Elana Back v. Hastings on Hudson Union Free School District, John J. Russell, Anne Brennan, Marilyn Wishnie

In 1998, Plaintiff-Appellant Elana Back was hired as a school psychologist at the Hillside Elementary School (“Hillside”) on a three-year tenure track. At the end of that period, when Back came up for review, she was denied tenure and her probationary period was terminated. Back subsequently brought this lawsuit, seeking damages and injunctive relief under 42 U.S.C. § 1983 (2000). She alleged, that the termination violated her constitutional right to equal protection of the laws. Defendants-Appellees contend that Back was fired because she lacked organizational and interpersonal skills. Back asserts that the real reason she was let go was that the defendants presumed that she, as a young mother, would not continue to demonstrate the necessary devotion to her job, and indeed that she could not maintain such devotion while at the same time being a good mother.

This appeal thus poses an important question, one that strikes at the persistent “fault line between work and family — precisely where sex-based overgeneralization has been and remains strongest.” Nev. Dep’t of Human Res. v. Hibbs, 538 U.S. 721, 123 S.Ct. 1972, 1983, 155 L.Ed.2d 953 (2003). It asks whether stereotyping about the qualities of mothers is a form of gender discrimination, and whether this can be determined in the absence of evidence about how the employer in question treated fathers. We answer both questions in the affirmative. We also conclude that the plaintiff has asserted genuine issues of material fact in her gender discrimination claim against two of the individual defendants, Marilyn Wishnie and Ann Brennan. No evidence, however, has been proffered that is sufficient to support liability on the part of the School District or Superintendent Russell. Finally, we hold that qualified immunity does not attach to defendants Brennan and Wishnie, because the right to be free from discriminatory sex stereotyping was well established at the time of the alleged violation.

We therefore affirm the district court’s grant of summary judgment to the School District and to Russell, but vacate its grant of summary judgment to Wishnie and Brennan, and, as to them, remand the case for trial.

A. Background

The following facts, construed as they must be in the light most favorable to the plaintiff, see Hotel Employees & Rest. Employees Union, Local 100 v. City of New York Dep’t of Parks & Recreation, 311 F.3d 534, 543 (2d Cir.2002), were adduced in the court below.

*114 i Back’s Qualifications

As the school psychologist at Hillside Elementary School, Elana Back counseled and conducted psychological evaluations of students, prepared reports for the Committee on Special Education, assisted teachers in dealing with students who acted out in class, worked with párents on issues related to their children, and chaired the “Learning Team,” a group made up of specialists and teachers which conducted intensive discussions about individual students. Defendanb-Appellee Marilyn Wishnie, the Principal of Hillside, and defendant-appellee Ann Brennan, the Director of Pupil Personnel Services for the District, were Back’s supervisors. They were responsible for- establishing performance goals for her position, and evaluating Back’s work against these standards.

In the plaintiffs first two years at Hillside, Brennan and Wishnie consistently gave her excellent evaluations. In her first annual evaluation, on a scale where the highest score was “outstanding,” and the second highest score was “superior,” Back was deemed “outstanding” and “superior” in almost all categories, and “average” in only one. 1 “Superior” was, according to the performance instrument, the “standard for consideration for obtaining tenure in Hastings.” Narrative evaluations completed by Wishnie and Brennan during this time were also uniformly positive, attesting, for example, that Back had “served as a positive child advocate throughout the year,” and had “successfully adjusted to become a valued and valuable member of the school/community.”

In her second year at Hillside, Back took approximately three months of maternity leave. After she returned, she garnered another “outstanding” evaluation from Brennan, who noted that she was “very pleased with Mrs. Back’s performance during her second year at Hillside.” Other contemporaneous observations also resulted in strongly positive feedback, for example, that Back “demonstrate^] her strong social/emotional skills in her work with parents and teachers, and most especially with students,” and that she was “a positive influence in many areas, and continues to extend a great deal of effort and commitment to our work.” In her annual evaluation, Back received higher marks than the previous year, with more “out-standings” and no “averages.” The narrative comments noted that she “continues to serve in an outstanding manner and provides excellent support for our students,” and that her “commitment to her work and to her own learning is outstanding.” At the beginning of Back’s third year at Hillside, she again received “outstanding” and “superior” evaluations from both Brennan and Wishnie.

