24-1103-cv Nambiar v. The Central Orthopedic Group, LLP

United States Court of Appeals For the Second Circuit

August Term 2024

Submitted: April 30, 2025 Decided: October 28, 2025

No. 24-1103

SEEMA V. NAMBIAR, M.D.,

Plaintiff-Appellant,

v.

THE CENTRAL ORTHOPEDIC GROUP, LLP; DAVID ZITNER, M.D.; SCOTT SILVERBERG, M.D.; JORGE BAEZ, M.D.; MITCHELL KESCHNER, M.D.; JORDAN KERKER, M.D.; FERNANDO CHECO, M.D.,

Defendants-Appellees.

Appeal from the United States District Court for the Eastern District of New York No. 2:19CV00938, Seybert, Judge.

Before: LYNCH, MERRIAM, KAHN, Circuit Judges. Plaintiff-appellant Dr. Seema V. Nambiar appeals from a judgment entered in the United States District Court for the Eastern District of New York (Seybert, J.), granting summary judgment to defendants-appellees The Central Orthopedic Group, LLP, (“COG”) and its partners. Nambiar brought this action alleging discrimination on the basis of age and sex, retaliation, and breach of contract. The District Judge referred defendants’ motion for summary judgment to the Magistrate Judge who issued a report and recommendation (“R&R”) recommending that the motion be granted in its entirety. The District Judge concluded that Nambiar had failed to properly object to the R&R and therefore reviewed the R&R only for clear error. On clear error review, the District Judge adopted the R&R in full. The District Judge erred by reviewing the R&R only for clear error. Nambiar filed timely and specific written objections to the R&R, requiring the District Judge to review the R&R de novo. Contrary to the District Judge’s conclusion, Nambiar’s objections were proper, even though she raised the same arguments in her objections to the R&R that she had raised in opposition to the motion for summary judgment. However, we review a grant of summary judgment de novo; therefore, the District Judge’s failure to conduct the required de novo review of the R&R is harmless. On our own de novo review, we conclude that defendants were entitled to summary judgment as to each of Nambiar’s claims that are preserved for appellate review. Accordingly, we AFFIRM the judgment of the District Court.

Pankaj Malik, PM Law PC, New York, NY, for Plaintiff-Appellant.

Daniel S. Moretti, Tina S. Bhatt, Landman Corsi Ballaine & Ford P.C., New York, NY, for Defendants-Appellees.

SARAH A. L. MERRIAM, Circuit Judge:

Plaintiff-appellant Dr. Seema V. Nambiar brought this action alleging

discrimination on the basis of age and sex, retaliation, and breach of contract

2 against her previous employer, defendant-appellee The Central Orthopedic

Group, LLP, (“COG”) and its partners, defendants-appellees Dr. David Zitner,

Dr. Scott Silverberg, Dr. Jorge Baez, Dr. Mitchell Keschner, Dr. Jordan Kerker,

and Dr. Fernando Checo (collectively, with COG, “defendants”). She appeals

from the District Court’s order granting summary judgment to defendants. See

Nambiar v. Cent. Orthopedic Grp., LLP, No. 2:19CV00938(JS),

(E.D.N.Y. Mar. 26, 2024).

The District Judge referred defendants’ motion for summary judgment to

the Magistrate Judge who issued a report and recommendation (“R&R”)

recommending that the motion be granted in its entirety. See Nambiar v. Cent.

Orthopedic Grp., LLP, No. 2:19CV00938(JS)(ARL),

(E.D.N.Y. Feb.

1, 2024).

The District Judge concluded that Nambiar had failed to properly object to

the R&R, and therefore reviewed the R&R only for clear error. On clear error

review, the District Judge adopted the R&R in full.

We conclude that the District Court erred by reviewing the R&R only for

clear error. Nambiar filed timely and specific written objections to the R&R,

triggering a requirement that the District Judge review the R&R de novo.

3 Contrary to the District Judge’s conclusion, Nambiar’s objections were proper,

even though she raised the same grounds in her objections to the R&R that she

had argued in opposition to the motion for summary judgment.

However, we review a grant of summary judgment de novo; therefore, the

District Judge’s failure to conduct the required de novo review of the R&R is

harmless. On our own de novo review, we conclude that Nambiar failed to

establish a genuine dispute of material fact to withstand defendants’ motion for

summary judgment. Accordingly, we AFFIRM the judgment entered by the

District Court.

BACKGROUND

The facts set forth below are drawn from the evidence submitted in

connection with the motion for summary judgment. These facts are undisputed

unless otherwise stated.

Nambiar is a board-certified physical medicine and rehabilitation doctor.

Nambiar was employed by COG, a medical practice specializing in orthopedics,

as a pain management specialist. In or about November 2013, COG and Nambiar

executed an employment contract with a three-year term of employment to

commence in April 2014; the contract anticipated that after three years, if the

4 contract had not been terminated, Nambiar would become a partner in the

practice. See App’x at 2232.

