ADA Retaliation Without Proof of Disability and the Demands of Pretext: Commentary on Philbert v. New York City Department of Education (2d Cir. 2025)

Court: United States Court of Appeals for the Second Circuit
Docket No.: 24-804
Decision Date: November 21, 2025
Disposition: Summary judgment for Defendant affirmed (summary order)

I. Introduction

This commentary analyzes the Second Circuit’s summary order in Philbert v. New York City Department of Education, No. 24-804 (2d Cir. Nov. 21, 2025) (summary order), an Americans with Disabilities Act (“ADA”) retaliation case arising from a public-school teacher’s request for an accommodation.

Plaintiff–Appellant Shakema Philbert, a probationary teacher employed by the New York City Department of Education (“DOE”), alleged that DOE retaliated against her in violation of the ADA, 42 U.S.C. § 12101 et seq., when it discontinued her probationary employment after she requested that an air conditioner be restored in her classroom as an accommodation for her migraines.

The district court (Rochon, J., S.D.N.Y.) granted summary judgment to DOE on the ground that Philbert had not created a genuine dispute of fact that she had a disability (or was regarded as disabled) under the ADA. On appeal, the Second Circuit held that this legal premise was wrong: an ADA retaliation plaintiff need not prove that she in fact has a disability, so long as she held a good-faith, reasonable belief that the employer’s conduct violated the ADA. Nonetheless, the court affirmed the judgment on an alternative ground: DOE articulated a legitimate, nonretaliatory reason for the termination—persistent underperformance—and Philbert failed to produce sufficient evidence of pretext.

Although the order is non-precedential under Second Circuit Local Rule 32.1.1, it is citable and is instructive in three important respects:

It reiterates and applies the rule that ADA retaliation claims do not require proof of an actual (or “regarded as”) disability.
It underscores the centrality of “but-for” causation and pretext at the third step of the McDonnell Douglas framework.
It illustrates how extensive performance documentation can defeat a retaliation claim even where temporal proximity is strong.

II. Summary of the Opinion

Philbert’s sole federal claim was ADA retaliation. She asserted that she engaged in protected activity by requesting the restoration of an air conditioner in her classroom to accommodate her migraines, and that DOE retaliated the next day by discontinuing her probationary employment.

The district court granted summary judgment to DOE, reasoning that Philbert had failed to raise a genuine issue of fact that she was disabled or regarded as disabled within the meaning of the ADA, and thus (in the court’s view) could not maintain an ADA retaliation claim.

The Second Circuit:

Corrected the legal standard for ADA retaliation: Relying on Sarno v. Douglas Elliman-Gibbons & Ives, Inc., 183 F.3d 155 (2d Cir. 1999), the panel held that a plaintiff can satisfy the “protected activity” requirement even if her condition is not a disability under the ADA, so long as she had a good-faith, reasonable belief that the employer’s conduct violated the ADA. Thus, the district court erred by treating proof of disability as a prerequisite to retaliation liability.
Affirmed on an alternative ground: Invoking Headley v. Tilghman, 53 F.3d 472 (2d Cir. 1995), the court affirmed because the record showed that DOE had a legitimate, nonretaliatory reason (underperformance) and Philbert failed to produce evidence from which a reasonable jury could find pretext or “but-for” causation.
Applied McDonnell Douglas and but-for causation: Following Tafolla v. Heilig, 80 F.4th 111 (2d Cir. 2023), and Natofsky v. City of New York, 921 F.3d 337 (2d Cir. 2019), the panel confirmed that ADA retaliation requires “but-for” causation and used the familiar burden-shifting analysis for retaliation claims.

DOE supported its motion with evidence that:

Philbert’s probationary term had been repeatedly extended over five years due to performance concerns.
She had 13–24 absences per year in each of the last four school years.
She received negative performance evaluations, including “Ineffective” and “Developing” ratings in her final year.

The court emphasized, citing McPherson v. N.Y.C. Dep’t of Educ., 457 F.3d 211 (2d Cir. 2006), that courts are not adjudicating whether those criticisms were correct, but whether they formed the employer’s actual motivation. On that record, performance issues constituted a legitimate, nonretaliatory basis for non-tenure.

At the pretext stage, the court held that temporal proximity (the discontinuance issued the day after Philbert’s accommodation request) and an ambiguous email exchange between the principal and vice principal were insufficient, in light of the multi-year performance record, to allow a reasonable jury to find retaliation was the but-for cause of the decision. The judgment for DOE was therefore affirmed.

