Burns v. Primary PartnerCare Management Group, Inc. et al

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-----------------------------------------------------------------X
JAMES BURNS,
Plaintiff,
MEMORANDUM
v. 	AND ORDER
23-CV-6312-SJB-ST
PRIMARY PARTNERCARE MANAGEMENT
GROUP, INC., et al.,
Defendants.
-----------------------------------------------------------------X
BULSARA, United States District Judge:
Defendants Primary PartnerCare Management Group, Inc. (“Primary
PartnerCare”), Marion Davis, and Harry Jacob (collectively, “Defendants”) have moved
for summary judgment on Plaintiff James Burns’s Complaint alleging retaliation under
Title VII and the New York State Human Rights Law (“NYSHRL”). Burns alleges that
Defendants fired him after they learned about a pending lawsuit for retaliation he had
filed against his previous employer. Defendants’ motion asks the Court to evaluate the
credibility of Burns’s account and deem it implausible. Because such a determination is
rarely, if ever, made at summary judgment—and certainly cannot be made on this
record—the motion is denied.
STANDARD FOR SUMMARY JUDGMENT
A “court shall grant summary judgment 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.” Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986).
“A genuine issue of material fact exists if ‘the evidence is such that a reasonable jury
Case 2:23-cv-06312-SJB-ST Document 45 Filed 03/12/26 Page 1 of 16 PageID #:
<pageID>

2
could return a verdict for the nonmoving party.’” Nick’s Garage, Inc. v. Progressive Cas.
Ins. Co., 875 F.3d 107, 113 (2d Cir. 2017) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986)). “In determining whether summary judgment is appropriate, [the
Court] must resolve all ambiguities and draw all reasonable inferences against the
moving party.” Tolbert v. Smith, 790 F.3d 427, 434 (2d Cir. 2015) (citing Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
The movant bears the burden of “demonstrat[ing] the absence of a genuine issue
of material fact.” Celotex, 477 U.S. at 323. “A party asserting that a fact cannot be or is
genuinely disputed must support the assertion” in one of two ways. Fed. R. Civ. P.
56(c)(1). It may cite to portions of the record “including depositions, documents,
electronically stored information, affidavits or declarations, . . . admissions,
interrogatory answers, or other materials.” Id. R. 56(c)(1)(A). Alternatively, it may
show that “the materials cited do not establish the absence or presence of a genuine
dispute, or that an adverse party cannot produce admissible evidence to support the
fact.” Id. R. 56(c)(1)(B); cf. Farid v. Smith, 850 F.2d 917, 924 (2d Cir. 1988).
In moving for summary judgment or answering such a motion, litigants are
required by the Local Rules to provide a statement (a Rule 56.1 statement) setting forth
purported undisputed facts or, if controverting any fact, responding to each assertion.
See Loc. Civ. R. 56.1(a)–(b). In both instances, the party must support its position by
citing to admissible evidence from the record. Id. R. 56.1(d); see also Fed. R. Civ. P. 56(c)
(requiring reliance on admissible evidence in the record in supporting or controverting
a purported material fact). “The purpose of Local Rule 56.1 is to streamline the
Case 2:23-cv-06312-SJB-ST Document 45 Filed 03/12/26 Page 2 of 16 PageID #:
<pageID>

