Summary-Judgment “But-For” Findings Do Not Bar Lost-Wage Damages on a Title VII Mixed-Motive Verdict: Commentary on Krause v. Kelahan (2d Cir. 2025)

I. Introduction

The Second Circuit’s decision in Krause v. Kelahan, Nos. 22‑41(L), 22‑288(Con) (2d Cir. Dec. 3, 2025), is a significant employment-discrimination and trial‑procedure opinion arising from the termination of a female high school principal in a small upstate New York district. The court (Judge Carney, joined by Judge Lee; Judge Sullivan dissenting) affirms a jury verdict finding that the Oriskany Central School District, its Board of Education, and its Superintendent, Greg Kelahan, fired principal Lisa Krause and subjected her to a hostile work environment because of her gender, in violation of Title VII and the New York State Human Rights Law (NYSHRL).

The opinion does several important things:

It applies and reinforces the Title VII “mixed‑motive” (motivating‑factor) framework and clarifies the relationship between that framework and stricter “but‑for” causation requirements under the Equal Protection Clause and 42 U.S.C. § 1983.
It holds that a pre‑trial summary‑judgment finding that the plaintiff failed to show “but‑for” causation for a constitutional claim does not itself establish the employer’s Title VII “same‑decision” defense or bar monetary (lost‑income) damages on a later jury verdict under the more lenient Title VII causation standard.
It restates in concrete terms the heavy burden on defendants seeking to overturn a plaintiff’s jury verdict for insufficient evidence, especially in discrimination cases that turn on credibility and inferences.
It applies a robust harmless‑error standard under Federal Rule of Civil Procedure 61 to alleged trial errors, including a confusing mid‑trial judicial comment about New York Education Law § 4402 and a slew of evidentiary challenges.
It confirms that Title VII fee awards may include pre‑complaint, pre‑EEOC work reasonably performed in anticipation of litigation and related administrative proceedings.

The dissent, by Judge Sullivan, views the trial as unfair, focusing on: (1) the district court’s erroneous suggestion that Education Law § 4402, which governs IEPs, applied to Section 504 accommodation plans; (2) the admission of out‑of‑court statements speculating that “this wouldn’t happen if [Krause] were a man”; and (3) later complaints by a secretary that did not explicitly involve gender. In his view, these errors, cumulatively and individually, required a new trial.

This commentary walks through the decision’s core holdings, the precedents it relies on, its practical implications, and the doctrinal clarifications it contributes, particularly on mixed‑motive damages and harmless error.

II. Case Overview and Procedural Background

A. The parties and factual context

The Oriskany Central School District operates two schools: an elementary school and a combined junior-senior high school. In December 2014, Lisa Krause was hired as principal of the junior-senior high school. She reported directly to Superintendent Greg Kelahan.

Krause alleged that from early in her tenure she experienced:

Sex‑based comments and demeaning treatment from Superintendent Kelahan (e.g., calling her office “very girly,” criticizing her for leaving to care for her injured daughter, asking “What kind of mother are you?”, complaining that women are “so emotional,” commenting on women’s clothing, and threatening to fire her in front of graduation).
A pattern of intense criticism and undermining, in contrast with his friendly, respectful relationships with male administrators.
Escalating hostility after a staff member (later a board member) complained to the Board about his “bullying” behavior and defended Krause as “a good principal” whom they were “trying to push … out the door.”

The School District, by contrast, portrayed Krause as an ineffective principal who reacted emotionally to criticism, failed to command staff respect, and made “questionable” decisions—most notably:

Starting the school year without functional class-change bells and not clearly informing staff or the Board.
Temporarily modifying a severely allergic student’s Section 504 accommodation plan at the parents’ request without first convening the Section 504 Committee.

In September 2016, after a series of internal conflicts and performance evaluations, Superintendent Kelahan placed Krause on administrative leave and recommended termination. The Board voted 6‑1 to terminate her in October 2016.

B. Administrative charges and federal litigation

Krause filed with the New York State Division of Human Rights and the EEOC in February 2017 and obtained a right‑to‑sue letter. In August 2017 she sued in New York state court, asserting:

Title VII claims against the District, Board, and Superintendent (in his official capacity) for discriminatory discharge and hostile work environment based on sex.
Parallel NYSHRL claims.
Equal Protection claims under § 1983 for gender discrimination.

The case was removed to the Northern District of New York. Over time, claims against some individual board members and a union representative were dismissed or left behind in state court; the case went to trial solely against the District, Board, and Superintendent Kelahan.