Defendanb-Appellant John Russell, the Superintendent of the School District, also conducted ongoing evaluations of Back’s performance. In January 1999, he observed a Learning Team meeting, and reported that Back had managed the meeting “in a highly efficient and professional manner,” and that it was “obvious [that she] was well prepared.” He rated her performance “superior.” In February 2000, he again sat in on a Learning Team meeting, and again indicated that Back’s performance was “superior.” He also noted that she was effective without being overly directive, and worked well with the other members of the team. In addition, according to Back, all three individual defendants repeatedly assured her through *115 out this time that she would receive tenure.

ii. Alleged Stereotyping

Back asserts that things changed dramatically as her tenure review approached. The first allegedly discriminatory comments came in spring 2000, when Back’s written evaluations still indicated that she was a very strong candidate for tenure. At that time, shortly after Back had returned from maternity leave, the plaintiff claims that Brennan, (a) inquired about how she was “planning on spacing [her] offspring,” (b) said “ ‘[pjlease do not get pregnant until I retire,’ ” and (c) suggested that Back “wait until [her son] was in kindergarten to have another child.”

Then, a few months into Back’s third year at Hillside, on December 14, 2000, Brennan allegedly told Back that she was expected to work until 4:30 p.m. every day, and asked ‘“What’s the big deal. You have a nanny. This is what you [have] to do to get tenure.” ’ Back replied that she did work these hours. And Brennan, after reportedly reassuring Back that there was no concern about her job performance, told her that Wishnie expected her to work such hours. But, always according to Back, Brennan also indicated that Back should “maybe ... reconsider whether [Back] could be a mother and do this job which [Brennan] characterized, as administrative in nature,” and that Brennan and Wishnie were “concerned that, if [Back] received tenure, [she] would work only until 3:15 p.m. and did not know how [she] could possibly do this job with children.”

A few days later, on January 8, 2001, Brennan allegedly told Back for the- first time that she might not support Back’s tenure because of what Back characterizes as minor errors that she made in a report. According to Back, shortly thereafter Principal Wishnie accused her of working only from 8:15 a.m. to 3:15 p.m. and never working during lunch. When Back disputed this,. Wishnie supposedly replied that “this was not [Wishnie’s] impression and ... that she did not know how she could perform my job with little ones. She told me that she worked from 7 a.m. to .7 p.m. and .that she expected the same from me. If. my family was my priority, she stated, maybe this was not the job for me.” A week later, both Brennan and Wishnie reportedly told Back that this was perhaps not the job' or the school district for her if she had “little ones,” and that it was “not possible for [her] to be a good mother and have this job.” The two also allegedly remarked that it would be harder to fire Back if she had tenure, and wondered “whether my apparent commitment to my job was an act. They stated that once I obtained tenure, I would not show the same level of commitment I had shown because I had little ones at home. They expressed concerns about my child care arrangements, though these had never caused me conflict .with school assignments.” They did not — as Back told the story — discuss with her any concerns with her performance at that time.

Back claims that in March, Brennan and Wishnie reiterated that her job was “not for a mother,” that they were worried her performance was “just an ‘act’ until I got tenure,” and that “because I was a young mother, I would not continue my commitment to the work place.” On April 30, 2001, Brennan and Wishnie purportedly repeated the same concerns about her ability to balance work and family, and told Back that they would recommend that she not be granted tenure and that Superintendent Russell would follow their recommendation. They reportedly also “stated they wanted another year to assess the child care situation.”

*116 Brennan and Wishnie both testified in depositions that they never questioned Back’s ability to combine work and motherhood, and did not insinuate that thfey thought the commitment that Back had previously demonstrated was an “act.” They contended, instead, that Back was told at these meetings that both had concerns about her performance, and that she would need to make progress in certain areas in order to receive tenure.

Hi. Denial of Tenure

Back retained counsel in response to Brennan and Wishnie’s alleged statements, and in a letter dated May 14, 2001, informed Russell of these comments, and of her fear that they reflected attitudes that would improperly affect her tenure review. 2 On May 29, 2001, Brennan and Wishnie sent a formal memo to Russell informing him that they could not recommend Back for tenure. Their reasons included (a) that although their formal reports had been positive, their informal interactions with her had been less positive, (b) that there were “far too many” parents and teachers who had “serious issues” with the plaintiff and did not wish to work with her, and (c) that she had persistent difficulties with the planning and organization of her work, and with inaccuracies in her reports, and that she had not shown improvement in this area, despite warnings.