3
consideration of summary judgment motions by freeing district courts from the need to
hunt through voluminous records without guidance from the parties.” Holtz v.
Rockefeller & Co., 258 F.3d 62, 74 (2d Cir. 2001).
Where claims in opposing Rule 56.1 statements are “genuinely disputed,” the
Court will consider the evidentiary sources of the claims. Halberg v. United Behav.
Health, 408 F. Supp. 3d 118, 146 (E.D.N.Y. 2019) (adopting report and recommendation).
In evaluating the sources of claims made in dueling Rule 56.1 statements, the Court
cannot—as is true for the summary judgment motion as a whole—weigh evidence or
assess the credibility of witnesses. See United States v. Rem, 38 F.3d 634, 644 (2d Cir.
1994). Furthermore, “[l]egal arguments are impermissible in any Rule 56.1 Statement
and are to be disregarded.” Taveras v. HRV Mgmt., Inc., No. 17-CV-5211, 2020 WL
1501777, at *2 (E.D.N.Y. Mar. 24, 2020); Lawrence v. Cont’l Cas. Co., No. 12-CV-412, 2013
WL 4458755, at *1 n.1 (E.D.N.Y. Aug. 16, 2013) (“Both parties have submitted Local Rule
56.1 statements and responses to each other’s statements that mix factual assertions
with legal argument and therefore fail to meet the requirements of Local Rule 56.1. The
facts . . . are taken from those assertions contained in the Local Rule 56.1 statements that
comply with Local Rule 56.1[.]” (citations omitted)). The court may not grant summary
judgment based on a fact in a Rule 56.1 statement—even if undisputed—not supported
by admissible evidence. E.g., Giannullo v. City of New York, 322 F.3d 139, 142–43 (2d Cir.
2003) (vacating grant of summary judgment to defendants based on facts enumerated in
Rule 56.1 statement supported only by arguments in briefs rather than admissible
evidence). The Court must also disregard conclusory denials that lack citations to
Case 2:23-cv-06312-SJB-ST Document 45 Filed 03/12/26 Page 3 of 16 PageID #:
<pageID>

4
admissible evidence. Rodriguez v. Schneider, No. 95-CV-4083, 1999 WL 459813, at *1 n.3
(S.D.N.Y. June 29, 1999) (“Rule 56.1 statements are not argument. They should contain
factual assertions, with citation to the record. They should not contain conclusions[.]”),
aff’d, 56 F. App’x 27, 29 (2d Cir. 2003). Also, where the opposing party fails to
specifically controvert a numbered paragraph in the Rule 56.1 statement, the statement
by the moving party “will be deemed to be admitted.” Loc. Civ. R. 56.1(c). The Court
also does not give any consideration to hearsay, speculation, or inadmissible evidence
in evaluating declarations or affidavits. Pacenza v. IBM Corp., 363 F. App’x 128, 130 (2d
Cir. 2010) (“[A] court is obliged not to consider inadmissible evidence at the summary
judgment stage[.]”); Crawford v. Dep’t of Investigation, No. 05-CV-5368, 2007 WL 2850512,
at *2 (S.D.N.Y. Oct. 1, 2007) (“[A] non-moving party ‘must set forth specific facts
showing that there is a genuine issue for trial;’ he or she ‘may not rely on mere
conclusory allegations nor speculation, but instead must offer some hard evidence
showing that its version of the events is not wholly fanciful.’” (quoting Woodman v.
WWOR-TV, Inc., 411 F.3d 69, 75 (2d Cir. 2005))), aff’d, 324 F. App’x 139, 143 (2d Cir.
2009).
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
The Court finds the following facts—drawn from the pleadings, the parties’
respective Rule 56.1 statements, and supporting affidavits and exhibits attached
thereto—are undisputed unless otherwise noted.
Burns filed his Complaint on February 28, 2023, alleging claims against all
Defendants for retaliation under Title VII, (Compl., Dkt. No. 1 ¶¶ 30-37), and retaliation
Case 2:23-cv-06312-SJB-ST Document 45 Filed 03/12/26 Page 4 of 16 PageID #:
<pageID>