Defendants assert that by the fall of 2014, they began receiving complaints

from patients and staff about Nambiar. In January 2016, citing those complaints,

defendants informed Nambiar that they intended to terminate her employment

contract. Defendants proposed that the parties enter into a new contract that

would extend Nambiar’s employment term for one year but also remove the

promise of partnership. Defendants asserted that they wanted to give Nambiar

an opportunity to improve her performance – a “let’s-see-how-you-do phase” –

before they committed to providing her with a stake in the practice. App’x at

709.

Nambiar asserted that the complaints against her were meritless, and she

refused to sign the proposed new agreement. Defendant Silverberg informed

Nambiar in February that if she did not sign the new agreement, her

employment would probably be terminated. See App’x at 298. On March 15,

2016, defendants informed Nambiar that she needed to make a decision by

March 18, 2016, about whether she would sign a new agreement, or she would be

replaced. See App’x at 398-99. Nambiar failed to sign a new agreement, and on

5 March 21, 2016, COG gave her a letter terminating her employment with 90 days’

notice. See App’x at 2815-16.

Defendants asserted that Nambiar’s employment was terminated because

of the complaints against her. Nambiar alleged that her employment was

terminated because of unlawful discrimination on the basis of age and sex, and

in retaliation for her statement that she intended to file a complaint with the

Equal Employment Opportunity Commission (“EEOC”). Nambiar brought this

action in the Eastern District of New York on February 15, 2019, alleging the

following claims: (1) age discrimination, in violation of the Age Discrimination

and Employment Act (“ADEA”),

, et seq., and the New York State

Human Rights Law (“NYSHRL”),

(1); (2) discrimination

on the basis of sex, in violation of Title VII of the Civil Rights Act of 1964, 42

U.S.C. §2000e-2 and the NYSHRL,

(1); (3) retaliation, in

violation of Title VII, 42 U.S.C. §2000e-3, and the NYSHRL,

(7); (4) breach of contract, in violation of state common law; and (5) aiding

and abetting discrimination and retaliation, in violation of NYSHRL,

(6). See App’x at 19-31. After discovery concluded,

defendants filed a motion for summary judgment; Nambiar filed an opposition

6 and a motion to strike certain defense exhibits.

District Judge Gary R. Brown held a conference on October 27, 2021,

during which he orally granted defendants’ motion for summary judgment on

Nambiar’s retaliation claim. On December 15, 2021, the case was reassigned to

District Judge Joanna Seybert. On January 5, 2022, the parties filed two fully

briefed motions: defendants’ motion for summary judgment on Nambiar’s

remaining claims; and Nambiar’s cross-motion for reconsideration of Judge

Brown’s decision to grant summary judgment to defendants on Nambiar’s

retaliation claim and to strike certain defense exhibits.

On October 26, 2023, Judge Seybert referred the pending motions to

Magistrate Judge Arlene R. Lindsay. Magistrate Judge Lindsay issued an R&R

on February 1, 2024, recommending that defendants’ motion for summary

judgment be granted and Nambiar’s motion to reconsider and to strike be

denied. On March 26, 2024, finding no clear error in the R&R and adopting the

R&R in its entirety, District Judge Seybert granted summary judgment in favor of

defendants and denied Nambiar’s motion to reconsider and to strike. This

appeal followed.

7 DISCUSSION

We begin with the District Court’s review of the R&R.

I. Review of a Magistrate Judge’s R&R by a District Judge

The Federal Magistrates Act (“FMA”), and its procedural counterpart,

Federal Rule of Civil Procedure 72, permit a district judge to designate a

magistrate judge 1 to hear any pretrial matter. See

(b)(1); Fed. R.

Civ. P. 72. A district judge may refer a case-dispositive matter such as a motion

for summary judgment to a magistrate judge, but “only for recommendation, not

for decision.” Arista Recs., LLC v. Doe 3,

(2d Cir. 2010). When

referred a dispositive matter, the magistrate judge issues an R&R with “proposed

findings of fact and recommendations for the [case’s] disposition.”

(b)(1)(B). The parties then have an opportunity to object to the R&R, in

whole or in part. See Fed. R. Civ. P. 72(b)(2);

(b)(1). “As to a

dispositive matter, any part of the magistrate judge’s recommendation that has

1 In 1990, Congress formally changed the title for this role from “magistrate” to “magistrate judge” “to reflect more accurately the responsibilities, duties and stature of the office.” 136 Cong. Rec. S17570-02 (1990). In spite of this change having been made 35 years ago, many attorneys appearing in federal court, including the counsel authoring the briefs in this appeal, continue to refer to magistrate judges by the wrong title. To be clear, the proper title is “magistrate judge” because magistrate judges are judges. 8 been properly objected to must be reviewed by the district judge de novo.” Arista

Recs.,

; see also Fed. R. Civ. P. 72(b)(3). If a party fails to properly

object to the R&R, the district judge reviews the R&R only for clear error. See

Fed. R. Civ. P. 72(b) advisory committee’s note to 1983 amendment.

