In Giudice v. Red Robin Int’l, the U.S. Court of Appeals for the Second Circuit affirmed the dismissal on summary judgment of plaintiff’s retaliation claims under Title VII of the Civil Rights Act of 1964 and the New York State Human Rights Law.
Under both statutes:
[T]o make out a prima facie case of retaliation, a plaintiff must demonstrate that (1) she engaged in protected activity; (2) the employer was aware of that activity; (3) the employee suffered a materially adverse action; and (4) there was a causal connection between the protected activity and that adverse action.
Plaintiff failed to establish a genuine issue of material fact regarding the fourth element.
Initially, the court noted its confusion as to whether plaintiff claimed that the “protected activity consisted of complaining to Red Robin about discrimination based on his sexual orientation or based on his sex”, but pointed to plaintiff’s affidavit stating that he was “harassed solely because of the fact that [he is] gay.”
Such a claim would likely fail under Title VII:
The law is well-settled in this circuit and in all others to have reached the question that [] Title VII does not prohibit harassment or discrimination because of sexual orientation. This Court has not yet ruled on the specific question of whether a plaintiff may, under Title VII, maintain a claim of retaliation based on adverse employment action resulting from his complaints about sexual-orientation discrimination, although [we have held] that a plaintiff could not maintain a Title VII retaliation claim based on a mistaken belief that complaining about “paramour preference” was protected activity under the statute. The NYSHRL, however, proscribes discrimination by an employer based on an employee’s sexual orientation and makes it unlawful for an employer to retaliate against an employee because of the employee’s opposition to any practices forbidden under the statute.
However, even if plaintiff could maintain a Title VII claim on the basis of complaints about sexual-orientation discrimination, he
failed to establish a genuine dispute of material fact with respect to the causation element of his prima facie retaliation case under either law. Giudice argues that because he complained to Red Robin on June 14, 2010 and June 22, 2010, and was terminated weeks later on July 7, 2010, a reasonable factfinder could conclude that his complaints caused his termination. However, where, as here, the only basis for showing causation at the prima facie stage is a temporal nexus, and gradual adverse job actions began well before the plaintiff had ever engaged in any protected activity, an inference of retaliation does not arise. … Red Robin began disciplining Giudice years before his formal complaint of harassment on June 14, 2010. In 2008, Giudice was issued a final written warning for violating Red Robin’s policies concerning the proper payment of employees, in which he was told that his failure to follow the company’s policies could result in further discipline, including termination. In June 2010, Red Robin determined through an investigation that Giudice had not properly paid an employee. Thus, no reasonable factfinder could conclude that it was Giudice’s complaint that resulted in his termination, as opposed to Red Robin’s stated reason for firing him, which was his failure to properly pay employees after receiving a final warning requiring him to abide by the company’s policies concerning the payment of employees. (Emphasis added.)
Finally, even if plaintiff made out a prima facie case of retaliation, defendant satisfied its summary burden “to demonstrate that a legitimate, nondiscriminatory reason existed for its action.” This shifted the burden back to plaintiff to “to establish, through either direct or circumstantial evidence, that the employer’s action was, in fact, motivated by discriminatory retaliation.” Plaintiff waived any argument regarding pretext by failing to raise the argument on appeal.