5
under the NYSHRL, (id. ¶¶ 38–45), and, in the alternative, alleging a claim against
Davis and Jacob for aiding and abetting retaliation under the NYSHRL, (id. ¶¶ 46–52).
Burns is a human resources professional who previously worked for Tilebar,
LLC (“Tilebar”). (Defs.’ Rule 56.1 Statement dated May 9, 2025 (“Defs.’ 56.1 Stmt.”),
Dkt. No. 37-2 ¶ 1; Pl.’s Rule 56.1 Statement dated July 11, 2025 (“Pl.’s 56.1 Stmt.”), Dkt.
No. 38-1 ¶¶ 1, 36). In 2020, Burns filed an employment discrimination lawsuit against
Tilebar in the Southern District of New York. (Id. ¶ 1; Defs.’ 56.1 Stmt. ¶ 1).
Burns was hired by Primary PartnerCare and began working as the Vice
President of Human Resources on September 20, 2021. (Compl. ¶ 8; Defs.’ 56.1 Stmt.
¶ 12; Pl.’s 56.1 Stmt. ¶ 12). On September 23, 2021, he sent an email requesting a
meeting with Marion Davis, Primary PartnerCare’s CEO, (Compl. ¶ 6), because he
“[got] the sense that [Davis] might be unhappy with [her] hiring of [him].” (Defs.’ 56.1
Stmt. ¶ 13; Pl.’s 56.1 Stmt. ¶ 13). The next day, Burns met with Davis, and they were
joined by Dr. Harry Jacob, Primary PartnerCare’s Chief Medical Officer and Davis’s
husband. (Id. ¶ 14; Defs.’ 56.1 Stmt. ¶ 14). One week later, Davis sent Burns an email
stating that she would send a separation agreement within the next few days, and she
“view[ed] the separation as mutual.” (Id. ¶ 20; Pl.’s 56.1 Stmt. ¶ 20).
The exact nature of what was said leading up to and at that September 24, 2021
meeting, and the reason for Burns’s departure, are hotly disputed. As recounted by
Burns, the day before his meeting with Davis and Jacob, Primary PartnerCare’s
Controller, Gregory Koukos, told Burns that Davis and Jacob were aware of and
troubled by his Tilebar lawsuit, and that Davis was going to try to make him so
Case 2:23-cv-06312-SJB-ST Document 45 Filed 03/12/26 Page 5 of 16 PageID #:
<pageID>

6
miserable that he would leave. (Id. ¶¶ 2–4, 6, 8–9, 11). Then, when he met with Davis
and Jacob, Burns claims that he was fired, with Jacob stating he was being terminated
because “[n]obody is comfortable with this multimillion-dollar lawsuit you have.” (Id.
¶¶ 2, 4).
On the other hand, Defendants say they had no knowledge of Burns’s Tilebar
lawsuit until October 2021, when Burns, through counsel, made allegations of
retaliation. (Defs.’ 56.1 Stmt. ¶¶ 3–6). Burns disputes that timeline. (Pl.’s 56.1 Stmt.
¶¶ 3–6). Defendants acknowledge that Burns testified that Davis and Jacob knew about
the Tilebar lawsuit before they fired him, but they assert there is no other evidentiary
support for that contention. (Defs.’ 56.1 Stmt. ¶ 8). Burns disagrees, and points to his
own account, and deposition testimony in which Koukos explains that he did not
recall—rather than that he could deny with complete certainty—telling Burns that
Defendants knew about his lawsuit. (Pl.’s 56.1 Stmt. ¶¶ 6, 8).
DISCUSSION
The burden-shifting analysis from McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973), governs Title VII and NYSHRL retaliation claims. Edelman v. NYU Langone
Health Sys., 141 F.4th 28, 45 (2d Cir. 2025). Under that framework, “a plaintiff carries the
initial burden of making out a prima facie case of retaliation.” Id. “In the Title VII
context, this requires the plaintiff to establish four elements: (1) ‘an adverse
employment action’; (2) ‘participation in a protected activity’; (3) ‘that the defendant
knew of the protected activity’; and ‘(4) a causal connection between the protected
activity and the adverse employment action.’” Id. (quoting Littlejohn v. City of New York,
Case 2:23-cv-06312-SJB-ST Document 45 Filed 03/12/26 Page 6 of 16 PageID #:
<pageID>

