Truitt v. Salisbury Bank and Trust Co.

21-1002-cv
Truitt v. Salisbury Bank and Trust Co.

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

August Term 2021

(Argued: June 1, 2022 Decided: October 27, 2022)

Docket No. 21-1002-cv

WILLIAM GUNNAR TRUITT,

Plaintiff-Appellant,

v.

SALISBURY BANK AND TRUST COMPANY and
SALISBURY BANCORP, INC.,
Defendants-Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK

Before:
LEVAL, CHIN, and MENASHI, Circuit Judges.

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

Southern District of New York (Román, J.), dismissing plaintiff-appellant's
complaint and an order denying his motion for reconsideration. Plaintiff-

appellant brought this employment action, claiming that defendants-appellees

discharged him in violation of New York Labor Law § 201-d because he chose to

campaign for election to a seat in the New York State Assembly. The statute bars

an employer from discriminating against an employee for engaging in, inter alia,

certain outside political activities, including running for public office. The

district court granted defendants-appellees' motion for summary judgment,

holding that plaintiff-appellant voluntarily resigned and was not constructively

discharged.

VACATED AND REMANDED.

ROBERT B. LOWER (Theodore McCullough III, on the
brief), McCullough Ginsberg & Partners LLP, New
York, New York, for Plaintiff-Appellant.

AMBER M. SPATARO (Jennifer I. Fischer, on the brief),
Littler Mendelson P.C., Newark, New Jersey, for
Defendants-Appellees.
___________

CHIN, Circuit Judge:

In this case, plaintiff-appellant William Gunnar Truitt, an employee

of defendant-appellee Salisbury Bank and Trust Company (the "Bank"),

-2-
announced his candidacy for a New York State Assembly seat. The Bank

thereafter advised Truitt that he had to choose between running for office and

continuing his employment with the Bank. Truitt decided not to discontinue his

campaign, and his employment with the Bank ended.

Truitt brought this action below, contending that the Bank violated

New York Labor Law § 201-d by requiring him to cease protected political

activity as a condition of retaining his employment at the Bank. The statute

makes it unlawful for an employer to discharge or discriminate against an

employee for engaging in, inter alia, specified political activities outside of

working hours. N.Y. Lab. Law § 201-d(2)(a). Protected activities expressly

include "running for public office." Id. § 201-d(1)(a)(1). The district court granted

summary judgment in favor of the Bank, concluding, as a matter of law, that

because Truitt voluntarily resigned from his position and was not constructively

discharged, his suit could not succeed. The court thereafter denied Truitt's

motion for reconsideration, and this appeal followed.

For the reasons discussed below, we vacate the judgment and

remand.

-3-
 BACKGROUND

A. The Facts1

On February 26, 2018, Truitt, a part-time Dutchess County legislator,

began working for the Bank as a full-time mortgage lending officer trainee. As a

trainee, Truitt began a six-month training program, to be followed by a four-

month secondary training program. Upon successful completion of both

programs, Truitt would be promoted to a full-time mortgage loan officer position

in January 2019. Truitt's employment with the Bank was at-will, and both he and

the Bank could "terminate the employment relationship at any time, for any legal

reason, with or without cause, with or without notice." Joint App'x at 390

(emphasis added).

On April 12, 2018, Truitt announced on Facebook that he was

running as a Republican candidate in the upcoming election for the New York

State Assembly seat in the 106th District. Candidates elected to the New York

1
On January 28, 2020, Truitt filed his opposition papers in response to Salisbury's
motion for summary judgment. Truitt failed to comply with Rule 56.1 of the Local Civil
Rules of the United States District Courts for the Southern and Eastern Districts of New
York because he did not include a compliant counterstatement. See S.D.N.Y. Ct. R.
56.1(b), (c). In the absence of a compliant response, the district court drew the facts
from Salisbury's Local Rule 56.1 Statement to the extent that its factual assertions were
supported by the record. See Holtz v. Rockefeller & Co., 258 F.3d 62, 73-74 (2d Cir. 2001).
We do likewise.
-4-
State Legislature serve as part-time legislators during the legislative session,

which lasts from January to June, in Albany, New York. Truitt did not let the

Bank know he decided to run for the seat before he made the announcement.

