NYCHRL Retaliation Requires an Independent, Broader Protected-Activity and Mixed-Motive Analysis

1. Introduction

Sharon Goldzweig, a former associate counsel at Consolidated Edison Company of New York, Inc. (“Con Edison”), alleged that a new supervisor, Christopher D’Angelo, discriminated against her based on age and gender and that she was terminated after complaining about his treatment. Con Edison maintained that the termination decision was made by senior legal leadership (Elizabeth Moore and Phyllis Taylor) for performance reasons—principally ineffective communication of legal analysis and conflicts with outside counsel.

The Southern District of New York (Daniels, J.) granted summary judgment to Con Edison on all claims under Title VII, the ADEA, the NYSHRL, and the NYCHRL. On appeal, the Second Circuit largely agreed—except as to NYCHRL retaliation, where it found the district court’s analysis insufficiently independent and insufficiently attentive to NYCHRL-specific standards.

2. Summary of the Opinion

A. Affirmance: Federal and NYSHRL discrimination and retaliation

Assuming arguendo that Goldzweig established prima facie cases, the court held she failed at the final stage of McDonnell Douglas: she did not raise a triable issue that Con Edison’s stated reason (performance deficiencies) was pretext for discrimination or retaliation. The record contained sustained documentation—performance reviews, contemporaneous emails, outside counsel complaints, and corroborating testimony—supporting Con Edison’s stated rationale.

B. Affirmance: NYCHRL discrimination

Even under the NYCHRL’s more liberal “treated less well” standard, the court found Goldzweig offered no evidence that discriminatory motive coexisted with Con Edison’s legitimate performance-based reasons.

C. Vacatur and remand: NYCHRL retaliation

The Second Circuit vacated the judgment on NYCHRL retaliation because the district court treated the NYCHRL framework as largely the same as federal/state law, overlooking key differences:

• NYCHRL protected activity is construed broadly, per Albunio v. City of New York.
• NYCHRL retaliation does not require “but for” causation as in Title VII/ADEA retaliation (per Univ. of Texas Sw. Med. Ctr. v. Nassar and Lively v. WAFRA Inv. Advisory Grp., Inc.); mixed-motive/partial-motive theories can suffice (as discussed through Melman v. Montefiore Med. Ctr. and Mihalik v. Credit Agricole Cheuvreux N. Am., Inc.).

Relying on Velazco v. Columbus Citizens Found., the court held it could not “confidently conclude” that the NYCHRL retaliation claim had been analyzed under the correct standard. It remanded for the district court to decide whether to exercise supplemental jurisdiction and, if so, to conduct an NYCHRL-specific analysis.

3. Analysis

3.1. Precedents Cited

A. Summary judgment standards and reviewing posture

• Gorzynski v. JetBlue Airways Corp. and Fed. R. Civ. P. 56(c): de novo review; summary judgment appropriate where no genuine dispute of material fact exists.
• Garcia v. Hartford Police Dep't: courts draw all inferences against the moving party at summary judgment.

B. Discrimination framework (Title VII, ADEA, NYSHRL)

• Carr v. N.Y. City Transit Auth.: Title VII and ADEA discrimination analyzed under McDonnell Douglas.
• Nambiar v. Cent. Orthopedic Grp., LLP: pre-2019 NYSHRL discrimination uses the same burden-shifting; the opinion also notes the 2019 NYSHRL amendment but applies the pre-amendment standard because the claims arose before it took effect.
• Abrams v. Dep't of Pub. Safety: elements of the prima facie case and the structure of the burden-shifting analysis.

C. Pretext proof and evidentiary sufficiency

• Weinstock v. Columbia Univ.: consistency of criticisms can support the employer’s proffered non-discriminatory reason.
• Island Software & Comput. Serv., Inc. v. Microsoft Corp.: conclusory credibility attacks do not create a triable fact issue.
• Zann Kwan v. Andalex Grp. LLC: not every discrepancy is an “inconsistent explanation” indicating pretext; the discrepancy must meaningfully undermine the employer’s core rationale.
• Ruiz v. Cnty. of Rockland: comparators must be “similarly situated…in all material respects.”
• Stern v. Trs. of Columbia Univ.: significant procedural deviations may support an inference of pretext (used here by contrast; Goldzweig did not show such deviation).

