In Mercado v. Mount Pleasant Cottage Union Free School District et al, No. 19-CV-9022 (NSR), 2022 WL 1239689 (S.D.N.Y. April 27, 2022), the court, inter alia, held that plaintiff sufficiently alleged retaliation under Title VII of the Civil Rights Act of 1964 (specifically, the “participation” prong of Title VII’s anti-retaliation clause).
The court explained:
Defendant School District does not dispute its awareness of Plaintiff serving as a witness in Ms. Alvarado’s NYSDHR case, or that its termination of Plaintiff constitutes a materially adverse action. Yet, Defendant School District asserts that Plaintiff’s “[s]imply agreeing” to serve as a witness in another employee’s case and complaint against itself does not constitute a “protected activity.” (Def.’s Mot. at 7, ECF No. 27.) In support of its assertion, Defendant School District points to the statutory language of Title VII: “[Title VII forbids an employer from retaliating against an employee] … because [s]he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” (emphasis in original) (Def.’s Mot. at 7.) In essence, Defendant School District is arguing that Plaintiff’s level of “activity”—specifically, agreeing to be named and eventually being named as witness for a co-worker’s discrimination administrative proceeding and federal action—does not amount to the level of participation required by the statute. (Id. at 7.) The Court disagrees.
Defendant’s argument, held the court, was expressly rejected by the Second Circuit in the case of Jute v. Hamilton Sundstrand Corp., 420 F.3d 166 (2d Cir. 2005), which held that that case’s plaintiff’s agreement to be named as a potential witness was sufficient as “participation” for the anti-retaliation clause of Title VII.
The court also held that plaintiff sufficiently alleged “but-for” causation, noting, inter alia, that while plaintiff was terminated approximately seventeen months after she was named as a witness in a proceeding at the NYS Division of Human Rights, she was also alleging protected activity in the form of agreeing to serve as a witness in a case that is currently pending before this Court.