The next day, after learning about the campaign announcement,

Truitt's supervisor Amy Raymond asked Truitt to meet with her and Doug

Cahill, the Bank's Vice President of Human Resources. In its Rule 56.1 Statement,

the Bank stated that Raymond and Cahill sought to "determine what kind of time

commitment such a campaign (and subsequently job) would entail." Id. at 268.

Evidence the Bank cited in support of this description does not show that

Raymond and Cahill expressed concerns about the time Truitt would spend

campaigning, as distinct from the time he would spend discharging the duties of

an Assembly member. E.g., Joint App'x at 95 (Truitt testifying, during his

deposition, that Raymond and Cahill "asked me to please provide them with a

letter of explanation as to what I was running for"); id. at 126-27 (Cahill testifying,

during his deposition, that a Bank senior vice president, Shelly Humeston, "knew

the time commitment at least, the significance of the role, and we needed to find

out whether or not it was going to be a conflict").

-5-
 The Bank has internal policies and procedures concerning outside

employment opportunities for its employees. The Bank's January 2018 Employee

Handbook, for instance, explains that an employee who wishes to accept outside

employment must "first notify the Human Resource Administrator or the

President." Id. at 377. Outside employment, as the Bank's Code of Ethics and

Conflicts of Interest Policy also provides, is then permitted only if it is approved

in advance by the Board of Directors (or in the case of a non-officer employee,

executive management). When deciding whether to approve the employment

request, the Board of Directors will consider, inter alia, if the outside employment

will "interfere with work assignments or performance." Id. at 222.

Three days later, on April 16, 2018, Truitt emailed Raymond and

Cahill a letter "regarding [his] candidacy in this November's elections." Id. at 311.

Although the letter stated he was not yet an official candidate on the ballot for

the Assembly seat for the 106th District, it explained that he was "on the path" to

becoming one, and that he was "officially endorsed" by the Dutchess County

Republican Committee. Id. at 312. The letter described the part-time nature of

the position, included a copy of the "New York State Legislative Session

Calendar for 2018," and attached a link to the state's "Standards of Conduct

-6-
Relating to Outside Employment or Business Activity." Id. at 312-13. Truitt's

letter also explained that he had spoken "with numerous state elected officials

and other experienced individuals that are familiar with working in the State

Assembly," and that they "made very clear that [he] w[ould] be able to maintain

full-time work and be very successful in [his] role as a Mortgage Loan Originator

[at] [the] [B]ank while serving as Assemblyman." Id. at 312. He also said that, if

elected, he planned to no longer serve as a county legislator and would instead

dedicate that role's time to his positions as an assemblymember and at the Bank.

The Bank apparently construed Truitt's notification of his candidacy

as a request for approval for outside employment. Raymond, Cahill, and the

Bank's CEO, Richard Cantele, reviewed Truitt's submission and determined that

he would be unable to work both as an assemblymember and a mortgage

lending officer. They were concerned that: (1) if Truitt was elected, he would

have to be in Albany two to four business days per week during the six-month

legislative session; (2) he had only 21 days of paid time off per year; (3) the

Riverside Division that Truitt was hired to serve was an emerging residential

lending market that would require a significant time commitment; and (4)

residential lenders like Truitt often worked more than 50 hours per week. In

-7-
short, Raymond, Cahill, and Cantele concluded that Truitt could not devote

sufficient hours to his future Bank position if he were elected as an

assemblymember. Despite these concerns relating to the demands that would be

made on Truitt's time if he served as a member of the Assembly, Cantele did not

have any information that Truitt's campaign was or would be interfering with

Truitt's ability to do his job at the Bank. Nor did Cantele receive any information

suggesting that Truitt's campaign would affect his working hours.

On or around April 26, 2018, Cahill met with Truitt to discuss his

campaign. During the meeting, Cahill explained that "the Bank was concerned

that [Truitt] could not effectively fulfill the requirements and responsibilities of

his future [mortgage lending officer] position as well as the requirements and

responsibilities of a State Assembly seat and, therefore, the Bank's management

would not provide [him] an exception to the Bank's policy on outside

employment." Id. at 270-71.2 Cahill then told Truitt that "he needed to make a

decision on whether he was going to run or not and [to] let [the Bank] know" by

May 1, 2018. Id. at 125.

