In Mondelo v. Quinn, Emanuel, Urquhart & Sullivan, LLP et al, 21-cv-02512, 2022 WL 524551 (SDNY Feb. 22, 2022), the court, inter alia, denied defendants’ motion to dismiss plaintiff’s retaliation claims, arising from plaintiff’s complaints of discrimination on the basis of his Spanish Ethnicity/Ancestry/National Origin, in violation of 42 U.S.C. § 1981, the New York State Human Rights Law, and the New York City Human Rights Law.
As to plaintiff’s federal law (42 U.S.C. § 1981) claim, the court explained:
Mondelo alleges that “Quinn Emanuel intentionally retaliated and discriminated against Plaintiff for engaging in the protected activity of opposing and reporting incidents of discrimination based on his Hispanic race and/or Spanish ancestry” by “subjecting Plaintiff to a hostile work environment, increased scrutiny, and threats of termination,” by “demoting him,” and by “terminating Plaintiff’s employment.” Am. Compl. ¶ 18 (Count II).
Plaintiff points to multiple adverse employment actions; not just his demotion and firing, but also that he was subjected to Eskanos’s persistent harassment and abuse because of his race. A cognizable “adverse employment action” is any conduct “that is harmful to the point that it could well dissuade a reasonable worker from making or supporting a charge of discrimination.” Duplan v. City of New York, 88 F.3d 612, 626-27 (2d Cir. 2018) (quotation marks omitted). In the retaliation context, an “adverse employment action” encompasses “a broader range of conduct than does the adverse-action standard for claims of discrimination” as it does not require that the “discriminatory actions … affect the terms and conditions of employment.” Id. at 90 (quotation omitted). To determine whether any of the alleged conduct amounts to an adverse employment action, the challenge actions must “be considered both separately and in the aggregate, as even minor acts of retaliation can be sufficiently substantial in gross to be actionable.” Hicks v. Baines, 593 F.3d 159, 165 (2d Cir. 2010) (quotation marks omitted).
Defendants primarily challenge causation; they argue that Plaintiff has not alleged a causal link between the alleged protected activity (reporting Eskanos’s discriminatory conduct to HR and Calamari) and any of the alleged adverse employment actions. A causal link is alleged either by pleading facts to support the inference that the defendant was motivated by retaliatory animus, or by pleading a close temporal proximity between the protected activity and the retaliatory action. Summer v. U.S. Postal Service, 899 F.2d 203, 209 (2d Cir.2009).
Specifically, Defendants assert that Plaintiff’s demotion cannot be linked to his HR complaint because he was demoted two and a half years after he reported Eskanos to HR. And Plaintiff was terminated three and a half years after he complained to HR, So Plaintiff has not and cannot allege a close temporal proximity between his HR report and his demotion or subsequent termination. And Mondelo pleads no other facts suggesting that Quinn Emanuel’s decision to demote or to fire Plaintiff was motivated by retaliatory animus.
The court disagreed with and rejected defendant’s argument:
Plaintiff alleges that after he complained to HR, “in continuation of his prior race/ancestry-based mistreatment of Plaintiff, and in clear retaliation of Plaintiff’s hostile work environment complain, he continued singling Plaintiff out and began sabotaging Plaintiff’s ability to succeed at the firm.” Am. Compl. ¶ 29 (emphasis added). All of the alleged actions taken by Mr. Eskanos to sabotage Plaintiff’s ability to succeed at his job were taken after Plaintiff complained to HR.
Plaintiff alleges a causal connection by a slim margin. But the allegations are enough for a claim of retaliation to survive a motion to dismiss for failure to state a claim. Defendants will have the opportunity to demonstrate that the adverse employment actions taken were motivated by legitimate, non-discriminatory reasons. But that is only appropriate for the court to take up at the summary judgment stage. We will revisit the issue at that stage in the litigation. But at this stage, the pleadings are sufficient.
Having reached this conclusion as to plaintiff’s § 1981 claim, it reached the same conclusion as to his claims under the New York State Human Rights Law (which applies the same standard), and the New York City Human Rights Law (which imposes a more lenient standard than its federal and state counterparts, in that it does not require a plaintiff to allege a “materially adverse employment action” but only a retaliatory act that is “likely to deter a persona from engaging in the protected activity”).