Protected Activity and Arrest-Record Discrimination Under New York’s Human Rights Law: Commentary on Liebman v. Albany Medical Center

I. Introduction

The Appellate Division, Third Department’s decision in Liebman v. Albany Med. Ctr., 2025 NY Slip Op 06949 (Dec. 11, 2025), addresses a subtle but important question in New York anti-discrimination law:

When does an employee’s conduct qualify as “protected activity” for purposes of retaliation under Executive Law § 296(7)?
How does that concept interact with New York’s special protections against discrimination based on certain arrest records under Executive Law § 296(16)?

The case arises from the termination of three individuals connected to Albany Medical Center (“AMC”) and its affiliated foundation:

Jamaica Miles – hired as Director of Community Engagement at AMC, later fired purportedly because her activism (including a prior Black Lives Matter protest arrest) was inconsistent with AMC’s wish to remain “apolitical.”
Laura Liebman – Assistant Vice President for Advancement at the Albany Medical Center Foundation, involved in hiring Miles, and later fired after protesting Miles’s termination as racist.
James Kellerhouse – Chief Development Officer of the foundation, also involved in Miles’s hiring and later terminated.

The appeal does not concern the merits of the underlying discrimination claims. Instead, it focuses on whether the plaintiffs should have been allowed to amend their complaint to expressly allege that Liebman was retaliated against for hiring a person with an arrest record. This required the court to clarify:

Whether the act of hiring someone with a dismissed arrest record is itself “protected activity”; and

In resolving these questions, the Third Department both limits and broadens retaliation doctrine:

It limits protected activity by holding that merely hiring someone with an arrest record is not, standing alone, a protected act under Executive Law § 296(7).
It broadens protected activity by holding that an employee’s general protest of “racism” can encompass opposition to discrimination on multiple unlawful grounds (including arrest-record discrimination), even if the specific ground is never expressly mentioned.

II. Summary of the Opinion

A. Factual and Procedural Background

Around February 2022, AMC hired Jamaica Miles as Director of Community Engagement. Before hiring, foundation chief development officer James Kellerhouse asked HR representative Sandra Castilla whether Miles’s prior arrest at a Black Lives Matter protest could bar her employment. Castilla advised that it posed no barrier because the charges had been dismissed.

In March 2022, AMC terminated Miles, ostensibly because her activism was inconsistent with AMC’s desire to remain apolitical. AMC then launched an internal investigation into Miles’s hiring and concluded that Liebman and Kellerhouse had not followed proper hiring procedures; both were terminated.

In May 2022, plaintiffs brought suit alleging discrimination and retaliation under the New York Human Rights Law (the “Human Rights Law”), including a claim that defendants retaliated against Liebman because she protested that Miles’s termination was racist.

During contentious discovery, in August 2024, a subpoena to Kellerhouse produced text messages from AMC CEO Dennis McKenna, in which he wrote he was “furious” that they had hired “a person to lead our community efforts who was arrested and you never told me.” In September 2024, plaintiffs sought leave to amend their complaint to add, among other things, that Liebman was also retaliated against for hiring a person with an arrest record.

Defendants opposed, arguing the proposed amendments were meritless and prejudicial. Supreme Court (Ryba, J.) denied leave, holding in relevant part that:

Hiring a person with an arrest record is not “protected activity” supporting a retaliation claim.
The proposed amendments did not allege that Liebman opposed Miles’s termination because of her arrest record.

Plaintiffs appealed.

B. Holding

The Third Department affirmed the denial of leave to amend, but on carefully limited grounds, and simultaneously clarified the scope of proof the plaintiffs may offer at trial under the existing complaint.

Mere hiring of an employee with an arrest record is not “protected activity.”
The court held that the fact that Liebman hired Miles, who had a dismissed arrest, is “insufficient to show that she engaged in protected activity,” even if Liebman believed management would disapprove of hiring a Black female activist. Hiring itself is not a “per se protected activity” under the Human Rights Law’s retaliation provision. Accordingly, the proposed amendment that framed Liebman’s “hiring of an employee that had been arrested” as protected activity was “palpably improper” and correctly rejected.
General opposition to discrimination can encompass arrest-record discrimination, even if not expressly stated.
Crucially, the court emphasized that its affirmance of the denial of the amendment does not preclude plaintiffs from proving at trial that Liebman’s termination was retaliatory because she opposed discrimination tied to Miles’s arrest record. Liebman’s protest that Miles’s termination was “racist” is “sufficient to encompass” opposition to termination based on her arrest at a BLM protest, a practice forbidden under Executive Law § 296(16). The complaint, though not mentioning the arrest record explicitly in the context of retaliation, is broad enough to permit such proof.