In evaluating the District Judge’s review of the R&R in this case, we are

confronted with the question: what does it mean to “properly object” to an R&R?

A proper objection must be timely. Failure to timely object may “operate[]

as a [forfeiture] 2 of further judicial review” of the magistrate judge’s decision.

Mario v. P & C Food Mkts.,

(2d Cir. 2002).

A proper objection must be specific. “A plaintiff is deemed to have

[forfeited] an objection to a magistrate judge’s report if he does not present his

claims to the district court. In order to preserve for appeal an issue in a

magistrate judge’s report, a party must object to the finding or recommendation

on that issue with sufficient specificity so as reasonably to alert the district court

of the true ground for the objection.” Martin v. Duffy,

(4th Cir.

2017) (citation modified); see also Miller v. Brightstar Asia, Ltd.,

, 120-21

2We use the term “forfeiture” to describe a party’s failure to raise an argument rather than “waiver,” which is reserved for a party’s “intentional relinquishment of a known right.” Doe v. Trump Corp.,

, 409 n.6 (2d Cir. 2021) (citation modified). 9 (2d Cir. 2022). “Just as a complaint stating only ‘I complain’ states no claim, an

objection stating only ‘I object’ preserves no issue for review.” Lockert v. Faulkner,

(7th Cir. 1988). “The point of making objections is to tell the

district judge – who, under §636(b)(1) must make the final decision and enter

judgment – what issues the parties actually dispute.” Id. “Merely referring the

court to previously filed papers or arguments does not constitute an adequate

objection.” Mario,

.

A proper objection generally may not raise new arguments not previously

made before the magistrate judge. See, e.g., Fischer v. Forrest,

, 221 (2d

Cir. 2020) (affirming district judge’s decision to disallow objections advancing an

argument that “had not been raised during summary judgement proceedings

before the Magistrate Judge”); see also Bus. for a Better N.Y. v. Angello,

, 706 (2d Cir. 2009) (summary order) (noting that the court need not consider

arguments “raised for the first time in the objections to the report and

recommendation”).

Under these standards, Nambiar properly objected to the R&R – at least as

to some issues. Nambiar filed timely, specific objections to the R&R. See App’x

at 3043-52. In her objections, she challenged the Magistrate Judge’s

10 recommendation that summary judgment be granted in defendants’ favor on her

sex discrimination claim on two grounds, arguing, first, that the Magistrate

Judge improperly relied on evidence that would be inadmissible at trial, and

second, that the Magistrate Judge ignored evidence showing that defendants’

justification for firing her – complaints by patients and staff – was pretextual.

She also objected to the Magistrate Judge’s recommendation that judgment be

entered in defendants’ favor on her aiding and abetting claim.

The District Judge deemed Nambiar’s objections improper, finding “them

to be mere reiterations of the arguments in the original papers that were fully

considered, and rejected, by Judge Lindsay.” Special App’x at 8 (citation

modified). In other words, the District Judge applied an additional qualification

to the definition of a “proper objection,” requiring that an objection may not

reiterate to the district judge arguments already raised before the magistrate

judge. That was error.

As the Supreme Court has recognized, the role of the magistrate judge in

today’s federal judicial system is “nothing less than indispensable.” Peretz v.

United States,

(1991) (citation modified). “[I]t is no exaggeration

to say that without the distinguished service of [magistrate judges and

11 bankruptcy judges], the work of the federal court system would grind nearly to a

halt.” Wellness Int'l Network, Ltd. v. Sharif,

, 668 (2015). But the

authority of magistrate judges is limited by Article III, as Congress recognized in

enacting the FMA. The FMA “ensure[s] that the essential attributes of the

judicial power remain in Article III tribunals,” EEOC v. City of Long Branch,

(3d Cir. 2017) (citation modified), while also empowering magistrate

judges to undertake the fullest range of responsibilities, by “carefully

delineat[ing] the types of matters that may be referred to magistrate judges” for

binding decision,

and by requiring that the district judge review case-

dispositive recommendations de novo.

Accordingly, de novo review of those portions of the magistrate judge’s

report and findings to which a party timely objects is “crucial to the

constitutionality of the Federal Magistrate Act.” Taylor v. Farrier,

(8th Cir. 1990) (citation modified). Such review may only be foregone when

the parties do not object to the magistrate judge’s recommendation. See Elijah v.

Dunbar,

, 460 (4th Cir. 2023); cf. S.J. v. New York City Dept. of Educ., No.

21-240,

, at *1 n.1 (2d Cir. May 4, 2022) (summary order) (“A

district court must conduct a de novo review of any portion of the report to which

12 a specific objection is made on issues raised before the magistrate judge, and the

remaining portions of the report as to which no objections were made are

reviewed for clear error.” (citation modified)).

A number of district court decisions in this Circuit, however, have limited

their consideration of objections, as the District Judge did in this case, by refusing

to review an R&R de novo where the objecting party relied on an argument

already raised and rejected by the magistrate judge. See, e.g., U.S. Small Bus.

