Retaliation Claim, Arising From Opposition to Sexual Harassment (Assisting With Complaint), Survives Summary Judgment

In Barbini v. First Niagara Bank N.A. et al, 16-cv-7887, 2022 WL 623184 (S.D.N.Y. March 3, 2022), the court, inter alia, denied defendants’ motion for summary judgment on plaintiff’s claim that she suffered retaliation for opposing sexual harassment.

From the decision:

After due consideration, the Court concludes that a material dispute of fact precludes summary judgment against their retaliation claims for opposing sexual harassment.

First, contrary to Defendants’ assertion, Barbini’s conduct in aiding Henry with her sexual harassment complaint against Lawless constitutes a protected activity. “[A]ctivities protected under Title VII and NYSHRL fall into two broad categories: (1) opposing any practice made an unlawful employment practice by Title VII or the NYSHRL (an “opposition claim”) or (2) making a charge, testifying, assisting, or participating in any manner in an investigation, proceeding or hearing under Title VII or the NYSHRL (a “participation claim”).” Rice v. Smithtown Volkswagen, 321 F. Supp. 3d 375, 389 (E.D.N.Y. 2018) (emphasis and citations omitted). “The law is clear that informal complaints to management about discriminatory activity fall within the ‘opposition’ component of the protected activity element.” Id. (citing Littlejohn v. City of New York, 795 F.3d 297, 318–19 (2d Cir. 2018)); see also Falcon v. City Univ. of New York, 263 F. Supp. 3d 416, 418–19 (E.D.N.Y. 2017) (“The law also does not require that the employee file a formal complaint when opposing the discriminatory practices—an informal complaint is sufficient.”).

Notably, employees who are required by their job duties to report or investigate other employees’ complaints of discrimination are not generally engaging in protected activity “because merely to convey others’ complaints of discrimination is not to oppose practices made unlawful by Title VII.” Littlejohn, 795 F.3d at 318. “But if an employee—even one whose job responsibilities involve investigating complaints of discrimination—actively ‘support[s]’ other employees in asserting their Title VII rights or personally ‘complain[s]’ or is ‘critical’ about the ‘discriminatory employment practices’ of her employer, that employee has engaged in a protected activity[.]” Id. (alternations in original) (citations omitted).

Here, the parties do not dispute that Barbini did more than refer Henry to the Bank’s ethics hotline to report Lawless. Upon Henry’s request, Barbini was present for both, the meeting with Damyanidu on the Monday following the text message incident, and during Henry’s interview with McMichael, to actively support Henry in asserting a sexual harassment complaint.149 Thus, Barbini’s active support for Henry during her two meetings with Defendants constitute protected activity for purposes of Plaintiffs’ retaliation claims for opposing sexual harassment.

Second, for purposes of establishing a prima facie case, the Court agrees with Plaintiffs that the record contains sufficient evidence of a causal connection between their protected activity and termination. The record does show a temporal proximity between Plaintiffs’ participation in Henry’s sexual harassment complaint (August 14 and 17, 2015) and their termination (September 9, 2015).150 See El Sayed v. Hilton Hotels Corp., 627 F.3d 931, 933 (2d Cir. 2010) (noting that “[t]he temporal proximity of events may give rise to an inference of retaliation for the purposes of establishing a prima facie case of retaliation under Title VII[.]”).

And third, while Defendants aver that the Bank terminated Plaintiffs for a legitimate, non-discriminatory reason (i.e., for violating the Notary Policy), the Court is of the view that the record contains additional evidence other than temporal proximity from which a reasonable jury could conclude that the Bank’s proffered reason is pretext. For one thing, as already noted above, there is a material dispute of fact concerning the existence of the zero-tolerance policy towards those employees who violated the Notary Policy. See Part III, A, 1, supra. Such dispute by itself precludes summary judgment because the Court is unable to make credibility determinations at the summary judgment stage. Id.

But further, even when assuming that the zero-tolerance policy in fact exists, the record shows that after Barbini reported to Damyanidu that Lawless asked her to notarize documents in violation of the Notary Policy, Fee only interviewed Barbini and Henry during the subsequent investigation despite there being other notaries working under Lawless’s supervision.151 Indeed, the parties do not dispute that (1) Lawless managed two of the Bank branches, each with multiple notaries;152 (2) Lawless testified about how he maintained the notary practices of the last branch manager;153 and (3) Robustelli and Lawless both instructed Henry and Barbini, respectively, to notarize documents without the customer being present.154 From these facts, a reasonable jury could infer that Plaintiffs could not have been the only notaries who were instructed to violate the Notary Policy.

The court concluded that “[a] reasonable jury could also find that Fee’s investigation into the notary practices of the two branches was not impartial because it solely targeted Barbini and Henry—the two same employees who participated in a sexual harassment complaint against Lawless.”

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