Retaliation case fails because management was working on plaintiff's termination prior to her EEOC charge

This retaliation case reminds us that you cannot win your case under Title VII or state law if management was already working toward your termination even before you had engaged in protected activity by, for example, filing a discrimination charge with the EEOC.

The case is Nambiar v. Central Ortopedic Group, LLP, issued on October 28. The disparate treatment portion of the case is discussed at this link. But plaintiff also asserted a retaliation claim because she filed an EEOC charge on March 16, 2016 and was fired several days later. That's good timing for a retaliation claim. But we have a problem. 

The Court of Appeals (Lynch, Merriam and Kahn) finds that plaintiff cannot prove a causal connection between the EEOC charge and her termination because the evidence shows that defendants had already decided to terminate her employment before she filed the EEOC charge. In January 2016, defendants told plaintiff that she had to sign a revised contract (due to performance issues), and one month later, again before the EEOC charge, they told her to sign the contract or she would be fired. She repeatedly refused to sign the revised contract. This back and forth continued prior to the filing of plaintiff's EEOC charge, and five days before the charge was filed, defendants were already looking for her replacement.

What it all means is that "before Nambiar ever mentioned an EEOC complaint, the wheels were already in motion to terminate Nambiar's employment  -- as she was well aware," as the EEOC charge stated that defendants were "forcing her out of her position" and her termination was a "fait accompli" when she met with management on February 25, 2016.

The central case in this area is Slattery v. Swiss Reinsurance Am. Corp., 248 F.3d 87 (2d Cir. 2001), which holds that "where timing is the only basis for a claim of retaliation, and gradual adverse job actions began well before the plaintiff had ever engaged in any protected activity, an inference of retaliation does not arise." This is a key principle in the Second Circuit, and it has led to many a retaliation claim's demise, even if the actual decision to fire post-dated the protected activity.

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.

 

 

Hostile work environment survives motion to dismiss

This case involves allegations of racial discrimination. In this blog post, I covered the disparate treatment analysis, which found that plaintiff's complaint, notwithstanding the district court's ruling, does assert such a claim. But the complaint also asserts a hostile work environment claim, and that claim will proceed to discovery as well.

The case is Brown v. Montefiore Health System, Inc., issued on October 23. In the disparate treatment portion of the ruling, the Court of Appeals (Bianco, Wesley and Robinson) held that a series of suspicious adverse actions and circumstances give rise to an inference of discriminatory intent. That evidence also supports the hostile work environment claim.

But in addition to those disparate treatment allegations, we have other evidence that also gives rise to a racial harassment case. Under the "totality of the circumstances" test guiding these cases, we have the following allegations:

[The Complaint] alleges that “[Brown] was left out of research assignments, had duties and responsibilities removed from her without notice, [and was] berated and demeaned before her colleagues.” The amended complaint further alleges that Brown was subject to “excessive scrutinization and micromanaging of her work, actions[,] and whereabouts, [] isolation from her co-workers, [the] removal of duties  and responsibilities, [and the] denial of professional opportunities” which, “coupled with the continuous denial of her rightfully earned benefits, [was] all a part of the ongoing discrimination which [] created a very hostile work environment affecting [her] physical, mental and emotional” condition. 

The Court writes, "If proven, the alleged conduct, when considered in its totality and construed in the light most favorable to Brown, could plausibly be sufficiently pervasive or severe to constitute a hostile work environment."

Note that none of these allegations involve explicit racial discrimination, such as racial epithets or jokes. But you can still have a hostile work environment claim without those incidents. As the Court of Appeals writes, "although these alleged instances are not specifically linked to Plaintiff’s status in a protected class (such as with specific alleged comments), it is well-settled that '[f]acially neutral incidents may be included, of course, among the ‘totality of the circumstances’ that courts consider in any hostile work environment claim.'" The case for that proposition is Alfano v. Costello, 294 F.3d 365, 378 (2d Cir. 2002). Citation to Alfano shows this is not a new legal principle in the Second Circuit, but practitioners may overlook it since we associate hostile work environment claims with explicit racist or sexist comments or gestures. In fact, the work environment may be hostile in violation of Title VII if the plaintiff is simply treated poorly because of her race or gender.

In sum, the Court writes, "in reviewing the totality of the circumstances, especially where Brown alleges that she and two other named Black co-workers were treated differently than similarly situated white co-workers in a number of material respects, she has plausibly alleged that the alleged harassment could be related to her status in a protected class, even if such status was not referenced specifically by anyone in connection with the alleged conduct."