C. Summary judgment and the mixed‑motive posture

On summary judgment, the district court (Judge Kahn) drew a sharp line between constitutional and statutory claims:

It granted summary judgment on Krause’s Equal Protection claim, holding she had not shown that gender discrimination was a but‑for cause of her termination, as required under Naumovski v. Norris.
It denied summary judgment on the Title VII and NYSHRL sex-discrimination and hostile‑environment claims, finding sufficient evidence for a reasonable jury to conclude that gender was a motivating factor in the decision to terminate her, under Title VII’s mixed‑motive standard.

This procedural posture—Equal Protection claim out for lack of but‑for causation, Title VII mixed‑motive claim in—sets up the central doctrinal issue on appeal: whether that summary‑judgment determination precluded Krause from recovering lost-income damages under Title VII.

D. Trial and verdict

A six‑day jury trial (before Judge Hurd) in October 2021 featured sixteen witnesses and a video deposition. The competing narratives were straightforward:

Plaintiff’s theory: Krause was a competent, developing principal undermined by a sexist superintendent and an inattentive Board that allowed a hostile environment and then used pretextual performance criticisms to oust her.
Defendants’ theory: Krause was temperamentally unsuited for the job, frequently emotional, resistant to feedback, and committed serious lapses in judgment (bells and Section 504 Plan), such that termination was inevitable regardless of any alleged bias.

The jury returned a special verdict:

Finding that Krause was subjected to a hostile work environment based on sex.
Finding that sex was a motivating factor in the decision to terminate her.
Rejecting the “same‑decision” defense—i.e., it found defendants did not prove they would have terminated her absent discrimination.
Awarding $484,456 in damages, including $334,456 in lost income and $150,000 for pain and suffering.

The district court denied defendants’ post‑trial motions for judgment as a matter of law (JMOL) and for a new trial or damages reduction, and later awarded approximately $130,000 in attorney’s fees and expenses. Defendants appealed both liability and damages, plus a small portion of the fee award.

III. Summary of the Second Circuit’s Decision

The Second Circuit’s majority opinion affirms in all respects. In condensed form:

A. Sufficiency of the evidence on discriminatory discharge

Applying the deferential standard for reviewing jury verdicts, the court holds that there was ample evidence to support the jury’s finding that:

Superintendent Kelahan harbored gender‑based animus and treated Krause worse than male comparators.
Krause’s performance, while imperfect, was at least adequate and improving, and perceived shortcomings were attributable in part to his undermining conduct.
The District’s articulated reasons for termination (performance evaluations, lack of improvement despite mentoring and a supposed PIP, bells, and the Section 504 Plan) were at least in substantial part pretextual.

B. Lost‑income damages and the effect of the Equal Protection ruling

The court rejects defendants’ argument that the summary‑judgment dismissal of the Equal Protection claim—based on lack of but‑for causation—precluded Krause from obtaining lost wages on her Title VII claim. The key points:

The Equal Protection claim required plaintiff to prove but‑for causation; the Title VII “same‑decision” defense put the burden on defendants to show they would have terminated her even absent bias.
The district court never decided (and defendants never asked it to decide) the same‑decision defense on summary judgment.
Under Pahuta v. Massey‑Ferguson, once a case goes to trial, appellate review focuses on the sufficiency of the evidence supporting the verdict, not reconsideration of earlier summary‑judgment rulings.

Because the jury, on substantial evidence, rejected the same‑decision defense, the court holds that full monetary damages, including lost income, were available under Title VII.

C. Evidentiary rulings—no reversible error

Defendants raised dozens of objections to evidentiary rulings. The court, applying abuse‑of‑discretion and harmless‑error review, rejects them. Among the rulings it upholds:

Admission of contextual and highly probative testimony from the parents of the allergic student (M.) about their long‑standing disputes with the District and their satisfaction with Krause’s modifications to the Section 504 plan.
Admission of testimony and documents arising from the 2018 complaints of the guidance office assistant (Zumbrun), as relevant to the pre‑existing and continuing dysfunctional environment and to rebut the claim that Krause alone caused “chaos” in the building.
Denial of a new trial based on alleged hearsay from two secretaries about gender bias, both because the argument was not properly preserved and because any error was harmless in light of other evidence and later testimony by those secretaries.
Other assorted rulings under Rules 401, 403, 608, and 615, most of which the court finds either correct or harmless.