D. Retaliation framework (Title VII, ADEA, NYSHRL)

• Carr v. N.Y. City Transit Auth. (Title VII/ADEA retaliation) and Qorrolli v. Metro. Dental Assocs. (pre-2019 NYSHRL retaliation): apply McDonnell Douglas.
• Summa v. Hofstra Univ.: elements of prima facie retaliation and burden shifting.
• Univ. of Texas Sw. Med. Ctr. v. Nassar and Lively v. WAFRA Inv. Advisory Grp., Inc.: “but for” causation under Title VII and ADEA retaliation respectively.

E. NYCHRL: distinct substantive standards

• Mihalik v. Credit Agricole Cheuvreux N. Am., Inc.: “treated less well” standard for discrimination; summary judgment only if no reasonable jury could find liability under any theory; and NYCHRL’s causation framing for retaliation/partial motive.
• Ellison v. Chartis Claims, Inc.: at summary judgment, NYCHRL claims should be analyzed under both McDonnell Douglas and mixed-motive frameworks.
• Ya-Chen Chen v. City Univ. of N.Y.: NYCHRL retaliation requires that the employer’s conduct be caused “at least in part” by retaliatory motives.
• Bennett v. Health Mgmt. Sys., Inc.: where unrebutted evidence supports legitimate reasons and plaintiff offers no evidence of pretext or coexisting discriminatory motive, summary judgment may be appropriate even under NYCHRL.
• Albunio v. City of New York: NYCHRL provisions construed broadly in favor of discrimination plaintiffs.
• Melman v. Montefiore Med. Ctr.: plaintiff need not prove the employer’s reason is false or entirely irrelevant under NYCHRL; mixed-motive principles matter.
• Velazco v. Columbus Citizens Found.: appellate vacatur appropriate when it is unclear whether the district court applied the correct NYCHRL standard.

F. New York state-law evidentiary nuances (highlighted in footnote)

• La Marca-Pagano v. Dr. Steven Phillips, P.C., Kim v. Goldberg, Weprin, Finkel, Goldstein, LLP, and Calhoun v. Cnty. of Herkimer: close temporal proximity may suffice to show causation for retaliation under New York law—reinforcing that NYCHRL/NY approaches can diverge from federal “but for” demands and from how district courts weigh circumstantial evidence.

3.2. Legal Reasoning

A. Why the discrimination claims failed (including NYCHRL discrimination)

The court’s discrimination analysis is a conventional application of McDonnell Douglas with an evidentiary emphasis: Con Edison’s rationale was not a post hoc litigation story but a long-running, contemporaneously documented performance narrative. The court treated that documentary record (reviews, emails, outside counsel complaint) as especially probative because it reduced the force of arguments that testimony from “interested witnesses” created credibility disputes (Island Software & Comput. Serv., Inc. v. Microsoft Corp.).

The court also rejected common pretext pathways:

• “Good reviews” contradiction: the cited reviews included persistent communication concerns; thus “positive” feedback did not negate the performance critique.
• Inconsistent explanations: a timing discrepancy about when D’Angelo joined the termination discussion did not undermine the core reason—performance—under Zann Kwan v. Andalex Grp. LLC.
• Comparators: identified coworkers were not similarly situated given the absence of comparable documented deficiencies (Ruiz v. Cnty. of Rockland).
• Procedural irregularity: the record suggested others were terminated without the asserted procedures, undercutting an inference of deviation (Stern v. Trs. of Columbia Univ.).

For NYCHRL discrimination, the court applied Mihalik v. Credit Agricole Cheuvreux N. Am., Inc. but concluded that, even with NYCHRL’s broader standard, Goldzweig produced no evidence that discriminatory motive “coexisted” with the performance rationale—tracking Bennett v. Health Mgmt. Sys., Inc..

B. Why federal and NYSHRL retaliation failed

Even assuming protected activity and causation at the prima facie stage, the court held Goldzweig could not establish pretext at step three because the performance issues predated her complaints and because senior leadership allegedly concluded she could not meet expectations even before D’Angelo was hired. The court also discounted the “toxic employees” theory because Goldzweig could not identify evidence she was labeled that way.

In effect, the opinion illustrates how “but for” causation and step-three pretext operate together: where the employer’s documented rationale is robust and temporally extends well before protected activity, plaintiffs often struggle to show that retaliation was the determinative cause under federal/state standards (Univ. of Texas Sw. Med. Ctr. v. Nassar; Lively v. WAFRA Inv. Advisory Grp., Inc.).

