Sanitation Worker’s Title VII Retaliation Claim Survives Dismissal Against the City of New York

In Burgos v. City of New York, 2019 WL 1299461, at *10–11 (S.D.N.Y., 2019), the court, inter alia, denied defendant’s motion to dismiss plaintiff’s retaliation claim – though it did dismiss his claims of discrimination based on his race (Hispanic) and religion (Islam).

The court held that plaintiff sufficiently alleged the existence of one or more “adverse employment actions” and a causal link between them and his protected activity.

As to the adverse employment action, the court explained the general law as follows:

An “adverse employment action” for the sake of a Title VII retaliation claim “is any action that ‘could well dissuade a reasonable worker from making or supporting a charge of discrimination.’ ” Vega, 801 F.3d at 90 (quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006) ). “Actions that are ‘trivial harms’—i.e., ‘those petty slights or minor annoyances that often take place at work and that all employees experience’—are not materially adverse” and thus do not constitute actionable conduct. Tepperwien v. Entergy Nuclear Operations, Inc., 663 F.3d 556, 568 (2d Cir. 2011) (quoting Burlington, 548 U.S. at 68). As such, “Title VII does not protect an employee from ‘all retaliation,’ but only ‘retaliation that produces an injury or harm.’

The court concluded that, under the facts of this case, plaintiff’s disciplinary complaints met this standard.

As to causation, the court explained:

… Burgos has alleged both a pattern of antagonism between himself and the Department in the period between his protected activity and the adverse acts in the limitation period, and additional circumstantial evidence of unfair treatment. In light of the “de minimis” burden for establishing a prima facie case of retaliation … the Court concludes that Burgos has sufficiently alleged a causal connection as to the December 7, 2016 disciplinary complaint, the July 3, 2017 disciplinary complaint, and the July 3, 2017 performance evaluation amendment.

It concluded that “[u]ltimately, for all four of the challenged acts, Burgos has plausibly allege[d] that: (1) defendants discriminated—or took an adverse employment action—against him, (2) ‘because’ he has opposed any unlawful employment practice”, and therefore denied the City’s motion to dismiss plaintiff’s Title VII retaliation claims.

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