National-Origin Discrimination Requires Evidence of Employer Knowledge and a Connection to the Challenged Decision

Case: Barberan v. Town of Eastchester, No. 25-894-cv
Court: United States Court of Appeals for the Second Circuit
Decided: October 27, 2026
Opinion: Judge John M. Walker, Jr., joined by Judges Parker and Bianco

1. Introduction

In Barberan v. Town of Eastchester, the Second Circuit affirmed summary judgment against a former police officer who alleged that his termination resulted from discrimination based on his Hispanic national origin. The defendants were the Town of Eastchester, former Police Chief Timothy Bonci, and former Police Lieutenant Jeffrey Hunter.

The central issue was whether Hunter’s earlier criticisms of Barberan’s upbringing and manner of speaking—particularly references to “Yonkers ghetto”—could support an inference that Barberan’s later dismissal was motivated by national-origin discrimination. The court found the necessary evidentiary links missing: insufficient evidence that the defendants knew Barberan was Hispanic, insufficient evidence connecting the comments to Hispanic national origin, and insufficient evidence connecting those comments to the termination decision.

The opinion principally applies established discrimination law rather than announcing a new test. Its significance lies in its insistence that a plaintiff connect the protected characteristic, the alleged discriminatory remarks, and the challenged employment decision through evidence rather than speculation. Its alternative holding reinforces that documented misconduct and a disciplinary hearing can support summary judgment when the plaintiff supplies no evidence that the resulting termination concealed discrimination.

2. Background and Scope of the Appeal

Employment and disciplinary history

Barberan worked for the Eastchester Police Department from July 2012 until November 2021. Born and raised in Yonkers, he identified racially as Caucasian and claimed Hispanic national origin through his Ecuadorian-born father.

The record contained a substantial disciplinary history, including repeated failures to search arrestees properly, remedial training, poor performance evaluations, and an unsuccessful performance improvement plan. Three search-related incidents were particularly important:

  • 2014: Barberan failed to remove an arrestee’s belt and discover a razor blade. A settlement imposed a loss of pay and warned that similar misconduct could result in termination.
  • 2019: He failed to remove a bandana that an arrestee later used in a suicide attempt. Barberan accepted the loss of three vacation days.
  • 2021: He again failed to discover drugs before placing an arrestee in a cell, despite having found drugs on that person earlier that day.

The 2021 incident produced a multi-day disciplinary hearing. The hearing officer, who had no prior involvement with Barberan, considered testimony and video evidence. He sustained charges of insubordination, unlawful detention and search, and incompetence, and found repeated dishonesty in an official report, communications with a superior, and hearing testimony. The Town Board adopted his recommendation to terminate Barberan.

The alleged discriminatory remarks

Barberan alleged that Hunter made disparaging comments in 2014 and 2015 about his Yonkers upbringing and informal speech. These included the statement that Barberan’s “Yonkers ghetto doesn’t add up to my Eastchester professional.” Hunter also allegedly displayed a video of a Black hip-hop artist as an example of Barberan’s presentation and instructed him to speak “properly.”

Hunter denied these allegations. At summary judgment, however, the courts were required to accept Barberan’s account and draw permissible inferences in his favor. The decisive question was therefore not whether Hunter made the remarks, but whether the remarks and surrounding evidence could reasonably establish the discrimination actually alleged.

Claims preserved on appeal

The operative complaint asserted discrimination and retaliation under Title VII, 42 U.S.C. § 1983, and the New York State Human Rights Law (“NYSHRL”). The appeal was much narrower: Barberan challenged only the dismissal of his Section 1983 and NYSHRL discrimination claims concerning his termination. He waived challenges involving Title VII and retaliation, and abandoned challenges concerning earlier assignment decisions and vacation-day discipline.

3. Summary of the Opinion

The Second Circuit affirmed on two independently sufficient grounds.