In short, the motion to amend failed, but the plaintiff’s ability to pursue a broad retaliation theory at trial survived. The court also noted that plaintiffs’ separate argument—that Liebman had an independent cause of action for being retaliated against for hiring someone with an arrest record—was not actually pleaded in the proposed amended complaint and was therefore not reached (Footnote 2). An argument that she was fired for “associating with a person who had been arrested” was deemed unpreserved.

III. Detailed Analysis

A. The Statutory Framework

1. Retaliation Under Executive Law § 296(7)

Executive Law § 296(7) makes it unlawful:

“to retaliate or discriminate against any person because he or she has opposed any practices forbidden under this article or because he or she has filed a complaint, testified or assisted in any proceeding under this article.”

Thus, to state a prima facie case of retaliation under the Human Rights Law, a plaintiff must show (as reiterated by the court, citing Matter of Clifton Park Apts., LLC v New York State Div. of Human Rights, 41 NY3d 326 [2024], and Rosen v Price Chopper, 239 AD3d 1132 [3d Dept 2025]):

They engaged in protected activity – i.e., opposed or complained about practices forbidden by the Human Rights Law, or participated in proceedings under it.
The employer was aware of the protected activity.
The plaintiff suffered an adverse employment action.
A causal connection between the protected activity and the adverse action.

The present appeal turns almost entirely on the first element: what counts as “protected activity.”

2. Arrest-Record Discrimination Under Executive Law § 296(16)

Executive Law § 296(16) provides that it is an unlawful discriminatory practice:

“to act upon adversely to the individual involved, any arrest or criminal accusation of such individual not then pending against that individual which was followed by a termination of that criminal action or proceeding in favor of such individual.”

In plain terms, New York employers cannot lawfully base adverse employment decisions on arrests or criminal accusations that are no longer pending and were resolved favorably to the individual (e.g., dismissal of charges).

Thus, if AMC terminated Miles or otherwise treated her adversely because of her dismissed BLM protest arrest, that could constitute a violation of § 296(16). If Liebman opposed that practice and was punished for doing so, she could have a viable retaliation claim under § 296(7) for opposing a practice forbidden by § 296(16).

B. CPLR 3025(b) and the Standard for Amending Pleadings

Under CPLR 3025(b), a party may amend its pleading “at any time by leave of court,” and “leave shall be freely given.” The Third Department restated the familiar standards, citing:

Matter of Falck, 232 AD3d 1150, 1154 (3d Dept 2024)
Petry v Gillon, 199 AD3d 1277, 1280 (3d Dept 2021)
Matter of Perkins v Town of Dryden Planning Bd., 172 AD3d 1695, 1697 (3d Dept 2019)

These cases collectively stand for the following propositions:

The movant need not prove the ultimate merits of the amendment.
Leave should be freely granted absent prejudice or surprise caused by delay.
Leave may be denied if the proposed amendment is “palpably insufficient or patently devoid of merit.”
The decision lies within the trial court’s discretion and will not be disturbed absent an abuse of discretion.

The defendants argued that the proposed amendments were meritless and prejudicial. While the Supreme Court referred also to prejudice, the Third Department resolved the appeal solely on the “palpably insufficient” ground, and therefore did not reach the prejudice point.

C. Precedents Cited and Their Influence

1. Retaliation Elements: Matter of Clifton Park Apts. and Rosen v Price Chopper

Matter of Clifton Park Apts., LLC v New York State Div. of Human Rights, 41 NY3d 326 (2024), restated the familiar four-part test for a prima facie retaliation case under the Human Rights Law: protected activity, employer awareness, adverse action, and causal connection. The Third Department relies on this test to frame the central issue: does the proposed amendment adequately allege the first element—protected activity?

Rosen v Price Chopper, 239 AD3d 1132 (3d Dept 2025), is cited alongside Clifton Park as further support for this framework. Even without knowing its detailed facts, its use underscores that the court is applying a settled, uniform standard for retaliation across employment contexts.