In a letter dated June 5, 2001, Back’s counsel' informed Russell that Back believed that Brennan and Wishnie were retaliating against her, citing, inter alia, that Brennan was “openly hostile” towards Back, that she falsely accused Back of mishandling cases and giving false information, that she increased Back’s workload, and that positive letters were removed from Back’s file.

On or around June 13, 2001, Wishnie and Brennan filed the first negative evaluation of Back, which gave her several “below average” marks and charged her with being inconsistent, defensive, difficult to supervise, the source of parental complaints, and inaccurate in her reports. Their evaluation, which was submitted to Russell, concluded that Back should not be granted tenure. Around the same time, several parents who had apparently complained about Back were encouraged by Russell to put their concerns in writing. Several parents submitted letters, reporting a range of complaints about Back’s work, including that she was defensive, immature, unprofessional, and had misdiagnosed children.

On June 18, 2001, Russell informed Back by letter that he had received Wishnie and Brennan’s annual evaluation, and was recommending to the Board of Education that her probationary appointment be terminated. The union filed a grievance on Back’s behalf, claiming that Brennan and Wish-nie’s discriminatory comments tainted the termination decision. The grievance review process first involved an evaluation by Wishnie, who denied making any comments about the incompatibility of Back’s work and motherhood, and concluded that the union grievance was without merit. At the second stage of the process, a panel, consisting of two teachers in the district and an administrator, was convened by the Board of Education. The group examined the plaintiffs file, interviewed Back, Brennan, and Wishnie, and reported to Russell in July that it agreed with his recommendation not to. grant plaintiff tenure. • In September 2001, the Board notified Back *117 that her probationary appointment would be terminated. 3

iv. Proceedings in the District Court

In October 2001, Back brought this claim in the United States District Court for the Southern District of New York under 42 U.S.C. § 1983, alleging gender discrimination in violation of the Equal Protection Clause. 4 She also claimed violations of New York State’s Executive Law. The district court granted summary judgment for the defendants, on the grounds (a) that this Circuit had not held that a “sex plus” claim can be brought under § 1983, (b) that defendants’ comments were “stray remarks” which did not show sex discrimination, (c) that Back had failed to prove that the reasons given for not granting her tenure were pretextual, (d) that there was no genuine issue of material fact supporting § 1983 liability against Russell and the School District, and (e) that qualified immunity justified summary judgment in favor of the three individual defendants, on the grounds that Brennan and Wishnie had objective 'cause to deny Back tenure, and that Russell had relied upon their evaluations and had conducted an impartial review. Judge Brieant also dismissed the state law claims without prejudice to their being pursued in state court. 5 This appeal followed.

DISCUSSION

Plaintiff presses three arguments on appeal. First, she contends that an adverse employment consequence imposed because of 'stereotypes about motherhood is a form of gender discrimination which contravenes the Equal Protection Clause. Second, she argues that the district court wrongly resolved disputed issues of material fact, and that summary judgment was inappropriate both as to the discrimination claim and as to the liability of the School District , and Russell. Finally, the plaintiff insists that the district court erred in finding that Brennan, Wishnie, and Russell were entitled to qualified immunity. We consider each argument in turn.

A. Theory of Discrimination

Individuals have a clear right, protected by the Fourteenth Amendment, to be free from discrimination on the basis of sex in public employment. See Davis v. Passman, 442 U.S. 228, 234-35, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979); Rodriguez v. Bd. of Educ., 620 F.2d 362, 366 (2d Cir.1980). “[A]n employment discrimination plaintiff alleging the violation of a constitutional right may bring suit under § 1983 alone, and is not required to plead concurrently a violation of Title VII [of the Civil *118 Rights Act of 1964, 42 U.S.C. § 2000e et seq.].” Annis v. County of Westchester, 36 F.3d 251, 255 (2d Cir.1994); see also Saulpaugh v. Monroe Cmty. Hosp., 4 F.3d 134, 143 (2d Cir.1993). Back does not allege a violation of Title VII, nor does she allege that the defendants violated her constitutional rights to have and care for children. 6 We therefore consider only whether she has alleged facts that can support a finding of gender discrimination under the Equal Protection Clause.

