20-1436-cv

Abdelal v. Kelly

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY 

ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE 

OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN CITING A 

SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE 

FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY ORDER"). A

PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED 

BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second 

Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in 

the City of New York, on the 21st day of May, two thousand twenty-one.

PRESENT: JOHN M. WALKER, JR.,

PIERRE N. LEVAL,

DENNY CHIN,

Circuit Judges.

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MOHAMED ABDELAL,

Plaintiff-Appellant,

-v- 20-1436-cv

POLICE COMMISSIONER RAYMOND W. KELLY, 

CITY OF NEW YORK,

Defendants-Appellees.∗

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∗ The Clerk of the Court is respectfully directed to amend the official caption to conform 

to the above.
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FOR PLAINTIFF-APPELLANT: DAVID A. LEBOWITZ (Alanna Kaufman, on 

the briefs), Kaufman Lieb Lebowitz & Frick 

LLP, New York, New York.

FOR DEFENDANTS-APPELLEES: ANNA GOTTLIEB, Assistant Corporation 

Counsel (Richard Dearing, Claude S. Patton, 

Assistant Corporation Counsels, on the brief), 

for James E. Johnson, Corporation Counsel of 

the City of New York, New York, New York.

Appeal from the United States District Court for the Southern District of 

New York (Carter, J.).

UPON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, 

ADJUDGED, AND DECREED that the judgment of the district court is VACATED, 

and the case is REMANDED.

Plaintiff-appellant Mohamed Abdelal appeals from a judgment entered

March 31, 2020, in favor of defendants-appellees former New York Police Department 

("NYPD") Commissioner Raymond W. Kelly and the City of New York (together, 

"defendants"). By opinion and order entered March 30, 2020, the district court granted 

defendants' motion for summary judgment and dismissed Abdelal's claims alleging

employment discrimination on the basis of his Egyptian national origin, Middle Eastern 

ancestry, and Muslim religion under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 

§ 1981, and the Human Rights Laws of New York State and New York City. We assume 

the parties' familiarity with the underlying facts, procedural history of the case, and

issues on appeal.
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"We review de novo a district court's grant of a motion for summary

judgment." Walsh v. N.Y.C. Hous. Auth., 828 F.3d 70, 74 (2d Cir. 2016). "Summary 

judgment is appropriate 'if the movant shows that there is no genuine dispute as to any 

material fact and the movant is entitled to judgment as a matter of law.'" Id. (quoting

Fed. R. Civ. P. 56(a)). "[W]e construe the evidence in the light most favorable to the 

non-moving party and draw all reasonable inferences in that party's favor." Ketcham v. 

City of Mount Vernon, 992 F.3d 144, 148 (2d Cir. 2021). 

Abdelal's federal and state discrimination claims are governed at the 

summary judgment stage by the three-part "burden-shifting analysis first established in

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973)." Tolbert v. Smith, 790 F.3d 

427, 434 (2d Cir. 2015) (applying framework to claims brought pursuant to 42 U.S.C. 

§ 1981; Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.; and the New 

York State Human Rights Law). Here, the district court concluded that Abdelal failed

at the first stage of the McDonnell Douglas test -- that is, he failed to set forth a prima facie

case of discrimination -- and so it did not address the second or third stages. 

To adequately set forth a prima facie case at summary judgment, "a 

plaintiff must proffer evidence that (1) he belongs to a protected group; (2) he was 

qualified for his position; (3) his employer took an adverse action against him; and 

(4) the adverse action occurred in circumstances giving rise to an inference of . . .

discrimination." Kirkland v. Cablevision Sys., 760 F.3d 223, 225 (2d Cir. 2014). Because 
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the district court is not to resolve issues of fact on a summary judgment motion, "its 

determination of whether the circumstances give rise to an inference of discrimination 

must be a determination of whether the proffered admissible evidence shows 

circumstances that would be sufficient to permit a rational finder of fact to infer a 

discriminatory motive." Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 38 (2d Cir. 1994)

(internal quotation marks and alteration omitted).

While defendants presented substantial evidence that they discharged 

Abdelal for legitimate, non-discriminatory reasons -- namely, his guilty plea to and 

conviction of numerous instances of misconduct -- we nonetheless conclude that 

defendants were not entitled, on this record, to summary judgment.