2. Protected Activity Limits: McKenzie v Meridian Capital Group, LLC

The court cites McKenzie v Meridian Capital Group, LLC, 35 AD3d 676, 677–678 (2d Dept 2006) to support the principle that not all conduct favorable to a protected individual qualifies as “protected activity” under retaliation provisions.

Drawing on McKenzie, the Third Department concludes that:

“the mere fact that Liebman hired Miles, a person with an arrest record, is insufficient to show that she engaged in protected activity, even if she believed management would oppose hiring a Black, female activist.”

McKenzie stands for the notion that simply participating in hiring or promoting members of protected classes, without more, does not amount to “opposing” discrimination. In Liebman, this idea is extended to the context of arrest records protected by § 296(16).

3. Breadth of “Opposition”: Albunio v City of New York

Albunio v City of New York, 16 NY3d 472 (2011), is a leading Court of Appeals case interpreting what it means to “oppose” discrimination for retaliation purposes. In Albunio, the Court held that opposition can take many informal forms; an employee does not need to lodge a formal complaint or use legal terminology. It is enough that the employee’s words or conduct convey to the employer that they view the treatment as discriminatory and object to it.

In Liebman, the Third Department uses Albunio to support two key propositions:

Opposition to discrimination need not be highly specific as to legal theory or protected class.
It is sufficient if a jury could reasonably find that the employee’s opposition and the employer’s retaliation are causally connected.

Thus, even though Liebman did not explicitly say, “Miles was terminated because of her dismissed arrest, in violation of § 296(16),” her protest that the termination was “racist” can reasonably be understood—especially in the context of a BLM arrest—as opposition to a constellation of discriminatory practices, including those grounded in race and in criminal-justice-related bias protected by § 296(16).

4. Breadth of Proof and Causation: Board of Educ. of New Paltz Cent. School Dist. v Donaldson and Cotterell v State of New York

The court also cites:

Matter of Board of Educ. of New Paltz Cent. School Dist. v Donaldson, 41 AD3d 1138 (3d Dept 2007), lv denied 10 NY3d 706 (2008); and
Cotterell v State of New York, 129 AD3d 653 (2d Dept 2015).

Donaldson is relied on for the proposition that:

A plaintiff’s general opposition can support a retaliation claim even if it does not itemize specific statutory provisions; and
A jury may infer a causal connection from the surrounding context and timing.

Cotterell is cited in a “compare” posture, suggesting that in that case the plaintiff’s actions or statements did not suffice to show protected activity or a causal connection. By contrasting Cotterell with Liebman’s situation, the Third Department signals that Liebman’s protests and the chronological sequence of events are enough to present a jury question.

5. Liberal Amendment, Yet Limits: Matter of Falck, Petry, and Perkins

As noted earlier, Falck, Petry, and Perkins restate the generous standard for amendments, but also solidify that courts may deny leave when the proposed amendment is “palpably insufficient” or “patently devoid of merit.” In Liebman, this doctrine authorizes the court to say:

The proposed new theory—that the mere act of hiring a person with an arrest record is itself a protected activity—is legally insufficient as a matter of law.
Therefore, Supreme Court did not abuse its discretion in denying leave to amend.

D. The Court’s Legal Reasoning

1. Narrow Issue on Appeal

The Third Department emphasizes that the question before it is “quite narrow”:

“whether Supreme Court should have granted plaintiffs leave to amend the complaint to assert that Liebman was retaliated against for hiring a person with an arrest record.”

This focus is important. It deliberately avoids a ruling on:

Whether plaintiffs can prove at trial that Liebman was retaliated against for opposing discrimination based, at least in part, on the arrest record; or
Whether AMC in fact violated § 296(16) or engaged in unlawful discrimination.

The question is purely procedural and legal: is the act of hiring itself a “protected activity”?

2. Why Hiring Is Not “Protected Activity”

The court holds that the “mere fact that Liebman hired Miles, a person with an arrest record, is insufficient to show that she engaged in protected activity.” It explains that:

Protected activity requires that the employee has “opposed any practices forbidden under” the Human Rights Law (Exec Law § 296[7]).
Opposition implies some level of protest, criticism, objection, complaint, or refusal to participate in unlawful conduct—it is not satisfied by all conduct that happens to further equality.
“Hiring” itself is not, by default, a form of “opposition” under this statutory scheme, even if the hire benefits someone who might otherwise have been discriminated against.

