Termination for Failure to Provide a Return-to-Work Date Defeats NYSHRL/NYCHRL Pregnancy-Discrimination and Retaliation Claims on Summary Judgment

1. Introduction

In Leibowitz v New York County Lawyers Assn. (2026 NY Slip Op 04759 [2d Dept July 29, 2026]), the Appellate Division, Second Department affirmed summary judgment dismissing a former employee’s claims of pregnancy/gender discrimination and retaliation under both the New York State Human Rights Law (NYSHRL, Executive Law § 296) and the New York City Human Rights Law (NYCHRL, Administrative Code § 8-107).

The plaintiff took a pregnancy-related leave in April 2016. During her leave, the employer converted her position from full-time to part-time. In August 2016, the employer repeatedly sought a specific return-to-work date. After the plaintiff did not commit to an exact date, the employer terminated her employment effective at the end of her leave (September 8, 2016). The plaintiff sued in 2019, alleging discrimination and retaliation. The core issue on appeal was whether the employer’s stated reason—failure to commit to a return date—could be found pretextual (NYSHRL) or whether discrimination played any role (NYCHRL), and whether any protected activity causally related to the challenged actions supported retaliation claims.

2. Summary of the Opinion

The Second Department held that the employer established legitimate, nondiscriminatory and nonretaliatory reasons for:

  • Termination: the plaintiff’s repeated failure to specify a return-to-work date.
  • Changing the role to part-time: a business reason supported by having cleared a “134-case backlog” in the department.

The plaintiff failed to raise triable issues that these reasons were pretextual, that discrimination was a motivating factor under the NYCHRL, or that there was a causal link between any protected activity and the employer’s actions. The court also declined to consider a remaining argument raised for the first time on appeal.

3. Analysis

3.1 Precedents Cited (and How They Shaped the Decision)

NYSHRL discrimination framework and comparator principles

  • Niemotko v Mount St. Mary Coll. (241 AD3d 701): The court used this case to state the then-applicable NYSHRL prima facie elements and to support that termination for failure to commit to a return date can constitute a legitimate, nondiscriminatory reason at summary judgment.
  • Lefort v Kingsbrook Jewish Med. Ctr. (203 AD3d 708): Cited for two key propositions: (1) the prima facie discrimination elements and (2) the defendant’s summary-judgment route—either negate an element or articulate legitimate reasons and show no triable issue of pretext.
  • Castro v City Univ. of N.Y. (238 AD3d 1106), Dotson v J.C. Penney Co., Inc. (159 AD3d 1512), and Diaz v Minhas Constr. Corp., LLC (188 AD3d 812): These cases supply the “similarly situated in all material respects” comparator standard. Their inclusion signals that, where a plaintiff seeks an inference of discrimination via disparate treatment, courts require a close factual resemblance—yet not identity—on significant respects. In Leibowitz, however, the case turned less on comparators and more on the plaintiff’s failure to rebut the employer’s stated reason as pretext.
  • D'Agostino v MMC E., LLC (184 AD3d 719): Used to reinforce the plaintiff’s burden at the pretext stage—mere disagreement with the employer’s rationale is insufficient without evidence that the stated reason masks discrimination.

NYCHRL’s “no role” standard and dual summary-judgment frameworks

  • Ellison v Chartis Claims, Inc. (178 AD3d 665): Central to the NYCHRL analysis. It supplies both (1) the rule that discrimination must play “no role” in an employment decision and (2) the defendant’s summary-judgment burden to show “no evidentiary route” by which a jury could find discrimination played any role. The court applied Ellison to conclude the employer met this burden and the plaintiff failed to raise a triable issue of pretext or motivating factor.
  • Wright v White Plains Hosp. Med. Ctr. (237 AD3d 1143): Cited for the requirement that NYCHRL summary judgment be analyzed under both the traditional McDonnell Douglas framework and the “newer mixed-motive” approach, under which a plaintiff may survive by showing discrimination was one motivating factor.
  • McDonnell Douglas Corp. v Green (411 US 792): Provides the classic burden-shifting structure used as one analytic lens for NYCHRL (and historically for NYSHRL) claims: prima facie case, legitimate reason, and pretext.
  • Reichman v City of New York (179 AD3d 1115): Cited both in the NYCHRL discrimination discussion and prominently in retaliation. It reinforces the “mixed-motive” concept for NYCHRL and supplies the summary-judgment standards for retaliation claims under both statutes (prima facie failure or no triable issue of pretext after legitimate reasons are offered).

Retaliation standards under NYSHRL and NYCHRL

  • Makharadze v Ognibene (239 AD3d 844): Provides the elements of a NYSHRL retaliation prima facie case (protected activity, employer knowledge, adverse action, causal connection), and clarifies that under NYCHRL the plaintiff need only show an action that “disadvantaged” them (a lower threshold than “adverse employment action”).
  • Bilitch v New York City Health & Hosps. Corp. (194 AD3d 999): Cited to reinforce the summary-judgment pathway in retaliation cases—legitimate reasons plus no triable issue of pretext defeats the claims.

