22-831-cv

Tsepenyuk v. Fred Alger & Co., Inc.

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 TO A SUMMARY ORDER MUST SERVE A COPY OF IT 

ON ANY PARTY NOT REPRESENTED BY COUNSEL. 

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

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

City of New York, on the 22 3 nd day of September, two thousand twenty-three.

4

5 PRESENT: REENA RAGGI,

6 RAYMOND J. LOHIER, JR.,

7 SUSAN L. CARNEY,

8 Circuit Judges.

9 ------------------------------------------------------------------

10 IRENE TSEPENYUK,

11

12 Plaintiff-Appellant,

13

14 v. No. 22-831-cv

15

16 FRED ALGER & COMPANY, INC.,

17

18 Defendants-Appellees.

19 ------------------------------------------------------------------

20

21 FOR APPELLANT: STEPHEN BERGSTEIN, Bergstein & 

22 Ullrich, LLP, New Paltz, NY

23

24 FOR APPELLEE: ANNE B. SEKEL (Christopher A. 

25 DeGennaro, on the brief), Foley & 
1

1 Lardner LLP, New York, NY 2

3 Appeal from a judgment of the United States District Court for the 

4 Southern District of New York (George B. Daniels, Judge).

5 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, 

6 AND DECREED that the judgment of the District Court is AFFIRMED.

7 Plaintiff-Appellant Irene Tsepenyuk appeals from a March 29, 2022

8 judgment of the District Court granting summary judgment in favor of 

9 Tsepenyuk’s former employer, Fred Alger & Company, Inc. (“Alger”).

10 Claiming gender and pregnancy discrimination, retaliation, a hostile work 

11 environment, and a failure to accommodate, Tsepenyuk sued under Title VII of 

12 the Civil Rights Act of 1964, the Americans with Disabilities Act, the New York 

13 State Human Rights Law, the New York City Human Rights Law (NYCHRL), 

14 and the New Jersey Law Against Discrimination. Tsepenyuk appeals the 

15 District Court’s judgment only insofar as it dismissed her claims under the 

16 NYCHRL. We assume the parties’ familiarity with the underlying facts and the 

17 record of prior proceedings, to which we refer only as necessary to explain our 

18 decision to affirm.

19 The following recitation of the facts is taken from the summary judgment 
2

1 record viewed in the light most favorable to Tsepenyuk. In May 2016 Robert

2 Kincel, Alger’s Chief Financial Officer, completed a routine personnel plan that 

3 included terminating Tsepenyuk from Alger’s accounting group at a future date. 

4 Tsepenyuk then went on maternity leave from June to November 2016. Soon 

5 after returning, Tsepenyuk received a negative performance review, was asked 

6 to train a newly hired male accountant, and was harassed by Nicholas Morrello, 

7 her direct supervisor; and she complained to the company about Morrello’s 

8 conduct. Tsepenyuk was terminated in May 2017. 

9 The District Court dismissed Tsepenyuk’s claim of discrimination under 

10 the NYCHRL because, without a relevant comparator, she failed to show that she 

11 was treated less well than other employees based on her gender or her 

12 pregnancy. Tsepenyuk v. Fred Alger & Co., 18-cv-7092 (GBD), 2022 WL 912882, at 

13 *5–6 (S.D.N.Y. Mar. 29, 2022). The District Court also dismissed Tsepenyuk’s

14 retaliation claim under the NYCHRL because the personnel plan, pursuant to 

15 which she was terminated, pre-dated any protected activity and thus could not 

16 have been caused by her protected activity. Id. at *7. 

17 We affirm the District Court’s dismissal of Tsepenyuk’s NYCHRL 

18 discrimination claim. Tsepenyuk failed to adduce any evidence that she was 
3

1 treated less well than other similarly situated Alger employees because of her 

2 gender or pregnancy. See Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715 

3 F.3d 102, 110 (2d Cir. 2013). We also agree that she failed to show that Alger’s 

4 legitimate, non-discriminatory reason for terminating her—namely, the

5 implementation of the May 2016 personnel plan—was a pretext for 

6 discrimination. See Ellison v. Chartis Claims, Inc., 115 N.Y.S.3d 53, 58 (2d Dep’t 

7 2019) (analyzing NYCHRL claim under the McDonnell Douglas and mixed motive 

8 burden-shifting frameworks). 

9 Tsepenyuk argues that the May 2016 personnel plan was not final and 

10 instead served as a pretext to fire her for events including and following her 

11 return from maternity leave. We are unpersuaded by the argument that the 

12 personnel plan was not final because all of the plan’s contemplated future 

13 employment actions involving other employees came to fruition. Without 

14 evidence that unlawful discrimination tainted the plan, Tsepenyuk cannot show 

15 that she was terminated or treated less well than others because of her gender or 

16 pregnancy. 

17 We also affirm the District Court’s dismissal of Tsepenyuk’s retaliation 

18 claim under the NYCHRL. “[T]o prevail on a retaliation claim under the 
4

1 NYCHRL, the plaintiff must show that she took an action opposing her 

2 employer’s discrimination, and that, as a result, the employer engaged in 

3 conduct that was reasonably likely to deter a person from engaging in such 

4 action.” Mihalik, 715 F.3d at 112. Tsepenyuk has failed to show that her 

5 termination was the result of her complaints to the company about Morrello’s 

6 harassing behavior. As discussed, the personnel plan contemplating 

7 Tsepenyuk’s termination was finalized in May 2016, before Tsepenyuk 

8 complained. The District Court therefore did not err in dismissing her 

9 retaliation claim.

10 Finally, at oral argument Tsepenyuk waived any challenge to the District 

11 Court’s dismissal of Tsepenyuk’s hostile work environment claim under the 

12 NYCHRL. 

13 We have considered all of Tsepenyuk’s remaining arguments and 

14 conclude that they are without merit. For the foregoing reasons, the judgment 

15 of the District Court is AFFIRMED.

16 FOR THE COURT: 

17 Catherine O’Hagan Wolfe, Clerk of Court