This week, the Second Circuit Court of Appeals reinstated Lauren Summa’s retaliation case against Hofstra University. Initially filed in 2008, Summa’s lawsuit arose out of sexual harassment she experienced as part of her job as the graduate student manager of the football team. She alleged that not only did coaching staff fail to adequately respond to her complaints of certain incidents that created a hostile environment for her, she was also replaced as the student manager the following season, as well as denied a graduate student position elsewhere on campus, in retaliation for having complained about football players’ harassing behavior. A federal district court dismissed both her harassment and retaliation claims after concluding that she had failed to provide sufficient evidence to support either claim. The Court of Appeals’ decision this week agreed with the district court that the university’s response to the harassing incident was sufficient. But the court reversed the prior dismissal of Summa’s retaliation claim, allowing that claim to move forward toward trial.
Title VII, which applies coextensively with Title IX in this case because Summa was a student-employee, requires retaliation plaintiffs to prove, in the first instance, that they engaged in protected activity, that they experienced adverse employment action, and that the latter happened because of the former. The appellate court determined that Summa had the requisite “good faith belief” that her complaints to campus safety and to the University’ Equality Office about the football players’ behavior constituted a complaint about a legally actionable harassment. Retaliation plaintiffs are protected even when it turns out that what they complained about is not actually a violation of law. The fact that the university responded to Summa’s complaints, such as by investigating an incident that took place on the bus, and by requiring the athletics staff to undergo harassment training, also reflects on the reasonableness of her belief that something unlawful had occurred.
The appellate court also found sufficient evidence on which a jury could find that Summa was not rehired in the spring because of her complaints. The district court had rejected the possibility of a connection, citing a lack of proof that the staff member directly responsible for discontinuing Summa’s employment actually knew that she had complained about harassment. But given that Summa’s position was supposed to continue in the spring, someone must have told that staff member to hire a new manager instead of letting Summa continue. It would be reasonable for a jury to infer that this order came from the head football coach, who of course knew about Summa’s complaints. Summa’s termination also happened close enough in time to suggest it was connected to her having complained, despite the passage of four months between them. Since Summa complained at the end of the fall season and was terminated at the beginning of the spring season, the adverse action took place at the earliest opportunity for retaliation to occur. Moreover, the court agreed that Summa’s exclusion from subsequent employment in other departments of the university happened sufficiently close in time to be related to the subsequent steps she took, such as filing this lawsuit, to continue to press her case.
Hofstra argued that Summa was not rehired in the spring for reasons other than retaliation — namely, that she had failed to indicate her intention to continue in the job. But the court found this claim belied by documentary evidence, such as emails between Summa and athletics staff discussing the stipend she would receive for the spring season. And as for Hofstra’s claim that Summa did not receive employment elsewhere in the university due to lack of qualifications, the court cited evidence suggesting was singled out for an additional hiring interview that was designed to turn up evidence undermining of her qualifications.
For these reasons, the court reinstated Summa’s retaliation claim against Hofstra, and she can now proceed to trial. However, I’d be surprised if the parties decided not to reach a settlement instead. Not only are settlements typical in these sorts of cases, my guess is that that the wages Summa would have received had her student-employment continued, her likely measure of damages, are not so high as to justify the high cost of trial.
Decision: Summa v. Hofstra University, 2013 WL 627710 (2d Cir. Feb. 20, 2012).