The Northern District of New York recently held, in Hexemer v. General Electric, that plaintiff adequately pleaded retaliation for complaining about a co-worker’s discriminatory comments.
Plaintiff, who was born in Iran and is of Persian descent, alleged that after she made a comment to two co-workers about how sitting at their desks led to weight gain, another co-worker (Hill) “berated” plaintiff, called her “uncivilized”, stated that “in this country, we don’t talk like that”, and told plaintiff that “while such comments might be acceptable in Iran, they were unacceptable in the United States.” Six days after raising this issue with her GE supervisors, plaintiff was fired.
Plaintiff sued, alleging hostile work environment, discriminatory termination, and retaliatory termination under 42 U.S.C. § 1981(a) (which “prohibits the racially discriminatory prevention of a person from entering into, or enjoying the benefits of, a contract”) and the New York State Human Rights Law. Plaintiff agreed to dismiss her hostile work environment and discriminatory termination claims.
The court assessed plaintiff’s claims under the “plausibility” standard imposed by Federal Rule of Civil Procedure 12(b)(6), namely, whether plaintiff’s complaint “contain[ed] sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.”
Initially, the court held that plaintiff sufficiently alleged that GE was her joint employer. Defendant argued that it was not, since another entity – GID Global – hired and paid plaintiff.
However, “an entity need not be involved in the hiring or payment of a plaintiff to be a joint employer.” Here,
Plaintiff has specifically alleged that she: (1) worked at GE’s office; (2) used GE’s equipment; (3) had a GE email address; (4) was supervised by GE managers with whom she attempted to speak about her termination; (5) worked exclusively for GE in the same department for more than a year; (6) was contractually obligated to adhere to a number of specific GE policies; (7) performed assignments related to the editing and updating of GE literature; (8) was told that GE had made the decision to terminate her employment; and (9) believed that GE was her employer. Although Plaintiff has not provided a great deal of information regarding her day-to-day tasks or her supervision by GE, her allegations are sufficient to plausibly suggest that GE was her joint employer.
Next, the court held that plaintiff adequately alleged retaliation.
Plaintiff plausibly alleged that she engaged in “protected activity” by complaining about what she reasonably perceived as a hostile work environment.
“[A] hostile-work-environment claim premised on co-worker conduct lies only if the employer: (1) failed to provide a reasonable avenue for complaint; or (2) knew, or in the exercise of reasonable care should have known, about the harassment yet failed to take appropriate remedial action.
Plaintiff met this standard:
Here, Hill called Plaintiff “uncivilized” in the context of berating and lecturing her about the difference between acceptable behavior in the United States and Iran-comments Plaintiff might reasonably have viewed as particularly racist and offensive given that Plaintiff was a long-time GE employee who had been in the United States for more than forty years and a citizen for more than thirty. Similar one-time comments have been found to give rise to a reasonable belief that a hostile work environment existed. …
Plaintiff could have believed that Hill, who was not her supervisor and was not involved in the conversation regarding weight gain, was imperiously lecturing her on proper workplace behavior because of Plaintiff’s race.
The court also rejected defendants’ argument that plaintiff could not have reasonably believed that their conduct was sufficiently culpable:
[T]he Amended Complaint contains facts plausibly suggesting a basis for Plaintiff to reasonably conclude that both of the alternative employer-culpability prongs were met. First, Plaintiff appears to have been unable to speak with her GE supervisors despite her efforts to do so, and there is nothing in the record suggesting that another avenue of complaint to GE was open to Plaintiff. Plaintiff could reasonably have believed that Defendants had failed to provide a reasonable avenue for complaining about a non-GID GE employee’s conduct. Second, Plaintiff could reasonably have believed that Defendants’ amorphous proposed remedial action—Plaintiff being able to avoid having contact with Hill if she so chose—as opposed to a firm commitment to move Hill’s workspace or punish her in some way so as to deter future harassment, was inadequate.
As to whether plaintiff brought the matter to GE’s attention, the court noted that the complaint alleges facts that plausibly suggest that plaintiff’s complaints might have been passed on to GE, namely, that Hill’s comments were made in the presence of two co-workers, and plaintiff tried to inform her two GE supervisors of the comment. In addition, plaintiff also complained to Hill, a GE employee, about the discriminatory nature of Hill’s comment. The court cited the principle that “[p]rotected activity may include complaints to the putative harasser about the harassing conduct.”
As to causation, the court noted the temporal proximity between plaintiff’s complaints and her termination (six days after her first protected activity and two days after her second), as well as the “procedurally irregular manner in which GE terminated her employment”. The latter suggested that GE’s proffered explanation for plaintiff’s termination (“budgetary reasons”) was a pretext for retaliation.