18

‐ 1556

‐ cv (L)

Naumovski v. Norris



## In the



# United States Court of Appeals

**for the Second Circuit**

A UGUST T ERM 2018

No. 18

‐ 1556

‐ cv

No. 18

‐ 2663

‐ cv

E LIZABETH N AUMOVSKI

Plaintiff

‐ Appellee,

v.

J AMES N ORRIS AND N ICOLE S CHOLL

, Defendants

‐ Appellants

.

On Appeal from the United States District Court

for the Northern District of New York

A RGUED : J UNE 18, 2019

D ECIDED : A UGUST 12, 2019

Before: W INTER

, C ABRANES

, and R AGGI

, Circuit Judges

.2 Defendants

‐ Appellants James Norris and Nicole Scholl (jointly,

“Defendants”) appeal from an April 17, 2018 order of the United States

District Court for the Northern District of New York (David N. Hurd,

Judge ), denying in part their motion for summary judgment.

Defendants, who are athletics officials at Binghamton University, the

State University of New York (“Binghamton”), claim that they were

erroneously denied qualified immunity in a suit brought by Plaintiff

‐

Appellee Elizabeth Naumovski, previously an assistant women’s

basketball coach at Binghamton. Because the District Court

erroneously conflated the distinct Title VII and § 1983 standards for

both vicarious liability and causation, we REVERSE the District

Court’s order with respect to the § 1983 claims against Defendants, we

ENTER judgment for Defendants, and we REMAND the cause for

further proceedings consistent with this opinion.

M ARGARET J OANNE F OWLER (Jared R, Mack,

on the brief ), Levene Gouldin & Thompson,

LLP, Vestal, NY, for Defendants

‐ Appellants

.

A.J. B OSMAN

, Bosman Law Firm L.L.C.,

Rome, NY, for Plaintiff

‐ Appellee.

J OSÉ A. C ABRANES

, Circuit Judge :

We consider here whether the termination of an employee,

allegedly in response to malicious rumors of sexual misconduct, can3 support claims for sex discrimination. In principle, such claims may

well be viable, particularly under the broad statutory cause of action

provided by Title VII of the Civil Rights Act of 1964 (“Title VII”). The

claims before us on appeal, however, were brought pursuant to 42

U.S.C. § 1983 and the Equal Protection Clause of the Fourteenth

Amendment. The standards for such claims, particularly with respect

to vicarious liability and causation, are distinct from those brought

under Title VII. Moreover, Defendants in this case had the additional

benefit of qualified immunity, which the District Court did not address

independently. Accordingly, we write to clarify the differences

between discrimination claims brought under Title VII and those

brought under § 1983, and to again emphasize the importance of

properly applying the doctrine of qualified immunity.

Defendants

‐ Appellants James Norris and Nicole Scholl

(“Norris” and “Scholl”; jointly, “Defendants”) appeal from an April

17, 2018 order of the United States District Court for the Northern

District of New York (David N. Hurd, Judge ), denying in part their

motion for summary judgment. Defendants, who are athletics officials

at Binghamton University, the State University of New York

(“Binghamton”), claim that they were erroneously denied qualified

immunity in a discrimination suit brought by Plaintiff

‐ Appellee

Elizabeth Naumovski (“Naumovski” or “Plaintiff”), previously an

assistant women’s basketball coach at Binghamton. Because the

District Court erroneously conflated the distinct Title VII and § 1983

standards for both vicarious liability and causation, we REVERSE the

District Court’s order with respect to the § 1983 claims against4 Defendants, we ENTER judgment for Defendants, and we REMAND

the cause for further proceedings consistent with this opinion.

1. BACKGROUND 1

A. The 2008

‐ 2009 Season: Rumors Begin

In June 2008, Elizabeth Naumovski, a Canadian citizen, began

her employment at Binghamton as an assistant coach of its women’s

basketball team. During the 2008

‐ 2009 season, Naumovski worked as

one of the team’s three assistant coaches under the direction of head

coach Nicole Scholl.

In December 2008, rumors began to circulate among student

‐

athletes and their families that Naumovski was engaged in an

“inappropriate relationship” with a gay, female student

‐ athlete,

identified as “J.W.” Naumovski first learned of these rumors in

January 2009, which was about the same time they reached Scholl. But

according to Scholl, the rumors never referred to a sexual relationship

between Naumovski and J.W.; rather, they merely suggested that

Naumovski was demonstrating “favoritism” toward J.W. Moreover,

Scholl claims that she never believed Naumovski was having an

intimate or sexual relationship with J.W.

1 In setting forth the facts, “[w]e construe the evidence in the light most

favorable to [Naumovski] and draw all reasonable inferences in [her] favor.” ING

Bank N.V. v. M/V TEMARA

, 892 F.3d 511, 518 (2d Cir. 2018).5 Naumovski recalls discussing allegations of an inappropriate

sexual relationship with Scholl. 2 Naumovski further recalls Scholl

reassuring her that she did not believe the rumors. Naumovski claims

that Scholl failed to take any significant action to stop the rumors.

Naumovski’s performance evaluation for the 2008

‐ 2009 season

noted no performance deficiencies. Naumovski’s contract was

renewed for the following year, and she received a salary increase.

B. The 2009

‐ 2010 Season: Rumors Escalate

In late September 2009, shortly after the start of the academic

year, a student

‐ athlete on the women’s basketball team approached

James Norris (then Binghamton’s Senior Associate Athletic Director)

and informed him that Naumovski was rumored to be engaged in an

“inappropriate relationship” with J.W. Like Scholl, Norris 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 recalls discussing the rumors

with Joel Thirer, then Athletics Director, who assured him that the

allegations were the baseless fabrications of disgruntled former

members of the Binghamton Athletics community. On September 30,

2009, Norris replaced Thirer as Interim Athletics Director.

2 Naumovski does not make clear whether the rumored sexual relationship

was deemed “inappropriate” because the relationship was between members of the

same sex or between a university official and a student in her charge.6 In October 2009, the athletics department began to escalate its

response to the Naumovski rumors. Scholl imposed various

restrictions on interactions between coaches and student

‐ athletes to

avoid any perception of impropriety. As a result of the increased

scrutiny triggered by these restrictions, Naumovski began to suffer

from depression and stress

‐ induced weight loss.