  1. No prima facie case of national-origin discrimination. Barberan failed to produce sufficient evidence that the defendants knew of his Hispanic national origin. Independently, he did not adequately connect Hunter’s Yonkers-related comments to that national origin or to the later termination.
  2. No evidentiary basis for finding discriminatory pretext. Even assuming a prima facie case, the Town supplied legitimate, nondiscriminatory reasons for termination: serious misconduct, repeated disciplinary problems, and dishonesty. Barberan offered no evidence permitting a rational jury to find that those reasons masked national-origin discrimination. His proposed comparisons with other officers also failed because he did not establish materially similar circumstances.

The appellate court reviewed the judgment de novo, considering the record in Barberan’s favor but concluding that no genuine dispute of material fact required a trial.

4. Analysis

A. Precedents Cited and Their Functions

Summary judgment and appellate scope

Holcomb v. Iona Coll., 521 F.3d 130 (2d Cir. 2008). This decision supplied the requirement to draw permissible factual inferences for the party opposing summary judgment. It required the court to accept Barberan’s account of Hunter’s remarks despite Hunter’s denial. Its application illustrates the distinction between accepting an allegation as true and finding that the allegation supports the legally necessary inference.

Weinstock v. Columbia Univ., 224 F.3d 33 (2d Cir. 2000). The court cited this precedent both for the availability of summary judgment in discrimination cases and for the requirement of circumstances supporting an inference of discrimination. Employment discrimination claims are not exempt from ordinary evidentiary requirements merely because intent is disputed.

Debique v. Garland, 58 F.4th 676 (2d Cir. 2023) (per curiam). This authority supported treating unpursued appellate arguments as abandoned. It confined the appeal to the termination and prevented the earlier employment actions from remaining independently contested claims.

The burden-shifting framework

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). This case supplied the organizing framework: the employee establishes a prima facie case; the employer articulates a legitimate, nondiscriminatory reason; and the employee responds with evidence of discriminatory pretext. The opinion addressed the first stage as its principal ground and the second and third stages as an alternative ground.

Garcia v. Hartford Police Dep't, 706 F.3d 120 (2d Cir. 2013) (per curiam). The court relied on this case to apply the McDonnell Douglas framework to the Section 1983 discrimination claim.

Tolbert v. Smith, 790 F.3d 427 (2d Cir. 2015). This decision performed two functions: it supported using the same framework for the NYSHRL claim and supported the requirement that the defendant be aware of the plaintiff’s protected status.

Brown v. City of Syracuse, 673 F.3d 141 (2d Cir. 2012). The court drew its four-part prima facie formulation from this case: protected-class membership, qualification for the position, an adverse employment action, and circumstances permitting an inference of discriminatory intent. The dispute centered on the fourth element and the knowledge necessary to support that inference.

Bart v. Golub Corp., 96 F.4th 566 (2d Cir. 2024). This precedent explained the transition from the employer’s legitimate explanation to the plaintiff’s showing of pretext. It structured the alternative holding that, even if Barberan cleared the initial threshold, the Town’s disciplinary explanation remained unrebutted by evidence of discrimination.

Knowledge and discriminatory remarks

Woodman v. WWOR-TV, Inc., 411 F.3d 69 (2d Cir. 2005). This was central to the principal holding. The opinion relied on its rule that discriminatory intent cannot be inferred from circumstances unknown to the defendant. When employer knowledge is not otherwise established, the employee must supply direct or indirect evidence of that knowledge. The court found Barberan’s proof insufficient under that standard.

Tomassi v. Insignia Fin. Group, Inc., 478 F.3d 111 (2d Cir. 2007). This authority supported evaluating the relationship between workplace remarks and the challenged employment action. The court characterized Hunter’s comments as “remote and oblique” and, on this record, nonprobative “stray remarks.” Their age and weak connection to the relevant protected characteristic diminished their evidentiary value.

Gross v. FBL Fin. Servs., Inc., 557 U.S. 167 (2009). The opinion identified this decision only to note that Tomassi v. Insignia Fin. Group, Inc. had been abrogated on other grounds. It did not independently apply Gross v. FBL Fin. Servs., Inc. to establish a causation standard for Barberan’s claims.

