A graduate student who was allegedly harassed by a university’s football players could not pursue her sexual harassment claims against the university, but her retaliation claim could continue, the U.S. Court of Appeals for the Second Circuit has ruled. Summa v. Hofstra Univ., No. 11-1743 (2d Cir. Feb. 21, 2013). Affirming summary judgment in favor of Hofstra University on the student’s claims under Titles VII and IX of the Civil Rights Act of 1964 and the New York State Human Rights Law (“NYSHRL”), the Court, adopting the Equal Employment Opportunity Commission’s rules on harassment by non-employees, ruled the university could not be held liable because it promptly responded to the student’s complaints about the players’ conduct and took appropriate remedial action. The Court reversed the dismissal of the student’s retaliation claim, however, finding the student offered sufficient proof that the university’s reasons for terminating her employment were pretextual. The Court declined to address whether Title IX provides a private right of action for employment discrimination and dismissed the Title IX claim as duplicative of the Title VII claim.
Lauren Summa, a graduate student at Hofstra University, was hired as the football team manager for the 2006-07 Season. The football office confirmed Summa’s salary of $700 for the fall season and $300 for the spring season. Summa’s duties included assisting the football coaches during practices and at home and away games.
While serving as the team manager, Summa allegedly suffered repeated harassment by the players, including suggestive Facebook posts, inappropriate verbal comments, and particularly lewd conduct on a team bus ride in November 2006. After learning of the Facebook posts, Summa complained to Head Football Coach David Cohen. Shortly thereafter, Cohen ordered the players involved to take the page down. The players complied and the page was removed.
After the November 2006 bus ride, Summa immediately reported the conduct to Cohen and later filed a written complaint with the University’s Equality Officer, Dr. Maureen Murphy. In response to Summa’s complaints, Cohen spoke with the football players and subsequently dismissed one of the players from the team. In addition, after investigating Summa’s complaint, Murphy suggested that the University conduct harassment prevention training for the members of the Athletics Department. That training was provided in August 2007.
Loss of Team Manager Position
A few days before the start of the spring season in March 2007, Summa called the football office to obtain the schedule. Cohen returned the call, leaving her a voicemail stating the position had been filled because they had not heard from her.
Summa later interviewed for and, in mid-May 2007, accepted a graduate assistantship position in the Office of University Relations. The position was offered by Helen Stefanidis, Director of Marketing, Planning, and Operations. Later that month, Summa filed a complaint with the New York State Division of Human Rights (“NYSDHR”) against the University alleging that her replacement as team manager amounted to unlawful retaliation for her harassment complaints. The University responded to the complaint and attached an affidavit signed by Evelyn Miller-Suber, Director of Human Resources.
Rescission of Graduate Assistantship
In June 2007, Miller-Suber informed Melissa Connolly, the Vice President for University Relations, that she had neglected to “sign off” on the hiring paperwork for Summa, who would be working in her department. She also suggested that, although she was not required to, Connolly might want to interview Summa.
In July 2007, Connolly met with Summa and, following their meeting, she decided to rescind Summa’s graduate assistant position because she believed that Summa’s resume was imprecise and that Summa had overstated the importance of her duties at an internship. Connolly also contacted one of Summa’s references who reportedly gave her a lukewarm recommendation.
Summa continued to work at the University until July 2008, at which point Miller-Suber terminated Summa’s employment because Summa had double-counted some of her hours. Miller-Suber had never terminated any other student’s privilege of student employment, nor had she investigated any other student’s billing practices.
Summa sued the University for sexual harassment and retaliation. The district court granted summary judgment in favor of the University, and Summa appealed.
Harassment Claim Rejected, But Retaliation Claim Allowed
The appellate court first addressed the standard for harassment attributable to non-employees, which the Court previously had not decided. The Court noted that the U.S. Equal Employment Opportunity Commission applies the standards used for non-supervisory co-workers when assessing liability for non-employees and examines the degree of control asserted by the employer over the non-employees. 29 C.F.R. § 1604.11(e). (The NYHRL follows the federal law.) Under this standard, an employer may be held liable for non-employee harassment if it “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.” Duch v. Jakubek, 588 F.3d 757, 762 (2d Cir. 2009). The Court adopted the EEOC standard and ruled the University could not be held liable because it responded to Summa’s complaints appropriately and promptly.
Turning to Summa’s retaliation claim, the Court found that factual issues existed regarding whether the University’s reasons for replacing her as team manager, rescinding her graduate assistantship position, and ultimately terminating her employment were a pretext for retaliation. The Court found that Summa offered evidence to suggest that Cohen, who knew about Summa’s complaints, influenced the decision to not bring Summa back for the spring season as team manager. Likewise, the Court also found factual issues existed as to whether Miller-Stuber, who knew of Summa’s NYSDHR complaint, tainted Connolly’s decision to rescind Summa’s graduate assistantship. The Court found significant that Miller-Stuber never had looked into the billing practices of any other student and never had terminated a student for engaging in double billing. Accordingly, the Court concluded that Summa’s retaliation claim should be permitted to proceed.
The Court declined to address whether Title IX provides a private right of action for employment discrimination and dismissed the Title IX claim as duplicative of the Title VII claim.
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A defensible harassment lawsuit can be transformed into a more difficult retaliation lawsuit based on actions taken after the employer addresses and remedies a harassment complaint. In Summa, the timing of the subsequent adverse employment actions and the involvement of actors with knowledge of the student’s complaints in subsequent employment decision raised enough questions regarding the employer’s motives to allow the retaliation claim to proceed. Before taking any adverse action against an employee who previously has made harassment or discrimination complaints, employers should consider consulting with experienced employment counsel to assess and mitigate potential risks of liability for retaliation.