D. The Education Law § 4402 / Section 504 confusion—harmless error

The central trial‑error complaint concerned a mid‑trial comment by the judge suggesting—incorrectly—that the jury had “heard the law concerning the 504” when counsel had just read a portion of New York Education Law § 4402, which actually governs IEPs, not Section 504 plans. Defendants argued this:

Misled the jury to think state law required the District to allow Krause to amend the student’s Section 504 plan without committee involvement; and
Thus effectively removed a key nondiscriminatory justification (violation of the Section 504 policy) from the jury’s consideration.

The Second Circuit majority agrees that the remark was confusing and that § 4402 does not by its terms govern Section 504 plans, but holds:

The trial judge’s comment was garbled and not the “clear directive” defendants portray; it did not squarely tell the jury that § 4402 applied to the Section 504 plan or that Krause complied with law.
Plaintiff did not actually argue that § 4402 authorized her conduct; rather, she argued the District had flexibility and an unwritten practice of temporary parental‑consent modifications.
The core factual issue was whether Krause had obtained the blessing of the CSE / Section 504 chairs (Lobdell and Lowell) to try the temporary changes, not the fine details of § 4402.
Any confusion was partly induced by defendants themselves, who had previously argued—at summary judgment—that § 4402 and related regulations governed Section 504 plans and required the committee process.

Under Federal Rule of Civil Procedure 61’s harmless‑error standard (“no error … is ground for granting a new trial unless justice requires otherwise”), the majority finds no unfairness warranting a new trial.

E. Attorneys’ fees

The court also upholds the fee award, emphasizing:

Title VII’s fee provision allows compensation for reasonable hours “expended on the litigation,” including time reasonably spent preparing to file the complaint and in related EEOC and state administrative proceedings.
Under New York Gaslight Club, Inc. v. Carey, fees may cover administrative and related pre‑suit work.
The district court acted within its broad discretion in awarding fees for counseling, witness outreach, communications with defendants, and a state § 50‑h municipal claim hearing during the pre‑EEOC period.

IV. Key Precedents and Doctrinal Anchors

A. Sufficiency-of-evidence standard: Kinneary and Gronowski

To assess defendants’ JMOL motion, the court applies settled Second Circuit law:

Kinneary v. City of New York, 601 F.3d 151 (2d Cir. 2010): A verdict must be upheld unless there is “a complete absence of evidence supporting the verdict” or evidence for the movant is so overwhelming that reasonable jurors could not decide otherwise.
Gronowski v. Spencer, 424 F.3d 285 (2d Cir. 2005): Courts must view the evidence “in the light most favorable” to the verdict winner, draw all reasonable inferences for that party, and may not reweigh evidence or reassess credibility.

These precedents strongly constrain appellate second‑guessing of jury judgments in discrimination cases that hinge on credibility and nuanced inference.

B. Causation frameworks: Naumovski and Nassar

On the causation and damages issue, the court relies on:

Naumovski v. Norris, 934 F.3d 200 (2d Cir. 2019): Equal Protection claims under § 1983 require but‑for causation.
Univ. of Texas Southwestern Med. Ctr. v. Nassar, 570 U.S. 338 (2013): Clarifies the distinct structures of Title VII’s mixed‑motive and but‑for regimes; under 42 U.S.C. § 2000e‑5(g)(2)(B), if defendants show they would have taken the same action absent the impermissible factor (the “same‑decision” defense), remedies are limited to declaratory and injunctive relief and fees, not damages or reinstatement.

The majority uses these to highlight the different burdens at different stages:

The prior Equal Protection ruling said only: Krause had not proved she would have prevailed under a but‑for standard.
It did not say: Defendants carried their burden to prove they would have taken the same action even without discrimination.

C. Post-trial review of summary judgment: Pahuta

The court cites Pahuta v. Massey‑Ferguson, Inc., 170 F.3d 125 (2d Cir. 1999), which cautions that post‑trial appeals do not re‑litigate summary‑judgment rulings; the question becomes whether the trial evidence supports the verdict. This reinforces the majority’s refusal to credit defendants’ attempt to leverage the earlier Equal Protection ruling into a limitation on Title VII remedies.

D. Attorneys’ fees: New York Gaslight and Luciano

New York Gaslight Club v. Carey, 447 U.S. 54 (1980): Title VII’s fee provision applies to “any … proceeding” under Title VII, including EEOC and state administrative proceedings; fees are recoverable for necessary preparatory work.
Luciano v. Olsten Corp., 109 F.3d 111 (2d Cir. 1997): Recognizes the district court’s “broad discretion” in setting a reasonable fee award.

