First, she contends that an adverse employment consequence imposed because of

stereotypes about motherhood is a form of gender discrimination which contravenes

the Equal Protection Clause.
The defendants' argument, that Back's claim is a gender-plus claim,7 and as
such, not actionable under 1983. This contention is without merit. The term sex
plus or gender plus is simply a heuristic. It is, in other words, a judicial
convenience developed in the context of Title VII to affirm that plaintiffs can,
under certain circumstances, survive summary judgment even when not all members of
a disfavored class are discriminated against

Second, she argues that the district court wrongly resolved disputed issues of
material fact, and that summary judgment was inappropriate both as to the
discrimination claim and as to the liability of the School District and Russell.

Finally, the plaintiff insists that the district court erred in finding that
Brennan, Wishnie, and Russell were entitled to qualified immunity. We consider each
argument in turn.

Defendants also fail in their claim that they are immune from Back's allegations
simply because, in the year that Back was hired, 85% of the teachers employed at
Hillside were women, and 71% of these women had children.

Application: we hold that Back has clearly produced sufficient evidence to defeat
summary judgment as to Brennan and Wishnie. She has made out her prima facie case
by offering evidence of discriminatory comments, which can constitute direct
evidence, and are adequate to make out a prima facie case, even where
uncorroborated.
The nondiscriminatory reasons proffered by Brennan and Wishnie for their negative
evaluationsnamely, Back's poor organizational skills and her negative interactions
with parentsare in no way dispositive. Viewing the evidence in the light most
favorable to Back, a jury could find that the administrative deficiencies cited by
the defendants were minor, and unimportant to the defendants before the development
of the purported discriminatory motive.
As for the parental complaints, it is unclear which of these Brennan and Wishnie
were aware of at the time of their negative recommendations and evaluations. But
Back's allegations, in any event, are sufficient to allow a jury to find that these
complaints were not the real reason for their proffered criticisms of Back. Back
asserts, for example, that [i]n even the most supportive school setting, whether
dealing with a teacher or provider of special services, as I was, a small minority
of parents will always be critical of the professional. I had very minor skirmishes
with several parents while in Hastings. But ... Brennan and Wishnie always
emphasized to me that I was doing an excellent job and that the complaining parent
had her own problems coping with the reality of having a classified child. If some
of these skirmishes were in Back's first two years, as she alleges, then her
performance evaluationsconducted by Brennan and Wishniealso tend to support her
version of events.
Similarly, although Back's second year evaluations indicated that she faced some
challenges in dealing with teachers and parents who were resistant to her advocacy
for students, they also noted that Back was aware these issues and working to
enhance this area.
Back also alleges that Brennan and Wishnie instructed her not to have parents or
supporters submit positive letters for her file. This, and the sudden decline in
performance evaluations that occurred between the beginning and end of Back's third
yearthat is, only after the alleged discriminatory comments begansupport a
conclusion of pretext.

Plaintiff Ariel Ayanna (Ayanna) sues defendant law firm Dechert, LLP (Dechert)
for retaliation under the Family Medical Leave Act (FMLA).

Ayanna, a male attorney, was an associate at Dechert from September, 2006 until his
termination in December, 2008. He is married and has two children. His wife suffers
from chronic mental illness.
During Ayanna's first year of employment at Dechert he met his assigned objective
for billable hours, received positive performance reviews and was awarded a bonus.
During his second year, Ayanna requested to work from the Munich office of Dechert
for nine months while his wife completed a Fulbright scholarship in Germany.
Dechert did not transfer Ayanna to the Munich office, but, instead, agreed that he
could work from Munich while remaining assigned to the Boston office. Ayanna
contends that because attorneys in Munich worked fewer hours, he was told by his
supervisors in Boston that he did not need to meet the billable hours requirement
for United States based attorneys while working from Germany. Despite that
reassurance, once in Germany, Ayanna expressed concern to the Boston office about
his reduced hours. He requested additional work but was not assigned any. Although
Ayanna's billable hours were lower than stateside attorneys, he billed more hours
than the other associate in the Munich office.
During their time in Munich, Ayanna's wife became pregnant with their second child
and experienced a deterioration of her mental health. After she attempted to commit
suicide, Ayanna took emergency FMLA leave to care for his wife. Following the birth
of their second child, he took four weeks of paid paternity leave. His wife's
condition improved and he was able to return to the Boston office of Dechert in *53
August 2008, despite being scheduled to remain on FMLA leave until September. As a
result of his early return, Ayanna remained eligible for an additional four weeks
of FMLA leave that year. He continued to care for his wife and children after
returning to work.
When he returned to the Boston office Ayanna was assigned to be the right hand
man to Partner Christopher Christian (Christian). Ayanna contends that Christian
was immediately hostile to him due to his recent leave and monitored his work and
presence in the office more closely than other associates. After Ayanna's wife was
briefly hospitalized at the end of September 2008, the assignment of work from
Christian to Ayanna dropped off and Christian began assigning work to other
associates.
In his annual performance evaluation Ayanna was given an overall fair rating.
Dechert claims that rating took into account both billable hours and supervisor
evaluations but placed a far greater emphasis on the former. Of the ten performance
evaluators, one rated Ayanna as fair, the others gave him ratings of good or
very good. Between January 2008 and October 2008 Ayanna billed 850 hours and 41
pro bono hours. He also completed 554 non-billable hours on internal firm projects
while in Germany. Ayanna's annualized billable hours were adjusted to 1,460 to
account for his FMLA and paternity leave. His total billable hours fell far short
of the 1,950 target for associates in the Boston office and Ayanna ranked 62nd out
of 65 associates in his practice group.
On December 17, 2008 Ayanna was terminated. All of the associates who received a
rating of fair (except one who had only recently joined the firm) were also
terminated.
Following his termination, a client contested one of Ayanna's billed meal expenses.
Dechert then investigated the meal and transport expenses Ayanna had billed to
clients in the months prior to his termination. It discovered numerous instances
where Ayanna had billed food or transportation services to clients despite billing
very little or no time to that client that day.

To make out a prima facie case of retaliation under the FMLA, an employee must
prove that 1) he engaged in the protected conduct of taking FMLA leave, 2) he was
fired, and 3) the protected conduct and the termination were causally connected.

Drawing all inferences in Ayanna's favor, there remains a genuine issue of material
fact as to whether Dechert's termination of Ayanna on the ground of his low
billable hours was actually a pretext for retaliation. As a result, although
Dechert may ultimately prevail on this claim, based on the evidence currently in
the record, Dechert is not entitled to summary judgment.

This appeal thus poses an important question, one that strikes at the persistent
fault line between work and familyprecisely where sex-based overgeneralization
has been and remains strongest. (citing Nev. Dept. v. Hibbs).