Racial discrimination claim is reinstated on appeal, providing guidance on avoiding Rule 12(b)(6) dismissals

The Court of Appeals holds that a race discrimination plaintiff has set forth enough allegations to proceed to discovery, overturning the trial court's finding that the complaint was not good enough to survive a Rule 12 motion to dismiss. The Court of Appeals makes some interesting observations about pleading discrimination cases, and if you represent plaintiffs in these disputes, then keep reading.

The case is Brown v. Montefiore Health System, a summary order issued on October 23. Prior to her termination from the hospital, plaintiff worked there for more than 20 years as a dietician. She claims her white supervisor, Pappo, was the discriminator. As summarized by the Second Circuit (Bianco, Wesley and Robinson), here are the primary allegations:

(1) Brown was the only Black employee in MMC’s Clinical Nutrition Department,  (2) Pappo, since being placed in her role as Director of the Department, has hired only one other Black employee, despite numerous hires over the years, (3) Pappo was enthusiastic about that employee’s qualifications upon reviewing her written application materials, but after the applicant arrived for her interview—thus revealing her race—Pappo instead opted to hire a less qualified white male, (4) Pappo subsequently hired that Black applicant for a subordinate position as a “relief” dietician only after receiving pressure from staff, (5) another Black former employee, who was terminated in 2019 and replaced by a white employee, also complained of discrimination by Pappo, including that Pappo “pressured, intimidated, and discriminated against her, failed to properly train her, and openly mocked and scolded her in front of other  employees[,]” which, according to Brown, was the “exact same treatment [she] was subjected to at the hands of [Pappo],” and (6) Brown heard Pappo “disparag[e] communities which have [] largely Black demographic[s] in favor of those with largely white demographic[s].”

All of this asserts a pattern of racial hostility by Pappo, both against plaintiff and against other Black employees. No explicit racial epithets here, but, taking the allegations in the complaint as true, it appears Pappo did not want Black employees working for her. But there is more. Plaintiff alleges that:

Pappo, motivated by this racial animus, engaged in a campaign of harassment to prompt Brown’s termination, including refusing to allow Brown to cover a particular colleague’s work shifts and offering those shifts to white dieticians, refusing to provide Brown with the proper ergonomic workstation to accommodate her medical needs resulting from a work-related injury, initially denying her the opportunity to serve as a preceptor for New York University oncology interns while all other dieticians in the department (who were white) served in that role, and submitting false information regarding Brown’s workers’ compensation case "in hopes that [Brown] would be terminated or resign."

Taken as a whole, these allegations permit the plausible inference that plaintiff was fired because of her race. Again, no racial epithets, but a pattern of mistreatment visited upon plaintiff and other Black employees. The case will proceed to discovery.

This holding may not seem remarkable, but it is. Many cases are dismissed under Rule 12(b)(6) because, no matter how badly the plaintiff was treated, the trial court does not think the allegations permit an inference of racial or sex discrimination. These rulings are often reversed on appeal through summary orders, but not always. Judges are required, under Iqbal, to use their common experience in issuing these rulings, but they often do not see what Black employees, and others protected under Title VII, see: at some point, a pattern of bad treatment may prove intentional discrimination.

In reaching this holding, the Court of Appeals applies the following legal principles relevant to discrimination claims. They all stem from Second Circuit case law, and they may be relevant to your case:

1. Claims under the New York State Human Rights Law are analyzed under New York City HRL standards. The Second Circuit has been saying this for about a year now, but in this case the Court says so without even citing cases in support of that proposition. The NYSHRL does not expressly call for that statutory construction, at least in the context of aligning the state law with the city law, but the state law does say it should be broadly interpreted. The only place to look in fulfilling that objective would be the NYCHRL.

2.  “[e]vidence relating to company-wide practices may reveal patterns of discrimination against a group of employees, increasing the likelihood that an employer’s offered explanation for an employment decision regarding a particular individual masks a discriminatory motive.” Hollander v. Am. Cyanamid Co., 895 F.2d 80, 84 (2d Cir. 1990).

3. "with respect to a hostile work environment claim, we have emphasized that, 'because the crucial inquiry focuses on the nature of the workplace environment as a whole, a plaintiff who herself experiences discriminatory harassment need not be the target of other instances of hostility in order for those incidents to support her claim.'” The case for that proposition is Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62 (2d Cir. 2000), a case I argued 25 years ago. The Court of Appeals holds that Brown does have a viable hostile work environment case, which I will discuss in a future blog post. 

4. “an inference of discriminatory intent may be derived from a variety of circumstances, including, but not limited to: . . . the sequence of events leading to the plaintiff’s discharge.” That's from Liebowitz v. Cornell Univ., 584 F.3d 487 (2d Cir. 2009). That is something of a catch-all proposition, but a suspicious sequence of events may support an inference of discrimination. I saw this principle surface frequently in the 1990s but not so much lately. But this is still good law.