In early October, Naumovski met with Norris to address the

rumors and reassure him that she was not engaged in an inappropriate

relationship. According to Naumovski, Norris told her that “your

problem is that you’re a single female in your mid

‐ 30s.” 3

The rumors persisted through February 2010. Norris continued

to receive complaints of Naumovski’s alleged favoritism, while Scholl

allegedly noticed Naumovski ignoring certain students. Scholl also

explains that, during this time, she and Naumovski began to clash.

Scholl felt that Naumovski was trying to undermine her leadership of

the team. 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.

3 App. 1374. Norris denies ever making this comment. He insists, rather, that

Naumovski made the above statement about herself to explain why others assumed

she was gay. As explained above, however, in deciding this appeal we must

construe the evidence in the light most favorable to Naumovski. See note 1, ante

. Therefore, we assume that Norris made the quoted statement.7 C. Naumovski Is Fired

During a phone call on February 21, 2010, Scholl and Norris

agreed to terminate Naumovski’s employment. The decision was

purportedly based on Naumovski’s demonstrated favoritism toward

certain student

‐ athletes and the disruptive impact of her workplace

conflicts with Scholl. Scholl and Norris agreed that they would inform

Naumovski of their decision in March, after the athletic season

concluded. During the intervening weeks, Norris continued to receive

student complaints about Naumovski.

On February 23, J.W.’s family received an anonymous, vulgar

letter accusing her of “screwing” Naumovski. J.W. informed

Naumovski of the letter the following day. Around the same time,

Naumovski learned from a different student that several student

‐

athletes had been complaining about her to Norris.

On March 2, J.W.’s mother called Norris to request a meeting,

and the two agreed to meet after the conclusion of the season. Their

accounts differ about whether J.W.’s mother informed Norris of the

letter during this initial phone call.

On March 8, Naumovski met with a union representative,

Darryl Wood, who assured her that, before acting on the allegations,

the university would conduct an investigation and notify her of the

results by letter from “Human Resources.” That proved wrong. On

March 9, Norris contacted Naumovski to schedule a meeting for the

following day. At that March 10 meeting, Norris informed Naumovski8 that she was being fired “for performance reasons,” but offered her the

opportunity to resign “voluntarily.” 4 Naumovski resigned.

D. The Instant Action

On October 4, 2010, Naumovski filed a discrimination charge

with the New York State Division of Human Rights and the U.S. Equal

Employment Opportunity Commission (the “EEOC”). On June 17,

2011, the EEOC issued Naumovski a Notice of Right to Sue letter. On

September 15, 2011, Naumovski filed suit against Scholl, Norris,

Binghamton, SUNY, and two anonymous individuals, alleging

discrimination based on her sex, her perceived sexual orientation, and

her national origin, in violation of Title VII, Title IX, the Equal

Protection Clause and the First Amendment of the United States

Constitution (as enforceable through 42 U.S.C. § 1983), the New York

State Constitution, and the New York State Human Rights Law.

Following discovery, Defendants moved for summary

judgment on all claims. The motion remained pending for several

years. Finally, on April 17, 2018, the District Court granted the motion

in part and denied it in part. Specifically, the District Court granted

summary judgment to the institutional defendants (namely,

Binghamton and SUNY) on all constitutional claims, but permitted

several statutory claims to proceed to trial. With respect to Scholl and

Norris, the District Court dismissed all claims except for Naumovski’s

sex

‐ based disparate treatment and hostile work environment claims

4 App. 670, 13789 under § 1983. 5 Although Scholl and Norris expressly invoked qualified

immunity in their motion for summary judgment, the District Court

did not address this argument in its Memorandum

‐ Decision and

Order.

On May 9, 2018, Scholl and Norris moved for reconsideration of

the District Court’s partial denial of summary judgment. Again, Scholl

and Norris specifically invoked qualified immunity. The District Court

nevertheless denied the motion due to its untimeliness under the local

rules and because it did not raise any new issues. On May 17, 2018,

Norris and Scholl appealed the District Court’s April 17, 2018 order

based on their claimed entitlement to qualified immunity.

2. DISCUSSION

A. Jurisdiction and Standard of Review

“Ordinarily, orders denying summary judgment do not qualify

as ‘final decisions’ subject to appeal.” 6 It is well

‐ settled, however, that

“a district court’s denial of a claim of qualified immunity, to the extent

that it turns on an issue of law, is an appealable ‘final decision’ within

5 The District Court appears to have misnumbered Naumovski’s surviving

claims. Her § 1983 sex

‐ based discrimination claim was her seventh (not eighth)

cause of action, and her § 1983 hostile work environment claim was her eighth (not

ninth) cause of action. See App. 20–21; Sp. App. 51.

6 Ortiz v. Jordan

, 562 U.S. 180, 188 (2011); see also 28 U.S.C. § 1291 (providing

that the jurisdiction of a Court of Appeals extends only to “appeals from

. . . final

decisions of the district courts”).10 the meaning of 28 U.S.C. § 1291 notwithstanding the absence of a final

judgment.” 7 Here, Norris and Scholl argue that the District Court erred

as a matter of law in denying—or, more accurately, by failing to

address—their claim to qualified immunity. 8 Jurisdiction is therefore

proper. 9

We review de novo a district court’s denial of summary judgment

based on a claim of qualified immunity. 10 When considering qualified

immunity at the summary judgment stage, courts must “construe all

evidence and draw all reasonable inferences in the non

‐ moving party’s

favor.” 11

7 Mitchell v. Forsyth

, 472 U.S. 511, 530 (1985); accord Winfield v. Trottier

, 710

F.3d 49, 52 (2d Cir. 2013).

8 See, e.g.

, Br. Appellants 10–12.

9 Although our jurisdiction is predicated on an appeal of the District Court’s

denial of qualified immunity, we may also review the merits of the underlying

claims. See Demoret v. Zegarelli

, 451 F.3d 140, 152 (2d Cir. 2006) (stating that where

we review a qualified immunity claim, we have pendent jurisdiction over the

merits of the underlying constitutional claim). Our review is limited, of course, to

the two § 1983 claims on appeal. We will review the District Court’s rulings with

respect to the other claims in this case, including the statutory claims against SUNY

currently set for trial, if and when they are properly before us.

10 Mara v. Rilling

, 921 F.3d 48, 68 (2d Cir. 2019).