Comparator evidence

Graham v. Long Island R.R., 230 F.3d 34 (2d Cir. 2000). This case supplied the requirement of a “reasonably close resemblance” between the facts and circumstances of the plaintiff and proposed comparators. General assertions that other officers received lighter discipline did not satisfy that requirement.

Shumway v. United Parcel Serv., Inc., 118 F.3d 60 (2d Cir. 1997). This precedent required comparators to be “similarly situated in all material respects.” Together with Graham v. Long Island R.R., it supported rejecting comparisons that did not adequately account for the circumstances relevant to discipline.

The decision under review

Barberan v. Town of Eastchester, No. 19-cv-10983-VR, 2025 WL 962815 (S.D.N.Y. Mar. 31, 2025). The district court had rejected both the prima facie showing and the claim of pretext. The Second Circuit endorsed those conclusions as they concerned the termination claims preserved on appeal. The district court’s decision was the judgment being reviewed, not an independent binding appellate precedent.

B. Legal Reasoning

1. Protected status and employer knowledge are separate questions

The court did not rest its decision on a definitive finding that Barberan lacked Hispanic ancestry. Instead, it focused on whether the defendants knew of that ancestry. A person’s protected characteristic cannot ordinarily explain an intentional employment decision if the relevant actor was unaware of it.

Both Bonci and Hunter denied knowing that Barberan was Hispanic. Barberan’s contrary evidence included a 2011 fingerprint response inconsistently identifying him as Hispanic and non-Hispanic, and his assertion that he announced his Ecuadorian heritage at a 2016 union meeting. The record did not corroborate the attendance of any defendant at that meeting. Moreover, the announcement postdated Hunter’s alleged 2014 and 2015 remarks and therefore could not establish Hunter’s knowledge when those remarks were made.

The rule is evidentiary, not a requirement of express admission: employer knowledge may be shown circumstantially. Here, however, the court found no sufficient direct or indirect proof.

2. Criticism of a domestic locality did not establish national-origin bias on this record

The court separately concluded that being from Yonkers is not itself a protected race or national origin. Barberan needed evidence connecting Hunter’s references to Yonkers with Hispanic identity. Without that connection, treating the remarks as evidence of Hispanic national-origin discrimination required speculation.

This is a record-specific limitation, not a declaration that geographic references can never express protected-class bias. The opinion expressly emphasized the absence of evidence explaining the necessary nexus. Similarly, the potentially stereotyped nature of the alleged video did not, without further evidence, establish discrimination against the particular national-origin group asserted in this appeal.

3. Timing and decisionmaking context weakened the remarks further

The alleged comments occurred in 2014 and 2015; termination followed in November 2021. Hunter retired in August 2020. The later investigation involved then-Lieutenant Joseph Rodriguez, a hearing officer, and the Town Board.

Barberan did not allege that these relevant 2021 decisionmakers knew of the Yonkers comments or his Hispanic national origin. Thus, the evidentiary gap concerned not only elapsed time but also the relationship between the alleged speaker, the asserted bias, and the ultimate decision. The opinion does not establish a fixed expiration date for discriminatory remarks; it evaluates their probative force in context.

4. Earlier filings undermined the asserted theory but did not create a pleading bar

The court also considered that Barberan’s initial complaints and EEOC charges did not allege Hispanic national-origin discrimination. His earlier theory concerned discrimination against him as a Caucasian officer who did not conform to racial stereotypes. His second amended complaint first expressly advanced the Hispanic national-origin theory.

The opinion acknowledged that a news article attached to the 2021 EEOC charge identified him as Hispanic, although the charge itself did not assert national-origin discrimination. The court treated the overall filing history as undermining the later explanation of the alleged discrimination.

This reasoning should not be expanded into a rule that amended discrimination theories are categorically invalid. Nor are Caucasian racial identity and Hispanic national origin inherently incompatible. The court’s concern was the evidentiary significance of Barberan’s evolving account within this particular record.

