Discrete, Untimely Employment Acts Are Not Revived by the Continuing Violation Doctrine Under the Pre-Amendment One-Year SDHR Limitations Period

1. Introduction

Sekul v New York State Div. of Human Rights (2026 NY Slip Op 02843 [249 AD3d 738] [2d Dept May 6, 2026]) is an Executive Law § 298 / CPLR article 78 proceeding in which petitioner Christopher P. Sekul, a former City of Poughkeepsie firefighter, sought judicial review of a New York State Division of Human Rights (SDHR) determination dismissing his administrative complaint.

Sekul alleged employment discrimination based on age, disability, and sex, as well as hostile work environment and retaliation, all under the New York State Human Rights Law (Executive Law § 296). After a hearing, an ALJ recommended dismissal, and the SDHR Commissioner adopted that recommendation (determination dated March 25, 2021). The Appellate Division, Second Department confirmed the determination.

The key issues were: (i) timeliness under Executive Law § 297(5) (as it existed prior to the 2023 amendment effective February 15, 2024), including whether the continuing violation doctrine could save older allegations; and (ii) whether substantial evidence supported SDHR’s findings rejecting discrimination, hostile work environment, and retaliation.

2. Summary of the Opinion

The Second Department held that alleged discrete discriminatory acts occurring before February 9, 2017 were time-barred because Sekul filed at SDHR on February 9, 2018, when Executive Law § 297(5) imposed a mandatory one-year filing period. The court rejected application of the continuing violation doctrine because the older events (two discrete disciplinary events in 2015 and a January 2016 room-assignment incident quickly remedied) were not shown to be part of a specific ongoing discriminatory policy/practice or sufficiently related to timely acts.

On the merits of the timely claims, the court applied the “substantial evidence” standard applicable to SDHR determinations after a hearing and concluded the record supported:

  • no prima facie proof of age, disability, or sex discrimination;
  • no prima facie hostile work environment;
  • although SDHR found a prima facie retaliation case, the City rebutted it with legitimate nonretaliatory reasons, and Sekul did not prove pretext.

3. Analysis

A. Precedents Cited

1) Limitations period and its mandatory character

Matter of 130-10 Food Corp. v New York State Div. of Human Rights, 166 AD3d 962, 964 [2018] supplied the governing limitations rule: prior to the statutory change referenced by the court, Executive Law § 297(5) required SDHR complaints to be filed within one year. The court used this as the baseline to fix the operative cutoff date (February 9, 2017).

Matter of Julian v Fire Dept. of the City of N.Y., 191 AD3d 676, 678 [2021] (quoting Matter of Murphy v Kirkland, 88 AD3d 267, 273 [2011]) reinforced that the “must be filed within one year” directive is “mandatory” in the nature of a statute of limitations. This framing mattered because it positioned timeliness as a threshold barrier not readily overcome by equitable gloss.

2) Continuing violation doctrine—limits for discrete acts

The court relied on Matter of Lozada v Elmont Hook & Ladder Co. No. 1, 151 AD3d 860, 861-862 [2017], which itself quoted the U.S. Supreme Court’s Title VII limitations analysis in National Railroad Passenger Corporation v Morgan, 536 US 101, 117-118 [2002]. These authorities draw the critical line between (a) discrete, independently actionable acts (typically not revived by later events) and (b) genuinely ongoing policies/practices or long-unremedied, related incidents that can constitute a continuing violation.

Applying Lozada/Morgan, the Second Department treated the 2015 discipline and the January 2016 room-assignment episode as discrete events. The “quickly remedied” nature of the 2016 incident also undercut any claim that the employer “permitted” the condition to persist “unremedied for so long as to amount to a discriminatory policy or practice” (the Lozada formulation the court quoted and applied).

3) Standard of review—substantial evidence and judicial restraint

Rainer N. Mittl, Ophthalmologist, P.C. v New York State Div. of Human Rights, 100 NY2d 326, 331 [2003] provided the central administrative law lens: on review of an SDHR determination after a hearing, the question is whether substantial evidence supports the agency’s findings. The case also supplied the definition of “substantial evidence” as proof a reasonable mind may accept.

Matter of New York State Div. of Human Rights v Roadtec, Inc., 167 AD3d 898, 899 [2018] was cited alongside Mittl to reinforce the same standard in the SDHR context. Matter of Leippe v Gerald J. Wilkoff, Inc., 157 AD3d 797, 798 [2018], echoed the restraint principle: courts may not reweigh conflicting evidence when “room for a choice exists.”

