Plaintiff recovers damages under Title VII despite adverse Section 1983 holding on summary judgment -- Krause v. Kelahan, Part II

This sex discrimination verdict spent 2.5 years under review by the Second Circuit, which sustained the plaintiff's win but resolved a slew of evidentiary and trial rulings along the way, making this among the more complicated Title VII cases in the Court of Appeals in recent years. At this link, I discuss the evidence that supported the jury's finding that the defendant Superintendent of Schools orchestrated the plaintiff's termination as high school principal. This time, I discuss an interesting issue relating to the plaintiff's entitlement to damages.

The case is Krause v. Kelahan, issued on December 3. I briefed the appeal, which was argued by A.J. Bosman, who tried the case. My write-up on the sex discrimination ruling is here. 

The lawsuit originally asserted two related claims in support of plaintiff's position that she was fired because of her sex. She sued under Title VII and also under Section 1983, which enforces the Equal Protection Clause, which protects those who work for public (but not private) employers. 

On the summary judgment motion, the trial court split the baby: it held that plaintiff can prevail on her Title VII claim but cannot prevail under Section 1983. The reason for this is the different burdens of proof guiding both claims. Under Title VII, the plaintiff can win if discrimination was a motivating factor, even if it is not a determinative factor. If discrimination plays a substantial role in the termination, then the defendant has violated Title VII. But under Section 1983, to win, the plaintiff has to show that sex discrimination played a determinative, or but-for, role in the personnel decision. The discrimination must have made the difference in the plaintiff's termination. The jury may not pay much attention to these distinctions, but courts do. On summary judgment, the district court said that plaintiff can, at best, prove that sex discrimination was the motivating factor in her termination but not the determinative factor. The court reached this decision in the belief that management had some decent reasons to fire plaintiff, even if those reasons were not fully dispositive on paper. 

Taking things a step further, if the plaintiff wins under Title VII, the jury has to decide if the defendant would have fired her even without the discriminatory intent. If so, then the discriminatory intent is not enough to win any damages (though she can still win injunctive relief, attorneys' fees and declaratory relief). On appeal, having lost at trial on the Title VII claim, defendant argued that, since the trial court on summary judgment found that discrimination was not the but-for cause of the plaintiff's termination, that finding necessarily means that the school district would have fired plaintiff even without the discriminatory intent, and the jury's finding that the district violated Title VII does not entitle her to any damages at all. In other words, defendant used the Section 1983 holding on the summary judgment motion in an effort to deprive the plaintiff of any damages on her successful Title VII claim. This argument would have deprived plaintiff of the $400,000+ in damages awarded by the jury.

The Court of Appeals (Carney, Lee and Sullivan [dissenting]) rejected the school district's argument, noting that under Title VII, the defendant has the burden of proving it would have fired plaintiff even without the discriminatory intent, and under Section 1983, plaintiff has the burden of proving that discriminatory intent was the determinative factor in her termination. The Court of Appeals reasons:

At summary judgment, the District Court never considered the question that would be required to find in Defendants’ favor on this defense: whether, with the burden of proof resting on Defendants, they had established that they would have inevitably terminated Krause for non-discriminatory reasons. Nor should the District Court have decided this issue, given that Defendants never raised a same-decision defense in their summary judgment briefing. They cannot now claim that the District Court erred in failing to reach an issue that they did not squarely present.

In a footnote, the Court of Appeals expands this holding further, noting that "even if the District Court should in some way have reached this issue at the summary judgment stage, this Court will not ordinarily hear a post-trial challenge to a district court’s summary judgment ruling. Instead, the Court considers whether the jury’s verdict was supported by sufficient evidence." As the jury concluded that Defendants had not “established by a preponderance of the evidence that they would have made the same decision [to terminate Krause] in the absence of gender discrimination,” and that verdict was supported by substantial evidence, defendants' argument, though creative, must fail. In other words, the jury's verdict takes precedence over anything the trial court said on the summary judgment motion.

This issue is the first time I have seen any federal court address whether a defendant's favorable result under Section 1983 on summary judgment can deprive the plaintiff of any damages upon a successful Title VII verdict at trial. One reason this is a new issue is that the courts, only in the last 15 years or so, have held that most civil rights statutes carry the "but-for" causation test, unlike Title VII, which permits a trial victory if the plaintiff merely proves that discrimination was a motivating factor in the adverse personnel action.