2
Cahill also told Truitt that he had approached Arthur Bassin, a member of the
Bank's Board of Directors, regarding Truitt's campaign because he was also an elected
official. Joint App'x at 411. According to Truitt, Cahill told him that Bassin expressed
discomfort to Cahill about Truitt running for the position and working for the Bank. Id.
-8-
 The next day, on April 27, 2018, the Bank's Board of Directors met.

According to the meeting notes, Cantele reported that an employee "hired as a

Mortgage Originator for the Riverside Division" and "currently serving as a

Dutchess County Legislator" had "announced his campaign" for a State

Assembly seat. Id. at 322. The notes stated that the Bank's management "had

determined that this position [the Assembly seat] pays approximately $80,000

per year and requires approximately 65 days per year in Albany." Id.

Accordingly, management "intend[ed] to speak with the employee and advise

him that this would be a conflict of interest and [that] he must make a decision

whether to run for office or to continue employment with the Bank." Id. A

memorandum also dated April 27 from Cahill to the Bank's "HR/Compensation

Committee," which includes Bassin and other members of the Board of Directors,

identified Truitt as the employee. Id. at 323.3 The memorandum stated that the

3
According to Bassin's deposition testimony, "[t]he Board of Directors and the
[HR/Compensation Committee] don't manage the bank," and "in the specific case of
these outside employment things, the management team reviews those situations and
brings [them] to the Board's attention" to discuss whether there is a problem and what
to advise an employee. Id. at 136. Then, the Board and the HR/Compensation
Committee "say[ ] that sounds fine to us." Id. The committee does not "actually do the
review of what [the employee's] outside activities are." Id. Similarly, Cantele noted
that, while the Board of Directors receive outside employment request reports, "they do
not evaluate" them. Id. at 142.
-9-
Bank's management was "reviewing whether a conflict of interest exists with the

State Assembly campaign and position." Id.

Three days later, on April 30, 2018, Truitt met with Cantele to

reiterate his desire to campaign and serve as an assemblymember while he

worked for the Bank. Cantele told him that the Bank "did not believe that Truitt

would be able to fulfill his position as a residential originator given the

responsibilities . . . relative to the Assembly position." Id. at 271. Cantele

suggested that Truitt and the Bank consider the period from May to November

2018 as a "'time-out' period," and told Truitt that he hoped Truitt would apply for

a position with the Bank in the future if he were not elected. Id. at 183.

The next day, on May 1, 2018, Truitt emailed Cahill with the subject

heading "Decision." Truitt's email stated, in part,

I did deeply consider and weigh my options over this
past weekend, and came to the conclusion that I cannot
give up on a once in a lifetime opportunity such as the
one that has presented itself before me. The chance to
tie Teddy Roosevelt as the youngest State
Assemblyman in NY history is one I cannot give up, nor
can I let down my community who has asked me to
run.

I have learned a tremendous amount during my short
two months at Salisbury Bank, and I truly appreciated
how quickly everyone welcomed me into the family. I

- 10 -
 want to especially thank you Doug, for our initial
interview and for your help along the way, and also
Rick for his leadership and his willingness to meet with
me yesterday.

I have a few items that I need to return, including a
laptop, a key-f[o]b and a Poughkeepsie parking garage
badge. Let me know how you would like me to return
those in to you, and I will bring them as soon as
possible.

Id. Less than an hour later, Truitt sent another email, with the subject heading

"Update," to Raymond and Andrea MacArthur, his supervisors. It began by

stating that "it has been confirmed" by Cahill and Cantele that Truitt's

"employment with Salisbury Bank w[ould] not be continued if [he] pursue[d]

election to the New York State Assembly." Id. at 179. Truitt's email identified as

the Bank's "main concern" that "if elected, [he] would not have the necessary time

it takes" to be successful at the Bank, but it stated that he "disagree[d] with th[at]

sentiment entirely." Id. Further, the email noted that he had "thought deeply"

about the decision but that running for the Assembly was a "once in a lifetime

opportunity." Id. The email concluded by thanking his supervisors and noting

the possibility of returning to the Bank as an employee if his campaign was not

successful.

- 11 -
 The Bank recorded Truitt's last date of employment as April 30,

2018.4 Truitt did not win the election.

B. Proceedings Below

On August 24, 2018, Truitt filed this action in state court against the

Bank and its parent company, defendant-appellee Salisbury Bancorp, Inc.,

alleging that he had been discharged by the Bank in violation of New York Labor

Law § 201-d. The Bank then removed the action to federal court on diversity

jurisdiction grounds.