These cases undergird the majority’s affirmance of pre‑complaint fee recovery.

E. Harmless error: Matusick, Manganiello, and Rule 61

On alleged trial errors, the majority leans on:

Matusick v. Erie County Water Authority, 757 F.3d 31 (2d Cir. 2014): An evidentiary error warrants new trial only if, “after pondering all that happened,” the appellate court cannot say with “fair assurance” that the judgment was not “substantially swayed” by the error.
Manganiello v. City of New York, 612 F.3d 149 (2d Cir. 2010): The benchmark is a “fair trial rather than a perfect trial.”
Rivas v. Brattesani, 94 F.3d 802 (2d Cir. 1996): Same “fair vs. perfect” principle.
Fed. R. Civ. P. 61: “Unless justice requires otherwise, no error … is ground for granting a new trial.”

These authorities shape the high bar defendants must clear to transform a judicial misstatement, evidentiary ruling, or stray comment into reversible error.

F. Evidence and trial management: Coppola, Abu‑Jihaad, and Tesser

United States v. Coppola, 671 F.3d 220 (2d Cir. 2012): Highlights deference to the trial judge’s Rule 401/403 determinations.
United States v. Abu‑Jihaad, 630 F.3d 102 (2d Cir. 2010): Describes evidentiary rulings as reversible only if “arbitrary and irrational.”
Tesser v. Bd. of Educ., 370 F.3d 314 (2d Cir. 2004): (Cited in dissent) for the presumption that juries follow instructions and the requirement that error must affect outcome.

V. The Court’s Legal Reasoning in Depth

A. Why the evidence was sufficient for a discriminatory discharge finding

1. Evidence of gender-based animus and differential treatment

The majority’s sufficiency analysis is meticulous. It highlights multiple strands of evidence that, viewed together, reasonably support a finding that sex was at least a motivating factor in Krause’s termination:

Explicit gendered statements. Krause testified that when she became visibly upset after being criticized for tending to her injured daughter, Superintendent Kelahan scoffed, “That’s why I hate working with women so much. They are always so emotional.” He repeatedly questioned her motherhood (“What kind of mother are you?”), described her office as “very girly,” and made comments about women’s clothing (including liking when women wear dresses and criticizing other women’s attire).
Hostility and threats untethered to performance. Before her first graduation, he told her, “If you f*** this up, I will fire you, but good luck and have fun.” He texted her a photo of herself with the comment “See, you are always being watched,” which he later trivialized as “silliness.”
Patterned differential treatment. Witnesses described his relationships with male administrators (the male elementary school principal) as collegial and respectful (“buddies”) while characterizing his treatment of Krause as “mean, nasty, and belittling,” often involving shouting and door‑slamming.
Corroboration by other women. The BOCES mentor, Margaret Beck, testified that she heard about, and personally observed, his aggression towards women, and that he even recruited her to help get Krause to “dress better,” though Beck thought Krause’s attire was appropriate.

The majority emphasizes that the jury was entitled to credit this testimony and to infer that gender stereotypes and hostility toward women in leadership roles were driving forces in how the superintendent treated Krause and influenced the termination decision.

2. Evidence that Krause’s performance was at least adequate and improvable

Defendants tried to portray Krause as intrinsically incompetent and perpetually emotional. The majority counters by highlighting:

Testimony from the guidance office secretary that Krause was “an asset,” engaged with students, and “easy to work with.”
Beck’s professional assessment (based on biweekly mentoring meetings) that Krause was “doing a fine job” and had the capacity to succeed, but suffered from a lack of autonomy and an unpredictable supervisor.
Explanations that Krause’s emotional episodes were responses to ongoing bullying and undercutting by the superintendent, rather than inherent unfitness for the job.

Given this record, the majority concludes that a rational jury could reject defendants’ characterization of Krause’s temperament as the true cause of her discharge.