Admin. v. Ameritrans Holdings, LLC, No. 20CV01166(JS),

, at *2-3

(E.D.N.Y. Feb. 21, 2024) (applying clear error review where “[d]efendants’

regurgitation of their original arguments [was] readily apparent when

comparing their [underlying motion] to their [o]bjections”); N.Y.C. Dist. Council

of Carpenters Pension Fund v. Forde,

(S.D.N.Y. 2018)

(“When a party . . . simply reiterates the original arguments, the Court will

review the R&R strictly for clear error.” (citation modified)); Ortiz v. Barkley,

(S.D.N.Y. 2008) (“It is improper for an objecting party to

attempt to relitigate the entire content of the hearing before the Magistrate Judge

by submitting papers to a district court which are nothing more than a rehashing

of the same arguments and positions taken in the original papers submitted to

13 the Magistrate Judge.” (citation modified)).

This rule places a litigant in an impossible position. She may not raise an

argument for the first time in her objections to the magistrate judge’s R&R. But

she also may not raise an argument she has already argued. That cannot be. A

litigant who has fully and forcefully argued her point in front of the magistrate

judge and lost must be able to make that argument again to the district judge.

Otherwise, what value would there be in objecting? As the Fourth Circuit has

explained, “[a]side from needlessly curtailing litigants’ access to an Article III

judge, [this] could leave litigants with no available arguments.” Elijah, 66 F.4th at

460 n.3.

We have signaled in past decisions that this approach is untenable. As we

stated: “[W]e are skeptical that clear error review would be appropriate in this

instance, where arguably the only way for [the objecting litigant] to raise

arguments on that point was to reiterate them.” Moss v. Colvin,

, 519

n.2 (2d Cir. 2017) (citation modified). More recently, we acknowledged that

district courts in this Circuit have held that when “the party makes only

conclusory or general objections, or simply reiterates his original arguments, the

[district court] reviews the Report and Recommendation only for clear error.”

14 Miller, 43 F.4th at 120 (alteration in original) (quoting Thomas v. Astrue,

(S.D.N.Y. 2009)). But as we explained, that principle should be

applied only “when the objections are nonspecific or merely perfunctory

responses argued in an attempt to engage the district court in a rehashing of the

same arguments set forth in the original petition.”

(citation modified). Where

a litigant’s objections take “issue with a specific legal conclusion in the report

and recommendation,” they should be considered de novo, even if they repeat an

argument raised before the magistrate judge. Id. at 121; see also Ramgoolie v.

Ramgoolie, No. 22-1409,

, at *2 (2d Cir. Oct. 7, 2024) (summary

order) (noting Miller’s expression of “skepticism” about the district court’s clear

error review of objections simply because they reiterated arguments made to the

magistrate judge).

In sum, a litigant objecting to an R&R may not simply rest on the briefs

considered by the magistrate judge; she must lodge a specific objection to some

specific aspect of the R&R. But the objection not only may, but often must,

repeat arguments that were previously raised. When a timely filed objection

raises and properly briefs arguments previously rejected by the magistrate judge,

the district judge must review those arguments de novo. The District Judge here,

15 understandably following an approach that has gone unchecked for some years,

rejected Nambiar’s proper objections to certain portions of the R&R on the

ground that the same arguments raised in the objection were also made to the

Magistrate Judge. That was error. Because Nambiar properly objected to the

R&R’s findings as to her claims of sex discrimination and aiding and abetting

discrimination, the District Judge should have reviewed de novo the Magistrate

Judge’s recommended disposition of those claims.

II. Preservation of Claims

Nambiar properly objected to the R&R’s findings as to her claims of sex

discrimination and aiding and abetting discrimination, preserving those claims

for appellate review. But defendants contend that Nambiar has failed to

preserve certain of her claims. See Appellees’ Br. at 27-28, 39-40. Before turning

to the merits, we consider that threshold issue.

A. Age Discrimination Claims

Nambiar failed to object to the R&R’s recommendation that summary

judgment be granted in favor of defendants on her age discrimination claims. In

her objections, Nambiar made only one passing reference to her claims of age

discrimination. See App’x at 3050 (“This evidence shows that while Defendants

16 fired Dr. Nambiar because of her age and sex, they sought a replacement who

was ‘eager, young and looking to work hard’ to enhance their revenues.”). In her

reply brief on appeal, she cites this one reference as evidence that she “did raise

the issue of age discrimination in her objections.” Reply Br. at 13. But this claim

is belied by the entirety of the objections. The objections set out three arguments,

headed as follows: “I. Dr. Nambiar objects to the Report’s recommendation of

summary judgment on Dr. Nambiar’s sex discrimination claim,” App’x at 3044;

“II. Dr. Nambiar also objects to Judge Lindsay’s recommendation to deny Dr.

Nambiar’s motion to strike,” App’x at 3051; “III. Dr. Nambiar also objects to

Judge Lindsay’s recommendation to dismiss Dr. Nambiar’s claim for aiding and

abetting discrimination,” App’x at 3051. Age discrimination is not mentioned.

