Pre‑2019 NYSHRL Standards Reaffirmed; Legitimate Elimination of Administrative Stipends Defeats Gender Discrimination and Retaliation Claims — Commentary on Niemotko v. Mount Saint Mary College (2025 NY Slip Op 04658)

Introduction

This commentary analyzes the Appellate Division, Second Department’s decision in Niemotko v. Mount Saint Mary College, 2025 NY Slip Op 04658 (Aug. 13, 2025), affirming summary judgment for the employer and individual defendants in a New York State Human Rights Law (NYSHRL) employment discrimination suit. Plaintiffs Tracey Niemotko, Moira Tolan, and Ilona McGuiness sued Mount Saint Mary College and administrators David Kennett, Jason Adsit, and Michael Olivette, alleging gender discrimination, retaliation, hostile work environment, and constructive discharge under Executive Law § 296.

The case centers on three sets of allegations:

• That the College and former president David Kennett constructively discharged McGuiness because of her gender;
• That the College and then-president Jason Adsit discriminated against Niemotko and Tolan by removing them from administrative posts and discontinuing the associated stipends;
• That Adsit and the College retaliated against Niemotko for complaining of gender discrimination by removing her as Chair of the School of Business and eliminating the related stipend.

The Second Department affirmed dismissal, applying pre‑2019 NYSHRL standards and concluding the employer articulated legitimate, non‑discriminatory and non‑retaliatory reasons for the challenged actions, which plaintiffs failed to show were pretextual. The Court also held the evidence did not meet the “severe or pervasive” threshold for a hostile work environment, nor the high bar for constructive discharge.

Summary of the Judgment

The Appellate Division affirmed the trial court’s grant of summary judgment to defendants on all claims, with costs, holding:

• Gender Discrimination (Niemotko and Tolan): While plaintiffs met the minimal prima facie showing, defendants carried their burden by demonstrating a nondiscriminatory reason for discontinuing administrative stipends. Plaintiffs presented no evidence that this reason was a pretext for gender bias.
• Retaliation (Niemotko): Defendants offered legitimate, non‑retaliatory reasons for removing the chair position and stipend; plaintiffs failed to raise a triable issue that these reasons were false or that retaliation was even part of the motivation.
• Hostile Work Environment (McGuiness): The alleged conduct was not gender‑related or not severe or pervasive enough to alter employment conditions.
• Constructive Discharge (McGuiness): Defendants did not deliberately create intolerable conditions; plaintiffs failed to raise a triable issue that a reasonable person would feel compelled to resign.

The Court explicitly framed its analysis with reference to the law “at the time the plaintiffs commenced this action in March 2019,” thereby applying the pre‑amendment NYSHRL standards to these claims.

Analysis

Precedents Cited and How They Shaped the Decision

The Court’s reasoning is anchored in a line of established New York cases that define the elements of NYSHRL claims, the summary judgment burdens, and the thresholds for “adverse action,” “hostile work environment,” and “constructive discharge.”