To make out such a claim, the plaintiff must prove that she suffered purposeful or intentional discrimination on the basis of gender. See Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 264-65, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977). Discrimination based on gender, once proven, can only be tolerated if the state provides an “exceedingly persuasive justification” for the rule or practice. United States v. Virginia, 518 U.S. 515, 524, 116 S.Ct. 2264, 135 L.Ed.2d 735 (1996) (internal quotation marks omitted). The defendants in this case have made no claim of justification; thus our inquiry revolves solely around the allegation of discrimination.

In deciding whether Back has alleged facts that could support a finding of discrimination, we must first address the district court’s suggestion, and the defendants’ argument, that Back’s claim is a “gender-plus” claim, 7 and as such, not actionable under § 1983. This contention is without merit. The term “sex plus” or “gender plus” is simply a heuristic. It is, in other words, a judicial convenience developed in the context of Title VII to affirm that plaintiffs can, under certain circumstances, survive summary judgment even when not all members of a disfavored class are discriminated against. 8 Although we have never explicitly said as much, “sex plus” discrimination is certainly actionable in a § 1983 case. The Equal Protection Clause forbids sex discrimination no mat *119 ter how it is labeled. 9 The relevant issue is not whether a claim is characterized as “sex plus” or “gender plus,” but rather, whether the plaintiff provides evidence of purposefully sex-discriminatory acts.

To show sex discrimination, Back relies upon a Price Waterhouse “stereotyping” theory. Accordingly, she argues that comments made about a woman’s inability to combine work and motherhood are direct evidence of such discrimination. In Price Waterhouse, Ann Hopkins alleged that she was denied a partnership position because the accounting firm where she worked had given credence and effect to stereotyped images of women. Price Waterhouse, 490 U.S. at 235-36, 109 S.Ct. 1775. Hopkins had been called, among other things, “ ‘macho’ ” and “ ‘masculine,’ ” was told she needed “ ‘a course at charm school,’ ” and was instructed to “ ‘walk more femininely, talk more femininely, dress more femininely, wear makeup, have her hair styled, and wear jewelry’ ” if she wanted to make partner. Id. at 235, 109 S.Ct. 1775. Six members of the Court agreed that such comments bespoke gender discrimination. See id. at 251, 109 S.Ct. 1775 (“[W]e are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group ....”); id. at 258, 109 S.Ct. 1775 (White, J., concurring); id. at 272-73, 109 S.Ct. 1775 (O’Connor, J., concurring) (characterizing the “failure to conform to [gender] stereotypes” as a discriminatory criterion).

It is the law, then, that “stereotyped remarks can certainly be evidence that gender played a part” in an adverse employment decision. Id. at 251, 109 S.Ct. 1775 (italics omitted). The principle of Price Waterhouse, furthermore, applies as much to the supposition that a woman will conform to a gender stereotype (and therefore will not, for example, be dedicated to her job), as to the supposition that a woman is unqualified for a position because she does not conform to a gender stereotype. Cf. Weinstock v. Columbia Univ., 224 F.3d 33, 44-45 (2d Cir.2000) (suggesting that Price Waterhouse applies where a woman is maltreated for being too feminine, but finding inadequate evidence that plaintiff herself was thus stereotyped), cert. denied, — U.S. —, 124 S.Ct. 53, 157 L.Ed.2d 24 (2003); see also id. at 57 (Cardamone, J., dissenting) (concluding that Price Waterhouse applies whether the plaintiff is stereotyped as too feminine or too masculine, because in both cases, women “face[ ] ... employers [who] demand[ ] that they perform both ‘masculine’ and ‘feminine’ roles, yet perceive[ ] those roles as fundamentally incompatible”).

The instant case, however, foregrounds a crucial question: What consti *120 tutes a “gender-based stereotype”? Price Waterhouse suggested that this question must be answered in the particular context in which it arises, and without undue formalization. We have adopted the same approach, as have other circuits. 10 Just as “[i]t takes no special training to discern sex stereotyping in a description of an aggressive female employee as requiring ‘a course at charm school,’ ” Price Waterhouse, 490 U.S. at 256, 109 S.Ct. 1775, so it takes no special training to discern stereotyping in the view that a woman cannot “be a good mother” and have a job that requires long hours, or in the statement that a mother who received tenure “would not show the same level of commitment [she] had shown because [she] had little ones at home.” These are not the kind of “innocuous words” that we have previously held to be insufficient, as a matter of law, to provide evidence of discriminatory intent. See Weinstock, 224 F.3d at 45.