III. Analysis

A. Procedural Posture and Standard of Review

The decision arises from an appeal of the district court’s grant of summary judgment in favor of DOE. The Second Circuit reviews such grants de novo, as reaffirmed by citation to Hellstrom v. U.S. Dep’t of Veterans Affs., 201 F.3d 94 (2d Cir. 2000).

The panel also restated the familiar summary judgment standard from Samuels v. Mockry, 77 F.3d 34 (2d Cir. 1996), citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986): summary judgment is appropriate when, viewing the evidence in the light most favorable to the non-movant, there is no genuine issue of material fact requiring a trial.

This posture is critical. The court does not weigh evidence or resolve credibility disputes. Instead, it asks whether, assuming the plaintiff’s version where reasonably supported, a jury could lawfully find in her favor. It is in that light that the court examines both the district court’s legal misunderstanding and the record evidence of DOE’s stated reasons.

B. Legal Framework for ADA Retaliation

1. Statutory basis

The ADA’s anti-retaliation and anti-interference provisions are codified at 42 U.S.C. § 12203. The panel quotes subsection (b):

“The ADA makes it unlawful for an employer ‘to coerce, intimidate, threaten, or interfere with any individual in the exercise or enjoyment of . . . any right granted or protected by this chapter.’”

Although retaliation per se is addressed in § 12203(a), courts typically treat actions that punish protected activity (such as requesting a reasonable accommodation) as retaliation claims analyzed under the same framework as Title VII retaliation, with the adaptations set out in ADA case law.

2. McDonnell Douglas burden-shifting

The court confirms that the McDonnell Douglas burden-shifting framework (McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)) applies to ADA retaliation claims, citing Tafolla v. Heilig, 80 F.4th 111 (2d Cir. 2023).

Under this framework:

Prima facie case: The plaintiff must show that:
1. She engaged in protected activity.
2. The employer was aware of this activity.
3. She suffered an adverse employment action.
4. There was a causal connection between the protected activity and the adverse action.
The panel quotes this formulation from Weixel v. Bd. of Educ. of City of New York, 287 F.3d 138 (2d Cir. 2002).
Employer’s legitimate reason: If the prima facie case is established, the burden shifts to the defendant “to articulate some legitimate, non-retaliatory reason for the employment action.” Kwan v. Andalex Grp. LLC, 737 F.3d 834, 845 (2d Cir. 2013). This is a burden of production, not persuasion, as Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000), makes clear.
Pretext and but-for causation: The burden then returns to the plaintiff to show that the employer’s reason is pretextual and that retaliation was a but-for cause of the adverse action. The panel cites Sista v. CDC Ixis N. Am., Inc., 445 F.3d 161, 169 (2d Cir. 2006), emphasizing that the plaintiff “must then produce evidence and carry the burden of persuasion that the proffered reason is a pretext.”

The court adopts the now-settled rule that ADA retaliation claims require “but-for” causation (as opposed to mere “motivating factor” causation). Citing Tafolla and Natofsky v. City of New York, 921 F.3d 337, 347 (2d Cir. 2019), it states that the plaintiff must show that, “but for” the protected activity, the adverse action would not have occurred.

C. Protected Activity and the District Court’s Legal Error

A central point of the Second Circuit’s decision is the correction of a recurring misconception: that an ADA retaliation plaintiff must prove she is disabled within the meaning of the statute (or “regarded as” disabled) in order to be protected from retaliation.

The panel quotes and applies Sarno v. Douglas Elliman-Gibbons & Ives, Inc., 183 F.3d 155 (2d Cir. 1999):

A plaintiff can satisfy the protected activity requirement in proving a retaliation claim even if “his condition was not a disability within the meaning of the ADA” so long as “he can establish that he possessed a good faith, reasonable belief that the underlying challenged actions of the employer violated” the ADA.

Accordingly, the panel concludes:

“The district court thus erred in granting summary judgment on the ground that Philbert failed to raise a genuine issue of material fact as to whether she had a disability, or was regarded as having one. Philbert was not required to prove her disability in order to make out a retaliation claim under the ADA.”

That holding is doctrinally important. Under Sarno and now reaffirmed in Philbert, ADA retaliation protection extends to individuals who invoke rights under the ADA based on a good-faith, reasonable belief in their entitlement, even if a court later finds that:

they do not meet the statutory definition of disability, or
the requested accommodation was not legally required.