• Forrest v Jewish Guild for the Blind, 3 NY3d 295 (2004): The leading Court of Appeals authority, repeatedly cited, provides:
  • Discrimination requires a “materially adverse change” in the terms and conditions of employment—more than inconvenience or altered duties.
  • Retaliation requires an adverse action and a causal link; Forrest also informs the “reasonable worker” standard applied later in retaliation cases.
  • Hostile work environment demands conduct “sufficiently severe or pervasive.”
  The Second Department uses Forrest to set the adverse action and harassment baselines and to assess whether the record meets those thresholds.
• Shapiro v State of New York, 217 AD3d 700 (2d Dept): Reinforces McDonnell Douglas burden‑shifting in NYSHRL cases:
  • Prima facie case: protected class, qualification, adverse action, and inference of discrimination.
  • Defendant’s burden: legitimate, nondiscriminatory reasons.
  • Plaintiff’s burden: show pretext.
  Shapiro frames the summary judgment structure employed throughout the decision for the discrimination and retaliation claims.
• Lefort v Kingsbrook Jewish Med. Ctr., 203 AD3d 708 (2d Dept): Quoted for the “materially adverse change” definition in discrimination claims; underscores that mere inconvenience or job reallocation is not enough.
• Bilitch v NYC Health & Hosps. Corp., 194 AD3d 999 (2d Dept): Clarifies that, once the employer provides a legitimate reason, plaintiffs must produce proof of pretext; also applied to retaliation. The decision here adopts Bilitch’s articulation of the plaintiff’s ultimate burden.
• Reichman v City of New York, 179 AD3d 1115 (2d Dept): Cited for multiple points:
  • Legitimate reasons negate discriminatory inference absent pretext.
  • Hostile work environment “severe or pervasive” test and factors (frequency, severity, humiliation, interference with work).
  • Retaliation burden‑shifting and the “reasonable worker” standard.
  The Court directly parallels Reichman’s approach to both discrimination and retaliation analysis and to the harassment threshold.
• Ellison v Chartis Claims, Inc., 178 AD3d 665 (2d Dept): Supports summary judgment where an employer offers nondiscriminatory reasons for compensation or role changes, and the plaintiff fails to establish pretext.
• Grella v St. Francis Hosp., 149 AD3d 1046 (2d Dept): Again emphasizes plaintiff’s obligation to present proof of pretext to defeat summary judgment in discrimination cases.
• Keceli v Yonkers Racing Corp., 155 AD3d 1014 (2d Dept): Sets out the prima facie elements of NYSHRL retaliation (protected activity, employer awareness, adverse action, causal connection).
• Brightman v Prison Health Serv., Inc., 108 AD3d 739 (2d Dept): Applies the burden‑shifting framework and pretext requirement in retaliation claims—mirrors the approach adopted here.
• Blackman v Metropolitan Transp. Auth., 206 AD3d 602 (2d Dept), Golston‑Green v City of New York, 184 AD3d 24 (2d Dept), Balsamo v Savin Corp., 61 AD3d 622 (2d Dept), Nelson v HSBC Bank USA, 41 AD3d 445 (2d Dept), Thompson v Lamprecht Transp., 39 AD3d 846 (2d Dept): These cases collectively articulate and apply the stringent standard for constructive discharge: an employer must deliberately create conditions so intolerable that a reasonable person would feel compelled to resign. The Court applies this high bar to reject McGuiness’s constructive discharge claim.

Legal Reasoning

The Court’s analysis follows the classic three‑stage McDonnell Douglas framework, adapted to NYSHRL claims:

1. Prima facie showing.
   • For discrimination, the Court recognizes plaintiffs Niemotko and Tolan satisfied their initial burden (protected class, qualification, adverse action, inference of bias). Notably, the Court proceeds on the understanding that loss of administrative titles with associated stipends can qualify as an “adverse employment action” for prima facie purposes.
   • For retaliation, the Court recites the “reasonable worker” adverse‑action standard and the causation requirement, but does not rest its holding on a failure of prima facie proof; instead it moves to the employer’s legitimate‑reason stage.
   • For harassment, the Court applies the pre‑2019 “severe or pervasive” test, detailing the factors—frequency, severity, whether humiliating or threatening, and interference with performance.
   • For constructive discharge, the Court restates the deliberate‑intolerability standard.
2. Employer’s legitimate reasons.
   • On the discrimination and retaliation claims, the College produced legitimate, nondiscriminatory and non‑retaliatory reasons for discontinuing the stipends and removing the administrative roles. The opinion does not specify those reasons, but it holds they were sufficient to meet defendants’ prima facie burden at summary judgment.
   • On hostile work environment and constructive discharge, defendants established that the complained‑of conduct either was not gender‑related or did not rise to the severity/pervasiveness or intolerability thresholds.
3. Pretext (plaintiffs’ rebuttal).
   • Plaintiffs failed to offer evidence that defendants’ reasons were false, inconsistent, selectively applied, or otherwise a cover for gender bias or retaliation. Absent proof of pretext, summary judgment appropriately followed.
   • For harassment, plaintiffs did not create a triable fact issue that the conduct was gender‑based or sufficiently severe or pervasive to alter employment conditions.
   • For constructive discharge, plaintiffs did not show deliberate creation of intolerable conditions that would compel resignation.

One notable passage anchors the governing standard to the date the action was commenced: “At the time the plaintiffs commenced this action in March 2019…” the Court applies the pre‑amendment NYSHRL standards. That framing is significant given the 2019 legislative amendments that relaxed the harassment threshold; the Court’s phrasing confirms the continued application of the “severe or pervasive” test to actions commenced (and, typically, conduct occurring) pre‑amendment.

Finally, because no underlying NYSHRL violation survived, any derivative “aiding and abetting” claims against individual defendants under Executive Law § 296(6) fail as a matter of law.