The court notes that hiring Miles is “not a per se protected activity,” citing:

Executive Law § 296(1)(e) (one of the provisions defining unlawful discriminatory practices); and
Albunio, 16 NY3d at 479 (defining the breadth of opposition).

The key conceptual distinction is between:

Substantive compliance with anti-discrimination law (e.g., making a nondiscriminatory hiring decision), which is required of employers; and
“Opposition” conduct protected by the retaliation provision (e.g., challenging or protesting discrimination).

Liebman’s role in hiring Miles may reflect a nondiscriminatory or even affirmatively inclusive hiring decision. But the Human Rights Law’s retaliation section protects people who take steps to oppose or complain about discrimination, not everyone who participates in lawful decisions that avoid discrimination.

On this reasoning, the proposed amendment—which stated that Liebman “engaged in protected activity when she hired Miles, knowing she had been arrested and that the charges were dismissed”—fails the first element of the retaliation test. As such, it is “palpably improper.” Supreme Court, therefore, did not abuse its discretion in denying leave to amend, and the Appellate Division affirms.

3. Why the Denial of Leave Does Not Narrow Trial Theories

The court is equally clear that its affirmance of the denial of the amendment does not restrict the plaintiffs’ ability to prove retaliation on other, broader grounds already encompassed by the existing complaint.

The original complaint alleged, among other things, that:

McKenna sent messages expressing fury at Liebman and Kellerhouse for hiring Miles.
Liebman engaged in protected activity when she protested that Miles’s termination was racist.
There was a causal connection between Liebman’s complaint of race discrimination and the termination of her employment.

The proposed amendment sought to add specifics from McKenna’s texts, including the quotation:

“We just hired a person to lead our community efforts who was arrested and you never told me.”

and to add that Liebman’s “protected activity” included “her hiring of an employee that had been arrested.”

The Appellate Division says that, while the latter characterization of hiring as protected activity is legally flawed and cannot be added, the existing allegations about Liebman’s protest and the surrounding context remain expansive enough to allow the following at trial:

Evidence that Miles’s arrest at a BLM protest motivated her termination.
Evidence that Liebman opposed Miles’s termination as discriminatory—even if she verbally framed it as “racist.”
Evidence that AMC leadership, including McKenna, was angered by Miles’s arrest and that Castilla told management it was illegal to base employment decisions on a dismissed charge.

The court states:

“affirming the denial of plaintiffs’ leave to amend does not prohibit them from attempting to prove retaliation by demonstrating that Liebman engaged in a protected activity when she opposed the termination of Miles on the basis that she was arrested.”

And, critically:

“Liebman’s opposition to Miles’ termination based on racial discrimination is sufficient to encompass opposition to Miles’ termination based on her arrest record. Contrary to defendants’ assertion, a plaintiff alleging retaliation need not oppose discrimination on a specific ground, as long as a jury could reasonably find a causal connection between his or her opposition and the alleged retaliatory conduct.”

Thus, the complaint’s general allegation that Liebman protested racism—and the factual circumstances of that protest—are broad enough to reach discrimination grounded in the BLM arrest and the dismissed criminal charges, even if the complaint does not spell out § 296(16) by name.

4. “It Is All Intertwined”: Causation and Context

The court foregrounds the intertwined nature of:

Miles’s BLM protest and arrest;
Management’s reaction to learning about the arrest;
Liebman’s protest that the termination was “racist”; and
Liebman’s subsequent termination.

It highlights two chronological points:

Liebman was terminated shortly after McKenna and other management became aware that Miles had been arrested at a BLM protest.
Liebman was terminated shortly after Castilla told senior management that it was illegal to base a hiring decision on a dismissed criminal charge.

From this, the court concludes that a jury could reasonably infer:

A causal connection between Miles’s protest and arrest, Liebman’s protest against Miles’s termination, and Liebman’s own termination.
That Liebman’s generalized protest of racism encompassed disapproval of discrimination on the basis of the arrest record.

By stating, “It is all intertwined,” the court underscores that the legal theories under §§ 296(7) and 296(16), the racial dynamics of a BLM arrest, and internal opposition to perceived discrimination are not hermetically sealed categories. In retaliation analysis, context and inference matter.