5. "even if alleged 'instances of disparate treatment may not separately rise to the level of adverse employment actions, [a plaintiff] is permitted to create a mosaic with the bits and pieces of available evidence that, taken together, support a plausible inference of intentional discrimination.'” The cite for that is Buon v. Spindler, 65 F.4th 64 (2d Cir. 2023). The "mosaic" language is relatively new, but it's another "totality of the circumstances" doctrine that plaintiffs will use when there are no racial epithets or other race-specific allegations, but instead a series of adverse personnel actions that in their totality altered the work environment for the worse.

6. “Actions taken by an employer that disadvantage an employee for no logical reason constitute strong evidence of an intent to discriminate.” That derives from Stratton v. Dept. of the Aging, 132 F.3d 869 (2d Cir. 1997). I want to talk about this at some length. Stratton was decided nearly 30 years ago, written by then-district judge Denny Chin before he was elevated to the Second Circuit. I recall seeing that footnote at the time and using that language to avoid Rule 12 and summary judgment dismissals. That strategy did not always work, but I don't know why; maybe it's because that language appears in a footnote in Stratton. Maybe judges think that language will allow any case involving bad workplace decisionmaking to reach trial, thereby undermining the employment at-will principle and the doctrine that courts are not "super-personnel" departments, unable to right every injustice in the workplace. Jurors may draw the inference set out in the Stratton footnote, but maybe judges were looking for more evidence than simply inexplicably bad treatment. Excluding the Stratton case itself, where it originated, as well as this case, that principle, so useful to plaintiffs in Title VII cases, has been cited exactly 8 times. It has only been cited by the Second Circuit once previously, in May 2025, in Flanagan v. Girl Scouts of Suffolk County, a summary order reported at 2025 WL 1501751 (May 27, 2025), which reinstated a race discrimination case. (I argued Flanagan and cited Stratton in the reply brief). While this language surfaced from time to time in district court rulings, it has been dormant in the Court of Appeals until this year. Two of the judges on the Flanagan panel sat on Brown's case (Wesley and Bianco), so they must have remembered this language from Flanagan.

This case is a summary order, so its precedential value is limited. But you can still cite summary orders provided you note in your brief that the case is a summary order. Even so, the principles above derive from precedential rulings, which remain good law until the Supreme Court says otherwise.

A good primer on why downsizing cases are difficult to win under the Age Discrimination in Employment Act

Another case from the Second Circuit reinforces how difficult it is to win an employment discrimination case, particularly when the plaintiff is fired due to corporate restructuring motivated by financial distress.

The case is Tillman v. Gernadier Realty Corp., a summary order issued on October 15. Plaintiff worked for this property management corporation where she held several roles relating to energy conservation. She claims she was fired after 40 years of employment due to her age.

The case does not survive summary judgment, however. One of defendant's largest clients was Starrett City a housing development in Brooklyn and defendant's most profitable contract. Much of plaintiff's work was devoted to Starrett City, and that contract contributed to more than one-third of defendant's revenue. The loss of that contract was a huge blow to plaintiff's employer. You are probably thinking this is a standard downsizing case, where management has to let people go to stay afloat financially, but the twist is that defendant first told plaintiff that she would remain in her position despite the organizational restructuring, as she had potential to contribute to other energy projects. But they fired her anyway.

The case fails, the Court of Appeals (Wesley, Bianco and Robinson) holds, because a consulting firm that management retained to evaluate its options recommended a comprehensive restructuring of the department overseen by plaintiff; this led to a new position for plaintiff. But the restructuring continued in the months that followed and the company pursued more cost-saving options, including outsourcing. After plaintiff rejected an outsourcing option that would have paid her $3,000 per month, she was terminated, and her duties were undertaken by third-party consultants. 

The Second Circuit says plaintiff cannot overcome this evidence that she was terminated for age-neutral reasons. She does point out that management asked her at one point how much longer she planned to work. But that is not evidence of age discrimination under Rankin v. Wyatt Co., 125 F.3d 55 (2d Cir. 1997). Asking questions about an employee's retirement plans does not violate the civil rights laws. That principle will remain with us forever, and it allows management to broach the subject without fear of being sued, unless management does so in an obnoxious and discriminatory manner. But merely asking an older worker about her retirement plans is not enough to prove age discrimination. While the Court does not cite this principle, it is also true that firing older workers to save money id not always proof that management was practicing age discrimination. And, while plaintiff argued that she was demoted and had to work under a much younger supervisor with a lower title in a department that did not "make sense," the Court returns to the company's need to restructure the company to save money. Nor is the Court of Appeals persuaded by plaintiff's statistical evidence that the company had a pattern of firing older employees

 

Warrantless police seach of parents' home on Long Island did not violate Constitution

The police in Rockville Centre, on Long Island, searched the property of Charles and Geraldine Griffin. They have since passed away. Their children, Caril and Craig, nonetheless claim the house was searched in violation of the Fourth Amendment. The issue is whether the children may pursue this case even though they did not own the house at the time of the search, and whether the police conducted the searched the property in good faith.