11 Bailey v. Pataki

, 708 F.3d 391, 399 (2d Cir. 2013).11 B. Qualified Immunity

A government official is entitled to immunity from suit

whenever (1) his conduct “did not violate clearly established law,” or

(2) “it was objectively reasonable for [the official] to believe that his

action did not violate such law.” 12 Government officials are thus

shielded from liability whenever their actions are based on reasonable

mistakes of law or fact. 13

When analyzing whether the right violated was “clearly

established,” the Supreme Court has repeatedly (and recently)

reminded us that clearly established law must be “particularized” to

the facts of the case and must not be defined “at a high level of

generality.” 14 In other words, officials only forfeit their immunity

when “existing precedent

. . . [has] placed the statutory or

12 Russo v. City of Bridgeport

, 479 F.3d 196, 211 (2d Cir. 2007) (internal

quotation marks omitted); see also Harlow v. Fitzgerald

, 457 U.S. 800, 818 (1982)

(requiring that the law be “clearly established at the time an action occurred”);

Malley v. Briggs

, 475 U.S. 335, 341 (1986) (“[I]f officers of reasonable competence

could disagree on this issue, immunity should be recognized.”).

13 Pearson v. Callahan

, 555 U.S. 223, 231 (2009) (“The protection of qualified

immunity applies regardless of whether the government official’s error is a mistake

of law, a mistake of fact, or a mistake based on mixed questions of law and fact.”

(internal quotation marks omitted)); see also Anderson v. Creighton

, 483 U.S. 635, 640

(1987) (requiring that “a reasonable official would understand that what he is doing

violates that right”).

14 White v. Pauly, 137 S. Ct. 548, 552 (2017) (internal quotation marks

omitted); see also Kisela v. Hughes

, 138 S. Ct. 1148, 1152 (2018).12 constitutional question beyond debate” 15 and that precedent has been

recognized “under similar circumstances.” 16 Qualified immunity thus

protects “all but the plainly incompetent” and those who “knowingly

violate the law.” 17

When addressing a claim of qualified immunity, it is often

appropriate (but not required) to first address the “threshold inquiry”

of whether the plaintiff has alleged a violation of federally protected

rights “at all.” 18 If the plaintiff has demonstrated such a violation, we

must still determine whether the application of that right to the

circumstances at issue was “clearly established” at the time of the

conduct, 19 and whether an “objectively reasonable” officer would

15 Ashcroft v. al

‐ Kidd

, 563 U.S. 731, 741 (2011).

16 White

, 137 S. Ct. at 552.

17 Id. at 551 (quoting Mullenix v. Luna

, 136 S. Ct. 305, 308 (2015)).

18 Kelsey v. Cty. of Schoharie

, 567 F.3d 54, 61 (2d Cir. 2009) (internal quotation

marks omitted); cf. Pearson

, 555 U.S. at 236 (explaining that while addressing the

threshold inquiry first is often appropriate, it “should no longer be regarded as

mandatory” and the sequence of qualified immunity analysis should be left to the

“sound discretion” of each court “in light of the circumstances in the particular case

at hand”).

19 Ganek v. Leibowitz

, 874 F.3d 73, 80 (2d Cir. 2017) (explaining that qualified

immunity “applies unless a plaintiff pleads facts showing (1) that the official

violated a statutory or constitutional right, and (2) that the right was ‘clearly

established’ at the time of the challenged conduct” (internal quotation marks

omitted)).13 have known that his conduct amounted to such a violation. 20 If our

resolution of any of these inquiries is negative, we must conclude that

an official is shielded by qualified immunity and entitled to summary

judgment.

C. Claims of Sex Discrimination in Public Employment under § 1983

and the Fourteenth Amendment

In order to analyze Defendants’ claims of qualified immunity,

we must first clarify the contours (or at least the “clearly established”

contours) of the right at issue on this appeal.

The only claims before us are Naumovski’s two remaining

§ 1983 claims against Norris and Scholl, both of which allege violations

of the Fourteenth Amendment’s Equal Protection Clause: 21 (1)

disparate treatment on account of sex, and (2) subjection to a hostile

work environment on account of sex.

20 Anderson

, 483 U.S. at 640 (requiring that “a reasonable official would

understand that what he is doing violates that right”). In recent years, the Supreme

Court has begun to syntactically combine these latter two questions into a single

inquiry, i.e., whether an official violated “clearly established statutory or

constitutional rights of which a reasonable person would have known.” Mullenix

,

136 S. Ct. at 308 (internal quotation marks omitted). Regardless of how these

inquiries are phrased, the substance remains the same.

21 The Equal Protection Clause of the Fourteenth Amendment provides, in

relevant part: “No State shall make or enforce any law which shall

. . . deny to any

person within its jurisdiction the equal protection of the laws.” U.S. C ONST

. amend.

XIV.14 A plaintiff who claims sex discrimination in public employment

in violation of the Fourteenth Amendment may bring suit pursuant to

§ 1983. 22 Such § 1983 discrimination claims parallel Title VII

discrimination claims in many respects. 23 For instance, as with Title VII

claims, a plaintiff may allege both traditional “disparate treatment”

claims and “hostile work environment” claims. The basic elements of

such claims, whether pursued under Title VII or § 1983, are similar: (1)

a plaintiff claiming disparate treatment under either statute must

plausibly allege that she suffered an “adverse employment action”

taken “because of” her sex, 24 and (2) a plaintiff claiming a hostile

environment must plausibly allege offensive conduct based on sex that

was “sufficiently severe or pervasive to alter the conditions of the

victim’s employment and create an abusive working environment.” 25

Despite these similarities, § 1983 and Title VII claims differ in

important ways. 26 First, and most obviously, a plaintiff advancing a

claim pursuant to § 1983 must plausibly allege that “the alleged

22 See Raspardo v. Carlone

, 770 F.3d 97, 113–14 (2d Cir. 2014) (“[S]tate and local

officials can be held individually liable under 42 U.S.C. § 1983 for violating the

Equal Protection Clause of the Fourteenth Amendment by discriminatory acts

against those who work under them.”).

23 See Vega v. Hempstead Union Free Sch. Dist.

, 801 F.3d 72, 88 (2d Cir. 2015).

24 Id. at 85. Adverse employment actions include terminations, demotions,

or even the imposition of an “excessive workload.” Id. at 85, 88.