Contrary to Nambiar’s assertion, the objections did not “clearly apprise[] the

district court” that she contested the R&R’s findings as to age discrimination.

Reply Br. at 14.

Where parties receive clear notice of the consequences, failure to timely

object to a magistrate judge’s report and recommendation forfeits further judicial

review of the magistrate judge’s decision. Mario,

. The R&R

provided the requisite clear notice, stating: “[T]he parties shall have fourteen (14)

17 days from service of this Report and Recommendation to file written objections. .

. . Failure to file objections within this period waives the right to appeal the

District Court’s Order.” App’x at 3041. Mentioning an issue only “obliquely and

in passing” is insufficient to preserve it for review. Gerstenbluth v. Credit Suisse

Sec. (USA) LLC,

, 142 n.4 (2d Cir. 2013). Accordingly, we conclude

that Nambiar has forfeited further judicial review of her age discrimination

claims.

Nambiar contends that this rule is “a nonjurisdictional one whose

violation the Court may excuse in the interests of justice,” but takes the

discussion no further. Reply Br. at 14 (citation modified). She makes no

argument as to why the “interests of justice” in this case call for us to excuse her

failure to object. Nor does she identify, much less analyze, any errors in the

R&R’s analysis of these claims. We therefore find no reason to excuse the

forfeiture of further judicial review of her age discrimination claims.

B. Retaliation Claims

The situation regarding Nambiar’s retaliation claims is more complicated.

Judge Brown orally granted defendants’ summary judgment motion on these

claims during a pre-motion conference. Nambiar filed a motion for

18 reconsideration, and the Magistrate Judge recommended that reconsideration be

denied. Nambiar did not file sufficiently specific objections regarding this

recommendation and thus has forfeited further judicial review of the denial of

reconsideration. Nambiar did not, however, forfeit further review of the actual

grant of summary judgment on the retaliation claims. That ruling was made by

the District Judge, rather than the Magistrate Judge, such that this appeal is the

first opportunity to challenge that decision.

C. Breach of Contract Claim

Finally, we decline to review Nambiar’s breach of contract claim. The

Magistrate Judge recommended that the District Judge decline to assert

supplemental jurisdiction over Nambiar’s breach of contract claim after dismissal

of all federal claims. Nambiar expressly stated in her objections to the R&R that

she “does not object to the recommendation that this Court decline to exercise

pendent jurisdiction over Dr. Nambiar’s breach of contract claim, as the claim

can still be brought in New York state court under CPLR 205(a).” App’x at 3044

n.1. She maintains the same position on appeal. Accordingly, she has expressly

waived that claim.

19 III. Merits of the Remaining Claims

We proceed now to review the merits of the grant of summary judgment as

to Nambiar’s preserved claims: her substantive claims for gender discrimination,

aiding and abetting that discrimination, and retaliation. As part of our review,

we consider Nambiar’s argument that certain of defendants’ exhibits in support

of summary judgment should have been stricken.

“We review an award of summary judgment de novo, construing the

evidence in the light most favorable to the nonmoving party and drawing all

reasonable inferences in his favor.” McElwee v. Cnty. of Orange,

(2d Cir. 2012). “Summary judgment is appropriate if there is no genuine issue as

to any material fact and the moving party is entitled to judgment as a matter of

law.” Holcomb v. Iona Coll.,

(2d Cir. 2008) (citing Fed. R. Civ. P.

56(c)). “We may affirm summary judgment on any ground supported by the

record, even if it is not one on which the district court relied.” McElwee,

.

A. Sex Discrimination

At summary judgment, we apply the burden-shifting framework

established in McDonnell Douglas Corporation v. Green,

(1973), to

20 claims of sex discrimination brought pursuant to Title VII and the NYSHRL. 3 See

Walsh v. N.Y.C. Hous. Auth.,

(2d Cir. 2016). The plaintiff must

first establish a prima facie case of discrimination by showing that: “(1) she was

within the protected class; (2) she was qualified for the position; (3) she was

subject to an adverse employment action; and (4) the adverse action occurred

under circumstances giving rise to an inference of discrimination.”

(citation modified). If she “meets this prima facie burden, a presumption of

discriminatory intent arises, and the burden shifts to [the employer] to articulate

a legitimate, non-discriminatory reason for firing her.” Knox v. CRC Mgmt. Co.,

, 48 (2d Cir. 2025) (citation modified). If the employer does so

successfully, the burden shifts back to the plaintiff to show that “the legitimate

reasons offered by the defendant were not its true reasons[] but were a pretext

for discrimination.” Patterson v. Cnty. of Oneida,

, 221 (2d Cir. 2004)

(citation modified). While this framework allows the evidentiary burden to shift

3“The NYSHRL historically utilized the same standard as Title VII, but it was amended in 2019 to align with the . . . more liberal pleading standard” of the New York City Human Rights Law. Edelman v. NYU Langone Health Sys.,

, 45 n.9 (2d Cir. 2025) (citation modified). “The amendment took effect on August 12, 2019.”