3. Pretext: skeptical scrutiny of the District’s justifications

The majority dissects each of the District’s stated reasons for termination:

APPR performance evaluations.
Krause’s overall “school visit” score for 2015–2016 (2.67) fell within the “Effective” range under state regulations, and her unannounced spring evaluations were better than her announced fall evaluation. The court notes that a defense exhibit appeared to misorder the evaluations, visually suggesting a downward trajectory when in fact scores had improved by year‑end. That, and the absence of evidence that she had been formally rated “Developing” or “Ineffective,” weakens the claimed performance‑based justification.
“Lack of improvement” despite a Principal Improvement Plan (PIP).
Superintendent Kelahan’s termination letter asserted that Krause was on a PIP and had failed to improve. In reality, a PIP had only been discussed and never implemented. Beck testified that some PIP goals (e.g., to “decrease” staff criticism) were not within Krause’s control, and Krause refused to sign a draft PIP on Beck’s advice. The jury could infer the “PIP” rationale was misleading, both to Krause and to the Board, and evidence of pretext.
The bells.
Krause and her assistant testified that they knew of the broken bell system months earlier, tried without success to find a technician, and decided—with the superintendent’s knowledge—to trial a no‑bells regime that day‑to‑day caused minimal disruption. A jury could treat the later outrage over the lack of bells as a manufactured criticism.
The Section 504 plan for student M.
This is the most complex. Krause, working with M.’s parents, temporarily adjusted a highly restrictive accommodation plan to reduce M.’s social isolation, with parental consent, for an initial two‑week trial. Krause testified that prior and current CSE / 504 Chairs (Lobdell and Lowell) had indicated that short‑term adjustments were permissible with parental agreement, a practice the mentor Beck testified was common in New York schools. The parents testified they were “very happy” with the changes and later protested Krause’s removal. The majority reasons that the jury could conclude either that Krause reasonably followed an accepted practice or that, even if there were a technical policy violation, it was not the genuine basis for termination.

Taken together, these points support the jury’s inference that the proffered reasons masked discriminatory animus.

B. Mixed-motive causation and the impact of the Equal Protection ruling

Defendants’ most doctrinally ambitious argument attempts to leverage the prior Equal Protection ruling to strip Krause of lost‑income damages under Title VII. The majority rejects this in a way that clarifies the distinct roles of:

But‑for causation (Equal Protection): At summary judgment, the district court held Krause had not shown that, more likely than not, she would not have been terminated “but for” her gender—an issue on which she bore the burden.
Motivating‑factor causation (Title VII): For liability, she need only show that sex was a motivating factor, even if other factors also played a role (42 U.S.C. § 2000e‑2(m)).
Same‑decision defense (Title VII remedy limitation): To limit remedies to non‑monetary relief and fees, the employer must prove it “would have taken the same action in the absence of the impermissible motivating factor” (42 U.S.C. § 2000e‑5(g)(2)(B)).

The majority reasons:

The Equal Protection ruling decided only that Krause could not, on her evidence, compel a finding that discrimination was the but‑for cause of her termination. It did not affirmatively find that discrimination was not a but‑for cause, nor that defendants could prove they would have made the same decision absent bias.
Defendants never asserted the same‑decision defense at summary judgment, so the district court had no reason to adjudicate it then.
At trial, the jury expressly rejected the defense after hearing all evidence; under Pahuta, this trial finding is what matters on appeal.

Thus, the Equal Protection dismissal neither barred the Title VII claim nor limited the scope of relief once the jury found animus and rejected the same‑decision defense.

C. Evidentiary rulings: relevance, hearsay, and credibility

1. Relevance and prejudice: student M.’s family and the 2018 complaints

The majority defends the admission of:

The Denisons’ testimony (M.’s parents). Their narrative explained why they were pushing to revise M.’s plan, why Krause’s temporary accommodations were perceived as welcome and safe, and why the claimed policy violation might be a post‑hoc justification rather than a serious safety issue. The court finds this highly probative and not unfairly prejudicial.
Guidance secretary Zumbrun’s 2018 complaints. Though made after Krause’s termination and mainly targeting Lowell, these complaints were admitted as:
- Supporting the view that the workplace was dysfunctional independent of Krause; and
- Illustrating the Board’s pattern of slow response to serious internal complaints—arguably relevant to its failure to remedy Krause’s hostile environment.
The court sees no abuse of discretion in finding such evidence relevant and not unduly prejudicial under Rules 401 and 403.

2. Hearsay from secretaries about “this wouldn’t happen if [she] were a man”

The district court admitted testimony from secretary Zumbrun that two other secretaries, Sojda and Higgins, repeatedly commented that the superintendent’s treatment of Krause “wouldn’t happen” if she were a man. It was admitted as a party‑opponent admission under Rule 801(d)(2)(D) (employee statements within scope of employment).

