In McConkey v. The Churchill School and Center, 24-cv-6091 (LJL), 2025 WL 2062195 (S.D.N.Y. July 23, 2025), the court, inter alia, denied defendant’s motion to dismiss plaintiff’s claim of sexual orientation discrimination asserted in violation of Title VII of the Civil Rights Act of 1964.
From the decision:
Given Plaintiff’s minimal burden at the motion to dismiss stage, he has succeeded in plausibly alleg[ing] facts that provide ‘at least minimal support for the proposition that the employer was motivated by discriminatory intent.
McConkey alleges a longstanding pattern of incidents with Wallin which provide evidence of discriminatory animus towards McConkey as a gay man. McConkey alleges that in 2001, a homophobic slur directed at McConkey was written on Wallin’s whiteboard, which was brough to McConkey’s attention by a distraught student. When McConkey confronted Wallin about the message, Wallin claimed he had not noticed it. For years after the incident and up until McConkey’s firing, Wallin repeatedly brought up the whiteboard incident, including in each annual review that he conducted with McConkey as the Acting Principal and later Principal. In the annual reviews and in other meetings, Wallin would bring up the 2001 incident, saying, “remember that time …,” claiming that McConkey intimidated him during the incident and that he was scared. Wallin also consistently commented to McConkey that McConkey would like newly hired gay teachers, something he did not do with heterosexual hires. At a different point, Wallin told McConkey that he could not support reappointing “someone like you,” which McConkey understood from the context to be a reference to McConkey’s sexual orientation.
Defendant is correct that many of Wallin’s homophobic remarks occurred prior to December 27, 2022, and therefore outside of the statute of limitations for Title VII. Both sides agree that the continuing violation doctrine is inapplicable, as McConkey’s claim is for a discrete termination decision, not an ongoing violation. However, McConkey is correct that such incidents as are alleged above may be offered as evidence of discriminatory animus, regardless whether they could be cognizable as incidents of actionable discrimination. Title VII does not bar an employee from using the prior acts as background evidence to support a timely claim. Actions that fall outside of the limitations period may serve as evidence of discriminatory motivation even if they are not actionable as discrete adverse employment actions under Title VII. Such remarks may be construed as evidence of impermissible bias if they amount to more than stray remarks. In analyzing whether remarks are probative of discriminatory animus or whether they are just stray remarks, courts assess (1) who made the remark, i.e., a decisionmaker, a supervisor, or a low-level co-worker; (2) when the remark was made in relation to the employment decision at issue; (3) the content of the remark, i.e., whether a reasonable juror could view the remark as discriminatory; and (4) the context in which the remark was made, i.e., whether it was related to the decisionmaking process.
Drawing all inferences in favor of McConkey, it is plausible that Wallin’s comments, particularly his alleged yearly recounting of the whiteboard incident, reflect a pattern of homophobic animus against McConkey for being a gay man. Though Wallin’s comments might be open to a degree of interpretation as to whether they are suggestive of bias, at the motion to dismiss stage, the Court must draw all inferences in favor of Plaintiff’s claim. … The inference that the comments are discriminatory is supported by the language of the writing in Wallin’s classroom in the first place and by Wallin’s other comments plausibly suggestive of bias. On the pleadings, Wallin’s yearly repetition of the whiteboard incident cannot be characterized as merely a stray remark, given the frequency of its invocation, the fact its invocation in sensitive annual review meetings in which the power dynamic between McConkey as a subordinate and Wallin as his supervisee was most salient, and its immediate connection to and evocation of a homophobic slur. Of course, McConkey has not alleged that Wallin mentioned the whiteboard incident during or in the immediate leadup to the termination meeting. However, this is hardly surprising—as alleged by McConkey, the termination decision was based on the pretext of the bathroom door incident, such that Wallin would have no reason to mention the whiteboard incident.
Having adequately pleaded animus on the part of Wallin, McConkey adequately pleads that Churchill was motivated by discriminatory intent in firing him.
[Cleaned up.]
The court concluded that, drawing all factual inferences in plaintiff’s favor, it was plausible that bias against plaintiff played an impermissible role in his firing, in violation of Title VII. Furthermore, the court noted that, at this stage, plaintiff need not show that homophobic animus was the only cause of his termination, but need only plead that such animus was “one of the but-for causes of his termination.”
And, since plaintiff stated a claim under Title VII, he necessarily stated a claim under the “less demanding” New York State and City Human Rights Laws.