Appeals Court Holds That Sexual Orientation Discrimination in Public Employment is Not Cleary Actionable Under the Constitution
By Athur S. Leonard. This article appears in the September edition of LGBT Bar NY’s LGBT Law Notes.
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).