25 Raspardo, 770 F.3d at 114 (internal quotation marks omitted).

26 See, e.g.

, Patterson v. Cty. of Oneida

, 375 F.3d 206, 225–26 (2d Cir. 2004)

(enumerating several differences between Title VII and § 1983 claims).15 deprivation was committed by a person acting under color of state

law.” 27 Title VII has no such requirement. Second, unlike a Title VII

claim, which may be brought only against the employing entity, a

§ 1983 claim “can be brought against an[y] individual” responsible for

the discrimination. 28 Third, while an employer may be liable under

Title VII for any discriminatory conduct that can properly be

attributed to the employer through agency principles, 29 § 1983 does not

permit such vicarious liability. “If [an individual] defendant has

not personally violated a plaintiff’s constitutional rights, the plaintiff

cannot succeed on a § 1983 action against the defendant.” 30

We emphasize now a fourth crucial distinction between Title VII

and § 1983 claims: the required degree of causation.

As the Supreme Court recently clarified, the disparate

treatment provision of Title VII is unusual in that it incorporates a

27 Vega

, 801 F.3d at 88 (internal quotation marks omitted).

28 Id. (emphasis added); see also Feingold v. New York

, 366 F.3d 138, 159 n.20

(2d Cir. 2004).

29 See Raspardo

, 770 F.3d at 114–15; Vasquez v. Empress Ambulance Serv., Inc.

,

835 F.3d 267, 273–74 (2d Cir. 2016) (“Congress has directed federal courts to

interpret Title VII based on agency principles.”).

30 Raspardo

, 770 F.3d at 115 (emphasis in original); see also Littlejohn v. City of

New York

, 795 F.3d 297, 314 (2d Cir. 2015) (“Because vicarious liability is

inapplicable to § 1983 suits, a plaintiff must plead that each Government

‐ official

defendant, through the official’s own individual actions, has violated the

Constitution.” (internal quotation marks and alterations omitted)).16 “lessened causation standard.” 31 Under Title VII, a plaintiff may

succeed simply by establishing that sex (or another protected

characteristic) was a “motivating factor for any employment practice,

even though other factors also motivated the practice.” 32 Thus, even if

an employer can establish that legitimate, non

‐ discriminatory reasons

also provided sufficient reason for the adverse action, the employer

may still be liable under Title VII. In other words, an employer’s

insistence that he would have terminated the plaintiff anyway is no

defense.

This “lessened causation standard” is the product of deliberate

and specific legislation. Indeed, prior to 1991, an employer “could

escape liability if it could prove that it would have taken the same

employment action in the absence of all discriminatory animus.” 33 In

the Civil Rights Act of 1991, however, Congress added a new

provision to Title VII that reduced the causation standard under that

law to require merely “motivating factor” for disparate treatment

claims. 34 Title VII, therefore, now differs markedly from ordinary tort

legislation with respect to causation.

31 Univ. of Tex. Sw. Med. Ctr. v. Nassar

, 570 U.S. 338, 349 (2013).

32 Nassar, 570 U.S. at 349 (citing 42 U.S.C. § 2000e–2(m)).

33 Id. at 348 (describing the consensus of six justices in Price Waterhouse v.

Hopkins

, 490 U.S. 228 (1989)).

34 Id. at 348

‐ 49.17 Not so § 1983. As the Supreme Court has explained, a “standard

requirement of any tort claim” is that plaintiff show “that the harm

would not have occurred in the absence of—that is, but for—the

defendant’s conduct.” 35 This standard, the Supreme Court has

explained, is “the background against which Congress legislate[s]”

and “the default rules it is presumed to have incorporated.” 36 Indeed,

“but

‐ for” causation has long been a standard prerequisite in § 1983

claims generally. 37 Congress has passed no legislation reducing the

causation standard for employment discrimination suits brought

under § 1983.

It follows, therefore, that a plaintiff pursuing a claim for

employment discrimination under § 1983 rather than Title VII must

35 Id. at 346–47 (internal quotation marks omitted); see also Gross v. FBL Fin.

Servs., Inc.

, 557 U.S. 167, 176 (2009) (“To establish a disparate

‐ treatment claim under

the plain language of the ADEA

. . . a plaintiff must prove that age was the ‘but

‐

for’ cause of the employer’s adverse decision.”).

36 Nassar

, 570 U.S. at 347. We note as well that the Supreme Court recently

granted a petition for a writ certiorari in National Association of African American

‐

Owned Media v. Comcast Corp.

, 743 F. App’x 106 (9th Cir. 2018), cert. granted in

part

, 2019 WL 1116317 (U.S. June 10, 2019) (No. 18

‐ 1171), on the following question:

“Does a claim of race discrimination under 42 U.S.C. § 1981 fail in the absence of

but

‐ for causation?”

37 Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle

, 429 U.S. 274, 286–87 (1977)

(rejecting a pure “motivating factor” test and requiring but

‐ for causation in the

context of a plaintiff’s § 1983 claim based on the violation of his First Amendment

rights); see Warner v. Orange Cty. Dep’t of Prob.

, 115 F.3d 1068, 1071 (2d Cir. 1996)

(observing that “[t]he Supreme Court has made it crystal clear that principles of

causation borrowed from tort law are relevant to civil rights actions brought under

section 1983” (internal quotation marks omitted)).18 establish that the defendant’s discriminatory intent was a “but

‐ for”

cause of the adverse employment action or the hostile environment. It

is insufficient to establish simply that invidious discrimination was “a

motivating factor” of the offending conduct. 38 Accordingly, a court

considering a § 1983 claim at summary judgment must determine

whether, construing the evidence in a light most favorable to the

plaintiff, a reasonable jury could find that the adverse employment

action would not have occurred “but

‐ for” sex discrimination.

This important distinction is implemented easily through the

familiar framework set forth in McDonnell Douglas Corp. v. Green

. 39

38 Several of our previous cases have elided this distinction between § 1983

and Title VII analyses. See Vega

, 801 F.3d at 88; Demoret

, 451 F.3d at 149 (“Once

action under color of state law is established, the analysis for [§ 1983 claims] is

similar to that used for employment discrimination claims brought under Title

VII.”); Back v. Hastings On Hudson Union Free Sch. Dist., 365 F.3d 107, 123 (2d Cir.

2004) (applying the traditional Title VII burden

‐ shifting framework to § 1983

claims). Prior to the Supreme Court’s decisions in Gross and Nassar

, the failure to

recognize distinct causation standards for Title VII and § 1983 claims was perhaps

defensible. In light of these supervening Supreme Court decisions, however, we

may no longer gloss over the issue.

