2d Department holds operating room abuse is not an "adverse employment action"

The Appellate Division Second Department has issued its first decision interpreting the Supreme Court's ruling in Muldrow v. City of St. Louis, which two years ago relaxed the standard for "adverse actions" in employment discrimination cases. In this ruling, the Court finds that a doctor who physically abused and verbally assaulted a nurse during an operating room procedure did not subject the plaintiff to an adverse action under Section 1983.

The case is Chamale-Eustace v. SUNY Stony Brook, issued in January 21. I briefed and argued the appeal. In Muldrow, 601 U.S. 346 (2024), the Supreme Court rejected the rule that adverse actions must materially alter the terms and conditions of the plaintiff's employment. Instead, the Supreme Court said, the plaintiff need only prove the defendant subjected her to "some harm respecting an identifiable term or condition of employment." The harm need not be significant or even material, but the adverse action “must have left [the plaintiff] worse off.” Put another way, the plaintiff must show the employer's actions “brought about some ‘disadvantageous’ change in an employment term or condition.” This language draws from Muldrow.

In this case, the plaintiff alleged as follows:

On or about August 14, 2021, the plaintiff, a female surgical technologist employed by the defendants State University of New York at Stony Brook, Stony Brook University Hospital, and Stony Brook Medicine, assisted in a surgery performed by the defendant Matthew Berchuck, a surgeon employed by the Stony Brook defendants. 

The plaintiff alleged that during the surgery, Berchuck, inter alia, struck the plaintiff in the arm with a closed fist while holding a surgical instrument, threw surgical instruments and needles at her, and screamed and cursed at her. In addition, the plaintiff alleged that Berchuck belittled other female staff members who were assisting in the surgical procedure, but he did not treat male staff members in a similar manner. Further, the plaintiff alleged that the Stony Brook defendants were aware of and failed to address similar incidents of misconduct by Berchuck in the past. 

The Appellate Division rules that, as asserted in the complaint, these allegations do not establish an adverse employment action. In support of this holding, the Second Department cited inter alia Franco v. City of New York, 2025 WL 964014 (E.D.N.Y. 2025), which held that the plaintiff's allegations in that case -- repeated acts of sexual assault -- sounded more like a hostile work environment than disparate treatment and therefore Muldrow did not apply. The other citations in support of this holding predate Muldrow and applied the now-rejected "materiality" test.

Another holding is that the defendant cannot be sued as an "aider and abettor" under the New York Executive Law because a defendant cannot aid and abet his own discrimination. The law on this issue is all over the place in New York. In Tomka v. Seiler, Corp., 66 F.3d 1295 (2d Cir. 1995), the Second Circuit said a defendant may be held liable for aiding and abetting allegedly unlawful discrimination by the employer even where the defendant's actions are the predicate for the employer's vicarious liability. But the Appellate Division has gone back and forth on this issue. 

Despite ruling against Chamale-Eustace on this point, the Second Department cited Elco v. Aguiar, 226 A.D.3d 649, 651 (2d Dept. 2024), which held that defendant Freeborn "failed to establish that the plaintiff did not have a cause of action against him under the NYSHRL pursuant to an aiding and abetting theory of liability." The Court added, "contrary to Freeborn's contention, the plaintiff sufficiently alleged that Freeborn had aided, abetted, and incited this alleged harassment" as "the harassing conduct by her superiors was instigated by Freeborn sending her harassing text messages and contacting her superiors both about her personal relationships and to make false accusations regarding custody issues and her work performance. The plaintiff sufficiently alleged that, without Freeborn's conduct, there is no indication that her superiors would have subjected her to inferior terms of employment." 

Can Chamale-Eustace be reconciled with Aguiar? I suppose the argument might be that, in Aguiar, others were also harassing the plaintiff, and in Chamale-Eustace, the individual defendant was the sole harassing party, although she argued that management was responsible for this conduct.