18‐1556‐cv (L)
Naumovski v. Norris




                                  In the
             United States Court of Appeals
                         for the Second Circuit


                             AUGUST TERM 2018

                               No. 18‐1556‐cv
                               No. 18‐2663‐cv

                           ELIZABETH NAUMOVSKI
                              Plaintiff‐Appellee,

                                     v.

                      JAMES NORRIS AND NICOLE SCHOLL,
                            Defendants‐Appellants.



             On Appeal from the United States District Court
                 for the Northern District of New York



                           ARGUED: JUNE 18, 2019
                          DECIDED: AUGUST 12, 2019



Before: WINTER, CABRANES, and RAGGI, Circuit Judges.
      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.




                         MARGARET JOANNE FOWLER (Jared R, Mack,
                         on the brief), Levene Gouldin & Thompson,
                         LLP, Vestal, NY, for Defendants‐Appellants.

                         A.J. BOSMAN, Bosman Law Firm L.L.C.,
                         Rome, NY, for Plaintiff‐Appellee.




JOSÉ A. CABRANES, Circuit Judge:

      We consider here whether the termination of an employee,
allegedly in response to malicious rumors of sexual misconduct, can




                                   2
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 against




                                   3
Defendants, we ENTER judgment for Defendants, and we REMAND
the cause for further proceedings consistent with this opinion.

                            1. BACKGROUND1

       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).




                                        4
       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.




       2Naumovski 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.




                                      5
       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.



       3App. 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.




                                        6
      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 Naumovski




                                     7
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, 1378




                                     8
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”).




                                           9
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).




                                              10
       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).




                                         11
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)).
       18Kelsey 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”).
       19Ganek 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)).




                                             12
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.
       21The 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. CONST. amend.
XIV.




                                        13
        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

        22See 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).
        24Id. 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).

        See, e.g., Patterson v. Cty. of Oneida, 375 F.3d 206, 225–26 (2d Cir. 2004)
        26

(enumerating several differences between Title VII and § 1983 claims).




                                             14
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).
        28Id. (emphasis added); see also Feingold v. New York, 366 F.3d 138, 159 n.20
(2d Cir. 2004).
        29See 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.”).

         Raspardo, 770 F.3d at 115 (emphasis in original); see also Littlejohn v. City of
        30

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)).




                                            15
“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.




                                            16
       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)).




                                           17
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 would




                                         18
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)).




                                            19
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


        43See, 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).




                                           20
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



       44For 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.




                                         21
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.




                                         22
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.




                                      23
       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 . . . .”).
       54At oral argument, counsel for Naumovski characterized this stereotype as
a “spinster,” suggesting that Defendants viewed Naumovski as lonely and in need
of companionship.




                                         24
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.




       55See, 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.




                                          25
      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.




                                            26
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).




                                        27
        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.
        66At 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.
        67883 F.3d 100, 107 (2d Cir. 2018) (en banc), cert. granted, 139 S. Ct. 1599 (Apr.
22, 2019) (No. 17‐1623).




                                           28
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




       68See 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.




                                         29
       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. Windsor71 and Obergefell v. Hodges72—
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.




                                          30
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


       75See 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.”).
       76Holcomb 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”).




                                         31
require a higher standard of causation than disparate treatment
cases77), 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).
       80Cox v. Onondaga Cty. Sheriffʹs Depʹt, 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”).




                                           32
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).

         Ellerth, 524 U.S. at 754 (“We turn to principles of agency law, for the term
        82

‘employer’ is defined under Title VII to include ‘agents.’” (quoting 42 U.S.C.
§ 2000e(b)).

         Monell v. Depʹt of Soc. Servs. of City of N.Y., 436 U.S. 658, 707 (1978) (holding
        83

that § 1983 liability cannot be premised on “respondeat superior or any other
principle of vicarious liability”).




                                           33
       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.




                                           34
        The District Court devoted just two sentences to justifying this
conflation, citing Raspardo v. Carlone86 and Demoret v. Zegarelli87 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.

         See, e.g., Demoret, 451 F.3d at 149 (holding that to establish a claim of hostile
        90

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)).




                                                35
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)).




                                         36
         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.




                                   37