39 411 U.S. 792 (1973). McDonnell Douglas and its progeny created a three

‐

step burden shifting framework for identifying discriminatory intent. At the first

step, a plaintiff must establish a prima facie case of sex discrimination by

demonstrating that “(1) she was within the protected class; (2) she was qualified for

the position; (3) she was subject to an adverse employment action; and (4) the

adverse action occurred under circumstances giving rise to an inference of

discrimination.” Walsh v. N.Y.C. Hous. Auth.

, 828 F.3d 70, 75 (2d Cir. 2016) (internal

quotation marks omitted). At the second step, the burden shifts to the employer “to

articulate some legitimate, nondiscriminatory reason for the adverse employment

action.” Id. (internal quotation marks omitted). At the third step, the burden shifts

back and “the plaintiff’s admissible evidence must show circumstances that would19 Indeed, courts already employ the McDonnell Douglas framework to

analyze § 1983 claims. 40 When doing so, however, courts must account

for a § 1983 plaintiff’s higher burden of producing evidence from

which a jury could infer that the individual’s discriminatory intent

was a “but

‐ for” cause of the adverse employment action.

Accordingly, at the third step of the McDonnell Douglas analysis,

a plaintiff asserting a § 1983 claim bears a higher burden in

establishing that the employer’s alternative, nondiscriminatory reason

for the adverse employment action is “pretextual.” To establish

“pretext” under Title VII, a plaintiff need only establish “that

discrimination played a role in an adverse employment decision.” 41 In

other words, a Title VII plaintiff need only prove that the employer’s

stated non

‐ discriminatory reason was not the exclusive reason for the

adverse employment action. 42 By contrast, to establish “pretext” under

§ 1983, a plaintiff must establish that the employer’s stated reason

would not, alone, constitute a sufficient basis for pursuing an adverse

action. In other words, a § 1983 plaintiff must establish that the

be sufficient to permit a rational finder of fact to infer that the defendant’s

employment decision was more likely than not based in whole or in part on

discrimination.” Id. (internal quotation marks omitted).

40 Raspardo

, 770 F.3d at 125 (“[A] § 1983 claim for sex discrimination is

analyzed under the burden

‐ shifting framework of McDonnell Douglas Corp. v. Green

. . . utilized in Title VII claims.”).

41 Henry v. Wyeth Pharm., Inc.

, 616 F.3d 134, 157 (2d Cir. 2010).

42 Vega

, 801 F.3d at 86 (recognizing that because Title VII “does authorize a

‘mixed motive’ discrimination claim,” a plaintiff in a Title VII case “need not allege

‘but

‐ for’ causation” (internal quotation marks omitted)).20 employer’s stated non

‐ discriminatory reason is either false or

inadequate to support the adverse employment action.

D. Application

We now apply these principles to Naumovski’s two § 1983 sex

discrimination claims against Norris and Scholl.

First, we note that, as employees of public universities acting in

their official capacities, Norris and Scholl are indisputably subject to

suit under § 1983 and are “government officials” for the purposes of

qualified immunity. 43

In this case, however, our review of the District Court’s

(implicit) rejection of Norris’s and Scholl’s claims of qualified

immunity 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

43 See, e.g.

, Faghri v. Univ. of Conn.

, 621 F.3d 92, 98 (2d Cir. 2010) (concluding

that officials of the University of Connecticut were entitled to qualified immunity

in a § 1983 suit brought by a terminated university employee).21 its analysis of Naumovski’s Title VII and § 1983 claims, rendering our

task of reviewing only the § 1983 claims more difficult.

In the absence of a clear District Court ruling, we are left to

reconstruct the logic underlying its decision as best we can. After

doing so, we conclude that no theory can sustain the District Court’s

implicit denial of Defendants’ qualified immunity. We discuss each

possible theory in turn.

1. Disparate Treatment Claim

a. Defendants Acted Pursuant to their Own Sex

‐ Based Animus

The simplest interpretation of Naumovski’s § 1983 claim for

“discrimination and disparate treatment” is that Defendants allegedly

acted to terminate her employment because of animus toward

women. 44 Here, the primary basis for inferring such animus appears

to be Naumovski’s sworn attestation that Norris told her “your

problem is that you’re a single female in your mid

‐ 30s.” 45 Assuming

that Norris made that statement, and that its content could be

44 For the sake of conceptual clarity, we distinguish between two different

forms of discriminatory intent: animus and stereotyping

. By “animus,” we mean

“a bare desire to harm,” Romer v. Evans

, 517 U.S. 620, 634 (1996) (internal ellipses

omitted); and by “stereotyping,” we mean “the supposition that [an

individual] will conform to a [class

‐ based] stereotype” and is therefore less suited

to perform a certain function, Back

, 365 F.3d at 119 (emphasis in original). See note

50 and accompanying text, post

.

45 App. 1374.22 understood to disparage a subset of women, 46 the statement is

insufficient evidence from which a jury could infer Norris’s

discriminatory intent. As we have observed, “stray remarks, even if

made by a decisionmaker, do not constitute sufficient evidence to

make out a case of employment discrimination.” 47 Norris’s one

‐ off

comment is precisely the sort of “stray remark” that is insufficient to

support an inference of discriminatory intent.

The District Court appears to acknowledge that Norris’s alleged

statement, by itself, is insufficient to defeat a motion for summary

judgment. It therefore appeals to “other indicia of discrimination” to

bolster the significance of this otherwise stray comment. 48 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

46 Back

, 365 F.3d at 118 n.7 (recognizing claims where the defendants do not

“discriminate against the class of men or women as a whole but rather treat[]

differently a subclass of men or women” (internal quotation marks omitted;

emphasis in original)).

47 Danzer v. Norden Sys., Inc.

, 151 F.3d 50, 56 (2d Cir. 1998). By contrast, we

have explained that remarks are not “stray” where they are sufficiently repetitive

and severe so as to prove sufficient evidence of discriminatory intent. Specifically,

we have found this to be the case where the remarks “were (1) made repeatedly, (2)

drew a direct link between gender stereotypes and the [adverse employment

decision], and (3) were made by supervisors who played a substantial role in the

decision to terminate.” Back

, 365 F.3d at 124 n.12. Here, only the last is evident.

48 Sp. App. 37.23 to the other. 49 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 generally or any

subcategory of female employees in particular.