5. The disciplinary record independently defeated the claim

At the second stage, the Town identified concrete reasons for discharge. The hearing officer found improper taser use, arrest without probable cause, an unconstitutional search, inadequate custodial searching, and repeated dishonesty. The record also included earlier discipline and unsuccessful remediation.

These were the employer’s disciplinary findings and reasons for termination; the appeal did not separately adjudicate the arrestee’s constitutional claims. For employment-discrimination purposes, the critical issue was whether the stated reasons concealed prohibited discrimination.

Barberan supplied no evidence from which a jury could reasonably reach that conclusion. The hearing process supported the Town’s explanation, but the opinion did not establish that a disciplinary hearing automatically immunizes a termination from discrimination review.

6. Unequal discipline required meaningful comparisons

Barberan argued that other officers received lesser punishment for similar conduct. The court rejected the argument because he did not establish a sufficiently close factual resemblance. It did not provide a detailed account of each proposed comparator, so the opinion cannot support more specific conclusions about their conduct.

The broader lesson is that comparison must address materially relevant circumstances. A general resemblance between incidents does not, by itself, establish that different disciplinary outcomes reflect discrimination.

5. Potential Impact and Limits

  • Knowledge evidence will remain central. Plaintiffs should identify evidence showing how relevant employment actors learned of the protected characteristic, rather than relying solely on the employee’s identity.
  • Allegedly coded language requires contextual support. References to neighborhoods, speech, or culture may require evidence explaining their connection to the protected group and the employment decision.
  • Historical remarks need a decisionmaking link. Their significance depends on more than offensiveness; timing, speaker involvement, and influence on the challenged action matter.
  • Disciplinary documentation can be decisive. Repeated infractions, remediation, and supported hearing findings may supply a persuasive nondiscriminatory explanation unless evidence connects the process or outcome to bias.
  • Comparator proof must be developed specifically. Plaintiffs cannot rely on generalized claims of unequal discipline without showing materially comparable circumstances.

The holding remains limited to the discrimination claims and termination decision actually appealed. It does not resolve the abandoned retaliation claims, create a new substantive framework for all NYSHRL litigation, or announce separate municipal-liability or individual-liability rules under Section 1983. Its principal contribution is a concrete application of existing evidentiary requirements.

6. Complex Concepts Simplified

Prima facie case
The employee’s initial showing of facts that could support an inference of unlawful discrimination. It is a threshold showing, not the final determination of liability.
Summary judgment
A decision without trial when no genuine dispute over a material fact requires a factfinder. Courts must favor the opponent’s permissible factual inferences, but need not accept speculation.
Burden shifting
The staged exchange of explanations under McDonnell Douglas Corp. v. Green. The employer must produce a legitimate explanation once the initial showing is made; the employee retains the ultimate burden of proving discrimination.
Pretext
An explanation asserted to conceal unlawful discrimination. Disagreement with discipline, without evidence of discriminatory motivation, does not necessarily establish pretext.
Nexus
The evidentiary connection between the alleged bias, the protected characteristic, and the challenged employment action.
Stray remarks
Comments whose context, timing, or relationship to decisionmakers gives them little evidentiary value concerning the challenged decision. The label depends on context, not simply on whether a comment was isolated.
Section 1983 and NYSHRL
Section 1983 provides a vehicle for enforcing federal rights against persons acting under state authority; the NYSHRL supplies state-law protections against employment discrimination. The court analyzed these particular claims under the same burden-shifting framework.

7. Conclusion

Barberan v. Town of Eastchester reinforces that an employment-discrimination claim requires evidence connecting the employer’s knowledge, the asserted bias, and the adverse decision. Remarks about a domestic city did not establish Hispanic national-origin discrimination without that connection.

The alternative holding is equally important: even assuming an initial inference of discrimination, substantial disciplinary grounds defeated the claim because Barberan supplied no evidence of discriminatory pretext. The decision therefore illustrates both the limits of speculative inferences and the importance of decision-specific proof.