2d Circuit Affirms Dismissal of Title VII Retaliation Claim; Disconnect From Gender Means No “Protected Activity”

In Murphy v. City of Newburgh, 2019 WL 4855691 (2d Cir. Oct. 2, 2019) (Summary Order), the Second Circuit affirmed the dismissal of plaintiff’s retaliation claim asserted under Title VII of the Civil Rights Act of 1964.

While plaintiff did complain of certain treatment, her complaints did not amount to legally-actionable “protected activity.”

The court briefly summarized the relevant law:

Under Title VII, making an internal complaint of discrimination is “protected activity” when the employee can show a “good faith, reasonable belief that the underlying challenged actions of the employer violated the law.” McMenemy v. City of Rochester, 241 F.3d 279, 283 (2d Cir. 2001). The Court assesses reasonableness “in light of the totality of the circumstances” while keeping in mind that in order for a plaintiff to satisfy element (2) of the prima facie case, the employer must have “understood, or could reasonably have understood, that the plaintiff’s [complaint] was directed at conduct prohibited by Title VII.”

Applying the law, the court explained:

Murphy’s written complaint to Ciaravino protests harsh treatment by Aber. She makes no mention, however, of gender-based discrimination. Instead, Murphy said, “I’m very upset and feel bullied by my immediate supervisor …. I will not be harassed, intimidated, or bullied for voicing my opinion …. I do not want to lose my job because of repercussions due to the fact that I refuse to be bullied and I speak up against it!” … Murphy’s written complaint does not allege that Aber treated her poorly based on her gender or any other protected class status, and thus it cannot qualify as “protected activity.” …

In Murphy’s deposition in this case, she says she reported to Ciaravino her concerns about Aber’s “condescending” tone when speaking to her and other women in the office. Finally, her affidavit responding to the City’s motion for summary judgment says that she told Ciaravino that she observed Aber treating female staff in a “brusque and dictatorial manner” and “interact[ing] much more respectfully towards men in the workplace.” Neither her deposition nor her affidavit provides any evidence of discrete acts of gender-based discrimination. Nor do her statements come close to suggesting the existence of a workplace “permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of [her] employment and create an abusive working environment” as would be necessary to establish that Murphy was the victim of a hostile work environment.

While observing that a plaintiff is not required “to append to each allegation the conclusory declaration ‘and this was done because of my sex,’ and instead allows the allegation of factual circumstances that permit the inference that plaintiff was subjected to a hostile work environment because of her sex”, here, the plaintiff offered no more than conclusory allegations to support her claim. Therefore, summary judgment was warranted.

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