Insofar as the District Court denied summary judgment based

on the belief that a reasonable jury could find that Norris and Scholl

acted with discriminatory animus on account of Naumovski’s sex, the

record does not support such a finding. Thus, a claim based on that

theory should not have survived a motion for summary judgment.

b. Sex Stereotyping: Conscious Biased Judgments of Sexual Behavior

Another interpretation of Naumovski’s § 1983 claim is that

Norris and Scholl engaged in invidious sex stereotyping

. 50

49 Id. at 38 (“While defendants Coach Scholl and AD Norris contend they

did not believe the allegations about plaintiff and J.W. to be sexually based,

plaintiff’s version of the facts suggests otherwise.”).

50 To be clear, the sex stereotyping we discuss here is only conscious

stereotyping. As we have explained previously, to establish an Equal Protection

violation, a plaintiff “must prove that she suffered purposeful or intentional

discrimination on the basis of gender.” Back

, 365 F.3d at 118. A claim of

discrimination based on unconscious bias is, by its nature, not “purposeful or

intentional” and therefore inadequate to state a claim under § 1983 and the

Fourteenth Amendment. See note 44, ante.24 On this theory, Norris’s “single female in your mid

‐ 30s”

remark, 51 coupled with Norris’s and Scholl’s allegedly inappropriate

reaction toward the rumors, 52 might raise an inference of sex

stereotyping, especially in light of Naumovski’s apparently

satisfactory performance record. 53 In other words, 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. 54 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.

As a general matter, we agree that a plaintiff may establish a

claim of disparate treatment by demonstrating that an employer acted

51 App. 1374.

52 Id. at 1370 (“Defendant[s] Scholl and Norris not only failed to take

corrective action but gave credence to the false allegations by directing to me [sic]

and other staff to refrain from ‘touching’ players and to avoid ‘closed door’

meetings with players.”).

53 Sp. App. 39 (“[P]laintiff has offered evidence suggesting [that Appellants’

insistence that Naumovski’s work performance declined] was merely a pretext for

her termination; she contends she was never disciplined

. . . .”).

54 At oral argument, counsel for Naumovski characterized this stereotype as

a “spinster,” suggesting that Defendants viewed Naumovski as lonely and in need

of companionship.25 against her because of a conscious belief that, on account of her sex,

she was more likely to have engaged in sexual misconduct. 55

Here, however, Naumovski cannot succeed on such a theory. As

noted above, the claims before us were brought under § 1983 and the

Fourteenth Amendment, not Title VII. Naumovski must therefore

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. 56 As we explained above, a § 1983

plaintiff’s burden at the third stage of the McDonnell Douglas analysis

is not simply to establish that discrimination played some role in her

termination, but that it played a decisive role. In other words,

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. Here, however, we do not think that the evidence, even

construed in the light most favorable to Naumovski, satisfies that

standard.

55 See, e.g.

, Doe v. Columbia Univ.

, 831 F.3d 46, 56 (2d Cir. 2016) (holding that,

under Title IX, the claims of an accused male student plausibly alleging a “pro

‐

female, anti

‐ male bias” in university adjudicatory proceedings survives a motion

to dismiss); see also Doe v. Purdue Univ.

, 928 F.3d 652, 667–670 (7th Cir. 2019).

56 See notes 31–42 and accompanying text, ante

.26 First, Norris’s alleged “single female in your mid

‐ 30s” comment

provides only scant support for the proposition that Norris believed

that single, mid

‐ 30’s women are more prone to engage in sexual

misconduct with a female student

‐ athlete than are their male

counterparts. And as we have explained above, isolated remarks “do

not constitute sufficient evidence to make out a case of employment

discrimination.” 57

Second, Naumovski has not produced competent evidence

establishing that Defendants’ stated reason for her termination—

“performance reasons” 58 —was false or inadequate. Indeed,

Naumovski admits that Scholl informed her of “a concern by some

players that they weren’t being coached equally.” 59 Similarly,

Naumovski admits that at a February meeting, Scholl commented that

Naumovski’s emotional state was “affecting [her] work.” 60

Moreover, while Naumovski points to her satisfactory 2008

‐

2009 performance evaluation as evidence of pretext, Defendants’

account of Naumovski’s subsequent performance issues between

October 2009 and February 2010 remains substantially undisputed.

For instance, Naumovski does not materially dispute that Scholl’s

57 Danzer

, 151 F.3d at 56; see note 47, ante

.

58 App. 1378.

59 Id. at 1376.

60 Id

. at 1377.27 personality and coaching style clashed with her own. 61 On the

contrary, Naumovski’s statement that “my relationship with

Defendant Scholl improved” after the February 9, 2010 meeting

implies that the relationship was in need of improvement. 62

Naumovski has, therefore, failed to produce evidence that would

permit a finding that Defendants’ stated reasons for firing her were

false or insufficient.

In sum, while the District Court concluded that the record

sufficed “to permit a rational finder of fact to infer that defendants’

decision to terminate her was more likely than not motivated in part

by sex

‐ based discrimination,” 63 it did not conclude that a rational

finder of fact could infer that such discrimination was a but

‐ for cause

of her termination. We conclude that the record before us does not

permit a reasonable jury to infer that sex

‐ based stereotyping by

Defendants was a “but

‐ for” cause of Naumovski’s firing.

The record therefore does not support a claim that Defendants’

conduct violated Naumovski’s constitutional rights. Accordingly,

insofar as the District Court interpreted Naumovski as advancing a

“sex stereotyping” theory of sex discrimination, it erred in denying

Defendants’ motion for summary judgment.

61 Id. at 681–82, 1339.

62 Id. at 1377.

63 Sp. App. 39 (emphasis added).28 c. Discrimination on the Basis of Sexual Orientation

Naumovski’s complaint does not explicitly allege sexual

orientation discrimination in its enumeration of her § 1983 claims. 64

Nevertheless, the District Court appears to have so interpreted her

claims. Indeed, the District Court concluded that “Plaintiff has

established that she is a member of several protected classes including

. . . being perceived as gay.” 65

We need not decide whether the District Court erred in so

construing Naumovski’s complaint. Even if Naumovski had stated a

sexual orientation discrimination claim, Defendants would have

qualified immunity from such a claim. 66

To the extent the District Court relied on our recent en banc

decision in Zarda v. Altitude Express, Inc. in recognizing Naumovski’s

arguable sexual orientation discrimination claims, 67 it erred for at least

64 App. 20.

65 Sp. App. 37.

66 At oral argument, Naumovski appeared to abandon claims for sexual

orientation discrimination. It was unclear, however, whether she simply forfeited

her claims of sexual orientation discrimination under Title VII ( i.e.