On appeal, the majority:

Declines to reach the merits fully, holding that defendants did not sufficiently specify this issue in their post‑trial motion (they complained broadly about “hearsay” comparisons with male principals).
States that even if admission were error, it was harmless because:
- Both secretaries later testified and denied making the statements, and defense counsel hammered that in closing, undermining the hearsay’s credibility; and
- Multiple other witnesses gave direct, non‑hearsay evidence of gendered treatment and comments.

Judge Sullivan’s dissent disagrees, arguing that the statements went directly to discriminatory intent, were speculative, and that Rule 801(d)(2)(D) was misapplied because the secretaries had no role in decision‑making. The majority effectively treats any error as subsumed by the larger evidentiary record.

3. Other evidentiary points

Two additional rulings deserve brief mention:

Reputation for truthfulness (Rule 608). The court finds no error in excluding Lowell’s attempted testimony that secretary Zumbrun had a “reputation for untruthfulness,” because defense counsel failed to lay a foundation showing Lowell knew that reputation in the community.
Comparisons with prior principals. Any error in limiting some of Superintendent Kelahan’s comparisons between Krause and prior principals was harmless, because he and four other witnesses still testified that complaints about prior principals were less frequent and severe, giving the jury that comparison in substance.

D. The Education Law § 4402 misstatement and harmless error

The most delicate part of the opinion concerns the judge’s comment that the jury had “heard the law concerning the 504” just after counsel read from Education Law § 4402, a statute that in fact governs IEP amendments, not Section 504 plans.

The majority’s analysis proceeds in several steps:

Ambiguity of the remark. The phrase “the law concerning the 504” was “odd” and “garbled,” and the judge had shortly before referred to “the 504 issue” (i.e., whether § 4402 was even relevant). The majority finds it not obvious that the judge was instructing that § 4402 applied to the Section 504 plan or that the District had violated the law.
Plaintiff’s limited reliance on § 4402. The majority notes that Krause did not build her case on § 4402, but on:
- An asserted unwritten practice of temporary changes with parental consent; and
- Her understanding that the CSE / 504 chairs authorized the pilot changes.
Her counsel did not, in closing, argue that § 4402 itself authorized her Section 504 modification.
The central factual issue: did she consult the chairs? All agreed that, whatever state law said, Oriskany practice required at least the involvement of the CSE/504 chair. The factual pivot was thus:
Did Krause reasonably rely on Lobdell and/or Lowell’s guidance in temporarily modifying the plan?
The majority concludes the judge’s misstatement did not control that factual determination.
Defendants’ own prior positions caused much of the confusion. At summary judgment, defendants themselves asserted that Education Law § 4402 and related regulations governed Section 504 plans and required the committee process, filing affidavits by Lobdell and Lowell to that effect. Those assertions were cited by the district court in granting partial summary judgment. Only mid‑trial did defense counsel pivot to argue that § 4402 applied solely to IEPs. The majority notes this contradiction and, while not formally applying judicial estoppel, emphasizes that defendants contributed substantially to whatever confusion existed.
Harmlessness under Rule 61. Considering:
- The overall six‑day trial;
- Extensive evidence on the 504 incident and multiple other justifications;
- The jury’s explicit finding that all justifications were pretextual; and
- The defendants’ role in muddying the legal waters;
the majority concludes that any misstatement did not render the trial unfair or substantially sway the outcome. A new trial is not “required by justice.”

The dissent reaches the opposite conclusion, viewing the jury instruction as a decisive incorrect statement that erased defendants’ key defense and, when combined with other evidentiary rulings, deprived them of a fair trial.

VI. Complex Concepts Simplified

A. Mixed-motive vs. but-for causation under Title VII and Equal Protection

“But‑for” causation: The decision‑maker would not have taken the adverse action if the protected trait (here, sex) had been absent. The trait is a necessary condition of the outcome. This standard governs Equal Protection claims under § 1983 (per Naumovski).
“Motivating factor” (mixed‑motive) causation (Title VII): The protected trait was one of the motives behind the adverse action, even if other motives also contributed. Under § 2000e‑2(m), once a plaintiff proves this, she establishes liability.
Same‑decision defense and remedies (Title VII): Under § 2000e‑5(g)(2)(B), if the employer proves it would have made the same decision even if it had not considered the protected trait, the court may grant declaratory and limited injunctive relief and fees, but may not award damages or reinstatement.

Krause clarifies that:

A failed attempt by the plaintiff to prove but‑for causation at summary judgment on a different claim does not automatically mean the employer has affirmatively proven the same‑decision defense under Title VII.
The burdens, and thus the legal consequences, differ.