Not surprisingly, other circuit courts have agreed that similar comments constitute evidence that a jury could use to find the presence of discrimination. See, e.g., Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 57 (1st Cir.2000) (evidence that a direct supervisor had “specifically questioned whether [the plaintiff] would be able to manage her work and family responsibilities” supported a finding of discriminatory animus, where plaintiffs employment was terminated shortly thereafter); Sheehan v. Donlen Corp., 173 F.3d *121 1039, 1044-45 (7th Cir.1999) (holding, in a Pregnancy Discrimination Act case, that a reasonable jury could have concluded that “a supervisor’s statement to a woman known to be pregnant that she was being fired so that she could ‘spend more time at home with her children’ reflected unlawful motivations because it invoked widely understood stereotypes the meaning of which is hard to mistake”); id. at 1044 (remarks by the head of plaintiffs department that “she would be happier at home with her children” provided direct evidence of discriminatory animus).

Moreover, the Supreme Court itself recently took judicial notice of such stereotypes. In an opinion by Chief Justice Rehnquist, the Court concluded that stereotypes of this sort were strong and pervasive enough to justify prophylactic congressional action, in the form of the Family Medical Leave Act:

Stereotypes about women’s domestic roles are reinforced by parallel stereotypes presuming a lack of domestic responsibilities for men. Because employers continued to regard the family as the woman’s domain, they often denied men similar accommodations or discouraged them from taking leave. These mutually reinforcing stereotypes created a self-fulfilling cycle of discrimination that forced women to continue to assume the role of primary family caregiver, and fostered employers’ stereotypical views about women’s commitment to work and their value as employees. Those perceptions, in turn, Congress reasoned, lead to subtle discrimination that may be difficult to detect on a case-by-case basis.

Nev. Dep’t of Human Res. v. Hibbs, 538 U.S. 721, 123 S.Ct. 1972, 1982, 155 L.Ed.2d 953 (2003).

The defendants argue that stereotypes about pregnant women or mothers are not based upon gender, but rather, “gender plus parenthood,” thereby implying that such stereotypes cannot, without comparative evidence of what was said about fathers, be presumed to be “on the basis of sex.” Hibbs makes pellucidly clear, however, that, at least where stereotypes are considered, the notions that mothers are insufficiently devoted to work, and that work and motherhood are incompatible, are properly considered to be, themselves, gender-based. Hibbs explicitly called the stereotype that “women’s family duties trump those of the workplace” a “gender stereotype,” id. at 1979 n. 5 (emphasis added), and cited a number of state pregnancy and family leave acts — including laws that provided only pregnancy leave— as evidence of “pervasive sex-role stereotype that caring for family members is women’s work,” id. at 1979-80 & nn. 5-6.

Defendants are thus wrong in their contention that Back cannot make out a claim that survives summary judgment unless she demonstrates that the defendants treated similarly situated men differently. Back has admittedly proffered no evidence about the treatment of male administrators with young children. Although her case would be stronger had she provided or alleged the existence of such evidence, there is no requirement that such evidence be adduced. Indeed we have held that, *122 Brown v. Henderson, 257 F.3d 246, 252 (2d Cir.2001) (citations omitted).

*121 In determining whether an employee has been discriminated against “because of such individual’s ... sex,” the courts have consistently emphasized that the ultimate issue is the reasons for the individual plaintiff’s treatment, not the relative treatment of different groups within the workplace. As a result, discrimination against one employee cannot be cured, or disproven, solely by favorable, or equitable, treatment of other employees of the same race or sex.

*122 Defendants also fail in their claim that they are immune from Back’s allegations simply because, in the year that Back was hired, 85% of the teachers employed at Hillside were women, and 71% of these women had children. As Brown indicates, although the jury is surely allowed to consider such comparative evidence, what matters is how Back was treated. Furthermore, the defendants make no mention of the number of men or women in administrative positions, nor of the age of any of the relevant children. Both details are essential if the comparative evidence adduced by the defendants is to be given any weight. 11 Because we hold that stereotypical remarks about the incompatibility of motherhood and employment “can certainly be evidence that gender played a part” in an employment decision, Price Waterhouse, 490 U.S. at 251, 109 S.Ct. 1775, we find that Brown applies to this case. As a result, stereotyping of women as caregivers can by itself and without more be evidence of an impermissible, sex-based motive.