C. Why NYCHRL retaliation was remanded

The core doctrinal move is the Second Circuit’s insistence on an NYCHRL-specific inquiry. The district court’s statement—“otherwise, the burden shifting framework is the same”—was treated as legally incomplete for two reasons:

• Protected activity breadth: NYCHRL is construed “broadly” (Albunio v. City of New York), potentially capturing complaints that might not qualify under federal law as opposition to a practice made unlawful by Title VII/ADEA.
• Causation/pretext differences: Federal/state retaliation requires “but for” causation, while NYCHRL asks whether retaliation played “at least in part” a role (Ya-Chen Chen v. City Univ. of N.Y.), and does not require proving the employer’s reason was false or entirely irrelevant (Melman v. Montefiore Med. Ctr.; also discussed in Mihalik v. Credit Agricole Cheuvreux N. Am., Inc.).

Procedurally, the remand follows Velazco v. Columbus Citizens Found.: when an appellate court cannot be confident that the correct NYCHRL standard was applied, vacatur is appropriate even if the record might ultimately support summary judgment under the proper test.

The panel also directed the district court to consider whether to exercise supplemental jurisdiction—recognizing that once federal claims are resolved, a district court may decline to retain jurisdiction over the remaining city-law claim.

3.3. Impact

• District courts must “show their work” on NYCHRL retaliation: This order reinforces that NYCHRL retaliation cannot be disposed of by treating it as a near-clone of Title VII/ADEA retaliation with only a relaxed “adverse action” element. Courts must separately analyze protected activity scope and the “at least in part” causation concept.
• Broader protected activity increases litigation sensitivity: On remand, complaints that were deemed unprotected under federal law may become relevant, changing temporal proximity and motive analyses—especially in workplaces where complaints are informal or not explicitly framed in statutory terms.
• Mixed-motive framing matters at summary judgment: Even with strong performance documentation, NYCHRL retaliation can survive if there is evidence that retaliatory animus contributed alongside legitimate reasons, because plaintiffs need not prove the employer’s reason was wholly false (Melman v. Montefiore Med. Ctr.; Ya-Chen Chen v. City Univ. of N.Y.).
• Nonprecedential but practically influential: Although labeled a “SUMMARY ORDER” without precedential effect, it is a clear signal to litigants and trial courts in the Second Circuit about the expected rigor of NYCHRL retaliation analysis.

4. Complex Concepts Simplified

McDonnell Douglas burden-shifting (discrimination/retaliation)

• Step 1 (prima facie): Plaintiff shows basic facts suggesting discrimination/retaliation.
• Step 2 (employer reason): Employer articulates a legitimate reason (here: documented performance issues).
• Step 3 (pretext): Plaintiff must show the reason is a cover for unlawful motive (under federal retaliation, also effectively aligning with “but for” causation).

“But for” causation vs. “at least in part” causation

• “But for” (Title VII/ADEA retaliation): The firing would not have happened without retaliatory motive.
• “At least in part” (NYCHRL retaliation): Retaliation need only be one contributing reason, even if other legitimate reasons also existed.

Mixed-motive vs. single-motive

“Mixed-motive” means the employer may have had both lawful and unlawful motives. Under NYCHRL, a plaintiff can potentially prevail (or at least reach a jury) by showing the unlawful motive played some role, without proving the lawful reason is entirely false.

“Similarly situated in all material respects”

Comparator evidence works only when the coworkers being compared had meaningfully similar roles, expectations, and disciplinary/performance histories. If the plaintiff has extensive documented issues and the comparator does not, the comparison often fails (Ruiz v. Cnty. of Rockland).

5. Conclusion

Goldzweig v. Consol. Edison Co. of N.Y. largely affirms a performance-documentation defense against discrimination and retaliation claims under Title VII, the ADEA, and the pre-2019 NYSHRL, and it also affirms dismissal of NYCHRL discrimination on this record. Its most significant contribution is procedural and analytic: it requires courts to treat NYCHRL retaliation as a distinct cause of action demanding a genuinely independent analysis—particularly on what counts as protected activity and how causation/pretext are evaluated under the NYCHRL’s mixed-motive, “at least in part” framework. The remand underscores that a correct NYCHRL analysis is not optional, even where the federal/state claims fail on strong performance evidence.