In practical terms, Philbert’s request for an air conditioner due to migraines can constitute “protected activity” even if a factfinder might later conclude that her migraines did not substantially limit a major life activity or otherwise fall short of the ADA’s disability definition. The focus, for retaliation purposes, is on her reasonable, good-faith belief and the employer’s response to that protected conduct.

D. Alternative Ground for Affirmance: Legitimate Reason and Lack of Pretext

Having identified the district court’s legal error, the panel nevertheless affirms the judgment based on an alternative ground supported by the record. Citing Headley v. Tilghman, 53 F.3d 472, 476 (2d Cir. 1995), it reminds that the Court of Appeals is “free to affirm on any ground that finds support in the record, even if it was not the ground upon which the trial court relied.”

1. DOE’s legitimate, nonretaliatory reason

The court concludes that DOE met its step-two burden by articulating a legitimate, nonretaliatory reason: Philbert’s underperformance, as reflected in:

Five years of extended probation without achieving tenure-level performance.
13–24 absences per school year over the last four years of her employment.
Negative reviews in her final year, including “Ineffective” and “Developing” ratings.

The Second Circuit emphasizes, via McPherson v. N.Y.C. Dep’t of Educ., 457 F.3d 211, 216 (2d Cir. 2006), that courts are “decidedly not interested in the truth of the allegations against plaintiff. We are interested in what motivated the employer.” That is, the question is not whether the employer fairly assessed performance or whether Philbert was in fact an effective teacher; the question is whether DOE’s belief in her underperformance was honestly held and non-pretextual.

2. Insufficient evidence of pretext and but-for causation

The decisive step is step three of McDonnell Douglas—whether Philbert produced evidence from which a reasonable jury could infer that DOE’s stated reason was pretext and that retaliation was the but-for cause of her discontinuance.

The court assumes, without deciding, that Philbert made out a prima facie case (including the causal connection element) and proceeds directly to pretext. It then evaluates the following:

Temporal proximity: Philbert’s discontinuance was issued “the day after she asked the principal to restore the air conditioner.” Temporal proximity can support an inference of causation at the prima facie stage. But, relying on Ya-Chen Chen v. City Univ. of N.Y., 805 F.3d 59, 72 (2d Cir. 2015), the panel reiterates that temporal proximity alone is insufficient at the pretext stage to carry the plaintiff’s ultimate burden. Once an employer has produced a legitimate reason, more is needed.
Email exchange evidence: Philbert pointed to an email exchange between the principal and vice principal in February 2019. While the order does not reproduce the emails’ content, the panel dismisses their probative value, concluding that they do not provide a “reasonable basis” for a jury to conclude that DOE’s desire to retaliate was a but-for cause of her termination, particularly in light of the extended probation and long-standing performance issues.

In effect, the court holds that:

Temporal proximity + ambiguous internal communications − corroborating evidence (e.g., inconsistencies, comparators, or shifting explanations) + a well-documented history of performance concerns = insufficient evidence of pretext under the ADA’s but-for standard.

In doing so, the court aligns this case with prior Second Circuit decisions that guard the pretext stage carefully and refuse to send cases to a jury where the only substantial evidence is timing and weak circumstantial hints, in the face of a strong performance record against the plaintiff.

E. Precedents Cited and Their Role in the Decision

The panel’s reasoning is deeply rooted in a network of Supreme Court and Second Circuit precedents. Each citation supports a particular piece of the analysis:

1. Summary judgment standard

Hellstrom v. U.S. Dep’t of Veterans Affs., 201 F.3d 94 (2d Cir. 2000): Cited for the proposition that grants of summary judgment are reviewed de novo.
Samuels v. Mockry, 77 F.3d 34 (2d Cir. 1996): Restates the basic standard: summary judgment is proper when no genuine issue of material fact exists, drawing on Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986).

2. ADA retaliation framework

Lovejoy-Wilson v. NOCO Motor Fuel, Inc., 263 F.3d 208 (2d Cir. 2001): Quoted for the statutory language of § 12203(b) and to anchor the notion that employer interference with ADA rights is unlawful.
Tafolla v. Heilig, 80 F.4th 111 (2d Cir. 2023): Confirms that McDonnell Douglas applies to ADA retaliation and incorporates the but-for causation standard via Natofsky.
Weixel v. Bd. of Educ. of City of New York, 287 F.3d 138 (2d Cir. 2002): Provides the elements of a prima facie retaliation case under the ADA.
Natofsky v. City of New York, 921 F.3d 337 (2d Cir. 2019): Supplies the “but-for” causation requirement for ADA (and Rehabilitation Act) claims, which the panel imports to ADA retaliation via Tafolla.

