Clarifying Employer Awareness and But-For Causation in Title VII Retaliation Claims

Introduction

This commentary examines the Second Circuit’s summary order in Khazin v. City of New York (2d Cir. Apr. 8, 2025). Valentin Khazin, a former NYPD sergeant, claimed that the City and individual officers retaliated against him after he allegedly refused to discriminate against a Black subordinate and filed multiple Equal Employment Opportunity (“EEO”) complaints. The district court granted summary judgment to the defendants, and Khazin appealed. The Second Circuit affirmed.

Summary of the Judgment

The Court of Appeals affirmed the district court’s grant of summary judgment for the City of New York and thirteen individual defendants on Khazin’s Title VII, New York State Human Rights Law (“NYSHRL”) and New York City Human Rights Law (“NYCHRL”) retaliation claims and his constructive discharge claim. Key rulings:

Khazin failed to show the defendants reasonably understood his refusal to carry out instructions as opposition to racial discrimination.
Certain employment actions (e.g., waitlists, minor scheduling changes) were not “materially adverse.”
Even assuming a prima facie case of retaliation, Khazin offered no evidence that retaliation was the but-for cause of the adverse actions; instead, defendants offered legitimate, non-retaliatory reasons.
Khazin’s constructive discharge and state‐law retaliation claims similarly failed for lack of causal evidence and were waived for insufficient briefing.

Analysis

1. Precedents Cited

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973): Framework for burden-shifting in retaliation claims.
Carr v. N.Y.C. Transit Auth., 76 F.4th 172 (2d Cir. 2023): Elements of a Title VII retaliation prima facie case.
Kelly v. Howard I. Shapiro & Assocs., P.C., 716 F.3d 10 (2d Cir. 2013): Employer awareness requires reasonable understanding of opposition to discrimination.
Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53 (2006): “Materially adverse” standard in retaliation.
Muldrow v. City of St. Louis, 601 U.S. 346 (2024): Reaffirmation of materially adverse standard.
Slattery v. Swiss Reinsurance Am. Corp., 248 F.3d 87 (2d Cir. 2001): Timing alone insufficient to infer retaliation when adverse actions predate protected activity.
Burkybile v. Board of Education, 411 F.3d 306 (2d Cir. 2005): Delay of over a year negates causation inference.
Zann Kwan v. Andalex Group LLC, 737 F.3d 834 (2d Cir. 2013): Pretext requires more than conclusory denials.
Brown v. Eli Lilly & Co., 654 F.3d 347 (2d Cir. 2011): Conclusory allegations cannot defeat summary judgment.

2. Legal Reasoning

The court applied de novo review to the grant of summary judgment under Fed. R. Civ. P. 56(a), construing all facts in Khazin’s favor. It followed the three-step McDonnell Douglas framework:

Prima facie case: Khazin needed to show (a) protected activity, (b) employer awareness, (c) materially adverse action, and (d) causal link.
Defendant’s burden: Produce legitimate, non-retaliatory reason for each challenged action.
Pretext/but-for causation: Khazin had to show retaliation was the but-for cause.

Key findings:

Awareness: Khazin’s failure to follow orders was not clearly tied to opposition to discrimination, so no reasonable understanding by supervisors.
Material adversity: Minor annoyances (e.g., training waitlists) do not “well might deter” a reasonable employee.
Causation: Much of the discipline arose from pre-existing investigations into unauthorized off-duty work and false anonymous allegations; gaps in time (over a year) further undermined causation.
Pretext: Khazin’s denials and conclusory affidavits lacked factual support to show defendants’ reasons were false.

3. Impact

This decision reinforces several important principles in employment retaliation law:

An employer must have a reasonable understanding that the employee’s conduct protested discrimination to satisfy the awareness element.
The materially adverse standard remains stringent—petty slights and ordinary workplace scheduling issues are not actionable.
Timing alone cannot establish causation when adverse actions stem from independent investigations or extend beyond a year after protected activity.
Conclusive affidavits or denials without factual underpinning cannot establish pretext.

Future litigants should clearly communicate the discriminatory basis for any refusal to follow orders and gather concrete evidence tying adverse employment decisions directly to protected activity.

Complex Concepts Simplified

Burden-shifting (McDonnell Douglas): Plaintiff first shows a minimal case of retaliation; employer then explains its actions; plaintiff must then prove true motive.
Materially adverse action: Anything likely to deter a reasonable employee from making or supporting discrimination charges, not mere annoyances.
But-for causation: Plaintiff must prove the adverse action would not have occurred “but for” the protected activity, not merely that it was a factor.
Summary judgment: A court decides the case without trial if no genuine factual dispute exists.

Conclusion

The Second Circuit in Khazin v. City of New York affirms that Title VII retaliation requires clear employer awareness of protected opposition, materially adverse actions that go beyond routine workplace grievances, and proof that retaliation was the but-for cause of adverse treatment. The case underscores the importance of precise communication of discriminatory intent and the necessity of concrete evidence to rebut legitimate, non-retaliatory justifications. This ruling will guide courts and practitioners in evaluating future retaliation claims under federal and state human rights laws.