4) Discrimination prima facie standards and comparators/inference

The court cited Cotterell v State of New York, 129 AD3d 653, 654 [2015] and Grillo v New York City Tr. Auth., 291 F3d 231, 235 [2002] for the general prima facie framework: the complainant must establish foundational elements supporting an inference of prohibited discrimination.

For the “similarly situated” comparator requirement, the court relied on Matter of Washington County v New York State Div. of Human Rights, 7 AD3d 895, 896 [2004], and then cited Acala v Mintz Levin Cohn Ferris Glovsky & Popeo, P.C., 222 AD3d 706, 708 [2023] and Brown v City of New York, 188 AD3d 518, 519 [2020] as additional support for the proposition that disparate treatment requires proof that comparators outside the protected class were treated more favorably under sufficiently similar circumstances.

For the alternative route—showing “circumstances” giving rise to an inference of discrimination—the court cited Moscatelli v Woodbury Med. Practice, P.C., 241 AD3d 1453 [2025] along with Acala. On the employer’s “misconduct” explanation negating discriminatory motive, the court cited Scott v City of New York, 233 AD3d 456, 456 [2024].

5) Hostile work environment severity/pervasiveness

The governing definition came from La Marca-Pagano v Dr. Steven Phillips, P.C., 129 AD3d 918, 919 [2015], and the court also cited Golston-Green v City of New York, 184 AD3d 24, 41 [2020]. These cases supply the familiar “severe or pervasive” standard: the workplace must be permeated with discriminatory intimidation, ridicule, and insult altering the conditions of employment.

For application in the SDHR review setting, the court cited Grovesteen v New York State Pub. Employees Fedn., AFL-CIO, 83 AD3d 1332, 1333-1334 [2011], in concluding substantial evidence supported SDHR’s rejection of the hostile environment claim.

6) Retaliation burden-shifting and proof of pretext

The Second Department anchored the retaliation analysis in Matter of Clifton Park Apts., LLC v New York State Div. of Human Rights, 41 NY3d 326, 331 [2024], which confirms retaliation claims are evaluated under a burden-shifting framework. The articulation of the employer’s rebuttal burden—producing admissible evidence of legitimate, independent, nonretaliatory reasons—came from Ferrante v American Lung Assn., 90 NY2d 623, 629 [1997].

On the evidence sufficient to uphold SDHR’s findings that the employer rebutted retaliation and that the complainant failed to show pretext, the court cited Matter of Osorio v New York State Div. of Human Rights, 236 AD3d 1472, 1474 [2025] and Reichman v City of New York, 179 AD3d 1115, 1120 [2020]. In particular, the court emphasized record proof that a notice of charges was drafted before the EEOC filing and concerned pre-EEOC conduct—facts supporting the City’s nonretaliatory explanation and undermining temporal-proximity-only arguments.

B. Legal Reasoning

1) Timeliness: a fixed one-year lookback (pre-amendment)

The court treated Executive Law § 297(5)’s former one-year period as mandatory and mechanically applied it from the SDHR filing date (February 9, 2018) to bar “all alleged discrete acts of discrimination occurring prior to February 9, 2017.” The opinion’s reference to the later amendment (effective February 15, 2024) signals that the legislature changed the limitations regime, but the court applied the statute in effect for this 2018 filing and 2021 determination.

2) Continuing violation: not a catch-all for older, unrelated episodes

The court’s continuing violation analysis is narrow and evidence-driven. It required proof that the time-barred incidents were either: (i) part of “specific ongoing discriminatory policies or practices,” or (ii) “specific and related instances” allowed to persist unremedied long enough to amount to a policy or practice (the Lozada test).

Two features drove the court’s rejection: (a) the older allegations were discrete (two discipline events in 2015; one January 2016 work-assignment incident), and (b) the 2016 incident was “quickly remedied,” undermining any claim of an unremedied, ongoing discriminatory condition. The court also found an evidentiary gap: Sekul did not establish the older events were related to timely discriminatory acts in a way that would convert them into a continuing course.

3) Merits review: deference to SDHR fact-finding

Having narrowed the case to timely allegations, the court emphasized that it could not reweigh evidence or resolve credibility disputes anew. Under Mittl and its progeny, the question is whether the record contains enough relevant proof that a reasonable mind could accept SDHR’s findings.

