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.
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.