Retaliation Claims, Based on Hostile Work Environment Following Rejection of Sexual Advances, Dismissed (With Leave to Amend)

In Bermudez v. Bon Secours Charity Health System and Theresa Krell, 2020 WL 104992 (S.D.N.Y. Jan. 9, 2020), the court, inter alia, denied defendants’ motion to dismiss plaintiff’s sexual harassment and retaliation claims asserted under Title VII of the Civil Rights Act of 1964 and the New York State Human Rights Law. Here I’ll discuss the court’s assessment of plaintiff’s retaliation claims.

In this case, plaintiff sued his employer, alleging that he was sexually harassed (by defendant Theresa Krell) and subject to retaliation for rejecting Krell’s sexual advances.

Here is the relevant law:

Title VII prohibits an employer from “discriminat[ing] against any of his employees … because he has opposed any practice made an unlawful employment practice by” Title VII. 42 U.S.C. § 2000e-3. “To make out a prima facie case of retaliation, a plaintiff must demonstrate that ‘(1) she engaged in protected activity; (2) the employer was aware of that activity; (3) the employee suffered a materially adverse action; and (4) there was a causal connection between the protected activity and that adverse action.’

Addressing the first element, the court held that plaintiff’s complaint sufficiently alleges that he engaged in a “protected activity”:

A plaintiff engages in protected activity when he opposes a practice that is prohibited by Title VII. Robinson v. Time Warner, Inc., 92 F. Supp. 2d 318, 322 (S.D.N.Y. 2000). This includes not only the formal lodging of charges but also informal actions like internal complaints to management. Id. Plaintiff alleges that he met with BSCHS’s Chief Operating Officer to discuss Krell’s alleged discrimination. This was a protected activity under Title VII. Plaintiff’s complaint to a corporate officer is also sufficient to establish knowledge on the part of BSCHS.

Plaintiff alleged two “adverse employment actions”: suspension without pay, and termination.

At present, however, his complaint does not sufficiently plead retaliation:

Plaintiff alleges, however, that he was terminated in retaliation, not for engaging in the protected activity of complaining to his superiors, but because of the hostile work environment arising from Krell’s sexual advances. See Compl. ¶¶ 41-43, 47. Nowhere does Plaintiff allege that Defendants suspended or terminated him with knowledge of his protected activity of making complaint.

The court concluded that “[i]n the absence of a direct allegation of retaliatory animus or circumstantial evidence from which the court can infer retaliation, a retaliation claim must be dismissed.” (The court observed, in a footnote, that while courts may infer causation from temporal proximity, the 3-4 months between the protected activity and adverse employment actions here, alone, were insufficient to support such an inference.)

It permitted plaintiff to cure this deficiency, and granted plaintiff leave to amend the complaint.