Nambiar’s claims arose and her complaint was filed before the amendment took effect, and so we apply the pre-amendment standard here.

21 between parties, “the ultimate burden of persuading the trier of fact that the

defendant intentionally discriminated against the plaintiff remains at all times

with the plaintiff.” Reeves v. Sanderson Plumbing Prods., Inc.,

(2000) (citation modified).

Upon our own de novo review, we find that defendants are entitled to

summary judgment on Nambiar’s claim of sex discrimination. Assuming

without deciding that Nambiar has established a prima facie case of

discrimination, we conclude that defendants have articulated a legitimate,

nondiscriminatory reason for Nambiar’s termination that is supported by

admissible evidence in the record. We further conclude that Nambiar has not

met her burden of showing that the reason provided by defendants was mere

pretext for discrimination.

1. Defendants’ asserted legitimate, non-discriminatory reason for termination of Nambiar’s employment

Defendants assert that they terminated Nambiar’s employment based on

the “onslaught of patient and staff complaints concerning her unprofessional

conduct and her refusal to sign a new [non-]partner track employment

agreement.” Appellees’ Br. at 34. In support of their motion for summary

judgment on this point, they offered testimony from staff regarding some of the

22 complaints; written documentation of patient complaints; and testimony from

defendant partners regarding their personal knowledge of both staff and patient

complaints. Nambiar contends the District Court should have excluded the

written documentation of patient complaints from the summary judgment record

because those records would be inadmissible at trial on authentication and

hearsay grounds.

“Summary judgment cannot be granted on the basis of inadmissible

evidence.” Bridgeway Corp. v. Citibank,

(2d Cir. 2000); see also

Presbyterian Church of Sudan v. Talisman Energy, Inc.,

(2d Cir.

2009) (“[O]nly admissible evidence need be considered by the trial court in ruling

on a motion for summary judgment.” (citation modified)). Addressing

Nambiar’s challenge to the written evidence of patient complaints, the Magistrate

Judge concluded that “there is nothing about the exhibits relied upon by the

defendants to suggest that they would be unable to establish their authenticity at

trial through one of the defendants, the plaintiff or a proper custodian.” App’x at

3004 n.1. Nambiar contends that was error. But even if admission of those

particular records was error, and even if we decline to consider all of the

evidence challenged by Nambiar, we nonetheless conclude that defendants have

23 met their burden of showing a legitimate, non-discriminatory reason for asking

Nambiar to sign a new contract and, eventually, when she refused, terminating

her employment.

At least two witnesses – physician partners in the practice – testified in

their depositions to personal knowledge of patient complaints about Nambiar.

See App’x at 1212-14 (Checo), 1078 (Silverberg). Another physician partner

testified to having witnessed “contentious interactions” and “heated

conversations” between Nambiar and members of the staff. See App’x at 945

(Zitner). Such testimony would be admissible at trial, both for the truth of the

matters asserted – that is, that the doctor received patient complaints about

Nambiar or observed her in conflict with staff – and to establish those

defendants’ “then-existing state of mind” when deciding to terminate her

employment. Fed. R. Evid. 803(3). Other physician partners testified to being

aware of patient complaints about Nambiar. See, e.g., App’x at 843-45 (Kerker),

1548-49 (Keschner). Nambiar herself testified that she discussed the patient

complaints with Checo. See, e.g., App’x at 287-89.

Multiple partners also testified to personal knowledge of staff complaints

about Nambiar. See, e.g., App’x at 889-90 (Kerker), 945 (Zitner), 1033

24 (Silverberg), 1217 (Checo). At least one of the staff members who made

complaints about Nambiar testified about her own experience working with

Nambiar and the events that led her to complain. See App’x at 1398-99, 1413. In

fact, Nambiar’s own statements confirm that there was friction between herself

and certain staff members. For example, Nambiar asserted that she “complained

repeatedly” to the practice manager, Patricia DeDomenico, about her medical

assistant’s “poor attitude and insubordination” and about another employee’s

“poor performance.” App’x at 2770. The medical assistant, in turn, reported that

Nambiar had yelled at her in front of a patient, and on a separate occasion

ordered her to retrieve an object from the “sharps bin” in violation of safety

protocols. App’x at 2774-75. Ultimately, DeDomenico reassigned the medical

assistant and the other employee to another department so that they no longer

worked with Nambiar. See App’x at 2775.

The undisputed evidence establishes that defendants received numerous

complaints about Nambiar, and that at least some of those complaints required

them to take remedial measures. This evidence sufficiently establishes that

defendants had a legitimate, non-discriminatory reason for terminating

Nambiar’s contract.

25 2. Nambiar’s claim of pretext

Because defendants have established a legitimate, non-discriminatory basis

for Nambiar’s termination, Nambiar must “produce not simply ‘some’ evidence,

but sufficient evidence to support a rational finding that the legitimate, non-

discriminatory reasons proffered by the defendant were false, and that more

likely than not discrimination was the real reason for the employment action.”