, the type of claim

found to be cognizable in Zarda v. Altitude Express, Inc.

, 883 F.3d 100 (2d Cir. 2018)

(en banc)), which the District Court had already dismissed, or whether she also

sought to forfeit her claims of sexual orientation discrimination under the Equal

Protection Clause. In light of this ambiguity, we address the Equal Protection

theory as well.

67 883 F.3d 100, 107 (2d Cir. 2018) (en banc), cert. granted

, 139 S. Ct. 1599 (Apr.

22, 2019) (No. 17

‐ 1623).29 two reasons. First, Zarda specifically addressed the question of

whether Title VII prohibits sexual orientation discrimination. It did not

address whether the Constitution prohibits sexual orientation

discrimination. Thus, Zarda is only “clearly established law” for

statutory sexual orientation discrimination claims under Title VII. It

does not, however, “clearly establish” constitutional ( i.e. § 1983) sexual

orientation discrimination claims.

Second, even if it were reasonable for the District Court to

interpret Zarda as establishing a sexual orientation discrimination

claim under the Constitution, 68 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. 69 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. Insofar as the District Court

relied on Zarda

, therefore, Defendants were surely entitled to qualified

immunity. 70

68 See id. at 122 (“We now conclude that sexual orientation discrimination is

rooted in gender stereotypes and is thus a subset of sex discrimination.”).

69 See Simonton v. Runyon

, 232 F.3d 33, 35 (2d Cir. 2000) (“Title VII does not

prohibit harassment or discrimination because of sexual orientation.”), overruled

by Zarda

, 883 F.3d 132.

70 See Ganek

, 874 F.3d at 80.30 Nor could the District Court rely on freestanding constitutional

principles separate from Zarda

. To date, neither this court nor the

Supreme Court has recognized § 1983 claims for sexual orientation

discrimination in public employment. Moreover, when the conduct in

this case occurred, neither of the Supreme Court’s landmark same

‐ sex

marriage cases— United States v. Windsor 71 and Obergefell v. Hodges 72

—

had been decided. It was, therefore, not yet clear that all state

distinctions based on sexual orientation were constitutionally

suspect. 73

Thus, even if it is possible today that sexual orientation

discrimination in public employment may be actionable under § 1983,

at the time of the challenged conduct here such a constitutional

prohibition was not yet “clearly established.” 74 Accordingly,

71 570 U.S. 744 (2013).

72 135 S. Ct. 2584 (2015).

73 To be sure, the Supreme Court had already begun to scrutinize laws that

reflected “animosity” toward gays. See Romer v. Evans

, 517 U.S. 620, 634 (1996); see

also Lawrence v. Texas

, 539 U.S. 558, 582 (2003) (O’Connor, J., concurring) (“Moral

disapproval of this group, like a bare desire to harm the group, is an interest that is

insufficient to satisfy rational basis review under the Equal Protection Clause.”).

Here, however, Naumovski has alleged no such class

‐ based animosity or desire to

harm. Nor could Naumovski have challenged such discrimination on a “class of

one” theory, simply on the basis that her termination was individually arbitrary.

See Engquist v. Or. Dep’t of Agric.

, 553 U.S. 591 (2008) (rejecting “class

‐ of

‐ one” equal

protection claims brought under the Fourteenth Amendment in the context of

public employment).

74 White, 137 S. Ct. at 552.31 Defendants were entitled to qualified immunity on discrimination

claims based on an arguable sexual orientation theory.

d. Liability for Students’ Discriminatory Intent

As we explained above, we do not think Naumovski has

established that Defendants’ own discriminatory animus was a “but

‐

for” cause of her termination. Nonetheless, the District Court’s

Memorandum

‐ Decision and Order may be read to suggest that

Defendants are liable for terminating Naumovski pursuant to the

discriminatory intent of the students circulating the rumors. 75

Here again, however, the distinctions between Title VII and

§ 1983 are crucial.

A Title VII plaintiff can succeed on a discrimination claim

against an employer “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.” 76 Even in Title VII retaliation cases (which

75 See Sp. App. 38 (“Norris learned about the anonymous, vulgar letter

describing a sexual relationship between Naumovski and student athlete J.W.

immediately prior to firing her

. . . . Such inferences are enough to satisfy

Namovski’s minimal burden on a prima facie case.”).

76 Holcomb v. Iona Coll

., 521 F.3d 130, 143 (2d Cir. 2008) (internal quotation

marks omitted); see also 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”).32 require a higher standard of causation than disparate treatment

cases 77 ), we have held that if an employee “manipulates an employer

into acting as a mere conduit for his retaliatory intent,” the employee’s

intent can be imputed to the employer under a “negligence” ( i.e., a

“knew or should have known”) standard. 78 And under Title VII, we

have adopted agency principles to impute the behavior of student

‐

athletes to their coaches. 79

Here, we assume arguendo that students’ malicious false

accusations of sexual misconduct by Naumovski may raise an

inference of sex

‐ based animus. 80 Accordingly, if the student athletes

who circulated false rumors thereby manipulated Defendants “into

77 Nassar

, 570 U.S. at 352 (“Title VII retaliation claims require proof that the

desire to retaliate was the but

‐ for cause of the challenged employment action.”).

78 Vasquez

, 835 F.3d at 272, 274

‐ 75 (internal quotation marks omitted). We

refer to such a theory of liability as a “cat’s paw” theory. Similar agency principles

underly the court’s Title VII “hostile work environment” jurisprudence: when

supervisors “knew or should have known” about severe or pervasive co

‐ worker

harassment and fail to take remedial action, the co

‐ workers’ discriminatory

treatment is imputed to the employer. See Burlington Indus., Inc. v. Ellerth

, 524 U.S.

742, 758–59 (1998) (explaining that under ordinary principles of tort, an employer

is liable when the tort is attributable to the employer’s own negligence).

79 Summa v. Hofstra Univ.

, 708 F.3d 115, 124 (2d Cir. 2013).

