Sexist comments and suspicious timing does not give rise to sex discrimination claim

The Court of Appeals holds that a female doctor cannot win her sex discrimination claim arising from the termination of her employment, even though she asserts that male doctors were treated more favorably and sexist comments about her were thrown around the workplace.

The case is Nambiar v. Central Orthopedic Group, LLP, issued on October 28. This case does not break new ground in the world of sex discrimination law. But we do see how settled Second Circuit rules apply to cases like this. 

In response to plaintiff's prima facie case of sex discrimination, management proved they had received "numerous complaints" about plaintiff, which required the medical practice to take remedial measures. The complaints had to do with plaintiff's "contentious interactions" and "heated conversations" with the staff. Other doctors were aware of patient and staff complaints about her. To reverse summary judgment and force a trial on whether the defendants had discriminated against her, plaintiff has to show these justifications for her termination were a pretext for discrimination. The Second Circuit says plaintiff does not have the evidence.

First, plaintiff argues that two male doctors were treated better than she was. But the comparators are not really comparators. One doctor, who replaced plaintiff, was hired on less favorable terms than plaintiff had been, and his contract (unlike plaintiff) did not include a path to partnership. The other male doctor had to sign a new contract that extended his probationary period and was made partner only after he "cleaned up his act." As a matter of law, these doctors are not comparable to plaintiff. The key cite for this principle is Graham v. Long Island Railroad, 230 F.3d 34 (2d Cir. 2000).

Second, plaintiff cites sexist comments. That kind of evidence can certainly get you a trial if you can connect the comments to the decision to fire the plaintiff. But she cannot do that, the Court of Appeals (Lynch, Merriam and Kahn) says. 

While a physician partner, Checo, told plaintiff that "other partners" had referred to the pain management department staff as "girls" and that "there is too much drama ... because they are female," and plaintiff "was told" that someone said that patients should not be sent to plaintiff "when she is having her period because ... they are all going to be ... girls together," these gender stereotypes are not enough for trial because plaintiff did not hear them directly, she does not know the context in which the comments were made, or even who said them. Plaintiff does not assert these comments were made close in time to the termination of her employment or that they had anything to do with her termination.

Another physician partner, Silverberg, told plaintiff that patients and staff had complained that she was too unfriendly, too demanding, too aggressive and had to be "sweeter, kinder, and more gentle" since it was a small practice and it relied on referrals. The Second Circuit says these criticisms, which advance gender stereotypes that plaintiff was not sufficiently feminine in the office, are not enough for trial because they came from patients and staff but not from any physician partners. Under this analysis, plaintiff cannot show these critiques factored into the decision to terminate her employment.

Third, plaintiff challenges the timing of her termination, noting that, after seeing thousands of patients, the seven complaints against her were close in time to her termination. But, the Court says, plaintiff cannot show that "defendants colluded to produce or create this evidence," which was the case in Edelman v. NYU Langone Health Sys., 141 F.4th 28 (2d Cir. 2025). Nor has plaintiff suggested these criticisms were falsified.