The case is Simmons v. Incorporated Village of Rockville Centre, a summary order issued on October 21. You have a reasonable expectation of privacy in your own house and on your property; that legal principle is rock-solid. But what if you don't live there but visit regularly? That is the case here. 

The problem is the Complaint is not specific on this issue. Caril asserts that she "regularly" spent time at her parents' property, but "says nothing about how frequently she stayed over of whether she had been staying over around the time of the alleged searches." Holiday visits would not be enough, the Court says. Nor is it enough to assert she maintained a bedroom on the property. The Court writes, "In the end, these sparse allegations and the lack of temporal context regarding Simmons’s  connection  to  the  Griffins’ property  render  impossible  any assessment of whether Simmons plausibly enjoyed a sufficient degree of acceptance into the Griffin household to trigger the Fourth Amendment’s protections." Caril's case was therefore properly dismissed at the Rule 12 stage, before she could take any discovery on the case.

Craig, the brother, also asserts a claim, which was dismissed on summary judgment, post-discovery. The searches in July 2012 and May 2013 are at issue. The July 2012 search cannot be challenged because the defendants were able to inspect the property following their observations from publicly accessible areas, like the mailman's route leading up the residence. It sounds like the police searched the property after viewing something suspicious from a publicly-accessible area, some kind of fire or safety hazard. As the Court notes, "officers need not shield their eyes when passing by the home on public thoroughfares."

Craig's other claim, however, is more complex, but he still loses. That search, on May 1, 2013, saw the Fire Safety Inspector and Fire Chief enter the property without as warrant and cut the padlock on the gate to access the Griffins' backyard. The district court granted these defendants qualified immunity on the theory that they acted in an objectively reasonable manner, and the Second Circuit (Carney, Sullivan and Lee) agrees, reasoning that they suspected a fire or safety hazard. The Court says this:

Upon their arrival, the defendants found the Griffins’ property in a “hazardous” and “threatening” condition.  Klugewicz [the Fire Safety Inspector] noticed a “strong smell of gas” emanating from the property, and the defendants also observed a worn extension cord on the porch.  In addition, the property’s yard was “completely overgrown,” the residence’s windows “could not be seen as they were blocked with extreme dirt and packed with clothes from inside the house,” and the premises were “so cluttered with motor vehicle parts, wires, debris, and propane [tanks] that it was a fire hazard.” The defendants accordingly determined that it was necessary to shut off the electrical service to the property and to immediately investigate the source of the smell.

Disability-related expulsion from son's basketball game does not violate Americans with Disabilities Act

This case was brought under the Americans with Disabilities Act. The plaintiff is the father of a high school basketball player who was expelled from an out-of-state athletic tournament, which prompted the basketball team, as a well as a team from a private league, to sever their relationships with the father and son, leaving the son without a team. The case was dismissed, and the Court of Appeals affirms, so the case is over.

The case is Lafayette v. Blueprint Basketball, a summary order issued on October 15. Here is what happened, according to the father: in 2018, the father suffered a traumatic brain injury while playing basketball; that injury has affected his emotions and limits his ability to interact with others. A year later, his son joined a private basketball club.When dad attended his son's basketball game, he was expelled following a dispute with "a game official," or referee. Dad sent an angry email that he claims was an instance of "impulsive symptomatic behavior." The son was next kicked off the team and the basketball director issued a no-trespass order against dad for the team practices. The son was also "not welcome" to join another team due to this dispute with Blueprint Basketball. The basketball coaches had "heavy concerns" about dad.

The ADA claim is dismissed. The Court of Appeals (Chin, Calabresi and Lee) holds that the Complaint asserts only that plaintiff and his son were barred due to plaintiff's disruptive behavior. While the disability might explain the father's outburst which resulted in the expulsion, the Second Circuit holds that such "misconduct is a legitimate and nondiscriminatory reason for terminating [the relationship], even when such misconduct is related to a disability."

The Court of Appeals had previously applied such reasoning to an employment case, McElwee v. County of Orange, 700 F.3d 635 (2d Cir. 2012), a case that I handled. The idea is that even the expulsion from work (or an athletic event) stems from disability-related behavior, that does not give rise to an ADA violation, as some workplace behavior is too intolerable for management to accept even if the ADA prohibits disability discrimination. That rule is so rock-solid these days that Lafayette's case does not even proceed beyond the Rule 12 motion-to-dismiss stage, and he is unable to generate discovery to further support his claim.