B. Section 504 vs. IEPs under IDEA and Education Law § 4402

IEPs (Individualized Education Programs):
- Created under the Individuals with Disabilities Education Act (IDEA).
- Apply to students with certain categories of disabilities requiring “special education or related services.”
- Procedures for evaluation, IEP creation, and changes are spelled out in federal and state law, including N.Y. Education Law § 4402.
Section 504 plans:
- Created under Section 504 of the Rehabilitation Act, which covers a broader set of impairments that substantially limit major life activities.
- Applies to students who may not qualify for IDEA special education but still require accommodations (e.g., severe allergies).
- Federal regulations require notice, opportunity to be heard, and review mechanisms, but leave procedural specifics largely to school districts.
- Section 4402 by its text governs IEPs, not Section 504 plans, though district policies sometimes mirror IEP procedures.

In Oriskany, the district had its own “Section 504 Policy,” which required a Section 504 Committee to establish and annually review plans but was less explicit about mid‑year modifications and temporary adjustments.

C. APPR and PIP in New York school administration

APPR (Annual Professional Performance Review): New York’s mandated evaluation system for principals, involving:
- Formal “school visit” observations by a supervisor (here, the superintendent).
- A “student performance” component based on test scores and other data.
- Numeric scores converted into overall ratings: Highly Effective, Effective, Developing, or Ineffective.
PIP (Principal Improvement Plan): A written plan required by regulation when a principal is rated Developing or Ineffective. It:
- Identifies specific areas for improvement.
- Sets timelines and metrics.
- Provides support activities to help the principal improve.
The purpose is remedial, not punitive.

In Krause, no completed PIP was ever implemented, even though Superintendent Kelahan’s communications with the Board implied that Krause was on such a plan and failing to improve.

D. Harmless error (Rule 61) and when a new trial is warranted

A trial is not overturned for every error; only for those that render the trial unfair.
Court asks:
- Was there an error?
- If so, is it likely that the error significantly influenced the verdict (“substantially swayed” it)?
- Or, despite the error, can we confidently say the verdict rests on a solid, independent evidentiary basis?
Rule 61 instructs: “Unless justice requires otherwise, no error … is ground for granting a new trial.”

The majority in Krause exemplifies a strict application of this standard, especially in the face of a dissent arguing cumulative prejudice.

VII. Impact and Practical Implications

A. For Title VII litigants: damages after mixed-motive findings

Perhaps the most concrete doctrinal takeaway is this:

A summary-judgment ruling that the plaintiff failed to prove “but‑for” causation on a different claim (such as Equal Protection) does not, by itself, establish the employer’s Title VII same‑decision defense or preclude lost‑wage damages on a mixed‑motive verdict.

Practical implications:

Defendants must plead and prove the same‑decision defense. They cannot assume that an earlier, plaintiff‑side failure on but‑for causation is enough. They must:
- Plead the defense explicitly;
- Develop evidence at trial showing that lawful reasons alone would have led to the same decision; and
- Request appropriate jury instructions.
Plaintiffs can proceed on Title VII even where a § 1983 claim fails. Plaintiffs who lose constitutional claims on stringent causation standards can still secure meaningful monetary relief under Title VII’s lower causation threshold, provided they defeat the same‑decision defense at trial.

B. For school districts and public employers

The case is a cautionary tale for school districts and boards:

Supervisory comments matter. Gendered remarks about “emotional” women, “girly” decor, and motherhood, especially from a top decision‑maker, can be powerful evidence of discriminatory motive.
Documentation must be accurate and nuanced. Mischaracterizing performance (e.g., misordering evaluation dates to imply decline, asserting that an employee is on a PIP when no PIP was implemented) can undermine credibility and support a finding of pretext.
Policy complexity cannot substitute for fairness. Over‑reliance on arcane procedural rules (APPR, PIP, Section 504 committee mechanics) as post‑hoc justifications is risky when contemporaneous records and testimony show flexibility or inconsistency.
Board oversight is scrutinized. Evidence that board members were misled or that the board ignored credible internal complaints can undercut defenses and enhance the appearance of institutional tolerance for discriminatory conduct.