Weinstock v. Columbia Univ.,

(2d Cir. 2000) (citation modified).

Nambiar has produced “some evidence” in support of her claim that

defendants’ proffered reason for her termination was mere pretext. But, as set

forth below, we conclude that the evidence Nambiar points to is insufficient to

give rise to a genuine dispute of material fact.

First, Nambiar asserts that defendants’ treatment of Dr. Yohan Lee and Dr.

Santosh Mathen shows that defendants favored male physicians. Evidence

showing disparate treatment of “similarly situated employees” may support a

finding that an “adverse job action was a pretext for . . . discrimination.” Graham

v. Long Island R.R.,

(2d Cir. 2000). But Nambiar fails to offer

evidence regarding her proposed comparators that would support a finding of

discriminatory intent.

26 Lee, a pain management physician, was hired by defendants to replace

Nambiar. Nambiar asserts that Lee is less qualified than she was. See

Appellant’s Br. at 25. When she was hired by defendants, Nambiar was already

board-certified in pain management; Lee was not. But Lee was hired on less

favorable terms than Nambiar had been. Indeed, unlike Nambiar’s first contract,

Lee’s did not include a path to partnership. See App’x at 1344-45. The difference

in qualifications appears to have appropriately resulted in a difference in

treatment. And Nambiar asserts that Mathen, a “male physician who was [also]

under review for his performance” by defendants, was given “preferential

treatment.” Appellant’s Br. at 33. But in fact, Mathen was required to sign a new

contract that extended his probationary period, similar to what was proposed to

Nambiar, and was only made a partner after he “clean[ed] up his act.” App’x at

2836.

Next, Nambiar points to remarks made by defendants that suggest a

general gender bias. When evaluating whether such comments are probative of

discriminatory intent, we consider a number of factors, including: “(1) who made

the remark (i.e., a decision-maker, a supervisor, or a low-level co-worker); (2)

when the remark was made in relation to the employment decision at issue; (3)

27 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 decision-making process).” Henry v. Wyeth Pharms.,

(2d Cir. 2010). It is well established that “‘stray remarks’ alone

do not support a discrimination suit.” Danzer v. Norden Sys., Inc.,

, 56

(2d Cir. 1998).

The circumstances of the allegedly gender-biased remarks are disputed.

But even drawing all inferences in Nambiar’s favor and accepting her version of

the facts for purposes of summary judgment, we conclude that the remarks do

not support an inference that gender animus influenced defendants’ decision

making. Critically, Nambiar provides almost no context for the purportedly

discriminatory remarks. She testified that Checo told her that “other partners”

had made comments referring to the pain management department staff as

“girls,” and commented that “there is too much drama . . . because they are

female.” App’x at 390-91. She also testified that she “was told” that someone

made a comment “that once [she, Nambiar,] got the new contract that maybe we

should not send patients down there when she is having her period because, you

know, they are all going to be, you know, girls together.” App’x at 390. These

28 alleged comments surely invoke gender stereotypes. 4 Nambiar does not assert,

however, that she heard them directly, nor that she is aware of the context in

which they were made, nor even who made them. She makes no claim that such

comments were made close in time to the decision to terminate her employment,

or that they had any relationship to that decision.

Nambiar further asserts that Silverberg “told her that patients and staff

had complained that Dr. Nambiar was ‘too unfriendly,’ ‘too demanding,’ ‘too

aggressive,’ and that she needed to be, in his words, sweeter, kinder, and more

gentle; and to ‘give [the patients] something,’ as COG was a small practice that

relied [on] referrals.” App’x at 170. In her briefing, Nambiar describes these

complaints as “criticisms” leveled by the defendants, and calls them “blatantly

sexist.” Appellant’s Br. at 35. But these “criticisms” came from “patients and

staff,” not from Silverberg or any other defendant. App’x at 170. Under

Nambiar’s own version of the events, Silverberg came to her with reports of

specific complaints from patients and staff, and asked her to adjust her conduct

in direct response to those complaints. That does not support an inference that

the ultimate decision to terminate Nambiar’s employment based in large part on

4Indeed, under certain circumstances, such comments could support an inference that gender played a role in an employment decision. 29 these very complaints was pretext for discrimination.

Finally, Nambiar contends that she “saw thousands upon thousands of

patients while working at COG,” yet defendants point to just seven complaints

against her, most of which were made close in time to her termination.

Appellant’s Br. at 28. She asserts that “[t]he record suggests that Defendants

contrived this ‘onslaught’ to justify firing Dr. Nambiar for cause,” and “was

sufficient evidence of pretext.” Appellant’s Br. at 30. But even accepting as true

that the complaints were lodged only in 2015 and 2016, Nambiar fails to explain

how that would show pretext for discrimination. Nothing in the record suggests

that defendants colluded to produce or create this evidence. Cf. Edelman v. NYU

Langone Health Sys.,

, 50 (2d Cir. 2025) (noting circumstantial evidence

that defendants colluded to create a record of complaints against plaintiff with

the intent of causing her employment to be terminated). And even if there were

reason to be suspicious of the timing of the complaints, Nambiar has not

suggested that they were falsified.