3. Burden shifting and pretext

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973): The foundational burden-shifting framework for discrimination and retaliation claims.
Kwan v. Andalex Grp. LLC, 737 F.3d 834 (2d Cir. 2013): Cited for the employer’s step-two burden: articulating a legitimate, nonretaliatory reason.
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000): Clarifies that the employer’s step-two burden is one of production, not persuasion.
Sista v. CDC Ixis N. Am., Inc., 445 F.3d 161 (2d Cir. 2006): Used to describe the plaintiff’s burden at step three: to show that the proffered reason is pretext.

4. Protected activity and disability

Sarno v. Douglas Elliman-Gibbons & Ives, Inc., 183 F.3d 155 (2d Cir. 1999): The key authority for the proposition that “protected activity” can rest on a good-faith, reasonable belief in the existence of an ADA violation, even if the plaintiff is not actually disabled under the statute. Philbert applies Sarno to correct the district court’s legal error.

5. Appellate authority to affirm on alternative grounds

Headley v. Tilghman, 53 F.3d 472 (2d Cir. 1995): Provides the principle that the appellate court can affirm on any ground supported by the record, regardless of the district court’s reasoning. This allows the panel to bypass the disability question and decide on pretext.

6. Assessing the employer’s motivation

McPherson v. N.Y.C. Dep’t of Educ., 457 F.3d 211 (2d Cir. 2006): Establishes that courts are “decidedly not interested in the truth of the allegations against plaintiff” but in what motivated the employer. This underpins the panel’s acceptance of DOE’s performance-based rationale as legitimate even if disputed.

7. Temporal proximity and pretext

Ya-Chen Chen v. City Univ. of N.Y., 805 F.3d 59 (2d Cir. 2015): Provides the rule that temporal proximity alone is insufficient, at the pretext stage, to defeat summary judgment. Philbert applies this principle to hold that the day-after termination, though suspicious in timing, is inadequate without more robust evidence.

IV. Impact and Practical Implications

A. Significance for ADA Retaliation Doctrine

Substantively, the order reinforces an important aspect of ADA retaliation doctrine:

Protected activity is broader than proven disability. Employees need not meet the technical definition of “disability” to be shielded from retaliation for asserting ADA rights. Requesting an accommodation based on a good-faith, reasonable belief that one is entitled to it is protected conduct.
Retaliation is conceptually distinct from discrimination. While an ADA discrimination claim often requires proof that the plaintiff is disabled under the statute, retaliation focuses on the employer’s response to the employee’s attempt to enforce statutory rights, not on whether the underlying entitlement existed.

This distinction discourages employers from “punishing” employees for raising ADA issues, even in borderline or ultimately unsuccessful cases, and encourages employees to seek accommodations without first litigating their own disability status.

B. Practical guidance for employees and plaintiffs’ counsel

For employees and their lawyers, the case offers both reassurance and caution:

Reassurance: Protected activity standard remains employee-friendly. Employees with conditions like migraines, chronic pain, or episodic illnesses can request accommodations and, if they do so in good faith and reasonably, are protected from retaliation regardless of ultimate disability status.
Caution: Proving pretext is demanding under but-for causation. The key challenge remains step three. Plaintiffs must marshal concrete evidence—such as:
- Inconsistencies or contradictions in the employer’s explanations.
- Evidence that similarly situated employees without protected activity were treated better.
- Documentation suggesting the adverse action was contemplated only after (or because of) the protected act.
- Statements or documents revealing retaliatory animus.
Mere temporal proximity, even when extremely close (here, one day), will rarely suffice when the employer has a well-documented, nonretaliatory rationale.

C. Practical guidance for employers

For employers, including public entities like school systems, the case underscores several lessons:

Document performance issues consistently and contemporaneously. DOE’s extensive record of performance evaluations, extended probation, and attendance problems was decisive. Employers who maintain systematic, contemporaneous performance records are in a far stronger position at summary judgment.
Separate decision-making from protected activity. Even when performance concerns are real, decision-makers should ensure that:
- Performance-based decisions are made according to established timelines and standards.
- Documentation of those concerns predates or is clearly independent of the protected activity.
- Internal communications avoid language that could be construed as linking the protected request to the adverse action.
Train managers on retaliation risks. Managers and principals must understand that requesting an accommodation is protected conduct, even if the employee ultimately is not legally “disabled.” Retaliatory emails, offhand comments, or sudden negative actions can create liability even where performance concerns are genuine.