4) Discrimination: no comparators, no inference, and a misconduct-based explanation

The court upheld SDHR’s determination that Sekul failed to establish a prima facie discrimination case because he did not show that similarly situated employees outside his protected categories were treated better, nor did he establish circumstances supporting an inference of discrimination. Separately, the record supported SDHR’s conclusion that disciplinary charges served between April 2017 and February 2018 were grounded in misconduct rather than prohibited animus, consistent with the rationale reflected in Scott v City of New York.

5) Hostile work environment: lack of severe/pervasive discriminatory hostility

Using the La Marca-Pagano/Golston-Green standard, the court concluded substantial evidence supported SDHR’s finding that the workplace was not “permeated” with discriminatory intimidation, ridicule, and insult sufficiently severe or pervasive to alter conditions of employment.

6) Retaliation: prima facie case may exist, but pretext must be proven

The opinion is notable in that SDHR credited the prima facie showing—especially temporal proximity (a notice of charges five days after an EEOC filing). But the court affirmed SDHR’s conclusion at the next steps of the Clifton Park Apts./Ferrante framework: the City produced a legitimate explanation supported by the record (drafted before the EEOC charge; based on pre-EEOC conduct), and Sekul failed to prove that explanation was merely pretext.

C. Impact

  • Sharper limits on “continuing violation” arguments in SDHR practice (pre-amendment filings): The opinion reinforces that older, discrete incidents—especially those promptly addressed—are unlikely to be pulled into a timely window absent proof of a specific ongoing policy/practice or a demonstrably related, unremedied pattern.
  • Emphasis on comparator and inference evidence: Petitioners pursuing discrimination claims before SDHR should expect close scrutiny of “similarly situated” proof and concrete facts supporting an inference of discriminatory motive, not merely disagreement with discipline.
  • Retaliation claims cannot rest on temporal proximity alone: Even when proximity supports a prima facie case, employers can rebut with documentary chronology (e.g., pre-drafted charges), and petitioners must be prepared to prove pretext with more than suspicion or timing.
  • Administrative review remains highly deferential: The repeated invocation of Mittl and allied cases signals that, after a hearing, SDHR’s fact-finding will generally stand if supported by “such relevant proof” as a reasonable mind may accept—making the hearing record (and credibility determinations) decisive.

4. Complex Concepts Simplified

  • Executive Law § 297(5) limitations period (as applied here): For Sekul’s 2018 SDHR filing, the rule was “file within one year.” Events older than one year are ordinarily excluded.
  • Continuing violation doctrine: A narrow exception that can allow consideration of older conduct if it is part of an ongoing discriminatory policy/practice or a related, persistent, unremedied pattern. It does not usually revive isolated “one-off” discipline decisions.
  • Substantial evidence review: The court does not decide what it believes happened. It asks only whether there is enough reliable evidence in the record that a reasonable decision-maker could reach SDHR’s conclusion. If evidence conflicts, SDHR can choose between competing versions so long as its choice is reasonable.
  • Prima facie case: The minimal set of facts that, if credited, permits an inference of discrimination/retaliation and shifts the analysis to the employer’s explanation.
  • Burden-shifting / pretext (retaliation): Step 1: complainant shows basic retaliation elements. Step 2: employer provides a legitimate reason. Step 3: complainant must show that reason is not the real reason (it is “pretext”).
  • Hostile work environment (“severe or pervasive”): Not every unpleasant or unfair workplace event qualifies; the conduct must be sufficiently extreme or frequent and tied to a protected characteristic.

5. Conclusion

Sekul confirms two practical rules for SDHR litigation and subsequent article 78 review: (1) under the pre-amendment one-year filing regime, discrete incidents outside the limitations period are barred and are not revived by the continuing violation doctrine absent proof of an ongoing discriminatory policy/practice or a related, persistent, unremedied pattern; and (2) once SDHR has held a hearing, judicial review is tightly constrained by substantial-evidence deference. On the merits, the decision underscores the evidentiary demands of discrimination and hostile environment claims (comparators/inference and severity/pervasiveness), and it illustrates that retaliation claims—though sometimes supported by timing—rise or fall on the employer’s documented rationale and the complainant’s ability to prove pretext.