Direct Evidence of Retaliatory Animus Bypassing the Burden-Shifting Framework in Section 1981 Claims

Introduction

This commentary examines the United States Court of Appeals for the Second Circuit’s summary order in El Chaar v. NYU College of Dentistry, No. 24-1169 (2d Cir. April 2, 2025). Dr. Edgard El Chaar, a part-time and later full-time faculty member at New York University’s College of Dentistry, alleged that derogatory comments about his race and ethnicity created a hostile work environment, and that NYU discriminated and retaliated against him in violation of 42 U.S.C. § 1981. After NYU prevailed on summary judgment in the district court, El Chaar appealed. The Second Circuit affirmed the grant of summary judgment on his hostile work environment and permanent chair claims, but vacated the judgment on his claim that NYU retaliated by passing him over for an interim department chair appointment. This decision establishes an important principle about the role of direct evidence of intent in § 1981 retaliation cases.

Summary of the Judgment

The Second Circuit held:

Hostile Work Environment: Dr. El Chaar’s § 1981 hostile work environment claim was time-barred because he did not identify any discriminatory acts occurring within the four-year statute of limitations period.
Retaliation – Interim Chair: Dr. El Chaar presented direct evidence—comments by the decision-maker, Dean Bertolami—that he was denied the interim chair position “because of [his] complaint to OEO.” This admission sufficed to raise a triable issue of fact on causation, obviating the need for the McDonnell-Douglas burden-shifting framework. The Second Circuit vacated the summary judgment as to that claim.
Retaliation – Permanent Chair: Although Dr. El Chaar made out a prima facie case that he was passed over for permanent department chair, NYU proffered a legitimate, non-retaliatory reason—namely, that the chosen candidate was a tenured full professor with superior consensus-building credentials. Dr. El Chaar failed to show pretext, so the district court rightly granted summary judgment on that claim.
Discrimination Claim: Dr. El Chaar abandoned his separate discrimination challenge to the permanent chair decision by failing to brief it on appeal.

Analysis

Precedents Cited

The court relied on a constellation of Supreme Court and Second Circuit authorities:

National R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002) – hostile work environment accrual and continuing violation doctrine.
Fincher v. Depository Trust & Clearing Corp., 604 F.3d 712 (2d Cir. 2010) – an employer’s mere failure to investigate does not constitute a hostile work environment absent alteration of employment terms.
Hawkins v. 1115 Legal Servs. Care, 163 F.3d 684 (2d Cir. 1998) – passing over an employee for promotion can be an adverse action in a retaliation claim.
Littlejohn v. City of New York, 795 F.3d 297 (2d Cir. 2015) – direct versus circumstantial evidence in discrimination and retaliation claims.
Zann Kwan v. Andalex Group LLC, 737 F.3d 834 (2d Cir. 2013) – the shifting burdens of proof under McDonnell-Douglas in retaliation cases.
Porter v. Dartmouth-Hitchcock Medical Center, 92 F.4th 129 (2d Cir. 2024) – reaffirming that direct evidence of retaliatory intent by the decision-maker removes the need for the burden-shifting framework.
Bellamy v. City of New York, 914 F.3d 727 (2d Cir. 2019) – a plaintiff’s own testimony may create a genuine dispute of material fact.
Banks v. General Motors, LLC, 81 F.4th 242 (2d Cir. 2023) – but-for causation standard for § 1981 retaliation claims.

Legal Reasoning

The Second Circuit’s reasoning can be divided along the claims:

Hostile Work Environment: The four-year statute of limitations for § 1981 claims begins to run at the time each discrete act of discrimination occurs. Because Dr. El Chaar could not show any hostile-environment act within the four-year window, his hostile work environment claim failed as a matter of law.
Interim Chair Retaliation: Dean Bertolami’s explicit statement—“we’re not appointing [you] because of your complaint to OEO”—constituted direct evidence of retaliatory animus. Under Second Circuit precedent, once a plaintiff adduces direct evidence of intent by the decision-maker, there is no necessity to invoke the McDonnell-Douglas burden-shifting framework. The plaintiff need only show that the protected activity was the but-for cause of the adverse action. The dean’s admission sufficed to create a triable issue on causation.
Permanent Chair Retaliation: Even if Dr. El Chaar established a prima facie case, NYU articulated a legitimate, non-retaliatory reason for selecting an external, tenured, consensus-building candidate. Dr. El Chaar could not point to evidence casting doubt on those credentials or showing that the real reason was retaliatory. His speculation and the fact that faculty survey responses were divided did not establish pretext.

Impact

This decision has several practical implications:

It underscores that a decision-maker’s own statements admitting retaliatory motive constitute direct evidence that can bypass the often elaborate burden-shifting framework.
Employers should be mindful that casual or off-hand admissions of motive in personnel discussions can be fatal in subsequent litigation.
Plaintiffs must still marshal timely evidence of hostile acts within the statute of limitations to sustain work-environment claims, and cannot rely on mere failure to investigate or remedial training lapses to prove hostility.
In failure-to-promote cases, employers’ documented, non-retaliatory reasons for selecting one candidate over another will generally prevail unless the plaintiff can show those reasons are a sham.

Complex Concepts Simplified

Section 1981: A federal statute that guarantees all persons the same rights to make and enforce contracts regardless of race.
Direct vs. Circumstantial Evidence: Direct evidence is an admission or statement by the decision-maker demonstrating intent. Circumstantial evidence relies on inference, such as timing or statistical anomalies.
McDonnell-Douglas Burden-Shifting: In cases lacking direct evidence, a plaintiff must first make a prima facie case of retaliation, then the employer must offer a legitimate reason, and finally the plaintiff must show that reason is pretextual.
Statute of Limitations in Hostile Work Environment Claims: Each discriminatory act starts a new limitations period. A plaintiff must identify at least one act within the statutory window to keep the claim alive.
But-For Causation: The plaintiff must prove that the protected activity was the actual cause of the adverse employment action, not merely a motivating factor.

Conclusion

The Second Circuit’s summary order in El Chaar v. NYU College of Dentistry clarifies two critical points in § 1981 litigation. First, direct admissions of retaliatory motive by a decision-maker at the time of the contested decision can alone defeat summary judgment by establishing but-for causation. Second, hostile work environment claims under § 1981 require at least one timely adverse act, and mere investigative failures or training lapses do not suffice. These holdings will guide both plaintiffs and employers in framing evidence and evaluating risk in future discrimination and retaliation disputes.