C. For trial lawyers: preserving error and avoiding self-inflicted wounds

The opinion also has strong procedural messages:

Be precise and complete in post‑trial motions. Vague allusions to “hearsay” or “trial errors” without transcript citations risk forfeiture on appeal. The defendants’ failure to provide transcripts and detailed record references hampered their own post‑trial arguments and appellate prospects.
Stay consistent on legal positions. Defendants’ shifting views about whether § 4402 applied to Section 504 plans contributed to the trial judge’s confusion and weakened the argument for a new trial. Courts are reluctant to reward such shifts, and doctrines like judicial estoppel lurk in the background.
Harmless‑error is a high bar. Even where a judge’s comment is plainly imperfect, appellate courts will look at the entire record and ask whether the error truly altered the verdict. Counsel should build a record showing both error and impact.

D. For fee-shifting practice

Krause underscores that:

Pre‑EEOC and pre‑complaint legal work closely tied to later Title VII litigation (counseling, fact‑finding, draft administrative filings, and mandatory municipal hearings) is compensable.
Courts will give district judges considerable leeway in determining the reasonableness of such fees, especially where time entries are reasonably detailed.

VIII. The Dissent’s View and the Majority’s Response

A. Judge Sullivan’s critique

Judge Sullivan’s dissent sees three principal errors:

The incorrect § 4402 instruction. He reads the judge’s remark as unequivocally informing the jury that § 4402 governed Section 504 plans and allowed changes by parental consent without committee involvement, thus gutting defendants’ core justification for termination.
Admission of speculative hearsay. He views the “this wouldn’t happen if she were a man” statements as inadmissible hearsay not within Rule 801(d)(2)(D) because the secretaries had no role in decision‑making, and notes that those statements were central to Krause’s theory.
Admission of irrelevant 2018 complaints. Because those complaints post‑dated Krause’s termination and did not reference gender, he would exclude them as irrelevant and prejudicial propensity evidence of “hostility” tolerated by the District.

Bound together, he concludes, these errors prevented a fair trial and required a new one.

B. The majority’s implicit rejoinders

While the majority does not respond point‑by‑point, its reasoning implies:

On § 4402: The judge’s comment was not as clear or consequential as the dissent suggests, particularly given:
- Defendants’ own earlier representation that § 4402 governed Section 504 plans;
- The lack of argument by Krause’s counsel that § 4402 actually authorized her conduct; and
- The centrality of the factual question whether she consulted the CSE/504 chairs.
On hearsay: Even if admission was error, any prejudice was significantly blunted by live denials from the alleged declarants and abundant independent evidence of gender animus.
On 2018 complaints: These were not simply “other bad acts”; they provided context on workplace dysfunction and board inaction, relevant to both hostile environment and pretext, and fell within the trial judge’s evidentiary discretion.

Ultimately, the divergence between majority and dissent is less about black‑letter law than about how strongly to weigh the potential distorting effect of these errors on the jury’s view of the case.

IX. Conclusion: Significance of Krause v. Kelahan in the Broader Legal Landscape

Krause v. Kelahan is not a landmark in the sense of announcing sweeping new doctrine. Its importance lies in how it concretely applies existing frameworks and clarifies their interrelationship in a common, fact‑intensive setting: alleged discriminatory termination of a school administrator.

Key takeaways include:

Mixed‑motive causation is meaningful. Plaintiffs who cannot establish but‑for causation for constitutional claims may still prevail under Title VII’s motivating‑factor standard and obtain full monetary relief where the jury rejects the same‑decision defense.
Summary‑judgment causation findings have limited spillover effects. A prior failure by the plaintiff under a strict causation standard does not, without more, satisfy the employer’s burden under a different statutory scheme with different remedial consequences.
Trial error must be both clear and consequential to warrant a new trial. Even an acknowledged legal misstatement or evidentiary misstep will not undo a verdict absent a persuasive showing that it substantially swayed the jury’s decision, especially when the complaining party contributed to the confusion or failed to preserve the issue properly.
Gender stereotyping in leadership evaluations remains legally perilous. Comments about emotionality, parenting, clothing, and “working with women” can and will be viewed as powerful evidence of discriminatory motive, particularly when made by those with decisive power over employment.
Fee‑shifting remains robust. Title VII continues to support recovery of reasonable pre‑suit and administrative fees, which is significant for plaintiffs with limited resources facing institutional defendants.

For employers, especially public school districts, the case underscores the need to ensure accurate documentation, consistent policy interpretation, and vigilance against gender‑based stereotyping in assessing administrators’ suitability. For litigators, it reinforces the value of building a strong, fact‑rich trial record and the difficulty of overturning a jury verdict in a mixed‑motive discrimination case absent truly compelling evidence of legal or procedural unfairness.