In Arbouin v. Bob’s Discount Furniture, LLC, 20-CV-1893, 2021 WL 4458932 (E.D.N.Y. Sept. 29, 2021), the court, inter alia, held that plaintiff sufficiently (i.e., plausibly) alleged a retaliation claim, arising from her complaints of sexual harassment.
Marching through the elements of a retaliation claim, namely, (1) protected activity, (2) adverse employment action, and (3) a causal connection between the two, the court explained:
The Court agrees with Judge Locke that the factual allegations in the Amended Complaint are sufficient to plausibly state that Plaintiff engaged in a protected activity. “Formal and informal complaints of discriminatory employment practices can constitute protected activity.” Wu v. Good Samaritan Hosp. Med. Ctr, 815 F. App’x 575, 581 (2d Cir. May 20, 2020) (summary order). In assessing a complaint for purposes of a Rule 12(b)(6) motion to dismiss, a court “must construe it liberally, accepting all factual allegations therein as true and drawing all reasonable inferences in the plaintiffs’ favor.” Sacerdote v. New York Univ., 9 F.4th 95, 106-07 (2d Cir. 2021). The Amended Complaint alleges, inter alia, that Pillai deliberately concealed from Bob’s HR department complaints made by Plaintiff, and two other female employees, about Brigham’s alleged sexual harassment; and that Bob’s HR department “was (once again) notified of Mr. Brigham’s conduct in March 2019.” Drawing all reasonable inferences in Plaintiff’s favor, the Amended Complaint adequately alleges that Plaintiff engaged in a protected activity.
Defendants further contend that the R&R erroneously finds that Plaintiff’s “vague and unspecified allegation that Pillai called her a ‘liar’ is not so conclusory that it fails to give notice of the basic events and circumstances on which [she] relies.” According to Defendants, the allegations in the Amended Complaint “are devoid of the necessary context to make such a determination.” By way of example, Defendants assert that the R&R “appears to impermissibly assume” that Pillai’s “liar” comment(s) had any connection to Plaintiff’s complaints about Brigham’s alleged sexual harassment, and it can “just as easily be assumed” from Plaintiff’s vague allegation in the Amended Complaint, which fails to indicate when or in what context the “liar” comment(s) were made, that Pillai’s comment(s) were “referencing entirely unrelated conduct.” Additionally, Defendants argue that the R&R errs in finding that Pillai’s conduct in revoking the approval of Plaintiff’s vacation time, and the Company’s conduct in “penaliz[ing]” Plaintiff for failing to meet a sales goal, constitute adverse employment actions.
The Court agrees with Judge Locke that the Amended Complaint contains sufficient non-conclusory factual allegations to plausibly state that Plaintiff suffered an adverse employment action. To constitute an adverse employment action in the context of a retaliation claim, “the employer’s conduct must be harmful to the point that it could well dissuade a reasonable worker from making or supporting a charge of discrimination.” Shultz v. Congregation Shearith Israel of City of New York, 867 F.3d 298, 309 (2d Cir. 2017). The Amended Complaint alleges, inter alia, that Pillai “actively hindered” the Company’s ability to investigate the complaints of Brigham’s sexual harassment “by, among other acts, discarding the recording of Mr. Brigham’s sexual assault of Ms. Arbouin. Adding insult to injury, Mr. Pillai responded to Plaintiff’s complaints with hostility and retaliatory conduct, publicly accusing Ms. Arbouin and Ms. Lorenzo of being liars on multiple occasions and punishing them in various ways throughout the workday.” Moreover, the Amended Complaint alleges that, in March 2019, following the complaints of Brigham’s sexual harassment, (i) Plaintiff “was penalized for failing to meet purported sales goals … while [she] was still within the Company’s grace period provided to new employees,”; and (ii) Pillai revoked the Company’s approval of her “request to utilize her paid time off for a ‘mental health’ vacation to help cope with the trauma and anxiety caused by Mr. Brigham’s sexual assault and harassment, … which forced Ms. Arbouin back to work before her vacation even began.” “The choice between or among plausible inferences or scenarios is one for the factfinder,” Anderson News, L.L.C. v. American Media, Inc., 680 F.3d 162, 184 (2d Cir. 2012), not for the Court on a Rule 12(b)(6) motion to dismiss. Again, drawing all reasonable inferences in Plaintiff’s favor, the Amended Complaint plausibly states that Plaintiff suffered an adverse employment action.
Furthermore, Defendants assert that the R&R’s finding that the close temporal proximity of Plaintiff’s alleged protected activity and the purported retaliatory conduct “create[s] a plausible inference of a causal nexus,” (ECF No. 26 at 23), is “premised on at least two unsupportable assumption[s].” (ECF No. 28 at 14.) First, the R&R assumes that Pillai’s “liar” comment(s) “occurred closely or in reference to Plaintiff’s complaint,” since the Amended Complaint does not provide any context for that allegation, such as when the comment(s) were made, the substance of the comment(s) or to what conduct of Plaintiff Pillai’s alleged comment(s) refer. Second, the R&R assumes that Bob’s was aware of Plaintiff’s complaints of sexual harassment. The Amended Complaint alleges, inter alia, that Plaintiff began complaining to Pillai about Brigham’s purported sexual harassment in January 2019 and that Pillai made the “liar” comment(s) in response to Plaintiff’s complaints. The Amended Complaint next alleges that “[w]hen the Company’s HR department was (once again) notified of Mr. Brigham’s conduct in March 2019, HR likewise responded with hostility and did nothing to stop the subsequent onslaught of retaliatory conduct perpetrated by Mr. Pillai.” Consequently, the Court agrees with Judge Locke that, liberally construed, the factual allegations in the Amended Complaint “create a plausible inference of a causal nexus due to the close temporal proximity, at most two months, between when Plaintiff engaged in the protected activity and the purported retaliatory conduct.”
[Citations omitted; cleaned up.]
(I addressed the court’s evaluation of plaintiff’s sex-based hostile work environment claim here.)