5. Pleading Scope: No Need for a Separate Cause of Action

The court ultimately holds that plaintiffs’ original complaint is “broad enough to encompass proof at trial that defendants retaliated against Liebman based on her general protest of discrimination, even though not specifically mentioning Miles’ arrest.” It notes:

This theory “need not be set forth in a separate cause of action.”
The proposed amendment did not actually seek to create a new cause of action; it sought only to “fortify” existing ones.

Accordingly, the denial of leave to amend does not bar plaintiffs from presenting a trial theory that defendants retaliated against Liebman for opposing discrimination related to Miles’s arrest record; it simply bars them from labeling the hiring itself as the “protected activity.”

E. Impact and Significance

1. Clarifying the Boundaries of Protected Activity

Liebman draws an important boundary line:

Not protected by itself: Actions that merely reflect compliance with anti-discrimination law (such as hiring someone who might otherwise have been the target of unlawful discrimination) do not automatically constitute “protected activity.” An employee is not shielded from retaliation merely because they participated in a lawful, nondiscriminatory outcome.
Protected: Acts or statements that oppose discriminatory treatment—e.g., objecting that a termination is “racist,” criticizing the use of a dismissed arrest as a basis for adverse action, or refusing to implement a discriminatory directive—fall squarely within the ambit of § 296(7).

This distinction matters for:

Managers and HR professionals – who often participate in decisions implicating discrimination law. Their mere participation in lawful decisions is not protected activity; but once they protest discrimination or refuse to carry out unlawful orders, they may be shielded.
Litigators – who must plead retaliation claims in terms of actual “opposition” or “participation.” Simply alleging that the plaintiff did their job in a nondiscriminatory way is insufficient.

2. Broad Construction of “Opposition” and Pleading Flexibility

At the same time, the decision expands the protection afforded to employees who complain in non-technical terms:

An employee does not need to specify which protected ground is at issue (“race,” “arrest record,” etc.) or cite statutory provisions.
It is sufficient if the employee conveys that they believe the treatment is discriminatory and wrong.
If the facts permit a reasonable jury to link the employer’s retaliation to that protest, the opposition is protected—even if the employee’s language was broad (“this is racist”).

Thus, Liebman reinforces a liberal, Albunio-consistent approach: courts look at what the employer would reasonably understand from the employee’s words and the surrounding context, not merely at the legal precision of the employee’s phrasing.

3. Interplay Between Race, BLM Protests, and Arrest-Record Protection

The factual context—Miles’s arrest at a Black Lives Matter protest—plays a critical role. The court’s comment that “It is all intertwined” reflects a recognition that:

Discrimination based on participation in racial-justice protests and associated arrests can be experienced and perceived as racial discrimination.
Executive Law § 296(16) protects against discrimination rooted in criminal-justice encounters that have been resolved in the individual’s favor.
An employee who protests “racism” in this context is effectively opposing overlapping forms of discrimination—including racial bias and bias tied to the criminal legal system—that the Human Rights Law forbids.

This has practical implications:

Employers should recognize that disciplining or terminating employees because of dismissed BLM-related arrests can raise both race-discrimination and arrest-record-discrimination issues.
Employees who object to such treatment are likely engaged in protected activity, even if they do not frame their objection in terms of “arrest-record discrimination.”

4. Retaliation Claims Without Hyper-Technical Pleading

Liebman also reflects New York’s liberal notice-pleading philosophy. A plaintiff’s failure to explicitly enumerate every legal theory in the complaint does not necessarily limit the scope of proof at trial, so long as:

The factual allegations give defendants fair notice of the nature of the claim; and
The theory is logically encompassed within the broader allegations (here, a retaliation claim based on protest of discrimination in Miles’s termination).

Thus, even though plaintiffs were denied leave to amend, they are not barred from:

Introducing evidence about Miles’s BLM arrest and dismissal of charges;
Arguing that AMC’s conduct violated § 296(16); and
Contending that Liebman’s protest of Miles’s termination (framed as “racist”) amounted to opposition to both race discrimination and arrest-record discrimination.