D. Guidance for district courts

For trial courts, Philbert sends two clear messages:

Do not condition ADA retaliation claims on proof of disability. The protected activity element is satisfied by a good-faith, reasonable belief, as Sarno and Philbert reaffirm.
Apply but-for causation rigorously at the pretext stage. After Natofsky and Tafolla, ADA retaliation claims require more than suspicious timing when the employer has produced a substantial, documented performance-based rationale.

While the decision is a non-precedential summary order, it is citable and reflects the current Second Circuit approach to ADA retaliation and summary judgment under Local Rule 32.1.1 and Fed. R. App. P. 32.1.

V. Complex Concepts Simplified

A. What is “summary judgment”?

Summary judgment is a procedural device that allows a court to decide a case without a full trial when there is no genuine dispute of material fact. The moving party (here, DOE) must show that, even if all reasonable inferences are drawn in the non-movant’s favor, no reasonable jury could find for the non-movant on the legal elements of the claim.

B. Discrimination vs. retaliation under the ADA

Discrimination: Focuses on adverse actions taken because of an employee’s disability (e.g., firing someone because she is disabled or denying a reasonable accommodation she is legally entitled to).
Retaliation: Focuses on adverse actions taken because the employee engaged in protected activity, such as requesting an accommodation, filing an internal complaint, or bringing an EEOC charge, even if the underlying disability claim is debatable.

C. “Good faith, reasonable belief” standard

This standard means:

Good faith: The employee honestly believes that her rights under the ADA are being violated.
Reasonable: That belief would be considered reasonable by an objective person in her position, given what she knew at the time.

Under this rule, an employee does not lose retaliation protection merely because a court later disagrees about whether she was legally disabled or entitled to a specific accommodation.

D. “But-for” causation

“But-for” causation asks whether the adverse action would have occurred in the absence of the protected activity. If the employer would have taken the same action anyway, for legitimate reasons (e.g., documented performance issues), then but-for causation is not satisfied—even if retaliation played some minor part in the decision-making process.

E. “Pretext”

Pretext means that the employer’s stated legitimate reason is not the real reason for the adverse action, but a cover for retaliation or discrimination. A plaintiff can show pretext by:

Demonstrating internal inconsistencies in the employer’s explanation.
Producing evidence that the employer deviated from its usual procedures or policies.
Showing that similarly situated employees who did not engage in protected activity were treated better.
Pointing to statements or documents revealing illicit motive.

In Philbert, the court held that the combination of close timing and one email exchange did not undermine DOE’s extensive history of performance-based concerns, and thus did not establish pretext.

F. “Temporal proximity”

Temporal proximity refers to the closeness in time between protected activity and an adverse employment action. A very short interval (such as one day, as here) can support an inference of causation at the prima facie stage. But under cases like Ya-Chen Chen and now Philbert, temporal proximity alone usually cannot carry the plaintiff’s ultimate burden where the employer presents a strong, nonretaliatory rationale.

G. Probationary employment and discontinuance (New York context)

In New York City public schools, newly hired teachers serve a probationary period before obtaining tenure. During probation, teachers may be discontinued relatively easily if their performance is deemed unsatisfactory. In this case, DOE extended Philbert’s probation several times over five years, then issued a “probationary discontinuance” when it concluded that her performance did not warrant tenure.

VI. Conclusion

Philbert v. New York City Department of Education is a non-precedential but instructive Second Circuit decision that:

Reaffirms that ADA retaliation claims do not require proof that the plaintiff is actually disabled or “regarded as” disabled; a good-faith, reasonable belief in an ADA violation suffices for protected activity.
Demonstrates the central role of the McDonnell Douglas framework and the demanding but-for causation standard at the pretext stage for ADA retaliation.
Shows that even extreme temporal proximity (termination the day after a protected request) will not, by itself, defeat summary judgment where the employer has a robust record of performance-based concerns.
Highlights the importance of separating doctrinally the substantive disability question from the retaliation question: employers may not retaliate against employees for asserting ADA rights, regardless of whether those employees ultimately meet the disability standard.

For employees, the decision is a reminder that requesting accommodations is protected conduct even if one’s disability status is uncertain. For employers and courts, it is a clear signal that ADA retaliation claims must be analyzed under the proper legal standard for protected activity and causation, while still permitting summary judgment where the record overwhelmingly supports a legitimate, nonretaliatory reason for the adverse action.