In Corradino v. Liquidnet Holdings Inc. & Seth Merrin, 19 Civ. 10434, 2021 WL 2853362 (S.D.N.Y. July 8, 2021) (J. Schofield), the court, inter alia, held that the plaintiff sufficiently alleged retaliation under Title VII of the Civil Rights Act of 1964, the New York State Human Rights Law, and the New York City Human Rights Law, and therefore denied defendants’ motion to dismiss those claims.
From the decision:
To survive a motion to dismiss a Title VII or NYSHRL retaliation claim, “the plaintiff must plausibly allege that: (1) defendants discriminated — or took an adverse employment action — against [her], (2) because [s]he has opposed any unlawful employment practice.” Duplan, 888 F.3d at 625 (citation omitted); accord Ahmad v. N.Y.C. Health and Hosps. Corp., No. 20 Civ. 675, 2021 WL 1225875, at *26 (S.D.N.Y. Mar. 31, 2021). In addition, “a plaintiff must plausibly plead a connection between the act and h[er] engagement in protected activity.” Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 90 (2d Cir. 2015) (citing 41 U.S.C. § 2000e–3 (a)); accord Ahmad, 2021 WL 1225875 at *26. The NYCHRL is “slightly more solicitous to retaliation claims” and prohibits “retaliat[ion] … against any person because such person has … opposed any practice forbidden” by the NYCHRL. Brightman, 2021 WL 1999466 at *10. To survive a motion to dismiss an NYCHRL retaliation claim “a plaintiff must plead facts giving rise to an inference of a causal connection between the plaintiff’s protected activity and an adverse employment action.” Id.
The Complaint states a claim for retaliation under Title VII, NYSHRL and NYCHRL. The allegations about Plaintiff’s complaints of sexual harassment sufficiently plead that she opposed an unlawful employment action. The Complaint also sufficiently alleges adverse employment actions, namely that Liquidnet implemented a mandatory arbitration policy shortly after Plaintiff retained counsel in connection with her harassment claims and effectively terminated Plaintiff when she would not agree to that policy.
Defendants contend that a mandatory arbitration policy cannot constitute an adverse employment action because an agreement to arbitrate does not deprive a party of substantive or procedural rights and, instead, merely establishes an alternative forum for adjudicating those rights. Here, however, the timing and manner of Liquidnet’s implementation of a mandatory arbitration policy — just shy of one month after Plaintiff retained counsel in connection with her sexual harassment complaints — coupled with the insistence that she agree to arbitrate as a condition of employment, are sufficient to plead an adverse employment action. See Gary L. v. CSX Transp., Inc., No. 18 Civ. 808, 2020 WL 6343289, at *5 (N.D.N.Y. Oct. 29, 2020) (“Constructive discharge is considered an adverse employment action sufficient to support a retaliation claim.”) (citation omitted).