Impact and Practical Implications

This decision has several practical and doctrinal implications:

• Anchoring to pre‑2019 NYSHRL standards. By expressly tying the applicable standards to the March 2019 commencement date, the Court reaffirms that pre‑amendment claims are adjudicated under the older, more demanding tests—particularly the “severe or pervasive” threshold for hostile work environment. Litigants with pre‑October 2019 claims should expect courts to apply the earlier regime.
• Administrative titles and stipends: adverse action versus legitimate reason. The opinion tacitly recognizes that loss of administrative roles and stipends can constitute prima facie adverse actions. But it underscores that employers can prevail on summary judgment by proffering neutral, well‑supported reasons for such changes—especially when plaintiffs cannot marshal evidence of pretext (e.g., inconsistent explanations, discriminatory comments, comparator proof, deviation from policy).
• Retaliation remains highly fact‑dependent. Even using the employee‑friendly “might dissuade a reasonable worker” standard for adverse action, employers defeat retaliation claims when they can point to legitimate, documented reasons and plaintiffs lack proof of pretext or causal connection beyond temporal proximity.
• Harassment and constructive discharge: high bar under pre‑2019 law. The Court reiterates that sporadic, non‑gender‑based slights or ordinary workplace friction do not satisfy “severe or pervasive,” and that constructive discharge demands proof of deliberate employer conduct making conditions objectively intolerable.
• Individual liability under § 296(6) rises and falls with the merits. Aiding‑and‑abetting claims cannot stand without an underlying NYSHRL violation; plaintiffs should be mindful that adding individuals does not change the need for core evidence of discrimination, harassment, or retaliation.

For employers—especially educational institutions where administrative appointments often carry added stipends—this case is a template: maintain clear, contemporaneous rationales for personnel and compensation changes; apply criteria consistently; and document decisions. For plaintiffs, it highlights the proof needed to survive summary judgment: direct or circumstantial evidence undermining the employer’s explanation or demonstrating discriminatory/retaliatory motive.

Note on the 2019 NYSHRL amendments: For conduct occurring on or after October 11, 2019, the NYSHRL no longer requires “severe or pervasive” harassment; claims succeed if harassment subjects an employee to inferior terms and conditions of employment (with “petty slights or trivial inconveniences” excluded). Niemotko makes clear that earlier actions remain governed by the former, more stringent standard.

Complex Concepts Simplified

• Adverse employment action (discrimination): A significant negative change in the terms and conditions of employment—such as termination, demotion, pay cut, material loss of benefits, or significantly diminished responsibilities. Minor inconveniences or routine duty shifts do not qualify.
• Adverse action (retaliation): Broader than in discrimination claims; includes any employer action that might dissuade a reasonable worker from complaining about discrimination (even if it does not change core job terms).
• McDonnell Douglas burden‑shifting:
  1. Plaintiff makes a minimal “prima facie” showing of discrimination/retaliation.
  2. Employer offers a legitimate, non‑discriminatory (or non‑retaliatory) reason.
  3. Plaintiff must show the employer’s reason is a pretext—a cover—for unlawful motive.
• Pretext: Evidence that the employer’s stated reason is false, inconsistent, selectively applied, or undermined by comparator treatment, discriminatory remarks, deviations from policy, or shifting justifications.
• Hostile work environment (pre‑2019 NYSHRL): The workplace must be permeated with discriminatory intimidation, ridicule, or insult that is severe or pervasive enough to alter the conditions of employment.
• Constructive discharge: The employer deliberately makes working conditions so intolerable that a reasonable person in the employee’s position would feel compelled to resign.
• Aiding and abetting (Exec. Law § 296[6]): Individuals can be liable for participating in discrimination or retaliation, but only if there is an underlying NYSHRL violation.

Conclusion

Niemotko v. Mount Saint Mary College is a thorough reaffirmation of pre‑2019 NYSHRL doctrine and a practical roadmap for adjudicating employment discrimination, retaliation, hostile work environment, and constructive discharge claims at summary judgment. The Second Department:

• Applied the classic McDonnell Douglas framework and insisted on evidence of pretext to defeat well‑supported employer explanations;
• Confirmed that, for pre‑amendment cases, harassment must be “severe or pervasive” and constructive discharge requires deliberate, intolerable conditions;
• Signaled that the loss of administrative titles and stipends may satisfy the prima facie adverse‑action element, yet will not sustain a claim absent proof undermining an employer’s legitimate rationale.

The decision’s principal takeaway is twofold. First, timing matters: pre‑2019 cases remain subject to the higher harassment threshold and traditional adverse‑action tests. Second, evidence matters more: without concrete proof that the employer’s stated reason is a smokescreen, discrimination and retaliation claims will not survive summary judgment. As such, Niemotko provides clear guidance to litigants and lower courts on both the substantive standards and the evidentiary showings necessary in NYSHRL litigation.