In D’Andrea v. Kirstjen M. Nielsen, Secretary, Department of Homeland Security, 2019 WL 1503923 (2d Cir. April 5, 2019) (Summary Order), the Second Circuit – after affirming the dismissal of plaintiff’s retaliation claim – turned to plaintiff’s hostile work environment claim.
The court understood plaintiff “to argue that DHS created a hostile work environment in retaliation against him because he engaged in protected conduct.” Plaintiff, however, did not brief this claim, and the district court did not address it.
It noted:
The question is whether a plaintiff may assert an independent hostile work environment claim alleging animus based on protected activity (as opposed to animus based on membership in a protected class, see 42 U.S.C. § 2000e-2), or whether the acts that would formulate such a claim are part and parcel of the adverse employment action element of a traditional retaliation claim, see 42 U.S.C. § 2000e-3(a).
The court remanded the claim, pursuant to United States v. Jacobson, 15 F.3d 19 (2d Cir. 1994), for the district court to answer the following questions:
1. Whether there is an independent claim for a hostile work environment under 42 U.S.C. § 2000e-2 based on retaliatory-animus toward a plaintiff’s protected activity; and
2. If so, whether the evidence adduced at summary judgment in this case was sufficient for a reasonable jury to find that D’Andrea was subject to a hostile work environment based on his protected activity.
This resolution of these questions – specifically, the first – may change how hostile work environment claims are framed and litigated in this Circuit,