Retaliation Claim Dismissed Against City of New York; Allegation That Plaintiff “Spoke Out Against” Discrimination Was Conclusory

In Patterson v. City of New York, No. 158598/2020, 2021 WL 5445502 (N.Y. Sup Ct, New York County Nov. 09, 2021), the court, inter alia, dismissed plaintiff’s retaliation claim asserted against the City of New York under the New York City Human Rights Law.

From the decision:

To state a claim for retaliation under the NYCHRL, a plaintiff must show that: (1) he or she engaged in a protected activity by opposing conduct prohibited thereunder; (2) the defendant was aware of that activity; (3) he or she suffered an adverse action based upon his or her activity; and (4) there was a causal connection between the protected activity and the adverse action (Reichman v City of New York, 179 AD3d 1115, 1119 [2d Dept 2020]). Under the broader NYCHRL, a plaintiff must show that his or her employer engaged in conduct which was reasonably likely to deter a person from engaging in that protected activity (see Brightman v Prison Health Serv., Inc., 108 AD3d 739, 740 [1st Dept 2013], citing Administrative Code § 8-107[7]). Protected activity is defined as conduct “opposing or complaining about unlawful discrimination” (Forrest v Jewish Guild for the Blind, 3 NY3d 295, 313 [2004]).

Here, the complaint fails to plead facts demonstrating that plaintiff engaged in a protected activity.
Specifically, other than plaintiff’s conclusory allegation that he “[s]poke out against the discrimination and retaliation that his coworker Ms. Saunders had been experiencing” (compl at ¶ 45; see id. at ¶¶ 15, 18) the complaint fails to allege any facts indicating that Saunders was discriminated against based on her membership in a statutorily protected class. Moreover, there is no indication that plaintiff’s employer was aware of plaintiff’s alleged participation in the alleged protected activity. The complaint fails to plead facts concerning the substance of plaintiff’s complaints, other than that the complaints concerned “discrimination” against Saunders, and to whom the complaints were made. Thus, plaintiff fails to state a claim for retaliation under the NYSHRL and NYCHRL.

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