Retaliation Claims Survive Dismissal Against Con Edison

In Hunt v. Consolidated Edison Company of New York, Inc., 18-CV-7262, 2021 WL 3492716 (EDNY Aug. 9, 2021), the court, inter alia, denied defendant’s motion to dismiss plaintiff’s retaliation claims asserted under Title VII of the Civil Rights Acts of 1964 (Title VII) and the New York City Human Rights Law (NYCHRL).

While the court held that plaintiff’s EEOC charge did not qualify as “protected activity” (since it was not shown that the defendant knew about it before the alleged retaliatory actions), his prior lawsuit did so qualify.

Plaintiff also sufficiently alleged that he suffered from an “adverse employment action”, based on a number of employer actions against him:

Plaintiff has adequately alleged at the pleading stage that, when considered in the aggregate, (1) the way he was assigned to take the December of 2016 Operator Qualification exam and the way it was proctored, (2) his assignment to unnecessary Construction remediation and other irrelevant, overly basic remedial training, (3) the denial of an opportunity to retake the exam on the same schedule as other employees, (4) his return to the field seven months later without his operator qualification, affecting his chances for promotion, and (5) the denial of overtime on one occasion were adverse employment actions.

Plaintiff’s allegation that he was required to take the Operator Qualification exam under more challenging conditions than company policy provided — with less time to study, with the order of the exam sections switched at the last minute, with differences in proctoring, and with later loss of records, (SAC ¶¶ 56, 58) — constitutes an adverse action under the more lenient retaliation standard when those acts are considered in aggregate. … In addition, Plaintiff alleges that Defendant’s actions had real consequences for him — failing the exam, which would have required remedial training even absent the other acts by Defendants discussed below — and that Defendant’s administration of the exam was contrary to company policy. …

Plaintiff’s allegation that he received remedial Gas Distribution Services training far below his level of knowledge, and that he was assigned to Construction remediation training despite passing that exam, could be plausibly viewed as part of a “pattern of discrimination and retaliation designed to make [Plaintiff] look bad.” …

Plaintiff’s allegation that he was deprived of the opportunity to earn overtime on one occasion is an allegation of an adverse employment action because the loss of overtime affected his income.

The court concluded that “Defendant’s actions in aggregate throughout the seven month period during which Plaintiff was undergoing various forms of remedial training, was assigned to the wrong remedial classes, was not permitted to retake examinations on the same terms as other employees, and was away from the field, together constitute an adverse employment action.”

It also held that the alleged adverse actions were sufficiently close in time (about four months) to demonstrate temporal proximity and, hence, the element of causation.

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