Retaliatory Termination Case Survives Summary Judgment; Evidence Included instruction to “Keep An Eye On” Plaintiff

In Figueroa v. KK Sub II et al, 15-cv-6526, 2018 WL 573571 (W.D.N.Y. Jan. 26, 2018), the court (inter alia) denied defendant’s motion for summary judgment as to plaintiff’s retaliatory termination claims under Title VII and the New York State Human Rights Law.

In sum,^[1]As always, this is a brief summary of the facts of the case; for a fuller/deeper recitation of the facts you should consult the actual decision. plaintiff – a Subway Store Manager – asserted that she was terminated after complaining about sexual harassment carried out by an area manager.

Although it dismissed plaintiff’s claims of (e.g.) hostile work environment and retaliatory harassment, the court denied defendant’s motion for summary judgment on plaintiff’s retaliatory termination claim. In reaching this conclusion, the court explained:

[A] reasonable jury could find that Defendants’ proffered reason for terminating Plaintiff was merely pretext for retaliation. In her deposition testimony, [plaintiff’s co-worker] confirmed that Defendant Hammel told her “to watch [Plaintiff] and try to see if she d[id] anything wrong.” [] Ms. Quinones explained, “[Defendant Hammel] said she had an investigation against [Plaintiff]….She was just trying to see if [Plaintiff] was going to mess up….She was like just keep an eye on [Plaintiff] and let me know what she does or doesn’t do….” [] By Ms. Quinones’ account, this exchange took place when Defendant Hammel requested statements from her in support of Defendant Pharo [the alleged harasser], all of which necessarily occurred after Plaintiff’s phone call creating the dispute. [] A reasonable jury could construe Defendant Hammel’s instruction as seeking cover for an otherwise-retaliatory firing. Moreover, the close timing between Plaintiff’s phone call to Defendant Hammel and Plaintiff’s termination could also contribute to a reasonable inference of pretext.