As noted by the district court, the parties dispute only the third and fourth 

prongs of Abdelal's prima facie case -- that is, the extent of the adverse employment 

action or actions Abdelal purportedly suffered and whether those actions occurred 

under circumstances that give rise to an inference of discrimination.

"A plaintiff sustains an adverse employment action if he or she endures a 

materially adverse change in the terms and conditions of employment." Joseph v. Leavitt, 

465 F.3d 87, 90 (2d Cir. 2006) (internal quotation marks omitted). Abdelal's employment

was terminated, which itself is, of course, an adverse employment action. See Kelleher v. 

Fred A. Cook, Inc., 939 F.3d 465, 468 (2d Cir. 2019). Further, there are factual issues 

regarding whether the NYPD's pre-termination conduct constituted an adverse 
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employment action. For example, an Internal Affairs Bureau ("IAB") investigator 

contacted the Joint Terrorism Task Force (the "JTTF") pursuant to the investigation of 

Abdelal, and Commissioner Kelly stated that IAB contacts the JTTF only when an 

officer is suspected of terrorism. Viewing the evidence in a light most favorable to 

Abdelal, a reasonable juror could infer that the IAB investigator contacted the JTTF not 

because of information linking Abdelal to terrorism but because of Abdelal's national 

origin, ancestry, or religion. A reasonable juror could also infer that, after the IAB 

investigator did so, it resulted in a more searching investigation and harsher discipline 

than had the NYPD applied its standard investigative and disciplinary procedures. See

Joseph, 465 F.3d at 92 n.1 ("The relevant question is therefore whether the employer has 

simply applied reasonable disciplinary procedures to an employee or if the employer 

has exceeded those procedures and thereby changed the terms and conditions of 

employment.").

Abdelal also presented sufficient evidence to raise a triable issue of fact as 

to whether the investigation and termination occurred in circumstances giving rise to 

an inference of discrimination. For example, he proffered two statements defendants 

made in which they noted his national origin (Egyptian) and his ancestry (Middle 

Eastern) while investigating his alleged misconduct. Further, he set forth evidence that 

defendants launched an investigation into him and his family, involving the JTTF, 

which as noted above, arguably was a departure from the NYPD's normal investigative 
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and disciplinary procedures. He also set forth evidence that Commissioner Kelly's 

rejection of a more lenient recommended penalty for Abdelal's misconduct in favor of 

termination was arguably inconsistent with the way the Commissioner generally 

imposed disciplinary consequences. Accordingly, Abdelal provided admissible 

evidence sufficient to permit a rational finder of fact to infer a discriminatory motive, see 

Chambers, 43 F.3d at 38, and we thus vacate the district court's judgment in favor of 

defendants on Abdelal's disparate treatment claims pursuant to federal, state, and city 

law.1

We also vacate the district court's judgment in favor of defendants on 

Abdelal's hostile work environment claims. Before reaching the merits, we note that the 

district court properly considered Abdelal's hostile work environment claims separate 

and apart from his disparate treatment claims, and we reject Abdelal's argument to the 

contrary. Further, while we agree with the district court that Abdelal's hostile work 

environment claims fail to the extent they are premised on a video and report he has not 

suggested he saw or read, the district court ultimately dismissed Abdelal's hostile work 

environment claims because it concluded that the NYPD's investigation was not 

discriminatory or unreasonable. But, as noted above, we conclude that there are factual 

1 Abdelal's claims under the New York City Human Right Law must be analyzed "more 

liberally" than his federal discrimination claims. See Loeffler v. Staten Island Univ. Hosp., 582 F.3d 

268, 278 (2d Cir.2009). Because Abdelal has set forth sufficient facts to carry the heavier burden 

of establishing his federal claims, we have no trouble concluding that he set forth sufficient facts 

to carry the lesser burden on his city claims. 
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disputes regarding these issues, and thus we vacate and remand to the district court so 

that these critical factual disputes can be determined by a jury. 

* * *

Accordingly, we VACATE the judgment of the district court and remand 

for further proceedings consistent with this order.

FOR THE COURT:

Catherine O'Hagan Wolfe, Clerk