the employer under general agency principles.81
78See Vasquez v. Empress Ambulance Serv., 835 F.3d 267, 271 (2d Cir. 2016)
(construing Title VII); see also Staub, 562 U.S. at 419 (construing the Uniformed
Services Employment and Reemployment Rights Act).
79Burlington Indus. v. Ellerth, 524 U.S. 742, 754 (1998) (“[T]he term ‘employer’
is defined under Title VII to include ’agents.’” (citing 42 U.S.C. § 2000e(b))).
80 Vega, 801 F.3d at 85.
81 Ellerth, 524 U.S. at 754–55 (“Congress has directed federal courts to
interpret Title VII based on agency principles . . . . We rely on the general common
law of agency, rather than on the law of any particular State, to give meaning to
these terms.” (citation and internal quotation marks omitted)). Such common law
agency principles provide for liability in circumstances where “the servant . . . was
aided in accomplishing the tort by the existence of the agency relation,” or where
“the master was negligent or reckless.” Id. at 758 (quoting the Restatement (Second)
of Agency § 219(2)). Thus, when a supervisor fires an employee because of her sex
(including for a failure to respond to a request for sexual favors), the employer is
liable because “the injury could not have been inflicted absent the agency relation.”
Id. at 761–62. Similarly, when an employer negligently permits an employee to
create an actionable hostile work environment, such conduct may be imputed to
the employer because of this negligence. Vance v. Ball State Univ., 570 U.S. 421, 446
29
In a “cat’s paw” case, by contrast, only the intent of the agent is
imputed to the employer.82 Meanwhile, the employer ultimately
accomplishes or effects the adverse employment action. In other
words, the agent “manipulates an employer into acting as a mere
conduit for his [discriminatory] intent.”83 In such cases, so long as the
agent intended and was the proximate cause of the adverse result, the
agent’s discriminatory intent may be imputed to the employer under
traditional agency principles.84 These principles provide for liability
where the employer was negligent because it acted at the agent’s
behest when it knew or should have known of the agent’s
discriminatory motivation.85
(2013) (“[A]n employer will always be liable when its negligence leads to the
creation or continuation of a hostile work environment.”).
82 To establish a claim through a “cat’s paw” theory, a plaintiff must
establish the agent’s “intent” in two respects: (1) intent to discriminate, and
(2) intent that the adverse action occur. See Staub, 562 U.S. at 419.
83 Vasquez, 835 F.3d at 274–75 (internal quotation marks omitted); see also
Holcomb v. Iona Coll., 521 F.3d 130, 143 (2d Cir. 2008) (explaining that a Title VII
plaintiff can succeed “even absent evidence of illegitimate bias on the part of the
ultimate decision maker, so long as the individual shown to have the impermissible
bias played a meaningful role in the [decision‐making] process” (citation omitted));
Bickerstaff v. Vassar Coll., 196 F.3d 435, 450 (2d Cir. 1999) (recognizing that “the
impermissible bias of a single individual at any stage of the promoting process may
taint the ultimate employment decision in violation of Title VII . . . so long as the
individual shown to have the impermissible bias played a meaningful role in the
promotion process”).
84 Vasquez, 835 F.3d at 273–74.
85 Id. at 273.
30
Here, Menaker has alleged facts from which it may plausibly be
inferred that Hofstra served as a conduit for Kaplan’s discriminatory
intent and that this intent may be imputed to Hofstra.
First, it is plausible that Kaplan’s accusations were motivated, at
least in part, by Menaker’s sex. While Kaplan’s primary motivation
may have been financial or vindictive, Title VII requires that we look
beyond primary motivations. Indeed, courts must determine whether
sex was a motivating factor, i.e., whether an adverse employment
action was based, even “in part,” on sex discrimination.86 Here, Kaplan
did not accuse Menaker of just any misconduct; she accused him of
sexual misconduct. That choice is significant, and it suggests that
Menaker’s sex played a part in her allegations.87 A rational finder of
fact could therefore infer that such an accusation was based, at least in
part, on Menaker’s sex.88
86 Walsh, 828 F.3d at 75.
87Cf. Cox v. Onondaga Cty. Sheriff’s Dep’t, 760 F.3d 139, 149 (2d Cir. 2014)
(observing that “false statements . . . intended . . . to establish a claim of racial
harassment . . . could be viewed by a reasonable observer as themselves racial
harassment”).