7
795 F.3d 297, 316 (2d Cir. 2015)). “The . . . NYSHRL employ[s] a more liberal standard:
[A] plaintiff claiming retaliation must demonstrate that [he] took an action opposing
[his] employer’s discrimination and that, as a result, the employer engaged in conduct
that was reasonably likely to deter a person from engaging in such action.” Id.
(quotation omitted). If the plaintiff establishes a prima facie case of retaliation . . . , the
defendant then has the opportunity to offer legitimate reasons for its actions.” Id.
(quotation omitted). If the defendant does so, “the burden shifts back to the plaintiff to
show either that the defendant’s reasons were pretextual, or that the defendant’s stated
reasons were not its sole basis for taking action, and that its conduct was based at least
in part on discrimination.” Id. (quotation omitted).
The only element of Burns’s case that Defendants challenge—and the sole basis
on which they seek summary judgment—is whether Defendants had knowledge of
Burns’s alleged protected activity. (Defs.’ Mem. in Supp. of Summ. J. dated May 9, 2025
(“Defs.’ Mot.”), Dkt. No. 37-1 at 13).
It is plain there is a factual dispute over Defendants’ knowledge.1 Burns and the
Defendants have conflicting accounts of whether Davis and Jacob made statements
attributing Burns’s alleged firing to his prior lawsuit.
Burns testified that Koukos, another employee, told him that Defendants were
aware of his lawsuit. (Pl.’s 56.1 Stmt. ¶ 2 (citing Dep. of James Burns (“Burns Dep.”),
1 Both parties proceed without questioning—that is, they assume—that an
employer may not retaliate against an employee for protected activity before a prior
employer. But neither side cites any authority to suggest (or dispute) that such conduct
falls within the protections of these statutes.
Case 2:23-cv-06312-SJB-ST Document 45 Filed 03/12/26 Page 7 of 16 PageID #:
<pageID>

8
attached to Pl.’s Opp’n to Defs.’ Mot. as Ex. A, Dkt. No. 38-21 at 58:17–59:2)). Burns also
testified that Defendants—specifically, Jacob—told him “nobody’s comfortable with
this multimillion-dollar lawsuit you have . . . . It’s not gonna work and we need to move
on,” (id. ¶ 4 (citing Burns Dep. at 31:7-11)), and intimated that was the reason for his
termination.
On the other side, Defendants assert that neither Davis, Jacob, nor Koukos had
any knowledge of that lawsuit until after Burns left Primary PartnerCare, and that they
never made the statements Burns claims they did. For these positions, they cite their
own testimonial accounts. (Defs.’ 56.1 Stmt. ¶¶ 3–6 (citing Decl. of Marion Davis,
attached to Defs.’ Mot., Dkt. No. 37-3 ¶ 17; Dep. of Harry Jacob, attached to Decl. of Eric
Hoffman (“Hoffman Decl.”) as Ex. E, Dkt. No. 37-21 at 55:9–56:16)).
The two sides are plainly in tension; ultimately, one is true, the other is not. And
such a dispute—whether to believe one witness or another set of witnesses—is a matter
for the jury to determine, not this Court.
Still, Defendants have moved for summary judgment. They argue that the only
evidence of Defendants’ knowledge is Burns’s own testimony, which they assert is not
credible. (Defs.’ Mot. at 1–2). Credibility, of course, is not a matter that can be decided
at summary judgment. Aware of this, they rely entirely on a single twenty-year-old
Court of Appeals decision, Jeffreys v. City of New York, 426 F.3d 549 (2d Cir. 2005), to
contend that this is the rarest of rare circumstances: where a witness’s testimony is so
unbelievable, a court can and should grant summary judgment. Defendants are wrong.
Case 2:23-cv-06312-SJB-ST Document 45 Filed 03/12/26 Page 8 of 16 PageID #:
<pageID>

9
In Jeffreys, plaintiff-appellant Percy Jeffreys testified (in an affidavit) that police
officers threw him out of a window. 426 F.3d at 551. But on multiple other occasions,
Jeffreys himself gave radically different accounts of that incident: he told medical
personnel and New York City Department of Corrections staff that he jumped out of the
window, he told a police officer that he was trying to flee and fell, and only nine
months after the incident did he first allege that he was thrown. Id. at 552. Medical
records also directly contradicted Jeffreys’s allegations. Id. at 552–53. On that record,
the Court of Appeals deemed the case the “rare circumstance where the plaintiff relies
almost exclusively on his own testimony, much of which is contradictory and
incomplete,” so that it would be impossible for a district court to decide whether any
“genuine” issues of material fact exist without “making some assessment of the
plaintiff’s account.” Id. at 554. In such a circumstance, “the moving party still must
meet the difficult burden of demonstrating that there is no evidence in the record upon
which a reasonable factfinder could base a verdict in the plaintiff’s favor.” Id. And it
concluded that, in that rare circumstance where “no reasonable person would
undertake the suspension of disbelief necessary to give credit to the allegations made in
the complaint,” summary judgment was appropriate. Id. at 555 (quotation omitted).
Jeffreys is a “narrow exception” to the “bedrock rule of civil procedure that a
district court generally cannot grant summary judgment based on its assessment of the
credibility of the evidence presented.” Frost v. N.Y.C. Police Dep’t, 980 F.3d 231, 245 (2d
Cir. 2020) (quotation omitted). “[I]t applies only in the rare circumstance where a
witness’s testimony is so problematic that no reasonable juror could credit it.” Id. at 246
Case 2:23-cv-06312-SJB-ST Document 45 Filed 03/12/26 Page 9 of 16 PageID #:
<pageID>