On January 28, 2020, following discovery, the Bank moved for

summary judgment. The district court granted the motion on July 21, 2020.

Truitt v. Salisbury Bank & Tr. Co. ("Truitt I"), No. 18-CV-8386 (NSR), 2020 WL

4208452, at *12 (S.D.N.Y. July 21, 2020). The court concluded that "even when

drawing all inferences from the record in [Truitt]'s favor, his departure from the

Bank [wa]s best classified as a resignation." Id. at *10. Further, the court

concluded that the resignation did not amount to a constructive discharge

4
Truitt disputes that this was his last date of employment, asserting instead that it
was May 1, 2018 -- the day that he emailed the Bank's management letting them know
that he was going to continue his campaign. But Truitt's May 1, 2018, email to Cahill
suggests that Truitt first "informed [Cantele] that [he] w[ould] continue" his campaign
on April 30, 2018. Id. at 183.
- 12 -
because the Bank did not subject Truitt to intolerable working conditions and

"[t]here [wa]s no indication that [Truitt] would be fired no matter what he

decided," or that the Bank "forced him to decide between termination or

resignation." Id. at *11. Judgment was entered on July 21, 2020.

Two weeks later, on August 4, 2020, Truitt timely moved for

reconsideration of the district court's July 21, 2020, order. The court denied the

motion on March 22, 2021. Truitt v. Salisbury Bank & Tr. Co. ("Truitt II"), No. 18-

CV-8386 (NSR), 2021 WL 1089888, at *5 (S.D.N.Y. Mar. 22, 2021). The district

court did not reach the issue of whether Truitt was discharged for his political

activity because it concluded that he voluntarily resigned and thus was not

subjected to an adverse employment action and, in any event, he was "at the

beginning stages of his campaign." Id. at *5.

This appeal followed.

DISCUSSION

A. Standard of Review

"We review a district court's grant of summary judgment de novo,

construing the evidence in the light most favorable to the non-moving party and

drawing all reasonable inferences in its favor." Dish Network Corp. v. Ace Am. Ins.

- 13 -
Co., 21 F.4th 207, 212 (2d Cir. 2021) (quoting Fed. Ins. Co. v. Am. Home Assurance

Co., 639 F.3d 557, 566 (2d Cir. 2011)). "Summary judgment is appropriate where

the record reveals that there is 'no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.'" McElwee v. County of Orange,

700 F.3d 635, 640 (2d Cir. 2012) (quoting Fed. R. Civ. P. 56(a)). A genuine factual

dispute exists "if the evidence is such that a reasonable jury could return a

verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248 (1986).

B. Applicable Law

Under New York Labor Law § 201-d, an employer may generally

not refuse to hire, discharge, or otherwise discriminate "in compensation,

promotion or terms, conditions or privileges of employment" against an

employee for, among other things, engaging in "political" or "recreational"

activity if such activity is legal and occurs outside of working hours. N.Y. Lab.

Law § 201-d(2).5 The statute expressly provides that an employee may sue an

5
The statute also prohibits an employer from refusing to hire, discharging, or
discriminating against an employee based on an employee's "legal use of consumable
products" or "membership in a union." N.Y. Lab. Law § 201-d(2)(b), (d). The statute
carves out a number of safe harbors, including where the employee's otherwise
permissible outside activities would create certain kinds of conflicts of interest; where

- 14 -
employer who violates the statute for "equitable relief and damages." Id. § 201-

d(7)(b).6

Section 201-d was enacted in 1992 to "prohibit employers from

discriminating against employees for engaging in certain off-duty activities,"

including "political or recreational activity, use of legal consumable products[,]

or union activities." Memorandum, Governor's Bill Jacket, L. 1992 S. 6935-C, ch.

776, at 11. The bill, commonly referred to as the "Legal Activities Bill," sought,

for instance, to protect those who smoked and used tobacco products outside of

working hours "against the extensive vigilantism" of their employers. McCavitt

v. Swiss Reinsurance Am. Corp., 89 F. Supp. 2d 495, 498-99 (S.D.N.Y. 2000), aff'd per

curiam 237 F.3d 166 (2d Cir. 2001); see also Memorandum, Governor's Bill Jacket,

L. 1992 S. 6935-C, ch. 776, at 37; Alyce H. Rogers, Comment, Employer Regulation

of Romantic Relationships: The Unsettled Law of New York State, 13 Touro L. Rev.

