Not Every Complaint of Discrimination is “Protected Activity” Sufficient to Give Rise to a Retaliation Claim

In Semmler v. County of Monroe, decided August 6, 2014, the Western District of New York reiterated that not all complaints of perceived discrimination will constitute “protected activity” necessary to make out a claim of retaliation.


A plaintiff cannot establish a prima facie case of retaliation [under Title VII] unless she has engaged in protected activity. To qualify as protected activity, an employee’s complaint must have been based on a good faith, reasonable belief that [she] was opposing an employment practice made unlawful by Title VII. [M]ere subjective good faith belief is insufficient[;] the belief must be reasonable and characterized by objective good faith. The reasonableness of the plaintiff’s belief is assessed in light of the totality of the circumstances, and [a] plaintiff’s belief on this point is not reasonable simply because he or she complains of something that appears to be discrimination in some form. (Bold emphasis added, italic emphasis emphasis in original.)

In this case, plaintiff’s complaints

all sprang out of [co-worker] Ms. English’s alleged “verbal beratement” and “hostile gestures” towards Plaintiff. In particular, Plaintiff claims that Ms. English snatched a résumé out of Plaintiff’s hands on one occasion, called her a bitch on one occasion, called her unprofessional on one occasion, and was generally “hostile” and “scolding” towards her.

These complaints, held the court, were insufficient to establish “protected activity” necessary for her retaliation claims:

Title VII does not set forth a general civility code for the American workplace. Title VII prohibits discrimination because of gender, and workplace harassment is not discriminatory simply because the words used have sexual content or connotations. … A Title VII plaintiff must always prove that the conduct at issue was not merely tinged with offensive sexual connotations, but actually constituted discrimina[tion] … because of … sex.

No reasonable person could have believed that Ms. English’s conduct, as described by Plaintiff, violated Title VII’s prohibition on gender-based discrimination. The only incident claimed by Plaintiff that arguably has a sex-based component is Ms. English allegedly calling Plaintiff a bitch. No reasonable person could have believed that this single incident of sexually inappropriate language by a co-worker constituted unlawful sexual harassment. …

Not only would a reasonable person not have believed that Ms. English’s actions constituted gender discrimination, but Plaintiff herself admitted that she did not believe Ms. English was hostile towards her based on her gender. Plaintiff made her position even clearer by explaining that she considered Ms. English’s actions “same sex harassment” solely because Ms. English was a woman and not a man. Plaintiff’s mistaken belief that all “harassment” by a female coworker constituted “same sex harassment” does not amount to a good faith, reasonable belief that Defendant was engaged in an employment practice prohibited by Title VII. (Emphasis added.)

Therefore the court dismissed plaintiff’s claims of retaliation under Title VII and the New York State Human Rights Law.

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