Retaliation Claim, Involving Alleged “Baseless” Sexual Harassment Investigation, Resurrected From Summary Judgment Dismissal

In Scé v. City of New York, 2022 WL 598974 (2d Cir. March 1, 2022), the Second Circuit, inter alia, vacated the district court’s award of summary judgment to defendants on plaintiff’s retaliation and aiding & abetting claims asserted in his Second Amended Complaint under the New York City Human Rights Law. (The court did, however, affirm the district court’s grant of summary judgment on plaintiff’s discrimination claims.)

Initially, the court held that the lower court erroneously applied to plaintiff’s NYCHRL claim the more demanding “but for” causation standard applicable under Title VII of the Civil Rights Act of 1964:

As an initial matter, it appears that the district court may have applied the incorrect causation standard. In explaining the principles applicable to retaliation claims under the NYCHRL, the district court recited the “but-for” causation standard applicable to Title VII retaliation claims. To grant summary judgment in favor of a defendant in an NYCHRL retaliation claim, however, a court must conclude as a matter of law that “retaliation played no role in the defendant’s actions.” Ya-Chen Chen v. City Univ. of N.Y., 805 F.3d 59, 76 (2d Cir. 2015) (internal quotation marks omitted). The possibility that the district court applied the more demanding causation standard applicable to federal retaliation claims to Scé’s NYCHRL claims may alone warrant vacatur as to the latter. See Velazco v. Columbus Citizens Found., 778 F.3d 409, 411 (2d Cir. 2015) (vacating grant of summary judgment and remanding on NYCHRL claims where the district court did not “sp[eak] with sufficient clarity … as to whether the evidence was insufficient to support any causal link between age bias and plaintiff’s firing, as required by the NYCHRL, or whether the evidence was simply insufficient to support the but-for causation required by the ADEA” (internal citations omitted)). We also vacate the district court’s decision to grant summary judgment on Scé’s NYCHRL aiding and abetting claim because the district court ruled on the ground that “no liability can attach in the absence of underlying discriminatory or retaliatory conduct,” SPA 33 n.10, and we reinstate such underlying claims.

Turning to the merits, the court held that the district court erroneously limited its analysis to temporal proximity in connection with two instances of protected activity, namely, plaintiff’s filing of an EEOC charge, and his initial complaint.

Observing that “the initiation of an EEOC investigation or lawsuit is not the only type of event that might prompt actionable retaliation,” the court continued:

Here, Scé offered evidence that an allegedly baseless sexual harassment investigation was instituted against him less than a week after he served deposition notices on several of the individual Defendants-Appellees. Moreover, Scé submitted a declaration from a former NYPD officer, Edward Rosovich, who averred that, “[o]n many occasions between 2014 and 2018,” he personally observed Defendants-Appellees Ge and Morgan speak with another officer, Sergeant Schneider, “about their plans to harm Sergeant Sc[é]’s career” by planning to “use fabricated disciplinary charges to harm Sergeant Sc[é].” App’x 1542–42. The district court erred in dismissing these allegations of direct observations as “conclusory,” SPA 31, and in concluding therefore that Scé failed to establish a genuine dispute of material fact as to causation.

Accordingly, the court vacated the district court’s grant of summary judgment on plaintiff’s NYCHRL retaliation claim, to the extent based on an allegedly baseless disciplinary proceeding.

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