Retaliation/Sexual Harassment Claim Survives Summary Judgment; Pretext Shown

In Elmessaoudi v. Mark 2 Restaurant LLC, No. 14 CIV. 4560 (PGG), 2016 WL 4992582 (S.D.N.Y. Sept. 15, 2016), the court held that plaintiff submitted sufficient evidence to survive summary judgment on his retaliation claim.

From the decision:

Plaintiff has presented circumstantial evidence that is sufficient to create a question of fact as to whether Defendant’s non-retaliatory justification for Plaintiff’s termination was mere pretext. There is evidence, for example that Jimenez – the manager of the Mark, Plaintiff’s direct supervisor, and the alleged sexual harasser – told Plaintiff that he would “get [Plaintiff] fired” after Plaintiff rejected his sexual advances and reported the sexual harassment. Jimenez played a central role in at least two of the written warnings that Defendant now relies on, and it was Jimenez who brought to Donovan the three co-workers who alleged that Plaintiff had threatened him. Given the temporal proximity of Jimenez’s actions to Plaintiff’s rejection of his sexual advances and report of his sexual harassment, and the fact that Plaintiff never received workplace discipline until he rejected Jimenez’s sexual advances and reported his sexual harassment, a reasonable jury could find that Jimenez acted with retaliatory animus. …

The court rejected defendant’s argument “that Jimenez’s alleged retaliatory motivation cannot form a basis for liability, because he did not have any influence on the Mark’s decision to terminate Plaintiff’s employment.” It held that plaintiff’s evidence is sufficient to create a material issue of fact as to whether Jimenez had retaliatory intent and – through the written warnings and his interaction with Plaintiff’s co-workers – was able to manipulate the employer’s decision making process so as to make the employer a conduit for his retaliatory intent.”

The court, however, dismissed plaintiff’s failure-to-accommodate disability claims, based on its finding that (e.g.) “any inadequacy in the accommodation granted to Plaintiff cannot be attributed to the employer” and that “[i]nstead, any such inadequacy is attributable to Plaintiff’s failure to make reasonable efforts to help [the employer] determine what specific accommodations [were] necessary.”

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