Admissions Establishing But-For Retaliation Under §1981: El Chaar v. NYU College of Dentistry

1. Introduction

In El Chaar v. NYU College of Dentistry, 24-1169 (2d Cir. Apr. 2, 2025), the Second Circuit addressed two key issues under 42 U.S.C. § 1981: the timeliness of a hostile work environment claim and the evidentiary threshold for proving retaliation.

Plaintiff: Dr. Edgard El Chaar, a Lebanese immigrant and part-time then full-time faculty member at NYU College of Dentistry.
Defendant: New York University College of Dentistry (“NYU”).
Procedural Posture: Appeal from summary judgment for NYU on § 1981 hostile environment, discrimination, and retaliation claims. The district court granted judgment on the hostile environment claim as time-barred, granted discrimination summary judgment, and dismissed retaliation and state-law claims.
Key Issues:
1. Whether El Chaar’s hostile work environment claim under § 1981 was timely given the “continuing violation” doctrine.
2. Whether direct evidence—namely, the decision-maker’s admission—sufficed to prove a retaliatory adverse action as a but-for cause under § 1981.

2. Summary of the Judgment

The Second Circuit divided its decision into two parts:

Hostile Work Environment (Time Bar): The court affirmed summary judgment for NYU. It held that no discrete act within the four-year limitations period (post-October 6, 2017) contributed to a hostile work environment as defined by National R.R. Passenger Corp. v. Morgan (536 U.S. 101, 115 (2002)).
Retaliation:
- Interim Chair Appointment: Vacated the judgment and remanded, finding direct evidence (an admission by NYU’s dean) that El Chaar was passed over “because of [his] complaint to OEO”—sufficient to survive summary judgment.
- Permanent Chair Appointment: Affirmed summary judgment. Even assuming a prima facie case, El Chaar failed to show pretext given NYU’s articulated non-retaliatory reasons (tenure status, consensus-building skills, survey results).

3. Analysis

3.1. Precedents Cited

National R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002) – longevity requirement for hostile environment and continuing violation doctrine.
Byrne v. Rutledge, 623 F.3d 46 (2d Cir. 2010) – summary judgment standard in employment discrimination cases.
Banks v. General Motors, LLC, 81 F.4th 242 (2d Cir. 2023) – four-year statute of limitations for § 1981 claims.
Hawkins v. 1115 Legal Serv. Care, 163 F.3d 684 (2d Cir. 1998) – passing over for promotion as an adverse employment action.
Littlejohn v. City of New York, 795 F.3d 297 (2d Cir. 2015) – direct vs. circumstantial evidence in retaliation cases.
Zann Kwan v. Andalex Grp. LLC, 737 F.3d 834 (2d Cir. 2013) – burden-shifting in retaliation claims.
King v. Aramark Servs. Inc., 96 F.4th 546 (2d Cir. 2024) – requirement of an act within limitations for hostile environment claims.
Fincher v. Depository Trust & Clearing Corp., 604 F.3d 712 (2d Cir. 2010) – employer’s failure to investigate cannot alone constitute a hostile work environment.

3.2. Legal Reasoning

a. Summary Judgment Standard. Under Fed. R. Civ. P. 56, courts view the record “in the light most favorable to the nonmoving party” and will grant judgment as a matter of law when there is no genuine dispute of material fact. (Byrne v. Rutledge, 623 F.3d 52.)

b. Hostile Work Environment—Statute of Limitations.

Section 1981 claims have a four-year limitations period. (Banks, 81 F.4th 260.)
Hostile environment claims survive the statute of limitations only if part of “the same unlawful practice” includes an act within the four-year window. (Morgan, 536 U.S. 122.)
El Chaar pointed to no hostile act falling after October 6, 2017, and his post-2017 complaints or OEO failures are not discrete discriminatory acts. Summary judgment was proper.

c. Retaliation—Direct Evidence vs. Circumstantial Evidence.

Section 1981 requires proof that a protected activity was a but-for cause of an adverse employment action. (Banks, 81 F.4th 275.)
With direct evidence (such as an admission by the decision-maker), there is no need to invoke the McDonnell Douglas burden-shifting framework. (Porter v. Dartmouth-Hitchcock Med. Center, 92 F.4th 129, 149 (2d Cir. 2024)).
Dean Bertolami’s explicit statement—“because of your complaint to OEO, we can’t … appoint you acting chair”—was direct evidence entitling El Chaar to a trial on his Interim Chair retaliation claim.

3.3. Impact

This decision clarifies two doctrines of broad significance:

Direct Admissions as Conclusive Evidence. Where the decision-maker acknowledges but-for causation, courts must credit that admission at summary judgment, bypassing McDonnell-Douglas burdens.
Limits of the Continuing Violation Doctrine. In hostile environment cases under § 1981, plaintiffs must identify at least one discrete act within the statute of limitations—mere ongoing resentment, failure-to-investigate, or training lapses will not suffice.

Future litigants will strive to preserve direct evidence (e.g., emails, recorded statements) to trigger a trial, and employers must be cautious about off-the-cuff remarks from decision-makers.

4. Complex Concepts Simplified

Summary Judgment: A pretrial decision when no important fact is disputed, so the court can rule on the legal claims immediately.
Prima Facie Case: The minimum set of facts a plaintiff must show to raise a presumption of discrimination or retaliation, absent a rebuttal by the employer.
McDonnell-Douglas Burden-Shifting: A three-step approach for circumstantial cases: plaintiff shows a prima facie case → employer offers a legitimate reason → plaintiff shows pretext.
Direct vs. Circumstantial Evidence: Direct evidence openly demonstrates the illegal motive (e.g., “I did it because you complained”). Circumstantial evidence requires inference (timing, weakened performance reviews, etc.).
Continuing Violation Doctrine: Allows hostile work environment claims to include acts outside the limitation period, but only if an act within the period is part of the same discriminatory pattern.

5. Conclusion

El Chaar v. NYU College of Dentistry cements a critical principle: admissions by a decision-maker that a protected act was the cause of an adverse employment decision constitute direct evidence that will survive summary judgment. At the same time, it reaffirms the scope of the continuing violation doctrine by requiring a discrete act within the four-year window for hostile work environment claims. For practitioners and scholars, this case is a notable marker in the evolution of § 1981 jurisprudence, emphasizing evidence preservation and precise pleading of unlawful acts.