687, 689-90 (1997) (discussing legislative history of New York Labor Law

§ 201-d).

the employer's actions were required by law; and where the employee's actions were
"deemed . . . to be illegal or to constitute habitually poor performance, incompetency, or
misconduct." Id. § 201-d(4)(iii).
6
The New York State attorney general may also seek an "order enjoining or
restraining the commission or continuance" of violations of the statute, and "the court
may [also] impose" civil penalties for such violations. Id. § 201-d(7)(a).
- 15 -
 This case involves "political activities," which the statute defines as

"(i) running for public office, (ii) campaigning for a candidate for public office, or

(iii) participating in fund-raising activities for the benefit of a candidate, political

party or political advocacy group." N.Y. Lab. Law § 201-d(1)(a), (2)(a); see, e.g.,

McCue v. County of Westchester, 868 N.Y.S.2d 902, 902 (2d Dep't 2008) (concluding

that "plaintiff failed to raise a triable issue of fact as to whether he engaged in the

subject political activity outside of working hours"); Wehlage v. Quinlan, 864

N.Y.S.2d 630, 631 (4th Dep't 2008) (affirming dismissal of employee's action

where it was "undisputed that plaintiff did not engage in any [protected]

political activities").

Employment discrimination claims are often assessed under the

familiar McDonnell Douglas burden-shifting framework. See McDonnell Douglas

Corp. v. Green, 411 U.S. 792, 802-03 (1973). Under the framework, once a plaintiff

has established a prima facie case of discrimination, the burden "shift[s] to the

employer to articulate some legitimate, nondiscriminatory reason" for the

employer's action against the employee. Id. at 802. If the employer does so, then

the burden shifts back to the employee to show that the employer's articulated

reason is pretext for discrimination. See id. at 804-05. The framework is most

- 16 -
often applied in the claims brought under Title VII of the Civil Rights Act of

1964, 42 U.S.C. § 2000e et seq., the Americans with Disabilities Act, 42 U.S.C.

§ 12112, and the Age Discrimination and Employment Act, 29 U.S.C. § 621 et seq.

Neither this Court nor the New York Court of Appeals has

addressed whether the McDonnell Douglas framework applies to employment

discrimination claims arising under New York Labor Law § 201-d. Before the

district court, the parties agreed that it does. See Truitt I, 2020 WL 4208452, at *9

n.14. On appeal, neither party expressly cites McDonnell Douglas, but both Truitt

and the Bank rely on its framework. The Bank, for instance, contends that

"[e]ven if Truitt was able to establish a prima facie case of discrimination . . . the

Bank had a legitimate, non-discriminatory business reason for denying his

request to engage in outside employment that was not a pretext for

discrimination." Defendants-Appellees' Br. at 19. Echoing the Bank's language,

Truitt responds that the Bank's justification for its actions "is unsupported pretext

for unlawful discrimination." Reply Br. at 13. 7 Because decisions of New York's

7
The parties' language tracks the steps of the McDonnell Douglas framework.
After a plaintiff makes out a prima facie case of discrimination, "[t]he burden must then
shift to the employer to articulate some legitimate, nondiscriminatory reason for" the
adverse action. McDonnell Douglas, 411 U.S. at 802. Then, the plaintiff "must . . . be
afforded a fair opportunity to show that [the employer's] stated reason . . . was in fact
pretext." Id. at 804.
- 17 -
Appellate Divisions and other relevant jurisdictions have applied a similar

burden-shifting framework to claims under Labor Law § 201-d, we assume

arguendo that the McDonnell Douglas framework applies to this case. See Reeves v.

Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000) (assuming arguendo that

"the McDonnell Douglas framework is fully applicable" to ADEA actions

"[b]ecause the parties do not dispute the issue").8

C. Application

On appeal, Truitt makes two principal arguments. First, he

contends that the Bank unlawfully "forced" him to decide between "termination

or his protected political activity" and that, as a result, his departure from the

Bank was involuntary. Plaintiff-Appellant's Br. at 20. Second, he argues that the

8
See, e.g., Baker v. City of Elmira, 707 N.Y.S.2d 513, 514 (3d Dep't 2000) (explaining
that "it was incumbent upon [the employer] to come forward with admissible evidence
showing that [the employee's] political affiliations and activities did not play a
substantial part in its decision" (quoting McManus v. Grippen, 663 N.Y.S.2d 722, 723-24
(3d Dep’t 1997))); Miller v. Village of Wappingers Falls, 734 N.Y.S.2d 190, 190 (2d Dep't
2001) (applying burden-shifting framework to action where plaintiff alleged that "he
was improperly terminated from his employment because of his Republican Party
membership"); McManus, 663 N.Y.S.2d at 723 (applying burden-shifting framework to
§ 1983 claim for violation of First Amendment rights alleging that the "defendants had
violated [plaintiffs'] Federal and State Constitutional rights by removing them from
their positions solely because of or in retaliation for their affiliation with the Democratic
Party"); see also, e.g., Torres v. LaLota, No. 15-CV-7097, 2017 WL 4457514, at *7 (E.D.N.Y.
Aug. 14, 2017), R. & R. adopted, 2017 WL 4443578 (E.D.N.Y. Sept. 30, 2017); Fishman v.
County of Nassau, No. 10-CV-3231 (MKB), 2013 WL 1339466, at *9-10 (E.D.N.Y. Apr. 1,
2013).
- 18 -
Bank has only proffered as a reason for its actions his statutorily "protected

political activities." Id. at 31. The Bank responds that Truitt "chose to resign" and

"therefore did not suffer an adverse employment action." Defendants-Appellees'

Br. at 17 (emphasis in original). 9 The Bank also argues that, even assuming Truitt

had suffered such an adverse action, its reason for denying his request was

legitimate, non-discriminatory, and not pretextual. Id. at 19; cf. McDonnell

Douglas, 411 U.S. at 803-06.

Two issues are thus presented: whether Truitt presented evidence

from which a reasonable jury could find that he suffered an adverse employment

action, and, if so, whether the Bank demonstrated, as a matter of law, that it had

a legitimate, non-discriminatory reason for its employment decision.

1. Did Truitt Suffer an Adverse Employment Action?

Whether Truitt suffered an adverse employment action hinges on

whether the Bank could lawfully require him to choose between his political

campaign and his job. Section 201-d makes it unlawful for "any employer . . . to

9
Although the Bank's brief argues that Truitt failed to establish a claim for
employment discrimination, we note that a non-moving party on a motion for summary
judgment is required to show only that a genuine issue of fact "worthy of trial" exists.
10A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice &
Procedure § 2727.2 (4th ed. 2022).
- 19 -
refuse to hire, employ or license, or to discharge from employment or otherwise

discriminate against any individual in compensation, promotion or terms,

conditions or privileges of employment because of" an employee's political

activities. Although the district court recognized that adverse employment

actions may take many forms, it granted summary judgment on the basis that

Truitt could not demonstrate that he had been constructively discharged. Truitt

I, 2020 WL 4208452, at *9-10.

The district court concluded that Truitt was not discharged because

he voluntarily resigned after his request to engage in outside employment was

denied. This was error, for a reasonable jury could find that the Bank

discriminated against Truitt when it forced upon him an impermissible choice

between keeping his job and engaging in statutorily protected political activity.

Courts have held that offering this type of impermissible choice can constitute a

discriminatory adverse employment action. See, e.g., Mathis v. Christian Heating

& Air Conditioning, Inc., 158 F. Supp. 3d 317, 320, 334-35 (E.D. Pa. 2016) (holding

that a reasonable jury could find that plaintiff was constructively discharged

when given a "choice between continuing to work under conditions that

offended plaintiff’s beliefs or ending his employment"); Ross v. U.S. Capitol Police,

- 20 -
195 F. Supp. 3d 180, 194, 203-05 (D.D.C. 2016) (concluding that the plaintiff

plausibly stated a claim for discrimination based, in part, on the alleged adverse

employment action of being "forced to make the . . . choice of either tendering his

retirement application or placing his retirement annuity and other benefits in

jeopardy by continuing to fight his termination" (cleaned up)); see also Hill v. St.