10
(quotation omitted). “[T]he general rule remains that a district court may not discredit
a witness’s deposition testimony [or declaration] on a motion for summary judgment,
because the assessment of a witness’s credibility is a function reserved for the jury.” Id.
(quotation omitted).
There are several distinguishing characteristics of Jeffreys: (1) multiple,
contradictory accounts of the events proffered by plaintiff; (2) exclusive reliance on
plaintiff’s account to oppose summary judgment, but significant gaps and
contradictions in those accounts with other record testimony (or documentary
evidence); and (3) unequivocal and consistent testimony on the part of defendants
combined with a patent impossibility (or absurdity) of plaintiff’s account. Those
characteristics are not present here. Burns has not offered contradictory accounts, but a
single account. And while his version of events is the only evidence in his favor, it does
not have significant gaps; it does not contradict documentary evidence (like medical
records), and it is only in tension with Defendants’ testimonial accounts. Moreover, the
Case 2:23-cv-06312-SJB-ST Document 45 Filed 03/12/26 Page 10 of 16 PageID #:
<pageID>

11
testimony Defendants offer is not without ambiguity.2 Instead of focusing on Jeffreys’s
essential criteria, Defendants make other arguments as to why Burns’s account is not
credible. Not only do these supposed credibility problems place this case outside of
Jeffreys, but they fail on their own terms—that is, they only underscore the reasons why
summary judgment is inappropriate.
Defendants first contend that Burns’s testimony is self-serving or uncorroborated
by tangible evidence or other witnesses. (Defs.’ Mot. at 14–16). But Jeffreys does not
apply to such a situation. Indeed, that position is legally untenable: a plaintiff’s own
testimony (which is necessarily self-serving) can be the sole basis on which a claim may
survive summary judgment. See Knox v. CRC Mgmt. Co., LLC, 134 F.4th 39, 48–49 (2d
Cir. 2025) (“[A]t summary judgment, [a plaintiff is] entitled to rely on his own
testimony . . . . There is nothing in [Federal Rule of Civil Procedure 56(c)] to suggest that
2 For example, the parties engage in a back-and-forth about Koukos’s recollection
of a conversation with Burns. Defendants contend that Koukos never admitted to
having told Burns that Jacob and Davis knew about his Tilebar lawsuit. (Defs.’ Reply
Mem. in Supp. of Summ. J. dated Aug. 1, 2025, Dkt. No. 39 at 6). And on the basis of
that interpretation, Defendants contend that Burns must be lying, because he gives a
diametrically opposite version: that Koukos told him about their awareness of the suit.
To make this leap, Defendants have to contort Koukos’s testimony. Koukos was asked:
“If Jim Burns does recall a conversation that you two had, you are not in a position to
agree or disagree with him because you don’t remember it one way or the other, right?”
(Dep. of Gregory Koukos attached to Hoffman Decl. as Ex. D, Dkt. No. 37-20 at 49:18-
21). Koukos answered: “Correct. I do not remember a conversation with Jim.” (Id. at
49:23-24). In other words, the testimony, at best, says that Koukos does not recall the
exchange, not that he denied making the statement. (See also id. at 35:13-16 (“Q. Do you
recall a conversation with Jim Burns where you told him, ‘I don’t think you’re going to
be around much longer’? A. No.”); id. at 36:6-13 (“Q. Do you recall saying to Jim,
‘Marion is going to make your life miserable to make you quit’? A. I don’t remember
saying that. Q. Is it that you don’t remember one way or the other whether or not you
did or did not say it? . . . A. I don’t remember saying that one way or the other.”)).
Case 2:23-cv-06312-SJB-ST Document 45 Filed 03/12/26 Page 11 of 16 PageID #:
<pageID>