3.2 Legal Reasoning

(A) NYSHRL pregnancy discrimination

Applying the NYSHRL standard in effect when the action commenced (August 7, 2019), the court assumed the conventional prima facie framework but resolved the appeal at the summary-judgment/pretext stage:

  • The employer satisfied its prima facie burden on summary judgment by articulating a legitimate, nondiscriminatory reason: the plaintiff’s failure to commit to a return-to-work date.
  • The plaintiff failed to raise a triable issue that this reason was pretext for pregnancy discrimination.

Notably, the court treated the “return date” issue as a concrete, administrable business necessity: an employer may require clarity on staffing and coverage, and the absence of evidence undermining that rationale (or linking the decision to pregnancy animus) is fatal at summary judgment.

(B) NYCHRL gender discrimination

NYCHRL imposes a more plaintiff-friendly standard, but it also sets a specific summary-judgment test: defendants must show there is “no evidentiary route” for a jury to conclude discrimination played any role.

  • The employer carried that burden by establishing a nondiscriminatory explanation supported by the record.
  • The plaintiff failed to produce evidence either that the explanation was pretext or that discrimination was one motivating factor.

The court’s NYCHRL analysis is important because it demonstrates that even under the City’s expansive remedial statute, a plaintiff must still point to some evidence connecting the challenged decision to discrimination; the NYCHRL does not eliminate summary judgment where the record offers no such route.

(C) Retaliation under NYSHRL and NYCHRL

For retaliation, the employer again prevailed by offering legitimate reasons and showing no triable issue of pretext or causation:

  • Termination: the same rationale—failure to specify a return date—also functioned as a nonretaliatory reason.
  • Conversion to part-time: a business justification tied to departmental workload—clearing a “134-case backlog.”

The plaintiff’s failure was twofold: she did not show the proffered reasons were pretextual, and she did not establish a causal link to any protected activity (under NYSHRL) or even to an action that disadvantaged her (under NYCHRL).

3.3 Impact

  • Return-to-work date as a litigation focal point: The decision reinforces that an employee’s refusal or inability to provide a concrete return date—when repeatedly requested—can be a persuasive legitimate reason for termination at the summary-judgment stage, absent evidence of discriminatory motive.
  • NYCHRL remains plaintiff-friendly but not evidence-free: By applying the “no evidentiary route” standard, the Second Department emphasizes that NYCHRL claims still require record evidence that discrimination played some role; otherwise, employers can obtain dismissal as a matter of law.
  • Operational metrics can matter: The reference to clearing a “134-case backlog” illustrates how measurable business facts may support staffing changes (e.g., full-time to part-time) and blunt inferences of discriminatory or retaliatory motive—particularly where plaintiffs cannot rebut them with contrary evidence.
  • Appellate preservation reminder: The court’s refusal to consider an argument raised for the first time on appeal underscores the practical importance of issue preservation in employment cases.

4. Complex Concepts Simplified

  • Prima facie case: The initial minimal showing a plaintiff must make to get a discrimination/retaliation claim off the ground (e.g., protected status, adverse action, and circumstances suggesting discrimination).
  • Similarly situated (comparators): Coworkers used for comparison must be similar “in all material respects”—not identical, but close enough that different treatment could suggest discrimination rather than different circumstances.
  • McDonnell Douglas burden-shifting: A common proof structure: (1) plaintiff shows a prima facie case; (2) employer articulates a legitimate reason; (3) plaintiff must show that reason is a pretext (a cover) for discrimination.
  • Pretext: Evidence that the employer’s stated reason is not the real reason (e.g., inconsistencies, shifting explanations, or evidence of bias). Showing pretext often requires more than asserting unfairness; it requires facts undermining credibility or linking the decision to bias.
  • Mixed-motive (NYCHRL lens): The idea that an action can be motivated by multiple reasons. Under NYCHRL, a plaintiff may survive if discrimination was one motivating factor, even if other legitimate reasons also existed—unless the defendant shows there is no evidentiary route to that conclusion.
  • “No evidentiary route” (NYCHRL summary judgment): The employer’s high-level showing that, on the record, a reasonable jury could not find that discrimination played any role.
  • Protected activity and causation (retaliation): Protected activity typically includes complaining about discrimination. The plaintiff must connect that activity to the employer’s response (timing alone may not suffice without more).
  • Adverse action vs. disadvantage: Under NYSHRL, retaliation usually requires an “adverse employment action.” Under NYCHRL, it is enough that the employer’s action “disadvantaged” the plaintiff—still requiring causation and some evidentiary basis.

5. Conclusion

Leibowitz v New York County Lawyers Assn. confirms a practical, evidence-centered rule in leave-related employment disputes: where an employer documents repeated requests for a return-to-work date and terminates employment only after the employee fails to commit to one, that rationale can defeat pregnancy/gender discrimination and retaliation claims on summary judgment under both NYSHRL and NYCHRL—absent proof of pretext or any evidentiary route showing discriminatory motivation. The decision also highlights how concrete operational facts (like demonstrable workload reductions) can support staffing changes and narrow the space for inference-based claims to reach a jury.