Retaliation Claim, But Not National Origin Discrimination Claim, Survives Dismissal

In Petyan v. New York City Law Dept., 14-cv-1434, 2015 WL 1855961 (SDNY April 23, 2015), the court recommended the dismissal of plaintiff’s national origin (Israeli) discrimination and hostile work environment claims, but held that plaintiff plausibly alleged retaliation in the form of a negative performance evaluation.

The court held:

The law in [the Second] Circuit is less settled on the question of whether a negative performance review, without more, constitutes an adverse employment action in the retaliation context. … Until the Second Circuit clarifies the law, the Court is more persuaded by those decisions finding that a negative evaluation may constitute an adverse employment action even where additional employment consequences do not result therefrom. This interpretation better comports with the distinction drawn by the Supreme Court between adverse employment actions for discrimination and retaliation claims. … Moreover, the cases that have rejected negative evaluations as adverse employment actions do so more often in the context of summary judgment. … The Court believes that Petyan should at least be given the opportunity to develop the record on this point. Defendants could then renew their argument in a motion for summary judgment. Accordingly, the Court believes the more prudent course is to find that Petyan has plausibly alleged an adverse employment action with respect to his August 2012 “unsatisfactory” evaluation.

Petyan has also pleaded facts raising a plausible inference that his August 2012 performance evaluation was motivated by retaliation. While, as discussed, there is no “bright line” for determining when temporal proximity is sufficient to plausibly allege causation, “[g]enerally, courts in this circuit have held that the temporal nexus between the protected activity and the adverse employment action must be three months or less to establish a causal connection.” … Here, Petyan received his “unsatisfactory” performance review only two-and-a-half months after he made his internal complaint. This close temporal proximity is sufficient circumstantial evidence of causation at the motion to dismiss stage. Further supporting this circumstantial inference, Petyan has alleged that, while he ordinarily received his annual performance review earlier in the year, his 2012 review was delayed until the day the HR Division completed its investigation into Petyan’s EEO Complaint. Therefore, the Court recommends that Petyan’s retaliation claim regarding his performance evaluation be allowed to proceed.

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