In Richard v. N.Y. City Dep’t of Educ., No. 16-CV-957 (MKB), 2017 WL 1232498 (E.D.N.Y. Mar. 31, 2017), the court held that plaintiff sufficiently alleged retaliation under Title VII of the Civil Rights Act of 1964, and therefore denied defendant’s motion to dismiss that claim under Federal Rule of Civil Procedure 12(b)(6).[1]The court granted defendant’s motion to dismiss plaintiff’s (1) pre-March 19, 2014 Title VII claims as time-barred; (2) discrimination claims for failure to state a claim; (3) hostile work environment claim for failure to state a claim; and (4) state law claims for failure to file a notice of claim.
Among other things, this decision is instructive as to what constitutes “protected activity” and an “adverse employment action” in the context of a Title VII retaliation claim.
Pleading a Retaliation Claim
The court summarized the applicable legal framework for pleading a Title VII retaliation claim:
Title VII prohibits retaliation against an employee who “has opposed any practice [that is] made an unlawful employment practice under Title VII. Retaliation claims are analyzed under the McDonnell Douglas burden-shifting framework. To establish a prima facie case of retaliation, a plaintiff must show: (1) participation in a protected activity; (2) that the defendant knew of the protected activity; (3) an adverse employment action; and (4) a causal connection between the protected activity and the adverse employment action. … [F]or a retaliation claim to survive … a motion to dismiss, the plaintiff must plausibly allege that: (1) [the] defendants discriminated—or took an adverse employment action—against [him], (2) because he has opposed any unlawful employment practice.
The court proceeded to discuss whether plaintiff successfully pleaded these elements.
Protected Activity
The court held that plaintiff’s complaint with the New York State Office of Equal Opportunity (OEO) qualified as protected activity:
[A]lthough Plaintiff did not definitively state that discrimination based on race, color and ethnicity was the basis for his unfair treatment, his reference to race, color and ethnicity as the potential basis for his unfair treatment provided sufficient notice to Defendant that Plaintiff was complaining of unlawful discrimination and is more than merely a generalized statement about unfair treatment.
Plaintiff’s informal complaints, however, did not amount to protected activity “because Plaintiff did not indicate that his race, color or national origin were the basis for his complaints.” The fact that a vendor was “rude and hostile for no reason” was insufficient.
Adverse Employment Action
The court held that a letter placing plaintiff on probation qualified as an “adverse employment action” in support of plaintiff’s retaliation claim.
In the retaliation context, as opposed to the discrimination context, an adverse employment action is one that a reasonable employee would find materially adverse, meaning it could well dissuade a reasonable worker from making or supporting a charge of discrimination. The scope of actions that may be materially adverse is broader for purposes of retaliation claims than for discrimination claims. [F]or an adverse retaliatory action to be ‘because’ a plaintiff made a charge, the plaintiff must plausibly allege that the retaliation was a ‘but-for’ cause of the employer’s adverse action.
Applying the law, the court explained:
Unlike in the discrimination context, a formal reprimand may be an adverse action for purposes of a retaliation claim, even when … the letter does not directly or immediately result in any loss of wages or benefits, and does not remain in the employment file permanently, because it can reduce an employee’s likelihood of receiving future bonuses, raises, and promotions, and it may lead the employee to believe (correctly or not) that his job is in jeopardy. … The April 22 Letter to Plaintiff warned him that a future infraction could result in “further disciplinary action,” and Anaya’s email also warned him that an infraction within the proceeding eighteen months would result in Defendant placing the letter in his file. Liberally construing the allegations and drawing all reasonable inferences in Plaintiff’s favor, the Court finds that Plaintiff’s allegations sufficiently plead an adverse action, as such a letter may dissuade a reasonable worker from making a complaint, particularly when, as here, Plaintiff alleges he had not previously suffered disciplinary action.
Causation
Plaintiff sufficiently alleged the element of causation, since he received the probation letter (the adverse action) approximately three months after he filed the OEO complaint (the protected activity).
| ↩1 | The court granted defendant’s motion to dismiss plaintiff’s (1) pre-March 19, 2014 Title VII claims as time-barred; (2) discrimination claims for failure to state a claim; (3) hostile work environment claim for failure to state a claim; and (4) state law claims for failure to file a notice of claim. |
|---|