Circuit rejects gender discrimination claim under Section 1983

Did you know that employment discrimination plaintiffs can sue individual defendants under Section 1983, the federal civil rights statute that enforces constitutional provisions like the Equal Protection Clause? They can. It is not uncommon to see these plaintiffs sue their employers under Title VII of the Civil Rights Act of 1964 (the comprehensive employment discrimination statute) and also plead claims under Section 1983 against the individual defendants. Section 1983 claims can get you damages and other relief unavailable under Title VII, including punitive damages against individual municipal defendants, uncapped damages awards and no pre-filing requirements with the Equal Employment Opportunity Commission, which means you can head straight to court with your lawsuit instead of waiting for the EEOC to wrap up its six-month investigation. Section 1983 claims also have a more generous statute of limitations. But Section 1983 claims have their pitfalls, as demonstrated in this case.

The case is Naumovski v. Norris, issued on August 12. This is the first Second Circuit ruling that really identifies the distinctions between Title VII and Section 1983, and the end result is not good for plaintiffs who want relief under Section 1983. You can still pursue claims under both statutes, but they are not coterminous, as Section 1983 imposes additional hurdles to victory.

The plaintiff was assistant coach of the womens' basketball team at SUNY Binghamton, a public entity that is therefore held to constitutional standards. Rumors began circulating that plaintiff had an "inappropriate relationship" with a lesbian female athlete, though these rumors did not suggest a sexual relationship but favoritism. The Interim Athletics Director, Norris, told plaintiff that "your problem is that you're a single female in your 30's." Norris and another administrator, Scholl, eventually fired plaintiff, purportedly because of plaintiff's demonstrated favoritism toward certain student-athletes. Plaintiff sues for gender discrimination under Title VII and Section 1983, which provides damages for gender discrimination that violates the Constitution. The district court denied defendants' motion for summary judgment on the Section 1983 claim, but the defendants are able to immediately appeal on the ground that they are entitled to qualified immunity.

The Second Circuit (Winter, Cabranes and Raggi) rules that plaintiff cannot prevail on her Section 1983 claim, for the following reasons:

1. While sex discrimination claims may be brought under Section 1983, the burden of proof under Section 1983 and Title VII is different. Under Title VII, the plaintiff wins if she can prove that discrimination was a "motivating factor" in the termination (or demotion or hostile work environment). That means that even if the employer can show it would have terminated the plaintiff without the discriminatory intent, the employer is not off the hook, so long as "discrimination played a role in the adverse employment decision." But "motivating factor" is not the same as "determining factor" or "but-for" causation, which governs Section 1983 claims (and also Title VII retaliation claims as well as age discrimination claims). Congress wanted "motivating factor" to guide Title VII claims, but no such language appears in Section 1983, which means the courts apply the common-law fallback "but-for" causation test, a higher burden of proof for plaintiffs. In highlighting this distinction, the Second Circuit clarifies an ambiguity in its case law, as the court has "elided this distinction between Section 1983 and Title VII" in the past.

2. What this means for plaintiff in this case is that, even if she has a case under Title VII, she cannot proceed under Section 1983. The Second Circuit finds there was no animus toward women in the way it treated plaintiff. While plaintiff says Norris told her that her problem is she's a single female in her 30's, even if that comment could be understood "to disparage a subset of women, the statement is insufficient evidence from which a jury could infer Norris's discriminatory intent," as this was simply a "one-off comment" that courts will write off as a "stray remark" that has no evidentiary value. In addition, the court says, "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 generally or any subcategory of female employees in particular." It strikes me that the court is generously interpreting "stray remark" in this context, but the evidentiary world of "stray remarks" is a murky one.

3. Plaintiff also claims she was fired because of sex stereotyping, which violates the civil rights laws. While the Court of Appeals agrees that a plaintiff can win "by demonstrating that an employer acted against her because of a conscious belief that, on account of her sex, she was more likely to have engaged in sexual misconduct," plaintiff cannot win her Section 1983 claim on this basis because "Naumovski must . . . establish not only that Defendants’ sex stereotyping biases played some role in the decision to terminate her, but that this stereotyping was a 'but‐for' cause of that decision." The court says plaintiff cannot satisfy this heightened burden of proof because Norris's "single woman" comment was a stray remark and plaintiff cannot prove that the articulated reason for her termination -- "performance reasons" -- was false or inadequate, as plaintiff admits that Scholl told her that some players complained they were not treated fairly, and plaintiff does not dispute defendants' claim that she had performance issues toward the end of her employment.

4. Can plaintiff win her claim on the basis that she was discriminated based on her sexual orientation? The Second Circuit did hold in February 2018 that sexual orientation discrimination is a form of gender discrimination in Title VII. That's the Zarda case (now pending in the Supreme Court). But, to prevail under Section 1983, the plaintiff must show the defendant violated "clearly established law," which means there must have been a Second Circuit case already on point prior to the adverse action. That's another distinction between Section 1983 and Title VII, which does not require the plaintiff to prove the defendant violated established legal principles. While Zarda interpreted Title VII, it did not interpret Section 1983. What is clearly established under Title VII is not necessarily clearly established under Section 1983. The court reasons:

even if it were reasonable for the District Court to interpret Zarda as establishing a sexual orientation discrimination claim under the Constitution, the conduct at issue in this case predated the issuance of the Zarda decision. Prior to Zarda, our Court had expressly declined to recognize sexual orientation discrimination claims under Title VII, much less the Constitution. Thus, if anything, the “clearly established law” at the time Defendants terminated Naumovski’s employment was that sexual orientation discrimination was not a subset of sex discrimination.