Louis University, 923 F. Supp. 1199, 1209 (E.D. Mo. 1996), aff'd, 123 F.3d 1114 (8th

Cir. 1997). On this basis, a reasonable jury could find that the Bank subjected

Truitt to an adverse employment action when it forced an ultimatum upon him

"because of" his political activities.10 A reasonable jury could also find that, in

requiring Truitt to abandon his campaign as a condition of retaining his

employment, the Bank "discriminate[d]" against him in the conditions of his

employment, in violation of the terms of the statute.

Truitt began campaigning for the Assembly seat, and his campaign

was not interfering with his work. The managers at the Bank were not aware of

any complaints from his colleagues that he was unable to perform his work

10
Given our holding, we do not now address Truitt's arguments that Salisbury also
violated New York Labor Law § 201-d by (1) allowing Bassin, who was also a financial
supporter of Truitt's Democratic opponent in his campaign, to be involved in the
decision to discharge him and (2) falsifying Truitt's last date of employment to prevent
him from receiving employee benefits.
- 21 -
responsibilities because of the campaign. Nevertheless, he was given less than a

week to decide between continuing his campaign or continuing to work for the

Bank.11 It was apparent that the Bank was not going to permit him do both.

Cahill and Cantele made clear that "if [he] was running [he] could no longer

continue working for the bank." Joint App'x at 639. As Truitt's May 1 email

noted, Cahill and Cantele both "confirmed" that his employment with the Bank

would "not be continued" if he pursued the campaign. Id. at 179. And that

"ultimatum," Truitt explained, made him understand that he "had to pick one or

the other." Id. at 639. Thus, a reasonable jury could find that he was given an

illegal choice between continuing his employment and exercising his right to

engage in statutorily protected political activities, and that he was discharged

"because of" his choice to continue his campaign.

We are not persuaded by the Bank's argument that it gave Truitt a

genuine choice and that he voluntarily resigned. The Bank determined that a job

as an assemblymember was incompatible with Truitt's job as a mortgage lending

officer and that it would "not provide [Truitt with] an exception to the Bank's

11
The Bank argued that Truitt could not be an assemblymember and an employee
at the Bank at the same time; of course, to become an assemblymember Truitt would
first have to campaign for the position.
- 22 -
policy on outside employment." Id. at 271. The Bank therefore asked Truitt, on

or around April 26, 2018, to decide by May 1 whether he "wanted to continue

with his . . . campaign for the Assembly." Id. at 338. The Bank asserts that it

"may have had to make a decision whether to terminate Truitt's employment if

his campaigning interfered with his employment . . . or if Truitt was elected to

office" but that it made no such decision before "Truitt resigned from his

position." Id. at 272. Even though the Bank claims that it had not decided to

discharge Truitt when it learned of his "Decision," on this record a reasonable

jury could find that the Bank had already concluded that Truitt would be

discharged if he did not give up his campaign.

For these reasons, a reasonable jury could find that Truitt suffered

an adverse employment action by being forced to choose between his campaign

and his job in violation of New York Labor Law § 201-d.

2. Was There a Legitimate, Non-Discriminatory Basis for the Bank's
Adverse Employment Action?

Next, we turn to whether the Bank's argument that it demonstrated

a legitimate, non-discriminatory reason for the adverse employment action.

With respect to Truitt's campaigning for office, we conclude that it did not.

- 23 -
 The district court chose not to proceed to the second step of a

McDonnell Douglas-style burden-shifting framework because it held Truitt had

"failed to establish that he was terminated." Truitt I, 2020 WL 4208452, at *9 n.14.

It concluded that summary judgment was warranted because executives of the

Bank had "proffered significant testimony and evidence that establishe[d] that

the basis for their decision was that management did not feel that [Truitt] could

handle the rigors of his job and a campaign for, and potential elected position

within, the New York State Assembly." Id. at *11 n.16; see also id. at *4 n.5.12 The

district court erred, as a matter of law, in granting summary judgment on this

basis.

A reasonable jury could find that the Bank failed "to come forward

with admissible evidence showing that [Truitt's] political . . . activities did not

play a substantial part in its decision" subjecting Truitt to an adverse

employment action. See Baker, 707 N.Y.S.2d at 514 (quoting McManus, 663

N.Y.S.2d at 724). The district court erred because it erroneously conflated

12
In denying Truitt's motion for reconsideration, the district court reiterated that,
"[b]ased on an evaluation of the time commitment required to serve in (and by
extension, campaign for) the New York Assembly and the high salary, [the Bank]
determined that [Truitt] could not feasibly hold both positions." Truitt II, 2021 WL
1089888, at *5.
- 24 -
evidence concerning the possibility Truitt might serve as an assemblymember

with evidence concerning his campaign for the Assembly. The district court

disregarded this distinction because it did not "see how [it] [wa]s relevant."