88 As with sexual harassment claims brought under Title VII, courts may
find it easy to draw an inference of sex discrimination “in most male‐female”
scenarios of malicious allegations of sexual harassment. This is so because “it is
reasonable to assume those [allegations] would not have been made [concerning]
someone of the same sex.” Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 80 (1998).
As with sexual harassment, however, such an inference is not inevitable. If the
allegations would have been leveled regardless of the plaintiff’s sex, no sex
discrimination has occurred. See Brennan v. Metro. Opera Ass’n, 192 F.3d 310 (2d Cir.
1999) (“[A]n environment which is equally harsh for both men and women . . . does
31
Second, drawing all inferences in Menaker’s favor, Kaplan’s
intent may be imputed to Hofstra. We have previously held in the Title
VII context that the conduct of certain non‐employees may be imputed
to the employer where (1) the employer exercises a “high degree of
control over the behavior” of the non‐employee, and (2) the
employer’s “own negligence” permits or facilitates that non‐
employee’s discrimination.89 Thus, in Summa v. Hofstra University, we
held that the harassing conduct of student‐athletes could, in principle,
be imputed to the university under agency principles because the
university exercised “a high degree of control over the behavior of its
student football players.”90 In Summa, however, we concluded that the
university did not act negligently, but instead took appropriate
remedial action. These same agency principles govern the “cat’s paw
theory.” Accordingly, the discriminatory intent of a student‐athlete
may also be imputed to a university where that university exercises a
“high degree of control over the behavior” of the student‐athlete and
negligently permits her discriminatory conduct or effectuates her
discriminatory intent.
not constitute a hostile working environment under the civil rights statutes.”);
Brown v. Henderson, 115 F. Supp. 2d 445, 450 (S.D.N.Y. 2000) (“Put bluntly,
the equal opportunity harasser escapes the purview of Title VII liability.” (citation
and internal quotation marks omitted)).
89 Summa v. Hofstra Univ., 708 F.3d 115, 124 (2d Cir. 2013).
90 Id.32
Here, Menaker’s allegations suggest that Hofstra exercised the
requisite degree of control over Kaplan. Hofstra controlled not only
Kaplan’s academic enrollment and athletic scholarship, but also the
very complaint process by which she sought to effectuate her allegedly
discriminatory intent. Indeed, Hofstra officials specifically referenced
Kaplan’s accusations in the course of terminating Menaker, thereby
acknowledging that she had “played a meaningful role in the
decision.”91 Accordingly, insofar as Hofstra negligently or recklessly
implemented Kaplan’s discriminatory design, her intent may be
imputed to Hofstra. Here, in light of the procedural irregularities
discussed above92 (as well as Hofstra’s knowledge of the scholarship
dispute, the phone call from Kaplan’s father, and the falsity of at least
some of the accusations), a district court could plausibly conclude that
Hofstra was negligent or reckless in acting on Kaplan’s allegations.
While the facts alleged suggest that Hofstra might be liable
under such a theory, further proceedings, of course, are necessary to
establish whether there is evidence to support Menaker’s allegations.
III. CONCLUSION
To summarize, we hold as follows:
(1) 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
91 Holcomb, 521 F.3d at 143.
92 See Section C, ante.
33
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.
(2) 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.
(3) 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.
(4) Menaker’s Amended Complaint states a claim for sex
discrimination.
For the foregoing reasons, we VACATE the September 27, 2018
judgment of the District Court and REMAND the cause to the District
Court for further proceedings consistent with this opinion.
34