12
nonmovants’ affidavits alone cannot—as a matter of law—suffice to defend against a
motion for summary judgment. And [t]o hold . . . that the nonmovant’s allegations of
fact are (because ‘self-serving’) insufficient to fend off summary judgment would be to
thrust the courts—at an inappropriate stage—into an adjudication of the merits.”
(quotations omitted)); Bellamy v. City of New York, 914 F.3d 727, 746 (2d Cir. 2019) (“[A]
§ 1983 plaintiff’s testimony alone may be independently sufficient to raise a genuine
issue of material fact. Jeffreys is inapposite because the self-serving testimony in that
case was contradictory and incomplete, and so replete with inconsistencies and
improbabilities that no reasonable juror would undertake the suspension of disbelief
necessary to credit the allegations.” (quotations and citation omitted)).
Defendants try to latch on Jeffreys by pointing out alleged contradictions in
Burns’s testimony. (Defs.’ Mot. at 16–19). Recall that in Jeffreys, the contradictions were
core to plaintiff’s claim: he first said nothing about being thrown out of a window, and
said he fell or jumped, and months later, he said he was thrown by police. Here,
Defendants point to a variety of discrepancies. But none of them concern Burns’s core
claim—that he was told he was being fired because of his prior lawsuit. Instead, they
pertain to ancillary tensions. While such tensions might be useful cross-examination
material as a means to get a jury to disbelieve Burns, they do not amount to the kind of
material contradictions that characterized Jeffreys.
Defendants first note that in Burns’s administrative claim with the Equal
Employment Opportunity Commission (“EEOC”), he said at his termination meeting
there was no discussion of how his departure would be characterized or an expectation
Case 2:23-cv-06312-SJB-ST Document 45 Filed 03/12/26 Page 12 of 16 PageID #:
<pageID>

13
of receiving 30 days’ pay. (Id. at 16). But at his deposition, Burns testified that Davis
acknowledged that he was terminated without cause and would pay him for 30 days.3
(Id.). These inconsistencies are hardly suggestive that the entirety of his account is false
or that the core allegation—that he was fired because he had a pending lawsuit claiming
employment discrimination—is entirely implausible.
Defendants then suggest that Burns’s account must be implausible because Burns
requested the meeting, did not push back against Jacob’s or Koukos’s statements that
indicated retaliation, and did not take any contemporaneous notes of the meeting,
despite his human resources experience. (Id. at 17–18). The absence of documentary
evidence—and evidence Defendants believe should have been created, based solely on
their own say-so—is not proof of contradiction or implausibility (otherwise, the rule
permitting a plaintiff’s testimony to be sufficient to survive summary judgment would
have no force).
Defendants also suggest Burns fabricated a story of receiving mental health
treatment for emotional distress following his termination; and numerous efforts have
failed to surface any records of such treatment. (Id. at 18). Burns vehemently disputes
this account and questions the methods Defendants used to try to track down his
mental health treatment. (Pl.’s Mem. in Opp’n to Defs.’ Mot. dated July 11, 2025 (“Pl.’s
Opp’n”), Dkt. No. 38 at 18–19). Separately, Defendants say that at his deposition, Burns
3 Defendants theorize that Burns’s testimony was a deliberate response to the
notes Davis took after the meeting, which were produced to Burns before the
deposition. (Defs.’ Mot. at 7). That does not change the ancillary nature of this alleged
inconsistency.
Case 2:23-cv-06312-SJB-ST Document 45 Filed 03/12/26 Page 13 of 16 PageID #:
<pageID>