In sum, Nambiar has failed to point to evidence that would support a

finding that defendants’ proffered reason for her termination – complaints from

patients and staff – was mere pretext. We therefore conclude that defendants are

30 entitled to summary judgment as to Nambiar’s sex discrimination claims. For

the same reasons, we conclude that summary judgment is warranted on

Nambiar’s aiding and abetting claim.

B. Retaliation

Like substantive discrimination claims, “retaliation claims are reviewed

under the burden-shifting approach of McDonnell Douglas.” Zann Kwan v.

Andalex Grp. LLC,

(2d Cir. 2013); see also Littlejohn v. City of New

York,

(2d Cir. 2015). “To present a prima facie case of retaliation

. . . , [Nambiar] must show that (1) she participated in an activity protected by

Title VII, (2) this participation was known to [defendants], (3) [defendants]

subjected her to a materially adverse action thereafter, and (4) a causal

connection existed between the protected activity and the adverse action.” Moll

v. Telesector Res. Grp., Inc.,

, 239 (2d Cir. 2024) (citation modified). “A

plaintiff must show a connection between the protected activity and the adverse

action, that is, that the retaliation was a ‘but-for’ cause of the employer’s adverse

action.” Banks v. Gen. Motors, LLC,

, 275 (2d Cir. 2023) (citation

modified).

Nambiar asserts that on March 16, 2016, she informed DeDomenico that

31 she intended to file a complaint with the EEOC, and on March 17, 2016, she in

fact sent a complaint to the EEOC. 5 See App’x at 2811, 132. She contends that her

termination several days later was in retaliation for these actions. See Appellant’s

Br. at 39-40. This temporal proximity is the sole basis for Nambiar’s assertion of

a causal connection between her EEOC complaint and her termination. See id. at

40 (“Because Dr. Nambiar was terminated three days after speaking with Ms.

DeDomenico, the dismissal of her retaliation claim . . . was in error and this

evidence supports an inference of but-for causation.”).

We conclude that Nambiar cannot meet the fourth prong of the prima facie

case – causal connection – because the undisputed facts in the record confirm

that defendants decided to terminate her employment before her March 16, 2016,

comment regarding an EEOC complaint. In January 2016, defendants

approached Nambiar indicating that she needed to sign a revised contract. See

App’x at 130. In February 2016, Silverberg expressly informed Nambiar that if

she did not sign the revised contract, her employment would be terminated. See

App’x at 298-99. As Nambiar herself has attested, she repeatedly refused to sign

the revised contract. See App’x at 321(“On multiple occasions, I said I would not

5Nambiar does not assert that defendants actually received the complaint before she was terminated. 32 sign it.”); see also App’x at 2472 (EEOC complaint letter indicating that Nambiar

told Silverberg on January 28, 2016, that she “would not sign the new contract”).

“In light of Plaintiff’s prior refusals to sign [a] new employment agreement, on

March 7, 2016,” defendants began the process of seeking a replacement for

Nambiar by placing an online advertisement for a pain management doctor.

App’x at 2806. When defendants again met with Nambiar on March 11, 2016,

they urged her to sign the revised contract, but “at the same time . . . they were

looking for her replacement.” App’x at 2808-09. Nambiar alleges in her

complaint that at a March 15, 2016, meeting, Silverberg “continued to pressure”

Nambiar to sign the revised contract, and informed her “that he had placed an

advertisement and received four resumes from” potential replacements for her

position. App’x at 132.

Thus, the undisputed facts reveal that before Nambiar ever mentioned an

EEOC complaint, the wheels were already in motion to terminate Nambiar’s

employment – as she was well aware. Indeed, in her March 17, 2016, EEOC

complaint Nambiar stated that defendants were “forc[ing] [her] out of [her]

position,” App’x at 2475, and that by the time of her February 25, 2016, meeting

with defendants, the termination of her existing contract was a “fait accompli,”

33 App’x at 2473. “Where timing is the only basis for a claim of retaliation, and

gradual adverse job actions began well before the plaintiff had ever engaged in

any protected activity, an inference of retaliation does not arise.” Slattery v. Swiss

Reinsurance Am. Corp.,

(2d Cir. 2001). We therefore conclude that

defendants were entitled to summary judgment on Nambiar’s retaliation claims.

Furthermore, even if Nambiar could make out a prima facie case of retaliation,

for the same reasons discussed above, defendants would be entitled to summary

judgment because they have presented a legitimate nonretaliatory reason for

termination, and Nambiar has not raised a dispute of fact as to whether that

reason was mere pretext.

CONCLUSION

For the reasons set forth herein, we AFFIRM the judgment entered by the

District Court.

34