In D’Andrea v. Kirstjen M. Nielsen, Secretary, Department of Homeland Security, 2019 WL 1503923 (2d Cir. April 5, 2019) (Summary Order), the Second Circuit – after affirming the dismissal of plaintiff’s retaliation claim – turned to plaintiff’s hostile work environment claim.
The court understood plaintiff “to argue that DHS created a hostile work environment in retaliation against him because he engaged in protected conduct.” Plaintiff, however, did not brief this claim, and the district court did not address it.
The question is whether a plaintiff may assert an independent hostile work environment claim alleging animus based on protected activity (as opposed to animus based on membership in a protected class, see 42 U.S.C. § 2000e-2), or whether the acts that would formulate such a claim are part and parcel of the adverse employment action element of a traditional retaliation claim, see 42 U.S.C. § 2000e-3(a).
The court remanded the claim, pursuant to United States v. Jacobson, 15 F.3d 19 (2d Cir. 1994), for the district court to answer the following questions:
1. Whether there is an independent claim for a hostile work environment under 42 U.S.C. § 2000e-2 based on retaliatory-animus toward a plaintiff’s protected activity; and
2. If so, whether the evidence adduced at summary judgment in this case was sufficient for a reasonable jury to find that D’Andrea was subject to a hostile work environment based on his protected activity.
This resolution of these questions – specifically, the first – may change how hostile work environment claims are framed and litigated in this Circuit,