14
testified that Tilebar did not accuse him of disclosing confidential information during
his employment, but was then presented with a letter evidencing such an accusation.
(Defs.’ Mot. at 18). Both of these alleged inconsistencies are exogenous—they relate to
ancillary issues that Defendants are free to discuss with the jury, but do nothing to
demonstrate that the entirety of Burns’s account is not believable and his claim should
be dismissed before trial. The falsus in uno, falsus in omnibus principle—that a falsity in
one matter permits a conclusion that the witness is lying about all matters—is a jury
instruction, not a principle employable at summary judgment.
Ultimately, the facts and alleged contradictions Defendants identify are largely
minor details. None of them are material to Burns’s core case. Whether or not Burns
remembered receiving a letter with an accusation of impropriety from his former
employer, for example, bears little on this case. And whether Burns sought mental
health treatment for emotional distress may impact damages or credibility
considerations at trial. But Burns’s testimony has been generally consistent, from his
EEOC complaint through the current record, on the central issues: that he was told that
Defendants were discussing his prior discrimination lawsuit, and that Defendants
referenced the lawsuit as the reason for his termination. Cf. Rivera v. Rochester Genesee
Reg’l Transp. Auth., 743 F.3d 11, 22–23 (2d Cir. 2014) (“Here, by contrast, Rivera does not
allege the occurrence of something that he previously described as not happening. . . . In
his administrative and court assertions he has not been inconsistent in claiming that he
was subjected to ethnic slurs. Any variance in those assertions has been in the number of
times he was subjected to such slurs. That Rivera did not complain of ethnic slurs to [his
Case 2:23-cv-06312-SJB-ST Document 45 Filed 03/12/26 Page 14 of 16 PageID #:
<pageID>

15
employer] may lead a factfinder to find that claim not credible, but there is no real,
unequivocal, and inescapable contradiction of the sort we contemplated in Jeffreys . . .
and matters of credibility are not to be determined on a motion for summary
judgment.”).4
Since the Court cannot engage in credibility determinations, it must conclude
that there is a genuine issue of material fact as to Defendants’ knowledge of Burns’s
Tilebar lawsuit. And since that is the only argument Defendants make in their
summary judgment motion, they cannot prevail. Tolbert, 790 F.3d at 438 (“There was no
argument in the district court or before us that summary judgment should be granted at
the second or third stages of the McDonnell Douglas analysis. . . . [W]e conclude that Mr.
Tolbert met his initial burden of establishing a prima facie case of discrimination[.]”).
4 Defendants cite to a single case where Jeffreys was applied successfully: Rojas v.
Roman Catholic Diocese of Rochester, 660 F.3d 98 (2d Cir. 2011). But this case is not
apposite to Rojas either. In Rojas, the “critical issue” was whether the harassment the
plaintiff alleged could be imputed to the Diocese she sued—that is, whether the alleged
harasser was the plaintiff’s supervisor, and whether the Diocese knew or should have
known about the harassment. Id. at 101. But the plaintiff had made contradictory
statements—in her administrative and federal court complaints, in her testimony at a
prior criminal trial, in her interrogatory responses, and then at her later deposition—
about whether the alleged harasser was a coworker or supervisor, and whether she
reported the harassment to the Diocese. Id. at 101–03. All those issues went “to the
heart of” whether she had met her summary judgment burden. Id. at 106. The Diocese
supported its account with affidavits, as well as contemporaneous emails and notes. Id.
at 103. Though the Court of Appeals found Jeffreys applicable, it simultaneously
cautioned, “we do not suggest that district courts should routinely engage in searching,
skeptical analyses of parties’ testimony in opposition to summary judgment.” Id. at 106.
Case 2:23-cv-06312-SJB-ST Document 45 Filed 03/12/26 Page 15 of 16 PageID #:
<pageID>

16
CONCLUSION
For the reasons explained above, Defendants’ motion for summary judgment is
denied. The parties are directed to file a joint proposed pretrial order consistent with
the undersigned’s Individual Practices by April 9, 2026.
SO ORDERED.
/s/ Sanket J. Bulsara
SANKET J. BULSARA
United States District Judge
Date: 	March 12, 2026
Central Islip, New York
Case 2:23-cv-06312-SJB-ST Document 45 Filed 03/12/26 Page 16 of 16 PageID #:
<pageID>