80 Cox v. Onondaga Cty. Sheriff ʹ s Dep ʹ 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”).33 acting as a mere conduit” 81 for the students’ sex discriminatory

animus— i.e.

, if Defendants’ negligence led them to terminate

Naumovski as a result of the student

‐ athletes’ discriminatory intent—

Binghamton’s liability under Title VII is at least arguable.

Here, however, the claims on appeal were brought under § 1983

and the Fourteenth Amendment rather than Title VII. Accordingly,

Naumovski’s claim fails for two reasons. First, even if we assume that

those students who initiated false rumors relied on Naumovski’s sex

in circulating the rumors, Naumovski failed to adduce evidence

showing that her sex qualified as a “but

‐ for” cause, rather than simply

a motivating factor, of Defendants’ adverse employment action. As we

have explained above, § 1983 claims require “but

‐ for” causation.

Second, while the Supreme Court instructs that traditional agency

principles can determine liability under Title VII, 82 no comparable

vicarious liability applies to claims brought under § 1983. 83

81 Vasquez

, 835 F.3d at 272 (internal quotation marks omitted).

82 Ellerth

, 524 U.S. at 754 (“We turn to principles of agency law, for the term

‘employer’ is defined under Title VII to include ‘agents.’” (quoting 42 U.S.C.

§ 2000e(b)).

83 Monell v. Dep ʹ t of Soc. Servs. of City of N.Y.

, 436 U.S. 658, 707 (1978) (holding

that § 1983 liability cannot be premised on “ respondeat superior or any other

principle of vicarious liability”).34 Thus any claims based on Defendants’ negligent facilitation of

students’ sex discriminatory intent necessarily fails, and Defendants

should not have been denied summary judgment on that theory. 84

2. Hostile Work Environment

Finally, Naumovski’s § 1983 “hostile work environment” claim

fails for similar reasons. Here too, the District Court appears to have

conflated the § 1983 and Title VII inquiries, 85 and thus mistakenly

denied summary judgment to Defendants.

84 While a government official cannot be held vicariously liable under § 1983,

an official may still be personally liable for knowingly furthering the discriminatory

intent of a third party. See Knight v. Nassau Cty. Civil Serv. Comm’n

, 649 F.2d 157, 162

(2d Cir. 1981) (holding that assigning an employee to minority recruitment against

his wishes based on the perceived racial preferences of prospective minority

applicants constituted “a violation of equal protection, remediable under 42 U.S.C.

[§] 1983”); see also Pleener v. N.Y.C. Bd. of Educ.

, 311 F. App’x 479, 482 (2d Cir. 2009)

(non

‐ precedential summary order) (“We agree that federal law does not permit an

employer to discriminate based on race to accommodate the actual or perceived

invidious biases of its clientele.”) (relying on Knight, 649 F.2d at 162).

85 Sp. App. 40

– 41. In fact, the District Court merged its analysis of Title VII,

§ 1983, and Title IX

. We need not discuss at length the differences among these three

claims. We note simply that an educational institution is liable for money damages

under Title IX when an official “with authority to take corrective action to end the

discrimination” is given “actual notice” of the discrimination and responds with

“deliberate indifference.” Gebser v. Lago Vista Indep. Sch. Dist.

, 524 U.S. 274, 290–91

(1989). This standard lies somewhere between the standards applicable to § 1983

and Title VII; the former requires that each individual defendant act with

discriminatory purpose, while the latter incorporates agency principles to

determine when an employer is liable for its agents.35 The District Court devoted just two sentences to justifying this

conflation, citing Raspardo v. Carlone 86 and Demoret v. Zegarelli 87 for the

proposition that the “standard for showing a hostile work

environment under § 1983 and the Equal Protection Clause [is]

essentially the same as under Title VII.” 88

Our precedents do not support such a sweeping statement. As

explained above, § 1983 differs from Title VII in several respects,

including the standard of causation and the availability of vicarious

liability. 89 Our precedents, including Raspardo and Demoret

, simply

indicate that, for claims arising under both laws, the level of severity to

demonstrate a hostile work environment is similar. 90 Our precedents

do not

, however, imply identity between the claims in all other

respects.

In this case, the differences between viable hostile work

environment claims under Title VII and under § 1983 are crucial. This

86 770 F.3d 97, 114 (2d Cir. 2014).

87 451 F.3d 140, 149 (2d Cir. 2006).

88 Sp. App. 40–41.

89 See notes 26–42 and accompanying text, ante.

90 See, e.g.

, Demoret

, 451 F.3d at 149 (holding that to establish a claim of hostile

work environment, a plaintiff must produce evidence that “the workplace is

permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently

severe or pervasive to alter the conditions of the victim’s employment and create

an abusive working environment” (quoting Harris v. Forklift Sys., Inc

., 510 U.S. 17,

21 (1993)).36 is because Naumovski has failed to produce evidence, required for a

§ 1983 claim, establishing: (1) that Defendants’ own conduct (as

opposed to that of the students) created a sufficiently hostile work

environment; and (2) that Defendants’ conduct was a “but

‐ for” cause

of the hostile work environment. Instead, Naumovski (and the District

Court) relied on the (Title VII) principle that a negligent employer may

be held liable for the conduct of a supervisee. Naumovski and the

District Court then imputed the allegedly sex

‐ discriminatory conduct

of student

‐ athletes to the Defendants. 91 Even if this might be

permissible in the Title VII context, it is legal error with respect to

§ 1983 claims.

Because Naumovski has failed to produce evidence that could

establish that Defendants themselves clearly violated her Fourteenth

Amendment rights, Defendants were entitled to summary judgment

on the basis of qualified immunity on the hostile work environment

claim as well.

III. CONCLUSION

To summarize, we hold as follows:

(1) Section 1983 claims for discrimination in public employment

require plaintiffs to establish that the defendant’s

91 Sp. App. 41–43 (citing Quinn v. Green Tree Credit Corp., 159 F.3d 759, 763

(2d Cir. 1998)).37 discriminatory intent was a “but

‐ for” cause of the adverse

employment action.

(2) Section 1983 claims for discrimination in public employment

cannot be based on a respondeat superior or “cat’s paw” theory

to establish a defendant’s liability.

(3) 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

For the foregoing reasons, we REVERSE the District Court’s

April 17, 2018 order with respect to the § 1983 claims against

Defendants, we ENTER judgment for Defendants, and we REMAND

the cause for further proceedings consistent with this opinion.