B. Was Summary Judgment Appropriate?

To say that the stereotyping here alleged can constitute sex-discrimination is not enough, however. We must also determine whether the plaintiff has adduced enough evidence to defeat summary judgment as regards her discrimination claim, and has done so with respect to each of the defendants sued. We review a district court’s grant of summary judgment de novo. To justify summary judgment, the defendants must show that “there is no genuine issue as to any material fact” and that they are “entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). We resolve all ambiguities, and credit all rational factual inferences, in favor of the plaintiff. Cifra v. Gen. Elec. Co., 252 F.3d 205, 216 (2d Cir.2001).

i. Section 1983 Claim Against Brennan and Wishnie

Title 42 U.S.C. § 1983 provides, in relevant part:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress ....

In order to establish individual liability under § 1983, a plaintiff must show (a) that the defendant is a “person” acting “under the color of state law,” and (b) that the defendant caused the plaintiff to be deprived of a federal right. See, e.g., Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). Additionally, “[i]n this Circuit personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.” McKinnon v. Patterson, 568 F.2d 930, 934 (2d Cir.1977).

According to the Supreme Court, “a person acts under color of state law only when exercising power ‘possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.’ ” Polk County v. *123 Dodson, 454 U.S. 312, 317-18, 102 S.Ct. 445, 70 L.Ed.2d 509 (1981) (quoting United States v. Classic, 313 U.S. 299, 326, 61 S.Ct. 1031, 85 L.Ed. 1368 (1941)); see also West v. Atkins, 487 U.S. 42, 49, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988). “[S]tate employment is generally sufficient to render the defendant a state actor.” (Lugar v. Edmondson Oil Co., 457 U.S. 922, 935 n. 18, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982)). There is little doubt that Brennan and Wishnie were “personally involved” in the purported deprivation, or that they acted under the color of state law when they recommended against Back’s tenure and evaluated her negatively. The question remains, then, whether there is sufficient evidence for a jury to find that they acted to deprive Back of her right to be free from discrimination on the basis of gender.

a. Deprivation of Federal Right

In assessing Back’s claim, we rely upon the familiar McDonnell Douglas framework. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Sorlucco v. New York City Police Dep’t, 888 F.2d 4, 7 (2d Cir.1989) (holding that the McDonnell Douglas framework applies to § 1983 cases). We therefore inquire first whether the plaintiff has successfully asserted a prima facie case of gender discrimination against these defendants. ‘“[A] plaintiff may rely on direct evidence of what the defendant did and said’ in satisfying her initial burden under McDonnell Douglas.” Holtz v. Rockefeller & Co., 258 F.3d 62, 77 (2d Cir.2001) (quoting Tarshis v. Riese Org., 211 F.3d 30, 35 (2d Cir.2000)). Once a plaintiff makes out a prima facie case of discrimination, the defendants have the burden of showing a legitimate, nondiscriminatory reason for their actions. In order to prevent summary judgment in favor of the plaintiff at this stage, that explanation must, if taken as true, “permit the conclusion that there was a nondiscriminatory reason for the adverse action.” St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 509, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993).

The plaintiff then has the opportunity to prove “by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.” Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). Of course, “[t]o defeat summary judgment within the McDonnell Douglas framework ... the plaintiff is not required to show that the employer’s proffered reasons were false or played no role in the employment decision, but only that they were not the only reasons and that the prohibited factor was at least one of the ‘motivating’ factors.” See Holtz, 258 F.3d at 78 (internal quotation marks omitted). Regardless of whether the plaintiff can prove pretext, she or he bears the ultimate burden of persuasion, and must adduce enough evidence of discrimination so that a rational fact finder can conclude that the adverse job action was more probably than not caused by discrimination. See St. Mary’s Honor Ctr., 509 U.S. at 511, 113 S.Ct. 2742 (holding that “rejection of the defendant’s proffered reasons [for the adverse action] will permit the trier of fact to infer the ultimate fact of intentional discrimination” but does not “compel [ ]” this inference); Fisher, 114 F.3d at 1336 (stating that, afte