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Tennis coach’s sex discrimination case against university reinstated

Posted On: Aug. 15, 2019 2:11 PM CST

Discrimination ruling

A federal appeals court has reinstated discrimination charges filed by a university tennis coach who was fired for alleged sexual harassment, citing “procedural irregularities” in his termination.

In April, 2016, about four months after Jeffrey Menaker joined Hofstra in Hempstead, New York, as its tennis director and head coach for its men’s and women’s varsity tennis teams, a Hofstra first-year student who was a women’s varsity tennis team member approached him to discuss her athletic scholarship, according to Wednesday’s ruling by the 2nd U.S. Circuit Court of Appeals in New York in Jeffrey Menaker v. Hofstra University.

The student told him that Mr. Menaker’s predecessor had promised to increase her then-45% athletic scholarship to a full scholarship in the fall of 2016, according to the ruling. After he investigated the matter, Mr. Menaker informed the student there was no record of any such promise.

In July 2016, Hofstra received a letter from the student’s attorney charging him with sexual harassment and threats that were “severe, pervasive, hostile and disgusting.” Mr. Menaker denied all the letter’s accusations but was fired in September 2016 for “unprofessional conduct.”

Mr. Menaker filed suit in U.S. District Court in Central Islip, New York, on charges including violation of Title VII of the Civil Rights Act of 1964. The District Court dismissed the case, stating Mr. Menaker had failed to plead acts that supported a plausible inference his sex played a role in his termination. The ruling was overturned by a unanimous three-judge appeals court panel.

The District Court “failed to draw all reasonable inferences in Menaker’s favor, relying instead on impermissible factual findings,” said the ruling. Mr. Menaker “has clearly alleged that he suffered an adverse employment action, and that his action came in response to accusations (if not an actual finding) of sexual harassment …The only remaining question, then, is whether his firing followed a sufficiently irregular process to raise an inference of bias.”

The ruling held that it did. Mr. Menaker “has pleaded facts that, when taken as true, reflect a clearly irregular investigative and adjudicative process,” including that Mr. Menaker alleges the college “failed to interview relevant witnesses whom he brought to the University’s attention” and disregarded its written harassment policy.

“Even were we to accept at face value Hofstra’s assertion that the termination was based solely on a determination that Mr. Menaker engaged in ‘unprofessional conduct’ (which we may not), Hofstra’s abandonment of its written Harassment Policy here would still be irregular,” said the ruling, in vacating the lower court ruling and remanding the case for further proceedings.

The appeals court ruling said on remand that the District Court should consider Mr. Menaker’s case under the “cat’s paw” theory that Hofstra University had “served as a conduit for (the student’s) discriminatory intent and that this intent may be imputed to Hofstra.”

Under the cat’s paw theory adopted by the U.S. Supreme Court, employers can be held liable for discriminatory conduct even if the person who made the decision was not discriminatory, but relied in part on those who were.

Hofstra’s attorney, Jill L. Rosenberg, a partner with Orrick, Herington & Sutcliff LLP in New York, said in a statement the 2nd Circuit “has ruled that the complaint should not be dismissed at this early stage of the case, but we are confident that Hofstra’s actions and decisions will be upheld once the merits of this matter are considered in the lower court. We look forward to demonstrating there was no discrimination in the university’s actions.”

Mr. Menaker’s attorney had no comment.