Labor & Employment Law Daily Wrap Up, PUBLIC EMPLOYEES—2d Cir.: City employee could not establish retaliation based on recurring lunchtime meetings, (May 8, 2025)

By Jason Albright, J.D.

She had complained about a coworker’s alleged unwanted touching of her arm, back, and leg.

An employee of the City of New York, allegedly scheduled for recurring lunchtime meetings after she complained about unwanted touching by a coworker, could not revive her race and sex discrimination or retaliation claims, the Second Circuit found in a nonprecedential opinion. There was no evidence, said the court, that the defendants knew she was entitled to a one-hour lunch break between 12:00 and 2:00 p.m. every day pursuant to a labor contract or that she would not attend the lunch meetings due to her debilitating migraines (Collymore v. The City of New York, No. 23-1304 (2d Cir. May 7, 2025, nonprecedential)).

Alleged unwanted touching and complaints. The employee alleged that she confronted a coworker about the unwanted touching of her arm, back, and leg. She then allegedly lodged formal discrimination complaints regarding the unwanted touching.

Lunchtime meetings. The city and the employee’s supervisors then allegedly retaliated against her by scheduling two recurring meetings that sometimes interfered with her ability to take a one-hour lunch break between 12:00 and 2:00 p.m.

Contractual violation and exacerbation of migraines. She maintained that these lunch meetings both violated her labor contract and exacerbated her migraine condition.

Lawsuit and decision below. The employee sued, alleging “an assortment of claims that she was discriminated against on account of her race and sex, and was retaliated against for complaining about that discrimination, in violation of federal, state, and local law.” A federal district court granted the city’s motion for summary judgment, and she appealed.

Retaliation. The Second Circuit first affirmed summary judgment against the employee’s Title VII and Section 1983 retaliation claims. The employee maintained that the lunchtime meetings violated the labor contract and exacerbated her migraine condition, but even if the appeals court could assume that the scheduling of meetings during a two-hour window between 12:00 and 2:00 p.m. constituted an adverse action or a “materially adverse” change that “could well dissuade a reasonable worker from making or supporting a charge of discrimination,” she failed to establish that the defendants’ non-retaliatory reasons for scheduling the lunch meetings were pretextual. There was simply no evidence that they knew she was entitled to the one-hour lunch break allegedly specified by the contract or that she would not attend lunch meetings due to her debilitating migraines. Further, she offered no proof of the contract itself, much less the defendants’ knowledge of it.

There was also nothing in the record that explained how, as she alleged, she put the defendants on notice that she could never attend a lunch meeting as a result of her medical condition. It was undisputed that she never requested an accommodation from the city, and the record also reflected that employees were permitted to eat lunch during the meetings. Finally, though a note from her corroborated that she suffers from “chronic debilitating migraines,” nowhere did the note represent that her headaches prevented her from attending lunch meetings entirely.

State and local retaliation claims. The defendants were likewise entitled to summary judgment against the employee’s retaliation claims under the NYSHRL and NYCHRL, concluded the appeals court. She did not dispute that her NYSHRL claim is analyzed under the same framework as her Title VII claim, and though the NYCHRL incorporates a more lenient “any part” motivation standard, she failed to show even that much.

Race discrimination. The employee’s state and local race discrimination claims likewise failed. Though she identified several people she asserted are “her white and or male comparators” and “testified [in her deposition] that in each instance... they were compensated at a better rate of pay,” she offered no details about the alleged comparators’ qualifications, responsibilities, and rates of pay.

Sex discrimination. Summary judgment against her state and local sex discrimination claims was appropriate for similar reasons. To the extent those claims were based on her unsubstantiated assertions that she was paid less than her male counterparts and was treated rudely by her supervisors, they failed for the same reasons as her race discrimination claims.

That left only her remaining claims of sexual harassment based on the coworker’s alleged unwanted touching. In particular, she argued—for the first time on appeal—that October 2019 amendments to the NYSHRL, which instituted a more lenient standard for state discrimination claims, should be applied retroactively to revive her sexual harassment claim. Because she conceded that she did not raise any such argument below, however, this issue was forfeited.

The case is No. 23-1304.

Judge: Per curiam.

Attorneys: Special Hagan (Law Offices of Special Hagan) for Robin Collymore. Lorenzo Di Silvio, New York City Law Department, for City of New York.

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