Truitt II, 2021 WL 1089888, at *5. But, as explained above, the distinction is

relevant because New York law specifically protects employees running for

political office from discrimination. See N.Y. Lab. Law § 201-d(1)(a) (defining

protected activities to include "(i) running for public office" (emphasis added)).

Moreover, even assuming the Bank might have had a legally permissible reason

to bar Truitt from serving as an assemblymember while employed at the Bank,

terminating his employment if he won election would not have required the

Bank to bar him from campaigning for office.

To be sure, the record does include evidence that the Bank

considered the time commitment required to serve as an assemblymember. See,

e.g., Joint App'x at 322 (notes from the April 27, 2018, meeting of Salisbury's

Board of Directors explaining that Truitt had "announced his campaign to run for

NYS Assembly" and that "[m]anagement ha[d] determined that this position pays

approximately $80,000 per year and requires approximately 65 days per year in

Albany" (emphasis added)). Likewise, the Bank argues before us that its

- 25 -
executives were primarily concerned about the time Truitt would have to

commit to his duties as a member of the Assembly. See Defendants-Appellees'

Br. at 19-21. Truitt, contrariwise, argues that he would have been able to serve as

an assemblymember outside of his working hours at the Bank. We need not

address that factual dispute because, regardless of whether Truitt could have

served in the Assembly without interference with his working hours or

performance, the record does not include evidence that the Bank had any reason

to believe that Truitt's campaign would cause such interference.

The Bank points to Truitt's deposition testimony, claiming that he

"acknowledged that, prior to the election, he would engage in a campaign for the

seat and that his campaigning would continue even after he would be elected."

Joint App’x at 269. But, as the Bank conceded at oral argument, no evidence in

the record suggests that Truitt was campaigning during working hours. The

Bank also points to the four months Truitt took off to campaign from a job as a

finance officer at a construction company, which he secured after his employment

with the Bank ended. The record, however, does not show that Truitt had

requested, or that the Bank determined that he would need, time off to campaign

while working at the Bank.

- 26 -
 While the Bank's evidence includes some stray references to

campaigning, most of these references concern not the campaigning process itself

but rather the desired effect of campaigning, i.e., winning the election; other

references concern whether Truitt could handle additional, future campaigns if

he was elected to office. For instance, Cahill testified during his deposition that

his concern with Truitt "run[ning] for the Assembly" was that Truitt would

"potentially be away from the bank anywhere from two to four days a week for

six months of the year, essentially 60 days that it's in session." Joint App'x at 124.

Cantele testified during his deposition that if Truitt were to "take this other job

which required him to be out of the bank for at least sixty days a year," then

"common sense would say, given this job, that there would be campaigning to be

done. Id. at 141; see also id. at 277-78 (same sentiment in Cantele declaration); id.

at 279-80 (same sentiment in Cahill declaration).

For these reasons, a reasonable jury could find that the Bank's

actions violated New York Labor Law § 201-d because the bank failed to

demonstrate a legitimate, non-discriminatory reason for the adverse employment

- 27 -
action it took against Truitt.13 We conclude that the district court erred in

granting summary judgment dismissing Truitt's New York Labor Law § 201-d

claim.

CONCLUSION

For the foregoing reasons, we VACATE the district court's judgment

granting the Bank's motion for summary judgment and the order denying

Truitt's motion for reconsideration, and REMAND for further proceedings

consistent with this opinion.

13
As to the safe harbor provisions contained in Labor Law § 201-d, the Bank did
not seek the protection of any of these provisions in its answer to Truitt's complaint, see
Joint App'x at 40-48, and has not relied on or cited them on appeal. Nor has the Bank
argued that Truitt's performance had become "habitually poor" or that he had
committed "incompetency" or "misconduct." See Labor Law § 201-d(4)(iii). As
discussed above, the Bank has instead contended throughout this litigation that its
actions "were justified by legitimate, non-discriminatory, non-retaliatory" business
reasons. See, e.g., Joint App'x at 47; Defendants-Appellees' Br. at 19.
- 28 -