5. Unresolved Questions: Association-Based Retaliation

The court briefly notes that Liebman’s argument that she was fired because she “associated with a person who had been arrested” was not preserved and therefore was not addressed. This leaves open:

Whether, and to what extent, the Human Rights Law protects employees from retaliation based on their association with individuals who are victims of discrimination under § 296(16) (analogous to association discrimination under other protected categories).

Future cases may further develop this aspect, especially where plaintiffs clearly plead and preserve “association” theories.

IV. Complex Concepts Simplified

A. “Protected Activity”

In retaliation law, “protected activity” means things an employee is legally allowed to do without fear of punishment by the employer. Common examples include:

Complaining internally that a supervisor is discriminating based on race, gender, age, or other protected traits.
Opposing a proposed policy that would unlawfully discriminate (e.g., refusing to follow an illegal hiring directive).
Filing a complaint with a human rights agency or court.
Assisting another employee with a discrimination complaint.

Simply performing your job duties in a lawful and nondiscriminatory way—such as fairly hiring or promoting employees—is important, but it is not automatically “protected activity” in the legal sense. There must be some element of opposition or participation in a discrimination case.

B. “Retaliation”

“Retaliation” occurs when an employer punishes an employee because the employee engaged in protected activity. Typical forms include:

Firing or demoting the employee.
Cutting pay or benefits.
Subjecting the employee to significantly worse working conditions.

To prove retaliation, the employee must show:

They engaged in protected activity (e.g., complained about discrimination).
The employer knew about it.
They suffered a serious negative action (e.g., termination).
The negative action was caused by the protected activity.

C. “Palpably Insufficient” / “Patently Devoid of Merit” (Amendments)

When a party seeks to amend a complaint, courts are generally generous. However, a proposed amendment can be rejected if it is:

“Palpably insufficient” or “patently devoid of merit” – meaning that, even if all the facts are taken as true, the legal theory still fails. There is simply no viable claim under the law.

In Liebman, the court concluded that labeling the act of hiring a person with an arrest record as “protected activity” was such a legally insufficient theory.

D. Arrest-Record Protections (Executive Law § 296(16))

New York gives special protection to individuals who have been:

Arrested or criminally accused,
Whose cases are not currently pending, and
Whose cases ended in their favor (e.g., dismissal, acquittal).

Employers generally cannot use such arrests or accusations against people in hiring, firing, or other employment decisions. Doing so is an “unlawful discriminatory practice” under § 296(16).

E. Liberal Notice Pleading

New York is a “notice pleading” jurisdiction. This means:

The complaint does not need to spell out every legal theory in technical terms.
It must allege facts that, if true, put the defendant on fair notice of the nature of the claim.

In Liebman, even though the complaint did not explicitly mention arrest-record discrimination, its general allegations about retaliatory termination following Liebman’s protest of “racism” in the context of a BLM arrest are sufficient to cover that theory at trial.

V. Conclusion

Liebman v. Albany Medical Center offers a nuanced refinement of New York retaliation law under the Human Rights Law. The Appellate Division’s key contributions are twofold:

Limiting protected activity: The court draws a principled line between:
- Mere participation in nondiscriminatory employment decisions (such as hiring someone with a dismissed arrest), which is not itself protected activity; and
- Active opposition to discriminatory practices (such as protesting that a termination is racist or unlawful), which is protected.
Broadening the reach of retaliation claims: At the same time, the court confirms that:
- Employees are protected when they voice general objections to discriminatory treatment, even without specifying the exact legal theory or protected category.
- In a context where race, protest activity, and dismissed arrests are intertwined, a protest of “racism” can reasonably be understood as opposition both to race discrimination and to arrest-record discrimination under § 296(16).

Procedurally, while plaintiffs were denied leave to amend their complaint to label Liebman’s hiring of Miles as protected activity, the court carefully ensures that this denial does not prejudice their ability to prove, at trial, that Liebman was retaliated against for opposing discrimination tied to Miles’s BLM arrest and dismissed charges. The decision thus preserves the integrity of the “protected activity” concept while upholding a flexible, context-sensitive approach to retaliation claims, consistent with Albunio and New York’s liberal pleading standards.

In the broader legal context, Liebman will likely serve as a significant precedent for:

Defining the limits of what counts as protected activity in employment-retaliation cases.
Guiding lawyers in pleading and proving retaliation claims that involve overlapping forms of discrimination, including those linked to criminal-justice involvement and social-justice activism.